Yusuff v Minister for Immigration and Multicultural Affairs

[2000] FCA 1863

FEDERAL COURT OF AUSTRALIA

Yusuff v Minister for Immigration and Multicultural Affairs [2000] FCA 1863

MOHAMMAD YUSUFF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 940 OF 2000

LINDGREN J
13 DECEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 940 OF 2000

BETWEEN:	MOHAMMAD YUSUFF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE OF ORDER:	13 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 940 OF 2000

BETWEEN:	MOHAMMAD YUSUFF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	13 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. Section 29 of the Migration Act1958 (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 do one or both of the following:

   (a)       travel to and enter Australia;
   (b)      remain in Australia.

2. The applicant (“Mr Yusuff”) 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. 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”).  As a party to the Convention, Australia has undertaken protection obligations to a person who is a “refugee” as defined in 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 cl 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” (s 475(1)(b) of the Act); Mr Yusuff 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 the decision (ss 485, 486).

7. Mr Yusuff’s case is that he is outside the country of his nationality, India, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of imputed political opinion and in particular involuntary involvement with two Muslim organisations. 

   PROCEDURAL BACKGROUND

8. Mr Yusuff arrived in Australia on 18 September 1997.  On 30 September 1997 he lodged with the Department of Immigration and Multicultural Affairs (“the Department”), through Sivalohan Lohitharajah, Migration Agent, an application for a protection visa (visa subclass 866).  The Delegate refused the application on 25 November 1997.  On 19 December 1997 Mr Yusuff applied to the RRT for a review of the Delegate's decision.  The RRT conducted a hearing some 18 months later, on 9 June 1999.  Some 11 months later again, on 21 July 2000, the RRT affirmed the Delegate's decision.  On 30 August 2000, Mr Yusuff filed his application in this Court for review of the RRT's decision.  I do not know why the determination of the application for review by the RRT took so long in this case.

   THE REASONS FOR DECISION OF THE RRT

9. The RRT commenced its reasons for decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of a “refugee”.  It then turned to consider Mr Yusuff's claims and evidence.  Mr Yusuff's protection visa application was lodged in the name of “Yusuff Mohammad” and gave his date of birth as 16 June 1961.

10. Mr Yusuff travelled to Australia on a bogus passport in the name of “Suhal Ahmed”, born 15 May 1965.  Mr Yusuff claimed he paid an agent to obtain the passport.  He claimed that his true name was Mohammad Yusuff and that this was verified by a German document dated 13 October 1994 addressed to “Mohammad Yusuff” at a German address, a ration card from West Bengal dated 12 September 1997 in the name of “Md Yusuf”, and a form indicating that “Md Yusuf” left school on 31 March 1978 and showing the date of birth of that person as 16 June 1961.

11. According to the application form, Mr Yusuff went into business in India after leaving school in 1976.  He stated he was “dragged into politics without [his] knowledge” and was “forced to become a member of the Quami Muslim Azad group in order to fight against the unfair laws passed against Muslims” by the government, and in order to “expand [his] business [and] to obtain certain privileges and benefits from and among the Muslim folks”. 

12. Mr Yusuff claimed to have attended protest meetings and to have been arrested by police officers who were mostly Hindus.  He said he was forced to “drink quantities of muddy water until he vomited” and that he experienced “inhuman torture and harassment”.  He claims to have been arrested several times.  He stated that his house was burned and his brother killed in riots in Calcutta in 1990.  He claimed that false charges were laid against him and that he was tortured pending his release from custody.

13. He said that after his release, he left for Germany, where he claimed to have lived and worked from 1991 to 1996.  Mr Yusuff claimed that he applied in Germany for protection as a refugee, but was refused.  When he returned home, he was approached by Pakistani underground agents who forced him to become “involved in activities against the Indian government to partition India on religious grounds”.

14. He claimed that two of his friends disappeared when they refused to attend a meeting and claimed that he himself was brainwashed during meetings.  Mr Yusuff said he was arrested because the material he distributed incited communal violence.  He was detained for a couple of weeks, tortured and questioned.  He claimed that in May or June 1996 he was forced to join a procession and was threatened with abduction and beatings if he did not.

15. The following week, he and some others were taken for questioning by the police in relation to their involvement with the Pakistani underground Muslim League.  He was detained and false charges were laid against him.  He claimed that he left India to save his life from Hindu Nationalist police officers and Muslim League agents.

16. The RRT reviewed the evidence that Mr Yusuff had previously presented at the interview with the Delegate.  The Delegate had discussed the passport and the fact that it did not appear to have Mr Yusuff's photograph substituted.  Mr Yusuff said he had given the agent photographs but did not know how the passport was made.  He said the passport he had used to travel to Germany had been in a bag which was taken by the police in India in June or July 1996 when he was found distributing pamphlets. 

17. He said he could not obtain a new passport in his own name because the Hindu police would not have given him the necessary clearance.  The Delegate had found that Mr Yusuff's true identity was as shown in the passport on which he travelled to Australia - Suhal Ahmed.  As noted earlier, the Delegate refused Mr Yusuff's application on 25 November 1997. 

18. On 8 June 1999, the day before the hearing before the RRT, Mr Yusuff's adviser provided to the RRT a submission drawing attention to the seriousness of the problems faced by Muslims in India, and claiming that Mr Yusuff had experienced torture.  On 12 October 1999, copies of some German documents were provided to the RRT concerning a “Mohammad Yusuff”.  At the hearing before the RRT, Mr Yusuff expanded on the reasons he had joined the Quami Muslim Azad organisation in 1980.

19. He said that Muslims faced difficulties in their everyday life, did not have the same rights as others, and had to fight for what they had.  He said specifically that his life had been threatened.  He said he had no interest in joining the Muslim group but had had to become involved to bring an end to his harassment by Hindu police and radicals.  Later he was forced to become involved in the Muslim League and remained involved until 1991.

20. He claimed the police had detained him 22 times, first in November 1980 and last in November 1990, for periods of less than a week to two and a half weeks.  False charges were laid against him based on accusations by Hindu fundamentalists.  He said the police killed his brother and that he and his mother were threatened when they reported the incident.  His father suffered mental illness as a result.

21. He claimed he was arrested three times after returning to India from Germany and before leaving India for Australia.  Additionally, over this time the police raided his home every week and he had to hide to save his life by staying away from his house.  He had been at home twice when the police came but managed to run away to avoid them.

22. He claimed he was at risk from both the Pakistani underground agents as well as the Indian police and that he would be killed or sent to Pakistan if he were to return, as local Hindus knew him.  Later in the hearing, as the presiding Member stated, "when my concern about the truthfulness of much of his evidence was apparent, the applicant said that the police had raped him".

23. The RRT reviewed relevant independent country information on India, in particular, on freedom of religion and major incidents of conflict between Hindus and Muslims.

24. The RRT accepted that Mr Yusuff was a citizen of India and had used two names;  that he was a Muslim from Calcutta;  that he had experienced some harassment during school and in relation to his business dealings;  and that he had lived in Germany from 1991 to 1996 where his application for refugee status was refused.  However, the RRT considered that his evidence was muddled at the hearing and that he was unclear as to the background to the tensions between Hindus and Muslims in India.

25. The RRT did not accept the nature and extent of Mr Yusuff's political activities with Muslim organisations; his dealings with Pakistani agents;  the arrests and detentions he claimed occurred between 1980 and 1990;  the violence allegedly done to him and his family during the 1990 riots;  the incidents which followed his return to India in 1996;  and the circumstances surrounding his having been issued with two passports in two different names.

26. The RRT accepted that Mr Yusuff may have been harassed by Hindu children and teachers during school and may have had difficulties with Hindus in relation to his business.  The RRT accepted that this could have been because of his religion.  However, it did not consider this was a sufficiently serious detriment or disadvantage to constitute persecution.  The RRT found no evidence to suggest that there was a real chance that Mr Yusuff would face any serious harm because of his religion or any associated political opinion if he were to return to India.

    GROUNDS OF THE PRESENT APPLICATION FOR AN ORDER OF REVIEW

27. In his application filed in this Court on 30 August 2000, Mr Yusuff states the grounds of his application as follows:

    “1.Procedures that were required by the Migration Act 1958 to be observed in connection with the making of the Tribunal decision were not observed [s 476(1)(a)].

    2.The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal [s,476(1)(e)].

    3.There was no evidence or other material to justify the making of the decision [s.476(1)(g)]”.

    This is no more than a repetition of the grounds of review mentioned in subsection 476(1) of the Act and is uninformative.

    REASONING ON THE PRESENT APPLICATION FOR AN ORDER OF REVIEW

28. On the hearing I invited Mr Yusuff, who appeared for himself, to elaborate on the grounds which he had identified in his application. In relation to the first ground, he said that the Presiding Member at the RRT had screamed at him. The claim seems to be that in relation to particular matters she evinced a disbelief and an unreadiness to accept what was being said. The tape recording of the hearing before the RRT is not in evidence before me; nor is a transcript of the proceeding before the RRT. I am not satisfied on the basis merely of what Mr Yusuff has said from the bar table that either the ground referred to in par 476(1)(a) of the Act or the actual bias ground referred to in par 476(1)(f) of the Act is made out.

29. Again in relation to the ground identified in paragraph 476(1)(a), Mr Yusuff relied on the fact that the RRT had not taken into account “photo ID” that he had provided.  He produced a letter dated 22 December 1997 from the Department to himself returning to him certain documents including a photograph of a previous passport in the name of "M'd Yusuff".  The writer of that letter from the Department stated in the covering letter:

    “As I discussed with you today in person, on the basis of the evidence before me I am unable to alter my decision regarding your identity.”

30. This matter was dealt with by the RRT in its reasons for decision.  The RRT referred expressly to the fact that Mr Yusuff had contacted the Delegate on 22 December 1997 and to the surrounding communications and noted that the Delegate was not persuaded that the copy passport indicated that Mr Yusuff was, in fact, Mr Yusuff and not Mr Ahmed.  Later in the RRT’s reasons for decision the presiding Member dealt in some detail with Mr Yusuff's contention that two passports had been issued to him in two different names.

31. No doubt Mr Yusuff is not at all content with the conclusion reached by the RRT in relation to this issue but all that matters for present purposes is that the RRT did deal with it.

32. I am not satisfied that either of the two complaints which Mr Yusuff has attempted to make this morning in relation to par 476(1)(a) are made out.  I need not discuss the question whether, if they had been made out, they would in fact have constituted a failure by the RRT to observe required procedures for the purposes of that paragraph.

33. I turn next to par 476(1)(e) – the error of law ground on which Mr Yusuff relies in his application.  In this respect again he relied on the alleged failure of the RRT to take into account the photograph identification he had provided.  As well he says that the RRT fell into error in the view it formed in relation to the activities of Pakistani agents in India in enlisting the support of Indian Muslims.  I have dealt with the first of these matters above.  In relation to the second, this would be, if anything, an error of fact rather than an error of law and does not provide a ground of review.

34. Mr Yusuff did not make any independent submission in relation to the “no evidence” ground referred to in par 476(1)(g) of the Act. It is doubtful that that ground has any scope for operation in the case where the RRT declares itself not satisfied on the evidence which it accepts that the terms of the Convention definition are satisfied.

35. For the above reasons, the application will be dismissed with costs. 

36. Before parting with the application, however, I should note that on the hearing today Mr Yusuff produced documents which came into existence after the RRT gave its decision. It is clear that the documents are irrelevant to the grounds on which the Court is permitted to set aside the RRT's decision. These documents were intended to establish certain facts in support of Mr Yusuff's allegations. In substance, they were intended to prove that, after all, certain claims which he made before the RRT and which it did not accept were indeed true. Mr Yusuff should, if he wishes to take those matters further, submit his further evidence to the Department so that the Minister can consider exercising his power under s 417 of the Act to substitute, for the RRT's decision, a decision that is more favourable to Mr Yusuff.

    CONCLUSION

37. The orders of the court are that:

    1.        The application be dismissed.

    2.The applicant pay the respondent's costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             18 December 2000

The Applicant appeared in person.
Counsel for the Respondent:	Mr R J Bromwich
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	13 December 2000
Date of Judgment:	13 December 2000