FEDERAL COURT OF AUSTRALIA

NAFD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 362

NAFD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1294 of 2002

MOORE J

SYDNEY

24 APRIL 2003

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  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

Introduction

1                     This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 16 October 2002, which affirmed 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 (Class XA) under the Migration Act 1958 (Cth) (“the Act”).  An applicant for a protection (Class XA) visa is entitled to be considered against the criteria for each of its subclasses: 785 (Temporary Protection) and 866 (Protection).  The criterion for the grant of such a visa is, subject to sudb AL of Div 3 of the Act, that the applicant is a person to whom Australia has protection obligations, under the Refugees 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”).

The Facts

2                     The applicant is a citizen of Bangladesh.  He arrived in Australia on 23 October 2000.  On 13 November 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 2 January 2001 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant a protection visa and on 25 January 2001 the applicant applied to the Refugee Review Tribunal for a review of that decision.

3                     The following is a summary of the applicant’s account of his circumstances drawn from the reasons for decision of the Tribunal.  The applicant was born in 1970 in the district of Sylhet in Bangladesh to a Muslim family with a strong adherence to Islamic rituals and culture.  His family was very strict in their Islamic beliefs and his religious feelings entered “into his roots”.  He would always obey the commandments of Allah.  In 1986 the applicant obtained his secondary School Certificate (SSC).  When at school, he was involved in student politics under the banner of the Islamic Chatra Sibir, the student wing of Jamat-e-Islami, and served as a general secretary of the school Chatra Sibir committee.  After completing his SSC, the applicant was involved in business under the guidance of his parents.  The financial position of applicant’s family was “good enough for living” and his family was categorised as “wealthy middle class”.

4                     The applicant’s family opposed the creation of Bangladesh.  As a result, when Bangladesh gained independence, his family house was burnt several times and looted.  He heard from the elders of his family that his father had been detained for a long time.  As a result of what he heard, the applicant came to hate the Awami League and its “dependent foreign policy on India”.  In 1987 the applicant became an initial member of the Jamat-e-Islami under the leadership of Mr Hasmat Ullah.  The applicant led demonstrations and campaigns against the then Ershad government to oust him from power.  In 1989 the applicant was elected an executive member of the Jamat-e-Islami of the Kotowali thama (constituency) this being his first recognition as a leader in the local area.  He became one of the leading activists of this party and had a “great role” in the movement in 1990 which ousted president Ershad from power.  His performance was outstanding and he earned fame as a leader of Jamat-e-Islami.

5                     In December 1990, the Nationalist Party (BNP) won a majority of seats in the parliament and formed government with the help of Jamat-e-Islami, but this coalition did not last long because the BNP government did not listen to Jamat-e-Islami’s legitimate demands and ignored them as coalition partners.  Many of their political leaders and activists were tortured and detained by the BNP government.  Finally, two and a half years later, their party left the coalition and all parliament members resolved to oust Begum Zia from power.  The applicant was then oppressed and targeted by BNP activists.

6                     In 1995 the applicant was elected as the executive member of the Jamat-e-Islami district committee.  He led many demonstrations against the then BNP government, demanding that a caretaker government be installed.  These demonstrations led to the resignation of Begum Zia who was compelled to transfer power to a caretaker government.  The applicant took part in disruptive processions and the destruction of public property.  Around this time, false charges relating to civil disorder were laid against him.  In 1996, during the election campaign, the applicant worked for the Jamat-e-Islami candidate.  The Awami League’s candidate won the elections and, subsequently, members of Jamat-e-Islami became the government’s prime target. 

7                     The applicant became the organising secretary of the Jamat-e-Islami Kotowali thama.  During this time, the Awami government frequently arrested many Jamat-e-Islami political activists.  The applicant was arrested twice.  The first time he was detained for 16 days and he was detained again two months later.  He was taken to court once but was then released on bail.  His case did not proceed because the applicant paid a bribe to stop the matter going any further.  In 1998 the applicant was elected as an executive member of the Jamat-e-Islami district committee and got involved with the organisation of various demonstrations against the Awami regime in which the police assaulted the demonstrators (backed by the Awami League).

8                     The applicant lived in Bangladesh for a further period of four years during which time he had not been the subject of any police attention.  He was able to obtain a passport, and departed several times to Nepal and India.  In October 2000 the applicant feared persecution and felt his life would not be safe in Bangladesh and thus had no other alternative but to leave the country.

9                     In 2001 elections were called in which the BNP, in coalition with Jamat-e-Islami, were elected.  Today, Jamat-e-Islami is one of the governing parties in Bangladesh.  However, the applicant feels he would not be safe if he returns to Bangladesh, because he has been “delisted” by his party for having left his country.

The Tribunal’s Reasons

10                  The Tribunal considered the account given by the appellant.  It accepted that the applicant has been a member of the Chatra Sibir, the youth wing of Jamat-e-Islami and that he had been an activist at the local level.  The Tribunal accepted that the applicant had been involved with an opposition political grouping and was detained by the police having been physically abused.  However, the Tribunal was not satisfied that there had been charges laid against him, given that on the applicant’s own evidence, he had been detained by the police on two occasions but had then been released.  The applicant had lived in Bangladesh for some five years before he left for Australia.  Moreover, the applicant had been able to obtain a passport and depart Bangladesh several times (to Nepal, India and Australia) through immigration and security checks without the authorities detaining him, despite his claim that they were seeking him.  In relation to the applicant’s claims that he fears persecution and is afraid that his life would not be safe in Bangladesh, the Tribunal acknowledged that political violence continues in Bangladesh.  However, the applicant had been absent from Bangladesh for some years, during which his political opponents lost the elections and the applicant’s own party is now part of the coalition government.  The Tribunal found that the applicant’s claim that his own party would now turn on him for having left the country was unconvincing, and did not accept this to be the case.

11                  In the circumstances of the applicant’s case, the Tribunal was not satisfied, based on the totality of the evidence before it, that there was a real chance the applicant would be harmed now or in the foreseeable future if he returned to Bangladesh.  Overall, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.

12                  The Tribunal found that, having considered the evidence as a whole, while the applicant had been a member of Jamat-e-Islami, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  The applicant therefore did not satisfy the criterion set out in s 36(2) of the Actfor a protection visa.

Issues in the Application

13                  The application for review in this Court was filed on 5 December 2002.  The grounds for review were described in the following way:

1.                  The procedures that were required under the Migration Act 1958 to be observed in connection with the making of the decision were not observed.

2.                  The Tribunal ignored the merits of the claim.

3.                  The Tribunal misjudged the fate of the applicant’s claim.

4.                  The Tribunal made a number of errors to decide applicant’s review.

5.                  The Tribunal’s decision was not based on proper reasoning and the Tribunal has not considered this case in accordance with the United Nations Convention 1951.

6.                  The Tribunal did not consider the material facts of the claim by denying the applicant’s real fear of persecution upon returning to Bangladesh.

14                  The applicant prepared an amended application, a copy of which was handed up at the hearing.  It read:

1.         The applicant appeals from the decision of Dr Ron Witton, Tribunal Member of the Refugee Review Tribunal given on 16 October 2002 pursuant to S.476(1) (f) on the grounds that the decision was induced or affected by actual bias.

Particulars of actual bias

2.         On the evidence as a whole, the findings of the Tribunal member as to the following maters demonstrated actual bias:

(a)        Therefore the Tribunal does not accept that the Applicant was a genuine refugee applicant if he returned back to Bangladesh.  To harm him for this reason or that he was falsely charged and wanted by the police for this reason.

(b)        The Tribunal does not accept that any minor misunderstandings or mistranslation, for example once the interpreter interpretation that was of sufficient magnitude as to prevent the Applicant giving evidence or understanding what was said to him or in making himself understood.

(c)        The Tribunal also rejects the Applicant’s claim because his oral and written evidence was inconsistent in relation to major issues.  The Tribunal did not treat this matter as a s 434 A issue as the Applicant  brought the statutory declaration he submitted in connection with the current protection visa application to the hearing and showed it to the Tribunal to ensure that it was before the Tribunal.

(e)        In any case, if the Tribunal is wrong and the Applicant was a genuine refugee the Tribunal is still not satisfied that the Applicant has a well-founded fear of persecution within the meaning of the Convention if he returns to Bangladesh now.

(f)        Despite numerous opportunities to mention his fear of arrest by the police on the false charge and police torture of his family.  The Tribunal dose [sic] not accept that if his claim of a false charge and being wanted by the police was true that the Applicant would fail to mention it until specifically asked, at the Tribunal hearing.

3.         The grounds and relief is very much similar with a recent High Court Judgement – Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002).  Catchwords: Immigration- Refugee- Protection visa- Decision by Minister to refuse application for visa- Review of decision by Refugee Review Tribunal- Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Register of Tribunal for purpose of review- Nature and extent obligation- Migration Act 1958 (Cth), ss 418(3), 424(1).

4.         The recent High Court Judgement: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2(4 February 2003) And Federal Court of Australia Judgement: SGDB v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 74 (14 February 2003).  Very relevant of my case and submission.

15                  The applicant was unable, in any meaningful way, to explain how these alleged errors were revealed by either the Tribunal’s decision or any of the material before the Court.  I have read the Tribunal's decision.  It is not apparent to me that the Tribunal’s decision was infected by judicially reviewable legal error.  There is no evidence which might warrant a finding of actual bias.  The evidence does not establish an arguable basis for suggesting that the circumstances in this matter are analogous to those considered by the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601.

16                  The application should be dismissed with costs.

Associate:

Dated:              24 April 2003