Mia, Mayen Uddin v Minister for Immigration and Multicultural Affairs

[1998] FCA 1585

FEDERAL COURT OF AUSTRALIA

MIGRATION - appeal from Refugee Review Tribunal decision refusing protection visa – whether procedures required by the Migration Act 1958 (Cth) to be observed in connection with the making of the decision were observed

Migration Act 1958 (Cth), ss 476(1)(a), 476(2)

MAYEN UDDIN MIA v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 604 of 1998

O’CONNOR J

SYDNEY

11 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 604  of   1998

BETWEEN:	MAYEN UDDIN MIA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		O'CONNOR J
DATE OF ORDER:		11 DECEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

The application be dismissed with 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 604 of 1998

BETWEEN:	MAYEN UDDIN MIA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	O'CONNOR J
DATE:	11 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application for the review of a decision of a member of the Refugee Review Tribunal (“the Tribunal”) dated 25 May 1998 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa.

The basis of this written application (as summarised) is that the applicant is not satisfied with the refusal of his application for a protection visa as he believes that the primary case officer as well as the case officer of the Tribunal failed to properly assess the applicant’s situation in Bangladesh including the applicant’s attempt to establish his fears of prosecution and possibly facing life imprisonment on return to Bangladesh. He did not, however, refer to the statutory bases for review found in s 476 of the Migration Act 1958 (Cth) (“the Act”).

LEGISLATIVE CONTEXT

The possible relevant provisions of the Act in respect of this application are as follows:

“Application for review

476.  (1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

…

(2)  The following are not grounds upon which an application may be made under subsection (1):

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.”

A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is a 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.”

The applicant has made no application for specific relief.

FACTUAL BACKGROUND

The applicant is a “southern Pakistani” born in 1964 in Bangladesh and is a Muslim.  He was educated for 16 years and has a Masters Degree in Commerce obtained from Dhaka University in 1988.

The applicant claims that from 1989 until 1995 he was a self employed shopkeeper in Noakhali, Bangladesh.

The applicant’s visa application states that the applicant is married and describes himself as an “executive director” of “Akhtar Furnishers Limited” and that he was employed there for eight years.  The applicant produced various documents supporting his employment.

The applicant claims his life in Bangladesh had been effected by his heritage.  His father became a “displaced person” at the time of partition from Pakistan in 1947 and as a consequence he was considered by the local populace as a “migrant or a stranger”.  The applicant’s unwillingness to return to Bangladesh “is informed by his past experiences of discrimination for a reason related to his ethnic background”.

At the Tribunal hearing the applicant claimed not to be a Bangladesh citizen and that his citizenship documents were obtained for a sum of money and were fake. He claimed he was a Bihari and that he never wanted to take out citizenship in Bangladesh.  The applicant was asked by the Tribunal to give some oral evidence in Bihari but his attempt was slow and stilted.  The applicant then made further submissions to the Tribunal highlighting the problems he faced in Bangladesh since the death of his father.  In one incident the applicant was threatened with a firearm and had money taken from his shop.  He claims he was subject to “communal feelings” and people would taunt him outside his house.  He couldn’t find a job.  He claims his parents had problems all the time.  They were harassed and threatened with their money being taken.

The applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa on 25 November 1996.  The delegate’s decision refusing the application was made on 17 April 1997.  The applicant applied for a review of that decision by the Tribunal on 12 May 1997.  The application for review was rejected by the Tribunal and his application for protection visa refused on 25 May 1998.

TRIBUNAL’S DECISION

At the request of the applicant two separate extensions of time were given to him to provide documents obtained from Bangladesh which would confirm his status and support his case.  As at the date of the Tribunal’s decision no documents had been forwarded to it.

The Tribunal made the following findings.

• In relation to whether the applicant was Bihari the Tribunal was prepared to accept that although the applicant’s ability to speak Bihari was stilted, he was of that ethnic background - his fluency in Bengali and his statements that this was what was spoken at home and the language of his education indicating however that he had assimilated into Bangladesh.

• In relation to the applicant’s claim that he is stateless and that he is not a Bangladeshi citizen the Tribunal did not accept as true the applicant’s claims of not being a citizen of Bangladesh.  The Tribunal relied on the documentary evidence which indicated that the applicant was a Bangladeshi citizen and independent evidence indicating that Bangladeshi citizenship was available to people like this applicant and that many took it up and are still doing so.  The Tribunal found that the applicant was a citizen of Bangladesh.

• In relation to the applicant’s claim that he faced problems in Bangladesh because of his background the Tribunal said that the applicant was educated to Masters Degree level at university and had done well in business.  The Tribunal noted that the documents provided with the applicant’s visa application were a comprehensive set of documents detailing the applicant’s employment in a furniture business in Dhaka.  Significantly they detail his commencing in employment at the time of his finishing university.  The Tribunal found that the applicant’s visa documents were true and that he was a businessman from Dhaka.

• In relation to the applicant’s fears of what would happen if he returned to Bangladesh the Tribunal did not accept these claims as being true.  The Tribunal considered that the applicant fabricated this for the purpose of advancing his application.   The applicant had demonstrated, on the accepted evidence, his ability to not only live an ordinary life in Bangladesh, but to have done well.  This did not reveal someone who, has faced or fears persecution.

The Tribunal found that the applicant was not a credible witness and did not have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

At the hearing the applicant represented himself, aided by a Bengali interpreter.  He referred to three bases on which he sought to challenge the Tribunal’s decision.

1. That he had not been given sufficient time to prepare and present his case at the Tribunal.

1. That the Tribunal did not understand the situation in Bangladesh for people like himself, and

1. That he had had difficulty understanding the interpreter.

In relation to the first submission, if established this would be reviewable pursuant to s 476(1)(a) provided that it was not a case of a general denial of natural justice (s 476(2) precluding review on that ground) but the proper procedures of the Tribunal were not followed.

The respondent provided the following chronology (which was not disputed by the applicant):

“(a)10.11.96         Applicant arrives in Australia on Bangladeshi passport no. LO344707.

(b)20.11.96         Applicant made his application for a Class 866 Protection Visa through Adrian Joel & Co., Solicitors and Immigration Consultants.

(c)17.4.97           Decision of Department of Immigration & Multicultural Affairs to refuse a protection visa.

(d)12.5.97           Application for review to Refugee Review Tribunal.  Although it said “refer attachments”, no attachments were attached.

(e)20.2.98           RRT letter to Applicant saying it has looked at all the papers and is not prepared to make a favourable decision on that information alone and inviting the Applicant to attend the Tribunal to give oral evidence.

(f)20.2.98           RRT letter to Applicant stating no attachments were with the application and requesting they be provided within 14 days.

(g)4.3.98             Applicant indicates he does not want a hearing, but submits a letter in which he states:  “I am very afraid of that I have not enough associate documents with me at present time … Nevertheless I will provide all documents related to my refugee status in Bangladesh and my sufferings and torture of life during that period.  My wife, staying in Bangladesh and was unable to leave Bangladesh, are going to send all documents to me as soon as possible.  It will take few more months to reach here due to the communication gap between me and my wife, time gap and stress up on my family by the Bangladeshi authority to collect it.  Under these circumstances  I beg your kind and mercy enough that you would consider my situation and grant me few months more for hearing.”

(h)6.3.98             RRT refuses request for adjournment.

(i)25.3.98           Applicant attends hearing and claims he can get a certificate from the United Nations certifying his status in Bangladesh.  “He had not obtained anything up until now as he ‘had things on my mind’.  His agent in Bangladesh has said it will take three months to obtain the documents.”  (decision p.7).

Applicant requested time to have documents obtained from Bangladesh.  The Tribunal gave him until 25 April 1998.

(h)8.5.98             Applicant makes request for further extension as he did not receive his documents from overseas.

(i)11.5.98           Extension granted until 25 May 1998.

(j)25.5.98           RRT decision.  As at date of decision no documents had been forwarded to the RRT.

(k)19.6.98           Application for review filed in Federal Court.”

At the date of the Court hearing on 7 December 1998, no documents were available and the applicant requested more time to procure them.

This chronology shows that requests for time were responded to by the Tribunal and the applicant was given an opportunity to procure evidence.

The second submission in relation to country information is also not established.   The decision refers to five independent sources to come to the conclusions that it did.   In relation to the difficulties with the interpreter raised at the hearing for the first time, these were not made known to the Tribunal at the time of that hearing.  An interpreter of the Bengali language was provided.

This decision turns on the fact that the Tribunal did not accept this applicant’s claims that he had problems in Bangladesh because he was a Bihari and found that the evidence of problems was fabricated.  Given appropriate time, the applicant provided no further information.  The Tribunal did, however, accept the material presented in the applicant’s original visa application and that material established he was a citizen of Bangladesh who had done well in business.   These findings as to credit were for the Tribunal to make and, according to established principle, would rarely be challenged in judicial review.  No basis for doing so has been presented in this case.

The application is dismissed with costs. 

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor

Associate:

Dated:            11 December 1998

Applicant:	Self-Represented
Counsel for the Respondent:	V Hartstein with K Sant
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 December 1998
Date of Judgment:	11 December 1998