NAOB v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1178

FEDERAL COURT OF AUSTRALIA

NAOB v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1178

NAOB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 680 of 2002

WILCOX J
12 SEPTEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N680 of 2002

BETWEEN:	NAOB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	12 SEPTEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the costs of the respondent.

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	N680 of 2002

BETWEEN:	NAOB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	12 SEPTEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application for review of a decision of the Refugee Review Tribunal.  The Tribunal upheld a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing to issue a protection visa.  The applicant claimed refugee status on the basis of fear of persecution on religious grounds if he returned to his native country, Bangladesh.  The applicant told the Tribunal that in March 1994 he converted to being an Ahmadi Muslim. 

2. The Tribunal member, in his reasons for decision, referred to a number of items in “country reports” in which the position of Ahmadis in Bangladesh was discussed.  According to one of these items, there are about 100,000 Ahmadi Muslims in Bangladesh.  They are regarded by some orthodox Muslims as heretics.  The country information referred to occasional incidents of harassment of Ahmadis in Bangladesh. 

3. The applicant told me he had given information to the Tribunal about incidents that had occurred in various regions of Bangladesh.  Amongst these incidents was one which occurred in 1997, when a mosque was attacked by Sunni Muslim mullahs and six people were killed.

4. The Tribunal member accepted that the applicant was an Ahmadi Muslim.  He also accepted that, despite the Bangladeshi Constitutional guarantee of freedom of religion, there is, in fact, low level harassment of religious minorities, including Ahmadis.  However, he also found that the police generally intervened promptly to protect members of religious minorities.  He noted a 1998 statement on behalf of the Ahmadia Association in Bangladesh that the:

   “government gives us security and protection whenever we need it.”

5. The Tribunal member also noted that during recent disturbances, including those referred to by the applicant, the authorities deployed police and ordered a nationwide security alert and that all major Parliamentary parties condemned the attacks.

6. The Tribunal member referred, in some detail, to the history claimed by the applicant.  He accepted much of this history but felt that it did not disclose a pattern of persecution.  After referring to matters personal to the applicant, the Tribunal member said this:

   “When these matters are taken into account with what the Ahmadia Association in Bangladesh itself has to say in relation to the authorities offering protection when it is required I do not accept that the applicant’s fear is well-founded.  I find that there is a remote and insubstantial chance of him suffering harm and I also find that there is effective State protection for the Ahmadi community in Bangladesh.”

7. On the basis of this statement, the Tribunal member went on to find that the applicant does not have a well-founded fear of persecution for a Convention reason.

8. The applicant has made clear to me today that he disagrees with the Tribunal’s conclusion.  He feels the Tribunal member failed to give sufficient weight to the instances that he cited, of harassment in various parts of Bangladesh.  He said he felt some of the published materials were written by people who did not have a detailed knowledge of the actual position, on the ground, in Bangladesh.  For these reasons, the applicant submitted, in effect, that the Tribunal member took too optimistic a view of his situation if he was returned to Bangladesh.

9. I would like to make clear to the applicant that I fully understand the arguments that he puts, which I have summarised.  There may be merit in the criticisms that he makes of the Tribunal’s factual findings.  I do not wish to express any view about that matter because it is not a matter for the Court to determine.  The task of finding the facts, relative to a particular application for a protection visa, is given to the Tribunal and not to the Court.  The Court has power to intervene and set aside the Tribunal’s decision only where it is persuaded of the existence of at least one of a very small number of grounds.  The available grounds do not include disagreement with the Tribunal about the facts of a case.  Even if I reached a strong view that the Tribunal was wrong, in the present case, in respect of some aspect of its factual findings, that would not entitle me to set aside its decision. 

10. The applicant’s filed application for review recognises the limitations on the Court’s power.  The application makes a claim that the Tribunal was guilty of actual bias in reaching its decision.  If a Tribunal is influenced by bias in making a decision, then the Tribunal does not act in good faith.  Although the Court’s available grounds of review are now severely limited, they do include power to review a decision where there is a lack of good faith.  So if the applicant could persuade me that the Tribunal was biased, then this would be a ground for setting aside the Tribunal’s decision and having the matter reconsidered by a different member of the Tribunal.  The question then, for me, is whether there is material which would satisfy me the Tribunal was biased.  I emphasise it is not enough for the applicant to show that the decision went against him.  The Tribunal has to make a judgment and sometimes the correct unbiased judgment will be to reject a claim for refugee status.

11. The test of bias is whether or not the decision maker was prepared to be open minded and to reach a conclusion either way, depending on the strength of the evidence and the arguments put to the Tribunal. 

12. I see no basis for doubting that the Tribunal was prepared to be open minded in approaching this case.  No complaint has been made to me about the way in which the Tribunal member conducted the hearing.  The complaint made to me focuses on the conclusions reached by the Tribunal.  As I say, it is not my task to determine whether or not I agree with the Tribunal’s conclusions of fact.  However, I need to consider whether the Tribunal considered the claims made by the applicant and gave comprehensible reasons for coming to the conclusions that it did. 

13. It is true that the Tribunal did not deal with each of the regional incidents that were apparently recounted to it by the applicant at the hearing.  However, I do not think that this, in itself, indicates bias.  The Tribunal may well have preferred to go to a mix of reports, by independent people, about conditions in Bangladesh rather than place reliance upon particular incidents recounted by an applicant for refugee status.  The reasons for decision disclose that the Tribunal searched for, found, and quoted from a number of independent studies of the situation, in Bangladesh, of religious minorities including Ahmadis.  That painstaking approach is not indicative of a closed mind. 

14. The applicant submitted the Tribunal was biased because it made the decision “in a hurry”.  However, there was a delay of over two months between the date of the oral hearing and the date of the decision.  There was ample opportunity for the Tribunal to consider the matters put to it by the applicant, gather information and reflect upon what would be the correct decision.  I see no basis for suggesting that the decision was so rushed as to be insufficiently considered. 

15. In my opinion, this is not a case in which bias is demonstrated.  I repeat that I understand the applicant is unhappy about the factual findings.  I understand his point of view.  I repeat it is not for me to come to a conclusion about the factual findings.  The only question for me is whether bias is demonstrated.  As it is not, I have no option other than to dismiss the application.

16. The order of the Court is that the application be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            12 September 2002

The applicant appeared in person.
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	12 September 2002