Akbar v Minister for Immigration and Multicultural Affairs

[2001] FCA 1060

FEDERAL COURT OF AUSTRALIA

Akbar v Minister for Immigration & Multicultural Affairs [2001] FCA 1060

MUHAMMAD SHOUKAL AKBAR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N277 of 2001

MADGWICK J
26 JULY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N277 of 2001

BETWEEN:	MUHAMMAD SHOUKAL AKBAR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	26 JULY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N277 of 2001

BETWEEN:	MUHAMMAD SHOUKAL AKBAR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	26 JULY 2001
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”) of 28 February 2000, which affirmed a decision of a delegate of the respondent Minister to not grant the applicant a protection visa.  The grounds, as stated in the application, for an order of review are:

   “1.The Tribunal member unjustly refused the applicant’s claim and it is grounded upon section 476(1)(g) of the Migration Act 1958.

   2.The Tribunal took irrelevant consideration deciding the fate of the applicant review in accordance with the section 476(3)(d) of the Migration Act 1958.

   3.The Tribunal made a number of errors to decide the fate of this case.

   4.The Tribunal [had] failed to act in accordance with the relevant guidelines of the Migration Act 1958.”

2. The applicant appeared for himself.  He complained of his inability to obtain legal aid so as to be legally represented.  It appears, however, that he did have legal advice pursuant to the pilot legal advice scheme operated by the respondent Minister’s Department in New South Wales, whereby a person such as he can be advised as to the merits of his or her case.

   Background

3. The applicant is a citizen of Bangladesh and was found by the Tribunal to be also a citizen of South Africa.  I phrase the matter that way because the applicant at various times appears to have said different things about his actual status in South Africa.  At the very least he seems to be a person to whom, at least on an interim basis, South Africa was prepared to accept it had protection obligations to as a refugee under the 1951 Convention Relating to the Status Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”), the same Convention which determines refugee status in Australia.

4. The applicant arrived in Australia on 16 June 1999 and applied for refugee status on 28 June 1999.  The applicant’s principal claim, I think it is fair to say, is that he fears persecution in Bangladesh for reasons of political opinion.  He claimed to have been a leading member, as a student, of the Jamaat -e- Islami political party which appears to be a party that desires to see Bangladesh ultimately governed as a Muslim state.  The Tribunal member applied the soubriquet “fundamentalist” to that party.  The applicant claimed that he suffered persecution in Bangladesh at the hands of thugs engaged by the rival political party, the Awami League. 

5. The applicant’s other claim was that he fears persecution in South Africa for reasons of race and he pointed to various “attacks”.  As I read the Tribunal member’s decision, the Tribunal member could not exactly extract from the applicant the nature of these attacks.  At all events, the applicant claimed that unpleasant and frightening experiences were inflicted on him as a person perceived to be an Indian, which I take to mean somebody who comes from the Indian subcontinent.  He apparently moved in social circles in Johannseburg which would aid his identification in that way.

   Consideration of Tribunal’s decision

6. The Tribunal member rejected the applicant claims on a number of bases.  First, the applicant was not accepted as a witness of truth.  His evidence was found to be unconvincing and internally inconsistent as well as inconsistent with the independent evidence about both countries that the Tribunal member accepted.  The Tribunal member explained in detail and with clarity the reasons for rejecting the applicant’s account of his alleged political activities

   
   
   

   and experience in Bangladesh.  It is sufficient to say that it appears to have been perfectly open to the Tribunal member to make the findings which he did.

7. As to the claims about South Africa, the applicant’s evidence was also found to be extremely unconvincing and inconsistent with independent country information.  The Tribunal member seemed ultimately, however, to have accepted that he may have experienced beatings and robbery at the hands of black persons in South Africa.  However, the Tribunal concluded that such harm was both “criminal in nature” and that, in South Africa and particularly Johannesburg, there is a very high crime rate generally.  Thus the attacks were simply criminally rather than racially motivated, and in any case what had occurred “was not of sufficient gravity to constitute persecution”.

8. The finding about the harm being insufficient to constitute persecution, if it did involve repeated beatings and robbery, that is to say, theft accompanied by force or the offer of force to the person, was a robust one and may possibly have involved some legal error as to the nature of the gravity of the harm sufficient to be classed as persecution.  However, that alone would not avail the applicant, if the finding that such harm as he did suffer was not racially motivated is legally unassailable.  So far as I can see it is legally unassailable. 

9. The Tribunal member referred to evidence which had also weighed with the Minister’s delegate, that there is very little evidence of anti-Indian violence in South Africa.  The evidence was that the South African Human Rights Commission had, in what I take to be the area of South Africa where most of the Indian population lived, heard of only one incident, as at 1996, involving an attack on an Indian and that was a school fight.  It seems the Tribunal member made a bona fide effort to consult respectable materials to try to discern the situation in South Africa and the conclusion to which the Tribunal member came seems to have been legally open to him. 

10. The grounds in the application for review are obviously misconceived and an affidavit which Mr Akbar filed, that is by way of submissions apparently made with the assistance of a migration agent, is of a like character.

    Disposition

11. I can see nothing to support the applicant’s application for review to this Court and, accordingly, it must fail.  The application will be dismissed.  The applicant will be ordered to pay the respondent’s costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             3 August 2001

Applicant appeared in person.
Counsel for the Respondent:	D Jordan
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	26 July 2001
Date of Judgment:	26 July 2001