NAQZ of 2002 v Minister for Immigration & Multicultural &Indigenous Affairs; NAQY of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The appellants appeal from a decision of a Federal Magistrate (Driver FM) dismissing their applications for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal affirmed the delegate's decision not to grant to the appellants a protection visa. 2 It is a criterion for the grant of a protection visa that the person applying for it be, inter alia, a person of whom the Minister is satisfied that Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as modified by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967 (herein called 'the Convention'). Australia will, generally speaking, have protection obligations to a person who is a 'refugee', as defined in Article 1(A)(2) of the Convention. That article provides that a person will be a refugee who: 'owing to 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;…' 3 The appellants are a husband (NAQZ) and wife (NAQY) who separately applied for protection (class XA) visas. Their applications were heard together before the Tribunal and the Federal Magistrate. The History of NAQZ's Claim 4 NAQZ was found by the Tribunal to be a citizen of India. He arrived in Australia on 7 December 1996 and made an initial application for a protection visa on 12 December 1996, which was rejected by the Minister's delegate on 21 March 1997 as that application set out no claims. The application for review of that decision was filed on 21 April 1997, and a Tribunal decision unfavorable to the appellant was recorded on 31 March 1998. 5 The application relevant to these proceedings was lodged on 8 May 2001 and includes that of his son, who was born in Australia on 9 December 2000. On 24 July 2001 the delegate of the respondent Minister refused his application. The male appellant lodged an application for a review of the decision of the delegate on 21 July 2001. On 10 July 2002 the Tribunal handed down a decision made on 18 June 2002, which affirmed the delegate's decision. The application for review of that decision was filed in the registry of the Federal Court on 7 August 2002. · NAQZ's claims 6 NAQZ, who is a Hindu, claimed that he was applying for a protection visa because of the religious and political persecution he had suffered in Bangladesh, and because of his marriage to NAQY, who was from a different caste. What follows is a summary of the facts as they were claimed by NAQZ in his application for a protection visa. It does not reflect the facts as found by the Tribunal. 7 NAQZ claimed to have met NAQY whilst she was studying at Jagannath University College in 1990. He had later proposed marriage, but her family had not approved because of the difference in their castes. NAQY's family then sent her to India for her higher education and arranged a marriage for her with another man. NAQZ visited NAQY at the university twice, and convinced her to fly to Sydney on an Australian business visa he had procured from India. They were married less than a month after her arrival in Sydney. He later tendered an affidavit in which his mother in law said that she had severed all relations with him and his wife because they had lowered her social prestige. NAQZ stated in the application that the mother in law had asked her relatives to kill him as he had impugned the pride of wife's family. 8 NAQZ joined his brother's business in 1987. His family was wealthy and owned an agricultural farm, shops and residential units in their area and a nearby town. In 1990 he had commenced a business partnership with a Hindu friend. He was also involved in Hindu social and religious activities, as well as the Bangladesh Hindu Budda Christian Oikya Parishad from 1990 to 1992 of which he was elected an office holder. 9 NAQZ said that he was raped by a Muslim teacher at his high school when he was in year ten in 1983. The school asked his parents not to take the matter to the police, and they did not do so because they had no faith in the police who according to NAQZ predominately served Muslim interests. The local influential Muslims, who did not want them to report the matter, had also threatened his parents. 10 Because of his involvement in human rights and social welfare organisations NAQZ's family was harassed. In 1991 hooligans extorted and vandalised the family business. The police were notified but did not act, and merely advised him to stop working for minority groups. NAQZ and his business partner were also assaulted by Muslim youth in May of that year on their way home from the business, where he was bashed, kicked, called an enemy of Islam and told not to report the matter to the police. They told him that if he did not cease his involvement with the Bangladesh Hindu Budda Christian Oikya Parishad he would be killed. NAQZ reported the matter to the police, but no action was taken. 11 NAQZ tried to help one of his Hindu friends in a land dispute, which made the Muslim community unhappy. The matter became a communal conflict, as the Muslims claimed his friend's possession of the land was illegal, and that the friend was hindering them from building a mosque on it. In 1991 NAQZ and his business partner were again attacked as a result of their involvement in the land dispute at their place of business. Muslims threatened to kill NAQZ if he continued his involvement in the dispute. He was hospitalised for a week. The incident was reported to the police and two of his attackers were arrested. However, after being released on bail they harassed him until he withdrew the allegation. 12 In 1992 NAQZ and some members of the Hindu community spoke to the police regarding the need for protection for minorities in Chandpur, and particularly the threats that had been received by NAQZ from Muslim youth. The police promised protection, but did not do anything. 13 In December of 1992 the Babri Mosque was destroyed in India by radical Hindus and according to NAQZ a backlash occurred in Bangladesh. He said he had seen Muslims kill and rape Hindus, and his house and business were looted and burned. A cousin and some friends were apparently killed. NAQZ's family then left Chandpur but he did not go with them. On 16 December 1992, a public rally was held by protesting Hindus, who were stoned by Muslim fanatics. Local Mullahs agitated for more attacks on Hindus. The police did not intervene. That night NAQZ and some Hindu youths put up posters and graffiti with secular slogans and slogans against the Imam who had allegedly instigated the riot in Chandpur. He organised more rallies. During the course of the evening of 18 December 2002 NAQZ claimed that, as a prominent Hindu organiser, he was arrested by the police, who interrogated and beat him. 14 At the end of December 2002 NAQZ and his family were afraid for his life, and he left Bangladesh for India without valid papers. He lived there until 1994 where he later learnt that the Bangladeshi Government had filed charges against him for subversive anti-state activities. He felt insecure in India because the government was crusading against illegal immigrants, but did not want to return to Bangladesh. The same person who had obtained for him a false Indian passport arranged to have his passport renewed and obtained an Australian visa. · Proceeding before the Tribunal (as it related to NAQZ) 15 NAQZ was represented at the hearing before the Tribunal by counsel, who also represented him before this Court (Mr Eyeson Annan). Both NAQZ and NAQY gave evidence before the Tribunal. He initially attempted to resile from some of the information in his application stating that his migration agent, then a Mr Kazi, had provided misleading information to the Department, and that the same had occurred during the course of the first application, but with another migration agent, a Mr Boni Amin. However, he then affirmed that he was satisfied that the material in his application was true and correct. 16 Notwithstanding this, NAQZ was forced in the course of questioning by the Tribunal to resile from some of his previous claims. He claimed that he was a Bangladeshi, and that the Indian passport on which he had entered Australia was a forgery obtained from smugglers. He claimed that he had pretended to be Indian until he was put in detention and received a Bangladeshi passport. This was inconsistent with his original application for a protection visa, in which he claimed to be from India. At the hearing NAQZ produced two Indian passports, the second of which had purportedly replaced the first. He said that Mr Kazi had arranged an Indian passport for his son after the appellant had asked for it to be arranged. During the course of later questioning by the Tribunal which focused on whether NAQZ has supplied material indicating he was an Indian to allow Mr Kazi to arrange the Indian passport for NAQZ's son, NAQZ claimed that he did not ask for an Indian passport for the son, but needed it to obtain medical assistance. He had nothing to say on why he would need a passport for his son to obtain medical assistance when the family was in receipt of Medicare. 17 The Tribunal brought to NAQZ's attention the fact that both his Indian passport and the application for a protection visa showed his birth date to be 29 May 1961, whilst the Bangladeshi passport showed a birth date of 11 November 1967. 18 The appellant also produced a bundle of documents. 19 The first of these was an English language original purportedly from the Office of the District Election officer in Chandpur which indicated that on 26 October 1995 the appellant was aged 28. The Tribunal noted that if the NAQZ was born in May 1961, his age on that day would have been 34 years, but if he was born in November 1961, he would have been 27 years of age. The Tribunal further questioned why the appellant would appear on the electoral roll of a place in which he had not resided by his own evidence since 1992. The Tribunal noted that the font and typeface of this document was the same as that of a nationality certificate also included in the bundle, whilst the date entered was written or appeared to be written in the same hand as that of the nationality certificate, as was the signature. 20 The second document was an English language original from the Chandpur Pourashava from 1995 certifying that NAQZ was an inhabitant of that locality (which on his own evidence he had not been since 1992) and a Bangladeshi by birth. According to the Tribunal the font and the typeface were the same as on the electoral roll certificate. It was dated and signed in the same hand as the electoral roll. 21 The third of these documents was an original affidavit sworn by NAQZ's mother in law and dated 8 August 2000, accompanied by an English language translation . The affidavit stated that the daughter was to be married to someone in Bangladesh on 12 January 2000, but left the family home on 14 December 1999. The evidence of NAQZ and his wife was that the she had arrived in Australia on 18 November 1999 and that they married on 12 December 1999. NAQZ was then asked when he married. He said it was on 12 December 1999. He was asked if he had been married in 1994 (a claim made in the first visa application and documented by supporting materials). He said that this claim had been made by his first migration agent Mr Amin. He was then asked whether or not he had told the Tribunal at the first hearing that he was married in 1994, and had returned to India from Australia in 1997 but had travelled to Bangladesh to visit his wife and children who were in custody and under arrest in Nepal. He claimed that he had lied as Mr Amin had told him he would not come to the Tribunal hearing if he did not lie. He also claimed that at the Federal Court hearing Mr Amin had told him to say that the interpreter was the member of an opposing faction in Bangladesh, and to continue the lies. He said that not the entire statement was false. He admitted that at his first hearing before the Tribunal he had lied about the wife and child being imprisoned in Nepal. 22 There were also copies of four English language documents, dated from 12 to 14 November 2001 from the Bangladesh Chattra League (of which there were two), the Distressed Women's Rehabilitation Organisation, and the Hindu Boudday Khristan Praishad. The documents were, in summary, letters from members of these various organisations to the appellants informing them about various events that had supposedly occurred in Bangladesh during their absence and exhorting them not to return. The letters, according to the Tribunal, were in the same font and typeface, and had been signed by the same person. 23 The bundle also contained a variety of newspaper clippings and translations reporting violence against Hindus in Bangladesh. 24 The Tribunal noted that NAQZ had lied to the Department of Immigration by indicating that he was going to India in 1997, but that he instead had gone to Bangladesh to see his wife. NAQZ in response had claimed that he had gone to India without his passport. He then resiled from his statement that he had lied, and said that Mr Amin had told him to do it. The Tribunal asked him if he believed that if he had been advised by someone to do it, then it would not be a lie. He said it was true that it was wrong, but that Mr Amin set up stories to help people. He claimed that when he found out that Mr Amin was misleading him, he disagreed with him and lost the application. He claimed that he and his wife took action against Mr Amin, whose licence was suspended for a time. 25 It was put to NAQZ that he had lied and given false evidence about many of the claims. He asserted that everything was now true. It was put to him that the false evidence undermined much of the evidence about his wife, Bangladesh, claims of rape, problems in India, and that there were also problems with inconsistencies, with his activities and even at the hearing. He claimed that he had made a statement to Mr Amin which included a few words to base the story on, and then had questioned it when he realised it was fabricated. However, language difficulties prevented him from going to another migration agent, which is why he had continued to use Mr Amin. The Tribunal noted that NAQZ had since that time two other migration agents, without any communication problems. He claimed that his wife's case was not affected by the fabrications, which was apparently inconsistent with his earlier evidence. 26 NAQZ was then asked why he thought his marriage made him a refugee. First he claimed that it did not make him a refugee, then he changed his evidence, and said that the out of caste nature of the marriage increased his problems in Bangladesh, and that the wife's family were after him. He claimed his fear was Convention related, and should not be seen merely as a private family dispute, as religion was involved. He then changed the subject, claiming that he was wanted by Jamaati e-Islami in Bangladesh. He was asked why a minor party would have any interest in him. He said that they had great influence, and were against Hindus. The Tribunal pointed out to him that he had not been in Bangladesh since 1992, and that he had visited Bangladesh in September and December 1997 without any problems. He then claimed that his brother had come with him to Australia, returned to Bangladesh and then disappeared. This claim had not been made before. The Tribunal asked him for proof. The appellant then produced a newspaper article saying someone had disappeared after returning from Australia, but the article did not mention any names. He claimed he had been able to return to Bangladesh previously because he had travelled on a foreign passport and been discrete. The Awami League had also been in power and they were, according to the appellant, more flexible than the BNP. 27 It was put to him that he could live elsewhere in Bangladesh. He noted that he had nowhere to go, and no relatives. It was put to him that he had claimed that he had a wealthy family in Bangladesh and a house. He said his parents had gone and that he would have no protection in Bangladesh. He was unable to specify what sort of protection his relatives would have been able to provide. 28 It was put to NAQZ that he could live in India. He claimed that this was not possible as the Indian government was 'pushing back' those who were there illegally. It was put to him that he had claimed to be an Indian citizen, that he had one Indian passport which had been replaced with another and that he had successfully travelled on that passport, including to India. He claimed that he had lived in hiding with his cousin in India. This contradicted his previous claim that that he had lived and worked in India. 29 He claimed that the Indian passport was obtained by a broker and that the first was no good, although the second one, which was a replacement for the first, was 'okay'. It was put to him that if the second passport was a replacement for the first, it would be accepted as valid by the Indian authorities. He claimed that it had been obtained through a smuggler, and that it lacked an address. It was pointed out to him that this contradicted his previous evidence. 30 It was put to NAQZ that he, his wife and son all had Indian passports, and that he had claimed all the members of his family were Indian citizens. He continued to claim that all the passports were obtained through Indian brokers. It was put to him that he claimed that the son's passport had been obtained from the Indian High Commission in Sydney by Mr Kazi. 31 At the hearing NAQZ claimed that he had been raped in year 10 by local people several times, tortured on many occasions and that his house had been destroyed. He claimed that he would have the same problems if he returned to Bangladesh. It was put to him that this was inconsistent with his statement in which he claimed to have been raped by a Muslim teacher in year 10. It was put to him that if he had been raped in 1983 in year 10, he would have been 21 years old. He claimed he was born in 1967 and not 1961. · The Tribunal's decision regarding NAQZ 32 The Tribunal noted that the independent country information indicated that there was a high prevalence of document fraud in Bangladesh, and that there was further country information indicating that there was a prevalence of document fraud amongst Bangladeshi asylum seekers. 33 The Tribunal assessed the appellant's credibility unfavourably, stating: 'The applicant's evidence in relation to almost all aspects of his claims had no credibility or veracity. His evidence was a mixture of outright lies, fabrications, contradictions and inconsistencies. He claimed that all the fabrications, lies and misinformation were the products of his migration agents. When confronted with inconsistencies or contradictions, the applicant elaborated or fabricated evidence to reconcile such inconsistencies and contradictions. I do not consider that the applicant was a reliable or a credible witness. The lack of credibility of the applicant's evidence, and well as my consideration of the independent evidence [relating to document fraud], leads me to conclude that I am unable to be satisfied that the applicant faces a real chance of persecution for a Convention reason in the foreseeable future if he returns to India or Bangladesh.' 34 The Tribunal accepted NAQZ's name and those personal details that were recorded in the Indian passport. The Tribunal noted that the Indian passport had been used for successful international travel, as a means of proving identity to obtain a NSW driver's licence, to register the birth of the appellant's child, establish the child's Indian nationality and have the child issued with an Indian passport by the Indian High Commission in Sydney. The Tribunal did not accept the NAQZ's evidence that he had acquired the passport illegally, as it considered that evidence to be varied and inconsistent. 35 The Tribunal rejected the documents the appellant supplied as corroboration of his Bangladeshi identity. It noted: 'I have serious problems with the documents. The electoral roll document is in the same font and typeface as the nationality certificate document, the dates are in the same hand and the signatures and the dates are in the same hand, yet the documents themselves would appear to represent agencies remote in space and time. Four English language documents which are from various different agencies appear to have been produced in the same font and typeface, and are signed and dated in the same hand.' 36 In relation to the affidavit of the appellant's mother in law, it stated: 'The affidavit from the wife's mother in law also raises serious questions about the credibility and veracity of the applicant's evidence. It is purportedly affidavit from the applicant's wife's mother deposing that the daughter was to be married on 12 January 2000 in Bangladesh, and that she ran away from the mothers house in Bangladesh on 14 December 1999. It was the applicant's and his wife's evidence, supported by the wife's assertion that the wife arrived in Astrakhan on 18 November 1999 and was married in North Sydney on 12 December 1999.' 37 The Tribunal stated: 'The documents provided by the applicant have the flavour and character of the documents described in the independent information [concerning document fraud]. In light of the problems I note with the applicant's documents, I am unable to accept that the documents produced by the applicant in support of his claims of identity and the situation he might face in Bangladesh, have any credibility or veracity. Therefore, I am unable to accept that the documents are genuine, and consequently, I am unable to give the documents any weight.' 38 The Tribunal then referred to NAQZ's claim to have a Bangladeshi passport, and noted that the passport was first used the day before the Tribunal hearing and that it had been the appellant's previous evidence that he was unable to obtain a Bangladeshi passport. The Tribunal stated: 'I note the independent country information discussed above about documentation produced from Bangladesh. I also take cognisance of the fact that the applicant's evidence has neither been credible nor of any veracity in almost all aspects of his case. In light of these considerations, I am unable to accept the [Bangladeshi] passport is determinative of his nationality, date of birth or identity, or that it supports his claim of being a Bangladeshi. It does support the fact that the applicant has the resources to procure such a document…The applicant's evidence of his identity and passport was confusing, inconsistent, contradictory and implausible.' 39 Because the Tribunal did not accept that the Indian passport was illegally obtained, the member found it to be valid. It noted that NAQZ's claims of the languages he could speak were consistent with those of a person who came from West Bengal in India. 40 As the Tribunal did not accept NAQZ's claims that he came from Bangladesh, it also rejected his evidence in relation to the 'escape' from Bangladesh to India because of religious or political problems, his rape by a Muslim or local people whilst at school, or that he was at risk from political opponents or religious fanatics upon a return to Bangladesh. 41 The Tribunal found that even if NAQZ's evidence in relation to the problems that arose because of his inter-caste marriage were to be accepted, these problems did not occur because of a Convention reason. 42 The Tribunal did not accept that NAQZ had any problems in India, or that he would have any problems if he were to return to India, and consequently rejected his application. As no separate claims had been made on behalf of the son his applicant was likewise rejected.