Barua v Minister for Immigration and Multicultural Affairs

[2000] FCA 364

FEDERAL COURT OF AUSTRALIA

Barua v Minister for Immigration & Multicultural Affairs

[2000] FCA 364

SUBIMAL BARUA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1390 of 1999

LEHANE J
20 MARCH 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1390 OF 1999

BETWEEN:	SUBIMAL BARUA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LEHANE J
DATE OF ORDER:	20 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the proceeding.

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	N 1390 OF 1999

BETWEEN:	SUBIMAL BARUA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LEHANE J
DATE:	20 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under Pt 8 of the Migration Act 1958 (Cth) for judicial review of a decision of the Refugee Review Tribunal dated 4 November 1999. By its decision, the Tribunal affirmed a decision of a delegate of the Minister dated 1 August 1997 not to grant the applicant a protection visa.

2. The applicant is a citizen of Bangladesh who arrived in Australia on 7 April 1997 on a Bangladeshi passport issued to him in South Korea in May 1996.  The Tribunal accepted that the applicant is a member of the Barua tribe from the Hill Tracts area of Bangladesh and that he became, and (at the time of the hearing before the Tribunal) remained, a Buddhist monk.  The applicant claimed that he had been subjected to harassment, threats, detention and ill treatment amounting to persecution both by fundamentalist Muslims and by the Bangladeshi authorities, including the army. That happened, the applicant claimed, because of his activities in propagating Buddhism and more particularly because, as he claimed, he was a member of the Buddhist organisation known as Shanti Bahini, for which he acted as an informer and as a publicity officer.

3. The harassment to which the applicant referred began, he claimed, while he was at school.  It continued after he left school, particularly once he was recruited as an informer for Shanti Bahini.  He claimed, for example, that he was arrested in company with others in October 1988, held for eighteen days and tortured.  He claimed that as a result of his activities – particularly those involving Shanti Bahini – that the military took his family's land in October 1989 and that it has not to this day been returned.

4. He claimed that in May 1990 he was again arrested but managed to escape after about eleven days.  He claimed that in 1992 Muslims made death threats against him on account of his activities in preaching Buddhism.  He claimed to have been injured by Muslims and police when a religious meeting was attacked in November 1995, and to have been injured again in a further attack by military and police upon a meeting in January 1996.  He produced to the Tribunal a number of documents on which he relied as corroboration of his account in relation to his membership of Shanti Bahini, his activities as a Buddhist monk, his charging and arrest, the circumstances in which he obtained passports, and personal details such as his date of birth and his education at school, university and subsequently at a polytechnic.

5. The Tribunal, in lengthy reasons, recited the evidence given by the applicant and referred to a number of the documents which the applicant had provided.  It considered, again at considerable length, a substantial number of reports and articles from a number of sources as to conditions in Bangladesh.  The section of its reasons in which it deals with that country information extends over about five pages.  The Tribunal concluded that it was not prepared to accept substantial parts of the account given by the applicant or to accept as authentic a number of documents which the applicant produced.  It gave reasons for its conclusions in this respect.  For example, the applicant had claimed that an initial application he made for a passport in 1993 had been refused and that he had not succeeded in obtaining a passport until 1996.  The Tribunal noted the information recorded in a passport which had been issued to the applicant in 1994 and that the applicant, when confronted with that information, said that he was confused.  In those circumstances, the Tribunal did not accept that the applicant had been refused a passport in 1993.  This was a topic which the applicant canvassed in submissions before me, and I shall return to it shortly.

6. Additionally – and, again, the applicant canvassed aspects of this matter before me – the Tribunal concluded that documents from two Buddhist monasteries appeared to have been forged because it was evident that they had been typed on the same typewriter.  The Tribunal did not accept the applicant's explanation, which he repeated before me, that the monasteries were in close proximity and it was quite likely that one would have borrowed a typewriter belonging to the other.

7. A third instance on which the Tribunal relied was the circumstances of the lodging with the Tribunal of a document described as a personal declaration in relation to a passport application.  In fact, three copies had been lodged successively.  The later copies bore a signature, purportedly that of a magistrate, which the copy originally submitted did not; the Tribunal regarded that as evidence that the document was fabricated.  The applicant offered, before the Tribunal and again today, the explanation that someone in his house had added the signature, possibly out of a wish to harm him by undermining his application for a protection visa.

8. The Tribunal also had particular difficulties, which it discussed in its reasons, with the account given by the applicant, both in his initial application for a protection visa and before the Tribunal.  The applicant had given evidence that there was a warrant for his arrest, that he had been detained and ill‑treated and that he was on a list of those supporting the Shanti Bahini.  Nevertheless, the Tribunal noted, he had during the period concerned attended university substantially full time, had subsequently undertaken a diploma course at the Chittagong Polytechnic and then had worked as a chef.  Additionally, the applicant had obtained a passport issued in his name and had, on more than one occasion, both departed from and returned through the international airport at Dhaka using that passport.

9. In those circumstances, the Tribunal did not accept the applicant's account of his activities and of the authorities' interest in him.  In short, the Tribunal found it inconceivable that the applicant would have been able, without interference, to undertake the activities which he did undertake, in his own name, if the authorities were indeed interested in him and particularly if there were indeed a warrant outstanding for his arrest.  The Tribunal did not accept the applicant's account of his membership of Shanti Bahini or that he acted as an informant for that organisation, or his account of the persecution and harassment which he claimed had followed from it.

10. The Tribunal proceeded to consider whether the applicant might have been of interest to the authorities simply because he was a Buddhist monk or because he was a member of the Barua tribe.  Again, the Tribunal took account of the fact that the applicant had been educated, had worked and had lived in various places in Bangladesh, together with country information, as leading to the conclusion that the applicant had not faced and would not face persecution in Bangladesh by reason of his being a Barua or by reason of his religion.

11. That is a brief and, in some respects, incomplete account of both the evidence that was before the Tribunal and the Tribunal's reasons for affirming the decision of the delegate; but it is, I think, sufficient to enable me to consider the issues which arise on this application for judicial review of the Tribunal’s decision.

12. The applicant prepared his application for review himself and has represented himself with the assistance of an interpreter. He gives as the reason he is aggrieved by the decision of the Tribunal that the Tribunal member wrongly did not accept his evidence and as the grounds of his application that he had suffered and was likely to suffer persecution because of the circumstances reflected in the documents which he provided to the Tribunal and of which he gave evidence to the Tribunal. The application does not in fact, either in terms or in substance, state any of the grounds on which judicial review is available under s 476 of the Migration Act, nor is it by any means obvious that any such ground is available to the applicant.  The applicant referred me to a number of matters in the course of his oral submissions.  He gave, for example, an explanation of the circumstance that he was issued with a passport after, as he claims, his first application for a passport was rejected.  He claimed that when the matter was put to him by the Tribunal member there was a degree of mis-communication arising in part from inadequacy of interpretation.  He explained that when he first applied for a passport in his own name, having given accurate particulars of his date of birth and address, his application was rejected.  His later application, he claimed, was successful only because he gave an incorrect date of birth and an incorrect address, though his correct name.

13. He repeated, as I have mentioned, his explanation of the circumstances in which the signature appeared on the later copies of the personal declaration accompanying the passport application.  He also repeated his explanation of why documents allegedly from two separate monasteries appeared to have been produced using the same typewriter, explaining to me that things were not as easy in Bangladesh as they are in Australia and that it was to be expected that a poorer monastery might well, on occasion, borrow equipment owned by a somewhat better off one, particularly if the two were in reasonable proximity.

14. The applicant claimed also that the circumstance that one was admitted to a college, school or university in one's own name did not indicate that one was not liable to persecution or harassment or that the authorities had no interest in one; rather, as I understood the applicant, the existence of political groupings in such institutions meant that one had there a degree of protection. 

15. The applicant also repeated, and in certain respects gave additional detail, of particular incidents which he claimed had occurred.  For example, he referred to the circumstances of his first detention and to the final occasion when a meeting had been ambushed by armed police and he had been shot, as he said, in the ankle: that, he claimed, was the incident which led him to leave Bangladesh and seek refuge outside the country.

16. It is fair to say, I think, that all matters put to me by the applicant related to aspects of his circumstances and to things which had happened to him in Bangladesh of which he had given evidence before the Tribunal.  Except possibly in one respect, it could not be said that the Tribunal did not consider the matters to which the applicant referred.  The applicant's complaint was that the Tribunal had been wrong in rejecting his account and refusing to accept the authenticity of the documents he produced.  The applicant also claimed that the Tribunal member had confused him by asking a series of questions in a short period and interrupting his answers, so that he had had some difficulty in giving explanations through an interpreter.

17. The one matter as to which no explicit finding is made within the Tribunal's reasons is the claimed occupation by the army of the family's land.  But the Tribunal refers to the applicant's evidence about the occupation of the land and records that it was said to have occurred because of the authorities’ adverse interest in the applicant's activities, particularly on behalf Shanti Bahini.  While it does not make any specific finding about the taking of the land, the Tribunal does explicitly find that it ought not accept the applicant's account of his membership and activities on behalf of Shanti Bahini.  In these circumstances, I do not think that the Tribunal can be said to have made a reviewable error by failing to make an explicit finding as to whether or not the land was, as the applicant claimed, taken from his family by the army.

18. That aside, the applicant faces the difficulties that he has not identified in his application an available ground of review but also, and more significantly, that the complaints which he made before me about the Tribunal's decision all relate to its findings of fact. I have considered the Tribunal's quite detailed reasons and I have read a good deal of the material which was before the Tribunal. The Court has no authority to reconsider the Tribunal's findings of fact but only to intervene upon one of the grounds of review specified in s 476 of the Migration Act.  I am unable to see that the Tribunal has made a reviewable error.  Whether or not its findings of fact are correct (and I say nothing about that), they are, in my view, findings which were open on the material before it.  And, in my view, the Tribunal has shown no misunderstanding of the relevant legal principles and has made no error in applying those legal principles to its findings of fact.  There is no basis, in my opinion, for a conclusion on the material before me that the Tribunal failed to follow a procedure which it is required by law to follow, nor is any other reviewable error apparent.

19. It follows that the application must be dismissed and I so order.  The Minister, as is his practice, has asked that I make an order that the applicant pay his costs.  The applicant's ability to meet such an order is not of itself a reason for refusing to grant the Minister the order he seeks.  There is, I think, no reason in the present circumstances which should lead to any other order.  Accordingly, I order that the applicant pay the respondent's costs of the proceeding.  Thus, the orders of the Court are that:

    1.The application be dismissed.

    2.The applicant pay the respondent's costs of the proceeding.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate:

Dated:             3 April 2000

Counsel for the Applicant:	The applicant appeared in person, with an interpreter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 March 2000
Date of Judgment:	20 March 2000