Haque v Minister of Immigration & Multicultural Affairs [2000] FCA 106 (8 February 2000)

Last Updated: 23 February 2000

FEDERAL COURT OF AUSTRALIA

Haque v Minister of Immigration & Multicultural Affairs [2000] FCA 106

IMMIGRATION - application for review - decision of Refugee Review Tribunal affirming delegate's decision of refusal of protection visa - whether Tribunal in error of law - whether error in incorrect application of the law to the facts as formed by the Tribunal - whether jurisdiction to find error in that Tribunal made findings of fact not rationally supported by probative evidence

Migration Act 1958 s 476

MD NAMZUL HAQUE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 122 of 1999

R D NICHOLSON J

8 FEBRUARY 2000

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W122 OF 1999

BETWEEN:	MD NAMZUL HAQUE Applicant
AND:	MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	R D NICHOLSON J
DATE OF ORDER:	8 FEBRUARY 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W122 OF 1999

BETWEEN:	MD NAMZUL HAQUE Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	R D NICHOLSON J
DATE:	8 FEBRUARY 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

1 This is an application made pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act") to review the decision of the Refugee Review Tribunal made on 26 October 1999. The tribunal's decision was to affirm the decision made by a delegate of the respondent not to grant a protection visa to the applicant.

2 The applicant's circumstances as well as his claims and the evidence which he said supported them were set out in the reasons of the tribunal of which the applicant has a copy. I include them in my reasons from paragraphs (i) - (xv), that is, from 1 to 15, of the summary provided in the respondent's outline of submissions which reads as follows:

(i) The applicant is a citizen of Bangladesh who paid the equivalent of $10,000.00 made available from his family's resources to journey to Australia.

(ii) The applicant claimed to face persecution in Bangladesh by reason of his political opinion as he is a supporter of the Bangladesh Nationalist Party ("BNP") which ruled the country until 1996 when it lost to the Awami League. The BNP is now the main opposition party.

(iii) The applicant was publicity/propaganda secretary of the BNP's student wing at his high school and he had become assistant general secretary of the BNP at Shorwady College where he had done his BA degree and at Dahaka University where he was halfway through a master's degree in political science.

(iv) The applicant's problems had begun in August 1996 when he had denounced vote-rigging by the Awami League at the student council elections.

(v) As a result of writing and fighting between the BNP and the Awami League over the issue of vote-rigging, the applicant had fled to his ancestral home to avoid vengeful Awami League supporters. However, they had followed him and brought him to Dhaka and kept him prisoner for ten days and tortured him before letting him go. He had not reported this to the police because he thought that more harm would follow.

(vi) The BNP had advised the applicant to go into hiding and had also advised him to report the incident to the police.

(vii) After being released by the Awami League supporters the applicant had gone to live secretly with his grandparents. He stopped his studies and took no more part in politics because his Awami League attackers had warned him not to engage in politics any more.

(viii) The Awami League blamed the applicant for certain subsequent BNP actions and had come to his former home and beaten up his younger brother in an effort to find out where he had gone.

(ix) In February 1999 the Awami League had got the police to file a false charge against the applicant alleging that firearms had been found in his former home. There had been a warrant out for his arrest and police were searching for him.

(x) Between the issue of the warrant for the applicant's arrest and his departure from Bangladesh in mid-April 1999 the people in the village in which he had been living had kept his secret because his grandfather was respected in the area. The Awami League members in the village had not given him away because they had not known about the warrant.

(xi) The police had not tracked the applicant to his grandparents' home because the police had no idea where his grandparents' home was.

(xii) The Awami League had targeted the applicant with a false charge because the League had thought that he had been organising anti-government activities on account of his previous position in the BNP.

(xiii) The BNP had advised the applicant to leave the country and perhaps return whenever the party came back into power. The applicant feared that the Awami League might harm his family and that the police could gaol him and that he had seen no option but to leave Bangladesh.

(xiv) The letter from the BNP leader, Begum Khaleda Zia, had been written at the behest of the party's youth league vice-president when the applicant had told that official that the department had had problems with his testimonial.

(xv) The applicant's brother had gone to Jagannath University College and obtained the "Testimonial" submitted by the applicant. The reason the "Testimonial" stated: "While at this institution he/she did not take part in any activity subversive of the State or a College discipline," was that it had been written by his teacher who had not known about his political activities.

3 The grounds of review appear in the application. It is clear that they have been provided in a common form utilised at the Port Hedland detention centre where the applicant is presently held.

4 The applicant is unrepresented at the hearing of this appeal and he is not trained in the law. He has said that he is baffled and unable to state what matters he should bring forward. That casts a particular responsibility on this Court assisted by Counsel for the respondent to examine the reasons of the tribunal with some care in order to ascertain whether they give rise to any of the errors of law specified in the grounds of the application and relied upon by the applicant.

5 The applicant was directed and given the opportunity to file either a written statement giving particulars of the reasons he considered the decision of the tribunal was not correct and evidence by way of affidavit. He chose not to do either. He has stated to the Court there was nothing more which he could place before this court that he had not already placed before the tribunal. He made some additional comments to which I will subsequently refer.

6 Turning to the particular grounds of review, it is appropriate to commence by referring to that which alleges the tribunal decision involved an error of law because the findings of fact upon which its decisions were based were not rationally supported by probative evidence and that the tribunal failed rationally to consider the probative evidence that was before it. That is not a ground of review in relation to which this court has any jurisdiction. It is not a ground of review coming within s 476(1) of the Act from which the jurisdiction of the court to review decisions of the Refugee Review Tribunal derives. Furthermore, it is wholly or substantially precluded by the express provision in s 476(2)(b) that it is not a ground of review that the decision of a tribunal involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power. So far as it suggests that the tribunal took into account an irrelevant consideration or failed to take into account a relevant consideration and therefore was not supported rationally by probative evidence or involved a failure to rationally consider such evidence, the ground of review is precluded by s 476(3)(d) and (e). The court has no further jurisdiction: see s 485 of the Act.

7 I next turn to the ground of review that the decision of the tribunal involved an error of law, being an error involving the incorrect interpretation of the applicable law. The reasons for decision of the tribunal set out under the heading "The Refugees Convention" the tribunal's understanding of the applicable law. In particular, reference is made to article 1A(2) of the Convention defining a refugee. A reference is also made to the cases which have defined the application of that article in Australian law as decided by the High Court of Australia. In my opinion, there is no incorrect understanding and consequently no incorrect interpretation of the applicable law by the tribunal. There is no evidence in the reasons of the tribunal which would support that aspect of the ground being applicable. It is a ground which arises pursuant to s 476(1)(e) and is the first limb of that paragraph. It does not assist the applicant.

8 The final ground of review sought to be applicable by the applicant is that which arises from the second limb of s 476(1)(e); namely, that the decision of the tribunal involved an error of law because it involved an incorrect application of the law to the facts as found by the tribunal. The reasons of the tribunal and its findings have been summarised in the submissions of the respondent and it is convenient to adopt that formulation to summarise those findings and reasons. They are as follows:

(i) The applicant had fabricated claims to bolster his application for a protection visa.

(ii) The use of false documentation is rife among Bangladeshi asylum-seekers.

(iii) It did not accept that the applicant had completed a BA and was part-way through an MA in political science.

(iv) It did not accept the applicant's explanation that he could not remember answers to the questions put to him about his studies.

(v) The documentation provided as "proof" of the applicant's claims to have obtained a BA and to have been studying for an MA was fraudulent.

(vi) The Tribunal did not accept that the applicant had spent several years at Shorwady College and Jagannath College at Dhaka University studying for those degrees and there no basis for the Tribunal to accept the applicant's claim to have been a BNP student wing leader at either college. Accordingly, the Tribunal was not satisfied that the applicant was a person of note or influence within the BNP as he had claimed.

(vii) The Tribunal therefore did not accept that the applicant went to Shorwady College as a BNP student leader to sort out Awami League election rigging, did not accept that he attracted the enmity of Awami League adherents, did not accept that he was imprisoned and tortured by them as he had claimed, did not accept that he and his family were afterwards threatened and beaten by them or that a false charge had been filed against him.

(viii) The BNP student wing's disruptive action on campuses goes on unabated, showing that the BNP was undeterred by Awami League retaliatory action.

(ix) The applicant's claim that he had left Bangladesh in order to escape imprisonment on the false (sic) brought against him by the Awami League lacked credibility.

(x) The "Testimonial" from the principal of Jagannath College and the letter from the BNP leader and past Prime Minister were fraudulent.

(xi) The fact that the applicant had submitted a charge sheet accusing him of a crime could not in itself counter the inherent lack of credibility in his claims given the independent evidence that arrest warrants, court documents and other papers commonly offered in support of claims made by Bangladeshis abroad had been found to be fraudulent.

(xii) There was a lack of credibility in the applicant's evidence of harm coming to him as a consequence of being a BNP activist.

(xiii) Violence in Bangladeshi politics is endemic and that being harmed in such violence does not of itself demonstrate that one party or the other is persecuted.

(xiv) The independent evidence would not indicate that the BNP would passively accept violence and threats against its own cadre and that, in fact, specific independent evidence proved the opposite.

(xv) It was not at all plausible that a party which engaged in such aggressive and fearless tactics would endorse a decision by one of its lower-ranking cadre to quit his political responsibilities and leave the country.

(xvi) It did not accept the applicant's claim that he could not obtain justice in Bangladesh or the protection could not be given by the forces of law and order or the judiciary in relation to crimes of violence or, perhaps, false charges.

(xvii) Independent evidence showed that although both the BNP and the Awami League used legislative powers to harass and detain opponents, the courts, which were independent, could be relied upon to provide protection for those falsely charged.

(xviii) In summary, the applicant's claims of being a BNP student leader and having been targeted as such by the Awami League, beaten, tortured, harassed with a false charge and having had his family members, such as his brothers, exposed to violence because of his alleged political role were implausible and the Tribunal did not accept them.

(xix) If a politically-motivated arrest warrant had been issued for the applicant, he could have obtained protection from his own BNP party.

(xx) The applicant could have relied upon the court to give him justice on a trumped-up charge since independent evidence had shown that the judiciary had been steadfast in throwing out non-bona fide cases.

(xxi) The applicant could be assured of protection within his own country within the reasonably foreseeable future as the independence of the courts was of long standing and there was no reason to doubt that such independence would persist notwithstanding the colour of the government in power.

(xxii) While it was possible that the person in applicant's claimed position would not be able to have a false charge against him dismissed quickly, such delay would not be peculiar to his circumstances, but because the courts in Bangladesh were heavily overworked. Furthermore, it appeared that most people arrested on possibly false charges under the SPA were released with "days or weeks".

(xxiii) The Tribunal was not satisfied that the applicant had a well-founded fear of persecution in Bangladesh.

(xxiv) The applicant's use of a false passport was for the purpose of effecting entry to countries en route to Australia rather than to avoid harm for a Convention reason in Bangladesh.

(xxv) If the applicant was punished upon re-entry to Bangladesh for having left illegally, he would face possible penalties common to all Bangladeshis who left illegally under laws of general application.

(xxvi) If the applicant was to be penalised for having left the country with a warrant outstanding against him, he would be punished under generally applicable laws aimed at such absconders from justice and such penalties would not bring him within the Convention.

(xxvii) While there was a general possibility that the ruling party might try to bring heavier penalties to bear on opposition party members who left the country illegally, the applicant was not a sufficient stature within the BNP for the ruling party to focus on him in this fashion.

(xxviii) Even if the ruling party did try to bring about such heavier penalties, the independence of the judiciary indicated that in dealing with the offence it would not be bent into acting in a manner partisan to the authorities. The applicant would find protection from an independent judiciary against any such politically-motivated attempt to harm him.

9 As appears from this summary, the Tribunal did not accept the evidence of the applicant on a number of important points. They are findings of credibility which the tribunal is entitled to make.

10 In such additional submissions as the applicant was able to formulate to this court he directed attention to the fact that it had not been believed that he had studied political science and undertaken the university studies to which he referred. Reading the tribunal's reasons, it does appear that that was the genesis of the findings of lack of credibility in respect of the applicant. The applicant asserted that he had carried out the studies in accordance with his evidence and that he should have been believed. Those are submissions which go to the merits of the findings made by the tribunal. They do not give rise to any error of law in the application of law to the facts as found by the tribunal. They go to the heart of the fact-finding process which it is within the province of the tribunal to carry out subject to the powers of review in s 476(1) of the Act. Nothing in what was said by the applicant, nor in what I can perceive from my own reading of the reasons of the tribunal, gives rise to the application of the ground of review relied upon or indeed any unstated other ground.

11 It follows that I consider the second limb of s 476(1)(e) also cannot be applied to assist the applicant; necessarily it follows that he has not made out the case for review by this court of the decision of the tribunal. The decision of the tribunal was to affirm the decision not to grant a protection visa. In my opinion, given the findings which the tribunal made, it was entitled to reach that decision and in so doing it did not engage in an error of law.

12 I therefore conclude that the tribunal was not in error of law in the decision which it reached and that this application for review should be dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON.

Associate:

Dated: 10 February 2000

Applicant appeared for himself

Counsel for the Respondent:	Mr. P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 February 2000
Date of Judgment:	8 February 2000