Ahmed v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-04-30|Before: Madgwick J

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 In this matter, the applicant seeks the limited form of judicial review available in this Court of a decision of the Refugee Review Tribunal ("the Tribunal") given on 12 December 2000. The Tribunal affirmed a decision of a delegate of the respondent Minister, refusing to grant the applicant a protection visa, pursuant to the Migration Act 1958 (Cth) ("the Act"). 2 Whether the applicant is entitled to such a visa depends of course, on whether the applicant was a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees. The relevant provision, Article 1(A)(2) provides that a person is a refugee if: "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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

Background 3 The case of the applicant is that he was a political refugee. He claimed that he had been a member of the Bangladeshi National Party (BNP) or the "JCD", the student wing of that party, and that because of his membership of one or both of those organisations he was attacked by Awami League (AL) members and was the subject of false charges laid by the police, some of which were heard in absentia, resulting in a sentence of imprisonment against him. He claimed his house had been destroyed. Furthermore, he had been injured, including by a gunshot wound to the back or the backside, it is not clear which, resulting in his hospitalisation. All these misfortunes were directed against him, he claimed, by political opponents. 4 His application for a protection visa shows that the applicant has some difficulties with English. In answer to the question, "Why did you leave that country?", the applicant said: "…Since they [the Awami League] took over country, they after me, because I am a active member in BNP. [Awami] League tried made many false police case to take revenge. They also after my family too. I was very shocked when they tried with gun to kill me. I was injured in that ambushed. I left country only to save my life." 5 In answer to the question, "Why do you think they will harm/mistreat you if you go back?" the applicant wrote, among other things and in the context of explaining police involvement in the confiscation of certain land on which BNP activists, including the applicant, had built a sewing factory: "We protest for that unfair action. We made a protest rally and [an illegible word] that time those people under terrorist group asulted on us. They asaled me with gun and dagger. They fair to me and I was injured in my back side for a little bit. I saved my life. They also tried to kill me. I left my country because I didn't have any other option that time to save my life." 6 The Tribunal member took a dim view of the applicant's credibility.

The applicant's case for review 7 The point argued with economy and fairness by counsel for the applicant is that the Tribunal based its opinion on a particular fact which did not exist, praying in aid ss 476(1)(g) and 476(4)(b) of the Act. The Tribunal concluded, in relation to the question of the applicant's injury: "The applicant has claimed that he was injured as a result of his political activities in opposition to the AL. In his protection visa application he claims that he had been attacked by AL members for political reasons and has been injured in an ambush. In contradiction to this evidence, it was the applicant's evidence in the hearing of 6 June 2000 that the AL members tried to take revenge on him and attempted an ambush. He found out about the ambush and avoided it. Yet he also claimed that AL members attacked the applicant several times using guns and pistols shortly after ALIM [a local political enemy] was elected commissioner in February 1996. At the hearing of 28 November 2000, the applicant claimed he had given evidence previously that he had been shot in the back when the AL came to power and had been hospitalised as a result. No such evidence had been given." (Emphasis added) 8 The Tribunal member said further: "In light of the applicant's internally inconsistent evidence, inconsistencies with the independent evidence, and his unsatisfactory and unconvincing responses about the matter, I am unable to accept that the applicant was shot in the back or injured by the AL, or that he was admitted to hospital as a result. I am unable to accept the hospital certificate is a genuine document concerning the applicant's admission and discharge from hospital." 9 The Tribunal member also said: "As I am unable to accept that the applicant has been a member of the BNP and JCD, has been injured by the AL orhas had false cases brought against him, then it follows that I am unable to accept the applicant has [been] involved in political activities in Bangladesh, that he and his family have been attacked by members of the AL for political reasons, or that his house has been destroyed because of his political activities." (Emphasis added) 10 The applicant's argument is that the Tribunal's assertion that there was no previous evidence of the claim to have been shot and injured, was manifestly incorrect and, in the light of the passages from the protection visa application set out above, there was no evidence to found that conclusion.

Consideration 11 It is important to understand what the Tribunal member was and was not saying. It is clear from the passages which I have referred to, and adjacent passages in the Reasons for Decision, that when the Tribunal member used the word "evidence" to indicate a lack of it as to the claim of injury by gunshot and hospitalisation, he was not confining his attention to what had occurred in the course of the applicant giving oral evidence before the Tribunal. Secondly, it is clear that the Tribunal member did not overlook that there had been a claim by the applicant to have been injured in the context of the presence of firearms. 12 Therefore, the point being made by the Tribunal member, in my opinion, is that there was no previous claim of injury by gunshot. It is not surprising that the Tribunal member might have fastened upon this question. It was open to the Tribunal member to consider that the dramatic quality of an injury by gunshot and such level of facility with English as the applicant did possess at the time of making his protection application would make it very strange if he had not managed clearly to make this assertion. Further, it is beyond question that there was no reference at all to hospitalisation in the application. 13 In order to succeed on the ground outlined by s 476(1)(g) and amplified in subs (4) of that section, the foundational point is that there should have been "no evidence or other material" to justify the making of the decision that is not the case here. 14 The applicant's cases, is based on the judicial exegesis which has extended the reach of s 476(1)(g) to cases where there is no evidence to justify a finding of a particular fact that was "critical to the making of the decision" as distinct from merely being a fact that was a "parallel link" in a "chain of reasoning". See Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 at 220- 221; Minister for Immigration & Multicultural Affairs v Li Yue [2000] FCA 856 at paras 53- 54, per Hill, Mathews & Lindgren JJ; Indatissa v Minister for Immigration & Multicultural Affairs [2000] FCA 1119 per Weinberg J; and Choi v Minister for Immigration & Multicultural Affairs [2000] FCA 6 at para 16 per Marshall J. 15 Mr Burwood, council for the applicant, argued that when the Tribunal member said: "As I am unable to accept that the applicant has been a member of the BNP and JCD, has been injured by the AL or has had false cases brought against him," the Tribunal member ought to be understood as having used, as a premise for what follows that quotation, the combined effect of the lack of acceptance of the three propositions set out in that quotation. I am prepared to assume that this is correct, and to decide this case on the basis that the Tribunal member's finding in question that there was no prior evidence of a gunshot wound and hospitalisation was a critical fact in his reasoning. But I return to the point that it needs to be shown that there was no evidence to found that particular fact. The material to which I have referred indicates, in my opinion, that there was material from which the Tribunal member could have reached the conclusion, properly understood, that he did reach. It may be that another fact finder, at least on this issue, would have given the applicant the benefit of the doubt because of his manifest difficulty in fully expressing himself in English, but that is not a matter which can avail the applicant in these proceedings in this Court.

Disposition 16 In the circumstances the application for review must be dismissed. The applicant is to pay the respondent's costs of the application.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

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