FEDERAL COURT OF AUSTRALIA

Harunor v Minister for Immigration and Multicultural Affairs [2001] FCA 853

MIGRATION – protection visa – application for review of decision of Refugee Review Tribunal – whether Tribunal failed to ask question – whether decision based on fact which did not exist

Migration Act 1958 (Cth) s 476(1)(e)(g), (4)(b)

Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at pars 28 to 30 applied

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 223 to 224 applied

Yilan v Minister for Immigration and Multicultural Affairs (1999) 55 ALD 600 at par 58 applied

RASHID HARUNOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 117 OF 2000

HEEREY J

27 JUNE 2001

PERTH

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s costs to be taxed.

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 for a review under Pt 8 of the Migration Act 1958 (Cth) of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister made on 5 April 2000 refusing to grant the applicant a protection visa.  The applicant is a citizen of Bangladesh aged 30.  He is a single male.

2                     He arrived in Australia on 11 January 2000 and lodged an application for a protection visa on 15 January 2000.  As will appear, the Convention grounds relied on were that of political opinion; namely, opposition to the Communist Party in Bangladesh.  This was the second time the applicant had arrived in Australia illegally.  He had arrived in September 1998, was interviewed, did not make any claims for Convention protection or of persecution and was subsequently deported to Bangladesh.  The Tribunal hearing was conducted on 15 May 2000 and the applicant gave oral evidence and the decision affirming the delegate’s decision was given on 27 June 2000.  The Tribunal summarised its conclusions in these terms:

“In summary, I find that the Applicant has fabricated an account of a profile as an anti-communist crusader and constructed a set of claims of harm and feared harm at the hands of militant communists in his local area. 

I do not accept his claims in this regard to be genuine. 

Further, even if I did accept the claims, I find that it would be reasonable for his (sic) to seek protection by relocating to Dhaka. 

I find that the Applicant has not suffered harm at the hands of the government of Bangladesh or its administrative authorities, including the police and the judiciary. 

I further find that the state, since it is in no way complicit with the group he claims to fear harm from, would be willing, and is able to provide protection from  harm at the hands of that group.”

3                     There are two grounds of review in the initial application which were abandoned by counsel on the hearing before me.  The first ground relied on was that the decision of the Tribunal involved an error of law.  The particulars given were:

“The Tribunal reached the conclusion that the applicant could find protection from the claimed harm (which is to be understood to mean that any fear of persecution which the applicant had could not be said to be well-founded, because it could be avoided by relocation) when the Tribunal failed to give any or any adequate consideration to the specific question whether there was some part of Bangladesh in which the applicant would be safe from any real risk of persecution.”

4                     In the course of its reasons the Tribunal summarised its questioning of the applicant at the hearing:

“I asked the Applicant if he had ever gone to Dhaka.  He said that he had gone there on many occasions.  I asked if he had any problems from the communists when he was in Dhaka and he said that he hadn’t.  I said that in that case I considered that he could avoid any problems he had with the communists in his local area by relocating to Dhaka or one of the other major cities in Bangladesh. 

The applicant said that if he actually moved to any one of these locations then he would sooner or later come to the attention of the people in that area and they would want to know about him and the story would come out and get back to the communists. 

I said that I found that to be a very unlikely situation as information before me stated that Bangladesh had a population of over 120 million people and he had told me that his home area was over 200 kilometres away from Dhaka.

The US State Department Country Reports on Human Rights Practices 1999 states:

Bangladesh is a very poor country.  Annual per capita income among the population of 128 million is less than $300.  Slightly more than half of all children are chronically malnourished.  Seventy per cent of the workforce is involved in agriculture, which accounts for one-third of the gross domestic product. 

I said that I considered it implausible that he would stand out to any extent such that he would come to the attention of the communists in his area so far from Dhaka.”

5                     In the part of its reasons headed “Findings and Reasons” the Tribunal says:

“However, even if I did accept the account as he has presented it I find that he could reasonably find protection from that claimed harm by relocating to Dhaka where, by his own account he didn’t suffer harm. 

The harm he claims to fear is at the hands of militant communists who, the independent material shows, are not tolerated by the current or former governments. 

Given the population density of a country of 128 million people I find that the chance of the local communists locating the applicant in Dhaka, some 200 kilometres away from his local area to be remote and insubstantial.

Secondly, since the communist militants are an outlawed group and a minority I find that the Applicant could avail himself of the same protection which is available to all citizens in his country since the harm he fears is not at the hands of the government, tolerated by the government or that the government is unable to protect against that harm.”

6                     It was submitted that the Tribunal failed to ask itself the correct question and should have asked whether or not the applicant had a fear that he would be persecuted in Dhaka.  It was said the Tribunal should have made further inquiry into whether that fear was well‑founded.  However, in my opinion a fair reading of the Tribunal's decision, including its finding in the context of its summary of the evidence given by the applicant on this issue, makes it clear that the Tribunal did consider whether the applicant had any fear of persecution on a Convention ground in Dhaka and was quite satisfied that any such fear asserted was not well‑founded.

7                     The second ground relied on asserted that there was no evidence or material to justify the making of the decision in that the Tribunal based its decision on the existence of particular facts and those facts did not exist:  s 476(1)(g) and (4)(b).  Three particulars were given under this ground.  Particular (a) alleged the non-existent fact was:

“The Tribunal found that none of the Applicant’s statements to the Tribunal concerning the Applicant’s encounter with the communist leader or the Applicant’s association with the communist leader’s son was in any submission.”

8                     In this regard the applicant told the Tribunal at the hearing that in 1993, when he would have been 17, there had been three years of killings and murders, in the area where he lived, at the hands of communists but no leader had taken this up with the communists.  The applicant said that he and his younger brother, 15, together with five other students decided to approach the head of the communist group in his area to express their concerns at the killings.

9                     The group went to see the leader and the applicant, as spokesperson, said that they were upset at the killings.  The leader then said he had joined the communist movement as he believed its aims were for the good of the people.  However, since the seven of them had come with their concerns he would have a meeting with his superiors and raise their concerns.

10                  The Tribunal report noted in its reasons that at this point the Tribunal said to the applicant that it found this implausible, that what he was claiming was at the time when killings by communists were rampant no leader or elder had enough courage to challenge the communists but that he, at 17 years of age with a handful of school friends, not only went to the leader but that the leader listened to them and took their petition seriously enough to say he would raise this with his communist superiors.

11                  The applicant said, according to the Tribunal, that although he and his brothers were young, the others were aged between 18 and 20 years of age.  He said that the communist leader had also said to him that he was becoming disillusioned with the Communist Party and intended to leave it shortly after the discussion with him.

12                  The applicant then claimed that shortly after this that particular leader was killed by the communists.  However, he said that the son of that leader was also in college with him.  After waiting some time the applicant spoke to that student and asked him if he was aware of the meeting he had with his father.  The student said that he was aware and when his father had raised the issues with the superiors in the Communist Party, they had rejected the petition to end the killings.

13                  After more questioning, including the Tribunal asking why the applicant had not given any of these details to his solicitor when he spoke to her in Port Hedland and the applicant saying that he had, the Tribunal said:

“I pointed out that none of this had been provided in any submission and, I asked the representative if any of this was in the submission which I had not seen at that stage.”

14                  The explanation for this apparently is that there was a written submission which was faxed but not received until after the Tribunal hearing.  Later under “Findings and Reasons” the Tribunal said:

“In his written statement he has made no mention of his claimed approaches to the head of the communist movement, his association with the communist leader's son and the death of that leader. 

Since the claimed harm at the hands of the communists is the crux of his claim I would have expected these matters to have been recorded by his solicitor if he had told them to her.  At the hearing he claimed that he had told his solicitors about these matters.  I do not accept that this was the case, the matters are of such importance that I do not accept a professional solicitor would have failed to record them if they had been made.”

15                  Counsel submitted that the non-existent fact was the non-assertion of this particular part of the applicant's account “in any submission.”  The short answer is that in the part of reasons to which I have referred the Tribunal refers to this matter not having been raised in any written statement.  That, as far as I am aware, is correct.  In the delegate’s report of an interview with the applicant on 16 January it is recorded as saying:

“The applicant said he had spoken to the Communist Party leader in 1993.  The applicant was 18 then and not involved in any political organisation or movement.  He told the Party leader that what his party was doing was not good for the country.  The leader, the applicant said at the interview in Port Hedland, told the Party about the applicant's complains (sic) and the Party decided to liquidate the applicant.  He was informed about the Party’s decision to liquidate him by the leader’s son, who was the applicant’s school friend.”

16                  This obviously has some significant difference from the version given at the Tribunal hearing.  It does not make any mention of the alleged subsequent death of the party leader to whom the applicant allegedly spoke.  But in any event it did not form part of a written statement by the applicant, so there was nothing incorrect in the finding that the Tribunal made.  More generally, however, the grounds under s 476(1)(g) and as qualified by s 476(4)(b) are only applicable where there was no evidence or other material to justify the making of the decision; that is to say the decision to refuse the grant of a protection visa:  Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [28] to [30].

17                  As a reading of the detailed reasons of the Tribunal will show, there was abundant support for the factual conclusion that the whole claim of the applicant was fabricated and, that being so, even if there was some misstatement of a particular piece of evidence that would be no more than factual error and would not be enough to bring the no evidence ground into operation.

18                  For the same reasons, the remaining particulars under this ground are, in my opinion, not made out.  They were:  “(b) the finding by the Tribunal that the applicant could avail himself of the same protection which is available to all citizens, and (c) the finding by the Tribunal that the government is willing and able to protect against that harm”.  There was in fact some country material not referred to but which would provide some positive support for those findings.  In any event it is up to an applicant seeking to rely on this ground to prove the non-existence of the alleged fact.  See Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 223 to 224 and Yilan v Minister for Immigration and Multicultural Affairs (1999) 55 ALD 600 at par 58.

19                  The final ground relied on was that there was an error of law, being an error involving an incorrect interpretation of the applicable law under s 476(1)(e) and the particulars given under that ground were:  (a) the Tribunal found that the applicant could avail himself of the same protection which is available to all the citizens in his country without consideration of whether the applicant was unable or unwilling to avail himself of the protection of that country as is required by article 1A(2) of the Convention Relating to Status of Refugees under s 36 of the Migration Act 1958; (b) the Tribunal found that the state would be willing and able to provide protection from harm at the hands of the communists without consideration of whether the applicant was unable or unwilling to avail himself of the protection of that country as is required by article 1A(2) of the Convention.

20                  I think it is fair to say that counsel accepted in the course of argument that this ground was based on a misunderstanding.  If a person makes application for a protection visa, it is implicit that such person is at least unwilling to avail himself of the protection of that country.  The real issue is whether that unwillingness flows from a well-founded fear of persecution on one or more of the convention grounds.

21                  If such a well-founded fear is found by the decision-maker then the visa will be granted; absent such a well-founded fear, the visa will be refused.  So either way, the inability or unwillingness will not be a determining factor.  If, in the present case, the Tribunal had found there was a well-founded fear of persecution on the ground of the political opinion as asserted by the applicant, there would have been a grant of a visa.  But for the reasons already indicated, the Tribunal was not so satisfied. 

22                  The application would be dismissed with costs. 

Associate:

Dated:              5 July 2001