Uddin v Minister for Immigration and Multicultural Affairs

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FEDERAL COURT OF AUSTRALIA

Uddin v Minister for Immigration & Multicultural Affairs [2001] FCA 90

CITIZENSHIP AND MIGRATION – whether trial judge erred in exercise of discretion to refuse stay to obtain further evidence – whether “no evidence” before the Tribunal – whether further evidence should be admitted.

Migration Act 1958 (Cth), ss 476(1)(g), (4)(b).
Federal Court of Australia Act 1976, s 27.

Maxwell v Keun [1928] 1 KB 645, referred to.
Bloch v Bloch (1981) 180 CLR 390, referred to.
Sali v SPC Ltd and anor (1993) 116 ALR 625, referred to.
Wilson v Official Trustee in Bankruptcy [2000] FCA 304, cited.

NIZAM UDDIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N1161 of 2000

NORTH, MANSFIELD, KATZ JJ
SYDNEY
22 FEBRUARY 2001


IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

N1161 OF 2000

BETWEEN:

NIZAM UDDIN
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

NORTH, MANSFIELD AND KATZ JJ

DATE OF ORDER:

22 FEBRUARY 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant is to pay the respondent’s cost of and incidental to the appeal.

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
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

N1161 OF 2000

BETWEEN:

NIZAM UDDIN
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

NORTH, MANSFIELD AND KATZ JJ

DATE:

22 FEBRUARY 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. Before the Court is an appeal against orders made by Emmett J on 4 September 2000.  The orders included an order dismissing the application of Mr Nizam Uddin (the appellant) for review of a decision of the Refugee Review Tribunal (the Tribunal).

  2. The decision of the Tribunal was made on 27 April 2000.  It affirmed the decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs (the Minister) to refuse the appellant a protection visa.

    DECISION OF THE TRIBUNAL

  3. The appellant is a citizen of Bangladesh who was born in December 1970.  He arrived in Australia on the 8 November 1996.

  4. Before the Tribunal he claimed to have been an active member of the Freedom Party from its inception in 1987.  The Freedom Party was founded by military figures who had participated in a 1975 coup against the government of Sheikh Mujibur Rahman, Bangladesh’s founding father.  Sheikh Mujibur Rahman and his family were killed during the coup.  The appellant claimed that his involvement with the Freedom Party led him to being detained by the authorities in 1987 and 1988.  The appellant said that in the early 1990’s he had held office in the Freedom Party.  In 1995, he claimed, he was injured in a political rally by supporters of the Awami League, a political party which was hostile to the Freedom Party because of…

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Details
Case
[2001] FCA 90
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia heard an appeal from the decision of the Tribunal affirming the Minister’s decision to refuse the appellant a protection visa. The appellant, a Bangladeshi citizen, arrived in Australia in 1996 and claimed to have been an active member of the Freedom Party, which was involved in the 1975 coup against the government of Sheikh Mujibur Rahman. He claimed that his political activities led to his detention and injury in 1995. The Tribunal found that the appellant’s claims about his involvement with the Freedom Party were implausible, as evidenced by his passport which contained stamps for a visit to Greece, despite his claims that he was in Dhaka during the relevant period. The Tribunal concluded that the appellant had been untruthful about his whereabouts and activities in 1996.

The legal issues before the court were whether the Tribunal’s decision was unreasonable or unjust, and whether the appellant had been denied natural justice. The court held that the Tribunal’s decision was not unreasonable or unjust, and that the appellant had not been denied natural justice. The court found that the Tribunal’s conclusion that the appellant had been untruthful about his whereabouts and activities in 1996 was supported by the evidence before it. The court also found that the appellant had not been denied natural justice, as he had been given an opportunity to adduce evidence to demonstrate that it would have been possible for a visa to be issued in his name in Athens without his personal presence, but had not done so.

The court dismissed the appeal and ordered that the appellant pay the respondent’s costs of and incidental to the appeal. The court held that there was no utility in granting any further extension of the stay of the Minister’s decision to refuse the appellant a protection visa. The court concluded that the Tribunal’s decision was based on a finding that the appellant had been untruthful about his whereabouts and activities in 1996, and that this finding was supported by the evidence before it. The court also held that the appellant had not been denied natural justice, as he had been given an opportunity to adduce evidence to demonstrate that it would have been possible for a visa to be issued in his name in Athens without his personal presence, but had not done so.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant is to pay the respondent’s cost of and incidental to the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NORTH, MANSFIELD, KATZ JJ (dissent)
The decision of the Tribunal was made on 27 April 2000. It affirmed the decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs (the Minister) to refuse the appellant a protection visa.DECISION OF THE TRIBUNAL The appellant is a citizen of Bangladesh who was born in December 1970. He arrived in Australia on the 8 November 1996. Before the Tribunal he claimed to have been an active member of the Freedom Party from its inception in 1987. The Freedom Party was founded by military figures who had participated in a 1975 coup against the government of Sheikh Mujibur Rahman, Bangladesh’s founding father. Sheikh Mujibur Rahman and his family were killed during the coup. The appellant claimed that his involvement with the Freedom Party led him to being detained by the authorities in 1987 and 1988. The appellant said that in the early 1990’s he had held office in the Freedom Party. In 1995, he claimed, he was injured in a political rally by supporters of the Awami League, a political party which was hostile to the Freedom Party because of its connection with the 1975 coup leaders. The Awami League was elected to power in 1996 and its leader was the daughter of Sheikh Mujibur. The appellant’s claims about what happened to him in 1996 were central to his case before the Tribunal. The appellant claimed that on 10 July 1996 he was threatened by Awami League functionaries to cease any further political activities. He also claimed that on 1 August 1996 a meeting of the Freedom Party was broken up by 20 to 30 Awami League members wielding hockey sticks and other dangerous weapons. Finally, he claimed that on 5 August 1996 there was a demonstration of about 1,500 people organised to protest against the attacks by the Awami League. He said that supporters of the Awami League went to his family’s house and threatened his sister and destroyed property. They said that they wanted the appellant. The reasoning of the Tribunal was set out in the following passages:“Of critical importance to this case is whether the applicant had travelled to Greece or not. This issue goes to both the credibility of the applicant as well as affecting whether some of the key incidents of his claim are possible. The applicant’s claims at the hearing and in his application submission were very clear. In 1996 he was having problems with the AL [Awami League], in early August there was a violent demonstration and in the middle of August he spoke to his lawyer who told him that there were some false charges against him and in September 1996 he heard that was a charge in relation to possession of unlicensed fire arms. He went into hiding and arrangements were then made for him to get a passport and visa. He went to Dhaka in September in order to flee the country. He got his passport with the visa for Australia already in it and the issuance date had been backdated. He told the Tribunal that the visa for Greece was in the passport when he got it and when he pointed this out to the ‘travel agents’, he was told take it as it is or if you don’t want it, that is fine but you will not get your money back.The documentary evidence of his passport and his original application form goes against these claims. His application form states that from May 1996 until November 1996 he was residing in Solla Nobabganj Dhaka. Prior to that he was in Beani Bazar, near Sylhet. The applicant denied this statement at the hearing and said that that [sic] the Solla Nobabganj Dhaka address had been used in order to get his passport and he was taken out to this address in order to get his passport shortly before leaving.The passport also contains the stamps for a visit to Athens, Greece. It has the stamps for leaving Dhaka and arriving in Athens on 11 August 1996, leaving Athens and arriving back in Dhaka on 30 August 1996. The Australian visa was issued in Athens on 27 August 1996. His Bangladesh passport states that it was issued on 16 May 1996 and had his address as Solla Nobabganj.The Tribunal finds the applicant’s account implausible. In order to explain the stamps in his passport, it would require someone else to take his passport through customs and immigration control in Bangladesh and Greece and for the Australian mission in Greece to issue a visa without sighting the applicant. Someone would then need to bring the passport back to Bangladesh and again pass through immigration control in Bangladesh. Even assuming that the stamps for the visa to Greece and for Dhaka airport were bogus, the visa is a genuine Australian visa and would require that the applicant’s ‘travel agents’ have an accomplice within the Australian mission in Athens. Even if there were such an accomplice, there would be no reason for the Australian visa to be backdated and the claim that it had been was implausible. According to the applicant’s account when the Australian visa was issued on 27 August 1996, he had not even arranged to see his ‘travel agent’. The major incidents in the riots which he claims led to false charges being laid had only occurred some 22 days before its date of issuance of the visa. The issuance of the Bangladeshi passport in the applicant’s own name, the obtaining of the visa for Greece and the application for an Australia visa in Greece would no doubt take sometime and it is implausible that all of that could have been done in some 22 days.This conclusion is strengthened by two other facts. First, the applicant gave the address of Solla Nobabganj Dhaka in his application form. There was no reason for him to put the false dates for this address in the application to the Australian authorities. His explanation that he wanted it to be consistent with his passport was incomprehensible because he was also lodging at the same time, as an attachment, his submission wherein he claimed that he was not in Dhaka but in Beani Bazar in August 1996. In addition, the applicant had not included copies of the Greek visas when he lodged a copy of his passport with his application. This suggests to the Tribunal that the applicant intentionally did not wish to draw attention to [the] existence of the Greek visa.Finding, as the Tribunal does, that the applicant has been untruthful at the hearing about his addresses in Bangladesh and that he had been in Dhaka from May 1996 and that he gave false evidence about his passport being backdated and false evidence about not having been to Greece in August 1996, has the following implications in relation to the applicant’s claims.First he did not attend the violent rallies in early August 1996 in Sylhet as at the time he was in Dhaka hundreds of kilometres away. Second, the claims that he faces false charges which relate to the claimed incidents in violent rallies in August 1996 must also be bogus as he did not take part in those incidents. Third, the evidence from the applicant’s father letters [sic] concerning the false charges is false. Four, that while the two witnesses had heard from the applicant’s family about the false charges being laid and the Tribunal accepts their evidence, the applicant’s family must have told those witnesses an untruth. Five, the letter from the Bangladesh Society for the Enforcement of Human Rights refers to the false charges and the Tribunal does not accept that there are such charges. It too must be bogus.”THE HEARING BEFORE THE PRIMARY JUDGE

Ratio Decidendi

Legal Principle Established

Established by:

In those circumstances his Honour said in separate reasons given on 18 October in pars 8-13: “8.Thus the only further evidence that is foreshadowed at present is evidence as to the existence or non existence of a passenger card for the entry of the applicant into Greece. It was accepted on behalf of the applicant that if a card was produced indicating that the applicant had travelled to Greece that would be an end to the matter so far as the applicant was concerned. On the other hand it was hoped by the applicant that the Greek authorities would either respond that there was no card for entry of the applicant or would produce a card that did not bear the applicant’s signature. 9Even if those documents were produced it would not take the matter any further in the light of the finding that was made by the Tribunal. The assumption that the Tribunal has made is that the Australian Mission in Greece would not issue a visa without sighting the applicant. It is for that reason that the Tribunal concluded that, even assuming the stamps for the visa to Greece and Dhaka were bogus, it would be necessary for there to have been an accomplice within the Australian Mission in Athens. Thus, even if the additional material now sought from the authorities in Greece were produced it would not affect the conclusion upon which the Tribunal based its decision. That is to say, the Tribunal was prepared to accept that the stamps for the visa to Greece and for Dhaka Airport were bogus. 10There has been no suggestion of any attempt having been made to obtain evidence to demonstrate that a genuine visa could be issued by the Australian Mission in Greece without the applicant being seen personally. In the circumstances there does not appear to me to be any utility in granting any further adjournment of the hearing of the motion. 11In order to establish the ground in s 476(1)(g) it is necessary not only to establish that a fact upon which the Tribunal based its decision did not exist. It is also necessary to show that there was no evidence before the Tribunal of that fact. There clearly was evidence before the Tribunal that the applicant was in Greece. It would have been open for the applicant to adduce evidence before the Tribunal of the nature now sought to be adduced. Whether that would have had any effect on the Tribunal’s decision is doubtful in the light of the passage that I have cited.12It may have been possible for the applicant to adduce evidence to demonstrate that it would have been possible for a visa to be issued in the name of the applicant in Athens without the applicant being personally present in Athens. However, there has been no attempt made up until now to adduce such evidence and there was certainly no such evidence before the Tribunal.13As I have said in the circumstances I do not see any utility in granting any further extension of the stay. Accordingly I consider that the motion should be dismissed with costs. It would follow that there should be no further extension of the stay that I ordered on 4 September 2000 and extended from 6 October up to and including today.”CONSIDERATION