NAEV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 160

FEDERAL COURT OF AUSTRALIA

NAEV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 160 NAEV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1263 of 2002 BRANSON J 25 FEBRUARY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1263 of 2002

BETWEEN: NAEV

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 25 FEBRUARY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1263 of 2002

BETWEEN: NAEV

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 25 FEBRUARY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant arrived in Australia on 28 May 1999 on a three month temporary business visa. He lodged an application for a protection visa on 8 July 1999. On 16 September 1999 a delegate of the respondent refused to grant the applicant a protection visa. The applicant sought a review of the delegate's decision by the Refugee Review Tribunal ('the Tribunal'). On 31 October 2002 the Tribunal handed down its decision which affirmed the decision of the delegate not to grant the applicant a protection visa. The applicant has applied to the Court for a review of the Tribunal's decision. 2 The applicant first appeared before the Tribunal on 27 March 2002. On that day he presented as highly distracted and evidence was given that he was suffering from psychosis. The applicant's adviser requested that the hearing be postponed for some months to give the applicant a chance to be treated and recover. The Tribunal granted a postponement of the hearing until 2 July 2002. 3 At the hearing on 2 July 2002 the applicant was, in the view of the Tribunal and the applicant's adviser, and the applicant himself, completely lucid. The Tribunal did not consider any factual material discussed or referred to in the first hearing in making its decision. 4 The applicant claims to fear persecution in Bangladesh, both because of his political opinions and because of his religious opinions. In a signed statement attached to his application for a protection visa the applicant made the following claims. He was born in Bangladesh on 30 December 1968 to a respectable family. He had been involved in politics since his student life and that after completing his secondary school certificate he had attended college. He was influenced by his class friends to join the student wing of the Jatiyo party and that he was actively involved in that student wing. 5 On 10 February 1986 the college authority arranged the college student union election and he participated in the election as a member of the student wing of the Jatiyo party. He was elected as the social welfare secretary of the student union. Members of the student wing of the Awami League and the student wing of the Bangladesh Nationalist Party ('BNP') did not accept the election results and attacked his residence on the night of 13 February 1986. His residence was bombed and his two younger brothers and a servant were injured and his mother lost her life. He continued to serve as the social welfare secretary of the college student union until 1990 before the fall of the Ershad regime. On 6 December 1990 President Ershad resigned from power and transferred the power to a caretaker government for an interim period to constitute a free and fair election. On 7 December 1990 the local police arrested the applicant without any reasons, he appeared in court, his bail was cancelled and he was sent to custody for seven months before being released on bail. 6 In the meantime the BNP had won the parliamentary elections in 1991 and formed a government in Bangladesh. The government oppressed him. To avoid torture he left Dhaka for his home town and stayed there for two years not returning to Dhaka until January 1993 when he resumed his political activity. 7 On 13 February 1993, when he was leading a demonstration against the BNP at Dhaka, he was attacked by a group of BNP hooligans, wounded by a bomb blast in the lower part of his leg and spent many days in hospital. On 21 May (presumably of the same year) BNP thugs attacked his house and set fire to it and his belongings were destroyed. To save his life and the other member of his family he surrendered to the BNP and indicated a wish to join the BNP. He became one of the leading activists of the BNP and was elected as the vice president of the cultural wing of the BNP. 8 In the 1996 election the Awami League came to power with the help of the Jatiyo party and a number of cases against the applicant were filed to destroy his political career. He was threatened with death and the police tried to arrest him. He hid for a few weeks during which time he met a European priest at a Christian church who said that if he came to the 'light of Jesus Christ' the priest would help him get out of the country. He hated the fundamentalism of Islamac religion and was inspired by the Christian priest. He denounced Islam and in April 1999 was converted to Christianity. He was ousted from his home for this reason. Orthodox Muslim people issued orders to remove him from society and the local Imran of the Mosque ordered the death punishment against him. 9 After spending a time in India, where he went to ensure his safety, he returned to Bangladesh. He then met a friend who was a businessman. The friend arranged for him to be granted a visa to come to Australia. His statement concluded: 'I have a real fear of persecution. If I return home the fundamentalists will kill me straight way and the Awami activists will also kill me and the false cases filed against me will put me in trouble. My persecution is based on two factors. One is political and second is religious'. 10 The Tribunal accepted that the applicant is a national of Bangladesh but it expressed serious concerns about most of his substantive claims. The Tribunal found that much of the applicant's evidence was inconsistent and that many of the documents that the applicant produced to support his case were 'solicited in poor faith and … are self-serving fabrications'. The Tribunal concluded that: 'no conversion of the Applicant to Christianity, real or pretended, occurred in Bangladesh. The Tribunal also disbelieves the applicant's account of his political career and his claimed political conversion. In fact there is enough evidence in this case to support the perception of a pattern in the Applicant's manner of deception: the applicant has demonstrated a tendency to fall back on inconsistent, illogical and unreliable accounts of "conversion" in order to maintain the illusion that he has continuously remained in serious Convention‑related trouble with someone or other for decades no matter who was in power. The Tribunal considers the Applicant's account of his political and religious history entirely disingenuous.' (emphasis in original) 11 The Tribunal further concluded that the primary reason for the applicant's involvement with a Christian church in Australia was to further his claim for refugee status. It was not prepared to rule out the possibility that the applicant had developed a genuine affiliation with the Baptist religion since he had been involved with his local church community. Nonetheless the Tribunal was of the view, based on the independent country information, that even were the applicant to return to Bangladesh as a practising Christian he would not suffer persecution by the State as a result of his religion. The Tribunal was prepared to consider that the applicant's family might not be happy with his association with the Baptist Church in Bangladesh but it dismissed as fabrication the evidence before it which suggested that the applicant's family was disposed to make a public example of him. Moreover, the Tribunal noted that the applicant is an educated man capable of making his own fortune and starting his own family so that even harsh and discriminatory treatment by his family would fall short of persecution. 12 The Tribunal concluded that the applicant does not have a well‑founded fear of persecution for a Convention related reason in Bangladesh. 13 The applicant by his application, and orally today, claims that the decision of the Tribunal is not justified. He asserts that he is a member of a marginalised Christian community in Bangladesh subject to a high level of oppression. He claims that the Tribunal rejected aspects of his evidence without justification, thus making an error of jurisdiction, and did not make a bona fide attempt to conduct the review which it was required to undertake. The applicant also suggests that he was denied procedural fairness by the Tribunal because the Tribunal did not give him an opportunity to comment on documents on which the Tribunal relied. The applicant made it plain in answer to questions from me that the documents to which he referred were documents which he had himself produced to the Tribunal. 14 By his written submissions the applicant alleges that the Tribunal 'did not take any current observations given by human rights organizations and by the independent newspapers into consideration'. He also asserted that '[t]he Tribunal did not consider the current situation prevailing in Bangladesh' where 'the current regime is heavily influenced by this fundamental and Fanatical Muslim Party, the Jamat‑e‑Islami'. He claims that as a converted member of the Christian minority he will face persecution upon returning to Bangladesh and the Tribunal failed to understand this reality. He referred to the decision of the Full Court in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 where Sackville J said: 'It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur.' 15 The applicant also referred in his written submissions to my judgment in the case of Okere v Minister for Immigration & Multicultural Affairs 87 FCR 112 where I made reference to indirect prevention of religious practice by authorities. He drew attention in his written submission to the fact that, as he asserted, 'In the case of Bangladesh the state itself is violating Universal Human Rights and civil rights of its citizens'. 16 As the respondent has pointed out in his written submissions, it is apparent that the applicant was unsuccessful before the Tribunal because of the view that the Tribunal took of the facts and in particular because of its finding that the applicant was not credible and his claims and his supporting documents were fabricated. Findings of matters of fact of this kind are matters for the Tribunal and not for this Court, provided, of course, that the Tribunal's findings were reasonably open to it. In my view, the findings in this case were reasonably open to the Tribunal. 17 Similarly, as the respondent contends, the Tribunal's conclusion that any disinheritance that the applicant may suffer from his family was not sufficiently serious to amount to persecution is a factual matter for the Tribunal. It was also for the Tribunal to make an assessment as to whether as a matter of fact the applicant's fears of persecution as a perceived convert to Christianity in Bangladesh were well‑founded. These findings are not open to review by this Court, which is not entitled to review the merits of the Tribunal's decision. 18 The firm nature of the Tribunal's findings meant that it was not required to consider the possibility that the events described by the applicant did occur. Nor was the Tribunal required in the circumstances of this case to give consideration to the possibility, not it seems raised in any relevant way by the applicant, of indirect prevention of religious practice by the Bangladeshi authorities. 19 I conclude that the applicant is in fact seeking merits review in this Court, notwithstanding that in his submissions he has used legal terminology apt to describe jurisdictional error. I have read the decision of the Tribunal with care. In my view, it discloses no basis upon which the Court could set aside the decision of the Tribunal. 20 The application to the court is dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.