FEDERAL COURT OF AUSTRALIA Ahmed v Minister for Immigration & Multicultural Affairs [1999] FCA 359 FARUQUE AHMED v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS NG 1335 OF 1998 HELY J 31 MARCH 1999 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 1335 OF 1998 BETWEEN: FARUQUE AHMED Applicant AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent JUDGE: HELY J DATE OF ORDER: 31 MARCH 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal given on 11 November 1998 be set aside. 2. The matter be remitted to the Tribunal for reconsideration according to law. 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 1335 OF 1998 BETWEEN: FARUQUE AHMED Applicant AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent JUDGE: HELY J DATE: 31 MARCH 1999 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is a citizen of Bangladesh, although, apart from short periods, he has not lived in Bangladesh since 1983, when he was 15 years old. Thereafter the applicant lived in Muscat, Oman (1983-1987), in Ankara, Turkey (1988-1990) and in the United Kingdom (1990-1993). Whilst in the United Kingdom the applicant obtained a degree in Aeronautical Engineering. For 3-4 months in 1993 the applicant was employed by the Bangladesh Biman airline. 2 The applicant arrived in Australia on 28 January 1994 on a student visa. He came to study for a commercial pilot's licence. Apart from a brief visit to Bangladesh in early 1996, he has been in Australia ever since. 3 On 9 October 1996 the applicant lodged an application for a protection visa. On 29 May 1997 the delegate of the Minister for Immigration & Multicultural Affairs ("MIMA") refused to grant a protection visa, which decision was affirmed by the Refugee Review Tribunal ("RRT") on 11 November 1998. 4 The applicant seeks a review of that decision. Although the Application for Review refers to s 476(1)(e) of the Migration Act, the application does not disclose any grounds for review which are capable of enlivening the jurisdiction of the Court under Division 2 of Part 8 of the Migration Act. However, in written and oral submissions before me, the applicant contended: · That RRT had failed to make enquiries as to the authenticity of documents which the applicant had submitted in support of his contention that he faces politically motivated charges in Bangladesh. · That RRT accepted incidents of persecution which were similar to the applicant's situation had occurred and thus ought to have concluded that there was a well-founded fear of persecution irrespective of its conclusion upon the genuineness of the documents. No objection was taken by the respondent to the applicant's raising of these matters, notwithstanding the terms of the Application. 5 The case which the applicant put to RRT had the following elements: · Since 1994 the applicant has been an active member of the Zia Parishad of Australia and a member of the Bangladesh National Party ("BNP"). · Whilst BNP was in power, he wrote articles critical of the opposition Awami League. · After the Awami League came to power in June 1996, publication of the magazines in which the articles were written was banned, and reporters for the magazines were arrested. · An arrest warrant was issued in his name in January 1996 on false charges, and the police visited his parents' home with the warrant with a view to arresting him. · Because of his past criticisms of the Awami League, he may have problems obtaining employment as a pilot with the government airline. · He has a well-founded fear of being persecuted for reasons of his political opinion. 6 RRT made the following findings upon a consideration of the applicant's evidence, and the independent evidence with respect to conditions in Bangladesh: · The applicant is a member of the Zia Parishad in Australia and a supporter of the BNP political party in Bangladesh. · The BNP is presently in opposition and that the Awami League is the ruling party. · The applicant wrote short articles for BNP publications in which he was critical of the Awami League in the period around the most recent elections in 1996. · Journalists and editors who are critical of the Awami League government are occasionally subjected to harassment, and that one was detained for about a month before being released on bail. · The applicant does not fall into either of the categories of journalist or editor. · There is no outstanding politically-motivated false charge against the applicant in Bangladesh. · The applicant may have difficulty obtaining employment with the government airline so long as the Awami League is the ruling party but that this will not amount to persecution. Politically motivated false charges 7 The hearing before RRT was held on 22 July 1998. On 19 August 1998 the applicant telephoned RRT and stated that there was a valid arrest warrant issued in his name, and that he was awaiting evidence to that effect from his parents in Bangladesh. He requested time to submit this evidence. On 25 September 1998 the applicant submitted to RRT an untranslated copy of an arrest warrant, which was said to be "a copy of the original from the police records". The letter stated: "Should you try to verify the authenticity of this warrant, please do not disclose my present address in NSW, but otherwise it should not cause any new problems. As you can understand, my main concern is for the safety of my parents in Bangladesh." RRT attempted to have the document translated, but was advised by an accredited translator that it was not sufficiently legible. RRT said that it did not ask for verification of the document through the Australian post in Dhaka because of its obligation to protect the applicant's identity. 8 On 9 October 1998 the applicant submitted a translated copy of the warrant which was dated 24 August 1998, and he indicated that the police were "not using the earlier (fax copy) of the warrant that you have already received". On 15 October 1998 the applicant submitted a further copy of the warrant, and of a charge sheet, which indicated that the charge related to events said to have occurred on 15 January 1996. The charge was grievous hurt and attempt to murder. As RRT noted, the applicant did not return to Bangladesh until 19 February 1996, hence he was not in Bangladesh at the time of this alleged incident. RRT noted that there was submitted to it an original, and a translation of the arrest warrant purportedly issued on 24 August 1998. The applicant's letter of 15 October 1998 included the following: "Please also note that now that my parents have formally taken my case to the court, it would not create any problems if you carry out any checks regarding these papers, with the Bangladesh authorities." 9 RRT described subsequent events in relation to these charges in this way (the Relevant Documents do not contain any copy of a communication, or record of communication with the applicant of 28 October 1998): "On 28 October 1998 the Tribunal advised Mr Ahmed that it had before it a copy of a pro-BNP magazine published in Bangladesh in July 1998 which listed all the names of BNP leaders who at that time were facing charges motivated by their political allegiance. The list incorporated many hundreds of names and appeared to be comprehensive and nation-wide in scope. Mr Ahmed's name was not among the names on the list. It was put to Mr Ahmed that the Tribunal inferred from this that there was no false charge against him. (Evidence, 1998, ed. Manzur Qadar, Dhaka, 3-9 July, pp. 20-39). Mr Ahmed responded that there are about 10,000 BNP activists who are either being unlawfully detained or who have warrants of arrest in effect against them, but most of these people's names had not appeared on the list in that magazine. (Letter to RRT dated 6 November 1998.)" 10 RRT found that the applicant does not face politically motivated charges in Bangladesh. The reasons which it gave for coming to that conclusion are: - It had serious doubts as to the genuineness of the documents relating to the arrest which the applicant submitted. Those doubts were based on the following matters: first, documents of that type are readily available in Bangladesh. Second, the police would not ordinarily part with the original of an arrest warrant. Third, the documents were based on an incident when the applicant was not in Bangladesh, and fourth, the publication, "Evidence", contained an apparently comprehensive and complete list of names of BNP leaders facing politically motivated charges, and the applicant's name was not on the list. - The applicant was neither an editor nor journalist, and it was people of that type, rather than a mere occasional contributor to pro-BNP publications, who had been subjected to incidents of harassment. - The applicant returned to Bangladesh in 1996 in the knowledge that the claimed arrest warrants had already been issued for him. He told RRT that the matter is not "that serious". His willingness and ability to enter Bangladesh through the international airport in Dhaka twice in 1996 without being detained, indicates that he was not then fearful of arrest, and that he was of little or no interest to the national police. 11 RRT's conclusions in this regard are conclusions on factual issues which it is for RRT to decide. Unless its conclusions are infected by a failure to make enquiry which it was bound to make, or other procedural deficiency, they are not shown to involve any reviewable error. Failure to make due enquiry 12 Assuming, as I do, that Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300 was correctly decided, the issue is whether the obligation to act according to substantial justice required RRT to make an enquiry as to the authenticity of the documents relating to the alleged warrant for the applicant's arrest. 13 The authorities establish that: · In order to comply with s 420(2)(b) of the Migration Act 1958, RRT may have to make enquiries in "rare" or "limited" circumstances: Minister for Immigration & Ethnic Affairs v Singh (1997) 74 FCR 553 at 560; Minister for Immigration & Multicultural Affairs v Djalal (unreported, Full Federal Court, 10 December 1998) at p 9-10. As Hill J said in Rhaman v Minister for Immigration & Multicultural Affairs (unreported, Hill J, 1 September 1998) it is not the task of RRT to verify the authenticity of documents which might be tendered before it. · RRT is obliged to make enquiries where important information on a central issue is readily available: Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505 at 548. · RRT's assessment that a document is not genuine can flow from its findings on matters external to the documents such as general country information and the applicant's situation in that context. That is, direct evidence relating to the documents themselves is not always necessary: Minister for Immigration & Multicultural Affairs v Djalal (unreported, Full Federal Court, 10 December 1998). · Generally, RRT should not make enquiries where so to do would disclose the identity or location of a person seeking refugee status: Bhuiyan v Minister for Immigration & Multicultural Affairs (unreported, Wilcox J, 14 October 1998) at pp 3-4; cf s 431(2). · Depending upon the degree of certainty with which RRT comes to a conclusion in relation to a particular matter, it may or may not have to ask itself "what if I am wrong" in relation to that finding: Demir v Minister for Immigration & Multicultural Affairs (unreported, Ryan J, 19 October 1998) at pp 22 and 24; Minister for Immigration & Multicultural Affairs v Epeabaka (unreported, Full Federal Court, 6 January 1999) at p 11. See also Bhuiyan v Minister for Immigration & Multicultural Affairs (supra) at p 4. · RRT is under a duty to raise, plainly and unambiguously with an applicant the critical issues on which his or her application might depend: Meadows v Minister for Immigration & Multicultural Affairs (unreported, Full Federal Court, 23 December 1998) at p 25 (per Merkel J) and see p 12 (per Einfeld J) and p 18 (per von Doussa J). See also Hussein v Minister for Immigration & Multicultural Affairs (1999) FCA 288 par 29 and par 30. 14 RRT made no enquiries as to the authenticity of the documents related to the arrest "because of its obligation to protect (the applicant's) identity". There is or may be a question as to whether s 431(2) operates to preclude RRT from making enquiries which would probably involve, directly or indirectly, disclosure of the applicant's identity, at least in circumstances where the applicant consents to the enquiry being made. 15 I do not need to resolve that issue here, as I do not think that an enquiry as to the genuineness of the documents in question can be characterised as being information which is readily available to RRT so as to give rise to one of the "rare" cases in which there is a duty to seek out that information. There is no material before me as to whether or how officialdom in Dhaka would respond to an enquiry as to the genuineness of the documents relating to the arrest warrants, nor do I know what measure of reliability would attach to any such response. 16 Given the information available to RRT from the Department of Foreign Affairs & Trade ("DFAT") that in Bangladesh "arrest warrants can be bought – really any piece of paper you can get anywhere" RRT was entitled not to be satisfied that the documents submitted were genuine without being under any duty to obtain verification of the authenticity or otherwise of the documents placed before it through official channels. 17 Section 430(1)(c) requires that RRT set out its findings on any material question of fact. RRT did not state, in terms, that the documents relating to the arrest were fabrications. What it said was that it was satisfied that the applicant does not face politically motivated charges in Bangladesh. Theoretically, that could accommodate the position that the applicant does face the charges referred to in the documents, but that there was no political motivation for them. But there is nothing in RRT's findings which would sustain a conclusion to that effect, and to attribute such a conclusion to RRT would be contrary to the general thrust of its process of reasoning. 18 In my view on a fair reading of RRT's reasons, it has found that the documents are not genuine documents – otherwise it would have been obliged to make an assessment as to whether the charges referred to in them were "false charges", in the sense of being actual charges, but politically motivated and without factual foundation. Thus there has been compliance with s 430(1)(c). 19 The applicant's letter of 25 September 1998 (see par 7 above) was treated by RRT as authorising RRT to verify the authenticity of at least one of the documents. The letter of 15 October 1998 (see par 8 above) was to like effect. For reasons which it gave, RRT did not take up that invitation, and I have found that it was not in breach of any duty to which it was subject in not making enquiries as to the genuineness of the documents through official channels. But a further issue which then arises is whether it was open to RRT to come to a conclusion that the documents were not genuine (as I have found that it did) without raising "plainly and unambiguously" with the applicant its concern as to the genuineness of the documents in question. 20 This issue is not separately raised by the application for review, nor was it referred to in the applicant's original written or oral submissions. But whilst the applicant (if I may say so without condescension) is intelligent and articulate, the difficulties facing a person in his position without legal representation, are obvious, and I felt obliged to raise the matter myself. Accordingly, after reserving my decision I asked for and received submissions on the point. I would allow the application to be amended so as to include a ground of review under s 476(1)(a) in association with s 420(2)(b). The respondent did not oppose this course. 21 Unlike Meadows the issue does not, or does not necessarily, directly concern the applicant in the sense that he could reasonably be expected to be able to give evidence favourable to his case on the genuineness of the documents. Nor was RRT's finding on genuineness used as the basis for an adverse finding on the applicant's credit. And RRT did, by its 28 October 1998 advice (see par 9 above) put the applicant on notice that RRT inferred from the publication called "Evidence" of July 1998 of a list of BNP leaders who were facing politically motivated charges without mention of the applicant, that there were no false charges against him. 22 The applicant is not shown to have been a "BNP leader", and there is nothing in the reply of 6 November 1998 sent by the applicant's solicitor in response to RRT's 28 October 1998 advice, which indicates an appreciation on the applicant's part that RRT called into question the genuineness of the documents relating to his arrest; although that may have been a corollary, but for reasons later given, not a necessary corollary, of RRT's expressed concern. 23 The original application for a protection visa disclosed that amongst the documents to be provided later was a certified copy of a warrant for arrest as evidence that the applicant's life would be in danger in Bangladesh if he is forced to return there. No document satisfying that description was before the original decision-maker. A statutory declaration prepared by the applicant in support of his application to RRT again foreshadowed the production of such documents, but none had been produced by the time of the RRT hearing. 24 At the hearing the applicant told RRT that he did not know if the 1996 arrest warrant was still valid. He thought he might be briefly detained if he returned to Bangladesh, but would be released quickly. This appears to have been the catalyst for the telephone communication with RRT referred to in par 7 above and which ultimately led to the production of the documents in question. 25 The existence and subsistence of one or more warrants for the arrest of the applicant on false charges was a central issue in his application. The applicant put forward the documents in question as genuine documents and invited RRT to make enquiries as to their authenticity. In my view it follows from Eshetu, Meadows and Bhuiyan that if RRT was to fulfil its duty to act "according to the substantial justice and merits of the case", it was encumbent on it to make it plain to the applicant that RRT did not intend to make the enquiries which the applicant invited it to make, but nonetheless proposed to proceed upon the basis that it was not satisfied as to the genuineness of the documents, and encumbent on it first to afford the applicant an opportunity of putting whatever he wished to say in that regard. 26 Considerations of due administration of the Act require that if RRT proposes to find documents submitted as genuine not to be so, without first taking up an invitation to check on their authenticity, the applicant should be "plainly and unambiguously" told what RRT proposes to do, and given the opportunity to respond. Otherwise the applicant might be misled into believing that he could rely on RRT to enquire as to the authenticity of the documents in question. I do not mean to imply that RRT is in any way obliged to take up the invitation, but for the reasons which I have given, the fact that the invitation is issued cannot simply be dismissed as irrelevant. 27 The question then, is whether the position is any different given that the documents were submitted late. RRT is required to provide a mechanism for review that is fair, just, economical, informal and quick (s 420(1)). I agree that the applicant was given a considerable period to prepare for the hearing as well as some time thereafter to supply documents. The documents relating to the arrest warrant were supplied after the period expressly allowed. 28 But RRT did not reject the "evidence" relating to the arrest warrants on the ground that it was submitted too late, and I do not need to decide whether it would have been entitled to do so. The applicant maintained all along that he wanted to submit such documents, but was having problems securing them. RRT acquiesced in the submission of the material. Having received the material without protest or adverse comment, the fact that it was submitted late really ceases to be of much, if any, significance. 29 The duty imposed by s 420(2)(b) subsists throughout the whole of the RRT's processes, although the content of the duty may vary depending on the circumstances. Having acquiesced in the submission of the documents in question, procedural fairness required the applicant to be told if RRT did not propose to take up his invitation. Had the applicant been so informed, he may have adduced further evidence to verify the authenticity of the documents. 30 RRT states: "It was put to Mr Ahmed that the Tribunal inferred from this (ie the absence of his name from the list in 'Evidence') that there was no false charge against him." The reference is to a communication of 28 October 1998. This communication was relied upon by counsel for the respondent as a sufficient notification. It was not suggested that there was any other. 31 There may be room for differences of opinion as to whether this amounts to a sufficient notification to the applicant so as to discharge what I have found to be RRT's duty to act in accordance with the substantial justice and merits of the case. 32 In my view, it does not. Nor, as earlier mentioned, does the solicitor's response indicate an appreciation on the part of the applicant that RRT was thereby calling into question the genuineness of the documents submitted. On one view RRT was simply conveying a view based upon "Evidence", but one which was formed prior to, or without the benefit of, the results of enquiries as to the genuineness of the documents in question. The "substance or gravamen" of the communication cannot be characterised as a lack of satisfaction with the authenticity of the documents, or an intention not to pursue enquiries in that respect. Similar incidents of persecution 33 As earlier indicated, RRT found that the applicant was but an occasional contributor to pro-BNP publications in an environment where vigorous political debate is common. RRT did not commit any reviewable error in finding, as it did, that the applicant was unlikely to be exposed to harassment on this account. The incidents of harassment suffered by some editors and journalists were not incidents of persecution of persons in a similar position to that of the applicant. 34 RRT accepted that the applicant may be discriminated against by reason of his open expression of support for BNP by being denied access to employment as a pilot with the government owned airline. 35 RRT correctly recognised that sufficiently severe limitations on access to employment could constitute persecution within the Refugee Convention. It was, however, open to RRT to conclude, as it did, that whilst difficulty in obtaining a particular position for which the applicant is qualified is discriminatory, it was not of such a degree of severity as to amount to persecution. Conclusion 36 The application should be upheld on the limited basis that there has been a failure, in the respect indicated, to comply with s 420(2)(b) hence, conformably with Eshetu, establishing the ground in s 476(1)(a) I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 31 March 1999 Applicant: In person Counsel for the Respondent: S Lloyd Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 29 March 1999 Date of Judgment: 31 March 1999