Aslam v MIMA

[2001] FCA 1782

FEDERAL COURT OF AUSTRALIA

Aslam v MIMA [2001] FCA 1782

SIKDER ASLAM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 995 OF 2001

GRAY, NORTH & MANSFIELD JJ
16 NOVEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 995 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:	SIKDER ASLAM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	GRAY, NORTH & MANSFIELD JJ
DATE OF ORDER:	16 NOVEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant is to the pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 995 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:	SIKDER ASLAM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	GRAY, NORTH & MANSFIELD JJ
DATE:	16 NOVEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

GRAY J:

1. I would also dismiss the appeal for the reasons given by North J.  I do not wish to add anything to those reasons.

I certify that the preceding one (1) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated:             18 December 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 995 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:	SIKDER ASLAM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	GRAY, NORTH & MANSFIELD JJ
DATE:	16 NOVEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

NORTH J:

1. The appellant, Sikder Aslam, is a citizen of Bangladesh.  He arrived in Australia on 8 September 1998.  On 22 October 1998, he applied for a protection visa.  On 4 July 2000, the Refugee Review Tribunal (the Tribunal) affirmed the refusal of the delegate of the Minister for Immigration and Multicultural Affairs (the Minister) to grant a protection visa.  The Federal Court set aside the Tribunal’s decision on 5 October 2000.  On 24 January 2001, a differently constituted Tribunal again affirmed the decision of the delegate.  The appellant then sought a review of the Tribunal’s decision in the Federal Court, pursuant to the Migration Act 1958 (Cth) (the Act).

2. On 7 June 2001, Allsop J dismissed that application.  This is an appeal from the decision of Allsop J. 

3. I turn to the proceedings before the Tribunal.  Both the Tribunal and Allsop J set out at length the claims made by the appellant.  It is, therefore, unnecessary for me to set them out at such length again but it is useful to give a broad picture of what the appellant’s claims have been. 

4. The appellant claimed to be a member of the Bangladesh Nation Party (BNP) from the mid-1980s, and that he was the general secretary of the youth wing at college.

5. In 1991, the BNP won the national elections and the appellant alleged that the Awami League – then in opposition – tried to kill him and lodged false charges against him.  In 1996, the Awami League won the national elections and the appellant’s case was that the Awami League continued to seek him out in an attempt to kill him.  In July 1997, he alleged that he was accosted by Awami League thugs and only after some delay did the police lay charges against those people.  The appellant claimed that the Awami League continued to lay false charges against him and, in March 1998, he was beaten up badly.  After this incident his parents urged him to come to Australia.

6. I now turn to what the Tribunal decided.  Again, I only seek to summarise its major conclusions, and not to explain in detail its decision.  The Tribunal accepted that the appellant was an activist for the BNP.  It determined from independent evidence that BNP workers were not targeted for persecution.  The Tribunal found that the appellant’s claims that he had been persecuted were not reliable.  It placed weight on the way he changed his evidence in relation to the alleged danger to his family.  The Tribunal found that the appellant exaggerated the importance of his function in the BNP.  The Tribunal analysed the evidence and came to the conclusion that the appellant was not the target of an attempted murder.

7. Nonetheless, the Tribunal found that the appellant may have faced harassment in the form of the laying of false charges and two attacks.  As to the attacks, the Tribunal held that the conduct did not amount to persecution within the meaning of the Convention, but rather, were acts of random violence in a political system where violence is a feature.

8. The Tribunal further determined that such violence is not supported or tolerated by the State.  The Tribunal noted that the Public Safety Act was passed in January 2000 to curb violence in the society.  The Tribunal found that independent evidence did not support the claim that there is no protection available from the police, or that police refused to investigate crimes by the Awami League, or that justice is not available to members of the BNP.  The Tribunal was not satisfied that BNP members are persecuted for their political opinion. 

9. The Tribunal then turned to what it called “factors individual to the appellant”, that is to say, factors which might cause him to be at risk of persecution.  The Tribunal found that the appellant was a middle-ranking party official.  It accepted that the appellant had suffered harm in random attacks and that he could suffer harm in the future by reason of the violence existing in society in Bangladesh.  Similarly, the Tribunal accepted that the appellant might be the subject of political rivals in the future.

10. In the cases of both the danger of future attacks and the laying of false charges, the Tribunal found that the appellant would be able to enlist police protection.  The Tribunal summarised its findings as follows:

    “Summing up all of the above, I do not accept that the applicant faces persecution in Bangladesh simply for being a BNP supporter or activist, because independent evidence does not support such a claim.

    Given the applicant’s low political profile, I am not satisfied that he was a particular target of AL activists.  I find that he has exaggerated his political standing to boost his application for a protection visa.

    I accept that the applicant was attacked by opposition activists but I am not satisfied, given the atmosphere in which the BNP has both instigated violence and been the target of it, and the random and retaliatory nature of such violence, that the harm suffered by the applicant could be termed persecution in the absence of other factors which might credibly substantiate an application for protection.

    I acknowledge that a situation of generalised violence does not mean that persecution does not co-exist.  However, I find that the applicant can find protection within Bangladesh because the authorities there are keen to stop such violence and have taken decisive steps to curb punish [sic] perpetrators of political and other violence.

    I accept that the applicant might have been harassed by false charges laid against him, but I find that he has the protection of the law and the courts in this regard.”

11. Against this background, the appellant sought a review of the Tribunal’s decision in the Federal Court.  This application was heard by Allsop J.  The grounds of that application were as follows:

    “The applicant is aggrieved by the decision because –

    1.The applicant was a leading activist of the party and this was not considered by the delegate;  the delegate also considered that the applicant experienced mistreatment by his political opponents but did not amount to persecution by the delegate [sic].

    2.The applicant’s claim was well founded which was not considered by the Tribunal member.

    3.The Tribunal passed an unrealistic decision and the applicant has a real chance of being persecuted upon return to his home country;  the Tribunal ignored this.  The current situation of the applicant was not taken into account by the Tribunal.

    4.The Tribunal is of the opinion that the applicant had been persecuted in the past.  However the Tribunal denied that there was a real fear of persecution.”

12. The application continued as follows:

    “The grounds of the application are:

    1.The Tribunal member has taken irrelevant consideration [sic] in deciding the fate of the applicant’s claim which is an issue in accordance with section 476(3)d [sic] of the Migration Act 1958.

    2.The Tribunal member forwarded his decision in considering the applicant’s case in bad faith, which is reviewable in accordance with section 476(3)(f) of the Act.

    3.The Tribunal member made some errors in deciding the case.

    4.The Tribunal erroneously portrayed the applicant as a low profile leader which is not true.  The applicant was a district executive high-level leader.

    5.The Tribunal findings were erroneous and without any reasonable basis.”

13. In a very careful and comprehensive decision his Honour considered each of these grounds for review.  He first considered whether:

    “the second part of the paragraph numbered 1 is intended to convey a complaint that, in effect, the Tribunal erred in law when, having found the way it did that the Applicant had experienced past mistreatment, it did not consider that thereby a finding of persecution necessarily followed.”

14. His Honour then outlined the factual conclusions of the Tribunal in relation to the appellant’s claims of harm experienced and false charges made against him, as follows:

    “The Tribunal found, in the context of what it accepted had happened, that any harm suffered, or likely to be suffered, by a person of the applicant’s status, was of a random nature and for this reason could not be characterised as persecution.  These were factual matters.  The Tribunal was not obliged, once having accepted past acts of violence or of the laying of false charges, to find that those events amounted to persecution for a Convention reason or that the applicant, because of the past occurrence of those events, must have a well-founded fear of persecution for a Convention reason.  The Tribunal took the facts which it accepted as having happened into account and came to a conclusion in terms of the Convention definition.”

    It followed, his Honour held, that there was no error of law in this respect. 

15. His Honour then held that grounds 1 and 2 were not grounds of review permitted by s 476(1) of the Act.  He found that grounds 3, 4 and 5 were challenges to the fact findings made by the Tribunal, which the Court was not authorised to consider on a judicial review.  He also considered, and rejected, the proposition that there was a failure to exercise jurisdiction, which might fall within the fifth ground of appeal.

16. His Honour also held that the appellant’s oral submissions, similarly, raised factual disagreements with the Tribunal’s conclusion, and, again, held that these challenges did not fall within the purview of s 476 of the Act. 

17. The appellant then appealed to the Full Court.  The grounds of appeal relied upon in the notice of appeal state as follows:

    “1.The trial judge erred in failing to find that the Tribunal had failed to find the material facts of the case.

    2.The Tribunal (as constituted by D. Kelleghan) portrayed the applicant a leading activist of the party and on the contrary the tribunal said that the applicants [sic] maintained a low profile.  This inconsistency was not considered by the Honouable [sic] trial judge.

    3.The Honorable [sic] trial judge erred considering the present political situation in Bangladesh.” 

18. The appellant filed written submissions in respect of the appeal, including seven annexures.  The annexures contained material which the appellant asked the Court to consider in relation to the appeal.  These documents were as follows:

    “1.Internet down [sic] HOLIDAY Weekly article ‘No place safe for the common People’ dated 09/06/2001.

    2.Photo copy of AMNESTY INTERNATIONAL Report ‘BANGLADESH Torture of asylum-seeker returned from Sweden’ August 1991.

    3.Photo copy of local News paper article ‘Militants rampage in Dhaka’ April 7, 2001.

    4.Copy of Country Report on Human Rights Practices for 1999.

    5.Some Photo Evidence regarding Bangladesh political situation.

    6.Copy of Amnesty International Report: BANGLADESH: ENDEMIC TORTURE SINCE INDEPENDENCE.

    7.Copy of Amnesty International Report: BANGLADESH Reports of torture and possible extra judicial executions.”

19. The Court is unable to take into account these documents on appeal.  The function of the Full Court is limited to considering the material that was before the Tribunal.  This same limitation applied to the function of Allsop J.  None of the annexures contain material which was before the Tribunal, and indeed, some of the annexures, namely documents 1 and 3, came into existence after the Tribunal decision.  It is not possible to criticise the Tribunal’s decision by reference to material which came into existence after it delivered its decision. 

20. Although this Court cannot take into account the annexures, it must consider the written submission made by Mr Aslam.  The points made in the written submission seem to me to be as follows:

    1.The Tribunal generally overlooked and ignored important matters which showed that the appellant had been persecuted.

    2.There was, in fact, a real risk that the appellant would be killed by government supporters because he was blamed for the murder of an Awami League activist.  In his submission, the appellant contended that he had been able to get a passport despite the murder accusation because he had not been formally charged with murder.  This submission was an attempt to answer some questions raised either by the Tribunal, or the delegate, as to the significance of the fact that he had been able to obtain a passport from the authorities. 

    3.Even if, the appellant contended, he was not blamed for the murder, he would be at risk of persecution and death simply as an opponent of the Awami League.

    4.The Tribunal should have found that the appellant was a leading activist.

21. The appellant also addressed the Court orally on the appeal.  The appellant’s oral submission was that the Tribunal was wrong in not believing him and that the Tribunal was wrong in finding that he was not an activist with a high profile.  He said that his trouble related to the fact that he was not a leading political figure in Bangladesh. Mr Aslam further submitted that if there was no problem with him returning to Bangladesh, he would have no hesitation in so doing. 

22. In the course of his submission, the Court raised with the appellant the contents of the written submissions which had been filed by the respondent.  As the appellant had not had a chance to have the contents of these submissions translated to him, the matter was stood down for a short time to allow that to happen.

23. When the Court resumed, the appellant made some further oral submissions in answer to the respondent’s written submissions.  The appellant again took issue with the findings of the Tribunal, which were reflected in the respondent’s outline.  He said that the evidence that he had given to the Tribunal was the truth and had not been exaggerated.  He again reiterated that it was not possible for him to return to Bangladesh. 

24. The role of the Court in a review of the decision of the Tribunal is limited by the grounds set out in s 476 of the Act.  It is clear law that it is not the function of the Court to reassess the facts and to come to its own conclusion of those facts.  In effect, the appellant’s written and oral submissions ask the Court to undertake that task.  The Court has no jurisdiction to do so.  In this respect, the appellant made the same essential submission to the primary judge.  Allsop J was correct to dismiss the appellant’s challenges to the fact findings of the Tribunal, namely: that the appellant was not a leading activist; that he was not threatened with murder; that supporters and officials of the BNP were not at risk of persecution for their political opinion; and, that random attacks or false charges against BNP supporters and others were dealt with by the legal system in Bangladesh.

25. Finally, I address the grounds of appeal stated in the appellant’s notice of appeal.  The first ground again seems to attempt to dispute the Tribunal’s fact findings.  I take ground 1 to be saying that the Tribunal failed to find the facts in the way the appellant believed that it should have done. 

26. The second ground of appeal seeks to raise an inconsistency in the Tribunal’s reasoning.  Even if such an inconsistency existed, it would not amount to an error of law in relation to which this Court could intervene.  Nonetheless, on a fair reading of the reasons of the Tribunal, there is no such inconsistency.  The Tribunal did not determine that the applicant was a leading activist, but rather an activist, of the BNP.  There is no inconsistency between the applicant being found to be an activist and, at the same time, maintaining a low profile.

27. Finally, the third ground is capable of two interpretations.  It might mean that the trial judge erred in the conclusions he arrived at about the political situation which existed in Bangladesh at the time of the Tribunal decision.  Alternatively, it might be directed at the present political situation in Bangladesh; that is to say, that the political situation at the time when his Honour heard the application for review.

28. If the latter interpretation is correct, then his Honour had no jurisdiction to consider that question.  If it is the former, then it amounts to a further disagreement with the fact finding process of the Tribunal, a matter which, as I have explained, is not within the jurisdiction of this Court to correct.  It must be emphasised again that neither his Honour, nor this Court, is ruling upon the merits of Mr Aslam’s case.  His Honour was, and this Court, is concerned with the limited question of the legality of the decision making process of the Tribunal on that question.  It has not been demonstrated that his Honour has fallen into any appellable error. 

29. Consequently, the appeal must be dismissed.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:             18 December 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 995 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE
FEDERAL COURT OF AUSTRALIA

BETWEEN:	SIKDER ASLAM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	GRAY, NORTH & MANSFIELD JJ
DATE:	16 NOVEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MANSFIELD J:

1. I also agree that the appeal should be dismissed and with the reasons for decision given by North J.

I certify that the preceding one (1) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             18 December 2001

The appellant appeared in person.

Counsel for the Respondent:	Mr R J Bromwich
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	16 November 2001
Date of Judgment:	16 November 2001