Rahman v Minister for Immigration and Multicultural Affairs

[1999] FCA 473

FEDERAL COURT OF AUSTRALIA

Rahman v Minister for Immigration & Multicultural Affairs [1999] FCA 473

MIGRATION – refugee status – refusal of protection visa – review of Refugee Review Tribunal decision – Bangladesh national – applicant subject to alleged assault by members of Awami league – revenge attack not political – no failure of protection by State – no persecution for Convention reason – Tribunal findings of fact – application seeking merits review – application dismissed – no point of principle.

Migration Act 1958 (Cth)

MOHAMMED SHAIFUR RAHMAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 1222 of 1998

FRENCH J
SYDNEY
14 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1222 OF 1998

BETWEEN:

MOHAMMED SHAIFUR RAHMAN

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE:

FRENCH J

DATE OF ORDER:

14 APRIL 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant is to pay the respondent’s costs of the application.

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 1222 OF 1998

BETWEEN:

MOHAMMED SHAIFUR RAHMAN

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE:	FRENCH J
DATE:	14 APRIL 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. Mohammed Shaifur Rahman is a Bangladesh national who came to Australia in October 1995.  He made application in February 1996 to the Department of Immigration and Multicultural Affairs for a Protection Visa on the basis that he was a person entitled to refugee status.  His application was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 30 May and on 11 July 1997 Mr Rahman applied to the Refugee Review Tribunal for a review of that decision.  The Tribunal decided in January 1998 that his application was out of time and that it had no jurisdiction to hear the issue but that decision was set aside by the Federal Court in June 1998 and the matter was remitted to the Tribunal for the application for review to be heard and determined according to law.

2. On 15 October 1998 the Tribunal, differently constituted, affirmed the decision not to grant a Protection Visa.  Mr Rahman subsequently filed, in November 1998, an application to this Court for an order of the review of the Tribunal’s decision.  It is convenient to refer in outline to the matters set out in the Tribunal’s decision as they indicate the basis upon which Mr Rahman’s claim for refugee status was made and the way in which the Tribunal dealt with it.

3. The Tribunal acted, inter alia, upon written submissions from Mr Rahman, oral evidence that he gave before the Tribunal in September 1998 and further written submissions in October 1998.

4. Mr Rahman said he was born in Bangladesh in December 1968.  His father came from Karachi in what later became West Pakistan and moved to the then East Pakistan in the 1960s where he met and married Mr Rahman’s mother who came from a local family.  East Pakistan became Bangladesh in 1971. Mr Rahman’s father had been actively involved supporting Pakistanis in resisting the movement for independence.  He was a member of a fundamentalist Muslim party which opposed the independence of Bangladesh.  Pro-independence forces had been dominated by members of the Awami League which came into power in 1971 and declared Bangladesh independent.  In 1973 the Awami League won the general elections.

5. According to Mr Rahman, following independence, his father was harassed by members of pro-independence parties and at one point was abducted and tortured. He became disabled and suffered socially and mentally.  Mr Rahman says the family was often the subject of comments by neighbours owing to his father’s Pakistani background and sympathies.

6. In 1985 at Carmichael College in Rangpur after completing high school, Mr Rahman became a member of Chatra Shibir, which is the student wing of Jamaat-e-Islami, a fundamentalist Muslim party of which his father had been a member.  He claimed to have become known as a good organiser in the district and also for his dislike of the terrorist and violent elements of the party.  He said he had never accepted violence as a part of politics.  While Chatra Shibir was not a fundamentalist organisation it had some members who were extremist in character and who did not regard him well.  He claimed that eventually he fell into their bad books.

7. At first he said that he had become disillusioned with the violence practised by Chatra Shibir.  This was in a statement made in his original application of 5 February 1996.  He said in that statement he sought to resign in 1995.  The party refused to allow him to resign and he was attacked shortly after that attempted resignation by a group of unknown hooligans who said he was a traitor to Allah, who did not have the right to live in a Muslim country.  After he left Rangpur in the north of Bangladesh to live in Chittagong in the far south he said he was again attacked by unknown hooligans who he suspected were affiliated with Chatra Shibir.

8. In a subsequent unsigned statement dated 10 September but confirmed by him at the oral hearing, he said to the Tribunal that the statement filed on his behalf in 1996 had been prepared by a Bengali interpreter based on a single interview.  That interpreter had inserted incorrect information which he had been unable to correct because he did not know the English language.  According to Mr Rahman the enemies he feared were not from his own party but from the Chatra League which was the youth wing of the Awami League that today dominates the governing coalition in Bangladesh.

9. In his second statement, he said that while at Carmichael College in 1987, a fellow student was mutilated by having his hand cut off.  The fellow student was a supporter of the Chatra League.  The Tribunal was sent a copy of a newspaper item in the Bengali language which referred to an incident at the college at which the hand of the student leader of the National Chatra League had been cut off by “workers of the Islamic Chatra Shibir”.

10. Mr Rahman said he was not involved in this incident and did not instigate it but a few days later he was attacked while walking home from the bazaar in Rangpur.  His attackers accused him of instigating the mutilation.  He attributed the attack to members of the student wing of the Awami League which is the Chatra League.  In particular, he said, that the incident did not occur in 1995 and his attackers did not curse him and tell him he did not have a right to live in a Muslim country.  In this respect his second statement differed from the first.

11. He told the Tribunal that he did not fear reprisals or torture from Chatra Shibir however he was fearful of four named  individuals who were members of the Awami League.  The attack was reported to police but he alleged he was not given any protection because of his known involvement in politics and his association with Jamaat-e-Islami.  After this incident apparently no further attacks occurred until 1995.

12. After college Mr Rahman joined the Jamaat-e-Islami but confirmed that disagreements he was having with terrorist elements of the party led to his resignation in 1995.  He tried to discuss these issues with other members but was threatened with physical harm if he persisted.  Despite this, Mr Rahman told the Tribunal that the difficulties he had experienced with members of his own party had never been a threat to his life.  He went to Dhaka to resign and saw the national leader of the party who urged him to change his mind. He resigned but the resignation was not accepted by the District Amir.

13. He had graduated from college in Dhaka in 1990 and until 1994 had lived again in Rangpur where he was employed as a tutor and received some financial support from his family.  In early 1995 he moved to Chittagong and tried to obtain work.  However, he claimed that in April 1995 he was attacked on the street by five or six people, one of whom he recognised as one of the four persons affiliated with the Awami League who appeared to be surprised to find him there.  In oral evidence to the Tribunal he said he believed the attack was an act of revenge over the handcutting incident at Carmichael College in 1987.

14. In submissions made to me today, 14 April, on his behalf by Mr Raashed, it is said that in the summation of his evidence the Tribunal failed to make the linkage that Mr Rahman made in his evidence between the characterisation of the 1995 attack as an act of revenge and the political origins of the attacks on him earlier.  These were linked, not to any real belief that he had anything to do with the hand cutting incident, but to his association with the group that was held responsible for it.  On that basis he was held responsible.  That is to say, it is submitted for Mr Rahman, that the Tribunal failed to accept on the material that was before it, that there was in fact an attribution of responsibility and threat of harm to him because of his prior political associations.

15. Going on, the Tribunal, setting out Mr Rahman’s evidence, referred to his statement that people in Bangladesh have long memories and that although he was not attacked again because he was careful to hide himself, it was difficult for outsiders to understand the depth of things that happened.  He did not go to the police in Chittagong.  As information about him would have been circulated, he did not believe they would help him.  He had asserted that in Bangladesh police are notorious for taking bribes and themselves commit atrocities.  He referred to recent reports to that effect in the media and cited the recent death of a student in police custody after a severe beating.  He had neither the money nor the freedom to obtain effective police protection.  He had ultimately found employment with the British shipping company, James Finlay Plc, as a deck cadet and left Chittagong with one of its ships on 1 October 1995.  On his first voyage he deserted the ship in Australia.  He said he was fearful for his life because the four members of the Awami League were looking for him and would exact their revenge for his mutilation of the student in 1987 should he return to Bangladesh.

16. Mr Rahman’s assertion to the Tribunal was that he had been persecuted on the grounds of race because of his father’s Pakistani background and had been the subject of discrimination.  He had subsequently resiled from parts of his submission of February 1996 which had emphasised his fear of fundamentalist Muslim elements.  The Tribunal characterised it as his current submission, that his fear of returning to Bangladesh was based upon the persecution he expected from supporters of the Awami League and, in particular, the four individuals named in his submission of 10 September 1998.

17. The Tribunal reviewed the evidence and made, ultimately, what were findings of fact adverse to Mr Rahman.  It accepted his account so far as it concerned his parents’ ethnic background and that his father would have suffered some discrimination for siding with Pakistani authorities once Bangladesh became independent.  It also considered it believable that “with the usual cruelty of school children” the applicant personally was taunted at school, but the Tribunal found it difficult to believe this was on the ground of race.  In coming to that conclusion, the Tribunal observed that whilst Sindhis who live around Karachi are a distinct ethnic group from Bengalis, they belong to the same group of language speaking people.  It would accept that persons of Pakistani origin would form a distinct social group but it doubted whether one could construct a social group out of those with mixed parentage whose language, education and nationality was the same as other locally-born Bangaldeshis.

18. The Tribunal was not satisfied on the evidence that Mr Rahman suffered persecution in the Convention sense by reason of his parental background and that must be taken as a finding of fact which is unimpeachable in this Court.

19. In relation to his claims of persecution for reasons of political opinion, the Tribunal said it was faced with two different versions presented by Mr Rahman at different times, the first that he was the victim of extremists from his own party who attacked him twice in 1995 and the second in his submission of 10 September 1998, alleging an attack being made by local supporters of the Awami League represented in its student wing, the Chatra League.

20. In that submission, as the Tribunal found, he submitted he was held responsible for a very violent attack on a student at Carmichael College although he denied responsibility.  What the Tribunal then said about that was this:

    “Although I have grave doubts about the veracity of the corrected version, I will proceed on the assumption that it is true because, even if true, it does not establish that the applicant has a well-founded fear for a Convention reason.”

21. In relation to that comment, the rather odd submission was put for Mr Rahman that the Tribunal was assuming the corrected version of events to be true:

    “For no other reason than that such assumption will go contrary to my interest.”

    In other words, it was suggested that what the Tribunal meant in making this statement was that it was going to proceed on the assumption that the second statement was true because such an assumption would lead to the failure of the claim.  That is simply nonsensical.  It is obvious that in context the Tribunal was making the assumption, favourable to Mr Rahman, that his corrected version was correct and true but concluded that even on that favourable assumption he would not succeed in establishing that he had a well-founded fear for a Convention reason.

22. In its characterisation of the corrected version of events, the Tribunal says that as Mr Rahman conceded at the hearing the attacks were based on revenge for the mutilation of the student at Carmichael College for which he was held responsible.  That was the basis both of the 1987 attack and for the 1995 attack in Chittagong.  In so reasoning, the Tribunal was proceeding on the assumption for the moment that this account was true.  Although on that assumption the mutilation of the student had taken place as part of a fight between political student factions, the point was that Mr Rahman had been attacked and feared attack because he was regarded as having instigated the mutilation.  In other words, the substantial motivation for the attack upon Mr Rahman on his account of it in the Tribunal’s view, was that the attackers were exacting revenge from him as the person they held responsible for the outrage, not because he was a member of a particular political group.

23. Mr Raashed submitted that this finding did not give recognition to the links that Mr Rahman made in his evidence between that act which might have been an act of revenge and the original political motivations and the attribution of responsibility to him because of his political beliefs rather than because of any suggestion that he had actually carried out this mutilation.

24. The Tribunal recognised that point because it said:

    “If, as the adviser now submits, they attacked him because of his faith and active participation in the Chatra Shibir, he has removed that cause by resigning himself from the Chatra Shibir in 1995.”

    Now the Tribunal has, in this aspect of its reasoning, made an assessment of facts on the evidence that was before it. Mr Rahman’s submissions through Mr Raashed constitutes a criticism of the Tribunal's fact finding process but does not identify an error of the kind which could be reviewed under s 476 of the Migration Act 1958 (Cth).

25. In any event, the Tribunal was not satisfied that Mr Rahman lacked the protection of the State of Bangladesh.  It noted that the first attack had taken place in 1987; that Mr Rahman had lived in Dhaka without disturbance and, from 1991 until 1994, had lived in Rangpur without incident.  The 1995 attack in Chittagong was, on his own admission, a chance encounter.  The attack took place in April 1995 and, again, assuming the truth of Mr Rahman’s account, he managed to avoid further incidents without moving house until he left in October 1995.

26. In relation to the death in custody case to which he had referred as an example of police misconduct and the lack of protection available from the police, the Tribunal pointed out that the report on that incident showed it provoked an immediate reaction from the authorities including the appointment of a retired judge to investigate the matter.

27. On the findings which I have outlined, the Tribunal was not satisfied that Mr Rahman had a well-founded fear of persecution by reason either of his political views or his ethnic background, should be return to Bangladesh.

28. In his application for review, which was filed on 11 November 1998, Mr Rahman has set out a number of grounds which are as follows:

    “1.THE DECISION WAS MADE WITHOUT CONSIDERING THE EVIDENCE FACTUALLY.

    2.BIAS AND PREJUDICE OF THE MEMBER IN MAKING THE DICISION.

    3.CONSIDERED THE APPLICATION ON ASSUMPTIONS.

    4.CONSIDERED THE ERONIOUS INFORMATION THAT ARE ALREADY CORRECTED.

    5.COMPARED THE CONTENT OF THE SUBMISSIONS UNFAIRLY. IGNORING THE REASON WHY A CORRECTION WAS NEEDED.

    6.HOLDING THE APPLICANT RESPONSIBLE FOR MISTAKES THAT DID NOT ORIGINATE FROM HIM AND BEYOND HIS CONTROL AND ABILITY.

    7.IN PART CONSIDERATION OF THE PRESENTED EVIDENCE IGNORING ITS INTEGRAL PARTS.

    8.MAKING THE ASSUMPTIONS THAT ARE BEYOND THE SCOPE OF SUBJECTED RACE AND COUNTRY.

    9.THE MEMBER IS DISMISSIVE OF FACTS THAT ARE DETRIMENTAL TO THE APPLICANT.

    10.THE DECISION IS NOT JUSTIFIED.

    11.STATED PROOF THAT THE MEMBER WAS KEEN TO REJECT THE APPLICATION.

    12.UNFAIR AND BIZARRE DISTINCTION BETWEEN THE PERSECUTION FOR POLICITIAL OPINION AND REVENGE.” (sic)

    In substance, they seek to attack the fact finding processes of the Tribunal and also to attribute to the Tribunal a bias in terms of actual bias against him.  I am satisfied that there is no evidence on the material before me or in the reasons of the Tribunal of any bias actual or apparent on the part of the Tribunal.

29. The grounds upon which an application to review may be made are set out in s 476 of the Migration Act.  As has been repeatedly said, they do not encompass a merits review.  The grounds upon which this application is brought, in my opinion, amount to little more than an attempt to have this Court revisit the fact finding process in relation to the Tribunal’s decision.  I am not satisfied that any reviewable error has been identified and the application will be dismissed.

I certify that the preceding twenty nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:
Dated:             14 April 1999

Mr R. Raashed was given leave to speak on behalf of the Applicant.
Counsel for the Respondent:	Mr J. Smith and Ms A. Nanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 April 1999
Date of Judgment:	14 April 1999