Hamid v Minister for Immigration and Multcultural Affairs

[2000] FCA 1620

FEDERAL COURT OF AUSTRALIA

Hamid v Minister for Immigration & Multicultural Affairs [2000] FCA 1620

MOHAMMAD ABDUL HAMID v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 845 OF 2000

STONE J
13 NOVEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 845 OF 2000

BETWEEN:	MOHAMMAD ABDUL HAMID APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	13 NOVEMBER 2000
WHERE MADE:	SYDNEY

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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 845 OF 2000

BETWEEN:	MOHAMMAD ABDUL HAMID APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	13 NOVEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, Mr Mohammad Abdul Hamid, applied to the respondent (“the Minister”) for a protection visa (class AZ) to remain in Australia on about 21 December 1998. His application was refused by the Minister’s delegate (“Delegate”) on 16 February 1999. On 24 February 1999, Mr Hamid applied to the Refugee Review Tribunal (“Tribunal”) for a review of the Delegate’s decision. This refusal was upheld by the Tribunal in a decision dated 23 June 2000 and handed down on 13 July 2000. Mr Hamid now applies under s 476(1) of the Migration Act1958 (Cth) (“the Act”) to this Court for review of the Tribunal’s decision .

2. After considering a valid application for a visa and being satisfied that the criteria in s 65 of the Act have been met, the Minister must grant a visa to remain in Australia. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied.

3. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as “amended” by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, “the Convention”).  As a party to the Convention, Australia has undertaken protection obligations to a person who is a “refugee” as defined in the Convention.

4. Article 1A(2) of the Convention provides that a refugee is any 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.”

5. Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (“Regulations”), which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

6. The Tribunal’s decision is a “judicially reviewable decision” (s 475(1)(b) of the Act); the Applicant was entitled to apply to this Court for review of it on certain grounds (s 476); and the Court has the jurisdiction provided by Part 8 of the Act, but no other jurisdiction with respect to it (ss 485, 486).

   REASONS FOR DECISION OF THE TRIBUNAL

7. The Tribunal commenced its reasons for decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of a “refugee”.  It then turned to consider Mr Hamid’s claims and evidence.

   Claims and evidence

8. The applicant is a citizen of Bangladesh.  He claimed before the Delegate and the Tribunal that he had a well founded fear of being persecuted in Bangladesh by reason of his political opinion, namely his membership and support of the Bangladesh Freedom Party (“Party”).

9. He claimed that he joined the Party in 1995 and became close to the leaders of the Party.  He said that he was appointed office secretary of the Party in about 1996 and organising secretary of a local committee about a year later.  He claimed that he was appointed to the central committee of the Party towards the end of 1996 or 1997.  This latter claim was not in Mr Hamid’s original application to the Minister.  Mr Hamid claimed that, as part of his involvement with the Party, he led demonstrations, handed out leaflets and made speeches criticising the Awami League.

10. Mr Hamid gave evidence to the Tribunal in relation to two false cases that he claimed had been made against him.  The first charge relates to a demonstration in which Mr Hamid participated in November 1997.  The second charge relates to the possession of bombs and the destruction of property in October 1997.  In his application, Mr Hamid had stated that he was charged with being an associate with the assassins who killed Sheik Mogibur Rahman. However, at the Tribunal hearing, Mr Hamid said that this was a mistake and that he had not been charged in relation to the assassination.

11. The Applicant claimed that, because he felt his life was in danger, he went into hiding in Chittagong and Comilla in about November 1997 and escaped Bangladesh on a student visa to Australia on 6 November 1998.

12. The Tribunal was of the view that “the applicant’s claims are bogus and contrived for the purposes of the application”.  The Tribunal gave six reasons for reaching this conclusion which I have summarised below.

    (a)    The application was not specific about the activities of the applicant, including his employment.  The Tribunal noted that the major claim that was contained in the applicant’s statements, being that he was accused of being associated with the assassins of the founder of the Awami League, was retracted by the applicant at the hearing.

    (b)   A document provided by Mr Hamid’s adviser states that Mr Hamid is an “Executive member of the central committee of the Freedom Party”.  This matter was not mentioned in either of the statutory declarations declared by Mr Hamid on 18 December 1998 and 14 June 2000.

    (c)    The Tribunal asked the applicant various questions about the Party and found that he had a poor knowledge of the party’s activities and was unable to give details of important events that had occurred to the Party and its leaders.

    (d)   The Tribunal found that Mr Hamid’s account of the false charges he faced was implausible, inconsistent, vague and not credible.  In particular, Mr Hamid claimed that one of the false cases related to his involvement in a demonstration of the Party on 7 November 1997, at a time when, according to an independent source, the Party was keeping a low profile.  The Tribunal also pointed out that, if there were in fact outstanding charges against Mr Hamid, he would have found it difficult to travel with a passport in his own name.

    (e)    The Tribunal felt that the evidence given by Mr Hamid in relation to periods he spent in hiding was unconvincing and contradictory.

    On those bases, the Tribunal made the following findings:

    (a)    Mr Hamid was not a member of the Party or the Party’s Executive;

    (b)   Mr Hamid did not lead demonstrations in 1997 or distribute leaflets; and

    (c)    the documents provided by Mr Hamid in relation to the false cases made against him and his involvement in the party were concocted.  The Tribunal commented in its reasons for decision that many of the documents provided by Mr Hamid were inexplicably similar to those provided by his friend and contradicted his own evidence.  The Tribunal cited independent sources confirming that false documentation was common amongst immigration applications from Bangladesh.

13. The Tribunal concluded that Mr Hamid did not have a well founded fear of persecution by reason of his political opinion or for any other Convention related claim.  The Tribunal was accordingly not satisfied that Mr Hamid was a person to whom Australia has protection obligations under the Convention.

    APPLICATION FOR AN ORDER OF REVIEW

14. In his application to this Court, Mr Hamid sets out the following grounds for review:

    “A.     The decision of the tribunal required the tribunal to make finding as to whether I have the real chance of persecution if I return to Bangladesh
    B. In the section 476(1)(g) of the Migration Act stated that there was no evidence or other material to justify the making of the decision. In the decision of my case the tribunal has not followed it. RRT was prejudiced and biased.
    C.       Tribunal decision does not exercise the procedures that were required by this Act or the regulations to be observed in connection of the making of the decision were not observed accordance to the section 476(1)(a) of the Migration Act.
    D.       Tribunal decision was not made on authentic information, which is totally different from the real existing situation in Bangladesh.”
    [Emphasis in original]

    SUBMISSIONS

15. In his application the applicant relies on:

    (a)s 476(1)(g) of the Act, which provides a ground of review where “there was no evidence or other material to justify the making of the decision”; and

    (b)s 476(1)(a), which provides a ground of review where the Tribunal does not observe the procedures that required by the Act and the Regulations.

16. He further alleges that information about the situation in Bangladesh on which the Tribunal relied does not correctly reflect the position in that country.

17. The Applicant did not make written submissions.  As he was not represented, he was referred by the Court Registry to the Refugee Legal Advice Scheme.  Mr Hamid told the Court today that he did not require legal assistance and therefore did not pursue the opportunity provided under the scheme. In court today, oral submissions were made on       Mr Hamid’s behalf by Mr Amin, who stated that he was a registered migration agent.  Those submissions repeated the claims made in the application and alleged that the Tribunal had come to the wrong conclusion.  There was no challenge to the Tribunal’s reasons that might come within the sections on which the applicant relies in his application.

18. Mr Robert Beech-Jones, counsel for the Minister, submits that the Tribunal’s decision turned upon its rejection of Mr Hamid’s credibility as a witness and supports that position with detailed references to the Tribunal’s reasons.  He submits, relying on the decision of McHugh J in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423, 74 ALJR 405 at 417, that a finding of credibility is a function of the decision maker and is therefore not reviewable by this Court.

    REASONS FOR DECISION

19. It is well established that the jurisdiction of this Court to review decisions of the Refugee Review Tribunal is extremely limited.  Neither the terms of the application nor the submissions made on behalf of the applicant appear to have appreciated this point.  I have already summarised the facts on which the Tribunal based its reasons.  The Tribunal rejected the applicant’s evidence; it did not believe him.  I agree with Mr Beech-Jones’s submission that “there was an abundance of material” on which the Tribunal could rely to take the view it did.  Whether or not this Court would have come to the same conclusion is irrelevant.  This Court has no power to substitute its view of the facts for that of the Tribunal.

20. Although the applicant has alleged errors of law which would invoke the Court’s jurisdiction, he has done no more than that.  The errors are not particularised and in reviewing the papers I can find no evidence of any error of law.  Therefore I must dismiss the application.

21. Accordingly, I make the following orders:

    (1)       The application is dismissed.

    (2)       The applicant is to pay the respondent’s costs.

I certify that the preceding twenty one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             14 November 2000

Counsel for the Applicant:	The applicant appeared in person, assisted by Mr B Amin, migration agent, and an interpreter
Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	13 November 2000
Date of Judgment:	13 November 2000