NAFT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 380

FEDERAL COURT OF AUSTRALIA

NAFT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 380 NAFT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N1339 of 2002

MADGWICK J 14 APRIL 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1339 OF 2002

BETWEEN: NAFT

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 14 APRIL 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is to 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 N1339 OF 2002

BETWEEN: NAFT

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE: 14 APRIL 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 19 November 2002. The decision affirmed a decision of a delegate of the respondent Minister refusing to grant the applicant a protection visa. 2 The applicant is legally unrepresented and the application and accompanying affidavit are in a form such that it is not easy to understand the basis of the complaint, however, it seems to be that the Tribunal was, unreasonably, not satisfied as to the matters claimed by the applicant and the decision should be remitted for re-hearing by the Tribunal differently constituted. 3 The applicant is a young man who arrived in Australia on 25 December 1999 and lodged an application for a protection visa on 4 February 2000. He obtained his visa for Australia in the United Arab Emirates and travelled here directly from that country on a Bangladeshi passport which implicitly asserts that he is a national of Bangladesh. The applicant, however, claims to be a stateless Bihari refugee. 4 The Bihari people are Muslims who moved, in 1947, from India's Bihar State to what was then East Pakistan at the time of the partition of India associated with its coming to independence. In 1971, following its bloody struggle for independence from Pakistan, what had been East Pakistan became Bangladesh. The Bihari's supported and many fought for Pakistan proper in the conflict. After the establishment of independent Bangladesh, as one "country report" puts it: "… many [Bihari's] moved from Bangladesh to Pakistan. However, most were too poor to make the move. They remained stranded in Bangladesh, waiting for the day when Pakistan would send for them. Over the years, Pakistan has often promised to resettle the Biharis in Bangladesh. It has never done so, however, not only because of the cost, but also because the Bihari's arrival could exacerbate existing ethnic and political tension in Pakistan. In recent years, Pakistani leaders have given mixed signals regarding the Biharis - some say that Pakistan has no intention of accepting them; others say only the lack of resources prevents Pakistan from welcoming them." 5 There are elements of the Biharis and their leadership who continue to demand that Pakistan should honour its obligations toward them. However, a growing number of them are, as the same report puts it, "tired of waiting to go to Pakistan and [want] to integrate in Bangladesh". 6 As the submissions for the respondent rightly acknowledge, and as is implicit in the Tribunal's decision of 19 November 2002, the Biharis and the descendants of whom the applicant would be one who did not take up a 1971 offer by the Bangladesh government to accept Bangladesh citizenship, live in wretched conditions in camps in what another country report describes as refugee-like circumstances. 7 Work is very difficult for men to find. Pakistan helps them not at all and the Bangladesh government gives them a little more than 3 kilograms of wheat per head a month. They live in appalling conditions, mostly have no access to education and there is little in the way of medical treatment considered, even by Bangladeshi standards, as exceedingly poor. 8 The applicant's claims were that as a child, he could not be enrolled in the "local schools" in Chittagong, where his family lived, due to his Bihari identity. His father was forced to conceal his identity and defer the commencement of his schooling which he began at the age of seven. He says that after a few years at the school, however, his identity as a Bihari became known and he was maltreated by the school children. When the authorities learned that his father had suppressed Bihari identity he was expelled from the school, whereafter he stayed at home and was taught by private tutors until he turned thirteen. 9 The applicant said that in order that he could sit for the secondary school certificate examinations his father organised his admission to a high school outside Chittagong city and: "From this school, I sat for the SSC exams in 1991. But due to my poor opportunity to study earlier, I failed the exams twice. Having failed the exams, I obtained my first job as a daily labourer at the A.K. Khan Jute Mills Chittagong" claiming to be Bengali. 10 The applicant said that eventually, however, his identity as a Bihari was disclosed to the union at the mill and for that reason he was dismissed. He then started a butcher shop in July 1993 but was the subject of extortion attempts by a gang whose members were affiliated to the then prevailing Awami League Government. He claimed that, when he refused to pay protection money to them, they burned his shop or stall to the ground and beat him badly. The police were uninterested, except if he paid them a bribe, which he did, and they remained inactive. He said that "I was threatened for life. I have then decided to go in hiding". However, his parent's house was ransacked and they were abused verbally. His parents were told that if he were found in that locality again "my life would not be spared". He fled to Dakar, lived there for about a fortnight and negotiated with a recruiting agent for a passport and a work visa for the United Arab Emirates. In return he paid the agent a fee of Tk.100,000. He then left for the United Arab Emirates on 24 February 1994 and worked there as an "office boy" until December 1997 when he returned to Bangladesh and for two months tried again to do business. However, members of local gangs terrorised his family. His father told him he was no safer than before. Having sensed the danger for himself he decided to return to the United Aram Emirates. After two months there he applied for a visitors visa to Australia, which he was granted, and came here. 11 The Tribunal Member concluded that the applicant was not a stateless Bihari at all, but a "fully fledged citizen of Bangladesh". He relied on the evidence of the applicant's passport with multiple endorsements on it by Bangladesh authorities. He relied on the education which the applicant had had and his ability to sit state examinations, his father's evident financial status and the applicant's own claims about being able to hold a licence to operate a business. 12 As to the claim of ethnically motivated persecution by extortionists, the Tribunal Member considered that the applicant's efforts to portray this as evidence of a particular form of "racial hatred" were "highly unsatisfactory". The Tribunal Member accepted, despite some misgivings, that the applicant was descended from former Biharis, but concluded that the applicant's family had "achieved a significant departure from the conditions experienced by stateless Biharis in Bangladesh" and reasons were given to support these conclusions. The Tribunal said it had "ultimately come to the conclusion that the [applicant] is an unreliable witness in the present matter". 13 The applicant complains of factual findings and, as best I can understand it, complains in effect that the Tribunal was actually or apparently biased against him. For example, he says in his written submissions: "The Tribunal accepted that my passport contained false information in relation to my date of birth ... But when it comes to my assertion that my citizenship as appeared in the passport is also false, the RRT will go [to] any length to accept the veracity of the passport. This indeed is [a] one eyed approach to my case as the Tribunal handled it ..." 14 His submissions further say that in relation to another matter "… the [Tribunal's] attitude seems to be that of opportunism without any regard to the principle of providing substantial justice...". 15 The country information about the condition of those who are Biharis in Bangladesh discloses that they are in a piteous condition. It is manifest from the respondent's submissions that the Tribunal's account of their situation moved counsel for the Minister to take that view of their condition and obviously that is my own view of the matter. It is very unlikely that a similar reaction would not have been felt by any member of the Tribunal and it is likely that the Tribunal Member would have examined the applicant's claims with some care. So far as I can tell from the material before me, that is what he did and, at the very least, the conclusions which he reached appear to have been open to him on the evidence before him. 16 In disbelieving the applicant, one does not get any feeling that the Tribunal Member palpably misused the advantage which he had of speaking directly with the applicant. Despite the applicant's submissions, I see no indication either that the Tribunal Member was apparently biased against him in any way or that the Tribunal Member had any actual bias against him. 17 In the circumstances, I see no basis for concluding that the Tribunal Member made any jurisdictional error and, even it were the case that the Tribunal Member made some factual errors, that alone would not amount to jurisdictional error such as would entitle the Court to intervene on the applicant's behalf. 18 For these reasons the application to the Court must be dismissed. 19 The applicant is ordered to pay the respondent's costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.