Bhuiyan v Minister for Immigration and Multicultural Affairs

[2000] FCA 1921

FEDERAL COURT OF AUSTRALIA

Bhuiyan v Minister for Immigration & Multicultural Affairs [2000] FCA 1921

SHALIM BHUIYAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 623 OF 2000

TAMBERLIN J
SYDNEY
15 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 623 OF 2000

BETWEEN:	SHALIM BHUIYAN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	15 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the applicant is a husband who together with his wife and their child arrived in Australia on 12 October 1998.  The husband is a citizen of Bangladesh and his wife and child are citizens of Malaysia.  On 11 November 1998 they lodged applications for protection visas on the basis that they were refugees within the well known definition under the Convention.

2. On 23 December a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the protection visas.  On 15 January an application was made for review of that decision by the Refugee Review Tribunal (“the RRT”).  The matter was duly heard by the RRT and a decision was made on 1 May 2000 affirming the decision not to grant protection visas.  From that decision an application for review pursuant to the Migration Act 1958 (“the Act”) has been brought to this Court.

3. Unfortunately the applicant appears in person to prosecute the case and it is not perfectly clear what precise grounds are relied on. The application for an order of review states that the grounds of the application are that the RRT exercised power under section 430(1) of the Act. The applicant believes that this was an error of law because it involved an incorrect interpretation of the law and there was an error of law in the application of the law to the facts of the case. These are general claims and do not really clarify what the applicant says is erroneous in the decision of the RRT. This is understandable in the light of his not having legal representation.

4. However, I do have some written submissions before me which have been typed and produced to the court.  They consist of a history of the matter and then a statement that a satisfactory amount of evidence had been placed before the RRT in relation to false allegations made against the applicant by the present government of Bangladesh as a result of which he became wanted by the police for prosecution.  He says that his life is in danger and believes that his fears of persecution on return are well founded.  The submissions then refer to the findings of the RRT which record that the governing political party, namely the Awami League, has an extremely hostile attitude to the Freedom Party arising from an assassination.  It is said the Freedom Party activists became subject to continuous harassment and faced mandatory imprisonment under legislation.

5. There are other references to the political situation in Bangladesh and to background material which was before the RRT. There is also a reference to the evidence of the applicant in his statutory declaration as to his fears of persecution if returned to Bangladesh. There is then a general outline of the law as stated by decisions of the High Court and an assertion that the decision of the RRT is wrong and that he is entitled to review under section 476(1)(e) of the Act. That subsection provides that judicial review is available where the decision involved an error of law involving an incorrect interpretation of the law or an incorrect application of the law to the facts.

6. The applicant has not identified any specific error in the approach taken by the RRT. This court is not charged with the function of re-hearing the substance and merits of the applicant's case but is closely confined to considering whether any grounds under the Act for judicial review have been made out. These grounds do not include re-hearing or re-canvassing the facts before the RRT.

7. In the findings of the RRT it is stated that the applicant's claims lack credibility in a number of respects.  Details of these respects are set out and reference is made to the country information which is relied on.  In some respects the statements of the applicant are accepted by the RRT but in most material aspects the evidence is not accepted and there are strong findings of lack of credibility.  These are not made in the abstract but are made by reference to specific grounds and to what the decision-maker considers to be plausible or credible assertions.

8. In its conclusion the RRT states that the independent evidence establishes that the Awami League does not regard the Freedom Party as a political threat given the losses it sustained in the 1996 election and that it looks elsewhere for political targets.  The decision-maker finds that the applicant had a low profile politically and otherwise.  It refers to his absence from Bangladesh over a substantial period of time and makes a finding that his party has not, from 1996, been strong enough to merit attention from the larger parties.

9. The RRT is not satisfied that the Awami League targeted him or placed false charges against him or raided his home and terrorised his family members.  There is also a finding that the decision-maker was not satisfied that if the applicant is returned to Bangladesh such incidence may occur in the future. 

10. The statement made by the decision-maker is that

    "Given that I do not accept that these things happened I am not satisfied that they will occur in the future."

11. On a literal reading of this paragraph it could be said that perhaps the decision-maker had proceeded on the basis of too high a standard in seeking to be satisfied that the similar events would occur in the future.  However, I think that to adopt such an approach would be contrary to the principles expressed in Minister for Immigration and Ethnic Affairsv Wu Shan Liang (1996) 185 CLR 259 and I do not consider therefore that this can be said to amount to error.

12. In any event the decision-maker rejected the assertions that these events to which I have just referred ever occurred.

13. Nothing has been said which persuades me, nor is there any indication on a close reading of the findings and reasons in the context of the whole decision of the RRT that there has been any reviewable error.  Accordingly this being the case the application must be dismissed with costs.

14. The application is dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice .

Associate:

Dated:             22 December 2000

Counsel for the Applicant:
The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 December 2000
Date of Judgment:	15 December 2000