Mohammad v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application by Elias Kanchan Mohammad ("the applicant") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 3 November 1998. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the applicant a protection visa. The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). 2 The applicant is a citizen of Bangladesh who arrived in Australia in 1997 travelling on an Indian passport under a false name. In March 1997 he applied for the protection visa. The applicant provided no material to the Department of Immigration and Multicultural Affairs in support of his application other than the completed application form. In April 1997 the application was refused by a delegate of the Minister. By application dated 29 April 1997, the applicant sought review of that decision by the Tribunal. The applicant provided no evidence or written submissions to the Tribunal but did give oral evidence at a hearing in March 1998. In March 1998, following the Tribunal hearing, the applicant lodged a statutory declaration in support of his claims prepared by a solicitor. 3 The substance of the applicant's case before the Tribunal was that he feared persecution if returned to Bangladesh because of his political opinion. He said he had been too scared to obtain a Bangladeshi passport and had bribed a Bangladeshi official to leave the country. The Tribunal rejected the applicant's claims on the basis that no corroborative evidence had been provided to support any of his allegations of political activity in Bangladesh. The Tribunal concluded that the applicant's claims were not credible and had been fabricated to support his application for a protection visa. The applicant's claims as summarized by the Tribunal 4 Before the Tribunal the applicant gave evidence that while attending a college in Bangladesh in 1990 he joined the student wing of the Bangladesh National Party ("BNP"). He occupied an elected position in the student party and organised rallies and demonstrations against the student wing of the Muslim fundamentalist party at the college. He said that at that time he was harassed, insulted and received death threats from supporters of that party. The applicant continued to be involved with the student wing of the BNP when he enrolled in another college and was elected to a position in the college union. He received abuse and insults from his opponents, who were supporters of the Chattra League, the student wing of the Awami League and the Chattra Samaz, the student wing of the Jatiya Party. The applicant claimed that in 1993 supporters of the Chattra League attacked the student office of the BNP, ransacked his home, destroyed furniture and set fire to two houses. 5 The applicant gave evidence that on graduation in 1994 he joined the main party of the BNP and was elected to a position within the party in 1995. In the national elections of 1996 the Awami League won power in an unofficial alliance with the Jatiya Party. However in the applicant's home electorate a BNP representative was elected. The applicant claimed that this BNP representative appointed him as "his main political organiser" in the electoral area. The losing candidate from the Awami League became the applicant's enemy and his supporters attacked and ransacked the applicant's home and beat him. The applicant said he was hospitalised for two weeks as a result of the attack and still has a scar from the injuries suffered. Six false charges were lodged against the applicant by the Awami candidate and his house was raided "almost every night" by police. After consultation with senior party leaders and BNP members of parliament it was agreed that the applicant should leave Bangladesh. The applicant said that if returned to Bangladesh he would be a "victim of harassment and torture or may even be killed by a hired gunman". He said that he could be convicted of the false charges and imprisoned or killed by the terrorist groups of the political parties opposed to the BNP. Submissions 6 The grounds identified in the application for review in this Court are that the Tribunal erred in its interpretation of the Convention and of the Migration Act 1958 (Cth), that the Tribunal failed to correctly apply the law as set out in Chan Yee Kin v Minister for Immigration and Multicultural Affairs (1989) 169 CLR 379, and that the respondent failed to give proper consideration to the merits of the applicant's factual circumstances. No written submissions were filed in support of these grounds. However the applicant has filed an affidavit, dated 23 February 1999, which consists of copies of documents said by the applicant to support his case. 7 Though the applicant had legal representation in his dealings with the Tribunal, he was unrepresented in the proceedings in this Court. It is appropriate that I endeavour to identify, having regard to the nature of the application he has made, what are the real legal issues he raises: see Neil v Nott (1994) 121 ALR 148 at 150. In my opinion the only issue of substance raised by the applicant concerns the manner in which the Tribunal considered and dealt with his account of his circumstances in Bangladesh and, in particular, the basis upon which it formed an adverse view of the applicant's credibility. In order to understand this issue it is necessary to set out in full those parts of the Tribunal's decision reflecting its conclusions. It said: FINDINGS AND REASONS The applicant provided no supporting evidence of his claims that he held positions in the student wing of the Bangladesh National Party at college and in the main Bangladesh National Party. During the period when the applicant claimed to hold these positions he was between 14 and 18 years old. The applicant provided no supportive evidence of his claim that he was hospitalised for two weeks following an alleged attack by supporters of the Awami League. The applicant claimed that six (6) false charges were made against him and if he returned to Bangladesh he could be imprisoned. He provided no supportive evidence of any charges or details of the circumstances that may have given rise to the these charges [sic]. The Applicant stated that he was in contact with his family by phone and letter. His mother, who he stated is old, is in her 'forties'. He has bothers [sic] and sisters in Bangladesh. The applicant also claimed to have links with the successful Bangladesh National Party (BNP) candidate for his electorate, a Minister in the former BNP government, who, he claimed, appointed the applicant as "his main political organiser in my electorate area". However the applicant did not provide any supportive evidence from this senior BNP representative of his membership, his role in the BNP, or the attacks that he claimed to have suffered or of the false charges. The applicant also claimed that he had a number of meetings with senior leaders and members of parliament of the BNP, who he claimed helped and suggested that he depart Bangladesh, yet the applicant did not provide any supportive evidence of his claims from these senior BNP figures. From the time of the applicant's original application for a protection visa dated March 1997 to the Tribunal hearing in March 1998, the Tribunal considers that the applicant had ample time to obtain some supportive evidence of his claims. The Tribunal is not satisfied that the applicant was a member of and held positions in the student wing on the Bangladesh National Party and the main Bangladesh National Party. Nor is it satisfied that the applicant was appointed as the main political organiser by a successful BNP candidate in the 1996 national election, as he claimed. The Tribunal is not satisfied that six false charges were brought against the applicant by the police or that the police raided the applicant's home almost every night. The Tribunal is also not satisfied that the applicant was attacked by political opponents or that he was hospitalised for two weeks as he claimed. And the Tribunal is not satisfied that the applicant was advised by senior leaders and members of parliament of the Bangladesh National Party to leave Bangladesh. There is an absence of evidence to support these claims and the applicant has had ample opportunity to gather supportive evidence if his claims were true. The applicant claimed that he was popular and well connected and should, in the Tribunal's view, been able to provide supportive evidence from these sources in Bangladesh. The applicant's excuse that his mother was old is not convincing as she is now less than 50 years of age. The Tribunal finds the applicant's account of his departure from Bangladesh without a valid passport because he was scared unconvincing in the absence of evidence to support his alleged fear. For these reasons the Tribunal considers that the applicant's claims are not credible and have been fabricated to support his application for a protection visa. The Tribunal does not consider that the applicant faces a real chance of persecution for his political opinion should he return to Bangladesh. The Tribunal finds that the applicant does not have a well founded fear of persecution for reasons of his political opinion. 8 It is clear that the Tribunal's failure to accept the account of the applicant was based, at least in substantial part if not exclusively, on the failure of the applicant to produce documents from Bangladesh corroborative of the significant events to which he referred. That is, he failed to provide any documentary material concerning his hospitalization, his having been charged on six false charges, his membership and role in the BNP and his assistance to members of Parliament in that party. 9 The critical issue, in my opinion, is whether that approach manifests reviewable error. 10 The manner in which the Tribunal might go about considering the credibility of an applicant for a protection visa has most recently been considered by a Full Court of this Court in Careem v Minister for Immigration & Multicultural Affairs [1999] FCA 378. The Full Court said at para 9: The issue of how the assessment of the credibility of an applicant for a protection visa might be undertaken has recently been considered by a Full Court of this Court in Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126. The Full Court was dealing with an appeal from a judgment of Merkel J who had considered the same issue in an earlier case, Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635. In Emiantor Merkel J had said: The approach of the RRT to the credibility issues was open to it on the material, was based on rational grounds and was arrived at after consideration of matters that were logically probative of the issue of credibility. In these circumstances I do not accept the contentions of the applicants that the RRT erred in law in relation to these findings or that the findings were open to challenge on any other reviewable ground. That conclusion is important to the outcome of the review as it must follow that the findings of RRT as to the past events relied upon to support the claims for refugee status must be accepted as the starting point for the application of the 'real chance' test. (at 649) These observations were referred to with approval by the Full Court in Kopalapillai which said the following about the assessment of the credit of an applicant for a protection visa: Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant's testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (S Taylor (1994) 13 UTLR 43). Nor is there a rule that a decision maker must hold a "positive state of disbelief" before making an adverse credibility assessment in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Guo's case at p 191, to a requirement for a "positive state of disbelief" was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist. The primary judge, in giving consideration to the appellant's submission that the RRT adopted a legally flawed approach to the assessment of his credibility, repeated observations earlier made by him in Emiantor v The Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Merkel J, unreported, 3 December 1997). His Honour expressed the view that the same observations could be made as to the RRT's approach to the credibility issues in the present case. The Full Court of the Federal Court has expressed agreement with his Honour's treatment of the credibility submissions in Emiantor's case and found no error in his approach (Emiantor v The Minister for Immigration and Multicultural Affairs, Full Court of the Federal Court of Australia, unreported, 20 July 1998). 11 It was submitted by counsel for the Minister that the view the Tribunal formed about the credibility of the applicant was not based solely on the absence of corroborative documents. While the Tribunal did not expressly refer to the demeanour of the applicant it cannot be inferred, it was submitted, that demeanour did not figure in the Tribunal's consideration of his evidence. It does not follow that because a judge or member of an administrative tribunal does not refer to the demeanour of a witness, a consideration of the credibility of the witness was uninfluenced by demeanour: see Jones v Hyde (1989) 85 ALR 23 at 27. Such a case recently arose in Pandari v Minister for Immigration & Ethnic Affairs [1998] FCA 1698. In that case Sackville J concluded that the Tribunal had taken into account the applicant's demeanour notwithstanding no express reference was made to it in its reasons. In that case there were aspects of the applicant's account that the Tribunal viewed as inherently implausible. Moreover the Tribunal had said that it did not accept the applicant as a credible witness and had considered the evidence as a whole. In the present case there are no such obvious signs which might indicate that demeanour played a role in the assessment of the applicant's evidence. The reasons of the Tribunal make it comparatively clear that the absence of corroborative documentary material was the sole basis for rejecting the applicant's account. The Tribunal did not say that the applicant's account was inherently implausible. Indeed, for my part, I doubt that could be said. 12 Counsel for the Minister submitted that, in any event, it was open to the Tribunal to rely on the fact that no corroborative documentary material was produced in not accepting the applicant's account. Reference was made to the judgment of Finkelstein J in Warnakulasuriya & Ors v Minister for Immigration & Multicultural Affairs [1998] FCA 336. In that case the applicant, who was a Sri Lankan national, had alleged, amongst other things, that there had been an incident in April 1995 where a number of members of the United National Party ("UNP") had been killed. That was a political party of which the applicant had said he was a member. He had also said that he had informed a journalist about the incident who had written about it in a newspaper. In its reasons the Tribunal rejected this aspect of the applicant's account of his circumstances in Sri Lanka and did so on the basis that the Tribunal was not aware of any massacre of UNP supporters in April 1995 nor could he find reference to it in publications he had sought out. The Tribunal went on to indicate that the applicant had not produced any documentary evidence in support of that claim. 13 In relation to that aspect of the Tribunal's decision counsel for the applicant had submitted to Finkelstein J that the Tribunal had erred in requiring the applicant to prove aspects of his case by a process of corroboration or supporting evidence. Of this submission his Honour said: The submission fails to recognise that one of the functions of the Tribunal is to make determinations of fact based on the evidence that is before it. In Guo, in the majority judgment at 570 it was said that "the Tribunal (is) entitled to weigh the material before it and make findings before it engaged in any consideration of whether or not (the applicant's) fear of persecution on a convention ground was well founded.": see also Wu Shan Liang at 293 per Kirby J. This must admit of the possibility that the Tribunal will not accept the accuracy of certain "facts" unless they are corroborated in some way. The acceptance or rejection of "facts" is a matter for the Tribunal and no error of law will be demonstrated merely because the Tribunal has decided that certain evidence will not be accepted by it unless it is corroborated. Some "facts" may be so implausible that they should not be accepted. An applicant may appear to lack credibility and in that circumstance the Tribunal may not be disposed to accept his or her evidence unless that evidence corroborated by some independent source. If the Tribunal forms the view, for one reason or another, that evidence is unreliable and should be rejected unless corroborated that does not amount to an error of law. On the contrary, it suggests that the Tribunal is taking seriously its obligation to evaluate the evidence that is before it. 14 Plainly enough that was a case where the incident the applicant relied upon was one where it could be expected there would have been documents establishing or tending to establish it had occurred. Indeed the Tribunal had itself undertaken the task of trying to find reports of the incident. 15 The present case is, in some respects, different. Two of the matters relied upon by the applicant concerned incidents where it could not be expected that there existed a document or documents which could be readily procured from Australia (through sources in Bangladesh) tending to prove the occurrence of the incident. They were his hospitalization and his having been charged on six false charges. However the same cannot necessarily be said of two of the other matters relied on by the applicant, namely his membership and role in the BNP and his assistance to members of Parliament in that party. Documents, such as references and letters, might have been sought by the applicant from contacts in Bangladesh and created for him by those he had worked for or with in the BNP. 16 It is to be recalled that the applicant first put in train his request for a protection visa in March 1997. He made application to the Tribunal in April 1997. He had the benefit of legal advice at least by March 1998. He gave evidence in March 1998. The Tribunal's decision was not given until November 1998. At the hearing (the transcript of which was tendered by the Minister) the Tribunal indicated two things. First, after it asked the applicant whether he had any documents supporting his claims, it rejected as unacceptable the applicant's explanation for not having any documents. His explanation was that his mother in Bangladesh was old, it was difficult for her to gather material, and he did not trust anyone else to do it. Secondly, when the applicant said he would produce documents if given time, the Tribunal indicated it was not prepared to give the applicant further time as he had already had a year since arriving in Australia to produce documents. A further request by the applicant for an opportunity to provide documents was made later in the hearing and the Tribunal's response continued to be that no further time would be provided. Shortly after the Tribunal said: [The Tribunal]: … I must say to be fair to say Mr Mohammed that I find it very difficult to believe your story in that no documents have been produced previously, either to the Department or to the Tribunal and you have not got any supporting evidence to indicate what your claims are. I should say to you we have some difficulty but we will have a look at what is in your statement that you are going to let us have by 4 o'clock and then the Tribunal will make a decision on your application. 17 The reference in this passage to a statement was to a statement the applicant's solicitor had already prepared. Why the Tribunal thought it was being fair to the applicant to tell him that it was difficult to accept his story without supporting documents while, at the same time, saying he could not have an opportunity to provide the documents, is unclear to me. 18 In my opinion the Tribunal fails to act according to substantial justice and the merits of the case as required by s 420(2)(b) if it rejects the account of an applicant as not credible (if it was not inherently implausible in whole or in part) simply because documents corroborative of that account were not produced in circumstances such as the present. That is, it fails to give effect to the obligation imposed by s 420(2)(b) if it relies only on the absence of documents to reject an applicant's account in circumstances where the applicant was told that their absence was to be relied on in this way but where the applicant was also told he had no further opportunity to produce them. 19 In the present case, if the Tribunal was proposing to rely so decisively on the absence of corroborative documents, then it should have told the applicant that this is what it proposed to do and then given the applicant an opportunity to produce such documents. Given the time that had elapsed since the applicant first lodged his application for the protection visa and his application for review, the additional time that the applicant should have been given to produce the documents may reasonably have been short. However the approach of the Tribunal was that the applicant was to have no further opportunity to provide the documents at all. In my opinion the approach of the Tribunal involved a contravention of s 420(2)(b) and its decision should be set aside. 20 The applicant sought to tender in these proceedings documents of the type referred to by the Tribunal. That is, he sought to provide documents of the type that the Tribunal thought should have been produced to it but were not. The Minister objected to the tender and I indicated I would rule on the tender when giving judgment. The documents might arguably be admissible having regard to the approach of the Tribunal if they tended to establish the non-existence of a fact, the existence of which the Tribunal based its decision on: see ss 476(1)(g) and 476(4)(b). However the Tribunal based its decision on the fact that at the time it heard evidence from the applicant, he had produced no corroborative documents. The later production of them in Court and their tender does not address the finding the Tribunal made. The documents are otherwise inadmissible: see Ozberk v MIEA (1998) 79 FCR 249. I reject their tender. 21 I set aside the decision of the Tribunal and remit the matter to the Tribunal for further hearing