FEDERAL COURT OF AUSTRALIA

Bhasani v Minister for Immigration & Multicultural Affairs [2000] FCA 1773

migration – Migration Act 1958 (Cth) s 476 – review of decision of Refugee Review Tribunal – failure to observe procedures – whether Tribunal failed to give applicant particulars of any information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review – two phone calls to the Department which alleged that the application was not made bona fide – error of law – whether the Tribunal failed to consider that the applicant could be persecuted by reason of his membership of a particular social group – applicant a member of a prominent political family in Bangladesh – whether the Tribunal failed to consider the cumulative effect of possible grounds of persecution

Migration Act 1958 (Cth) s 424A, 476

Naing v Minister for Immigration & Multicultural Affairs [2000] FCA 344, followed

Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109, cited

Dowlat Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478, cited

Hellman v Minister for Immigration & Multicultural Affairs [2000] FCA 645, cited

ABU NASIM PARVES BHASANI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 883 of 2000

BRANSON J

SYDNEY

8 DECEMBER 2000

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal be affirmed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicant has sought review by this Court of a decision of the Refugee Review Tribunal (“the Tribunal”) whereby the Tribunal affirmed a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.  The application to this Court is made pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”).  For the reasons set out below I have concluded that the decision of the Tribunal must be affirmed.

GROUNDS OF REVIEW

2                     In its amended form, the application is based on two grounds.  First, that procedures that were required by the Act to be observed in connection with the making of the decision were not observed.  This ground raises for consideration the manner in which the Tribunal responded to its receipt of certain information concerning the applicant and the bona fides of his claim to be a refugee.  In particular the applicant contends that:

“the Tribunal either did not consider or did not appreciate that it had an obligation to consider or failed to carry out its obligations under sections 424A, 424B, and 441A of the Act.”

Secondly, the application asserts that the decision of the Tribunal involved an error of law in that, in addition to the matters relied on under the first ground:

“The Tribunal failed to consider, or properly consider that the applicant could be persecuted by reason of his membership of a social group, namely his family; the Tribunal noted at p17 that the applicant ‘nevertheless is from the Bhasani family’.

The Tribunal failed to consider the cumulative effect of the claimed political opinion grounds and the implicit family/social group grounds.

The Tribunal misconstrued ‘persecution’ by assuming that potential access to the higher courts … was mutually exclusive with persecution, whereas the ‘false case’ itself would constitute persecution, and/or the extended imprisonment of the applicant pending an eventual trial could constitute persecution.”

FAILURE TO OBSERVE PROCEDURES

3                     The file of the Tribunal contains a case note dated 11 May 2000 concerning the applicant.  The file note reads as follows:

“11/5/00 Phone call received a person known to the applicant regarding his application to the Tribunal.  The caller, who requested anonymity, stated that the applicant had told him that he had undertaken his application for refugee status simply as a means to remain in Australia for as long as possible.  He said that the applicant was not concerned whether his case was affirmed by the Tribunal as he would appeal to the Federal Court to further lengthen the procedure.  He said that the applicant had told him that he intended to return home in three years time.  He then stated that the applicant came from an affluent background and that his parents would be able to obtain any documents which may help his application.  The caller said that he was providing this information as he felt the applicant was very arrogant in his attitude towards the situation and that his motives for applying for refugee status were to abuse the system”.

4                     The file of the Tribunal also contains a file note recording a telephone conversation between an employee of the Tribunal and Mr Alan Beale, an individual who had given evidence before the Tribunal in support of the applicant’s case.  This file note records:

“Mr Beale rang at approximately 3.00pm on 24 May 2000, he rang with regard to the application for refugee status by the applicant, Mr Abu Nasim Parves Bhasani.  Mr Beale stated that he had attended the applicant’s first hearing as a witness in support of his application, since that time information has come to him which has led him to believe that the applicant’s claims for protection are disingenuous.  The information that is of relevance to the applicant’s claim is a statement Mr Beale claims to have heard from the applciant [sic] that upon a change of government in the applicant’s country of origin, Bangladesh, he will return as soon as is convenient.  Moreover, Mr Beale claims that the applicant’s family is involved in arms trading and is financially well-endowed.  Consequently, the applicant was able to obtain a passport to travel to Australia with relative ease.  Mr Beale stated that the applicant has claimed that if his application for protection is unsuccessful then he will ‘go underground’ to avoid being returned to his country of origin.”

5                     Section 424A, of the Act provides as follows:

“(1)     Subject to subsection (3), the Tribunal must:

(a)               give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and

(b)               ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)                invite the applicant to comment on it.

(2)             The invitation must be given to the applicant by one of the methods specified in section 441A.  However, this subsection does not apply if the applicant is in immigration detention.

(3)             This section does not apply to information:

(a)               that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)               that the applicant gave for the purpose of the application; or

(c)                that is non-disclosable information.”

6                     As to the telephone call from the individual who requested anonymity, the Tribunal by letter dated 18 May 2000 advised the applicant as follows:

“The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a Protection Visa.

The information is as follows:

The Tribunal has received information from a person concerning the bona fides of the applicant’s claims for protection.  The information was provided anonymously.  The information so far as it is relevant states that the application was made simply as a means to remain in Australia and that the applicant intended to return at a latter date.

The information states that person is of the view that the applicant’s parents would be able to obtain any documents that may assist his application.

This information is relevant because:

This information casts doubts on the applicant’s credibility and whether the applicant has a subjective fear of return to Bangladesh as well as the authenticity of the documents provided by the applicant.

You are invited to comment on this information.  Your comments are to be given at an interview between you and the Tribunal Member reviewing your case.”

7                     The applicant contends that the above letter contained insufficient particulars of the information provided to the Tribunal to satisfy the requirements of s 424A of the Act.  In particular he complains that the letter did not disclose the allegation of the caller that:

“(a)     the applicant had told the caller that the applicant had undertaken his application simply as a means to remain in Australia for as long as possible [whereas the letter did not refer to any actual statement by the applicant];

(b)             the applicant was not concerned whether his case was affirmed;

(c)             the applicant would appeal in order to lengthen the procedure;

(d)             the applicant told the caller that the applicant intended to return to Bangladesh in 3 years time [whereas the applicant’s case was that he faced a 10 year prison sentence];

(e)             the applicant came from an affluent background;

(f)              the applicant was very arrogant in his attitude towards the situation;

(g)             the motives of the applicant for refugee status were to abuse the system;

It also did not disclose that the allegation that the applicant’s parents would be able to obtain any documents which might help the application was connected … to the affluence of the parents, inferring that bogus documents would be obtained through bribes, which is qualitatively different to what is stated in the letter ….” (emphasis in original)

By his written submissions, the applicant argued:

“It would have been a simple matter for the Tribunal to provide the file note itself, or full particulars of it, to the applicant, but this was not done.  Consequently, the Tribunal was in breach of its obligations under s 424A to provide in writing (s 441A) all particulars of the information to the applicant.”

8                     Section 424A does not impose an obligation on the Tribunal to give to an applicant “full particulars” or “all particulars” of information which it receives.  The obligation imposed on the Tribunal is an obligation to give to the applicant “particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”.  Hill J gave consideration to the obligation imposed on the Tribunal by s 424A in Naing v Minister for Immigration & Multicultural Affairs [2000] FCA 344.  At para 32 his Honour said:

“I think that the correct view of s 424A(1) is that when the Tribunal forms the view that there is information that is relevant to the review and that that information is or may be adverse to the applicant, the obligation under s 424A(1) arises.  That this is so follows from the language of paragraph (b).”

His Honour went on in para 33 to observe:

“Failure to comply with s 424A(1) however could never found a ground of review unless the material was in fact adverse and in fact considered relevant by the Tribunal.  This will be so when it is referred to in the Tribunal’s reasons for decision.  Material not referred to by the Tribunal can generally and certainly in the present case be inferred by it to have ultimately not been considered relevant to its decision.”

9                     Sackville J in Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 at para 52 referred to the above paragraphs from the judgment of Hill J in Naing with apparent approval.  I also consider it appropriate to proceed on the basis of the view of the operation of s 424A adopted by Hill J in Naing.

10                  A significant impediment in the way of the applicant’s establishing a ground of review based upon non-compliance by the Tribunal with s 424A in respect of the telephone call from the individual who requested anonymity is that the Tribunal, in its reasons for decision, states:

“The Tribunal notes the information on the file which casts some doubts on the applicant’s credibility.  The Tribunal is unable to give weight to this type of information.”

11                  Seen in the context of the Tribunal’s reasons as a whole, it seems plain that the above statement is intended to refer to at least the telephone call from the individual who requested anonymity.  It is an indication, in my view, that the Tribunal did not regard the information conveyed by the telephone call as relevant to the review in the sense of being capable of affecting the decision to be made by the Tribunal.  As the Tribunal was not willing to give any weight to the information, it was not material relevantly adverse to the applicant in the sense discussed by Hill J in Naing.  Even assuming a failure by the Tribunal to comply with s 424A(1), the failure would not found a ground of review in this Court.

12                  In any event, the obligation imposed on the Tribunal by s 424A is to give to the applicant particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review.  I see no reason to conclude that the letter dated 18 May 2000 does not give full particulars of the information conveyed by the telephone call that the Tribunal considered could have a bearing on the outcome of its review.  The reasons of the Tribunal do not suggest that it gave any consideration to the matters of detail which the applicant complains were not disclosed.  As the name of the caller was apparently not recorded by the Tribunal, it is not easy to see how the applicant would have been assisted in seeking to rebut or comment on the caller’s statement that he had told the caller that he had made his application simply as a means to remain in Australia as long as possible, by receiving the information that an unnamed caller had said that the applicant had told him this.  The applicant did not explain how receiving this information, or indeed any of the information which he complains was not given to him, would have assisted him.

13                  To the extent, if any, that the applicant pressed a complaint that the Tribunal may not have fully complied with a Freedom of Information (“FOI”) request made by his client, it is sufficient to note that compliance with FOI requests is not a procedure required by the Act to be observed in connection with the making of a decision by the Tribunal.

14                  As to the telephone call from Mr Beale, it appears that the Tribunal did not give the applicant any particulars of any information conveyed by that telephone call.  The applicant contends that:

“The applicant was not given the required opportunity to know of and meet the precise allegations against him.  The significance of those allegations was underscored by the fact that Mr Beale had previously given evidence supporting the applicant and the applicant was expecting Mr Beale to do so again.”

15                  I consider it more likely than not that the statement of the Tribunal referred to in paragraph 10 above was intended by the Tribunal to apply to the information contained in Mr Beale’s telephone call as well as to the information recorded in the file note of the telephone call from the person who requested anonymity.  On this basis the applicant’s contention that the Tribunal failed to comply with s 424A of the Act in respect of Mr Beale’s telephone call must fail.

16                  However, even if, contrary to my view, the Tribunal did not conclude that it was unable to give weight to the type of information conveyed by Mr Beale’s telephone call, I am not satisfied that the Tribunal failed to comply with s 424A of this Act in respect of Mr Beale’s telephone call.  The Tribunal’s written reasons for decision do not suggest that it considered that any of the information conveyed by Mr Beale’s telephone call would be the reason, or part of the reason, for affirming the decision that it was reviewing.  The Tribunal did place some weight on the applicant’s family’s wealth.  However, evidence that the applicant’s family was well-to-do was available to the Tribunal from sources independent of Mr Beale’s telephone call.  The applicant himself told the Tribunal that he came from a politically prominent family which was well-to-do and employed at least one servant and a driver.  That the applicant’s family was well-off by Bangladesh standards was also a fair inference for the Tribunal to draw from the applicant’s evidence that he had attended a private college and had subsequently run a reasonably successful business employing three other people; that he had travelled internationally on a number of occasions; and that had been photographed attending a dinner party in Dhaka with the first secretary of the Japanese Embassy.

17                  It may be that the Tribunal was provoked by the record of Mr Beale’s telephone call to put to the applicant that his family is well-off, and also to suggest to him that his family was involved in arms trading.  However, as there is nothing in the written reasons of the Tribunal to suggest that it gave any probative weight to information provided by Mr Beale on these topics, as opposed to the applicant’s answers to the Tribunal’s questions, I conclude that any failure to comply with s 424A of the Act in these regards will not found a ground of review.

18                  The applicant has not made out his first ground of review.

MEMBERSHIP OF A SOCIAL GROUP

19                  The Tribunal found that the applicant is a member of the Bhasani family.  The evidence before the Tribunal was that the Bhasani family is a prominent political family in Bangladesh with many people in that country regarding the applicant’s grandfather as the founder, or possibly a founder, of the Bangladesh nation.  The Tribunal concluded that it appears that the applicant’s family “were and are political leaders”.

20                  However, the Tribunal’s written reasons for decision include the following passage:

“… the Tribunal does not accept that his family has any major problems at the current time.  His brother attended a demonstration and was arrested in December 1999 but nothing else he has told the Tribunal about their recent treatment was true.  There is no reason to believe that the applicant would be of interest to the authorities because of his family’s name or activities.  The applicant’s account of their problems are very specific.  He has not claimed that there are false cases against them rather that they have been politically active.”

21                  Having regard to the above passage I see no reason to conclude that the Tribunal failed to give proper consideration to the issue of whether the applicant has a well-founded fear of persecution, should he return to Bangladesh, for reason of his membership of his politically prominent family.  A fair reading of the Tribunal’s written reasons for decision indicate that it did give consideration to this issue.  It concluded that the evidence before it suggested that members of the applicant’s family had suffered adverse treatment in the past only as a consequence of specific conduct engaged in by them and not by reason of their family membership.  On this basis the Tribunal concluded that there was no reason to believe that the applicant would experience persecution in the future for reason of his membership of his family.

CUMULATIVE EFFECT OF POSSIBLE GROUNDS OF PERSECUTION

22                  It is plain that in determining whether an applicant has a well-founded fear of persecution for a Convention reason, the Tribunal must have regard to the totality of the case put forward by the applicant.  However, I see no reason to conclude that the Tribunal did otherwise in this case.  In considering whether the applicant is of interest to the Bangladesh authorities, the Tribunal gave consideration to the applicant’s own political activities together with its consideration of the political activities of other members of his family.  Although the Tribunal noted that the applicant had “clearly misled and lied to the Tribunal”, the Tribunal concluded that he had been involved in politics, albeit to a lower degree than his mother and brother.  Nonetheless, the Tribunal concluded that it was not satisfied that the applicant was wanted by the Bangladesh authorities.  Nor was the Tribunal satisfied that the Bangladesh authorities have any general, as opposed to specific, interest in members of the applicant’s family.  It concluded that there was “no reason to believe that the applicant would be of interest to the authorities because of his family’s name or activities”.  In the circumstances no occasion arose for the Tribunal to consider “the cumulative effect of the claimed political opinion grounds and the implicit family/social group grounds” (see Dowlat Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478, Katz J).

NATURE OF PERSECUTION

23                  The written reasons of the Tribunal contains the following passage:

“Finally if I am wrong, and there is ‘false case’ against the applicant, this is a case where the Tribunal is confident that the applicant has the family connections and the family wealth to access the higher courts in Bangladesh to secure a fair trial.”

24                  The Tribunal positively found that there were no false cases against the applicant in Bangladesh.  Its written reasons for decision do not suggest that this finding was in any way tentative.  Rather the reasons suggest that the Tribunal did not entertain any real doubts on this issue.  For this reason, the Tribunal’s statements concerning the applicant’s access to the courts of Bangladesh were not crucial to its decision and cannot found a ground of review.

25                  However, as I observed in Hellman v Minister for Immigration & Multicultural Affairs [2000] FCA 645 at para 21:

“Persecution in the Convention sense involves discriminatory harm which the putative refugee’s country of nationality is not willing or not able to prevent to the degree that is normally to be expected of a country sensibly concerned with the human rights of its citizens.”

26                  The above passage from the Tribunal’s written reasons for decision are to be understood, in my view, as a finding that if there is a “false case” against the applicant, he has access to the courts of Bangladesh which would act to protect his rights.  In my view, only an excessively technical reading of the Tribunal’s reasons would lead to the conclusion that its reference to a “fair trial” was not intended to encompass fair pre-trial procedures - including the fair hearing and disposition of any application for release on bail.

27                  The decision of the Tribunal will be affirmed.

Associate:

Dated:                                           6 December 2000