FEDERAL COURT OF AUSTRALIA

Rafiqul v Minister for Immigration & Multicultural Affairs

[2000] FCA 622

MIGRATION – refugees – protection visa – government policy – whether Refugee Review Tribunal examined the application on its merits – error of law – well-founded fear of persecution.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Migration Act 1958 (Cth) ss 476, 476(1)(d), 476(1)(e), 476(3)(c)

Abebe v Commonwealth of Australia (1999) 162 ALR 1 referred to

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred to

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 referred to

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

Islam v Minister for Immigration and Multicultural Affairs [2000] FCA 362 referred to

Hossen v Minister for Immigration and Multicultural Affairs [2000] FCA 363 referred to

1951 Convention relating to the Status of Refugees

1967 Protocol relating to the Status of Refugees

MOHAMMED RAFIQUL v MINISTER FOR IMMIGRATION &

MULTICULTURAL AFFAIRS

W 124 OF 1999

LEE J

12 MAY 2000

SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1                     This is an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”), made on 27 October 1999, which affirmed the decision of a delegate of the respondent (“the Minister”) not to grant a protection visa to the applicant. The applicant, a national of Bangladesh, left that country on 24 March 1999 and travelled to Indonesia. On 27 April 1999 he entered the Australian “migration zone” as a passenger on a vessel and became an unlawful non-citizen. The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (“the Department”) on 2 June 1999. On 3 August 1999 the delegate of the Minister refused the application and on 10 August 1999 the applicant sought review of that decision by the Tribunal. The Tribunal conducted the review hearing on 13 October 1999. At a directions hearing held on 12 November 1999 it was ordered that the applicant file and serve an amended application giving particulars of the grounds of the application.

2                     The application for review filed in this Court, as amended with the assistance of a legal practitioner appointed under the pro bono scheme operating under O 80 of the Federal Court Rules, relied on the following grounds:

“(a)     The decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both.

 (b)      The decision was an improper exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.”

The grounds specified were those set out in ss 476(1)(d) and 476(1)(e) (read with s 476(3)(c)).

3                     I will turn to the particulars of those grounds later in these reasons.

4                     In its reasons for decision the Tribunal outlined, in standard form, its understanding of the provisions of the Act in respect of the grant of a protection visa; of Article 1A(2) of the 1951 Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the 1967 Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together referred to as “the Convention”); and of the general principles of law established by relevant cases. It was not submitted that any error of law was revealed in that exposition.

5                     The Tribunal referred to a number of articles containing information upon which the Tribunal relied to make findings of fact. The articles covered topics germane to assessment of the plausibility of the applicant’s claims, for example, language and cultural differences in Bangladesh; the use of false documentation among asylum seekers from Bangladesh; student activism and political violence in Bangladesh; and the independence of Bangladeshi courts.

6                     The applicant’s claims were set out in:

·           written submissions to the Department;

·          an interview with an officer of the Department;

·          written submissions to the Tribunal; and

·          oral evidence given to the Tribunal on 13 October 1999.

7                     Prior to the Tribunal hearing, the applicant had complained to the Tribunal about the inadequate skill of the interpreter used in the interview with the officers of the Department; the failure of the recording equipment used at that interview; and his inability, therefore, to ensure that the Tribunal did not have a distorted version of his claims. The Tribunal informed the applicant that it would only rely upon his written claims and his evidence at the hearing.

8                     The Tribunal concluded that the applicant had fabricated claims to bolster the application for a protection visa. The Tribunal described as implausible a number of aspects of the applicant’s evidence, for example, claims that the applicant:

(a)        had commenced primary school at the age of 12 and was still attending school/college at the age of 25 or 26;

(b)       had led a student wing of the Bangladesh Nationalist Party (BNP);

(c)        had hid from police and the Awami League (AL) in fear of his life;

(d)       had been a prominent political leader in constant contact with senior party officials and, in particular, the Education Minister.

9                     The Tribunal concluded that the applicant’s claims lacked credibility. In respect of some issues it might be said that the reasons provided by the Tribunal for its conclusions were less than compelling but that, in itself, does not supply a ground for review.

10                  The particulars relied upon by counsel for the applicant to support ground (b) were that a number of statements published by the Minister had been treated by the Tribunal as statements of policy which the Tribunal had followed to the exclusion of exercising its duty to examine the application on its merits. This is not borne out in the reasons of the Tribunal which demonstrate a systematic consideration of the merits of the application. No evidence was led that the Tribunal relied on any rule or policy which it applied inflexibly without regard to the merits of the applicant’s case. Several of the Minister’s statements referred to, in particular media releases dated 13 February 1999, 11 April 1999 and 4 May 1999, made reference to the Government’s desire to amend the Administrative Decisions (Judicial Review) Act 1977 (Cth) so as to restrict the opportunity for “unlawful arrivals to pursue vexatious claims through the courts” but the reasons provided by the Tribunal do not indicate that it considered itself bound to treat the applicant’s application for a visa as a “vexatious claim” irrespective of its merits.

11                  With regard to ground (a), counsel for the applicant submitted that the following passage in the reasons revealed a fundamental misunderstanding by the Tribunal of the law to be applied notwithstanding the statements of the Tribunal set out at the commencement of its reasons:

“…the fact that the applicant was neither murdered nor harmed for over a year despite being accessible to his enemies does not make me satisfied that his alleged fear of harm is well-founded.”

12                  Counsel submitted that the statement was inconsistent with knowledge that the enquiry to be made by the Tribunal was whether it was satisfied that the applicant had a well-founded fear of persecution. It was contended that the Tribunal could not have asked the right question if it concluded that the applicant could not be a person to whom the Convention applied if he had not been murdered or harmed by his enemies in a period of twelve months after a threat of harm had been made to him.

13                  On its face the passage may suggest that the applicant’s submission is one of substance but the Tribunal had made findings of fact on which it concluded that it was not satisfied that the applicant, even if he were a member of a political party opposed to the governing party, was a person of any importance in that party. Accordingly, the Tribunal further concluded that the applicant’s claims that because of his political profile he had received death threats, had to go into hiding, and that his home and family were being attacked because of him, lacked credibility. Put briefly, the Tribunal did not believe the applicant and set down the reasons why it formed that view. (See:  Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 62 per Gleeson CJ and McHugh J.)

14                  In stating that the applicant had not been harmed within twelve months of the alleged threats being made, the Tribunal was referring to facts that it regarded as consistent with findings of fact it had made, namely that threats had not been made against the applicant and that the applicant was not the person of interest in political terms he claimed to be. In any event, no ground of review arises out of “looseness in the language…nor…unhappy phrasing” of the decision of the Tribunal. (See:  Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.) As stated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ:

“…the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the decisions are expressed.”

Given the findings of fact made by the Tribunal, a conclusion that the Tribunal was not satisfied that the applicant was a person who had a well-founded fear of persecution had to follow. (See:  Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.)

15                  The Tribunal went on to consider whether, if the applicant, contrary to its findings, was a participant in political events, he may have a well-founded fear of persecution. The reasoning of the Tribunal in that regard, had it been material, may be said to reveal an incorrect interpretation and application of the relevant law. (See:  Islam v Minister for Immigration and Multicultural Affairs [2000] FCA 362; Hossen v Minister for Immigration and Multicultural Affairs [2000] FCA 363.) For the reasons set out above, however, such an error by the Tribunal in interpreting the applicable law would have been subsequent to and would not have affected the conclusion the Tribunal had reached based on the findings of fact the Tribunal had made.

16                  The application must be dismissed.

Associate:

Dated:              12 May 2000