Bhuiyan v Minister for Immigration and Multicultural Affairs

[1999] FCA 1800

FEDERAL COURT OF AUSTRALIA

Bhuiyan v Minister for Immigration & Multicultural Affairs [1999] FCA 1800

BHUIYAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 832 of 1999

JUDGE:         MATHEWS J

DATE:           14 DECEMBER 1999

PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 832 OF 1999

BETWEEN:	BHUIYAN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MATHEWS J
DATE OF ORDER:	14 DECEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is refused.

2.        The applicant to pay the respondent's 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 832 OF 1999

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

JUDGE:	MATHEWS J
DATE:	14 DECEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, Alamgir Hossain Bhuiyan, seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 July 1999 in which the Tribunal affirmed a decision of the respondent's delegate to refuse the applicant's application for a protection visa.

2. The applicant was born on 1 December 1971 in Bangladesh.  After completing his schooling he obtained a Bachelor of Science degree from the University of Dhaka in Bangladesh in 1992.  In November 1994 he left Bangladesh and travelled to South Africa on a passport issued in his correct name.  He sought refugee status in South Africa but his application was refused.

3. On 31 May 1997 the applicant left South Africa and arrived in Australia five days later, using a South African passport issued on 2 August 1996 under the name Rana Hashmi.  He said that he obtained this passport after losing his Bangladesh passport whilst he was in South Africa,

4. On 22 August 1997 the applicant applied for a protection visa.  He indicated in his application that he would provide a declaration in support of his claim for refugee status, but none was produced.  On 16 September 1997 his application was refused by the respondent’s delegate.  On 8 October 1997 an application for review was lodged with the Tribunal.  On 29 July 1999 this application was rejected.  It is from this decision that the applicant now seeks judicial review.

5. The criteria for the grant of a protection visa are to be found in s 36(2) of the Migration Act (Cth) 1958 (“the Act”).  This section requires that the applicant for a protection visa be a person to whom Australia has protection obligations under the Refugee Convention as amended by the Refugee's Protocol.  Article 1 of the Convention defined a refugee as a person who:

   “Owing to a 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…”

6. The grounds upon which the applicant claims to be entitled to refugee status were contained in a statement made by him and furnished to the Tribunal, and also in the applicant's evidence before the Tribunal.  No transcript was available of the proceedings before the Tribunal, but a detailed account of the applicant's evidence appears in the Tribunal's decision.

7. The applicant claims to be a Bihari.  Bihari Muslims migrated to what was then East Pakistan during the partition of India in 1947.  After the civil war of 1971, East Pakistan became an independent nation, Bangladesh.  Biharis had supported Pakistan during the war and ever since have been treated as a separate ethnic community within Bangladesh.

8. According to the USA Department of State Country Report on Human Rights Practices in 1998, there are about 240,000 Biharis living in various camps around Bangladesh.  These are the Biharis who have declined to accept Bangaldesh citizenship.  They await repatriation to Pakistan.  Their language is Urdu, whereas the general language of Bangladesh is Bengali.

9. The material indicates that some Biharis have accepted Bangaldesh citizenship.  Those who have done so, according to the country information which was before the Tribunal, have integrated into the broader Bangladesh society without any serious problems.

10. The applicant, in his statement to the Tribunal and in his later evidence, said that he was a Bihari.  He was born in Naranyangonj where his father was a businessman.  During and after the “liberation” (as the applicant described it) his father's properties were looted and burnt and his businesses destroyed.  In 1972, when the applicant was only a year old, the family had to leave its home at Naranyangonj and move to what the applicant described as a “concentration camp” near Dhaka.  His address there was described as Hut No 13, Line No 7, 10-A Mirpur, Dhaka.

11. The applicant successfully completed his secondary schooling in 1988. In 1992, as already mentioned, he obtained a Bachelor of Science degree from the University of Dhaka.  In his statement to the Tribunal he gave the following account:

    “After completing my formal education I became frustrated as I did not have a job at that time.  This situation insisted me to be involved in the movements for repatriation of the Biharis from Bangladesh to Pakistan.  My responsibility in such movements was to organize meetings and discussions with the members of the Bihari Community living within the Concentration camp to make sure that the repatriation agreement between the governments of Bangladesh and Pakistan is implemented.

    Though I was arrested on 18 July 1994 under the Arms Act and detained by the special power act 1974 through a false case and remained in the custody.  They arrested me because I was the spokesman of Biharis.  I was always active to ensure welfare of our own people.

    I was released on bail on 24 October 1994.  The overall situation compelled me to leave the country for safe and secure life.  Finally I left Bangladesh in November for South Africa.  I reached Johannesburg on 29 November 1994 where I stayed until 28 May 1997.”

12. In his evidence before the Tribunal, the applicant gave further details of these matters.  He said that about a year after completing university, when he was frustrated at his inability to find work, he joined the SPGRP, which is a major opposition group in Bangladesh.  He said that the group was led by Nasim Khan and that it had about 300 ordinary members and 12 committee members.  After about a year as an ordinary member he became a committee member.  He was responsible for organising meetings and discussions.  The applicant said his problems commenced after he and others organised a meeting of the group outside the Mirpur Community Centre.  Some members were armed with hockey sticks and other weapons, although not guns. He himself was unarmed.  The police knew the group was organising an illegal meeting and came to stop them.  The people did not disperse, but began trying to advance, pushing the police.  There was an exchange of fire, or bomb throwing, and one of the demonstrators was killed.  A few people, including the applicant, were arrested.  He was charged with offences under the Arms Act and the Special Powers Act.  Later, in October 1994, he was released on bail.  His lawyer told him that his case was not going well and he should flee the country, so he obtained a false passport by bribing officials and left for South Africa.

13. The applicant produced various documents to the Tribunal in support of his claim that he was charged in 1994 as a result of the demonstration he referred to.  These included documents apparently emanating from official Bangladeshi sources, such as police and the courts, confirming that the applicant was arrested in July 1994 and granted bail on 24 October of that year.  His address on these documents was given as Hut 13, Lane 7, Section 10, Mirpur.  He also produced a letter dated 2 February 1999, said to be from his attorney, (coincidentally with a very similar name, Delower Hossain Bhuiyan) who was practising in Dhaka.  This letter included the following statements.

    “The learned chief Metropolitan Magistrate, Dhaka cancelled your Bail and issued a warrant of arrest against you on 28/11/94 and Bangladesh Police forces have been searching you every nock and corner, to secure your arrest.  I think, if you are arrested, you will be harassed, tortured and persecuted lethally and diabolically and sent to jail custody for unlimited period.  You have no safety and security in Bangladesh.

    I am dealing your case and this is pending in the learned District Judge, Dhaka on trial.  The position of your case is very bad.  All witnesses of your case are ready to go give their evidences as against you as per instructions of the prosecution.

    So, I suggest you, not to come back to Bangladesh until my further instruction.”

14. The applicant claimed that he had a well founded fear of persecution in Bangladesh for convention reasons namely, his race, membership of a particular social group and political opinion.

15. The Tribunal did not find the applicant's account to be credible.  It did not accept that he was, as he had claimed, a stateless Bihari.  It found that the documents produced by the applicant were fraudulent.  In any event, the Tribunal said, even if it accepted the applicant's account of his background and of his clashes with the police, it would not have found that the applicant was at risk of persecution for a convention reason.  In this regard, the Tribunal made the following comments in its decision:

    “According to his own evidence a number of demonstrators in his group were armed with sticks and some kind of explosive devises [sic].  And when the police arrived they refused to disperse and instead tried to push past the police who were blocking their way.  In these circumstances it is not surprising that arrests were made and charges laid and it is for the Bangladeshi courts to determine the guilt or innocence of those involved.  As noted above, the evidence before me indicates that Bangladeshi Courts operate in an independent manner and there is thus no reason to suppose that Mr Bhuiyan would not receive a fair hearing if he faced the claimed charges.”

16. The Tribunal thus affirmed the decision not to grant the applicant a protection visa.

17. There was considerable evidence before the Tribunal to support its finding that the applicant's account lacked credibility.  In his original application for a protection visa, the applicant said that he was born at Naranyangonj and remained living there until he left Bangladesh in November 1994.  There was no mention of the ‘camp’ at Mirpur.  He sought to explain this discrepancy by saying that the migration agent who assisted him complete the application form had got it wrong.  But the application was accompanied by a letter from the applicant's mother, apparently dated 11 October 1993, in which she confirmed that the applicant's birth date was 1 December 1971.  Significantly, she gave her nationality as Bangladeshi and her address as at Naranyangonj, being the address which the applicant told the Tribunal the family had been forced to abandon when he was a baby.

18. Moreover the applicant, in his original application, had described both his “ethnic group” and his “citizenship from birth” as Bangladesh, and said that his languages were English and Bengali.  There was no reference anywhere, until he submitted his statement to the Tribunal considerably later, of his being a Bihari who spoke Urdu.  There was thus, in my view, ample material from which the Tribunal could conclude, as it did, that the applicant's claims lacked credibility, and by extension, that the various documents which he produced in support of his claim were false.  In relation to these documents, the Tribunal noted evidence from DFAT and from the US Department of State that fraudulent police and court documents are easily obtained in Bangladesh.  Moreover the Tribunal noted that the contents of some of these documents lacked credibility.

19. The grounds of the applicant's application to this court are five.  The first two grounds can be dealt with together.  They are:

    (1)“The applicant has produced evidence to the RRT supporting the applicant's argument that he will be persecuted if he returns to Bangladesh;”

    (2)“Section 476(1)(g) of the Migration Act states that there was no evidence or other material to justify the making of the decision.  In the decision of the applicant's case the Tribunal has not followed section 476(1)(g).”

20. Section 476(1)(g) provides, as a ground for review, that there was no evidence or other material to justify the making of the decision.  However, as I have already mentioned, there was ample evidence upon which the Tribunal could reach the decision which it did as to the credibility of the applicant's account, notwithstanding the documents presented by him.  In my view no ground has been made out under s 476(1)(g).

21. The third ground of application to this court is:

    (3)“In the tribunal's decision there is an error of law.  The Tribunal did not investigate any documents.  Without any proper investigation the Tribunal dismissed the applicant's review application.”

22. That the decision involved an error of law is a ground for review under s 476(1)(e) of the Act.  It must be an error involving an incorrect interpretation of the applicable law, or an incorrect application of the law to the facts as found.  In this case, the ground relied upon by the applicant is that the Tribunal failed to investigate the documents emanating from Bangladesh before making its finding as to their falsity.

23. In the circumstances of this case there was, in my view, no obligation upon the Tribunal to investigate the veracity of these documents.  The Tribunal is an inquisitorial body and is entitled to make inquiries on its own behest in appropriate cases.  However, as the Tribunal itself observed, it would have been extremely difficult to ascertain the veracity or otherwise of the documents produced by the applicant.  Moreover there was ample material, within the contents of the documents, from which the Tribunal was entitled to find that the documents were false.  Very significantly, they all gave the applicant’s address at the camp at Mirpur.  Given the other material before it, the Tribunal was entitled to regard this as a fictitious address.

24. In any event, the falsity or otherwise of these documents clearly did not affect the Tribunal's ultimate finding.  For the Tribunal found, as already mentioned, that even if the applicant's accounts were true, and the documents were credible, there was still insufficient evidence to establish that the applicant had a well-founded fear of persecution for a Convention reason.  In my view this finding is well-based.  Accordingly, although the Tribunal's finding relating to the falsity of the documents was material to its ultimate finding, it was not necessary for it.

25. The fourth matter mentioned as a ground in the application is:

    (4)“The Tribunal's decision was not made in accordance with the United Nations Convention 1951 and 1967 protocol relating to the status of Refugees where Australia has an obligation of a party.”

26. I can find no ground of review in s 476 which is relevant to this complaint..

27. The fifth matter raised by the applicant is:

    (5)“The Tribunal failed to act according to the substantial justice and the merits of the case were ignored by the Tribunal Member.  His case was not treated fairly which was breach of section 420 of the Migration Act.”

28. It is now clear, since Eshetu v Minister for Immigration and Multicultural Affairs (1999) 162 ALR 577, that s 420 of the Act does not require the observation of procedures under the Act, so that a failure to observe them amounts to a ground of review under section 476(1)(a). Accordingly this ground must also fail.

29. The applicant is unrepresented.  Today he has handed up a submission, apparently made with the assistance of a lawyer, as it refers to various sections of the Migration Act and to a number of decided cases.  It again complains about the Tribunal's rejection of the applicant's account that he was a Bihari.  It criticises the Tribunal for not accepting the documents produced by the applicant as supporting his case.  The submission continues:

    “Had these documents been accepted as genuine they would have gone a long way to substantiating my claims.  The RRT did not reject them illogically or perversely (given the futures of them referred to at reasons page 12; however, it expressly declined to have the authenticity of the documents investigated despite an offer by me to pay the costs of such investigation (reasons page 6).  That refusal, in relation to material which was clearly important if authentic, arguably amounts to a failure by the RRT properly to perform its statutory function. The RRT is a semi-inquisitorial body which often undertakes its own investigation and which, given the nature of the cases before it, should take reasonable steps to ascertain the truth rather than requiring rigorous proof of all matters by applicants.

    Arguably, therefore, the RRT has not complied with its duty under s 420(2)(b) of the Act to ‘act according to substantial justice and the merits of the case’  ”

30. However as the submission itself goes on to comment, a failure to observe the procedures set out in s 420 does not constitute an error of law or indeed any other ground under s 476.  Accordingly the matters raised by the applicant in his submission do not in my view advance his case.

31. For the reasons I have given, I find that there was no reviewable error or law on the part of the Tribunal and I therefore refuse the application.  I order the applicant to pay the respondent's costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.

Associate:

Dated:             21 December 1999

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Applicant:
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 December 1999
Date of Judgment:	14 December 1999