Jahangir v Minister for Immigration and Multicultural Affairs

[2001] FCA 656

FEDERAL COURT OF AUSTRALIA

Jahangir v Minister for Immigration & Multicultural Affairs [2001] FCA 656

SAYED MOHAMMED HASAN JAHANGIR v
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 44 of 2001

SUNDBERG, FINKELSTEIN & KATZ JJ
1 JUNE 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 44 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SAYED MOHAMMED HASAN JAHANGIR APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	SUNDBERG, FINKELSTEIN & KATZ JJ
DATE OF ORDER:	1 JUNE 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1The appeal be dismissed.

2              The appellant 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 44 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SAYED MOHAMMED HASAN JAHANGIR APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	SUNDBERG, FINKELSTEIN & KATZ JJ
DATE:	1 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

SUNDBERG J

1. I agree that the orders proposed by Katz J should be made for the reasons that his Honour has given.

I certify that the preceding paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Date:    8 June 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 44 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SAYED MOHAMMED HASAN JAHANGIR APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	SUNDBERG, FINKELSTEIN & KATZ JJ
DATE OF ORDER:	1 JUNE 2001
WHERE MADE:	SYDNEY

FINKELSTEIN J

1. I agree with the reasons given by Katz J and with the orders that he proposes.

I certify that the preceding paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate:

Date:    8 June 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 44 of 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SAYED MOHAMMED HASAN JAHANGIR APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	SUNDBERG, FINKELSTEIN & KATZ JJ
DATE OF ORDER:	1 JUNE 2001
WHERE MADE:	SYDNEY

REASONS FOR JUDGMENT

KATZ J:

1. There is before the Court an appeal from a judgment of a Judge of the Court (Stone J). By that judgment, the primary Judge dismissed an application which had been made to the Court under subs 476(1) of the Migration Act 1958 (Cth) (“the Act”) for review of a decision which had been made by the Refugee Review Tribunal (“the RRT”). By its decision, the RRT had dismissed an application which had been made to it for review of a decision which had been made by a delegate (“the delegate”) of the Minister for Immigration & Multicultural Affairs that Mr Sayed Mohammed Hasan Jahangir was not entitled to the grant of a protection visa.

2. It is apparent that Mr Jahangir prepared the notice of appeal which began the present proceeding without the benefit of legal assistance.  That notice of appeal merely states, as the “grounds” of the appeal, that:

   “I am not satisfied with the judgment dated 20^th December 2000 by the single judge of the Federal Court.  A number of matters were not considered by the single judge.  Single judge has followed the decision of the RRT which is not maintainable.”

3. On the hearing of his appeal, Mr Jahangir appeared in person.  That was in contrast to the situation which had obtained before the primary Judge, when Mr Jahangir had had the benefit of having counsel appear for him.

4. Not surprisingly, on the hearing of the appeal, Mr Jahangir was unable to offer the Court any real assistance on the question whether the primary Judge had erred in some way in dismissing his application for review of the RRT’s decision.  In support of his appeal, Mr Jahangir merely invited the Court to confirm on the Internet that the present Awami League (“AL”) government of Bangladesh was now targeting the political party with which he had been associated in Bangladesh.

5. In those circumstances, I have examined the primary Judge’s reasons for judgment in order to discover: first, which grounds of review under subs 476(1) of the Act had been relied on at the hearing before the primary Judge by counsel then appearing for Mr Jahangir; secondly, how counsel had submitted that those grounds of review had been made out; and, thirdly, how the primary Judge dealt with those submissions. I have done so for the purpose of considering whether I can discern some error in the primary Judge’s approach to the matter which would justify allowing Mr Jahangir’s appeal.

6. It is apparent from the primary Judge’s reasons for judgment that counsel had relied before her on three grounds of review: first, the ground contained in par 476(1)(e) of the Act; secondly, the ground contained in par 476(1)(a) of the Act, when read together with par 430(1)(b) of the Act; and thirdly, the ground contained in par 476(1)(g) of the Act, when read together with par 476(4)(b) of the Act.

7. Before turning to counsel’s submissions concerning those three grounds of review and to the way in which the primary Judge dealt with those submissions, it is convenient to mention a number of factual matters.

8. Mr Jahangir is a Bangladesh national, who, in support of his application for a protection visa, gave an account of having been a senior office bearer of the Jamat-e-Islami, a conservative Muslim political party in Bangladesh, after having earlier been involved with the Purba Bangla Communist Party in Bangladesh.  In a statutory declaration made for the purpose of the RRT’s review, and speaking of some time during the 1980s, Mr Jahangir stated:

   “12. … a major part of the party members [that is, the Purba Bangla Communist Party] became rich by undue influence and adopting illegal power.  They targeted me because I was interested to change the attitude of the leaders and workers and to stop their illegal work.  As such they identified me as their number one enemy.  They also targeted me when I opposed them in taking money illegally from the poor and destitute villagers.
   13. They had a very good connection with the police.  They monthly paid to the local police station as such they were free to do any thing what ever they liked.  With a due influence of the selfish leaders of our party, the local police put my name in the two-murder cases.”

   Later in the same statutory declaration, and speaking of a time during the 1990s, Mr Jahangir stated, “My cases were not withdrawn by the BNP [that is, Bangladesh Nationalist Party] government”.

9. Mr Jahangir also supplied to the RRT, in support of his application for review of the delegate’s decision, two documents purporting to establish his status within the Jamat-e-Islami.

10. Before the primary Judge, counsel for Mr Jahangir submitted that there had been evidentiary material before the RRT which had tended to establish the existence of the following four facts:

    “(i) Religious based political organizations were targeted by the Government;
    (ii) Violence is a feature of political life in Bangladesh;
    (iii) Senior members or office bearers [that is, of religious based political organizations] are more often targeted [that is, by the government]; and
    (iv) The Applicant is a senior office bearer [that is, of a religious based political organization].”

11. Counsel for Mr Jahangir then submitted that it had been open to the RRT, based on those four facts, to find that Mr Jahangir had a well-founded fear of being persecuted in Bangladesh for reasons of political opinion if he should return there. Further, counsel submitted that the RRT had failed to “address” those four facts in its statement of findings and reasons and that such failure either was an error of law of the type identified in par 476(1)(e) of the Act or was a breach of the RRT’s obligation under par 430(1)(b) of the Act to set out the reasons for its decision; in the latter case, it was submitted that the ground set out in par 476(1)(a) of the Act was enlivened by the breach.

12. However, as the primary Judge correctly pointed out, the RRT had in truth “addressed” each of those four so-called facts in its statement of findings and reasons, to the extent to which it was necessary to do so, given the RRT’s reasoning.  It is convenient to deal with the four so-called facts in the following order: (iv), (iii), (i) and (ii).

13. First, the RRT had plainly rejected Mr Jahangir’s claim to be a senior office-bearer of the Jamat-e-Islami, finding him to be an “unreliable witness” for reasons which it gave.  Its finding in that respect was not the subject of a complaint before the primary Judge of judicially-reviewable error.  Instead, the RRT accepted merely that Mr Jahangir “may have supported” the party and that he merely “identif[ied]” with it.  In the course of rejecting his claim, the RRT explicitly rejected, as unreliable, the two documents purporting to establish Mr Jahangir’s status within the Jamat-e-Islami, the latter rejection also not being made the subject of a complaint before the primary Judge of judicially-reviewable error.

14. Secondly, Mr Jahangir’s claim to be a senior office-bearer of the Jamat-e-Islami having been rejected, it was logically unnecessary for the RRT to make any finding on the question of the treatment accorded to senior office-bearers of the Jamat-e-Islami, as opposed to other persons associated with the party, since that question only became relevant if Mr Jahangir was a senior office-bearer of the Jamat-e-Islami.

15. Thirdly and in any event, the RRT recited, with evident approval, independent country information which was before it to the effect that “the AL government … has not targeted the Jamat-e-Islami in any serious way”.

16. Fourthly, the RRT noted, with appropriate references to independent country information which was before it, that,

    “… the Jamat-e-Islami is a legal party operating normally within Bangladesh’s sometimes heated but ultimately democratic political process…. [O]ccasional acts of violence are perpetrated from supporters of all sides in isolated incidents, usually around election campaigns…. The Applicant’s description of the Jamat-e-Islami as being exclusively the victim of such acts and never the perpetrator is demonstrably inaccurate….”

17. In circumstances in which, contrary to Mr Jahangir’s counsel’s submission before the primary Judge, the RRT had “addressed” each of the four so-called facts in its statement of findings and reasons, to the extent to which it was necessary to do so, given the RRT’s reasoning, the foundation for the submission that the RRT’s failure to “address” each of those so-called facts enlivened either the ground of review set out in par 476(1)(e) of the Act or the ground of review set out in par 476(1)(a) of the Act, when read together with par 430(1)(b) of the Act, is seen necessarily to fall away. That being so, it is unnecessary to deal with any of the other bases on which the primary Judge rejected Mr Jahangir’s counsel’s submissions regarding those two grounds.

18. I turn now to Mr Jahangir’s counsel’s submissions before the primary Judge regarding the ground of review set out in par 476(1)(g) of the Act, when read together with par 476(4)(b) of the Act.

19. Those submissions identified what must have been conceived by counsel to be two “particular fact[s]” on the existence of which the RRT’s decision to affirm the delegate’s decision had been “based”, within the meaning of par 476(4)(b) of the Act. They were: first, that Mr Jahangir had claimed before the RRT that “charges against the Applicant were ‘formally laid’”; and, secondly, that Mr Jahangir had not been persecuted for reasons of political opinion in Bangladeh.

20. Of course, in order to succeed on the ground under par 476(1)(g) of the Act, when read together with par 476(4)(b) of the Act, it was necessary for Mr Jahangir to establish before the primary Judge that that which he claimed to be a particular fact on the existence of which the RRT’s decision had been based answered that description. It was further necessary for him to establish before the primary Judge by evidence admissible according to the rules of judicial evidence that that particular fact did not exist. Finally, it was necessary for him to establish before the primary Judge that there had been no evidentiary material before the RRT on the basis of which it had been open to the RRT to find that that particular fact did exist.

21. As to the RRT’s finding that Mr Jahangir had claimed before the RRT that “charges against the Applicant were ‘formally laid’”, the primary Judge took the view that there had been evidentiary material before the RRT on the basis of which it had been open to the RRT to find that that particular fact did exist, namely, the material which I have quoted above from Mr Jahangir’s statutory declaration made for the purpose of the RRT’s review of the delegate’s decision.

22. That view of the primary Judge was plainly correct.

23. As to the RRT’s finding that Mr Jahangir had not been persecuted for reasons of political opinion in Bangladeh, the primary Judge took the view again that there had been evidentiary material before the RRT on the basis of which it had been open to the RRT to find that that particular fact did exist, including the independent country information which I have quoted above to the effect that the government had not targeted the Jamat-e-Islami.

24. Again, that view of the primary Judge was plainly correct.

25. However, I should add that, in my view, the primary Judge erred on the side of generosity towards Mr Jahangir by treating the RRT’s finding that Mr Jahangir had not been persecuted for reasons of political opinion in Bangladeh as a “particular fact” for the purposes of par 476(4)(b) of the Act.

26. I say that for at least one reason.

27. I do not accept that a conclusion that Mr Jahangir had not been persecuted for reasons of political opinion in Bangladeh was a “particular fact” within the meaning of par 476(4)(b) of the Act. Rather, it was “a conclusion based upon a series of particular facts”: see Chen v Minister for Immigration & Multicultural Affairs [1999] FCA 34 at [34] (Moore, Mansfield and Emmett JJ), referred to with approval in Guden v Minister for Immigration & Multicultural Affairs (2000) 58 ALD 352 at 357, [15] (Lee, Goldberg and Kenny JJ) and in Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023 at [22] and [50] (Kiefel, North and Mansfield JJ). While each of the particular facts in the series upon which that conclusion was based might found an attack on the RRT’s decision under par 476(1)(g) of the Act, when read together with par 476(4)(b) of the Act, the conclusion itself would not.

28. In the circumstances, Mr Jahangir’s appeal must be dismissed with costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Associate:

Date:    8 June 2001

The appellant appeared in person.
Counsel for the Respondent:	Mr GT Johnson
Solicitors for the Respondent:	Sparke Helmore
Date of Hearing:	1 June 2001
Date of Judgment:	1 June 2001