Jahangir v Minister for Immigration and Multicultural Affairs

Case [2000] FCA 1872

FEDERAL COURT OF AUSTRALIA

Jahangir v Minister for Immigration & Multicultural Affairs [2000] FCA 1872

MIGRATION – application for review of decision of Refugee Review Tribunal – whether the Tribunal’s decision involved an error of law – whether there was no evidence or other material to justify the making of the decision – whether the Tribunal complied with the requirements of section 430(1) of the Migration Act 1958 (Cth)

Migration Act 1958 (Cth) ss 430(1), 476(1), (4)

Minister for Immigration & Multicultural Affairs vSingh  [2000] FCA 845 followed
Abebe v Commonwealth (1999) 197 CLR 510 at [85] followed
Yilan v Minister for Immigration & Multicultural Affairs (1999) 55 ALD 600 at [58] referred to
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220 followed

SAYED MOHAMMED HASAN JAHANGIR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 705 of 2000

STONE J
20 DECEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 705 OF 2000

BETWEEN:

SAYED MOHAMMED HASAN JAHANGIR
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

20  DECEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs.

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 705 OF 2000

BETWEEN:

SAYED MOHAMMED HASAN JAHANGIR
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

STONE J

DATE:

20  DECEMBER 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Introduction

  1. This is an application for a review of the decision of the Refugee Review Tribunal (“Tribunal”) upholding a decision of the delegate (“Delegate”) of the Minister for Immigration and Multicultural Affairs (“the Minister”) to refuse the grant of a protection visa. The application is made under s 476 of the Migration Act 1958 (Cth) (“the Act”).

  2. Under s 36 of the Act, the criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as “amended” by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, “the Convention”).  As a party to the Convention, Australia has undertaken protection obligations to a person who is a “refugee” as defined in the Convention.

  3. Article 1A(2) of the Convention provides that a refugee is any person 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return…

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Details
AGLC
Jahangir v Minister for Immigration and Multicultural Affairs [2000] FCA 1872
Case
[2000] FCA 1872
Decision Date

CaseChat Overview and Summary

In the matter of Jahangir v Minister for Immigration and Multicultural Affairs, the applicant, a citizen of Bangladesh, sought judicial review of a decision by the Tribunal which had affirmed the Minister's refusal to grant him a protection visa. The applicant had arrived in Australia in May 1997 and applied for a protection visa in July 1999 after having previously stayed in Australia for over three years without applying for such a visa. The primary legal issue before the Court was whether the Tribunal had erred in its assessment of the applicant's claims and evidence, and whether those claims and evidence warranted the grant of a protection visa. The Court needed to determine whether the Tribunal had applied the correct legal standards in its review of the decision and whether it had considered all relevant material in reaching its conclusion.

The Court found that the Tribunal had not erred in its decision-making process. The Tribunal had correctly identified the legislative framework and had thoroughly considered the applicant's claims and evidence. The Court held that the Tribunal had appropriately assessed the credibility of the applicant's evidence and had not overlooked any relevant material. The Court was satisfied that the Tribunal had exercised its discretion in accordance with the law and that it had reached a decision that was reasonable in the circumstances.

Accordingly, the Court dismissed the application and ordered that the applicant pay the respondent's costs. This decision underscored the importance of the Tribunal's role in reviewing the Minister's decisions and the need for applicants to satisfy the relevant criteria for the grant of a protection visa.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs.

Background

Background to the litigation

The Tribunal’s decision is a “judicially reviewable decision” (s 475(1)(b) of the Act). The Applicant was entitled to apply to this Court for review of it on certain grounds (s 476). The Court has the jurisdiction provided by Part 8 of the Act, but no other jurisdiction with respect to it (ss 485, 486).Procedural Background The applicant, a citizen of Bangladesh, arrived in Australia on 21 May 1997. He applied for a protection visa on 14 July 1999 after having obtained several renewals of his temporary entry permit. He had previously visited this country and stayed here for over three years, that is between 14 July 1993 and 15 January 1997. At no time during this earlier stay had the applicant applied for a protection visa. Mr Jahangir’s application was refused by the Delegate on 12 October 1999 and this decision was confirmed by the Tribunal in a decision dated 23 May 2000, handed down on 7 June 2000.The Tribunal’s decision After referring to the legislative framework, the Tribunal considered Mr Jahangir’s claims and evidence.Claims and evidence According to the applicant’s statutory declaration declared 2 May 2000, he became an active member of the Purba Bangla Communist Party in the early 1980s. The applicant said that he became aware of deep corruption in the party and tried to change it. His efforts antagonised the corrupt members of the party who influenced the local police falsely to implicate him in two murders. At the same time as the police were trying to arrest him, members of the Communist Party were also trying to kill him. The applicant then became interested in the conservative Muslim party, Jamat-e-Islami and became a member. It is not clear when this occurred but it was probably between 1990 and 1992. Mr Jahangir claimed that eventually he became the joint secretary of the Kesabpur Thana branch of the organisation. At that time, Jamat-e-Islami was a coalition partner with the Bangladesh National Party (“BNP”) government. The applicant claimed that he became very active in Jamat-e-Islami and that he again became the target of violence as a result of his party’s attack on the corruption in the BNP. He claimed that in September 1992 he was attacked by BNP thugs and was severely injured. He claimed that at this time he was still being sought by the police on murder charges and that the Communist Party members were still pursuing him. The applicant came to Australia in about 1992 on a temporary residence visa and completed an associate diploma. He returned to Bangladesh in 1997 believing that he would be safe because a new government was in power. Upon returning to Bangladesh, he discovered that his situation had not changed; the court cases lodged against him remained on foot and the police were still looking for him. Later that year, while leading a Jamat-e-Islami procession, he was attacked by terrorists supporting the Awami League, the political party in power. Feeling that his personal security was threatened, he returned to Australia. He claimed that a partner in a prominent law firm told him that he might be able to obtain a visa by participating in a class action by people who arrived in Australia lawfully prior to 1 November 1993. This action was not successful and the applicant then applied for a protection visa.Independent Evidence

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

STONE J
The applicant, a citizen of Bangladesh, arrived in Australia on 21 May 1997. He applied for a protection visa on 14 July 1999 after having obtained several renewals of his temporary entry permit. He had previously visited this country and stayed here for over three years, that is between 14 July 1993 and 15 January 1997. At no time during this earlier stay had the applicant applied for a protection visa. Mr Jahangir’s application was refused by the Delegate on 12 October 1999 and this decision was confirmed by the Tribunal in a decision dated 23 May 2000, handed down on 7 June 2000.The Tribunal’s decision After referring to the legislative framework, the Tribunal considered Mr Jahangir’s claims and evidence.Claims and evidence According to the applicant’s statutory declaration declared 2 May 2000, he became an active member of the Purba Bangla Communist Party in the early 1980s. The applicant said that he became aware of deep corruption in the party and tried to change it. His efforts antagonised the corrupt members of the party who influenced the local police falsely to implicate him in two murders. At the same time as the police were trying to arrest him, members of the Communist Party were also trying to kill him. The applicant then became interested in the conservative Muslim party, Jamat-e-Islami and became a member. It is not clear when this occurred but it was probably between 1990 and 1992. Mr Jahangir claimed that eventually he became the joint secretary of the Kesabpur Thana branch of the organisation. At that time, Jamat-e-Islami was a coalition partner with the Bangladesh National Party (“BNP”) government. The applicant claimed that he became very active in Jamat-e-Islami and that he again became the target of violence as a result of his party’s attack on the corruption in the BNP. He claimed that in September 1992 he was attacked by BNP thugs and was severely injured. He claimed that at this time he was still being sought by the police on murder charges and that the Communist Party members were still pursuing him. The applicant came to Australia in about 1992 on a temporary residence visa and completed an associate diploma. He returned to Bangladesh in 1997 believing that he would be safe because a new government was in power. Upon returning to Bangladesh, he discovered that his situation had not changed; the court cases lodged against him remained on foot and the police were still looking for him. Later that year, while leading a Jamat-e-Islami procession, he was attacked by terrorists supporting the Awami League, the political party in power. Feeling that his personal security was threatened, he returned to Australia. He claimed that a partner in a prominent law firm told him that he might be able to obtain a visa by participating in a class action by people who arrived in Australia lawfully prior to 1 November 1993. This action was not successful and the applicant then applied for a protection visa.Independent Evidence

Ratio Decidendi

Legal Principle Established

Established by: STONE J

Full text does not contain this section.