Saha v Minister for Immigration and Multicultural Affairs

[2001] FCA 530

FEDERAL COURT OF AUSTRALIA

Saha v Minister for Immigration & Multicultural Affairs [2001] FCA 530

RUPAK SAHA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1284 of 2000

LINDGREN J
26 APRIL 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1284 OF 2000

BETWEEN:	RUPAK SAHA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	26 APRIL 2001
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 1284 OF 2000

BETWEEN:	RUPAK SAHA APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	26 APRIL 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Section 29 of the Migration Act 1958 (Cth) (“the Act”) provides that subject to the Act, the respondent (“the Minister”) may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia or to remain in Australia or to do both.

2. The applicant (“Mr Saha”) applies under subs 476(1) of the Act for review of a decision of the Refugee Review Tribunal (“RRT”) affirming a decision of the Minister’s delegate (“the Delegate”) not to grant him a protection visa permitting him to remain in Australia. It is not in dispute that the Minister delegated all relevant powers to the Delegate pursuant to s 496 of the Act.

3. Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. The validity of Mr Saha’s application for the visa is not in question. 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. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it 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”).  Australia is a party to 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 clause 866.221 of Schedule 2 to the Migration Regulations 1994, which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

6. The RRT’s decision was a “judicially-reviewable decision” (par 475(1)(b) of the Act); Mr Saha 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).

7. Mr Saha’s case as presented to the Tribunal, but not as made in his original application for the visa, was that he was outside the country of his nationality, Bangladesh, and was unwilling to return to that country because of a well-founded fear he had of being persecuted for reason of religion.

   PROCEDURAL BACKGROUND

8. Mr Saha arrived in Australia on 3 June 1998.  On 14 July 1998 he applied with the help of Mr Boni Amin of “Little n’ Bons’ Associates” of 18/36 Bland Street, Ashfield, (Migration Agent Registration Number 95945) for the protection visa.  The Delegate refused the application on 28 July 1998.  On 26 August 1998 Mr Saha applied to the RRT for review of the Delegate’s decision.  The RRT conducted a hearing on 16 October 2000.  On 24 October the RRT affirmed the Delegate's decision.  On 1 December 2000 Mr Saha filed his application in this Court for review of the RRT’s decision.

   BACKGROUND FACTS AND REASONS FOR DECISION OF THE RRT

9. The one grievance which Mr Saha has is that before the RRT he was offered an interpreter who was of the Muslim faith and who was a “high profile” person in the Bangladeshi Islamic community in Sydney.  It is not suggested that the interpreter who was offered was not competent.  But in order to understand Mr Saha’s objection to the particular interpreter who was provided by the RRT it is necessary to appreciate the nature of his claim of persecution on religious grounds.

10. I will outline the facts in chronological sequence.  As I said earlier, Mr Saha’s application for the protection visa was made with the help of a migration agent, Mr Boni Amin of Little n’ Bons’ Associates, on 14 July 1998.  By that date Mr Saha had been in Australia for a little over a month.  In the application he stated that he was born on 5 October 1962, that he was married, that his wife, aged approximately 20 years, was still in India, and that he had a father and seven siblings who were also living in India.  He enclosed a photocopy of his passport which was an Indian passport issued at Calcutta on 22 September 1997 and was valid until 21 September 2007.

11. He claimed he had been born at Guwahati, Assam, India and that if called for an interview he would need a Bengali interpreter.  He stated that his current citizenship was the same as that at birth, namely, Indian.  He said he had departed India on 2 June 1998 and he arrived in Australia on 3 June 1998.  He stated that he had a Visitor’s visa to enter Australia which had been issued at New Dehli on 9 March 1998 and was valid until 3 August 1998.  He stated that he had lived in India for the preceding 10 years from 1988 to 1998 and gave an Indian address in West Bengal as the address where had lived during that time.

12. In relation to employment he said he had been employed as a salesman in his family’s business from 1994 to March 1997 and then worked as owner of his own textile business from April 1997 until his departure for Australia in June 1998.  Finally, he said he was seeking protection in Australia so that he would not have to go back to India.

13. The application for the protection visa did not state the Convention ground on which the claim was based and Mr Saha asked for five weeks from the date of the application in which to provide a full statement with supporting document and evidence.  Such a statement and other documents were not forthcoming.  In their absence the Delegate proceeded to give his decision on 28 July 1998, that is, without allowing the period of five weeks requested by Mr Saha to elapse.  The Delegate had not overlooked the request and gave reasons for not acceding to it.

14. Mr Saha’s application to the RRT on 26 August 1998 for review of the Delegate’s decision did not disclose the nature of his claim for refugee status either.  Eventually, on 18 April 2000, his migration agent forwarded to the RRT a statutory declaration by Mr Saha and accompanying documents.  The claim made was in almost every respect different from what had been stated in the application for the visa.  According to the statutory declaration Mr Saha was a Bangladeshi by birth and a Hindu by religion, having been born on 2 March 1975 (rather than 5 October 1962) into a wealthy and benevolent Hindu family in Narsindi, Greater Dhaka.  After stating this, Mr Saha went on in his statutory declaration immediately to recognise that the claims he was about to make were quite different from those he had made in his application for the visa.  He stated:

    “As I arrived in a foreign land for the first time I was frightened and very much confused and didn't know where to confide.  Eventually I did not feel encouraged to confide my identity before the immigration because I had stepped in this country as an Indian national.”

    It will be recalled, however, that the application for the visa was made with the assistance of a migration agent more than a month after Mr Saha had arrived in Australia.

15. I will not discuss here the numerous ways in which the statutory declaration was inconsistent with the earlier application for the visa, but note that the statutory declaration itself addressed the inconsistencies by referring, question by question, to statements that had been made in the application for the visa and which, according to the statutory declaration, were incorrect.

16. The case made in the statutory declaration was that as a Hindu in Bangladesh, Mr Saha had been the target of persecution by Muslim fundamentalists.  He claimed to have suffered from physical violence on several occasions.  One particular incident mentioned related to a young Hindu girl who had been kidnapped after her parents were beaten and tied up.  Mr Saha took an interest in the case and claimed to have suffered persecution as a result.  His complaint was against people he referred to as “Muslim fundamentalist terrorists”, “armed hooligans”, and “Muslim fanatics” and the authorities who would not act against them on complaints by “minorities”.

17. There were attached to Mr Saha’s statutory declaration, various documents said to support claims made in it, including a copy of a warrant for Mr Saha’s arrest, a secondary school certificate issued in 1993 by the Board of Intermediate and Secondary Education, Dhaka, and a letter addressed “To whom it may concern” purportedly issued by the “Hindu Bouddha Christian Oikya Parishad, Narsingdi, District”.

18. I turn now to the question of the interpreter.  In his application to the RRT Mr Saha had said only that he needed an interpreter in the Bengali language.  On 28 June 2000 Mr Saha responded in writing to an invitation by the RRT to attend a hearing, indicating that he would need a Bengali interpreter and adding “STRICTLY NO BANGLADESHI MUSLIM INTERPRETER!!”.

19. Mr Saha was advised that his application was fixed for hearing before the RRT on Tuesday, 15 August 2000.  Apparently the RRT had not been able to obtain at that time a Bengali interpreter who was not a Muslim and so it wrote to Mr Saha advising that the forthcoming hearing would not be able to take place (the letter did not give the reason) and that a new date would be appointed.

20. In due course, again an invitation to a hearing was issued by the RRT to Mr Saha and on 27 September 2000 Mr Saha again responded in writing, indicating that he would need a Bengali interpreter.  On the form he stated:

    “Pls provide us a non-Muslim or non-religious interpreter.”

21. At the hearing on 16 October 2000 an interpreter was present, namely, Mr Abdul Mumen Bhuiyan.  According to the reasons for decision of the RRT, it had not been possible for the RRT to meet the requirement of a non-Muslim interpreter.  I will set out what happened according to the reasons for decision of the RRT:

    “The applicant stated that he wished to speak to the Tribunal without the interpreter being present, this was agreed to.  The discussion was in English.  The applicant said that he could not proceed with the interpreter.  He was asked to explain why and said that it was because he was Muslim.  He was asked by the Tribunal how he could know this and said that he had asked the interpreter his name and his religion.  He was asked by the Tribunal whether he had ever met the interpreter before, he had not.  He was advised by the Tribunal that the interpreter was there as a professional and that he was required to take an oath to keep confidentiality and interpret correctly.  He was asked to explain why he thought that the interpreter would not do his job.  He said that he could not proceed with a Muslim interpreter as the problems he had in his country related to Muslims.  He also said that his adviser was overseas and he wanted him present.  He was advised that there would not be an adjournment, that the Tribunal had already adjourned the matter once in an effort to meet his requirement, but this was not able to be met.  The matter would not be adjourned again.  The Tribunal asked the applicant what language he spoke at work, he said Bengali.  He was asked where he worked and said ‘in a Japanese restaurant’.  The Tribunal commented that it was difficult to understand that he would speak Bengali in a Japanese restaurant.  He then said that he spoke English at the restaurant.  He was asked about his education and said that he had studied English at college.  The Tribunal advised that he would be prepared to conduct the hearing in English.  The applicant refused saying that his English was not good enough.  The Tribunal advised the applicant that a five minute adjournment would be taken for him to consider his options.  After the adjournment the applicant advised that he would not give evidence with the interpreter, and would not given [sic] evidence in English.  He requested that no decision be made until his adviser returned from overseas.  He was advised that the decision would not be delayed for this reason.  The hearing concluded.”

22. In its reasons for decision, the RRT noted the provisions of sections 420 and 425 and subsection 427(7) of the Act, and then stated:

    “I have carefully considered this matter, the requests of the applicant for a specific interpreter and his reasons for refusing to proceed.  I do not accept that his reasons for refusing to proceed to give oral evidence are reasonable.  There was no complaint about the interpreter himself, the applicant does not know him, nor anything about him, there is no allegation that the interpreter would have behaved other than in a professional manner.  It is known to the Tribunal that he is an accredited NAATI recognised interpreter in Bengali of the current highest level available.  The applicant’s concern is that he is apparently Muslim, this being ascertained by the applicant who asked the interpreter his name and religion.  Whilst I can understand that hearing situations are unusual for many people and make them nervous, and that a Tribunal should do their best to make a person as comfortable as possible, this cannot result in an applicant seeking to dictate how a hearing is to operate, and refusing to comply with reasonable requests.  In the current circumstances I do not accept that the applicant has behaved reasonably.  As discussed with him it is his choice to give evidence or not and he has chosen not to.  I have proceeded therefore to determine the matter on the information available to the Tribunal.”

23. It is now acknowledged that Mr Bhuiyan was not an “accredited NAATI recognised interpreter in Bengali” at the time of the hearing.  There is, however, affidavit evidence read before me today without objection that he was well qualified to interpret. 

24. In Mr Saha’s application to this Court filed on 1 December 2000 he states the grounds of his application as follows:

    “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.”

25. Mr Saha asked that his migration agent, Mr Boni Amin, be permitted to speak on his behalf.  I gave leave for Mr Amin to do so and he did so.  I also gave an opportunity to Mr Saha to make submissions and he did so.  Mr Saha was assisted by a non-Muslim interpreter.

26. The case as made is simply that having regard to the nature of the persecution of which Mr Saha complains, he should not have been required to accept a Bengali interpreter, although competent, of the Muslim faith, or at least one who held a position of some prominence in Bangladeshi Islamic circles in Sydney. I drew attention to the various paragraphs of subsection 476(1) of the Act and Mr Amin suggested that the case fell under par 476(1)(a) which is, of course, that the RRT failed to observe procedures which it was required by the Act or the regulations to observe in connection with the making of the decision.

27. Section 425 of the Act provides as follows:

    “(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

    (2)Subsection (1) does not apply if:

    (a)   the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

    (b)   the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

    (c)    subsection 424C(1) or (2) applied to the applicant.

    (3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”

    The section recognises an entitlement in an applicant:

    “to appear before the Tribunal to give evidence, and present arguments relating to the issues arising in relation to the decision under review.”

    The question is whether this procedure was observed in the present case.  Clearly it was literally, but the question is whether it was in substance. 

28. There is no evidence before the Court that Mr Bhuiyan is of a fundamentalist persuasion within the Islamic faith and tradition, and Mr Amin made it clear that he is not alleging this. I should note in passing that there was no evidence of many things that were said by Mr Amin on behalf of Mr Saha, including the fact that Mr Bhuiyan holds a high level position in the Bangladeshi Islamic community in Sydney. But accepting in favour of Mr Saha that Mr Bhuiyan does, the question is simply whether the RRT failed to observe the requirements of s 425 by requiring Mr Saha to accept Mr Bhuiyan as interpreter.

29. I do not think it can be said that the RRT failed to accord Mr Saha the opportunity to appear and give evidence and present arguments as required by s 425. Even according to Mr Saha’s own case, as presented on his behalf by Mr Amin, no objection could be taken to the mere fact that the interpreter was of the Muslim faith. The objection narrows itself down to whether objection could properly be taken to the fact that Mr Bhuiyan was a prominent person in Bangladeshi Islamic circles in Sydney. It would no doubt be possible for Mr Bhuiyan to satisfy that description but to be a moderate and tolerant man. There is no evidence before me that he is other than this.

30. On the evidence before me I do not think that Mr Saha had reasonable ground for declining the opportunity to give evidence before the RRT. 

31. What I have said deals with the only ground of the application that was argued in any detail. Reference was also made to pars 4761(f) and (g) of the Act. There is no substance in the suggestion that the decision was affected by actual bias. Nor can it be maintained that there was no evidence or other material to justify the making of the decision. The glaring inconsistency between the application for the protection visa and the statutory declaration is almost total. It is true, as Mr Amin correctly points out, that there were other documents before the RRT which might have pointed in a different direction, but I do not think the RRT was required to deal in its reasons expressly and specifically with every document that was before it. The RRT found the Indian passport persuasive and concluded that Mr Saha in fact came from India. The RRT observed that if Mr Saha had cooperated by giving evidence, the presiding Member would have asked him questions in relation to aspects of those documents which suggested that they should not be taken at face value.

1. I do not think that any of the grounds of review permitted by the Act are made out. Accordingly, the Court orders that:

   (1)       the application be dismissed;

   (2)       the applicant pay the respondent’s costs.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             7 May 2001

The Applicant appeared in person.
Counsel for the Respondent:	Mr G M Elliott
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 April 2001
Date of Judgment:	26 April 2001