FEDERAL COURT OF AUSTRALIA

Alam v Minister for Immigration & Multicultural Affairs [2000] FCA 1578

IMMIGRATION – refugees – whether Refugee Review Tribunal erred by failing to refer to all material before delegate – whether Tribunal should have stated that no weight was placed on certain material before delegate.

Migration Act 1958 (Cth), ss 414, 430.

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845, applied.

Baban v Minister for Immigration and Multicultural Affairs [2000] FCA 1341, cited.

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, cited.

MOHAMMAD MAHFUZUL ALAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 712 of 2000

SACKVILLE J

SYDNEY

2 NOVEMBER 2000

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

1                     This is an application to review a decision of the Refugee Review Tribunal (“RRT”),  made on 30 May 2000.  The RRT affirmed a decision made by a delegate of the respondent (“the Minister”) to refuse to grant the applicant a protection visa.

2                     The amended application relies on the ground of review provided for in s 476(1)(a) of the Migration Act 1958 (Cth) (“Migration Act”), namely:

‘That procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed.”

3                     The amended application asserts that the RRT failed to review the decision of the Minister’s delegate “and as such has breached [s] 414 of the Act.”  Section 414(1) of the Migration Act provides that, if a valid application is made under s 412 for review of “an RRT-reviewable decision”, the RRT must review the decision.

4                     The particulars to the amended application are as follows:

“(a)     The Department of Immigration & Multicultural Affairs referred to various documents that it used in arriving at its decision.  These documents were not used by the Tribunal in its review of the decision of DIMA.

  (b)     Further and in the alternative, if the above documents were referred to by the Tribunal, there is no mention of these documents in the Tribunal’s reasons.  This constitutes a breach of section 430(1) of the Act.”

BACKGROUND

5                     The applicant claims to be a national of Bangladesh.  He arrived in Australia on 9 May 1999 on a Singapore passport apparently under an assumed name.  On 18 June 1999, the applicant applied for a protection visa, on the basis that he feared persecution in Bangladesh by reason of his political opinion, namely his commitment to the Jatio (or Jatiyo) Party or Jatiya Dal (“JP”), a political party in Bangladesh.

6                     On 23 June 1999 the delegate refused to grant the applicant a protection visa.  The applicant subsequently sought review of that decision by the RRT. 

7                     The RRT conducted a hearing on 4 May 2000.  The applicant was present at the hearing, which was conducted with the assistance of an interpreter.  The applicant was represented by an agent.

the rrt decision

8                     The RRT recorded in its decision that the applicant claimed to have been born in 1974 and to have completed secondary school in Bangladesh in 1993.  The applicant said that he joined the student wing of the JP after entering college.  The JP is a legal party in Bangladesh that has contested and won seats in general elections.  It has not held government in its own right, but it helped the Awami League (“AL”) take over government in Bangladesh in 1996, after elections held in June of that year.

9                     The applicant claimed that the JP had withdrawn from its coalition with the AL and that enmity arose between the two parties as a consequence.  On the applicant’s account, he left Bangladesh by reason of attacks on him by AL supporters.  In particular, the applicant claimed that he had been attacked on either 28 or 29 November 1998 near his college.  He said that he had been tortured and, as a result, had been detained for fifteen days in hospital.

10                  The RRT recorded a further claim by the applicant that he had been falsely charged with illegal possession of firearms in 1998.  This, he claimed, had occurred after he had reported the assault.  On his account, the police, in league with the AL, pressed the charges against him.

11                  In the course of recounting the applicant’s claims, the RRT pointed to what it regarded as serious difficulties with his account.  These difficulties included the following:

·        The applicant’s claims failed to recognise the disintegrating state of the JP after its split from the AL.  According to the RRT, the independent evidence suggested that the remnant JP was no threat to anyone and had been “utterly marginalised”.

·        In his primary application, the applicant had said that the only irregularity in his departure from Bangladesh was that he had bribed authorities to let him leave the country.  Yet at the RRT he claimed that he had used someone else’s passport.  The RRT regarded the claims as “mutually exclusive”.

·        The applicant’s account relating to the false firearm charges suffered from the defect that the alleged event could not have happened at the time the applicant claimed it did.  This was because the applicant said that he was in hospital at the time the false charges were laid.

·        The applicant claimed that he had contacted the police unilaterally, without consultation with his JP colleagues.  He claimed to have contacted the police notwithstanding that he regarded them as being in the pockets of the AL.

·        The applicant claimed that he was the only one of three local secretaries of the JP to be maltreated in the manner he described.  The RRT considered this to be anomalous.

·        The applicant’s passport had been used in 1997 for a return trip from Singapore to India.  It had therefore been used prior to the date the applicant claimed to have acquired the passport.

·        The applicant had given inconsistent accounts as to his knowledge of how the passport came to take the form that it did.

·        The applicant submitted a document as to his birth certificate, but the RRT was not satisfied of its authenticity.  He gave unsatisfactory accounts as to why he had been unable to produce simple identity documents from his family in Bangladesh.

12                  The RRT found the applicant’s account of a political career with the JP

“to be riddled with utterly unconvincing irregularities, vagaries, contradictions and inconsistencies.   [The RRT] does not accept that his account of these things is truthful.”

13                  The RRT went on to say that it did not accept that false charges were laid or pursued against the applicant.  It also found that the applicant had given a “vague, inconsistent and…unsatisfactory account” as to the means by which he left Bangladesh.  Nor could the RRT rely on the authenticity of documents submitted by the applicant in support of his claims. 

14                  The RRT found that the applicant’s claims about the danger that he faced were seriously out of proportion with the marginalised position of the JP in Bangladesh.  The RRT did not accept that the applicant faced a real chance of persecution in Bangladesh for reasons of his support of the JP or of any remnant of its former membership.

15                  The RRT observed that questions about the applicant’s identity had not formed part of the RRT’s rationale for concluding that his claims were false.  The RRT continued as follows:

“[The RRT] is of the impression that the Applicant is familiar enough with the workings of life and society in Bangladesh to have lived there in the past, but it cannot be satisfied that he is Mohammad Mahfuzul Alam.  It concludes that it does not know who he is.  The important thing is that he cites Bangladesh as his only country of reference in this matter and his claims in relation to that country are found not to be consistent, well-supported or credible.

If the Applicant is Mohammad Mahfuzul Alam, and [the RRT] is not satisfied beyond doubt that he is, then it still cannot be satisfied that he obtained his Singapore passport in the year or in the circumstances he claimed or that it was contrived in the manner he described; a straightforward look at the document and its condition makes nonsense of his suspiciously revised explications.  There may be other reasons for the Applicant’s having come into possession of this passport, including criminal reasons this Tribunal is not competent to explore; but the [RRT] is overwhelmingly unsatisfied as to the Applicant’s claims on this subject.

The [RRT] concludes that the Applicant may or may not currently be a national of Bangladesh.  It is uncertain as to his actual identity.  In any event, on his evidence, it is not satisfied that he faces a real chance of Convention-related persecution in Bangladesh.  He is not a refugee.”

16                  For these reasons, the RRT affirmed the decision not to grant the applicant a protection visa.

reasoning

17                  Although the applicant filed written submissions, they did little to elucidate the grounds on which the applicant seeks review of the RRT’s decision.  Nor, it must be said, was the case advanced substantially in oral submissions.

18                  As I followed the submissions, it was contended that the RRT had erred by failing to refer to material that was before the delegate at the time he or she rejected the application for a protection visa.  The contention appeared to be that the RRT was bound to refer specifically to this material, regardless of its relevance to the claims made by the applicant.  A failure to do so, so it was said, contravened the requirement in s 414(1) of the Migration Act that the RRT “must review” the delegate’s decision.  The applicant’s counsel did not suggest that any of the material before the delegate was inconsistent with the findings of fact made by the RRT.  Indeed, it was not even suggested that any of the material was favourable to the account of events given by the applicant.

19                  The material before the delegate included (as the delegate’s decision makes clear) the United Nations High Commission for Refugees Handbook on Procedures and Criteria for Determining Refugee Status; J C Hathaway, The Law of Refugee Status (1991); and the High Court’s decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 379.  (As it happens, the RRT’s decision does refer to Chan v Minister in its reasons.)  The other material before the delegate consisted of country information from a variety of sources relating to Bangladesh.  As I have indicated, it was not suggested that any of this material was of assistance to the applicant.

20                  The applicant’s counsel did not support his submission by reference to authority.  This is not surprising, as there is no basis for a contention that the RRT is obliged to refer to material before the delegate irrespective of whether it bears on any issue material to the RRT’s deliberations.  One consequence of the submission, if it were to be accepted, is that the RRT would be compelled to refer to every text book or decision cited or relied on by the delegate even if none of them had any bearing on the factual or other claims advanced by the applicant before the RRT.  There is nothing in the language of s 414(1) that supports such a contention.  And it is difficult to reconcile with the more specific requirement in s 430(1)(d) of the Migration Act, the terms of which are extracted at [22] below.

21                  Counsel for the applicant put forward what seemed to be a variation of the first submission.   He contended that the RRT should have mentioned that it placed no weight on material that was before the delegate.  As I understood the contention, it was that the RRT’s failure to do so contravened either s 414(1) or s 430(1) of the Migration Act.

22                  Section 430(1) provides as follows:

“Where the Tribunal makes it decision on a review, the Tribunal must prepare a written statement that:

(a)               sets out the decision of the Tribunal on the review; and

(b)               sets out the reasons for the decision; and

(c)               sets out the findings on any material questions of fact; and

(d)               refers to the evidence or any other material on which the findings of fact were based.”

Counsel did not identify which of the paragraphs of s 430(1) on which he relied for this submission.

23                  The operation of s 430(1) of the Migration Act has recently been considered by the Full Court in Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845.  The majority in that case held, inter alia, that there is no requirement in s 430(1) that the RRT give reasons for rejecting or attaching no weight to evidence or other material which would tend to undermine any finding it has made.  The only qualification to this proposition is that, if one of the reasons which actually induced the RRT to come to a decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) requires disclosure of that element of the reasoning process: see Baban v Minister for Immigration & Multicultural Affairs [2000] FCA 1341 (FC), at [15].

24                  In the light of Singh, it can hardly be plausibly maintained that there is some obligation on the RRT to refer specifically to material that played no part in its reasoning process and did not bear on its findings of fact.  It is also to be borne in mind that McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, said this (at [423]):

If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed.  The Tribunal must give the reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence.

That statement was adopted and applied by the majority of the court in Singh at [56].

25                  It was not suggested that the Tribunal had failed to address the issues before it, nor was it suggested that the Tribunal had failed to set out its finding on material questions of fact.

26                  It follows, in my opinion, that the challenge to the decision of the Tribunal fails and the application must therefore be dismissed, with costs.

Associate:

Dated:              2 November 2000