Rahman, Mohammed Mashir v Minister for Immigration and Multicultural Affairs

[1998] FCA 1345

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 491 of 1998

BETWEEN:	MOHAMMED MASHIR RAHMAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:		HELY J
DATE OF ORDER:		20 OCTOBER 1998
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 491 of 1998

BETWEEN:	MOHAMMED MASHIR RAHMAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	HELY J
DATE:	20 OCTOBER 1998
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

HELY J:        The applicant is a national of Bangladesh.  On 1 November 1995, he left Bangladesh to come to Australia, travelling on a false passport.  On 17 November 1996 the applicant applied for a protection visa.  The substantial ground of the application was that the applicant left Bangladesh because he feared for his safety.  He feared for his safety because he was involved in politics whilst a student at the Chittagong University as a member of the Chhatra League, which is the student wing of the Awami League.

He said that because of his political involvement and troubles on campus, what he called "false cases" were made against him by the police.  By "false cases" I understand the applicant to refer to trumped up charges which were without foundation.  He claimed that there was an arrest warrant out against him, and he feared that if he was returned to Bangladesh, he would be arrested and would be imprisoned.

On 30 April 1997, the application was refused by the Minister's delegate.  The delegate was of the opinion that the harm or mistreatment feared by the applicant was not for a convention related reason, but related to criminal activity.  The delegate was also of the view that there was no real chance of persecution as a result of the applicant's membership of the Chhatra League, because the Awami League is now in power in Bangladesh having won the majority of seats at the June 1996 general election.

On 15 May 1997, application for Review of that decision was made to the Refugee Review Tribunal.  That application was supported by a statutory declaration made by the applicant on 20 April 1998.  In that declaration, the applicant said that he was associated with the faction of the Awami League which was led by Mr Babu rather than the faction of the league led by Mr Chowdhury.  He said that there was a conflict between the two factions, and that the factions led by Mr Chowdhury had the support of the Awami League government.  Members of the applicant's faction are threatened and harassed by others within the party.  The applicant said that he feared that he would not be protected if he were returned to Bangladesh, and the false cases referred to his in original application would be prosecuted against him.  He submitted testimonials from four referees in support of his application.

On 24 April 1998, the Refugee Review Tribunal gave its decision.  It was not satisfied that the applicant is a refugee and it affirmed the decision not to grant a protection visa.  That decision was given after the Tribunal afforded the applicant a hearing which was conducted on 22 April 1998.  On page 7 of its reason for decision the Tribunal stated:

"I found the evidence given by Mr Rahman to be confused, contradictory and generally unconvincing and did not find him to be a credible or truthful witness."

In particular the Refugee Review Tribunal did not accept a number of claims put forward by the applicant.  The claims which the applicant put forward, and which the Tribunal did not accept, included the following:

1. That he continued to play an active part in student politics after 1990;

1. That he was charged with the murder of a fellow student in 1990, but not arrested for that crime;

1. That the applicant fears that he will be harmed by members of his own party.  In the view of the Tribunal this claim was concocted by the applicant.  He invented the factional split within the party, which he claimed exposed him to risk of persecution, simply to support his application for a protection visa;

1. That the applicant left Bangladesh because of a fear of harm from opposing political groups because of his political opinions; and

1. That he currently fears returning to Bangladesh because of a belief that he will be harmed by members of his own or other political parties.

The Refugee Review Tribunal was unimpressed by the testimonials submitted by the referees.  That was mainly because of a conflict between statements made by the referees and the applicant's own account of events, and because of the absence of any reference in any of the testimonials to problems which the applicant might face due to the claimed existence of factions within the Awami League.

On 25 May 1995, application for an Order of Review was made to the Federal Court. The only ground particularised was that set forth in section 476(1)(a) of the Migration Act 1958 (“the Act”) namely the procedures that were required by the Act to be observed in connection with the making of the decision were not observed.

The particulars provided rely upon a failure to follow the procedures required to be followed by section 420 of the Act, and a failure to act according to the substantial justice and the merits of the case. I accept that the decision of the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, decides that the procedures adopted by the Tribunal must be directed to ensuring that a decision in the case will deal with the substantial justice and merits of the case because s 420 so prescribes. Failure to act in accordance with that prescription would enliven s 476(1)(a).

The applicant submitted that the Tribunal erred in not accepting educational certificates which he presented; that the Tribunal erred in not accepting that whilst enrolled at the university he was involved in politics; and that the Tribunal erred in not accepting that after graduating from university the applicant was still actively involved in political life.  The applicant also submitted that the Tribunal erred in not accepting his contentions as to his fear of persecution flowing from the existence of factions within the Awami party. 

All of the matters relied upon by the applicant invite this Court to embark upon a review of the merits of the case which the Court is not entitled to do in terms of the review provided by Division 8 of the Act. None of the submissions relied upon by the applicant identify any failure to follow required procedures, or any procedural defect in the way in which the Refugee Review Tribunal dealt with the application. There was no identification by the applicant of any matter which would inhibit the capacity of the Tribunal to decide the case in accordance with the substantial justice and merits of the case.

Davies J was a member of the Full Court in Eshetu.  In a later case of Guo Wei Zhi v Minister for Immigration and Multicultural Affairs (No. 2), (24 February 1998 unreported), Davies J gave some exposition of the true scope of the decision in Eshetu and of the scope of the review for which s 476 of the Act provides. His Honour there explained that a ground of review that the Tribunal did not act in accordance with the substantial justice and merits of the case is not a permissible ground of review in terms of Part 8 of the Act. It therefore follows that if and insofar as the application proceeds on the basis that this is an available ground of review, it must fail for the reasons given by Davies J.

Whilst a review of the merits is not a matter for me, (except to the extent provided for in s 476(1)(g) and s 476(4)) the applicant's submission that the Tribunal did not accept his educational qualifications as disclosed in the certificates, misconceives what the Tribunal did. The Tribunal, at least implicitly, accepted his educational qualifications, accepted that whilst he was enrolled in the university he was engaged in politics, but it rejected the more substantial and immediate grounds on which the fear of persecution was said to be based, namely the ‘false cases’ and the claimed factional split within the Awami League, and the consequences of that split. The Tribunal was entitled to reach the conclusions which it did, in that respect.

Finally, Mr Rahman said that there were documents, presumably in Bangladesh, that related to the cases against him in that country and he wanted time to get those documents, presumably to sustain his contention that "false charges" had been preferred against him.  I treat that as an application that these proceedings should be adjourned for a period sufficient to enable him to get those documents. 

I am not prepared to accede to that application, essentially for two reasons. First, the applicant arrived in Australia on 2 November 1995. He has been here for almost three years and has had ample opportunity to obtain documents to support his case, assuming such documents are available. Second, even if those documents do exist they would not disclose any reviewable error on the part of the Refugee Review Tribunal. It is not my function to decide whether Mr Rahman should or should not be granted a protection visa. All that the law allows me to do is to decide whether the Tribunal made one of the errors referred to in s 476 of the Act. Even if these documents do exist, their production would not reveal such an error.

The result is that the application for review is dismissed.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely

Associate:

Dated:             20 October 1998

Applicant in person
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Mr A Pearson Australian Government Solicitor
Date of Hearing:	20 October 1998
Date of Judgment:	20 October 1998