FEDERAL COURT OF AUSTRALIA

Amin v Minister for Immigration & Multicultural Affairs [2001] FCA 312

MIGRATION – application to review decision of Refugee Review Tribunal (“Tribunal”)– where the Tribunal did not believe the applicant – where the grounds of review are not particularised

PRACTICE AND PROCEDURE – notice of motion to reschedule the hearing for a later date to enable the applicant to obtain legal representation – where adjournment would be futile

Migration Act 1958 (Cth), s 476

MD RIAZUL AMIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 565 OF 2000

STONE J

8 MARCH 2001

SYDNEY

THE COURT ORDERS THAT:

1.         the applicant's notice of motion be dismissed;

2.         the application be dismissed;

3.         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                     On 12 March 1999, the applicant, Mr Amin, a citizen of Bangladesh, applied to the respondent (“the Minister”) for a protection visa to remain in Australia.  The Minister’s delegate (“Delegate”) refused his application on 26 March 1999.  The Refugee Review Tribunal (“Tribunal”) upheld this refusal on 19 April 2000 in a decision handed down on 3 May 2000.  Mr Amin now applies under s 476 of the Migration Act 1958 (Cth) (“the Act”) for a review of the Tribunal's decision.

2                     Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant 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”). Article 1A(2) of the Convention provides that a refugee is any person who:

“owing to a 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.”

the reasons for decision of the tribunal

3                     The applicant's statement declared on 12 March 1999 makes a number of claims that are set out below. 

§         The applicant is a middle class Assamese who lived in Moulvi Bazaar in Bangladesh with his wife and child.

§         As a school student, he spent little time on his studies and focused on his political activities as a member of the student wing of the Bangladesh National Party (“BNP”).  He did not sit his final exams and did not obtain any formal qualifications.  

§         After school, he joined the BNP and became assistant general secretary, and later publicity secretary, of a branch of the BNP.  He became heavily involved in the party, participating in rallies and campaigning.

§         He was assaulted by thugs supporting the Awami League on several occasions, who abused him both because of his involvement with the BNP and because of his ethnic origin.  Most of these incidents were reported to the police, who did nothing.

§         The applicant was arrested and tortured by the police on 20 January 1997, who accused him of being “son of Assamese, collaborator of 71, you made anti state activities”. He was released after paying a bribe.

§         A few false cases were filed against him in Bangladesh.

4                     At the hearing before the Tribunal, the applicant gave additional evidence orally, including the following claims. 

§         The Awami League has people everywhere and he would generally be recognised as an active member of the BNP.

§         The false charges against him were for murder and property damage.  His evidence in relation to appearances in court was contradictory.  He stated that the authorities had not come looking for him in relation to his non-appearance in court.

§                     He gave further evidence of attacks by Awami League thugs.

5                     Following the hearing, the Tribunal reviewed the applicant's file in relation to his application for a student visa at the Australian High Commission in Dhaka.  Information given in relation to that application was inconsistent with information given to the Department of Immigration and Multicultural Affairs and to the Tribunal.  In particular:

§         the application stated that he was single; 

§         the file included information about the applicant's Secondary School Certificate, Higher Secondary Certificate and BA.  The institutions where the applicant had studied were not located in Moulvi Bazaar; 

§         the address given in the application for the applicant and his parents was in Dhaka; 

6                     In a letter from the applicant's migration agent dated 14 April 2000 it was stated that an agent had forged documents in support of the student visa application and that the applicant had not completed his studies and was married. 

7                     The Tribunal did not accept the applicant’s testimony and stated:

“the applicant is not a credible witness nor a witness of truth.  It notes the disparities between the written and oral submissions: for example, the applicant has put his in his submission meticulous detail about six attacks on him, including the hour at which these attacks occurred, but mentioned only two at hearing.  In his submission, he said he was arrested by the police and tortured on 20 January 1997 but failed to mention this at the hearing; yet orally he testified to false charges of murder laid against him and his subsequent court appearance, things he failed to put down in writing.”

8                     The Tribunal also noted:

§         the implausibility of the authorities not taking some action when a man charged with murder fails to attend at court;

§         the unlikelihood of a person who had been attacked and charged with murder remaining at the same address prior to suddenly leaving Bangladesh; 

§         the inconsistency between the evidence given to the Tribunal and the information given to the Australian High Commission in Dhaka, which is competent in checking documentation and references.

9                     The Tribunal concluded that, as claimed in the student visa application, Mr Amin was a student with several qualifications and little history of engaging in political activities.  It did not accept that the applicant had been arrested and tortured, that charges had been laid against him or that political opponents had beaten him.  It concluded that the applicant's fear of persecution was not well founded.

Notice of motion

10                  At the hearing today, the court also had before it the applicant's notice of motion to vacate today’s hearing date and reschedule the hearing to a later time preferably in August or September this year. The matter was set down for hearing on 14 July 2000, at which time it was listed for 14 December 2000 with an alternative date of 8 March 2001. The notice of motion was based on the applicant's expectation that he would be able to obtain legal advice and representation in this matter.  The reason for the additional time was that the applicant needed to raise money in the order of $15,000 in order to pay for this legal assistance.  At the hearing today, the applicant was given the opportunity in the witness box to provide further sworn evidence in support of this notice of motion.

11                  He reiterated the points made in the application and was cross-examined on these claims by Mr Peek, who appeared for the Minister. His evidence was to the effect that he intended to obtain the money by savings from his salary, obtained through his job held for only one week to this point as a kitchen hand.  He was not able to provide the court with information as to what his salary in this position might be. On the basis of this evidence, I am satisfied that the applicant has no realistic chance of obtaining the money required within the foreseeable future.

12                  My decision to dismiss the notice of motion is confirmed by my review of the Tribunal's reasons for its decision and the submissions made by the respondent. That review and those submissions have convinced me that the application has little if any chance of success.  In the circumstances, I dismiss the motion on the ground that orders to the effect sought by the applicant would have no utility.

the primary application

13                  Turning now to a consideration of the applicant's primary application, Mr Amin was given the opportunity in court today to make further submissions.  In effect, he elected to rely on the case already made.  The respondent's outline of submissions in this case has been very helpful.  The respondent conceded that in cases where an applicant is not legally represented the court takes a more active role than is usually the case.  This requires or involves the court in examining the reasons for the decision of which review is sought in order to ascertain for itself whether any reviewable error has been made.

14                  The Minister's submissions went through the application attempting to glean from the application what the essence of the claim for review might be.  The grounds of the application, as set out by the applicant, are:

“1.      The Tribunal made some errors to decide the fate of the applicant's claim.  It is connected to section 476(1)(e) of the Migration Act 1958;

2.         The Tribunal member exercised his discretion in relation to the applicant's case in bad faith and an error occurred in accordance with the section 476(3)(f) of the Act;

3.         The Tribunal took much irrelevant consideration that was not related to facts of the case; as such error occurred in accordance with section 476(3)(d) of the Act;

4.         The Tribunal misconstrued the applicant's claim.”

15                  These grounds were not particularised in any way. I have reviewed the Tribunal's reasons for decision in detail.  Without addressing each of the claims made by the applicant, it is sufficient to say that in the absence of particulars, it is difficult to ascertain exactly what the claim is or might be. The problem faced by the applicant was that the Tribunal did not believe him.  It did not believe that he had suffered attacks or that he was in danger of persecution within the meaning of the Convention.

1.The Tribunal made these findings after a careful examination of the applicant's evidence and the conflicting independent evidence. In my opinion, those findings were open to the Tribunal and I can discern neither error nor any evidence of bias in its reasons.

2.For these reasons, the application must be dismissed with costs.

Associate:

Dated:              27 March 2001