Arefin v Minister for Immigration & Multicultural Affairs [2001] FCA 252

FEDERAL COURT OF AUSTRALIA Arefin v Minister for Immigration & Multicultural Affairs [2001] FCA 252

ABU REZA MOHAMMED NURUL AREFIN & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N1047 OF 2000 TAMBERLIN J 5 MARCH 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1047 OF 2001

BETWEEN: ABU REZA MOHAMMED NURUL AREFIN & ORS

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 5 MARCH 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 In this matter the applicant and his family have applied for review of a decision of the Refugee Review Tribunal ("the RRT"), affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse them protection visas which are sought on the ground that they are refugees within the well known definition in the United Nations Convention Relating to the Status of Refugees and the Protocol ("the Convention"). 2 The main issues in the proceeding are set out in the decision which is the subject of the application for review. The principal issue is whether Mr Arefin's fear that he will be persecuted for reasons of his political or religious opinion if he returns to Bangladesh are well founded. His claim is that he will be killed or seriously harmed by Islamic extremists or fundamentalists if he returns to Bangladesh because he is anti-fundamentalist, because he expressed those views in the newspaper he worked for and a book he wrote, and because he was involved with a committee established to bring to trial members of Bangladesh's largest Islamic political party. Mr Arefin states that he does not fear harm at the hands of the current government, but believes that they will not be able to protect him from the religious extremists who wish to harm him. 3 The principal passage in the decision of the RRT, which is referred to by the applicant, is a passage which occurs at page 555 in volume 3 of the book of relevant documents. That passage reads this way: "Furthermore the evidence indicates that people who have been threatened by fundamentalists are given protection by the authorities, especially if they have some prominence in the community. While I do not believe that Mr Arefin had the same profile as people such as Taslina Nasreen, he is well known in media circles and has associations with people of influence such as Mr Shahid Ahmed, and I believe that he would be given protection by the authorities should this be required. A possibility which I believe is no more than remote. I am therefore not satisfied that he has a well founded fear of persecution in Bangladesh for reasons of political opinion or religion or for any other reason contained in the Convention." 4 The basis on which the submissions are made seeking that review be granted by this Court are two-fold. The first is that there has been a misapplication of the law to the facts as found by the RRT. This is the ground referred to in s 476(1)(e) of the Migration Act 1958 ("the Act"). 5 The second ground which is relied on is that set out in s 430(1)(c) and (d), which require the RRT to prepare a written statement that sets out the findings on any material questions of fact and refer to the evidence or any other material on which the findings of fact were based. The submission is that the RRT did not prepare a written statement which referred to the evidence or material on which the relevant findings of fact were made in the present case. 6 In relation to the first grounds, namely the misapplication of the law to the facts as found, it is said that there were a number of findings, which are set out in paragraphs appearing on page 554, par 29 of the decision under review, and that on the findings made in these passages it follows that the RRT had clearly misapplied the law to the facts as found. In substance this really, it seems to me, amounts to no more than simply saying that the RRT erred in reaching the factual conclusion which it did. Obviously the requirements of s 476(1)(e) cannot mean that in every case where the RRT reaches a decision which is said to be wrong, and which as a matter of fact may arguably be wrong, give rise to a ground for judicial review. There must be something more in the exercise which is undertaken by the RRT to bring the decision within that ground. 7 It has been suggested in submissions that one such misapplication may arise in circumstances where having correctly set out the law and having made factual findings, the RRT then asks itself the wrong question. I accept this submission and that is one of a number of types of error or misapplications which can arise in this context. 8 The difficulty which I think the submission for the applicant faces in the present case is that the applicant has selected only a certain number of findings of fact and relied on those as indicating that there has been a misapplication of the law. In fact, if one considers the decision as a whole, and regard is had to the vast volume of material which was before the RRT, there are a number of other significant findings both as to fact and credit, which must also be taken into account in making the submission that there has been a misapplication of the law to the facts. 9 The RRT found that Mr Arefin was not an entirely credible witness and the decision maker believed that he had exaggerated his importance as a political figure in Bangladesh, and the extent of the problems which he faced prior to departure from Bangladesh. In addition, there are a number of submissions where specific mention is made of circumstances and testimony which is not accepted by the RRT, with the consequence that one important fact in reaching its ultimate conclusion appears to be credibility. 10 In addition, there is a second difficulty with the submission which has been made, and that is that independently of the finding in relation to the availability of protection and the specific findings which are relied on by the applicant, there is a finding to the effect that someone such as Mr Arefin would not face a real chance of suffering harm amounting to persecution because of his views on politics or religion. This finding has not been attacked and if it remains on foot then it is fatal to the applicant's case independently of the question of protection. 11 In relation to the question whether the government is likely to be willing to protect the applicant and his family, there is a volume of evidence in relation to a high profile feminist known as Taslina Nasreen who is referred to in the quoted paragraph. The evidence strongly supports the view that Taslina Nasreen has a very high profile and arouses great hostility in Bangladesh amongst her opponents, such that it is fair to infer from the material referred to in the decision, that her life may be in some danger. Nevertheless, the evidence indicates that in relation to Ms Nasreen, the police have been willing to take steps to protect her position, and this tends to support the view that the government is prepared not to simply protect in a nominal way, but is prepared to protect persons in danger from persecution by the fundamentalists. 12 There is also material from which it can be inferred that journalists at the present time are not subject to systematic attacks. It is stated in the decision in a passage above that which is quoted above: "That while there have been isolated attacks by extremist religious groups since 1994, the evidence does not suggest that there have been widespread or systematic attacks on liberal journalists." 13 This is material before the RRT on which it was entitled to rely. 14 Having regard to the fact that there are a number of findings made which are important and central to the RRT's decision which are in addition to those which are relied on by the applicant, I am not satisfied in the present case that it can be said that, having regard to all the facts which have been found by the RRT, there has been a misapplication of the law. 15 The second matter which arises is the short question as to whether the decision sets out the findings on material questions of fact or refers to the evidence or other material on which the findings of fact were based. This is a reference of course to the requirements of s 430(1) of the Act. There can be no doubt on reading the decision that it sets out the findings on material questions of fact, including questions of protection, remoteness of persecution and other relevant considerations. 16 It is interesting to note that the first three paragraphs of the subsection refer to "setting out" various matters, whereas par (d) uses the expression "refers to the evidence". In my view, in the present case, there has been a reference to the evidence or material on which the finding of fact as to protection was based and also as to the material relating to the remoteness of any real chance of persecution. 17 I should mention that the expression "refers to the evidence of material" is one which can have several meanings so far as the degree of abstraction or specificity is concerned. It may refer simply to a broad reference to the type of evidence or material or the source and may be in other circumstances narrowed down to a situation where specific paragraphs of various reports are mentioned. The latter requirement would seem to me to be far too narrow, but I do think that there would need to be some greater specification than simply referring en masse to a series of material generally. 18 In the present case I am satisfied that the reference to the materials which have been relied upon as a basis for reaching the conclusion as to refugee status of the applicant have been sufficiently spelt out as to satisfy the requirements of s 430. 19 Accordingly, my conclusion in the present case is that the application should be dismissed. 20 The difficult circumstances of the applicant have been referred to by counsel on instructions, and I accept that there will be some degree of considerable hardship to the applicant and his family if he is required to pay costs. There is a strong rule which the court generally applies to the effect that costs should be paid by the losing party. However, in the circumstances of the present case, I think the appropriate order is that each party should pay their own costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.