Paul v Minister for Immigration and Multicultural Affairs

[1999] FCA 614

FEDERAL COURT OF AUSTRALIA

Paul v Minister for Immigration & Multicultural Affairs [1999] FCA 614

MIGRATION – appeal from refusal of RRT to allow application for asylum – citizen of Bangladesh - prominent in a Hindu Buddhist Christian Society which opposed Muslim fundamentalism in Bangladesh – whether there are any grounds on which the Tribunal’s decision should be overturned.

Migration Act 1958 (Cth)

Chan v Minister for Immigration and Ethnic Affairs ([1989-90] 169 CLR 379) followed
Minister for Immigration and Multicultural Affairs v Guo ([1997] 144 ALR 567) followed
Periannam Murugasu v Minister for Immigration and Ethnic Affairs (unreported, Wilcox J 28 July 1987)  followed

GOUTAM KUMAR PAUL V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 355 OF 1998

THE HON JUSTICE MARCUS EINFELD AO
SYDNEY

11 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 355 OF 1998

BETWEEN:	GOUTAM KUMAR PAUL Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE OF ORDER:	11 MAY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application be dismissed.

Note:    Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 355 OF 1998

BETWEEN:	GOUTAM KUMAR PAUL Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	11 MAY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Bangladesh, has applied for asylum in Australia as a refugee.  He arrived in Australia on 7 December 1996 and on 12 December made his application although he made no specific claims at that time.  The requisite visa was refused on 21 March 1997 and on 21 April the applicant asked the Refugee Review Tribunal to review that decision.  On 31 March 1998 the Tribunal affirmed the refusal and the applicant has now applied to this Court to overturn that decision.

   Evidence before the Tribunal

2. From his written and oral evidence to the Tribunal, it may be discerned that the applicant is 32 years old who speaks only Bengali and is a practising Hindu.  He lived in India from 1993 until he came to Australia, travelling here on an Indian passport with a false date of birth, which he obtained by a bribe.  He married in 1994 and his wife and child live in India with her family who are naturalised Indians.  The applicant told the Tribunal of a number of occasions in the 1980s and early 90s where he and his family were discriminated against or harassed as Hindus in Bangladesh.  He especially focussed on events in 1991-2 after he became prominent in a Hindu Buddhist Christian Society which opposed Muslim fundamentalism in Bangladesh and assisted those in the non-Muslim communities who suffered from harassment, discrimination and violence.  He himself was threatened and assaulted several times and was either forced to withdraw official complaints about his treatment or nothing was done in response to them.

3. The applicant told the Tribunal that there was a strong backlash against Hindus in Bangladesh after a prominent mosque was destroyed in India by Hindu extremists in December 1992.  Bangladeshi Hindus were killed and raped, their houses were looted and burned down, and some of their temples were destroyed.  One of the applicant’s distant relatives and some friends were killed in the rioting, and his restaurant and family business was vandalised as were other family properties.  No protection was afforded by the authorities and the family received no reparations.

4. The Tribunal was informed that in response to this crisis and the perceived dangers it posed for them, the applicant’s family left Bangladesh on 9 December 1992 but he stayed behind to participate in protests against Muslim extremism.  On 18 December he and another man were arrested and charged with being a public nuisance arising from what was assumed to be offensive protest activities.  They were detained for 2 nights, interrogated and beaten.  On 21 December the applicant was granted bail and the case was adjourned for one month. The applicant’s brother was assaulted by thugs because of the applicant’s activities although the brother did not undertake or participate in political or religious activities at all.

5. The applicant said that these occurrences made him fearful that he himself might be killed by extremists and he did not believe that he would receive a fair trial from Muslim Judges on evidence given by Muslim police.  Accordingly, on 29 December 1992 he left Bangladesh and went to Calcutta where his family was already living.  They were already apprehensive of being deported back to Bangladesh as the Indian Government was undertaking a campaign to find illegal Bangladeshi migrants for that purpose.  They therefore changed to another address in Calcutta where they lived peacefully until the end of 1994 when the applicant returned to Bangladesh to marry.  He stayed two weeks after which he and his new wife returned to Calcutta but in December they moved to Bombay because of increased targeting of illegal immigrants in Calcutta.  The applicant obtained work but when the targeting spread to Bombay, the couple returned to Calcutta.  They had a son on 13 June 1995.

6. The Tribunal was told that on 14 August 1995 Mr & Mrs Paul and their baby went to visit his sister in law in a town on the India/Bangladesh border.  While there, the sister in law’s home was raided by police and the Pauls were identified as illegal immigrants.  They and 25 others were arrested and handed over to the Bangladesh border guards who detained them and sexually assaulted Mrs Paul, who is now 26, and two other women.

7. Within 48 hours of their release, the applicant and his family were back in Calcutta where he obtained work at a cousin’s restaurant.  In continuous fear of revelation in India and deportation back to Bangladesh, the applicant decided in late 1996 to come to Australia on his by then renewed false Indian passport.

8. The applicant told the Tribunal that he went to Nepal in September and December 1997 to meet his wife as they were greatly missing each other.  On each occasion he travelled on his fraudulently obtained Indian passport in which visas were stamped by the Bangladesh High Commission in Canberra.  His travel arrangements had him going via Bangladesh and not via India or directly because, as he said, he feared that the Indian and Nepalese authorities would spot the false passport.  There was no problem in Bangladesh because the authorities there thought he was an Indian and because he did not go near his home town.

   The applicant’s case for refugee status

9. The applicant told the Tribunal that he came to Australia for peace and safety, that there is no protection of minorities in Bangladesh, and that if he goes back there he will be targeted by Muslim radicals.  His son’s schooling would be disrupted and his wife at risk of assault.  He fears harassment because of his agitation for minority rights and death at any time of religious agitation or social lawlessness.  He said that if he could not stay in Australia he would commit suicide as he had no other choice.

   The Tribunal’s assessment of the evidence

10. The Tribunal had problems with the applicant’s credibility, not least because his written statement to it was in some parts virtually identical and in others bore striking similarities to a statement given to the Tribunal by another applicant who was a Bangladeshi Christian.  However, it wisely put these views to one side and proceeded to consider the substance of the applicant’s case.  Moreover, it accepted most of the factual allegations made although it did not always accept them in full or attribute to them the connotation based on the Geneva Convention on Refugees which the applicant asserted.

11. The Tribunal accepted, as is undoubtedly the fact, that Bangladesh is a Muslim country but that although religious minorities have constitutional legitimacy and protection, there is discrimination and harassment against non-Muslims and that there has been significant periodic communal violence against Hindus in the last 2 decades.  It accepted that the applicant has witnessed and been a victim of some of this violence including the vandalisation of the family business after the Mosque incident in December 1992.  These events were undoubtedly frightening and generated by anti-Hindu passions.  The Tribunal also accepted that Islamic extremists have violently attacked women, religious minorities and others and that the Government has sometimes failed to denounce, investigate and prosecute perpetrators of these attacks.

12. The Tribunal specifically found that:

    1.although the applicant’s Indian passport was obtained fraudulently it appears to be genuine

    2.the similarities between his statement and the other Bangladeshi applicant’s statement are too great to be dismissed as coincidental

    3.there were too many inconsistencies between his oral evidence and his written statement about physical assaults on him in 1991 to accept that they or all of them occurred

    4.the applicant’s life has not been threatened

    5.much of the discrimination against the family was  not because they were Hindus

    6.the sexual assault on Mrs Paul by Bangladeshi border guards did not occur because she was a Hindu or because she was married to the applicant

    7.attacks on the family business including extortion were not Hindu-based but because in a country where almost half the population is poverty-stricken, the applicant as a businessman was perceived to have money

    8.the fact that the applicant went back to Bangladesh for 2 weeks to be married in 1994 and went there twice in 1997 supposedly on the way to and from Nepal (which the Tribunal did not believe he actually entered) indicates that he was not in fear of persecution or worse

    9.electoral support for the party which is most closely associated with Islamic fundamentalism has fallen significantly in recent times

    The Tribunal’s conclusions

13. The Tribunal accordingly concluded that the applicant has not been subject to any treatment in Bangladesh which amounts to Convention-based persecution and that there was no evidence to suggest that his Hindu faith or any of his activities would make him more likely to be targeted, or if harmed, that he would not be protected by the Bangladesh authorities.  Accordingly it found that the applicant did not have a real chance of persecution by Muslim fundamentalists and was therefore not entitled to refugee status.

    Application for Review

14. Parliament has laid down that the Court’s role in this type of case is merely to examine any relevant issues of law which arise.  The Court’s views about the facts, including such matters as whether the applicant’s alleged fear of persecution is genuine and well-founded and whether it would have granted the applicant the visa he was seeking, are irrelevant.  Although there is reference in the application for review to unfairness and disinterest by the Tribunal in the applicant’s claim, I do not take that as an assertion of bias.  As I read it, the only matter of law raised in the application for review is the assertion that the Tribunal did not permit the applicant to present his case properly because the interpreter provided for the hearing was not competent and he therefore did not understand the proceedings and was not understood by the Tribunal.  However, no matters were identified which the Tribunal’s decision misstated, either in the application for review itself or in this court hearing where the applicant also appeared to be having difficulty making himself understood to the interpreter.  In order to ensure that this situation was not productive of any injustice, I gave the applicant some time after the hearing to put any further submissions in writing as to why the Tribunal’s decision should be overturned.  Nothing was received.

    Consideration

15. The Tribunal’s decision basically consisted of a series of findings of fact.  Apart from the legal situation that this Court has no power to overturn any factual findings, I can see nothing in the Tribunal’s handling of the issues as to suggest that it erred in any respect.  It was of course bound to consider the case both as a series of separate claims and as an accumulation of all the separate claims.  It appears to have done so.  The only legal question that emerged from the hearing in this Court arises from the factual findings that the applicant has suffered violence and some persecution as a Hindu.  However, in Periannam Murugasu v Minister for Immigration and Ethnic Affairs (unreported 28 July 1987), Justice Wilcox held that because persecution involves systematic conduct aimed at an individual or at a group of people: Chan v Minister for Immigration and Ethnic Affairs [1989-90] 169 CLR 379; Minister for Immigration and Multicultural Affairs v Guo [1997] 144 ALR 567,

    it is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances.

16. His Honour went on to say that it is only in situations where

    a community is being systematically harassed to such a degree that the word persecution is apt

    that an individual member of that community may have a well-founded fear of persecution.

17. The Tribunal found that the evidence did not meet this standard and I can detect no error of law in that conclusion.

18. The application for review is dismissed.

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

Associate:

Dated:             11 May 1999

The applicant appeared in person.
Solicitor for the Respondent:	Mr G. Peek (Australian Government Solicitor)
Date of Hearing:	10 July 1998
Written submissions completed	29 July 1998
Date of Judgment:	11 May 1999