Mukto v Minister for Immigration & Multicultural

EX TEMPORE REASONS FOR JUDGMENT 1 This is an application for an order for review of a decision of the Refugee Review Tribunal made on 27 October 1999 in which the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa. The applicant is Shaek Nur Islam Mukto, who says he is a citizen of Bangladesh. He came to Australia on 20 May 1999 without a passport or any other identifying documents. He lodged his application for a protection visa with the Department of Immigration and Multicultural Affairs on 17 June 1999 and on 11 August 1999 a delegate of the Minister refused to grant him a protection visa. 2 He sought review of that decision before the Refugee Review Tribunal on 13 August. The Tribunal published reasons for its decision on 27 October. The Tribunal first set out in its reasons the relevant article of the Refugees Convention and the relevant law relating to the interpretation of that article. It referred to Mr Mukto's evidence and his claims as set out in written submissions which had been made to the Department for Immigration and Multicultural Affairs, as set out in an interview with an officer of the Department, in written submissions to the Tribunal and oral evidence which he gave to the Tribunal on 18 October. 3 Summarising, as best I can, the Tribunal's reasons, it referred first to the applicant's assertion that he was a citizen of Bangladesh, that he had left that country on a passport fraudulently taken out in another name and that a smuggler who brought him illegally to Australia had taken the passport away from him on the final leg of his journey to this country. Reference was also made to various documents, including school certificates and letters of reference sent by Mr Mukto to the Department and to the Tribunal. He said that they proved his identity and substantiated his claims. He also lodged a number of news clippings on Bangladesh politics. 4 Mr Mukto's father, according to the materials and his assertions, had joined the BNP, which is now an opposition party in Bangladesh, in 1992 and had become a BNP general secretary at Khulna in the same year. Mr Mukto had had to join the BNP himself in order to enter university in 1990 or 1992. He had been entrusted with tasks of organising meetings and recruiting new members. There had been continuous friction between the BNP and its rival organisation, the Awami League, which is now in government. He left University College in 1994 and worked in his father's shop from 1995 to 1997. At the hearing before the Tribunal he said he had completed a full three years of study but had not passed the final exam. 5 The Awami League replaced the BNP as governing party in 1996 but Mr Mukto continued his activity in the BNP which had rallies constantly disrupted by the Awami League. He said that in 1997, his brother had been bashed and had gone to Malaysia to escape future harm. He blamed the Awami League for this attack. He had gone into hiding from 1997 until 1999 and had been moving around Dhaka, Khulna and Jessore avoiding enemies. 6 The Tribunal referred to discrepancies in the evidence about the dates of alleged incidents in this period. It noted that initially Mr Mukto said his father had been bashed in February 1998. He referred to a revenge strike on the Awami League which had occurred in March 1998, corrected to December 1998. It had involved physical attacks on members of that party and damage to property in the Awami League's offices. He also claimed to have been subjected to police harassment and to himself having been bashed by several Awami League members. He claimed at the hearing that his father was a renowned businessman who owned many shops and that he was a valued adviser to the local Chamber of Commerce, but that his father and other shop owners had been plagued by mostly Awami League supporters trying to extort money from them. 7 In 1996, he said his father ceased to hold office as BNP general secretary. Mr Mukto was to take his father's place in politics so that his father could concentrate on business. He claimed to have been the convener of the BNP at his university college. He claimed also to have studied Bangla, English, Logic and Islamic Studies. The Tribunal found, however, that he did not appear to have a basic knowledge of the subjects he claimed to have studied. It was put to him at the Tribunal that given his ignorance of the subjects he claimed to have studied it was unlikely that he had actually undergone the two and a half years to three years of university study claimed and that accordingly his assertion that he had been a top BNP official at university was not plausible. Mr Mukto replied he had not been a very good student and had twice failed his university exams. 8 He related a series of occurrences in which he said BNP members had been killed by the Awami League, including one Wahiduzzaman Chanchal (also apparently Chonchal) of the BNP Student League in Khulna. The Tribunal noted that some of the claimed killings are the subject of printed articles which he had submitted and that in all cases the BNP appeared to have blamed the Awami League for the killings. Except for the murder of Chanchal in October 1998, the Tribunal could not locate published versions of the incidents other than what it described as the rather scrappy clippings submitted by Mr Mukto. 9 Mr Mukto was asked about letters of reference he submitted which he claimed were genuine. Many of them contained statements along the following lines: (1) "Government agencies framed many false cases against him and are trying to haul him up and put into prison. He is actually escaping arrest and subsequent torture." This was in a letter from the BNP "assistant office secretary". (2) "[The applicant] is an active and popular leader of the BNP at BL college…[H]e is the younger cousin of Mohammaad Rafikul Islam… [who] was killed by the terrors (sic) when they did not find [the applicant]. Some false cases are issued against [the applicant] and now his life is at stake of death…." This appeared over the signature of one Waheduzzaman designated "BNP Student Party, Daulatpur, Khulna". It was dated 15 August 1999. (3) "Many false cases have been lodged against [the applicant] by the present ruling party, Bangladesh Awami League. He was wanted in those false cases." This statement was in a letter from an advocate in Khulna. 10 The Tribunal challenged the applicant about the claims in these letters, particularly to another letter from the Ward Commissioner of Khulna who said that Mr Mukto was personally known to him and so far as he knew he was not involved in any civil disobedience or any anti-state activity. Mr Mukto replied to the Tribunal that the Ward Commissioner had not mentioned the charges against him because he had known that they were false and sympathised with him. 11 During the hearing, it was put to Mr Mukto, by the Tribunal, that independent information showed that the courts in Bangladesh were independent and efficient and had thrown out thousands of false charges. In addition, he apparently had the support of the top government official in the area and of top local BNP leaders and, on his claims, his father was a renowned businessman valued by the Chamber of Commerce. The Tribunal put to him that he would have been able to draw on a formidable number of sponsors to stand surety for him and defend him against harm and that given all this, it could not be said without more that he could not find protection in Bangladesh. Mr Mukto replied that the people who wrote letters in his support could not help him but when his friend Hussein had been killed some months after leaving Khulna he had lost hope for his own safety. 12 Various other matters were put to the Tribunal and submissions made by Mr Mukto's advisers, Macpherson and Kelley, were taken into consideration in preparing the decision. In setting out its findings and reasons, the Tribunal accepted that there may be difficulties in communication which can affect an applicant's ability to provide a coherent, consistent and plausible account. It accepted that applicants for refugee status face difficulties of proof. It also accepted that if it were to make adverse findings about an applicant's credibility, then it might need to take into account the possibility that those findings might be wrong when deciding whether the applicant had a well-founded fear of persecution. 13 However, it asserted, and in my opinion correctly, that a decision-maker is not required to accept uncritically any and all the allegations made by an applicant, nor does it mean that the Tribunal has to have some rebutting evidence available before it can find that a particular factual assertion is not made out. It referred to the case of Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348. 14 The Tribunal concluded, after considering the evidence, that Mr Mukto had fabricated significant portions of it in order to bolster his application for a protection visa. It accepted that he came from Bangladesh, although he had no passport. It could not rely on the various documents he had provided attesting to connections with Bangladesh as evidence of his citizenship although the relevance of that reservation is not entirely clear. It accepted his evidence relating to his father's business and BNP credentials and that his father had become a BNP official in order to protect himself against attempts by criminals allied with the Awami League to extort money. 15 The Tribunal accepted also that Mr Mukto had been a BNP supporter. However, it set out some nine matters upon the basis of which it did not believe a range of the claims made by Mr Mukto and they are, in summary as follows: