Khan v Minister for Immigration and Multicultural Affairs

[2001] FCA 805

FEDERAL COURT OF AUSTRALIA

Khan v Minister for Immigration & Multicultural Affairs [2001] FCA 805

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

AKRAM HOSSAIN KHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 206 of 2001

BRANSON J
SYDNEY
20 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 206 of 2001

BETWEEN:	AKRAM HOSSAIN KHAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	20 JUNE 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The decision of the Refugee Review Tribunal be affirmed.

2.        The applicant pay the costs of the respondent.

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 206 of 2001

BETWEEN:	AKRAM HOSSAIN KHAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	20 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, Mr Khan, has sought judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision that he not be granted a protection visa.  In the course of reviewing the decision that the applicant not be granted a protection visa, the Tribunal formed the view that the applicant was not Akram Hossain Khan as he claimed.  The Tribunal formed the view that the applicant was rather Mohammed Abdur Rahim.  However as the applicant to this Court has been brought in the name of Akram Hossain Khan, I will occasionally refer to the applicant in these reasons as Mr Khan.

2. Although Mr Khan’s amended application for an order of review makes reference to certain of the provisions of s 476 of the Migration Act1958 (Cth) (“the Act”) Mr Khan, who appeared before the court without legal representation, was not able to formulate his case for a review of the decision of the Tribunal by reference of the grounds identified in the Migration Act.

3. The Tribunal took an adverse view of Mr Khan’s credibility.  It did so on the basis that his evidence in relation to most aspects of his claims was vague, unconvincing, contained significant internal inconsistencies and was also inconsistent with independent information available to the Tribunal.

4. As I have already mentioned, the Tribunal was not satisfied that the applicant is in fact Akram Hossain Khan.  The Tribunal was satisfied that the applicant is Mohammed Abdur Rahim.  It was on a passport in the name of Mohammed Abdur Rahim that the applicant travelled to and entered Australia.  The story told by the applicant upon which his claim for a protection visa was based was entirely founded upon his being Akram Hossain Khan.  The finding of the Tribunal that he was not that person virtually ensured a finding by the Tribunal that he was not entitled to a protection visa.  Mr Khan had not advanced a fear of persecution should he return to Bangladesh based on any ground of general application.  Rather, he had advanced a case based on his membership of a particular family with a particular political history and upon his own political activities.

5. However, the Tribunal went on to consider the applicant’s case on the basis that it might be wrong as to his identity.  The Tribunal made it plain that even on that basis it was not satisfied that the applicant’s claim that he had been persecuted for reasons of his political opinions was made out.  The Tribunal found that the applicant’s claims lacked credibility.  It placed reliance on matters going to his credibility generally.  It also placed reliance on his inability, as the Tribunal saw it, to answer satisfactorily questions concerning the political party in which he claimed to have held a relatively senior position.

6. The Tribunal concluded that it was not satisfied that the Bangladeshi authorities or the ruling political party in Bangladesh, the Awami League, had any adverse interest in the applicant when he left Bangladesh.  The Tribunal further concluded that they would not have any interest in him if he returned to Bangladesh.  The Tribunal was not satisfied that Mr Khan has a well founded fear of persecution by reason of his political opinion should he return to Bangladesh.

7. Mr Khan appeared today without legal representation.  I note however that Mr Khan has had access to the pilot scheme in the Federal Court which gives independent legal advice on the prospects of success of an applicant appealing from a decision of the Refugee Review Tribunal.  Being without legal representation it is perhaps not surprising that Mr Khan presented his case to the court on the basis that the Court is entitled to reconsider his claim to be entitled to a protection visa on its merits.  It is the case, however, that the Court is not entitled to conduct a merits review of the decision of the Tribunal.

8. Mr Khan has not been able to identify, nor on the materials before the Court does it appear to be the case, that the Tribunal failed to observe any procedure that it was required by the Act or the regulations to observe. The Tribunal’s reasons for decision do not, in my view, on their face disclose any error of law. No fraud or bias affecting the decision has been or, in my view, can be identified. The “no evidence” ground of review (ss 476(1)(g) and 476(4)) can have no application to the Tribunal’s decision in this case.

9. The decision of the Tribunal in this case must be affirmed.  I order that the applicant pay the costs of the respondent.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:   27 June 2001

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr S. Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	20 June 2001
Date of Judgment:	20 June 2001