Naz v Minister for Immigration & Multicultural Affairs [1999] FCA 97 (10 February 1999)

Last Updated: 15 February 1999

FEDERAL COURT OF AUSTRALIA

Naz v Minister for Immigration & Multicultural Affairs

[1999] FCA 97

IMMIGRATION - refugee application - review of decision of Refugee Review Tribunal - claim of well-founded fear of persecution on basis of membership of a group comprising Muslim women who speak out against the oppression of Muslim women in Bangladesh or who do not follow accepted codes of behaviour, or both - applicant's family part of very wealthy elite in relative terms - father murdered by large band of robbers in applicant's presence - applicant subsequently received threats to dissuade her from giving evidence - applicant physically attacked by group which included some involved in father's murder - attack in class when teaching local Muslim women - applicant ceased teaching activities - Tribunal found threats to applicant designed to deter her from giving evidence, not for a Convention reason - thereafter applicant continued role in running family business - Tribunal did not accept certain aspects of applicant's evidence - Tribunal found no real chance of persecution if applicant returned to Bangladesh - also found it would be reasonable for applicant to relocate to Dhaka City - whether error of law.

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 followed

Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 referred to

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 referred to

FARHANA NAZ, SALEQUE RAHMAN and RAFIYA NAZ v.

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

No N4 of 1999

CARR J

PERTH

10 FEBRUARY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 4 of 1999

BETWEEN:	FARHANA NAZ, SALEQUE RAHMAN and RAFIYA NAZ Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	10 FEBRUARY 1999
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 4 of 1999

BETWEEN:	FARHANA NAZ, SALEQUE RAHMAN and RAFIYA NAZ Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	CARR J
DATE:	10 FEBRUARY 1999
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1 This is an application for an order of review of a decision, on 4 December 1998, by the Refugee Review Tribunal ("the Tribunal") to affirm the decision of a delegate of the respondent not to grant to the applicants a protection visa under the Migration Act 1958 (Cth) ("the Act"). The second applicant (the husband of the first applicant) and the third applicant (their daughter) made no claims of their own but relied on those of the first applicant. I shall hereafter refer to the first applicant as "the applicant".

2 It was necessary for the applicant to satisfy the respondent that she was a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). In particular, it was necessary for her to satisfy the respondent under Article 1A(2) of the Convention that she was a person who:

"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of her nationality and is unable or, owing to such fear, is unwilling to avail herself of the protection of that country; ..."

Factual Background and the Tribunal's Reasoning

3 The reasons for decision of the Tribunal set out the material facts. The following is largely taken from those reasons.

4 The applicant was born in Bangladesh in 1964. Her father was a pioneer in the poultry farming industry. He built up what appears to have been a successful and prosperous business at a place called Gazipur about 25 kms from the capital Dhaka City. The family (which employs twelve security guards) also has a home in Dhaka City. The Tribunal accepted that the applicant's father was not an orthodox Muslim and that he was vocal about his views on religion. It also accepted that the applicant shares her father's views on religion and has communicated those views to local women whom she taught. On 8 February 1989 the applicant was an eye-witness to her father's murder by a group of what the local newspaper (in an article tendered on behalf of the applicant) described as about 20-25 dacoits. The newspaper report stated that the dacoits stole 300,000 Taka in cash and other valuables, including 50 tolas (about 585 grams) of gold ornaments. About a month after her father's murder, the police asked her to repeat her statement to them about the murder, saying that they had lost her earlier statement. On the advice of her uncle, their family lawyer, the applicant declined to make a further statement. The Tribunal accepted that some of those involved in the murder threatened her with harm if she gave evidence against those who perpetrated that crime.

5 The applicant communicated her unorthodox views about the treatment of Muslim women to local women to whom she either gave or sold eggs and whom she also taught in regular classroom sessions. The applicant taught the local women about the modern Muslim religion and, so she told the Tribunal, tried to change their views and give them ideas about western women and their rights as women. Local men found the applicant's actions and views threatening to their authority over their wives. In mid July 1996, while giving such a class, the applicant was physically attacked by a group of men, three of whom she had previously identified as being involved in her father's murder. The applicant was frightened by this incident and, as a result of her fear of being attacked again, she ceased her activities of teaching local women.

6 The Tribunal accepted that the applicant considered that the real reason why her father was killed was because of his unorthodox religious views. However, the Tribunal said that this did not mean that it accepted that the applicant's belief in this regard was correct, or that if she were at risk from the same people, it would be for the same reason. The Tribunal found as a fact that the applicant was not in any danger in Bangladesh as a consequence of witnessing her father's murder. It noted that during the period when the applicant was studying abroad (on four separate occasions in Cyprus, the Netherlands and England between approximately September 1989 and June 1994) she returned to Bangladesh every year for one or two months. It also noted that the applicant lived and worked in Bangladesh on a full time basis from August 1994 until November 1996. The Tribunal did not accept the applicant's claims that she was confined to her home after July 1996. It set out (at p 16 of its published reasons) its reasons for not accepting these claims. It said:

"In any event, I do not accept there is a real chance Ms Naz would face persecution at the hands of the men who are (sic) attacked her if she returned to Bangladesh. In relation to this, the attack on Ms Naz occurred in July 1996. Ms Naz and her husband claimed that she continued to be threatened after this incident. Ms Naz also claimed that she was not harmed again because she remained at home and ceased her activities teaching the local women. However, I note that Ms Naz remained in Bangladesh for some four months after this incident and continued her role in the family poultry business. I am of [the view] Ms Naz's evidence that she continued her role in running the family business is inconsistent with her claim that she remained confined to her home after July 1996. Further, I am of the view that if Ms Naz had continued to be threatened after July 1996, she would have made arrangements to leave Bangladesh more precipitously and not remained in the country for a further four months. In the circumstances, while I accept that Ms Naz was attacked on one occasion, I do not accept that she continued to be threatened by Islamic fundamentalists. Further, I do not accept that she confined herself to home after July 1996.

I am of the view that the fact that Ms Naz was attacked only once and was not threatened again indicates that she was targeted not because of her religious beliefs, her political opinion or her membership of a particular social group, but because her actions in teaching local women were perceived by local men as threatening to their authority over their wives. Once she stopped these particular activities, there was no longer any reason for them to target her."

7 The Tribunal then turned to the question of relocation. The relocation in question was from Gazipur to Dhaka City. The applicant had claimed that this was not reasonable because she was so well known in Dhaka City, because her family would not support her and because she would not be free to speak out when she wanted to, or to dress in the way in which she wanted to. The Tribunal rejected those claims. It found that given Ms Naz and her husband's socio-economic status, education and work experience, they would be able to live independently in Dhaka City. It found further that the chance that the men who attacked her in July 1996 would follow her to Dhaka City was remote. It did not accept that the applicant would have to live permanently indoors under strict security if she lived in Dhaka City. It concluded that it would be reasonable for the applicant to live in Dhaka City to avoid any harm which she fears at the hands of the men who killed her father and attacked her. The Tribunal acknowledged that Ms Naz might not be free to do anything which she wished to do in Bangladesh even if she did live in Dhaka City. It found that the restrictions on her lifestyle reflected cultural mores within Bangladesh and were not persecutory within the meaning of the Convention. It noted that the applicant had, in the past, been able to act in ways which did not accord with Bangladeshi cultural mores, without persecution. It also accepted independent evidence that Dhaka City was not one where fundamentalist approaches to observance of Islamic teachings were widely respected. The Tribunal found, on that independent evidence, that the applicant would be able to live in Dhaka City, be vocal against Islamic fundamentalism and become involved in women's issues if she chose to do so. It found that the chance that she would face treatment amounting to persecution in such circumstances was remote and insubstantial. For all of those reasons the Tribunal concluded that the applicant was not entitled to refugee status.

The applicant's grounds for her application to review the Tribunal's decision

8 The applicant was represented by a solicitor before the Tribunal. It would appear that she did not receive legal assistance when she drafted her application for review. The relevant portion of that document reads:

"However, I am not satisfied with the refusal decision of my application for protection visa. I certainly believe that the primary case officer as well as the case officer of the Refugee Review Tribunal has failed to properly assess the merits of my situation in Bangladesh, as I am definitely facing life-risk on return. Therefore, I request before the Honourable Federal Court that the decision under review be set aside and be given approval of my application sympathetically for protection visa."

9 At the hearing in this Court the applicant was represented by Mr David Ash of counsel pursuant to the New South Wales Bar Association's Legal Assistance Scheme. The Court is grateful for Mr Ash's assistance at short notice. From written submissions prepared and filed by Mr Ash on behalf of the applicant and from oral submissions today, it appeared that the applicant relied on s 420(2)(b) of the Act and also s 476(1)(e) of the Act. Section 476 of the Act sets out the grounds upon which an application may be made for review to this Court. Section 420(2)(b) provides, in summary, that in reviewing a decision, the Tribunal must act according to substantial justice and the merits of the case. The present state of the authorities is that failure to comply with s 420(2)(b) is a ground for review: Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300. At the hearing I made an order that the application for review be amended by adding to it the grounds of review identified in the applicant's written submissions.

10 I propose to set out the various contentions advanced by the applicant and my reasoning in relation to those contentions, one by one, in succession.

Failure to make a finding as to whether a fear of being attacked again

amounted to a fear of persecution.

11 The applicant contended that the Tribunal, having accepted that she had a fear of being attacked again, substantial justice and the merits of the case required that it "seriously enter into the question" (a reference to a passage from the reasons for judgment of Davies J in Eshetu at 312) as to whether the "fear" amounted to persecution. It was submitted on her behalf that a conclusion that there was no well-founded fear of persecution "leap frogs" this element entirely. Then it was said that the Tribunal did not ask itself whether the further attack in mid July 1996 was persecution.

Reasoning

12 In my view, this contention is based on an analytical approach to the Tribunal's reasons which transgresses the restrictions referred to in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259. It is true that there is no express finding by the Tribunal that the attack in July 1996 was sufficiently serious to amount to persecution. However, it is implicit in the Tribunal's reasoning (and in particular in its reasoning in the first complete paragraph on p 16) that the Tribunal regarded such behaviour as persecution. At the previous page the Tribunal noted that the "harm feared by an applicant need not be the product of government policy to amount to persecution within the meaning of the Convention". It noted that it may be enough that the government has failed or is unable to protect the applicant from persecution. The Tribunal then carefully examined the facts to assess whether the government of Bangladesh had failed or was unable to protect the applicant from persecution. It noted that Ms Naz had not reported the attack to the authorities, and her reasons for not doing so. It noted the deficiencies in the Bangladeshi police force, but observed that Ms Naz's family would be better able to access protection because of their socio-economic status. The Tribunal relied upon independent evidence when concluding that the Bangladeshi authorities would not have been unable or unwilling to protect Ms Naz had she asked them to do so. Furthermore, when the Tribunal took the next step of considering whether the applicant faced a real chance of persecution, it is implicit that the Tribunal considered that the July 1996 attack amounted to persecution - see the sentence which reads:

"In any event, I do not accept there is a real chance Ms Naz would face persecution at the hands of the men who are (sic) attacked her if she returned to Bangladesh."

13 The applicant appears to contend that the Tribunal should have considered whether "the fear" itself amounted to persecution. I do not think that that was required of the Tribunal. The engendering of fear by an attack of the type described by the Tribunal may well be part of the persecution. The Tribunal accepted (see p 14) that the applicant was frightened by the incident and that as a result of her fear of being attacked again she ceased her activities of teaching local women. There was an express finding that the applicant had a genuine subjective fear of returning to Bangladesh. The Tribunal based its decision on whether such a fear was well-founded. In my view, the Tribunal did not err in the manner contended for by the applicant in paragraphs 10.1 and 10.2 of the written submissions filed on her behalf. The Tribunal implicitly decided that the attack in mid July 1996 and the threat of any further such attacks (had such threats been made - which the Tribunal found was not the case) would have amounted to persecution.

Whether the attack was for a Convention reason

14 The applicant submitted that having found that she was targeted, it ought "in the interests of justice and the merits of the case" have concluded that the targeting was within a Convention reason. I do not think that this submission falls within s 420(2)(b) of the Act, but I shall consider the submission nonetheless. The submission amounted to a challenge to the Tribunal's conclusion (at p 16) that the applicant was not targeted because of her religious beliefs, her political opinion or her membership of a particular social group, but because her actions in teaching local women were perceived by local men as threatening to their authority over their wives. This conclusion was preceded by two credibility findings. The first was a refusal to accept that the applicant, as she claimed, continued to be threatened by Islamic fundamentalists after ceasing her activities in mid July 1996. The second was to reject her claim that she confined herself to her home after July 1996. The Tribunal reasoned (at p 16 of its reasons) that in view of the fact that the applicant was attacked only once and was not threatened again, the attack was for the reason set out immediately above and not for a Convention reason. In my view, it was open to the Tribunal, on the facts as found, to reach that conclusion. The Tribunal then turned to the applicant's activities in founding a Non-Government Organisation (referred to as an "NGO"). The evidence was that there is a multitude of NGO's in Bangladesh, many of which are run by Bangladeshi women conducting programs directed at women. The Tribunal relied upon a recent US State Department report for concluding that neither by starting an NGO nor by continuing NGO activities would the applicant be at risk of persecution. In my opinion, these contentions amount to a challenge to the Tribunal's conclusions on the merits. In any event, in view of the Tribunal's conclusion on the objective "well-founded" fear issue, they do not bear on the determination of the matter.

Whether the applicant had a well-founded fear

15 The applicant criticised the use by the Tribunal of the "real chance" test. In doing so the applicant cited Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 576-577. In terms of the guidance and observations in Guo, it can be seen from the reasoning of the Tribunal in this matter that it did not engage in speculation. Its reasons must be read as a whole. At page 3 of its reasons it set out its understanding of what is a "well-founded" fear. It summarised the reasoning of the main judgment in Guo (at 577) most accurately. Later in its reasons it made an assessment, as best it could, about whether events might or might not occur in the future if the applicant returns to Bangladesh. It found that the applicant would not be at risk of persecution even if she continued her NGO activities, although she might be vulnerable to sporadic threats from men who may be frightened of losing their traditional authority. It found that such threats would not amount to persecution. The applicant's attack on this part of the Tribunal's reasoning was based on its alleged failure to make a finding as to the meaning of persecution. Again, when one reads the Tribunal's reasons as a whole, it can be seen to have well understood the meaning of persecution. In particular, as I have already indicated the Tribunal well understood and implicitly regarded the July 1996 attack as persecution. For that reason I reject the applicant's contentions summarised in paragraphs 22.1 and 22.2 of the written submissions filed on her behalf.

Whether the applicant was able to avail herself of protection

16 The applicant submitted that the only inference from the Tribunal's findings about the Bangladeshi police force was an inference that she would be able to avail herself of its protection only if she indulged in corruption. The applicant submitted that Article 1A(2) of the Convention should not be applied in that manner. In my view, this submission is based on an erroneous and over-critical analysis of the Tribunal's reasons. The Tribunal found that the applicant was neither a villager nor a person without access to power. It expressed the view (at p 15 of its reasons) that her family would be better able to access protection than many other people in Bangladeshi society because of their socio-economic status. There was evidence before it of political and legal connections of her family at a very high level. The Tribunal noted that the reason why the prosecution for the murder of her father did not proceed was because her family "did not push for this to occur". I reject the inference suggested by the applicant as being the only one open, i.e. that she would have to indulge in corruption to obtain protection.

17 Finally, the applicant criticised this portion of the Tribunal's reasons (at p 16):

"Whilst I accept that Ms Naz declined to ask for the protection of the Bangladeshi authorities because she thought she would not be protected, the independent evidence does not suggest that the Bangladeshi authorities would have been unable or unwilling to protect Ms Naz had she asked them to do so."

18 The applicant complained that this conflated the disjunctive expression "... is unable or, owing to such fear, is unwilling to avail ...". The Tribunal was wrong, so it was put, to ask itself whether the Bangladeshi authorities were "unwilling". There is a superficial appeal to this submission. However, on closer examination, it can be seen that the Tribunal was, at that stage of its reasoning, assessing whether there was persecution, being persecution not the product of government policy but in a situation where the government had failed or was unable to protect the applicant from persecution. The Tribunal was not in the course of addressing any submission or claim on the part of the applicant that she was unable or, through relevant fear, unwilling to avail herself of the protection of the Bangladeshi government. No such claim had been advanced on behalf of the applicant. The applicant said that she did not report the July 1996 attack to the authorities because she felt that the police would not be able to protect her. That was the issue being dealt with by the Tribunal. I do not consider that the Tribunal fell into the error identified in paragraphs 28.1 and 28.2 of her written outline.

Relocation

19 The issue of relocation did not arise until Mr Ash addressed in reply this morning. However, it had been mentioned in the respondent's written outline of submissions as sufficient in itself to dispose of this matter. The Tribunal found that it would be reasonable for the applicant to relocate to Dhaka City. It gave its reasons for that finding at p 17 of its reasons for determination. The applicant accepted that the principles of reasonable relocation or internal flight were part of the law in relation to refugee status and the protection obligations of Australia. The applicant submitted that the relocation principle should be applied "subject to and consistently with the text" of Article 1A(2) of the Convention. In my view, there is nothing in the Tribunal's reasons to suggest that it incorrectly applied the relocation principle in the context of the Convention and the established case law. Then the applicant relied upon the earlier submissions put in relation to corruption and the unwillingness of the police to extend protection, both of which factors, so it was submitted, had been found to apply in respect of all of Bangladesh. I will not repeat what I have just said about those submissions. However, I will add that the Tribunal found as a fact (on independent evidence) that the applicant would be safe in Dhaka City and that the same evidence did not suggest that those authorities would have been unable or unwilling to protect her, had she asked them to do so. In my view, the finding by the Tribunal that it would be reasonable for the applicant to relocate to Dhaka City was a finding of fact which was open to it on the evidence.

Conclusions

20 For the foregoing reasons I consider that the application should be dismissed. I will hear counsel on the question of costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr.

Associate:

Dated: 12 February 1999

Counsel for the Applicant:	Mr D Ash
[Mr Ash was retained through the Legal Assistance Scheme of the New South Wales Bar Association]
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 February 1999
Date of Judgment:	10 February 1999