NAFJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 91

FEDERAL COURT OF AUSTRALIA

NAFJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 91

MIGRATION – review of Tribunal decision - lack of credible explanation for radical difference between applicant's basis for claim to delegate and that made to Tribunal – no error of law in Tribunal decision – conduct by migration agent called to question.

Migration Act 1958 (Cth) s 474

Re Minister for Immigration & Multicultural Affairs Ex parte Durairajasingham (2000) 168 ALR 407 applied Kopalapillai v Minister for Immigration & Multicultural Affairs (1998-1999) 86 FCR 547 applied Plaintiff S157/2002 v Commonwealth of Australia referred to NAFJ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1309 OF 2002 CONTI J 12 FEBRUARY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1309 OF 2002

BETWEEN: NAFJ OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 12 FEBRUARY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Application be dismissed. 2. Applicant to pay the Respondent's costs of the proceedings. 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 1309 OF 2002

BETWEEN: NAFJ OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 12 FEBRUARY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This application for review was heard by the Court on 12 February 2003. The Applicant was unrepresented, and was assisted by an interpreter. Although in par 3 of his affidavit of 10 December 2002 made in purported support of the application for review, the Applicant said "… I am fluent in three languages, Bengali, Arakanis and English", he spoke to the Court entirely through the medium of an interpreter in Bengali. At the conclusion of the proceedings, I dismissed the application with costs. 2 The Applicant applied for a protection visa on 31 August 1999. His country of residence and citizenship was stated in the visa application form to be Bangladesh. He had arrived in Australia by air flight on 13 August 1999. He disclosed in that application, which was prepared by migration agents "Little 'n' Bons Associates of Sydney" (whereof the principal is Mr Boni Amin) that he had earlier visited India from Bangladesh from 7 March 1998 to 6 April 1998 for the purpose of a pilgrimage to Azmir. The nationality of his passport was Bangladesh, and the same was said to be valid from 11 January 1998 to 10 January 2003. An attachment to the handwritten application contained the following literal word processed information as the basis of his claim to refugee status, being in summary his association with the well known Bangladesh political party the BNP and its leaders: "Q30/C Previous Addresses in last 10 years I went in hiding from the above last address since I along with other BNP leaders and workers was accused of a police constable murder during the strike and mass demonstration called by my party, BNP in protestation of allowing transit facilities to India. I will describe more in details in my next submission to the department. Q34/C Past Employment Record As I came from a very well off family in Bangladeshi perspective, fortunately I did not ever have to worry to support myself. As such I did not have to do any formal jobs besides looking after my family business occasionally. Most of the time I was involved in politics and relevant other social activities. Q53/C My contact in overseas and the media of contact I am still in touch with the following BNP leaders and my colleagues through telephone and writings: 1. Md Mamun, President, Dhaka City committee, Jatiyata Badi Chatradal (J) 2. Mr Ruhul Quddus Akil, Joint General Secretary, Dhaka Central committee (JCD) 3. Mr Sadak Hossain Khoka, Convenor, Dhaka Greater City Adhoc committee, (BNP). (This person is one of the great leaders in BNP, who has been alleged as the main accused in the police constable murder case. I have been accused as one of the accomplices in the same case)." 3 A delegate of the Minister refused the Applicant's visa application on 1 October 1999. The reasons for refusal were as follows: "3.2.1 Apart from vague references to the BNP the applicant makes no Convention related claims, and he has presented no evidence which prompts further enquiry as to whether or not his circumstances may be Convention related. 3.2.2 Although he indicates "statement to come", no such statement has yet been received, one month after he lodged this application. I refer to Clause 866.22 of Part 866 of Schedule 2, of the Migration Regulations, which states that a primary criterion which must be satisfied at the time of application, is for the applicant to have made specific claims under the Refugees Convention." 4 On 14 October 1999, the Applicant applied to the RRT for review of the delegate's decision. Mr Amin was shown in that application to be continuing in the role of the Applicant's adviser, and he appears to have filled out, or assisted the Applicant to fill out, the application form. In the section of the application provided for a statement of reasons, the following appeared: "Please see my full statement along with other submission. All these will be provided soon." There is no evidence of any "full statement" accompanying the application in any contemporaneous sense. I would infer that by this time, Mr Amin was still representing the Applicant. Thereafter the chronology of events becomes somewhat confusing, particularly by reason of the protracted nature of the processes in the RRT resulting from the Applicant's conduct thereof. 5 The hearing or main hearing before the RRT took place on 20 November 2001. Earlier on 7 November 2000, another firm of migration agents had replaced Mr Amin's firm, namely Kazi & Associates whose principal is Mr Kazi. He appears to have prepared, or assisted the Applicant to prepare, a lengthy statutory declaration of 28 pages in length, which was not formalised until 15 November 2001, which he thereafter placed before the RRT. Mr Kazi was the attesting witness to the Applicant's signature to the declaration, Mr Kazi describing himself in that context as a barrister and solicitor. The opening paragraphs of the statutory declaration read literally as follows: "1. I am a stateless Burmese (Myanmar) refugee since 1978. Because of my refugee background and subsequent political association with a revolutionary political and social organization, I have been facing a serious threat of life and false persecution in both my country of origin (Myanmar) and in my temporary living place, Bangladesh. Following UN convention, I am clearly a state less refugee and I am applying for my Protection from Australia. The circumstances are given below for your kind perusal: 2. I was born in 06-01-1071 in Lawadaung (Lawadet) village under Buthidaung Township of Arakan, Burma (Myanmar). My father, Mohammed Nabiul Haque, forced to leave Lawadaung, Arakan in 1978. 3. I came to Bangladesh as a refugee with my parents in 1978 while I was only seven years old. 4. I was educated in Bangladesh in local Bengal language and became socialised with the local cultures. I did not have any chance to learn Burmese language, however, being influenced by my parents, I learnt Arabian's local dialects. Now, I am fluent in three languages, Bengali, Arakanis, and English. 5. I stated my political activities in joining Arakan Rohingya Islamic Front (ARIF) in 1987 to restore my motherland and language. I was an active youth leader of this revolutionary organization. Our main motto was free out motherland Arakam from Burmese occupation and military dictator. In this concern, hundred of thousands of Arakanis militias took shelter in Bangladesh and organized their freedom movement. Our main platform is ARAKAN ROHINGYA NATIONAL ORGANIZATION (ARNO). The following brief discussion is presented for a quick glance about Burma and Rohingya nationhood." The closing pars 21 and 22 of the statutory declaration provide a convenient summary thereof for present purposes, reading as follows: "21. We are now today in between two horns of dilemma. Despite our aspirations, commitments and co-operation with the Burmese oppositions and countrywide movement for democracy and human rights, we are deliberately distanced and barred from united movements and democratic forums even by the main stream political forces. Their statements and attitudes towards Rohingya people are full of ambiguities and ambivalence. Neither the Rohingyas are consulted with nor are allowed to participate in the nation wide democratic activities and in the present constitution making process by the exile pro democracy activists. The drafters of the present draft constitution are seemed to have overlooked the principle of democratic practice and human rights consideration in the case of Rohingyas. Thus, the present draft constitution of the opposition groups does not reflect the genuine hopes and aspirations of the underrepresented Rohingya people. As such it can not be a guarantee and hope for them. Most of the oppositions do not dare speak the truth to support the inalienable rights and freedom of the Rohingya people lest it will hurt the sentiment of the Rhakhines (Maghs) who are hostile to the Rohingyas and have been dreaming on to exclusively own and dominate Arakan without Rohingyas. 22. Considering above situation and because of my active role in ARIF, I am not interested to return again either in Bangladeshi or Burma. If I return to Bangladesh, which is not my country, I would be severely persecuted by the authority or killed by the Burmese dictators or their personal armies." 6 Prior to the RRT hearing on 20 November 2001, an issue had thus been notified on behalf of the Applicant to the RRT, doubtless by Mr Kazi, to the effect that the Applicant's original application for refugee status made to the Minister or his delegate was misconceived in law and invalid. Mr Kazi continued to pursue contentions to that effect on behalf of the Applicant, both before and after the handing down of the RRT's decision and accompanying reasons about one year later on 11 November 2002, doubtless on the footing of what appeared in the statutory declaration of 15 November 2001. Prior to handing down its decision, that is to say, by letter dated 26 November 2001, the RRT wrote to the Applicant in the following terms: "The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa. The information is as follows: Information given in your protection visa application indicated that you referred to yourself as being Bengali by ethnicity, Bangladeshi by nationality, claiming protection for being a member of the BNP who, along with some BNP leaders, have been accused falsely of a crime. Information given at the hearing showed that you have changed your story and that a BNP-related set of claims was no longer relevant. Your claims at the hearing are that you are by ethnicity a Rohingya from the Burmese province of Arakan, and that you were a stateless refugee in Bangladesh, and that you had been involved with a pro-Arakanese independence group and been targeted by the Bangladeshi authorities over this political activity. … The two sets of claims are markedly dissimilar and this fact may call the Tribunal to question the credibility of your claims. The fact that you hold a Bangladeshi passport is at apparent odds with your claim to be a stateless Rohingya refugee in Bangladesh whose country of nationality is, from a reading of your later claims, Burma. It is important that you give full written reasons for the changes in your claims in order to allow the Tribunal to properly assess your circumstances. You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received a the Tribunal by no later than 20 December 2001." 7 The Applicant had given evidence to the RRT at the hearing on 20 November 2001 which the RRT found to be "markedly different from that given earlier in writing". Extracted below is the RRT's summary of the Applicant's evidence given at the RRT hearing: "… According to the new claims, the applicant is a stateless Burmese refugee born in Arakan, Burma, who had come to Bangladesh with his parents as a refugee at the age of seven. He had been educated in Bengali. IN 1987 he had joined the Arakan Rohingya Islamic Front (ARIF) and become a youth leader of the group which aims to free its "motherland" from Burmese control. The applicant said that Burmese Rohingyas from Arakan who had fled to Bangladesh were now protesting against repatriation. He cited a Bangladeshi news article quoting the then Bangladeshi Foreign Minister as urging the Burmese Government to expedite the process of repatriation "of the remaining 20,867 Myanmar refugees". Another Bangladeshi article submitted mentioned that thousands of Rohingyas had gone missing from refugee camps in Cox's Bazaar and were in hiding elsewhere in Bangladesh and that it was proving difficult to locate them because "their appearance, language and culture are almost similar to that of the local people". Other articles mentioned fighting along the Burma-Bangladesh border between the Burmese army and the Rohingya Solidarity Organisation (RSO), an "extremist" Islamic group in Burma which has been fighting to establish an independent Muslim State of Arakan, and the arrests of Bangladesh of members of the Rohingya National Army (RNA), military wing of the Arakan National Rohingya Organisation (ARNO), linked to the ARIF, the group in which the applicant claimed membership. The applicant claimed that because of his "active role in ARIF" he had been "persecuted" by the Bangladeshi Government and jailed for several months and would be persecuted again if returned to that country. He submitted a purported letter from the head of ARNO, Professor Nurul Islam, supporting his claims of being active for ARIF and of having been in jail. … The applicant said he could not produce any documentation supporting his claim to being a stateless Rohingya refugee in Bangladesh. He also claimed that his passport had been obtained through fraud. He said that his first set of claims ad been invented by his former adviser, Mr Boni Amin. Asked why Mr Amin would have made up these claims if his allegedly real claims were strong, the applicant said that it had happened because he lacked documentation to support his Rohingya claims. Asked if the Rohingya group/s he claimed to have worked for engaged in violence, the applicant said it had. Group members used weapons but he had not. He had engaged in non-violent political activities such as organising meetings and propaganda. Asked who had been against him in Bangladesh, the applicant said that he had been targeted by the Bangladeshi Government and the police who had laid a false charge against him in 1996 (that he had managed to have withdrawn), that he had worked underground on behalf of the Rohingyas, and that he had joined the BNP for a while when that party had offered its support to the Rohingya groups." 8 The RRT thus gave the Applicant the opportunity to explain the radical disparity between the two versions of his claim for refugee status, the first being that referred to in [2] above, and the second being that largely produced in [5] above. His response was that he had been dissatisfied with his original adviser, who had made up the Applicant's original claims, and further that the Applicant had not acted to correct the original claims, even after the delegate had made his decision, for the extraordinary reason that he did not open envelopes from DIMA. The Applicant was unable to explain nevertheless why his new claims were first presented at the hearing, despite having retained his new adviser Mr Kazi on 7 November 2000, which was about a year before the Applicant made his startling statutory declaration on 15 November 2001 (see again [5] above), and before the hearing took place before the RRT. 9 The RRT found that the Applicant was not credible, and that his new claims had been invented, pointing out that his initial claim to fear persecution because of his membership of the BNP had been undermined by the BNP's election victory in October 2001, which occurred the month before the RRT hearing. The RRT also relied upon the circumstances that the Applicant had travelled to Australia on a valid Bangladeshi passport, and had provided details of his membership of a wealthy family in Bangladesh in his original protection visa application (see "Q30/C" reproduced in [2] above), both of which matters were inconsistent with his new claim to be a stateless Rohyingya. 10 In the result the RRT was not satisfied that the Applicant's claims to be a stateless Rohingya, and to fear persecution in Bangladesh on that account, were true. The RRT found instead that the Applicant was not credible and his later claims contrived. Such findings were plainly, as counsel for the Minister submitted, matters of fact for the RRT to determine (Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407 at [67] (McHugh J). Moreover as long as the RRT's adverse credibility findings were open to it, which was plainly the case based on the material placed previously by the Applicant before the delegate, no error is demonstrated in or by its conclusions: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998-1999) 86 FCR 547 at 558-559. As counsel for the Minister rightly submitted, the RRT's findings were open for the reasons it gave, in particular the lack of any credible explanation for the radical disparity between the two sets of claims which had been successively made by the Applicant. Additionally on the subject of credibility of evidentiary material submitted to the RRT, the RRT found in its reasons for decision as follows: "The documentation submitted by the applicant in support of his claims to be a stateless Rohingya refugee are two purported letters from the head of ARNO/ARIF, both of which I find lacking in credibility because the signatures on the letters appear to be a clumsy attempt in one to copy the other, raising questions about whether one or both are fabrications, and because the evidence that the applicant has presented about himself as being [a] Bangladeshi national in my view outweighs these two letters. I am of the opinion that one of the letters at least is a fabrication and that the other, if not a fabrication, makes fabricated claims about the applicant to suit his purposes." No attempt or no realistic attempt was made by the Applicant to challenge those grave findings of the RRT during the course of the Court hearing, by way of explanation, written or oral, of the discrepancies in his radically different accounts. 11 The "Details of Claim" the subject of the application for review filed in Court belatedly on 19 December 2002 contained (literally) the following "Details of Claim": "1. The Refugee Review Tribunal has not attended any evidence in relation to the applicant's claim and thus its decision is influenced by sufficient doubts. The applicant provided a suitable vehicle and most of the grounds relied upon facts and documents, which the Tribunal did not consider. Thus the applicant rely on the following grounds: (a) The Refugee Review Tribunal did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed (Moin, Lee's case). (b) The RRT decision was affected by an 'Error of law' and 'Jurisdictional error'. (c) There was no evidence or other material to justify the making of the decision. 2. Therefore, the applicant seeks a review of the decision of the Refugee Review Tribunal under s 39B of the Judiciary Act 1903 (Cth) and Migration Act 1958 (Cth). The circumstance that curial authority (ie "Moin, Lee's case") was identified in the document suggests that the same may have been prepared by Mr Kazi. The affidavit of the Applicant in purported support of those "Details of Claims" bearing date 10 December 2002 was correctly described by counsel for the Minister as an edited version of a submission put to the Tribunal, in the form of the statutory declaration of the Applicant of 15 November 2001 (partly set out in [5] above) relating to the Applicant's alleged political involvement with the Arakan Rohingya Islamic Front (ARIF). It also embodied a substantial amount of purported "Country Information", to none of which the Applicant specifically referred in the course of his presentation to the Court. 12 Neither in the above form of application for review filed in Court (called "Details of Claim"), nor in his affidavit purportedly in support of that application sworn on 10 December 2002, nor in his address to the Court through an interpreter, did the Applicant distil or explain any error of law in the Tribunal's decision. His oral submission to the Court was essentially to the effect that his migration agent Mr Amin had caused him to put to DIMA and to the delegate a false case, contrary to his instructions, though no such submission was articulated in his said affidavit in support of that application filed belatedly in Court. Thus the Applicant's affidavit was silent as to Mr Amin's alleged professional misbehaviour in the context of the case put to the delegate. Moreover, the applicant did not explain how it came about that the Applicant came to Australia on what appeared to have been a valid Bangladeshi passport. In summary, the Applicant's case for review of the delegate's decision was utterly lacking in substance and merit. 13 In addition to the allegations by the Applicant as to the role undertaken by Mr Kazi in relation to his presentation of a case to the RRT, involving as it did the belated and radically different basis of claim to that presented to the delegate. I draw attention to the following passage in the RRT's reasons for decision: "After the hearing had finished and all concerned had left the hearing room, the Tribunal was asked to attend a meeting requested by the interpreter. The interpreter said that he had thought it proper for the Tribunal to know that before the hearing started, outside the hearing room, Mr Kazi had commented within earshot that he was "not interested in letting the hearing proceed" and had told the interpreter that "it would be good for this client if the hearing did not proceed". The adviser had instructed his client to speak in a fashion that would be hard to understand and had told him also to pretend not to understand the interpreter. He had hinted that the interpreter should co-operate in this process. The Tribunal asked the interpreter then and some time later, after consultation with the RRT Registrar, if he was prepared to set down this matter in writing so that a formal complaint could be taken up by the Migration Agents Registration Authority, but the interpreter said that he feared repercussions." 14 In the result, as counsel for the Minister rightly submitted, it becomes unnecessary for me to consider the jurisdictional implications of the recent decision of the High Court in S157/2002 v Commonwealth of Australia [2003] HCA 2. No suggestion of denial of natural justice on the part of the RRT was advanced by the Applicant. 15 Migration agents are in my opinion subject to duties of and responsibilities as to candour in the presentation of applications for review to the RRT which they prepare, and purport to rely on, in the course of making submissions to the RRT. I assume that the alleged conduct of Mr Kazi has been or will be considered by the appropriate authorities. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.