Rahman, Shaik Anisur v Minister for Immigration and Multicultural Affairs

[1998] FCA 793

FEDERAL COURT OF AUSTRALIA

IMMIGRATION – refugee status – Appeal from decision of the Administrative Appeals Tribunal – no appearance by applicant – whether error of law under s 476(1)(e) of Migration Act 1958 (Cth) – whether no evidence to justify the decision of the Tribunal – whether Tribunal afforded procedural fairness to the applicant – whether decision in accordance with Convention relating to the Status of Refugees (Geneva, 28 July 1951) and Protocol relating to the Status of Refugees (New York, 31 January 1967).

Migration Act 1958 (Cth) - s 476(1), s 476(1)(e)
Migration Regulations
Convention relating to the Status of Refugees (Geneva, 28 July 1951)
Protocol relating to the Status of Refugees (New York, 31 January 1967)

SHAIK ANISUR RAHMAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1 OF 1998

FOSTER J

19 JUNE 1998

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1 of 1998

BETWEEN:	SHAIK ANISUR RAHMAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		FOSTER J
DATE OF ORDER:		19 JUNE 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application be 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 1 of 1998

BETWEEN:	SHAIK ANISUR RAHMAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FOSTER J
DATE:	19 JUNE 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Extempore)

In these proceedings the applicant, Shaik Anisur Rahman, appeals to this Court from a decision of the Refugee Review Tribunal (“the Tribunal”) given on 5 December 1997.  The matter has been before the Court on previous occasions.  On the last occasion, on a date which had been fixed for hearing, the applicant was granted an adjournment on the basis that he was seeking representation through an immigration agent.

The applicant was specifically informed on the occasion that the adjournment would be granted but only on the basis that the matter would proceed today.  I have been advised by Ms Henderson of counsel, who appears for the respondent, as to events which have occurred since the adjournment of the proceedings.  What she has had to say to the Court appears in the transcript.  I will not repeat it now.  In my view, the applicant has had ample opportunity to prepare a case to be presented to the Court in relation to his appeal from the decision of the Tribunal.  His name has been called outside the Court this morning, fifteen minutes has now passed since the fixed time for commencement of this proceeding and he has not appeared.  It is my opinion that I should proceed to hear the matter in his absence.

I have, in preparation for the hearing this morning, read and considered both the decision given by the Tribunal and other material that has been placed before the Court.  This material includes written submissions made by the applicant and written submissions filed on behalf of the respondent which have been prepared by Ms Henderson. 

An appeal from a decision of the Tribunal to this Court is, of course, a very restricted one. The grounds of appeal, if they can be so called, that have been set out in the form of an application filed by the applicant on 2 January 1998 do little more than follow the provisions of s 476(1) of the Migration Act 1958 (Cth) (“the Act”).  In my perusal and consideration of the reasons given by the Tribunal, they do not reveal, in my opinion, any errors of law.  In particular, and in terms of the grounds that were taken by the applicant, I will say the following.

The first ground was that:

“The decision of the Tribunal required the Tribunal to make finding [sic] as to whether the applicant has the real chance of persecution if he return [sic] to Bangladesh.  The applicant has produced evidence to the RRT supporting the applicant's argument that there is a real Chance of his persecution.”

This ground does not raise any of the grounds for review set out in s 476(1) of the Act.  It is quite clear from the Tribunal’s reasons that the relevant legal principles involved in considering the applicant’s application were fully understood and properly applied.  The Tribunal made findings of fact based upon the material placed before it.  This material included oral testimony from the applicant and independent evidence available to it.  It is to be noted that in making its findings the Tribunal also found that the applicant had, in some respects, exaggerated his account of events.  Findings of that kind are, of course, findings of fact and are within the province of the Tribunal but they are not within the province of this Court. 

The applicant’s second ground is that “there was no evidence or other material to justify the making of the decision”.  There is no substance in this ground.  The Tribunal had before it ample evidence upon which it could make the findings of fact that it did. 

There is a further ground that the Tribunal did not follow the procedures required by the Act and the Migration Regulations (“the Regulations”).  There is no substance in this ground.  It is quite clear that the Tribunal scrupulously followed procedures required by the Act and Regulations in order to accord procedural fairness to the applicant.

Yet a further ground is that there was an error of law in that the Tribunal had not correctly interpreted the law and it did not apply it to the case and therefore had not followed s 476(1)(e) of the Act.  All I can say as to that ground is that there is no indication in the reasons of the Tribunal that it did not follow the law or failed correctly to interpret it. 

The final ground was that the decision was not in accordance with the United Nations Convention relating to the Status of Refugees (Geneva, 28 July 1951) and the Protocol relating to the Status of Refugees (New York, 31 January 1967).  The reasons I have already given will amply demonstrate that that ground must also fail. 

In all the circumstances I uphold the submission that has been made this morning on behalf of the respondent and I order that this application be dismissed with costs.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated:             19 June 1998

No appearance by the applicant
Counsel for the Respondent:	Ms R. Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 June 1998
Date of Judgment:	19 June 1998