FEDERAL COURT OF AUSTRALIA

Roy v Minister For Immigration & Multicultural Affairs [2000] FCA 709

BISWAJIT ROY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 168 OF 2000

LINDGREN J

25 MAY 2000

SYDNEY

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.

REASONS FOR JUDGMENT

Introduction

1                     The Applicant (“Mr Roy”) applies under s 476(1) of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“RRT”) dated 8 February 2000 affirming a decision of a delegate (“the Delegate”) of the respondent (“the Minister”) not to grant him a protection visa.

2                     Section 29 of the Act provides that subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to do one or both of the following:

(a)        travel to and enter Australia;

(b)        remain in Australia.

Section 496 of the Act provides that the Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under the Act.  It is not in dispute that the Minister delegated all necessary powers to the Delegate.

3                     Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa.  One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied.  Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia 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 (compendiously, “the Convention”).  

4                     Article 1A(2) of the Convention provides that a refugee is any 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 his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5                     Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994, which is, again, that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

6                     The RRT’s decision was a “judicially reviewable decision” (s 475(1)(b) of the Act), Mr Roy was entitled to apply to this Court for review of it on certain grounds (s 476) and the Court has the jurisdiction provided by Part 8 of the Act, but no other jurisdiction with respect to it (ss 485, 486).

7                     Mr Roy’s case is that he is outside the country of his nationality, Bangladesh, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of religion.

Procedural Background

8                     Mr Roy arrived in Australia on 19 May 1997.  On 18 June 1997, he applied, through Adrian Joel & Co, Immigration Agents and Solicitors, for a protection visa (visa sub-class 866).  The Delegate refused the application on 7 July 1997.  On 30 July 1997, Mr Roy applied to the RRT for review of the Delegate’s decision.  The RRT conducted a hearing on 30 March 1999 and 29 April 1999.  As noted above, on 8 February 2000, the RRT affirmed the Delegate’s decision.  Mr Roy filed the present application in this Court on 1 March 2000.

The reasons for decision of the RRT

9                     The RRT commenced its reasons for decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of a “refugee”.  It then turned to consider Mr Roy’s claims and evidence.

10                  In his original application to the Department, Mr Roy claimed that he is a Hindu, born in 1968, in Barisal, Bangladesh.  He married in 1988 and has a son born in 1991. Both wife and son live in Bangladesh.  He has Indian and Bangladesh passports, both in his name.  The RRT accepted that Mr Roy is Hindu and is from Bangladesh.

11                  Over the course of his application to the Department, written submissions to the RRT and at the oral hearing, Mr Roy claimed that as a Hindu he faced problems in Bangladesh.  At the hearing before the RRT, he mentioned for the first time specific examples of these problems including that in 1983 he and his mother were assaulted at his school by other school children, and that in 1990 the family’s bicycle shop was burned down as a result of the Babri Mosque incident.  Other examples included that family land was the subject of an ownership dispute and that other land was the subject of a proceeding brought by the Government of Bangladesh over unpaid taxes; that his father was killed in 1986 by fundamentalist Muslims; and that there is a false case currently pending against him involving a warrant for his arrest.

12                  The RRT had difficulties with much of Mr Roy’s evidence.  It found the nature and history of the land disputes confusing.  Mr Roy initially claimed that his family’s land had been stolen in the mid 1970’s when the family fled to India after the military coup.  The RRT noted several court cases in relation to land, some apparently from the 1980’s, and recorded that Mr Roy was not able to assist the RRT in clarifying what had happened.  In a document which Mr Roy had submitted, the land was said to have been inherited by him upon his father’s death.   However, Mr Roy himself stated that some of the land was sold by his uncle.  The RRT accepted that there had been some dispute over land, that court cases have occurred and that Mr Roy and his brothers have lost land to the local Muslim landowner and also to the Bangladesh authorities.  However, the RRT did not accept that these losses of land involved any illegality or that they resulted from the fact that the family was Hindu.

13                  The RRT also noted that Mr Roy referred to his father’s death in different ways as his application had progressed.  In his original application to the Department, he claimed that his father was killed by criminals who he believed were Muslim.  In a statutory declaration submitted a year later to the RRT, he stated that his father “lost his life at the hands of a Muslim fundamentalist leader, Md Azahar Uddin Buiyan and his gang”.  In other statements of his claims, his father’s death was not mentioned at all; nor is the murder of his father referred to in independent documentation submitted by Mr Roy even though his father’s death was mentioned.  The RRT found that Mr Roy had attempted to mislead the RRT.

14                  The RRT considered the fact that only at the hearing did Mr Roy claim for the first time that he and his mother were assaulted at his school in 1983 and that the family cycle repair shop was destroyed during the Babri Mosque incident in 1990.  This was despite the fact that he had been represented by solicitors and had their assistance in preparation and advancement of his claims.  The RRT was prepared to accept that these events had occurred but found that they were not of great significance in Mr Roy’s concerns about Bangladesh, since they were raised for the first time so late in the proceeding.

15                  Mr Roy had claimed in his original application to the Department that from 1986 he was in hiding until he obtained his passport to leave the country.  Upon comparing this claim with others made by Mr Roy, the RRT did not accept the claim.  It found that he had married, had a child and worked in and returned to Barisal, which, it thought, were not the actions of a person in hiding.  The RRT put this to Mr Roy at the hearing and he conceded that he had not been in hiding, although he then claimed that he was in hiding after the warrant was issued in 1996 for his arrest.  For reasons which it gave, the RRT found this claim to be fabricated in order to mislead it.

16                  The RRT found that the document which purported to be an arrest warrant issued on 24 March 1996 was a false document.  Mr Roy could not supply the presiding Member with any information about the background to the warrant, or information about the substance of the charge against him.  Mr Roy’s credibility was rejected on the basis that the RRT did not accept that someone would not find out, and would know nothing of, what the charges were if there were any.  In addition, Mr Roy’s Indian passport was issued to him on 15 April 1996, which was only 21 days after the alleged warrant was signed and Mr Roy allegedly went into hiding.  The RRT found it not credible that Mr Roy would be able to depart Bangladesh, arrive in India, and be able to obtain a passport from the Indian authorities within such a short time.

17                  The RRT scrutinised Mr Roy’s Indian passport which had an entry to the effect that the holder had previously held another Indian passport issued in December 1993.  The Member found that Mr Roy was not being truthful about having lived in Bangladesh between 1993 and 1996, and found that he was in fact in India at that time.  For these reasons, and others based on the inherently incredible nature of the testimony itself, the presiding Member did not accept Mr Roy’s claims that he was harassed by fundamentalist Muslims outside a friend’s cosmetic shop between 1993 and 1996.

18                  The RRT had regard to independent information on Hindus in Bangladesh.  It found that there is some evidence that there is societal discrimination against them in certain areas, such as access to government jobs and political office.  Many Hindus apparently lost their land in the early 1970’s as a result of the Vested Property Act.  But the RRT considered that nothing specific has occurred in recent years that could be said to be discrimination or persecution against Hindus or other religious minorities.  The RRT considered:

“Given the history claimed by [Mr Roy] and the independent evidence, I do not accept given his level of education, and his ability to work and travel that he has been discriminated against in Bangladesh because of his being Hindu.”

19                  The RRT concluded that the discrimination that had occurred in the past was not of such a level of seriousness such as to constitute persecution of Mr Roy within the Convention.

Grounds of the present application for an order of review

20                  The grounds of review, as stated in Mr Roy’s application filed in this Court, on 1 March 2000, are as follows:

“That the Respondent exercised power under section 431 of the Migration Act 1958 and decided that I am not a person to whom Australia has protection obligations under the Refugee Convention.

I certainly believe that the Department of Immigration as well as the Refugee Review Tribunal has certainly made an error of law, being an error involving an incorrect interpretation of the application of the law to the facts as found by the person who made the decision.”

21                  The ground identified in the application is that provided for in paragraph 476(1)(e) of the Act.   Mr Roy has not identified any particulars of the error of law referred to.

Submissions on the present application for an order of review

22                  The Minister, pursuant to directions of the Court, made submissions in writing.  Mr Roy, who is not represented, handed up written submissions on the hearing today.  I have read both.

23                  The Minister submits that the Court must be mindful of the dicta in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at 589, that it is not the role of this Court to review the merits of a RRT decision, and in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, that this Court should not scrutinise the RRT’s reasons in an overly critical way, with “an eye keenly attuned to the perception of error”.

24                  In his written submissions Mr Roy has stated that the Department of Immigration and Multicultural Affairs and the RRT have “wrongfully assessed [his] claims for a protection visa and [have] incorrectly interpreted the documents [he has] submitted, as well as [his] oral evidence,…”

Reasoning on the present application for an order of review

25                  My reasons can be shortly stated.  No matter how one regards the matter, Mr Roy's present application is an invitation to the Court to review the RRT's decision on the merits. Perhaps not unexpectedly, in view of his lack of legal representation, Mr Roy has not identified any error of law on which he relies.  My own reading of the RRT's reasons for decision does not suggest any error of law.  The RRT did not believe Mr Roy in relation to key elements in his claim.  It gave reasons why it did not believe him in those respects.

26                  The RRT did accept that, in 1983, Mr Roy and his mother were assaulted at his school outside the headmaster's office by other school children.  It also did accept that in 1990 the family cycle repair shop was destroyed during the Babri Mosque troubles.  However, it noted that these two matters were raised for the first time on the hearing and thought, on this basis and for other reasons which it mentioned, that these two incidents were not of concern to Mr Roy today.

27                  The RRT referred to independent country information about the position of Hindus in Bangladesh and concluded as follows:

“Given the history claimed by [Mr Roy] and the independent evidence, I do not accept given his level of education, and his ability to work and travel that he has been discriminated against in Bangladesh because of his being Hindu.

Apart from the general statements made by the applicant and these specific matters he was not able to, despite repeated requests to detail anything of significance as having occurred to him in Bangladesh.

Having considered the accepted evidence I find that what has happened to the applicant is not of the level of seriousness such as to constitute persecution within the meaning of the Convention.”

I do not think the ground of review is made out.

Conclusion

28                  For the above reasons the court orders that:

1.         The application be dismissed.

2.         The applicant pay the respondent's costs.

Associate:

Dated:              30 May 2000