FEDERAL COURT OF AUSTRALIA

NADP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 185

NADP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1171 of 2002

MOORE J

SYDNEY

13 MARCH 2003

THE COURT ORDERS THAT:

1.      The application is dismissed with costs. 

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 18 September 2002 handed down 15 October 2002, affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) refusing to grant the applicant a protection visa.  The criterion for the grant of such a visa is, subject to subd AL Div 3 of the Migration Act 1958 (Cth) (“the Act”), is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 (“the Convention”). 

2                     The applicant, formerly a resident of Bangladesh, arrived in Australia on 4 July 2000.  On 31 July 2000 he lodged an application with the Department of Immigration and Multicultural and Indigenous Affairs for a protection visa under the Act.  On 31 August 2000 the delegate refused to grant the protection visa, and on 30 September 2000 the applicant applied to the Tribunal for review of that decision.

The Tribunal’s reasons

3                     The Tribunal’s reasons commenced with a discussion of the relevant legislation and what is comprehended by the definition of “refugee” and by the notion of “persecution”.  In a section of its reasons entitled “Claims and Evidence”, the Tribunal summarised the claims made by the applicant.  The applicant gave oral evidence before the Tribunal on 17 September 2002, and the Tribunal also had before it the departmental file relating to the applicant.  The following is a summary of the applicant’s account of his circumstances drawn from the reasons for decision of the Tribunal. 

4                     The applicant was born in 1958 in Habiganj, in the Sylhet region of Bangladesh.  He is a Bihari Muslim.  Despite his Bihari background, the applicant’s family integrated with Bangladesh society.  In 1975 the applicant completed his secondary education at Habiganj High School, and his higher secondary qualification in 1977, at Brindaban Government College.  He completed his degree in 1979 at the same College. 

5                     The applicant is a successful business person and industrialist.  After finishing his degree, he moved to Dhaka.  In Dhaka, he worked in management roles in the garment industry from 1982 until 1990, when he left his position at YK Garments to start up his own business.  This endeavour was successful.  Between 1990 and 1997 the applicant established a number of businesses in Dhaka.  He ended up owning and operating several businesses involved in the textile and garment industry.  This group of companies is based in Dhaka but the applicant has travelled extensively for business purposes, including to India, Germany, France, Italy, Switzerland, and the United Kingdom.  The applicant is also a member of a number of commercial organisations, including the Chamber of Commerce Japan Bangladesh and the Dhaka Chamber of Commerce and Industries.

6                     As the success of his businesses grew from 1990 onwards, the applicant became involved in local welfare organisations and Bihari repatriation programs.  The applicant has some relatives living in the “Geneva Camp” in Muhammedpur, a concentrated space where many stateless Bihari refugees reside.  Conditions at the camp are very poor, and the Biharis at the Geneva Camp are often subject to hostile behaviour from the local Mastans. 

7                     In January 1999, the daughter of one of the applicant’s friends was abducted and held for several days before being released.  The applicant went to the police station with the girl’s father to bring charges under the Cruelty to Women Act and the Penal Code of Bangladesh.  Although the police arrested two young men suspected of the kidnapping, they were later released.  Kidnappings such as this are common at the Geneva Camp.

8                     As part of his Bihari welfare activities, the applicant formed a committee in May 1999 with other Bihari leaders to protest human rights violations.  In 1999, the applicant, as part of this committee, organised a protest against local opposition and the Dhaka police.  This protest was also for the purpose of asking the United Nations High Commission for Refugees and the Pakistani government to arrange repatriation for all Biharis.  This protest was attacked by both police and hostile local community members.  A number of people on all sides were seriously injured.

9                     On 20 June 1999, the Mohammedpur police filed a case against the applicant under the Special Power Act 1973.  In July 1999, the Mohammedpur police searched the applicant’s business offices and home, seeking to arrest him.  A number of the applicant’s employees were severely beaten and forced to sign false statements regarding their participation in the protest march.  The applicant went into hiding in Dhaka, as the police frequently returned to his home to look for him and conduct searches.  He was forced to leave his business offices.  The applicant came to Australia on 4 July 2000, and fears that if he goes back to Bangladesh, he will be arrested on his return.

10                  In a section in its reasons titled “Findings and Reasons for Decision”, the Tribunal identified the applicant’s claims of persecution as relating to him being a Bihari and the police charges against him.  The Tribunal commenced its discussion by examining the applicant’s claim that he is a Bihari and does not hold Bangladeshi citizenship.  In the applicant’s initial statement which accompanied his application for a protection visa, the applicant stated that he was a citizen of Bangladesh.  The Tribunal noted that the applicant had held a Bangladeshi passport for a number of years, and recently obtained one at the Bangladeshi High Commission in Canberra.  The Tribunal concluded that the applicant was a Bangladeshi citizen and not stateless.

11                  The Tribunal then turned to consider the applicant’s claim that he had been and might be persecuted because he was a Bihari.  While it did accept that the applicant was of Bihari background, the Tribunal was not satisfied that this gave rise to a well founded fear of persecution.  It noted that the independent evidence indicated that even poor Biharis who live in refugee camps do not face persecution in Bangladesh.  The Tribunal indicated that a successful businessman such as the applicant would not be at risk of persecution as a result of his Bihari background.  The applicant’s claims that one of the reasons for the false charges against him was because he was a Bihari were also not accepted. 

12                  Next, the Tribunal considered the applicant’s claims of false charges and police harassment.  It noted that during the hearing, the applicant stated he found out about the charges against him in June 1999.  At this time, he was in Europe on a business trip.  In its reasons, the Tribunal said that if this was the case and the applicant feared persecution in relation to these charges, he should have sought protection in Europe at that time.  The applicant’s explanation that he did not want to leave his family was not accepted by the Tribunal, as he had offered no explanation as to why he was then prepared to leave in 2000.

13                  In addition, the Tribunal noted that the applicant had remained in Bangladesh for a year after the charges were laid, and gave conflicting evidence regarding his evasion of the police and where he had been staying during that year.  In its reasons, the Tribunal said:

…the applicant was in Bangladesh for some twelve months prior to coming to Australia.  In my view, if the Bangladeshi authorities wanted to arrest the applicant, they had ample opportunity to do so before he left Bangladesh.  The applicant has given internally inconsistent reasons for not having been arrested.  On the one hand he claims that he was not arrested because he was in hiding.  On the other hand he claims that he was not arrested because he paid money.  In my view, these explanations do not sit well together.  Furthermore, the applicant’s evidence that he was in hiding does not sit well with his claim that he was living with his family and operating his business until his departure from Bangladesh.  When this was put to the applicant he modified his evidence, claiming that he went into hiding when he heard the police were looking for him.  I do not find this explanation convincing.

14                  Further, the applicant gave inconsistent accounts of why there were false charges against him, with the primary focus on the abduction of his friend’s daughter and the applicant’s role in reporting that abduction to the police.  The Tribunal said:

The applicant claims that he attended protests and demonstrations in support of Biharis.  In his application for a protection visa the applicant claimed that the police want to arrest him because of his participation in a particular demonstration.  I do no accept that this is the case.  In my view, if the applicant thought that he was wanted for arrest for this reason, he would have mentioned this at the hearing.  Instead, the only incident to which the [sic] referred at the hearing as giving rise to charges against him was that related to his reporting the abduction of his friend’s daughter.  In the circumstances, I do not accept that the applicant is wanted by the Bangladeshi authorities as a result of his participation in one or more protests or demonstrations in support of Biharis.

The Tribunal found that if the applicant did face any charges, they were not because of the applicant’s Bihari welfare activities, his Bihari background, or any other Convention reason. 

15                  At the hearing the applicant stated that he was having difficulties with his business competitors, and a witness supported this contention.  These difficulties were accepted by the Tribunal, however it was not satisfied that they amounted to persecution for a Convention reason.  At the conclusion of its reasons, the Tribunal noted the documents provided by the applicant, including some documentation suggesting that he was resident in the Geneva Camp.  This documentation was in conflict with much of the applicant’s evidence.  The Tribunal found that having regard to the independent evidence regarding documentation fraud in Bangladesh, together with these inconsistencies, meant that little weight could be placed on the materials. 

16                  The Tribunal concluded by finding that, based on the evidence as a whole, while the applicant was Bihari, it was not satisfied that the applicant was a person o whom Australia owed protection obligations.  The delegate’s decision was affirmed.

Issues in the application

17                  The application for review in this Court was filed on 8 November 2002.  The grounds of review are:

“1.       The Refugee Review Tribunal has not attended any evidence in relation to the applicant’s claims and thus its decision is influenced by sufficient doubts.  The applicant provided a suitable vehicle and most of the grounds relief upon facts and documents, which the Tribunal did not consider.  Therefore, the applicant relies on the following grounds:

(a)   The Refugee Review Tribunal did not follow the proper procedure as required by the Migration Act 1958.  Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed (Moin, Lee’s case [sic]

(b)   The RRT decision was affected by an ‘Error of law’ and ‘jurisdictional error’.

(c)    There was no evidence or other material to justify in making of the decision.

2.         Therefore, the applicant seeks a review of the decision of the Refugee Review Tribunal under s 39B of the Judiciary Act 1903 (Cth) and Migration Act 1958 (Cth). 

18                  Prior to the hearing the applicant filed fairly lengthy written submissions (15 pages in all) in support of his application.  Those written submissions were a pastiche of legal propositions, analysis of authorities and a repetition of some of the argument that had been put to the Tribunal in support of the applicant’s claim of having a well founded fear of persecution.  In my opinion the only conceivable point raised in the submissions which may have been of substance concerned an argument based on the judgment of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601.  However there was no evidence before me which would justify findings of fact to create an analogous situation to that considered by the High Court.  There is no evidence that all the Part B documents were not before the Tribunal nor is there any evidence that the applicant would have conducted himself differently had he known they were not. 

19                  I have read the reasons of the Tribunal.  It was not apparent to me that they are attended by jurisdictional error.  Accordingly the application should be dismissed with costs.   

Associate:

Dated:              13 March 2003