Rahman, Sayedur v Minister for Immigration and Multicultural Affairs

[1998] FCA 1096

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 323  of  1998

BETWEEN:	SAYEDUR RAHMAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:		HILL J
DATE OF ORDER:		1 SEPTEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The Application be dismissed.

1. 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	NG 323 of 1998

BETWEEN:	SAYEDUR RAHMAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:		HILL J
DATE OF ORDER:		1 SEPTEMBER 1998
WHERE MADE:		SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

The Applicant, Mr Rahman, has applied to the Court for review of a decision of the Refugee Review Tribunal constituted by Mr Keher in which the Tribunal affirmed a decision made by the respondent Minister refusing to grant to him a protection visa. The application is brought presumably under s 476 of the Migration Act 1958 (“the Act”) which makes judicially reviewable, decisions of that Tribunal but only on certain limited grounds set out in s 476 of the Act subject to exclusions also dealt with in that section.

As is often the case, Mr Rahman is not legally represented. He has filed an application for review apparently formulating it personally and has attended today in Court only with the aid of an interpreter. The application that he filed does not disclose a ground of review of the kind set out in s 476 of the Act. In essence, in it he protests that the decision was wrong. He says he believes he has a genuine claim and believes that the Tribunal wrongfully assessed his situation in Bangladesh where he says he certainly faces a rigorous punishment by the authorities. In the application, he foreshadows giving various documents to the Court presumably to prove his case that he has a well-founded fear of persecution.

When the proceedings commenced this morning I sought to explain to Mr Rahman the limited nature of the Court's jurisdiction.  I cannot be certain that he understood.  It would not be surprising if he did not since he is not legally represented.

Mr Rahman commenced by telling me that he had been unable to get a deal of information which he perhaps wished to give to the Court because of floods in Bangladesh. It is difficult to see how that information would be relevant to any proceeding before me, however useful it might have been had he had the information before the Tribunal's decision. Mr Rahman also said that at the time he was interviewed, presumably by the Tribunal, he was sick. There is no evidence of that but, assuming it to be right, he had the opportunity to seek an adjournment in the Tribunal. If there were medical grounds I have no doubt the Tribunal would have allowed an adjournment. The problem is that that on its own does not constitute a ground permitting me to intervene unless the case is one of which it could be said that procedures required by the Act were not observed. Whatever the scope of that ground, and its relationship to the apparent exclusion of natural justice, there is nothing that Mr Rahman has put to me which could permit me properly to draw a conclusion that the Tribunal failed to observe some relevant procedure.

Mr Rahman's real complaint is that his case was unfairly rejected.  I need not in detail summarise the findings which the Tribunal made.  Suffice it to say that the Tribunal formed the view that Mr Rahman did not have a well founded fear of persecution within the meaning of the Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees substantially because it did not believe him.  Mr Rahman's case was, in essence, that he had been involved at a relatively high level with the Jatiya Party and that his fears of persecution stemmed from being implicated in a murder case and his involvement with a terrorist group. 

The Tribunal formed the view that Mr Rahman had contrived his story and that he was not a credible witness.  In part it was influenced by the fact that, when questioned, Mr Rahman appeared to know little about the Jatiya Party and its political basis.  Mr Rahman says that the Tribunal should have made inquiries about him in Bangladesh.  He says that there were facilities that the Tribunal had, or at least the Minister had, where information could be found out about him in that country and that the Tribunal had an obligation to check the material that Mr Rahman had either provided to show its accuracy or perhaps even find additional material which might have supported Mr Rahman's case.

While there may be some occasions when the Tribunal may have some obligation to collect information, those occasions are rare indeed.  The Tribunal exists as an independent Tribunal to review decisions that have been made by the Minister or his delegate.  A person seeking such a review has an obligation to put before the Tribunal the relevant factual material which that person wishes the Tribunal to consider.  The Tribunal's task is, in essence, to do again, to do afresh as it were, what the primary decision maker had initially done but by reference to the material before it, not the original material before the primary decision maker.  There is, at least in a case such as the present, no obligation upon the Tribunal to go out and find material which would support an applicant's case.  Nor is it the task of the Tribunal to verify the authenticity of documents which might be tendered before it. 

Mr Rahman also complains that it was not possible for him to remember every detail when he was questioned.  I understand that.  It may perhaps be thought unusual that a  person claiming to be a member of a political organisation could not state any but one of the five pillars on which the party apparently stood nor say much about its 18 point program.  Be that as it may, it was for the Tribunal to determine whether to believe Mr Rahman and it did not.  I repeat again to Mr Rahman that whether I believe him is not an issue in this case before me.  These are matters for the Tribunal, not matters which I am permitted to explore.

Mr Rahman then said that he had repeatedly asked the Tribunal to check the authenticity of his claim and that he had told everything he was able to tell truthfully.  I have dealt with the first of these matters already in indicating that the Tribunal had no obligation itself to check authenticity.  As to the second, the question whether Mr Rahman told everything truthfully was a matter for the Tribunal. 

Finally, Mr Rahman said that he needed one more try in the Tribunal so that the Tribunal could check his claim. I understand that that is what Mr Rahman would like but, unless he is able to demonstrate some ground of the kind dealt with in s 476 of the Act, I have no power to remit the matter to the Tribunal to be heard again. The case once again demonstrates a problem which people face seeking to challenge decisions of tribunals unassisted by legal representation.

However, I have endeavoured to examine the decision in order to see if there was some possible ground upon which Mr Rahman might fasten.  I have been unable to find any such ground.  The decision of the Tribunal is one of fact only.  The Tribunal dealt with the legal issues in a quite unexceptional way.  The problem for Mr Rahman is that it reached its decision by not believing Mr Rahman.  I can understand that Mr Rahman believes that he should have been believed and that the Tribunal was wrong, but that is not a matter which entitles me to intervene.  I have no alternative but to dismiss the application.

I would order the Applicant pay the Respondent's costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill

Associate:

Dated:            September 1998

The Applicant appeared in person
Counsel for the Respondent:	Ms F Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 September 1998
Date of Judgment:	1 September 1998