FEDERAL COURT OF AUSTRALIA

Islam v Minister for Immigration and Multicultural Affairs [2001] FCA 1574

MIGRATION - application for protection visa - Refugee Review Tribunal’s decision based on findings as to credit - whether evidence to support decision - whether findings as to credit a “particular fact” - whether a “particular fact” refers to an objective fact capable of being disproved - distinction between a finding of fact and a conclusion based on facts or reasoning from facts - nature of findings on credibility - whether non-existence of a particular fact establishes no evidence ground

WORDS & PHRASES - “particular fact”

Statutes

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

Cases

Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 Applied

Lia v Minister for Immigration and Multicultural Affairs [2001] FCA 65 Applied

Minister for Immigration and Multicultural Affairs v Indatissa [2000] FCA 181 Applied

Minister for Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023 Referred to

ZAHIRUL ISLAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W157 OF 2001

SACKVILLE, KIEFEL, HELY JJ

PERTH

8 NOVEMBER 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs of the appeal, including the notice of contention.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     The appellant is a citizen of Bangladesh and arrived in Australia on 20 May 1999.  His application for a protection (Class AZ) visa, made on 2 June 1999, was refused by the Minister’s delegate on 11 August 1999.  This appeal concerns a second review of that decision by the Refugee Review Tribunal, an earlier determination by the Tribunal, differently constituted, having been set aside by order of this Court.  The appeal is from a judgment of a Judge of the Court who dismissed the appellant’s application for review of the Tribunal’s second decision, made on 31 July 2000, affirming the delegate’s refusal to grant a visa.

2                     The appellant claimed that he had left his country in April 1999.  He said that he did so because he was a student and a member of the BNP political party, which had lost government in 1996.  He had continued to work for it afterwards.  As a result the ruling party had victimised him and tried to kill him;  made threats amounting to extortion;  damaged his mother’s house and injured his sister in the process of looking for him;  and destroyed the premises of a club of which he was a member.  Meetings of the BNP were disrupted by Amawi League supporters and grenades were thrown into the meetings.  Some BNP members had been killed and he feared that he would be.  He was detained in 1997 and told that he would be killed if he continued his activities with the BNP.  They came to his shop repeatedly and on one occasion looted it.

3                     The events closer in time to the appellant’s departure for Australia concerned what he said were false charges being brought against him and some of his BNP colleagues.  This occurred in January 1999.  He said that four of his friends had been charged and convicted and were now in gaol.  In that process they had been tortured and beaten by the police and he feared this would happen to him. A warrant for his arrest had issued.

4                     The appellant identified, in his original application for a protection visa, his “past employment” as a garments business, that he was self-employed, and he gave as the dates relevant to it - January 1992 to April 1999.  In the statement attached to his visa application he said that his shop was completely closed in about February (1999) because it was too dangerous for him to be there.  In a further document he again gave as his employment history relating to the clothing business the dates January 1992 to April 1999.  In evidence before the Tribunal, as its reasons disclose, he said that he had someone running the business for him and that he closed it in February 1999 because it had been destroyed by the Amawi League.

5                     The appellant had also arranged for documents to be furnished to the Tribunal, in an endeavour, inter alia, to establish his association with the BNP.  During the hearing the Tribunal member drew the appellant’s attention to  the fact that the two certificates appeared to have been signed and dated by the same person.  The appellant then volunteered that the documents had the same date because they were obtained on the same day and the two places they had come from were close to each other.  It appears that the appellant misunderstood the concerns stated by the Tribunal.  A discussion then ensued during which the Tribunal member put to the appellant that he had made up the story about the dates on the documents, which story could plainly have had no basis in fact.  The appellant was also invited to comment upon differences in spelling appearing in the documents.

the tribunal’s reasons

6                     At an early point in its reasons the Tribunal stated its concern about his “overall veracity and credibility”.  It then went on to state that:

“During the course of the Tribunal hearing it became obvious that the applicant was willing to exaggerate and fabricate answers”.

7                     It identified three areas of his evidence in this connexion.  That pertaining to the discussion about the documents appears to have assumed the greatest significance.  The Tribunal found that the appellant, “…quite obviously made up a story to explain why they had the same date …”.  It did not accept that he was merely speculating about how the two documents could have come to bear the same dates, or to use the appellant’s terminology, that he was “just using his imagination to explain these matters.” 

8                     The Tribunal also concluded that the appellant had fabricated a story to explain the spelling mistakes in the documents, errors which it considered to be unlikely to occur in official documents and, in particular, in their stamp and seal.  There was also independent evidence before the Tribunal, which it accepted, as to the extent of the trade in forged documents in Bangladesh.  This added to its concerns about the genuineness of the documents.

9                     The appellant’s story about his four colleagues having been beaten and tortured when taken into custody was also considered to be exaggerated or fabricated.  In the Tribunal’s view he could not have known what occurred to them and his explanations that this is what usually occurred, or that his sister had told him, were not considered credible.  He did not appear to know what charges had been laid and had not made enquiries.

10                  These three areas of the appellant’s evidence led the Tribunal to conclude that he was wiling to make up stories and that he was not a credible witness.  It then went on to consider other aspects of his claims and his evidence, which also adversely affected his credibility.  The Tribunal viewed it as unlikely that a person wanted by the police would travel on their own passport or that they would pass through immigration in Dhaka without difficulty, as the appellant had.  The document from the BNP, which was in any event not considered to be genuine, said no more than that he was a member of that organisation and did not refer to the difficult position he claimed to be in, as might have been expected from such a document. The Tribunal did not accept that the appellant’s business had closed in February 1999, finding that it was likely that he had continued to conduct the business until April 1999, when he left Bangladesh.  The Tribunal appears to have been influenced to this view by findings it otherwise made as to his credit.  This finding had a further effect upon his claims and his credit, since the Tribunal went on to observe that a person fearful of their life and wanted by the police was not likely to have returned to their business.

11                  The Tribunal concluded that “taking all of these matters into account”, the appellant was not a credible witness, and that he had “fabricated his testimony and evidence in an attempt to substantiate his claims for a protection visa”.  Since he was not a credible witness his claim to a fear of persecution in Bangladesh could not be accepted.

THE DECISION OF THE PRIMARY JUDGE

12                  Section 476(1)(g) of the Migration Act 1958 (Cth) provides as a ground of review:

“that there was no evidence or other material to justify the making of the decision.”

13                  Section 476(4) limits the operation of this provision:

(a)       the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established;  or

(b)       the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

14                  The focus here is upon s 476(4)(b). 

15                  His Honour the primary Judge accepted that a “particular fact” is to be distinguished from the ultimate fact in issue or a conclusion based upon a series of particular facts:  Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 [34].  His Honour also considered that there was no reason in principle why a finding of fact upon which a conclusion of lack of credibility is based could not constitute a particular fact within s 476(4)(b), depending on the circumstances of the particular case.  In this regard his Honour referred to Minister for Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023 [21].

16                  His Honour held that “the conclusion that the applicant had fabricated reasons concerning problems in the two documents was a particular fact which did not exist”.  In doing so his Honour also accepted the submission that the applicant could not have known that the documents bore the same date.  He was therefore necessarily speculating about how such a coincidence might have occurred.  This could not amount to a lie.  His Honour did not however, consider that a ground for review was thereby established.  The view the Tribunal reached concerning the documents was based also upon the independent evidence.  Accordingly, it could not be said that there was no evidence to support this aspect of its decision.

17                  In relation to the issue concerning the closure of his business, his Honour held that there were two particular facts involved:  that the applicant closed his business in February 1999 and that he conducted the business until April 1999.   His Honour considered that neither of those facts had been shown not to exist, as s 476(4)(b) required.

18                  His Honour dismissed the application

the appeal

19                  The appellant relied upon his Honour’s holding that the Tribunal’s finding, that the appellant had fabricated explanations for perceived difficulties about the documents, amounted to a particular fact which did not exist.  According to Mr Cox, who appeared for the appellant, this concluded the matter in the appellant’s favour.  The respondent gave notice of his contention that the decision in Rajamanikkam has no application to the facts of this case.  In the respondent’s submission what was here involved was a conclusion, not a finding as to a fact.  We consider that contention to be correct.

20                  Consistent with the reasoning in Chen, it was held in Lia v Minister for Immigration and Multicultural Affairs [2001] FCA 65, that the making of a finding of fact is to be distinguished from a process of reasoning by inference or deduction from a fact or a combination of facts.  That the appellant had made up a story about the dates on the documents was a conclusion reached having regard to other facts and by a process of reasoning.  It was one of three instances identified by the Tribunal as showing that he exaggerated and fabricated answers.   The Tribunal’s conclusion reflected its assessment of a number of factors commonly associated with findings as to credit, including the alacrity with which the appellant volunteered an explanation of a perceived difficulty and the manner in which he proffered that explanation.  In the latter respect, the Tribunal considered that he had not put the story forward as mere speculation, but as an explanation based in fact.

21                  In our view, the appellant has not shown that the Tribunal based its decision on the existence of a particular fact.  In substance, the appellant seeks to challenge a finding as to credit, not by disproving an objective fact, which is the circumstance to which Rajamanikkam had regard, but by contending that another view should have been taken of the appellant’s evidence.  We add, in that regard, that the submission that the Tribunal must have known that the appellant was merely speculating about the coincidence of the dates is not borne out by those parts of the record put before this Court.

22                  It might be said that the time when the appellant closed his business was a fact capable of objective proof.  In the present case the evidence suggested two possible dates for the business closure:  February and April 1999.  Neither of them had been disproved, as the primary Judge found.  It was therefore a matter for the Tribunal to determine which of them was more likely to be correct.  This is what it did, by reference, in part, to the view it had otherwise formed of the appellant’s credit-worthiness.

23                  It needs also to be borne in mind, in our view, that even were the matters pointed to by the appellant facts which could be shown not to exist, the ground in s 476(1)(g) is not thereby made out.  As the Full Court  pointed out in Minister for Immigration and Multicultural Affairs v Indatissa [2000] FCA 181, [26]-[27] it is not sufficient to establish the two matters in s 476(4)(b).  That paragraph qualifies  476(1)(g), but it does not constitute a definition of what will amount to there being no evidence or other material to justify the making of the relevant decision.  In the present case the two findings relating to the appellant’s credit-worthiness were added to others and to the Tribunal’s view of aspects of the documentary and other evidence.  There were a number of bases from the evidence for its conclusion that the appellant was not a credible witness and for the ultimate conclusion that his claims could not therefore be accepted. 

24                  The appeal should be dismissed with costs.

Associate:

Dated:              8 November 2001