Mohd Main Uddin Kamal v Minister for Immigration & Multicultural Affairs [1998] FCA 1469 (17 November 1998)

Last Updated: 23 November 1998

FEDERAL COURT OF AUSTRALIA

MIGRATION - appeal from Refugee Review Tribunal ("RRT") decision refusing refugee status - whether RRT made finding that applicant had real chance of persecution if he returned to Bangladesh - whether there was evidence to justify the making of the decision - whether RRT's suspicions of applicant's identity amounted to actual bias - whether unfair procedures were used in contravention of s 476(1)(a) of the Migration Act 1958 (Cth) - whether decision made according to the UN Convention 1951 and 1967 Protocol

Migration Act 1958 (Cth), ss 476(1)(a), 476(1)(e), 476(f)

Migration Regulations (Cth)

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324; (1998) 151 ALR 505, cited

Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284, cited

Sayedur Rahman v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Hill J, 1 September 1998), cited

MOHD MAIN UDDIN KAMAL v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 501 of 1998

O'CONNOR J

SYDNEY

17 NOVEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 501 of 1998

BETWEEN:	MOHD MAIN UDDIN KAMAL Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	O'CONNOR J
DATE OF ORDER:	17 NOVEMBER 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application be dismissed with 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	NG 501 of 1998

BETWEEN:	MOHD MAIN UDDIN KAMAL Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	O'CONNOR J
DATE:	17 NOVEMBER 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

This is an application for the review of a decision of a member of the Refugee Review Tribunal ("the Tribunal") dated 29 April 1998 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa.

The grounds of application, as far as they could be summarised from the application document are:

1. That the decision of the Tribunal required the Tribunal to make a finding as to whether the applicant had a real chance of persecution if he returned to Bangladesh. The applicant produced enough evidence to the Tribunal in support of his identity and the refugee claim showing that there is a real chance of persecution.

2. That there was no evidence or other material to justify the making of the decision.

3. That the procedures that were required by the Migration Act 1958 (Cth) ("the Act") or the Migration Regulations ("the Regulations") to be observed in connection with the making of the decision were not observed.

4. That the Tribunal did not correctly interpret the law or did not apply it to this case.

5. That the Tribunal's decision was not made in accordance with the United Nations Convention 1951 and 1967 Protocol related to the Status of Refugee, where Australia has obligations.

LEGISLATIVE CONTEXT

The relevant provisions of the Act in respect of this application are as follows:

"Application for review

476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

(e) that 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 person who made the decision, whether or not the error appears on the record of the decision;

(f) that the decision was induced or affected by fraud or by actual bias;

...

(2) The following are not grounds upon which an application may be made under subsection (1):

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power."

A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is a 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."

The applicant seeks an order that the decision under review be set aside and remitted back to the Refugee Review Tribunal for reconsideration according to law. The applicant also seeks a declaration that he is a refugee under the United Nations Convention 1951 and 1967 Protocol related to the Status of Refugees.

At the hearing the applicant appeared in person with the aid of a Bengali interpreter. He was able to communicate, a little in English, but complained that he "did not understand" the interpreter - a problem he had encountered before at the Tribunal as well. Fortunately, a friend who was accompanying the applicant, fluent in both English and Bengali, was able to assist when required.

He relied on his application, without amendment.

FACTUAL BACKGROUND

The applicant gave in a statutory declaration the following information.

The applicant is a citizen of Bangladesh, who arrived in Australia on 18 November 1996. He was educated for 15 years and obtained a Masters (preliminary) Degree. He was from a quite wealthy Muslim family whose father is a well known businessman and local Muslim leader. The applicant claims he was brought up in a strict Muslim tradition.

After completing his studies he obtained a position as assistant chef at a Dhaka restaurant. The applicant became friendly with the owner who was a Hindu. After meeting the owner's daughter the applicant continued to secretly see her. Despite their discretion the relationship between applicant and the owner's daughter was soon discovered and the applicant agreed to marry the owner's daughter subject to conditions imposed by the applicant's future mother and father in law.

When the applicant's family discovered this relationship he was disowned and disinherited. He was later questioned, criticised, rebuked and taunted by his parents and close relatives and was later beaten by other Muslims.

The applicant later fled to another town but later returned to Dhaka to remarry the restaurant owner's daughter - according to Hindu custom. The couple would then keep to themselves but when the locals discovered who they were they were taunted and their home was "stormed" by Muslim hooligans. The couple then fled to India to live with the applicant's wife's uncle. The applicant was later detained and had to return to Bangladesh. His wife remained and continues to remain with her uncle in India.

Back in Dhaka the applicant moved apartments but was later beaten in the street and hospitalised for two days. The applicant did not report this matter to the police and decided to leave Bangladesh with the assistance of his father in law.

He claims protection because he fears that if he returns to Bangladesh he will face persecution by Muslims because of his connection to his wife and her family.

The applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa on 31 January 1997. The delegate's decision refusing the application was made on 29 April 1997. The applicant applied for a review of that decision by the Tribunal on 26 May 1997. The application for review was rejected by the Tribunal and his application for protection visa refused on 29 April 1998.

TRIBUNAL'S DECISION

The applicant submitted various documents in support of his application including a passport he acknowledged to be false and his own Bangladeshi passport; a Bangladeshi driving licence; a birth certificate; a medical certificate; and a translated letter to the police dated 6 June 1996 which states that the applicant was assaulted by mandatory Muslims because he wanted to marry a Hindu girl and because he had disavowed the Muslim religion.

The Tribunal concluded that the applicant was not a credible witness and that he produced forged documents and exaggerated his claims. The Tribunal referred to the obviously photo substituted driver's licence, the spelling error in the medical certificate, the birth certificate indicating that his birth had only been registered in December 1996, his claims of hiding all over Bangladesh (which has a population of 100 million people) and being identified in these places and the coincidence of his height being nearly identical in both passports.

The Tribunal noted that the applicant made no claims of substance to the departmental officers and until one week before the Tribunal hearing the information presented at the hearing was not submitted to any authority. The Tribunal did not accept as reasonable the applicant's claims that he did not know that he had to present the relevant material to the department and he wanted to "keep" the information to tell the Tribunal at the hearing.

The Tribunal noted that the applicant, in his original application, referred to his wife by using a Muslim name and failed to mention at that time that he had previously possessed a Bangladeshi passport in his own name.

The Tribunal found that the identifying documentation produced by the applicant was inconclusive. Moreover, the Tribunal did not accept the applicant's claim as to why the photo (in the driver's licence) was changed and found that it was changed for the purpose of providing him with a fraudulent identification. Similarly the Tribunal did not accept that the applicant's birth was only registered in December 1996, particularly since the applicant had applied for a passport and attended University in Bangladesh.

The Tribunal accepted that the applicant is an educated Bangladeshi and that he was born a Muslim. The Tribunal said relying on independent country information that although Islam is the state religion in Bangladesh the constitution guarantees freedom of religion and that this is, according to independent evidence, observed in practice. The Tribunal found that this indicated that if the applicant is a non-practising Muslim, or even if he considers himself no longer to have any religion that he would not face problems of persecution in Bangladesh.

The Tribunal concluded:

"Having considered the accepted evidence I find that the applicant has fabricated his claim of his wife being Hindu, of his being converted to Hinduism, and that he as a consequence has faced problems in Bangladesh."

DECISION

The applicant relies on five grounds of review, however his claims can be evaluated on four bases:

(a) He says that no finding was made as to whether he had a real chance of persecution if he returned to Bangladesh and this amounts to an error of law reviewable under s 476(1)(e) of the Act. The respondent submitted and I accept that the Tribunal had recited in the decision the relevant principles to be applied in such a claim and applied what was necessary for the determination of the claim. Because the Tribunal did not accept the applicant's story about his Hindu connections, it was not necessary to assess the situation of a Hindu or someone married to a Hindu in a Muslim country.

(b) He claims there was no evidence or other material to justify the making of the decision. In my view there is reference to and discussion of a substantial amount of evidence in the reasons for decision. The major problem for the applicant in this review is that much of his evidence was not accepted. It is probable that this ground was intended to allege bias on the part of the decision maker which is reviewable under s 476(1)(f) of the Act. The applicant said in his application that the decision maker had been suspicious from the beginning about his identity and referred to this again at the hearing. He did not however plead bias or particularise it in his application. For the purpose of this review however I have accepted the ground of actual bias being pleaded.

The respondent submitted and I accept that in order to make out a ground of actual bias it is not enough to show that the Tribunal has formed a preliminary conclusion. The respondent relied on a statement by Wilcox J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324; (1998) 151 ALR 505 at 551where he said:

"First, the fact that a decision-maker has formed a preliminary conclusion about an issue is not sufficient to indicate bias. There will be actual bias only when preliminary views are incapable of alteration. Secondly, any particular matter relied on as showing actual bias must be considered in the context of the whole hearing. Thirdly, it is not enough that the decision-maker displayed irritation or impatience or even used sarcasm."

In this case nothing has been put by the applicant to establish these matters.

(c) The applicant claims that unfair procedures were used which if made out would be reviewable under s 476(1)(a) of the Act. The basis of this claim was that the Tribunal member said that he would check in Bonn and Dhaka about the passports provided and did not do so, nor did he arrange for the applicant's wife to be interviewed in Bangladesh. While it is true that no positive enquiry was made concerning the passports, or arrangements made to interview the applicant's wife because of the conclusion reached, the decision maker had judged this to be unnecessary. Having refused to accept the Hindu marriage and the consequences which flowed from it, the decision maker considered that whether the passports were genuine or not, became irrelevant to the determination, there being no basis for fearing persecution unless the story was accepted. As the respondent correctly submitted, the Full Court in Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284 has said at 291, there is no special rule that where an applicant produces documents (to support his identity) which purport to be official documents issued in a foreign country that the Tribunal is obliged to verify their authenticity. This is particularly so where the Tribunal has otherwise made findings open to it on the evidence as to the issue of identity. I agree with Hill J who said in Sayedur Rahman v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Hill J, 1 September 1998):

"While there may be some occasions when the Tribunal may have some obligation to collect information, those occasions are rare indeed. The Tribunal exists as an independent Tribunal to review decisions that have been made by the Minister or his delegate. A person seeking such a review has an obligation to put before the Tribunal the relevant factual material which that person wishes the Tribunal to consider. The Tribunal's task is, in essence, to do again, to do afresh as it were, what the primary decision maker had initially done but by reference to the material before it, not the original material before the primary decision maker. There is, at least in a case such as the present, no obligation upon the Tribunal to go out and find material which would support an applicant's case. Nor is it the task of the Tribunal to verify the authenticity of documents which might be tendered before it." (p 3)

There is in this case no circumstances which create a positive duty to enquire.

(d) He claims that the decision was not made according to the UN Convention 1951 and the 1967 Protocol. This is not a ground provided for in the Act.

This decision is based on a failure to accept the applicant as a truthful person. There is ample reference in the decision and findings to understand the basis of this credit assessment. It was an assessment which could be made on the evidence before the Tribunal.

These findings were for the Tribunal to make and they are not subject to merits review by the Court. None of the grounds of review are made out.

The application is dismissed with costs.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor

Associate:

Dated: 17 November 1998

Applicant:	Self-represented
Counsel for the Respondent:	Ms A F Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 November 1998
Date of Judgment:	17 November 1998