NANV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 729 (20 June 2003)

Last Updated: 21 July 2003

FEDERAL COURT OF AUSTRALIA

NANV v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 729

NANV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N462 of 2003

MADGWICK J

20 JUNE 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N462 OF 2003

BETWEEN:	NANV APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	20 JUNE 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to 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	N462 OF 2003

BETWEEN:	NANV APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	20 JUNE 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1 This is an application said to be made under s 39B of the Judiciary Act 1903 (Cth) and also praying in aid s 475A of the Migration Act 1958 (Cth) ("the Act") seeking orders in the nature of mandamus to quash and remit for hearing a decision of the Refugee Review Tribunal ("the Tribunal"), dated 4 March 2003, adverse to the applicant.

2 The applicant was born on 5 October 1962 and arrived in Australia on 3 June 1998. He lodged an application for a protection visa on 14 July 1998 in which he claimed he was a citizen of India. On 28 July 1998 a delegate of the respondent refused that application. The applicant sought review of that decision but by decision dated 24 October 2000 the Tribunal affirmed the delegate's decision. An application for judicial review of that first Tribunal decision was dismissed by this Court on 26 April 2001.

3 The applicant took advantage of the then prevailing doctrine that his earlier application was a nullity because it had not included any claims to support his contention that he was a refugee so that he had, on that theory, not made an application for a protection visa at all. The applicant lodged another application on 3 July 2001 which, in the state of the then

law, the respondent accepted and dealt with. On 22 April 2002, a delegate of the respondent refused the application. The applicant sought review of that decision by the Tribunal.

4 The Tribunal took a benevolent view of an explanation that the applicant gave to the Tribunal as to why he had first claimed to be a national of India. It accepted that he was in fact Bangladeshi by birth and Hindu by religion.

5 The applicant's claims to be a refugee were founded, in substance, upon his having been a Hindu, upon general persecution and harassment alleged against Hindus generally, and upon his being active in the defence of Hindus and Hinduism, including both supporting a political organisation known as the Chatra League and by seeking legal redress for the treatment of a Hindu girl who was attacked and kidnapped.

6 In relation to that girl, the applicant and his associates began some sort of legal proceeding. After the case was subject to a hearing in court on 12 December 1996, he was attacked and beaten by a group of armed Muslims and was otherwise damnified by fundamentalist Muslims.

7 The Tribunal accepted that, in his local area, he had indeed been what one may call a Hindu activist in the ways he had suggested and accepted that he had been attacked because of his support of the Hindu girl and her family. The Tribunal did not accept that false charges had been laid against him (which was one of the forms of harassment he had alleged).

8 The Tribunal also accepted the independent evidence that Hindus in Bangladesh had been suffering increasing harassment and harm from fundamentalist Muslims and that the post-2001 Bangladesh National Party ("BNP") government:

`has lessened the general level of religious tolerance that has prevailed in Bangladesh.'

9 The essence of the Tribunal Member's reasoning is as follows:

`The Tribunal finds that the evidence before it indicates that these attacks by Muslim fundamentalists are in general on prominent Hindus or are in the nature of random attacks. The Tribunal accepts that the applicant may well feel that his involvement with the local BHBCUC [see [10] below] may well

have made him a prominent Hindu in his local district, and that he may well have felt isolated, vulnerable and harassed in the rural area where he lived. However, the Tribunal notes that the applicant is educated with entrepreneurial skills appropriate to an urban environment. The Tribunal finds, in the circumstances of his case, that it would be reasonable for him to relocate to Dhaka so as to avoid any harm that he fears might befall him in the district where he had been living. The Tribunal finds that there is no real chance that the applicant would suffer serious harm in what remains isolated and unsystematic attacks on Hindus. The Tribunal does not accept that his former local position would make him, in the large urban conglomerate of Dhaka, a "prominent" Hindu who might become a target of Muslim fundamentalists. The Tribunal also finds it implausible, and does not accept, that local fundamentalists from his district, would pursue him to Dhaka, particularly given the fact that he has now been absent from Bangladesh for some six years. The Tribunal, having examined the evidence before it, finds that there is no support for a finding that, as a Hindu, fundamentalist Muslims would individually target him, should he return to Bangladesh to live in Dhaka. The Tribunal further notes that the independent evidence cited above from the Canadian government and from research by the Tribunal, indicates that there have not been attacks on BHBCUC leaders and activists. In making this finding, the Tribunal has considered the applicant's claim that it is in his nature to fight for Hindu rights and against injustice and that by so doing he would inevitable achieve a level of prominence that would attract the attention of anti-Hindu elements who would seek to harm him. The Tribunal is not satisfied that this is the case. The Tribunal notes that the independent evidence indicates that there are still large numbers of Bangladesh citizens who are opposed to the attempts by Islamic fundamentalists to impose their values on society and in a large city such as Dhaka, the Tribunal finds the applicant would be just one of many people with the views and commitment he holds. The fact that he was at best, a local activist, and that he has been away from Bangladesh for some six years, would mean that in the foreseeable future he would not attain the prominence that would lead the Tribunal to find there would be a real chance he would suffer serious harm for his social commitment.'

10 The applicant who speaks no English and is not legally qualified, relied on written submissions which, evidently, a lawyer of some capacity prepared for him. The submission was put that he had sought refugee status on three bases; namely religion, political opinion and membership of a social group. It is said that the Tribunal failed to consider and failed to assess his claim to be entitled to refugee status on the basis of his membership of the particular social groups, to which the applicant's evidence and submissions made reference. The conceivable social groups were Hindu people, Hindu activists, supporters of the Chatra

League and members or supporters of the Bangladesh Hindu Buddhist Christian Unity Council ("BHBCUC"), a human rights lobby.

11 It is true that the Tribunal Member did not analyse his membership of any of these groups in terms of whether it was a "particular social group", but in the course of considering claims to persecution on account of political opinion and on account of religion, he decisively negatived every integer of the claim that might have been put in relation to each such social group. In my opinion the Tribunal Member did not fail to address the way in which the applicant's case might be put or understood, even if poorly articulated.

12 It is said further that the Tribunal Member assumed "... that only prominent Hindus would be targets of violence in Bangladesh" and that "... the applicant's safety would not be at risk were the applicant to relocate to Dhaka" upon any return to Bangladesh. It is also said that there was no evidence to support the finding that "violence by Muslims in Bangladesh was directed exclusively to prominent Hindus" and that there was no evidence to support the conclusion that he would be safe were he to relocate himself within Dhaka.

13 The gist of the Tribunal Member's findings was that attacks by Muslim fundamentalists in general either targeted only "prominent" Hindus or were in the nature of "random attacks". The material set out by the Tribunal Member in his decision, quoting from the submission of the applicant's adviser, is capable of supporting that conclusion. The Tribunal Member did not assume that in Dhaka there were no attacks on Hindu people, rather the Tribunal Member's evident view was that in Dhaka the applicant would be, as it were, just another face in the crowd and at no higher risk of coming to harm than any other Hindu person. In my opinion the Tribunal Member plainly felt that, while there was some risk that the applicant might be persecuted at the hands of Islamists, this was not sufficient to amount to a real risk. So it seems to me that the "no evidence" grounds depend firstly on a misunderstanding of the material that was actually before the Tribunal and, secondly, on some misunderstanding of what the Tribunal Member was in truth saying.

14 I may add that I had otherwise, before receipt of the applicant's written submissions, examined the material to see whether I could find any reason for impugning the Tribunal's decision on jurisdictional grounds and I could not.

15 It follows the application must be dismissed. The applicant is to pay the respondent's costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 16 July 2003

The Applicant appeared in person.
Counsel for the Respondent:	Mr Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 June 2003
Date of Judgment:	20 June 2003