Mahmud v Minister for Immigration and Multicultural Affairs

[2000] FCA 1625

FEDERAL COURT OF AUSTRALIA

Mahmud v Minister for Immigration & Multicultural Affairs [2000] FCA 1625

NASIR MAHMUD V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 614 of 2000

STONE J
18 OCTOBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 614 OF 2000

BETWEEN:	NASIR MAHMUD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	18 OCTOBER 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 614 OF 2000

BETWEEN:	NASIR MAHMUD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	18 OCTOBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, Mr Mahmud, applied to the respondent, the Minister for Immigration and Multicultural Affairs (“Minister”), for a protection visa to remain in Australia. His application was refused by the Minister's delegate (“Delegate”) and this refusal was upheld by the Refugee Review Tribunal (“Tribunal”). Mr Mahmud now applies under section 476(1) of the Migration Act 1958 (Cth) (“the Act”) for review of the Tribunal's decision.

2. The applicant was entitled to apply to this court for a review of that decision on certain grounds and the court has jurisdiction provided by Part 8 of the Act but no other jurisdiction with respect to that decision.

3. The applicant, a national of Bangladesh, arrived in Australia on 15 May 1998. The applicant had been living in Saudi Arabia since December 1991. On 25 June 1998 the applicant lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs under the Act. On 26 August 1998 the Delegate refused to grant a protection visa and on 23 September 1998 the applicant sought review of that decision by the Tribunal. The Tribunal conducted a hearing on 17 May 2000 and on the same day affirmed the Delegates decision. On 13 June 2000, the applicant filed his application in this court for review of the Tribunal's decision.

   THE REASONS FOR THE DECISION OF THE TRIBUNAL

4. The Tribunal referred to the procedural background, the legislative framework, and the law relating to the definition of refugee in the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (“the Convention”).  It then considered that the applicant's claims and evidence.

5. Before the Tribunal the applicant claimed that he feared persecution in Bangladesh for the convention related reason of political opinion.  He claimed in his primary application for a protection visa to have joined the district branch of the Bangladesh National Party (“the BNP”) in 1987.  The applicant later claimed in his submission to the Tribunal that he joined the BNP in 1989.

6. The applicant has not held any office within that party.  The applicant claimed to be a “primary” member of the BNP.  The Tribunal stated that the applicant's membership of the BNP was most likely an ordinary membership as at the time he joined the party in 1989 he was unemployed, did not stand for office within the party and was less than 25 years of age.  The Tribunal did accept that the applicant preferred the BNP to any other political party in Bangladesh but it did not accept that he was a “primary” member.

7. The BNP held Government in Bangladesh until the general elections on 12 June 1996 when it was defeated by the Awami League.  The Tribunal referred to the Bangladesh chapter of the US Department of State’s Country Report on Human Rights Practices for 1998 which indicated that, since the 1996 election, there have been substantiated accounts of inter party violence and that sections of the Awami League have exploited their influence to attack and frame political enemies.  Before the Tribunal, the applicant claimed that he was one such enemy of the Awami League and that he would be targeted for serious mistreatment if he returned to Bangladesh.  He also claimed that the Awami League had manipulated the legal process to have the police falsely charge him in relation to crimes he did not commit and had engaged thugs to commit violent assaults upon him.

8. The applicant claimed that charges had been made against him in early 1990.  The Tribunal noted several inconsistencies in the evidence given by the applicant in relation to these charges and his subsequent period in hiding.

9. In his primary application for a protection visa the applicant stated that he resided at the same address from 1988 until his departure from Bangladesh for Saudi Arabia in December 1991, with the exception of several periods in hiding in order to avoid trouble with the Awami League.  He specified that one of these periods was for two months in early 1990.

10. In his submission to the Tribunal dated 12 May 2000, the applicant claimed that he went into hiding for four months in early 1990 as soon as the false charges were lodged.  He later gave evidence that the charges were laid in March 1990 and that he was living in hiding between August and November 1990.  At one stage during his oral testimony before the Tribunal, the applicant claimed that he had returned home in November 1990.  Later he changed his reply stating that he hid after November 1990 without being more specific.  The Tribunal was not satisfied by the explanation given by the applicant as to why he did not go into hiding immediately in March 1990 when the charges were issued.  At the oral hearing, the Tribunal asked the applicant why he did not go into hiding until August 1990 to which the applicant replied that the Awami League had told his neighbours that they were seeking to kill him thereby blurring the issue of false charges.

11. Further, the RRT was not satisfied with the explanation given by the applicant as to why he returned home in November 1990.  The RRT asked the applicant why he returned home in November 1990, to which the applicant replied that he had learned during his absence from home that the charges against him had been thrown out of court.  The RRT noted that the applicant had not stated this previously and was unable to explain why he had previously omitted it.  The RRT put it to the applicant that he had claimed elsewhere that there were still charges against him dating back to early 1990.  The applicant replied that these were new charges.  The applicant was unable to confirm for some time whether the charges presently against him were new or the same as before, but eventually said that they were the same.  The applicant was not able to explain to the satisfaction of the RRT the process by which the same charges could be re-laid against him after they had been thrown out by a court.

12. The Tribunal did not accept the applicant's evidence in relation to his claim that he spent several periods in hiding.  It noted that the variation in the applicant's evidence would have been less important to its decision to reject the applicant's evidence in relation to this matter if the claimed motivations for going into and out of hiding had been, "remotely persuasive".  The Tribunal found that they were not.  The Tribunal commented that the applicant did not satisfactorily explain why the Awami League resorted to criminal attacks against him when they were already able to manipulate the legal system.

13. The applicant produced to the Tribunal a medical certificate dated 1999 from a Bangladesh clinic testifying to his having presented with the wound below his knee caused by a blunt weapon on 5 March 1990 at 4.30 pm.  The Tribunal commented that it would be beyond medical competence to state the cause of the wound and concluded that the medical certificate was contrived.  The Tribunal accepted that it was possible the applicant was assaulted on 5 March 1990 but it did not accept that there was any evidence to prove this.

14. The Tribunal noted that the applicant had departed Bangladesh legally on a passport which the applicant did not claim to have difficulty obtaining, other than asking an agent to process his application.  Although the applicant claimed that he needed to bribe airport officials to let him leave Bangladesh, he claimed that this was done by his agent.  The applicant entered Saudi Arabia in December 1991 with a contract to work there.

15. The Tribunal did not accept the applicant as a credible witness and found his claims to be inconsistent with the fact that he resided at home for much of the time between 1986 and December 1991 without being arrested or killed.  The Tribunal held that the applicant was not a refugee within the meaning of the Convention because he was unlikely to be persecuted by reason of his political opinion.  In reaching this conclusion, the Tribunal noted the applicant was an ordinary member of the BNP who had been out of the culture of election campaigns and political clashes since December 1991, which includes the period in which the BNP was in power and the period subsequent to the 1996 elections during which the Awami League had instituted reprisals against his political foes.

    APPLICATION FOR AN ORDER OF REVIEW

16. In Mr Mahmud's application for order of review he lists the following grounds:

    “(1)     The applicant was a political activist and was compelled to leave the country due to his real fear of persecution.

    (2) The Tribunal made errors in deciding the fate of the applicant's claim in accordance with section 476(1)(e) of the Migration Act 1958.

    (3) The Tribunal decision was not justifiable which falls in accordance with section 476(1)(g) of the Migration Act 1958.

    (4) The Tribunal decision was improper, did not take relevant consideration in deciding this case which is an error accordingly section 476(3)(d) and (e) of the Migration Act 1958.

    (5) The Tribunal exercised its power is not based on the merits of the applicant's case. As an error was occurred in accordance with section 467(3)(c) of the Migration Act 1958.”

    REASONING ON THE APPLICATION FOR AN ORDER OF REVIEW

17. These grounds allege errors of law such as would invoke the court's jurisdiction.  However, the errors are not particularised and in reviewing the papers I can find no evidence of any error of law.  The Tribunal's decision was based on an issue of credibility, the Tribunal found:

    “His evidence is overwhelmingly clearly the product of fabrication, forgery and last-minute embellishments.  His claims about facing both arrest and extrajudicial murder at the same time were highly unconvincing, particularly in his failure to illustrate how these two disparate strategies could be pursued by the same political foes.”

18. This court has no power to substitute its view of the facts for that of the Tribunal. Accordingly I make the following orders:

    (1)That the application be dismissed.

    (2)       That the applicant pay the respondent's costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             13 November 2000

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 October 2000
Date of Judgment:	18 October 2000