Barua, Nitish Chandra v Minister for Immigration and Multicultural Affairs

[1998] FCA 626

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 62  of   1998

BETWEEN:	NITISH CHANDRA BARUA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:		O'CONNOR J
DATE OF ORDER:		10 JUNE 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

The application is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 62 of 1998

BETWEEN:	NITISH CHANDRA BARUA Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	O'CONNOR J
DATE:	10 JUNE 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application for the review of a decision of a member of the Refugee Review Tribunal (“the Tribunal”) dated 30 December 1997 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa.

At the hearing of this matter on 1 June 1998, the applicant filed an amended application.  No objection to this was taken by the respondent.  The grounds of this amended application summarised are:

1. Procedures required by the Act or regulations to observed in connection with the making of the decision were not observed.

1. The decision involved an error of law being an error involving an incorrect interpretation of the applicable law or an incorrect application of the Law to the facts as found by person who made the decision whether or not the error appears on the record of the decision.

1. The decision was induced or affected by fraud or by actual bias.

1. There was no evidence or other material to justify the making of the decision.

In respect of each of these grounds the applicant listed a series of particulars and these matters will be referred to later in these reasons.

Legislative Context
The relevant provisions of the Migration Act in respect of this application are as follows:

“Application for review

476.  (1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

...

(f)that the decision was induced or affected by fraud or by actual bias;

(g)that there was no evidence or other material to justify the making of the decision.

(2)  The following are not grounds upon which an application may be made under subsection (1):

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.

(3)The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a)an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b)an exercise of a personal discretionary power at the direction or behest of another person; and

(c)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d)taking an irrelevant consideration into account in the exercise of a power; or

(e)failing to take a relevant consideration into account in the exercise of power; or

(f)an exercise of a discretionary power in bad faith; or

(g)any other exercise of a the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).”

A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is a person who:

“owing to 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 applicant seeks an order that the decision under review be set aside and remitted back to the Refugee Review Tribunal for reconsideration according to law.

Factual Background

The applicant is a 43 year old Bangladeshi man.  He has a tertiary education, including a degree at postgraduate level, has worked in executive positions and is qualified as a homoeopathy practitioner.  The applicant has been active in social, religious and political organisations and was a founder of a Buddhist college and temple.

The applicant claims that from about 1977 until 1995 Buddhist temples in Bangladesh were being attacked by Muslim fundamentalist groups.  The applicant and other Buddhists protected the temples and as a consequence were personally attacked and/or kidnapped by the Muslim groups.  The applicant claims that in 1987 he was kidnapped and tortured by a group of Muslims.  He was held for three days and then released when a ransom was paid.  The applicant claims he would not have been kidnapped if he was not perceived as having money.  In 1988 he was stopped by a group of men who would let him go to do community work unless he paid them money and 1989 a group of hooligans attempted to take the applicant away after he attempted to stop them erecting wall in a Buddhist burial ground.

The applicant also claims that other members of his family were also kidnapped by Muslim fundamentalists and a friend of his was kidnapped and killed.  The applicant believes that the government has given support to these people in their campaign against religious minorities since Islam had been declared the state religion.

After an arrest warrant was issued because of the applicant’s involvement in rescuing his cousin, a Buddhist woman from an unwanted marriage to a Muslim man he moved from his local town of Chittagong to Dhaka and then left Bangladesh for Australia arriving on 7 September 1995.

The applicant claims that if he goes back to Bangladesh he will be killed because so many attempts have been made on his life.  He claims he would be killed because he used to work to help poor people.  Since he has left Bangladesh, his wife has been forced to move her home because of harassment.

The applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa on 27 October 1995.  The delegate’s decision refusing the application was made on 28 January 1997.  The applicant applied for a review of that decision by the Tribunal on 14 February 1997.  The application for review was rejected by the Tribunal and his application for protection visa refused on 30 December 1997.

Tribunal’s Decision
The applicant provided the RRT with a number of documents in support of his application.  Witnesses were called by the applicant to give evidence on his behalf.

The Tribunal made the following findings:

In relation to the applicant’s claim that he has a well-founded fear of persecution the Tribunal held the none of the claims the applicant has made indicates that his fears of persecution were for reasons of his political opinion.  The applicant confirmed at the Tribunal hearing that he has had no involvement in political matters since 1985.  The Tribunal accepted that the applicant was actively involved in a number of Buddhist associations in Bangladesh but did not believe him to be a prominent leader.

In relation to the applicant’s claim that he was kidnapped and held for ransom in 1987, the Tribunal found that the applicant was kidnapped not because he is Buddhist but because he as a man of wealth was perceived to be an appropriate target for extortion.  The Tribunal also found that the incident where the applicant was asked for money in 1988 was an extortion attempt and the harassment of his wife was motivated by the fact that the family is perceived as having money, rather than because of their religion.

In relation to the claims of the attack at the Buddhist burial ground and that a member of the applicant’s community was burned to death when his shop was attacked, the Tribunal accepted that Buddhists in Bangladesh are discriminated against and from time to time targeted in outbursts of communal violence.  However the Tribunal found, relying primarily on independent evidence, that the treatment of Buddhists in Bangladesh was neither systematic nor serious enough to amount to persecution within the meaning of the Convention.

The Tribunal did not accept the applicant’s claim that he faces criminal charges in Bangladesh.  The Tribunal found it implausible that the applicant would not think the issue of an arrest warrant against him important enough to raise in his application for protection visa or his interview with the Department.  In relation to this matter the Tribunal also found:

• the applicant’s evidence that he knew that an arrest warrant had been issued prior to his departure from Bangladesh was inconsistent with the fact that the document is dated 25 September 1995 some two weeks after he left Bangladesh;

• the applicant’s evidence that he moved when he discovered that an arrest warrant had issued was inconsistent with his earlier evidence that he remained at his local address until he left Bangladesh; and

• independent evidence, which was not disputed by the applicant, states that it is easy to obtain fraudulent documents in Bangladesh.

The Tribunal found it implausible that the applicant had a genuine fear for his life.  The applicant was well educated, he admitted that he was doing well in his employment and had money.  He was also able to practise his religion regularly.  Accordingly the Tribunal was not satisfied that the applicant was subjected to treatment amounting to persecution in the past or that he faces treatment amounting to persecution for reasons of his religion.

The Tribunal concluded:

“Whilst I accept that as a member of a minority group in Bangladesh Mr Barua has a genuine subjective fear of being subjected to discrimination and targeted in communal violence ... I am not satisfied that there is a real chance that he in fact faces treatment amounting to persecution.  I am therefore not satisfied that his fear is a well-founded fear of being persecuted within the meaning of the Convention.”

Submissions of the Parties

In relation to the first ground of the application that the procedures that were required by the Act to be observed by the RRT in connection with the making of the decision were not observed, Mr Barua who acted for himself, made a number of submission.

• That the Tribunal had failed to set out its findings on the issue of whether the applicant was a target for extortion because he was a Buddhist who could pay the extortion while Muslims of similar standing would not be targeted.  In fact, as the respondent submitted, the Tribunal dealt comprehensively with the incident where Mr Barua was kidnapped and held for ransom in 1987 at page 12 of its decision.  In my view what Mr Barua complains of is the conclusion drawn by the Tribunal and not the procedures by which it came to that conclusion.  This ground is not therefore made out and there is no error of law.

• In relation to the second ground, the applicant’s submission that the decision involved an error of law because it incorrectly interpreted the applicable law or incorrectly applied the law to the facts as found, the particulars supplied to support this ground referred to the fact that the Tribunal came to the conclusion that the applicant did not face a real chance of persecution for a convention reason, as in the Tribunal’s view, he was not a major figure in his place of residence.  Again, as submitted by the respondent, this is a challenge to the merits of the conclusion drawn by the Tribunal.  No error of law is demonstrated in so doing.

The second particular supporting this ground is that the Tribunal made a legal error in its assumption that documents which was submitted by the applicant were fraudulent documents and unacceptable as evidence.  The Tribunal dealt in great detail with a range of documentary material tendered by the applicant.  It concluded, and in my view was entitled to conclude, that some of these documents appeared to have been typed on the same typewriter, with the same phraseology and the same spelling mistakes, although they purported to come from different institutions in Bangladesh.  The Tribunal also had regard to the fact that independent material had concluded that there was a high level of fraud in relation to documentary material in Bangladesh.  In relation to an arrest warrant which was tendered by the applicant, it came to the conclusion that it was unlikely to be genuine because the Tribunal disbelieved the applicant’s evidence that he knew of the existence of the warrant before he left Bangladesh.  Of significance was that the document bore a date after he had arrived in Australia.  The respondent submitted that the Tribunal was not required, in the context of the evidence before it in this case, to seek additional assistance from an expert as to the documents authenticity.  The matters taken into account by the Tribunal were obvious on the face of the documents.  I accept this submission and conclude that there was no legal error in the manner in which the Tribunal dealt with these matters.

• The third ground of the review was the decision was induced or effected by fraud or by actual bias.  The particulars given by the applicant for this ground repeat to some extent those provided for the second ground namely the findings as to the documents.  In my view the Tribunal was entitled to make these findings and no ground of bias or fraud is made out.

• The fourth ground was that there was no evidence or other material to justify the making of the decision.  The particulars in support of this ground once again refer to the findings about English language errors, a challenge to the expert opinions and general reports relied on in the decision and the finding that the applicant’s return to Bangladesh from Thailand (which he did at a period before he came to Australia) was a matter which indicated that he did not have a genuine fear for his life in the short term.

Although the applicant divided his amended claim into a number of parts his claim really amounts to what the applicant described as an objection to the “unsatisfactory way” in which the Tribunal handled his case.  The RRT is only obliged to and as the respondent submitted, did give proper weight to any credible account of the objective circumstances described by the applicant.  It made a decision by reference to broad principles which are generally accepted within the international community as determined under Australian law.  The decision referred to the relevant cases in respect of systematic persecution.  The Tribunal was required to do and did consider whether the applicant could be the subject of persecution by reason of his membership of the Buddhist religion from the perspective of whether Buddists as a religious group were the subject of systematic harassment, such that it constituted persecution of the applicant for a convention based reason and was entitled to come to the conclusion that this applicant would not suffer some serious punishment or penalty or some significant detriment or disadvantage.

At the hearing of this matter the applicant purported to tender further materials in support of his claim.  He indicated he wanted the Court to refer these materials to the RRT for further consideration.  This application was rejected.  His submissions, which canvassed the grounds in the amended application, amounted to no more than a challenge to the merits of the case as found by the Tribunal.  In my view none of the grounds as particularised are made out and a reading of the decision as a whole reveals no error of law which would justify the orders sought.  The application is dismissed with costs.

I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor

Associate:

Dated:             10 June 1998
_

Self representation by applicant:
Counsel for the Respondent:	A.F. Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 June 1998
Date of Judgment:	10 June 1998