FEDERAL COURT OF AUSTRALIA

Ahamed v Minister for Immigration & Multicultural Affairs [2000] FCA 1325

IMMIGRATION – protection visa – Refugee Review Tribunal – duty to inquire – findings as to credibility – whether Tribunal properly addressed requirement for well-founded fear of persecution under Refugee Convention – sufficiency of reasons – grounds reduced to attack on factual conclusions – generalised evidence about existence of practice of fabricating documents among Bangladeshi asylum seekers – questionable reliability – risk of unlawful discrimination – no basis for review disclosed – application dismissed.

Migration Act 1958 (Cth)

Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277 cited

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 cited

Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 cited

Minister for Immigration & Multicultural Affairs  v Singh [2000] FCA 845 cited

JAFAR AHAMED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W95 OF 2000

FRENCH J

8 SEPTEMBER 2000

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The Applicant is to 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 made under s 476 of the Migration Act 1958 (Cth) to review the decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs refusing the grant of a protection visa to Jafar Ahamed who is the applicant.

2                     Mr Ahamed is a citizen of Bangladesh who arrived in Australia on 25 September 1999.  On 17 February, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  The protection visa is in two classes, one temporary and the other a general protection visa which is permanent.  On 17 April a delegate of the Minister refused the grant of a visa and on 20 April Mr Ahamed applied for review of that decision.  His application initially was on a photocopy common form typically used by people who are in detention at the Port Hedland Immigration Detention Centre and who are not legally represented.  It was uninformative as to the grounds of review.  Fortunately, he has been assisted on a pro bono basis by Mr Hooker of the Independent Bar who has prepared a minute of amended application which was the basis upon which the matter went forward in Court today.  I am grateful to Mr Hooker for the comprehensiveness and clarity of the arguments which he has put to the Court in support of the amended application.

3                     The factual background to this matter can be discerned from the reasons for decision of the Refugee Review Tribunal which sets out both the evidence that Mr Ahamed relied upon and the findings and reasons of the Tribunal.

4                     In a written statement, which had been prepared with the aid of his previous advisers, the Australian Migration Program & Investments in Melbourne, Mr Ahamed stated that he had joined the Freedom Party of Bangladesh in 1994.  For the first year of his membership, according to his evidence, he performed insignificant tasks, such as delivery letters.  In 1995, he was appointed as area president.  He said he had ten to fifteen people working for him.  He used to invite people to meetings to discuss the arrests of party members and these meetings were usually held on a monthly basis.  In January 1999, according to Mr Ahamed, he and others held a demonstration to protest about the arrest of a Freedom party Leader, Colonel Faroouq, and at that demonstration they spoke out against the Awami League Government.  On the same day, according to Mr Ahamed, a group of Awami League activists burst into their party office, beat up some members and stabbed others.  Mr Ahamed himself escaped but injured himself doing so.  Three days later, he said, the Freedom Party carried out a counterattack on an Awami League office in which he personally was involved.  They broke into the office and other Freedom Party members, not Mr Ahamed, assaulted Awami League members there and caused damage to the office.

5                     The Awami League reported the attack to the police and, according to Mr Ahamed, tormented his father in revenge.  Police issued arrest warrants for him and seven others over the attack.  As a result of the issue of the arrest warrants, Mr Ahamed said he went to Chittagong to hide from the police and the Awami League.  He sent a message to his father asking for money to leave Bangladesh as he felt he could not stay there any longer and with that money he took a boat to Indonesia and then to Australia.

6                     He says that he fears he will be killed like other Freedom Party members.  The police, he claimed, were not impartial in Bangladesh and he would not get a fair trial.  Indeed, he said, he would not get a trial at all but simply be put in prison and tortured.  In support of his claim of membership of the Freedom Party he submitted to the Tribunal a photocopy of an identification card stating that he is a Freedom Party president and a letter saying the same, both documents purportedly signed by the Vice-Chairman and President of the Freedom Party, Colonel Shahrear, a name which is spelt differently in various documents.  The minister’s delegate pointed out that Colonel Shahrear Rashid Khan had been in prison at the time he allegedly signed this letter, namely, 10 December 1997.  Indeed, he had been in gaol since August 1996 – information which was obtained from the Department of Foreign Affairs and Trade.   The delegate considered it was implausible that he would have been able to sign the letter while in gaol. 

7                     Mr Ahamed’s representative submitted to the Refugee Review Tribunal that the Bangladeshi High Court had ruled in November 1996 that Colonel Shahrear should be freed, if not wanted in other cases, and that it was therefore quite possible that the Colonel would have been in a position out of gaol to issue documents to the applicant.  Later, however, the adviser stated that the Colonel had been presented to court in February 1997, had a hearing attended by lawyers, journalists and family members of the accused and that “It is quite possible that our client’s documentation … is genuine given that at any time documentation could have been signed by Rashid Khan”.  This was an invitation to the Tribunal to consider the possibility that the Colonel could have been handed the document by a family member and signed it. However, Mr Ahamed in his evidence to the Tribunal, rejected the suggestion that Colonel Shahrear might have signed his party membership letter while in gaol or during a period between stints in gaol.  He has said that Colonel Shahrear was not arrested along with Colonel Faroouq in August 1996, but had been at liberty and active in party work.  Two months after signing the letter, Colonel Shahrear had gone to Thailand.  He had only been put in gaol after the Bangladeshi government had him extradited from Thailand.  The Tribunal suggested to him that his version of events was unsupported by independent evidence and referred to the document from the Department of Foreign Affairs and Trade.  Mr Ahamed disputed that evidence, insisting that Colonel Shahrear had gone to Thailand and had been extradited.  The Tribunal informed Mr Ahamed that the Freedom Party leader who had gone to Thailand and been extradited from there was not Colonel Shahrear but Major Basil Iludah. This observation was referenced to a research document from the Immigration and Refugee Board of Canada.  

8                     The Tribunal stated in its reasons for decision that it had asked Mr Ahamed what he knew about the Freedom Party.  Mr Ahamed showed he knew a few facts.  He knew when the party was established and its symbol.  He appeared to be ignorant of the party’s beliefs and policies save for generalisations about its standing for honour, freedom, religion and so on.  Mr Ahamed had claimed that he used to teach people about the Freedom Party from the party manual but the sum total of his demonstrated knowledge, in the Tribunal’s view, could have been gleaned from a brief reading of the party history. 

9                     Following its summary and review of the evidence, the Tribunal turned to its findings and reasons.  It was not satisfied that Mr Ahamed was a member of the Freedom Party.  It noted his claims to have been a Freedom Party area president and to have expounded party policy to the public, but his extremely limited knowledge of the party did not convince the Tribunal that he was a party activist, let alone an area president.  Such facts as he was able to give about the Party could have been given by anyone with a glancing interest in Bangladeshi politics.  The Tribunal considered that he had memorised a few facts in order to be able to substantiate his claims.

10                  The Tribunal also found Mr Ahamed had fabricated documents to substantiate his claims of party membership. It referred to advice from Australian, New Zealand and United States authorities that the use of false documentation is rife among Bangladeshi asylum seekers.  The Tribunal referred to the various documents on which it relied.  The documents  submitted by Mr Ahamed were found by the Tribunal to be fraudulent.  His evidence about them lacked credibility.  Colonel Shahrear had been in gaol from August 1996. He was still incarcerated and accordingly the Tribunal was not satisfied the letter submitted could have been signed, as alleged, by Colonel Shahrear.  It referred to Mr Ahamed’s responses to its questions about that circumstance and his assertion that the Colonel had not been in gaol until recently extradited from Thailand.  These were linked to the Tribunal’s findings about Mr Ahamed’s sparse knowledge of the Freedom Party.  The Tribunal member said:

“On the basis of all of the above, I am not satisfied that the applicant is an area president of the FP.  Given this, I am not satisfied that his claims of having faced persecution as an FP area leader are credible: that is, I am not satisfied he was attacked by the Awami League or that he engaged in a revenge attack, or that his father was hurt or that he has an arrest warrant out for him and is in danger of being harmed by Awami League activists.  I am not satisfied that the applicant is an FP activist at all, given his very limited knowledge of the organisation.  Therefore I am not satisfied that he faces persecution because of such party membership.”

The Tribunal concluded that Mr Ahamed did not have a well-founded fear of persecution.

11                  The grounds for review begin with the assertion that procedures required by the Act to be observed in connection with the making of the decision were not observed.  This assertion is particularised as follows:

“(i)      Having obtained further information from the Applicant on review, namely information as to the nature and principles of the Freedom Party of Bangladesh, the Tribunal failed to have regard, or alternatively proper regard, to that information in making the decision on review contrary to section 424(1) of the Act.

(ii)       In its written statement of reasons for decision on review, the Tribunal failed to set out findings, or alternatively proper findings, as to the fear of persecution of the Applicant for reasons of membership of a particular social group or political opinion, contrary to section 430(1)(c) and (d) of the Act, in that the Tribunal treated the evidence of those matters as simply being inextricably linked to the factual issue of whether the Applicant was an area president of the Freedom Party.

(iii)      In circumstances that called for an inquisitorial and non-adversarial function, namely a full and complete consideration of the authenticity of the Applicant’s identification documents and the relationship of the authenticity of those documents (if any) to the rest of the Applicant’s evidence of membership of the Freedom Party, the Tribunal failed to adopt an inquisitorial function, further or alternatively adopted an excessively adversarial function, contrary to sections 414(c), 420 and Part 7 Division 3 generally, of the Act.”

It is also said that the decision was an improper exercise of the power conferred by the Act.  That ground is particularised by reference to paragraph (iii) in the particulars of the  breach of procedures. Further, it is said that the decision involved an error of law, being an incorrect application of the law to the facts. That is particularised by reference to the finding of fabrication, the generalisation that false documentation is rife among Bangladeshi asylum seekers and the finding that Mr Ahamed had little knowledge of the Freedom Party.  The Tribunal is said in the circumstances to have failed to consider, or alternatively to properly consider, whether he nonetheless had a fear of persecution for a convention reason.

12                  The submissions put by Mr Hooker in various ways focussed on two substantial issues: the first issue being whether the Tribunal had adequately discharged its inquisitorial function in relation to the findings concerning the applicant’s knowledge of the practices and policies of the Freedom Party of Bangladesh and the alleged fabrication of the documents which he had presented and whether the Tribunal should not in fact have considered and inquired into alternative hypotheses.  Those hypotheses in summary were as follows:

1.         The applicant could have been a member of the Freedom Party and even occupied a senior position of the Freedom Party, notwithstanding a want of any detailed and comprehensive knowledge of its policies.  (In that connection Mr Hooker referred to analogous situations from Australian experience of people involved in organisations of a political nature but who had nevertheless not mastered their policies and platforms).

2.         That even if the documents had been signed by somebody other than Colonel Shahrear, it did not follow that Mr Ahamed was necessarily the person that fabricated them.  He may have received them and presented them in good faith.  Having regard to that hypothesis a finding adverse to his credibility was not the only finding open in the circumstances.

With due respect to the comprehensiveness and ingenuity of Mr Hooker’s arguments, they invite the Court into the area of merits review.  In essence, they are arguments which reduce to a complaint about the extent and comprehensiveness and thoroughness of the Tribunal’s conclusions on matters of fact.  I accept that there are circumstances in which the Tribunal may have a duty to inquire into factual issues before it, notwithstanding that those issues may not have adequately been covered by the applicant’s own case.  I have recently reviewed the authorities relating to the duty to inquire in a judgment published today, Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277.  Nothing that is said in that case as to principle differs from what has been advanced by Mr Hooker, who has referred to all the relevant authorities. The relevant principle can usefully be summarised in the following passage from the judgment of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170:

 “It is no part of the duty of the decision-maker to make the applicant’s case for him.  It is not enough that the court find that the sounder course would have been to make inquiries.  But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.  It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.”

See also his Honour’s most recent observations on this topic in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at 417.  Prasad was a case under the Administrative Decisions (Judicial Review) Act before the introduction of Part VIII of the Migration Act and the provisions which confine judicial review to the grounds set out in s 476. But even if the grounds of review were not so confined, this is not a case in which, on the approach taken in Prasad and authorities which followed after it and discussed the general principle of the duty to inquire, the duty was enlivened.  This is not a case where it was obvious that material was readily available, centrally relevant to the decision to be made, which could have led the Tribunal to reach a different conclusion.  The Tribunal was really looking at the sufficiency of Mr Ahamed’s own evidence and determining that having regard to his evidence, he had not satisfied the Tribunal that he was in truth a member of the Freedom Party.  That may be a conclusion which this Court or other individuals might have disagreed with on the basis of the evidence that was before the Tribunal, but it being a conclusion on a matter of fact, the Tribunal was entitled to reach it.  That conclusion was critical to the question whether or not Mr Ahamed had a well-founded fear of persecution by reason of his political opinion either actual or attributed as a member of the Freedom Party or as a member of a particular social group, being the members of the party.

13                  The second issue concerns the Tribunal’s findings about the fabrication of documents evidencing membership of the Freedom Party. Again the complaint is that the Tribunal has failed to consider and accept the possibility of alternative hypotheses to that of fabrication which it found adversely to Mr Ahamed.  The general comments I have made in relation to the duty of inquiry also apply to this ground. Again it seems to me that this is a question of a factual conclusion which is not able to be the subject of review by this Court.

14                  So far as the sufficiency of the reasons is concerned, the reasons do make clear the basis upon which the Tribunal has made its findings adverse to the applicant.  They do not make any reference to inquiry and one can assume, and I am quite prepared to assume, that there was no further inquiry made beyond that disclosed by the materials referred to in the reasons for decision, but those reasons do disclose the material facts as the facts upon which the decision in the case has turned in accordance with the requirements of the decision of the Full Court in Minister for Immigration & Ethnic Affairs v Singh [2000] FCA 845 and I do not therefore find that there has been any failure to comply with the procedures insofar as the provision of reasons is concerned.  That having been said, the other grounds set out in the amended application put the same points in different ways.  I don’t propose to canvass those in detail because in the end they all reduce to an invitation to the Court to say that the Tribunal’s fact-finding function has failed in one way or another.

15                  I note the reference to the generalisation that false documentation is rife among Bangladesh asylum seekers.  Whilst I might regard such a generalisation as dangerous, it may be that it is arguable that the objectively determined existence of a practice amongst people coming from a particular area, when considered in conjunction with evidence in the particular case, may make more reliable the drawing of an inference in relation to that evidence by the Tribunal.  It is not a generalisation which I myself would have regarded as particularly reliable.  Indeed in some circumstances generalisations of this kind applied in the course of administrative decision-making could be seen as inconsistent with the provisions of the Racial Discrimination Act 1975 (Cth).  Nevertheless the Tribunal’s decision about fabrication of documents was closely related to facts specific to the applicant.  It is not my function, on review, to inquire into the reliability of the Tribunal’s inferences and the reference to the reported practice does not amount to an error of law as asserted in ground (c) of the amended application.

16                  For all of these reasons the application will be dismissed.  There will be an order that the applicant pay the respondent’s costs of the application.

Associate:

Dated:              September 2000