Minister for Immigration & Multicultural Affairs v Islam - [2001] FCA 1681

FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Multicultural Affairs v Islam [2001] FCA 1681
MIGRATION – protection visa – review of decision of Refugee Review Tribunal (“Tribunal”) – whether primary judge erred in finding Tribunal constructively failed to exercise its jurisdiction – denial of freedom of political expression as form of persecution – failure of respondent to articulate claim for persecution
Rahman v Minister for Immigration & Multicultural Affairs [1999] FCA 73 referred to
Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132 referred to
Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85 followed
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v KAZI ROBIUL ISLAM
N 845 OF 2001
CARR, CONTI AND STONE JJ
20 DECEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 845 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
APPELLANT

AND:

KAZI ROBIUL ISLAM
RESPONDENT

JUDGE:

CARR, CONTI AND STONE JJ

DATE:

20 DECEMBER 2001

PLACE:

SYDNEY

THE COURT ORDERS THAT:
1.the appeal be allowed;
2.the orders made by the primary judge on 4 May 2001 be set aside;
3.the decision of the Refugee Review Tribunal dated 17 August 2000 be affirmed;
4.the respondent pay the appellant’s costs of the appeal and of the proceedings at first instance.

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 845 OF 2001

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
APPELLANT

AND:

KAZI ROBIUL ISLAM
RESPONDENT

JUDGE:

CARR, CONTI AND STONE JJ

DATE:

20 DECEMBER 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT
THE COURT:
INTRODUCTION

On 17 August 2000, the Refugee Review Tribunal (“Tribunal”) affirmed the decision of a delegate of the appellant Minister refusing to grant a protection visa under the Migration Act 1958 (Cth) (“the Act”) to the respondent. This is an appeal from a decision of a judge of this Court ordering that the decision of the Tribunal be set aside and that the matter be remitted to the Tribunal (differently constituted) for determination according to law.
PROCEDURAL HISTORY
Delegate’s decision
The respondent entered Australia on a false passport on 21 November 1998. His application for a protection visa was refused on 26 March 1999. In stating her reasons for that decision the Minister’s delegate made the following comment:
“I accept that during 1997 the [Bangladesh Nationalist Party] led opposition organised numerous supporters who participated in street demonstrations and that the applicant was involved in these demonstrations. I accept that, after police and [Awami League] supporters attacked demonstrators, the applicant had to be hospitalised. The US Dept. of State Reports on Human Rights Practices and many other sources of information indicate that there is a robust political culture involving violence from all political parties in Bangladesh. I consider, therefore, that unless the applicant chooses…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] FCA 1681
Decision Date: 20 DECEMBER 2001

CaseChat Overview and Summary

In the case of Minister for Immigration & Multicultural Affairs v Islam, the court was tasked with reviewing the decision of the Refugee Review Tribunal regarding the applicant's protection visa application. The respondent, a Bangladeshi national, claimed asylum in Australia after a series of politically motivated incidents, including an assault during a protest rally. The primary dispute centred on the credibility of the applicant’s claims and whether they warranted a protection visa. The legal issues the court had to address included the credibility of the applicant's past political activities, the severity and implications of the 1998 incident, and the likelihood of future harm if the applicant were returned to Bangladesh.

The court examined the applicant's political background and involvement with the Bangladesh National Party, as well as the specific incident of violence in 1998. The primary judge had set aside the Tribunal's decision, finding that the applicant's claims were not credible. However, the court of appeal found that the primary judge had erred by not sufficiently considering the applicant's credibility and the evidence presented. The appeal court emphasised that the Tribunal had correctly assessed the applicant's claims and that the primary judge had overstepped in overturning the Tribunal's decision. The appeal court held that the Tribunal's findings were supported by the evidence and that the primary judge had not applied the appropriate standard of review.

The appeal was allowed, and the orders made by the primary judge were set aside. The decision of the Refugee Review Tribunal, which affirmed the applicant's protection visa, was reinstated. The respondent was ordered to pay the appellant's costs of the appeal and the original proceedings. This decision underscores the importance of judicial deference to the expertise of administrative tribunals in matters of refugee status, provided their findings are reasonably open on the evidence.

Orders

Orders of the court

1. the appeal be allowed;

2. the orders made by the primary judge on 4 May 2001 be set aside;

3. the decision of the Refugee Review Tribunal dated 17 August 2000 be affirmed;

4. the respondent pay the appellant’s costs of the appeal and of the proceedings at first instance.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CARR, CONTI AND STONE JJ

The primary judge’s summary of the respondent’s claims before the Tribunal (not challenged by either party) is as follows:“The applicant is a Bangladeshi national. He was born on 20 October 1969 in Faridpur, into a family allegedly closely associated with the Bangladesh National Party (“the BNP”). During his tertiary studies in the late 1980s he was elected Vice-President of the Student Union, representing the student wing of the BNP. Thereafter, as the Tribunal put it, “essentially he was an ordinary member of the BNP in the Faridpur district”.In 1996 the applicant claims to have “worked for” the local BNP candidate, a former Minister, in a national election campaign and to have made a “tremendous effort” to help him win the parliamentary seat. The Tribunal accepted the applicant’s claim to have assisted in the election. In September 1998, according to the applicant, he was involved in organising a protest rally in support of a BNP leader and former Minister, Mr Obaidur Rahman who had, in the applicant’s words, been “arrested in the name of a fake trial”. The Tribunal also accepted that claim. The applicant’s further claim about that incident was that police and “Awami thugs”, that is, persons associated with the rival political party, the Awami League, “attacked [the] procession and [he] was beaten severely and was admitted into a hospital for treatment”. He claimed that after this incident he was “shocked and the members of [his] family advised [him] to leave the country”. The applicant said that, in consequence of this and other claimed events not accepted by the Tribunal, he decided to leave the country. The applicant arrived in Australia on 21 November 1998 and lodged his application for a protection visa on 30 December 1998. On 26 March 1999, a delegate of the respondent Minister refused to grant the applicant a protection visa. On 23 April 1999, the applicant sought a review of that decision by the Tribunal.”The Tribunal’s decision The Tribunal rejected the respondent’s claims that he was a prominent member of the BNP and a significant political figure, that a high profile member of the Awami League had the power and the intention to harm him and that false charges were brought against him and a warrant had been issued for his arrest. The Tribunal accepted that the respondent does not support the present government of Bangladesh and that he fears that, if returned to Bangladesh, the present authorities will harm him because he is a member of the BNP. It also found that the respondent was actively involved in student politics in 1988-9 and that he assisted the BNP during the 1996 election. In addition it found that the respondent had been beaten during a political rally in 1998. It commented that:“The applicant’s description of the incident indicates that both BNP and Awami League supporters were implicated in the violence and the police intervened. The Tribunal is not satisfied by the evidence that this incident is indicative that the Awami League or the police have a particular interest in the applicant or that this isolated incident is indicative of what will happen to the applicant in the future. The applicant has gone to great lengths to avoid similar incidents, to the extent that he decided to leave the country, and it is the Tribunal’s view that if indeed the applicant wishes to avoid the political violence of Bangladesh he can do so by not attending rallies such as the one he described.”

Ratio Decidendi

Legal Principle Established

Established by: CARR, CONTI AND STONE JJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 845 OF 2001

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPELLANT
AND:	KAZI ROBIUL ISLAM RESPONDENT

JUDGE:	CARR, CONTI AND STONE JJ
DATE:	20 DECEMBER 2001
PLACE:	SYDNEY