Mollah v Minister for Immigration and Multicultural Affairs

[1999] FCA 770

FEDERAL COURT OF AUSTRALIA

Mollah v Minister for Immigration & Multicultural Affairs [1999] FCA 770

No question of principle

ABDUL HOSSAIN MOLLAH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 1388 OF 1998

HELY J
3 JUNE 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1388 OF 1998

BETWEEN:	ABDUL HOSSAIN MOLLAH Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	HELY J
DATE OF ORDER:	3 JUNE 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed with 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	NG 1388 OF 1998

BETWEEN:	ABDUL HOSSAIN MOLLAH Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	HELY J
DATE:	3 JUNE 1999
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1. This is an application under Part VIII of the Migration Act (“the Act”) for a review of the decision of the Refugee Review Tribunal (“RRT”) given on 12 November 1998 in which it affirmed the decision not to grant a protection visa to the applicant.  It is well known that the jurisdiction of this Court to entertain applications under that part is severely limited.  This Court can only intervene if one of the grounds within s 476 of the Act is established.  The application for an order of review, which was lodged on 17 December 1998, although purporting to itemise grounds for the application, does not disclose any ground which would be capable of enlivening the operation of s 476.

2. I gave leave to Mrs Babinski, a friend of Mr Mollah's, to represent him on this occasion, and whilst she has put various matters to me to the effect that Mr Mollah is a reputable person in the community, a good family man and a person who came to Australia to start a fresh life, removed from the political torment which he experienced in Bangladesh, none of the matters which she put to me are capable of establishing a ground under s 476.

3. I have read through the decision of the Tribunal myself on a number of occasions to see whether it revealed any reviewable error.  The Tribunal member reviewed the claims which the applicant made and the independent country evidence.  The Tribunal was not satisfied, for reasons which it gave, that the applicant faces politically motivated charges if he were to return to Bangladesh.  The Tribunal gave a number of reasons for that decision.  In my view they are capable of supporting the decision to which the Tribunal came and no reviewable error is revealed in that aspect of the Tribunal's reasoning process.

4. The Tribunal also considered whether the applicant was facing or was at risk of serious harm by Awami League supporters should he return to Bangladesh.  Again, for reasons which it gave, it was not satisfied that the applicant was at risk in that respect, and again, the reasons which it gave are capable of supporting the decision which it made.  I cannot detect any reviewable error in that part of the Tribunal's decision.  Accordingly, it seems to me that no ground has been shown which would justify this court in making an order for review.

5. Mr Mollah attempted to put fresh evidence before me.  The fresh evidence mainly covered two things.  First, it was asserted that he and his brother were the subject of a 12 years arrest and gaol sentence on charges which had been set up by politicians.   Second, Mr Mollah produced an issue of the publication called “Evidence”, which referred to cases which were pending against Mohamed Abdul Hossain Mollah, said to have been lodged because of political rivalry and that there were outstanding warrants for his arrest.

6. This last matter is potentially of importance because one of the reasons that RRT gave for not accepting the applicant's version of events was that the publication “Evidence” listed prominent members of the BNP who faced politically motivated charges yet the applicant's name did not appear upon that list.  The additional evidence which the applicant has brought forward, taken at face value, and assuming that he is the person referred to in the report, tends to suggest that the position may be different from the position which the RRT assumed.

7. The circumstances in which this Court can receive fresh evidence are extremely limited, and I would not be entitled to act upon that evidence for the purpose of determining whether the Tribunal was guilty of a reviewable error.  So far as I can see, and as I have explained to Mrs Babinski, it is not my function to give advice, the only way which that fresh evidence could be used would be in support of an application to the Minister under s 48B of the Act.  What the Minister's response would be to any such application is outside my province.

8. For the reasons which I have given, the application for review must be dismissed because none of the grounds referred to in s 476 of the Act have been established.

9. The respondent seeks an order for costs.

10. I have to decide cases according to law.  I cannot simply give effect to my own personal wishes or preference.  The legal principle is that an unsuccessful applicant, absent special circumstances, should pay the respondent's costs of the application.  I do not see any reason for departing from the usual course in the circumstances of this case, whatever sympathy I might feel for Mr Mollah personally.  The application is therefore dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:  3 June 1999

The applicant was represented by his friend Ms Babinski
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 June 1999
Date of Judgment:	3 June 1999