Uddin v Minister for Immigration and Multicultural Affairs

[2000] FCA 1313

FEDERAL COURT OF AUSTRALIA

Uddin v Minister for Immigration & Multicultural Affairs [2000] FCA 1313

CITIZENSHIP AND MIGRATION – protection visa – application for order of review of decision of Refugee Review Tribunal (“RRT”) affirming decision of delegate refusing grant – application for adjournment of hearing of application to enable applicant to obtain further evidence

Freedom of Information Act 1982 (Cth)
Migration Act 1958 (Cth) ss 420, 476

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 73 ALJR 746 cited

NIZAM UDDIN v MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS

N 591 OF 2000

EMMETT J
4 SEPTEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 591 OF 2000

BETWEEN:	NIZAM UDDIN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	4 SEPTEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

1.        The applicant pay the respondent’s costs.

3.        There be a stay of orders 1 and 2 above up to an including 6 October 2000.

4.The applicant, if he wishes to apply to set aside orders 1 and 2 above and to adduce additional evidence, file and serve no later than 2 October 2000 a notice of motion made returnable before Emmett J on 6 October 2000 seeking such orders together with an affidavit setting out all of the evidence upon which he intends to rely.

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 591 OF 2000

BETWEEN:	NIZAM UDDIN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	4 SEPTEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh and arrived in Australia on 8 November 1996.  He applied to the Department of Immigration & Multicultural Affairs (“the Department”) for a protection visa on 31 December 1997.  A delegate of the Minister refused the visa and the Refugee Review Tribunal (“the Tribunal”), differently constituted from the Tribunal from which this appeal is brought, affirmed the delegate's decision on 1 April 1999.  The applicant sought review of the Tribunal’s decision by the Federal Court and on 4 August 1999 the Court set aside the decision and remitted the matter to the Tribunal to be determined according to law.  On 27 April 2000 the Tribunal again confirmed the decision not to grant a protection visa.  The applicant has now brought a further application to this Court.

2. When the matter came before me on 21 July 2000, I directed the applicant to file and serve any amended application, and any evidence on which he proposed to rely, on or before 4 August 2000.  I listed the matter for hearing at 10.15 a.m. on 4 September 2000 and gave directions for the filing of submissions.  I also reserved liberty to apply on three days’ notice.  On 21 July 2000, Mr Rashid Raashed, a migration agent who is not a legal practitioner, appeared for the applicant, with the leave of the Court.  Mr Raashed said that further evidence was being sought from the Department concerning a matter that had been the subject of evidence before the Tribunal.  I indicated that if the evidence was available on the day appointed for the hearing, it could then be tendered on behalf of the applicant.  If for some reason the evidence was not available then an application could be made for an adjournment if need be.

3. The matter concerns the question of whether the applicant travelled to Greece in August 1996.  In its reasons for decision the Tribunal made the following observation:

   “Of critical importance to this case is whether the applicant had to travel 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.”

4. When the matter came on for hearing today Mr Raashed again appeared for the applicant, without opposition from the Minister and with the leave of the Court.  An interpreter was available in Court but, having regard to the presence of Mr Raashed, the services of the interpreter were not required.  Mr Raashed applied for an adjournment of the hearing.  The application was opposed. 

5. The basis for the application was that the applicant had not yet been able to obtain the evidence to which Mr Raashed referred.  The evidence consists of the original application made to the Australian Embassy in Athens for a visa issued in the applicant's name on 27 August 1996.  The applicant seeks to rely on the document to establish that it was not made by him at all. 

6. In opposing the application for an adjournment, the Minister relied on communications with the applicant under the Freedom of Information Act 1982 (Cth). On 6 July 2000 the Department wrote to the applicant referring to a freedom of information request made by the applicant and saying as follows:

   “The application is refused under section 24A(b)(i) of the Freedom of Information Act 1982 which states that an agency or Minister may refuse a request for access to a document if all reasonable steps have been taken to find the document; and the agency or Minister is satisfied that the document:

   (a) is in the agency’s or Minister's possession but cannot be found; or

   (b) does not exist. 

   The documents have been destroyed under an archival disposal schedule.   Information concerning appeal procedures against the above decision is enclosed.”

7. The Department relied on a communication of 4 July 2000 from an officer of the Department attached to the Australian Embassy in Athens forwarding a copy of an electronic record of an application for a visa in the name of the applicant.  The officer said that the relevant visa application form and any other documents had been destroyed.

8. The letter of 6 July 2000 indicated that appeal procedures were available.  On 20 July 2000 the applicant wrote to the Department seeking review of the decision of 6 July 2000.  It may be, of course, that on review it may have been found that, notwithstanding the statement that the documents have been destroyed, they had not in fact been destroyed.  Be that as it may, on 31 August 2000 the Department wrote again to the applicant referring to the application for internal review and specifying a decision as follows:

   “On 31 August 2000 I reviewed the decision and I have decided to maintain the decision to refuse the release of the documents on the basis that they no longer exist.  However, I am releasing electronic evidence of the visitor visa application.”

   Reasons then followed.  Included in the reasons was a finding that the Australian Embassy in Athens had advised by facsimile on 4 July 2000 that the visa application had been destroyed and had enclosed the electronic record of the application.

9. On 25 August 2000 the applicant had written to the Registrar of the Court requesting an adjournment of the hearing because, at that stage, no response had been received to the application for review.  In the meantime, of course, the letter of 31 August 2000 was received by the applicant. It is perhaps unfortunate that the letter of 6 July 2000 indicated that appeal procedures were available.  That may have induced the applicant to take no further steps pending the review. 

10. In the course of the application for an adjournment today Mr Raashed said that two further steps are now intended by the applicant.  The first is to obtain expert advice as to what steps might now be available to the applicant, in the light of the destruction of the relevant documents in the Australian Embassy in Athens.  The second step is to make inquiries of friends in Bangladesh with a view to endeavouring to obtain material from the Greek Embassy in New Delhi, which was responsible for the issue of a visa for travel by the applicant to Greece.  To explain the significance of those matters it is necessary to say a little bit more about the findings made by the Tribunal in relation to the passport. 

11. The Tribunal referred to the claims made by the applicant at the hearing by the Tribunal.  He said that in 1996 he was having problems with the Awami League.  In early August 1996 there was a violent demonstration near Sylhet in Bangladesh and in the middle of August 1996 he spoke to his lawyer, who told him that there were some false charges against him.  In September 1996 he heard that there was a charge against him in relation to possession of unlicensed firearms.  He claimed that he went into hiding and arrangements were then made for him to get a passport and visa.  He claimed that he went to Dhaka in September 1996 in order to flee Bangladesh.  He said he got his passport there with the visa for Australia already in it, with the date of issue backdated.

12. The applicant told the Tribunal that the visa was in the passport when he got it and that when he pointed this out to the “travel agents” he was told “take it as it is or if you do not want it that is fine but you will not get your money back”.  The Tribunal found that the applicant's passport contains stamps for a visit to Athens.  It has stamps for leaving Dhaka and arriving in Athens on 11 August 1996 and for leaving Athens and arriving back in Dhaka on 30 August 1996.  The Australian visa was issued in Athens on 27 August 1996.  According to its terms, the passport was issued on 16 May 1996.  It showed the address of the holder as Solla Nobabganj, Dhaka.

13. The Tribunal found that the applicant’s account before it was implausible.  It said that in order to explain the stamps in the applicant’s passport it would have been necessary for someone else to take the 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.  It would also have been necessary for someone to bring the passport back to Bangladesh, again passing immigration control in Bangladesh.  The Tribunal observed that, 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, the Tribunal said there would have been no reason for the Australian visa to be backdated.  To claim, as the applicant did, that it had been backdated, was implausible.

14. The Tribunal observed that, according to the applicant’s account, he had not even arranged to see his “travel agent” when the Australian visa was issued on 27 August 1996.  The major incidents and the riots that he claims led to false charges being laid had only occurred some 22 days before the date of issue of the visa.  The Tribunal considered that the issue of the Bangladesh passport in the applicant’s own name, the obtaining of the visa for Greece and the application for an Australian visa in Greece, would take some time and that it was implausible that all that could have been done in some 22 days.

15. The purpose of the second inquiry by the applicant is to endeavour to establish that the application for the Greek visa, which appears in the passport, and the travel to Athens and back was engaged in by someone other than the applicant.  No evidence was furnished to me as to the likelihood of obtaining evidence as to those matters.  I was informed by Mr Raashed that, on his instructions, the applicant had made an inquiry yesterday of acquaintances in Bangladesh to see whether such further evidence could be obtained.

16. The application to the Court filed on behalf of the applicant is handwritten.  Under the heading “Grounds” the following appears:

    “(1)As provided for under section 476(1)(g) (detailed submission will be made later).

    (2)Improper exercise of power as provided for under section 420 (details will be provided). This is a ground for review by the Federal Court as provided for under section 476(d), (c).”

17. No ground based on non-compliance with section 420 of the Migration Act 1958 (Cth) (“the Migration Act”) is pressed.  That concession is well founded in the light of the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 73 ALJR 746.

18. The ground contained in section 476(1)(d) is as follows:

    “That the decision was an improper exercise of the power conferred by this Act or the regulations.”

    In that regard, reliance was placed on section 476(3)(c), which provides that the reference in paragraph 476(1)(d) to an improper exercise of a power is to be construed as being a reference to an exercise of a discretion or power in accordance with a rule or policy without regard to the merits of the particular case. Mr Raashed was unable to formulate a proposition that satisfied section 476(3)(c). As I understood what he was saying, the Tribunal failed to accept the evidence of the applicant in relation to his explanation for some of the inconsistencies to which the Tribunal referred. That would not establish any ground under section 476(1)(d).

19. As I understand the submissions by Mr Raashed in support of the adjournment, any ground based on section 476(1)(g) of the Migration Act must fail in the absence of further evidence.  In its reasons the Tribunal said that two of the crucial issues in the case turned upon where the applicant was living in 1996 and when he obtained his passport prior to leaving Bangladesh.  In his application for a protection visa, the applicant was required to answer the question:

    “Give details OUTSIDE AUSTRALIA where you have lived for 12 months or more in the last ten years”

    In his response, the applicant gave an address in Sylhet for the period January 1985 to April 1996 and an address in Dhaka from May 1996 to November 1996.  The address in Dhaka was given as Solla Nobabganj.

20. The Tribunal recorded that the applicant was asked about when he stayed in Solla Nobabganj, Dhaka.  He did not answer that question at first.  He then said he went there after September 1996.  The Tribunal asked him why his application stated that he went there in May 1996.  He said that he had had to give this address in Dhaka so that he could get a passport.  He said that in reality he was not really there.  The Tribunal asked the applicant if he had ever been at the address in Dhaka.  He said that he had been there and that he had been taken there in order to get his passport.  The Tribunal asked why he had put in his application that this was one of his previous addresses.  He said that he felt he had to mention this as he had to use it in order to get his passport.

21. The Tribunal concluded is that there was no reason for the applicant to put false dates for the address in Dhaka in his application for a protection visa.  The Tribunal considered that his explanation that he wanted his application to be consistent with his passport was “incomprehensible” because he was also lodging, at the same time, an attachment wherein he claimed that he was not in Dhaka but in Beani Bazar, Sylhet 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.  The Tribunal concluded from those circumstances that the applicant did not wish to draw attention to the existence of the Greek visa.

22. The applicant’s claims before the Tribunal were that he had been involved in demonstrations in August 1996.  The Tribunal found that the applicant had been untruthful at the hearing about his address in Bangladesh and that he had been in Dhaka from May 1996.  The Tribunal also found that he gave false evidence about his passport being backdated and false evidence about not having been to Greece in August 1996.  The Tribunal concluded from those findings as follows:

    1.The applicant did not attend violent rallies in early August 1996 in Sylhet, since at that time he was in Dhaka, hundreds of kilometres away.

    2.The claims that he faced for false charges, which related to the claimed incidents in violent rallies in August 1996, must also be bogus as he did not take part in those incidents.

    3.Evidence from the applicant's father's letters concerning the false charges was false.

    4.While the two witnesses who gave evidence from the Tribunal had heard from the applicant's family about the false charges being laid, the applicant's family must have told those witnesses an untruth.

    5.A letter from the Bangladesh Society for the Enforcement of Human Rights, in referring to false charges that the Tribunal did not accept existed, must be bogus. 

    Having regard to the bogus nature of the applicant’s claims, the Tribunal did not accept much of what the applicant told the Tribunal. 

23. It can be seen from that reasoning that, on one view, the Tribunal reached its conclusion not only by reason of its finding concerning the visit to Greece but also on the basis of the response in the original application to the question concerning where the applicant had lived.  I am not satisfied, however, that there are quite separate and independent grounds to be gleaned from the reasons for reaching that conclusion.  I read the reasons as being based on two matters.  One is the answers concerning the address in Dhaka.  The second is the passport containing the Australia visa issued in Greece.

24. It is conceivable that the applicant may be able to establish a case under section 476(1)(g) of the Migration Act, as explained by section 476(4)(b), in so far as it can be shown that the Tribunal based its decision on the existence of a valid visa issued by the Australian Embassy to the applicant in Athens. If it were established that the applicant did not in fact travel to Athens, it may be possible to demonstrate that the relevant fact did not exist. Since the relevant fact is the issue of the valid visa in Greece, there would be no other evidence before the Tribunal upon which that fact could be based.

25. I am concerned to give the applicant every opportunity to establish his case.  The contention advanced before me today is that the applicant had not pursued his inquiries because of the invitation in the Minister’s letter to seek review of the decision not to produce the documents.  The letter of 6 July 2000 is unequivocal in saying that the documents had been destroyed.  On the other hand, it refers to a provision whereby the Minister may refuse a request if satisfied that the document is in the agencies or Minister’s possession “but cannot be found”.  The letter is capable of being misconstrued by somebody in the applicant’s position. 

26. As I have said, it is accepted by Mr Raashed that, in the absence of such documents as might be produced to demonstrate that the applicant did not travel to Athens, a case based on section 476(1)(g) is bound to fail. If no further evidence is produced then, for the reasons that I have now given, I would dismiss the application. I am not satisfied, in all the circumstances, that the applicant is entitled to an adjournment. Accordingly, I propose to order that the application be dismissed and that the applicant pay the costs of the Minister.

27. However, because of some disquiet concerning the communications from the Department, I will stay those orders up to and including 6 October 2000.  I will direct the applicant, if he wishes to apply to set aside those orders and to adduce additional evidence, to file no later than 2 October 2000, a notice of motion seeking appropriate orders together with an affidavit setting out all of the evidence upon which he intends to rely in support of such an application.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             12 September 2000

With leave Mr Rashid Raashed appeared for the applicant.
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 September 2000
Date of Judgment:	4 September 2000