FEDERAL COURT OF AUSTRALIA Hai v Minister for Immigration & Multicultural Affairs [2001] FCA 412 MIGRATION – review of the decision of the Refugee Review Tribunal – whether there was no evidence or other material to justify the making of the decision Migration Act 1958 (Cth) s 476(1)(g), s 476(4)(b) Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 ABDUL HAI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1178 OF 2000 STONE J SYDNEY 3 APRIL 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1178 of 2000 BETWEEN: ABDUL HAI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: STONE J DATE OF ORDER: 3 APRIL 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the application be dismissed; 2. the applicant pay the respondent's 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 N 1178 of 2000 BETWEEN: ABDUL HAI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: STONE J DATE: 3 APRIL 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant, a citizen of Bangladesh, lodged an application for a protection visa under the Migration Act 1958 (Cth) ("the Act") on 13 March 1998. A delegate of the respondent ("Minister") refused to grant a protection visa on 23 March 1998. The Refugee Review Tribunal ("Tribunal") upheld that decision on 20 September 2000 in a decision handed down on 10 October 2000. On 6 November 2000, the applicant filed an application for an order of review in this Court. The applicant was given leave to file an amended application in Court today. 2 Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees, as "amended" by the 1967 Protocol Relating to the Status of Refugees ("the Convention"). Article 1A(2) of the Convention provides that a refugee is any person who: "owing to a 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." Applicant's claims before the Tribunal 3 The applicant's claims are to be found in his application for a protection visa, the written submissions made by the applicant to the Tribunal and the oral evidence given by the applicant to the Tribunal. 4 The applicant claimed that he had a well-founded fear of persecution by reason of his political opinion. He claimed that he was a supporter of the Jatiyo party and that, through his association with that party, he worked as a personal assistant to the former Prime Minister of Bangladesh, Kazi Zafar Ahmed. As a result of his association with the Jatiyo party, he has allegedly been subjected to various forms of harassment, including having false charges brought against him. He submitted to the Tribunal that the authorities in Bangladesh would not be able to protect him from political violence. The persecutory incidents cited include an abduction and death threats in May 1997, an arrest in March 1997 in relation to a property damage and false charges brought in relation to a bombing incident in April 1997. Tribunal's decision 5 The Tribunal's response to the applicant's evidence is evident in the following extract from its reasons: "The Tribunal had difficulty with the applicant's credibility.…The applicant's account of his experiences was often vague and sometimes confused. In relation to one key incident, his alleged abduction, the account was extremely far-fetched and unlikely, involving poison tablets and masked strangers. The applicant claims to have been an active supporter of ex-President Ershad and the Jatiyo party since the early 1980s, but at the Tribunal hearing he said that not only did he not get involved in campaigning at either the 1991 or 1996 national elections because of the risk of violence, but that he did not even vote. This strongly suggests that the applicant was not a political activist at all." 6 The Tribunal accepted that the applicant may have had a political opinion favourable to President Ershad and the Jatiyo Party in the period before 1994, but did not accept that he had been involved in regular political activity or that he had ever been a political activist. It accepted that he may have been arrested in about March 1997 but did not accept that such arrest was for a Convention reason, deciding instead that the arrest was a result of the applicant being near the scene of the crime. 7 The Tribunal did not accept that the authorities had wanted to arrest the applicant because of the bombing incident in April 1997 or his association with Kazi Zafar. It based this finding on the inference that, had the authorities wanted to arrest the applicant, they could have done so because the applicant continued to attend his regular workplace daily. The Tribunal did not accept the applicant's evidence in relation to his alleged abduction, commenting that the evidence was "highly implausible, as well as being confused" and was "extremely far-fetched and unlikely". The Tribunal also noted that the applicant did not mention this incident until the day of the hearing before the Tribunal. 8 The Tribunal also referred to the applicant's claims arising out of his employment with Kazi Zafar. It stated: "The Tribunal accepts that the applicant became an employee of the former Prime Minister Kazi Zafar Ahmed in 1994. The description of the duties he performed suggests that the applicant was a minor employee of Kazi Zafar, rather than in any sense a political colleague." 9 The Tribunal was satisfied that the applicant might have been the victim of some intimidation by dissatisfied political colleagues after Kazi Zafar left the Jatiyo Party. However, it did not accept that this intimidation was sufficiently serious as to have amounted to persecution. The Tribunal referred to independent evidence to the effect that Kazi Zafar had been reconciled with ex-President Ershad and the Jatiyo Party and concluded that there was no reason why the applicant would be persecuted by members of the Jatiyo Party if he were to return to Bangladesh. 10 The Tribunal also considered the applicant's more general claim that he might be a victim of political violence as a result of his opposition to the Awami League. The Tribunal rejected this claim on two grounds. The first was its finding that the applicant was not a political activist in the past and that there was no reason to assume that he would be involved in any activities against the regime if he returned to Bangladesh. The second was its finding that political violence was non-discriminatory, non-selective and not tolerated by the authorities in Bangladesh and that, therefore, any fear of such violence would not fall within the Convention. Submissions and Consideration 11 At the hearing today, the applicant was given leave to file an amended application. That application raised only one ground of review, namely, that: "the Tribunal made inferences in its decision for which there was no evidence or other material to justify the making of the decision providing a ground of review under section 476(1)(g) of the Migration Act." 12 The applicant particularised this claim as follows (omitting some references): 1. the Tribunal found that the applicant was a "minor" employee of the former Prime Minister. There was no evidence to justify this finding. 2. the Tribunal contended that there is no official tolerance of politically motivated violence by the authorities in Bangladesh. There was no evidence justify this finding. 3. Under the decision in Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 there was not the evidence or other material capable of supporting the particular facts on which the decision was based. 13 Mr Burwood, counsel for the applicant, went through each of these claims in detail. Without setting out his submissions in full, it is sufficient to comment that, in my opinion, the claims made by Mr Burwood amounted to an invitation to this Court to review the Tribunal's findings on the merits. It is no longer necessary to cite authority to support the proposition that this Court cannot accept such an invitation. 14 The grounds of review are comprehensively set out in the Act. Section 476(1)(g) provides that is it a ground of review "that there was no evidence or other material to justify the making of the decision". That ground of review is qualified in section 476(4) which states that the ground specified in paragraph (1)(g) is not to be taken to have been made out unless the person who made the decision based the decision on the existence of a particular fact and that fact did not exist: s 476(4)(b). The decision of the Full Court in Indatissa, as well as numerous other authorities, emphasised that, even if the applicant is able to show that s 476(4)(b) is satisfied, it is still necessary to show that there was no evidence or other material to justify the making of the decision. If, on a review of the Tribunal's decision, there is evidence that supports the findings of fact challenged by an applicant and the decision was based on those findings, then it is not possible to satisfy s 476(4)(b) and therefore it is not necessary to consider the remaining elements of the subsection. 15 In relation to the first claim, the only reference to the applicant being a minor employee is that the Tribunal commented: "The Tribunal accepts that the applicant became an employee of the former Prime Minister Kazi Zafar Ahmed in 1994. The description of the duties he performed suggests that the applicant was a minor employee of Kazi Zafar, rather than in any sense a political colleague." 16 While I am not convinced that this was a material finding it is still the case that there was ample evidence, much of it coming from the applicant himself, to justify the Tribunal's characterisation of the employment. The applicant's account of his employment was that it involved him performing duties commonly performed by a personal assistant including delivering messages, arranging chairs at meetings and so on. In any event, when read in context, the Tribunal's conclusion that the applicant was a minor employee was by way of contrast with the Tribunal's more substantial finding that he was not a political colleague of Kazi Zafar. Whether or not this Court would attach the same weight to the evidence is not to the point; in my view, the finding was open to the Tribunal on the evidence before it. 17 The second point related to the Tribunal's finding that there was no official tolerance of politically motivated violence by the authorities in Bangladesh. Mr Kennett, counsel for the Minister, pointed to independent evidence supplied by the Department of Foreign Affairs and Trade ("DFAT") in April 2000. The Tribunal in its reasons referred to that evidence. Among the evidence was DFAT's statement in answer to a question whether the Awami League was willing and able to prevent political violence. The answer was, "The Awami League claims that it is keen to crack down on all forms of lawlessness including politically motivated violence. To that end it passed a controversial Public Safety Act in January 2000, in which the powers of arrest and detention for a series of offences have been increased. The government claims one of its objectives is to reduce crime, including any perpetrated by political party members of whichever persuasion. The Awami League exercises sufficient control over its own members and over the police to be able to control violence against the opposition, but that it may not always use its powers to do so." 18 On that evidence, it was open to the Tribunal to make the finding that there is no official tolerance of politically motivated violence in Bangladesh. 19 The third point raised by the applicant, relying on the decision in Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181, was that there was no evidence or other material capable of supporting the particular facts on which the decision was based. In that case, the Full Court referred to an aspect of the primary Judge's reasoning which suggested that, in applying s 476, it was not necessary to show that there was no evidence that could conceivably have justified the making of the decision. The Full Court in Indatissa rejected that approach, saying, "That is not a permissible approach to the operation of s 476(1)(g), as qualified by s 476(4). In order to satisfy the ground contained in s 476(1)(g) it is necessary, but not sufficient, to satisfy the requirements of s 476(4). Section 476(1)(g) requires that there be no evidence or other material to justify the decision. That, however, does not involve a qualitative assessment, in an application to the Court for review, of the evidence and material before the Tribunal. If it did justify such an approach, review by the Court would entail a reconsideration of the weight that should be given to the evidence and other material before the Tribunal." 20 The essence of the applicant's claims in this Court is that it does not agree with the weight that the Tribunal gave to the facts as found. In my opinion there was evidence to support the facts found. The weight given to the evidence is a matter for the Tribunal. I am bound by the decision of the Full Court in Indatissa and, in my opinion, if I adopted the approach taken by the applicant in this case, I would be adopting an approach that the Full Court has stated is not permissible. 21 For the reasons I have given, the application must be dismissed, with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 10 April 2001 Counsel for the Applicant: Mr D Burwood Counsel for the Respondent: Mr G R Kennett Solicitor for the Respondent: Sparke Helmore Date of Hearing: 3 April 2001 Date of Judgment: 3 April 2001