Rahman v Minister for Immigration and Multicultural Affairs

[2001] FCA 1173

FEDERAL COURT OF AUSTRALIA

Rahman v Minister for Immigration and Multicultural Affairs [2001]
FCA 1173

IMMIGRATION – Application for refugee status – applicant found by Refugee Review Tribunal to be a totally unreliable witness – testimony of applicant to Refugee Review Tribunal rejected on grounds of credibility no reviewable error

Kopalapillai v Minister for Immigration and Multicultural Affairs [1999] FCA 1338 followed
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 followed
Vichlenkova v Minister for Immigration and Multicultural Affairs [1999] FCA 1338 followed

MAHMUDUR RAHMAN v MINISTER FOR IMMIGRATION & MUTLICULTURAL AFFAIRS
N583 OF 2001

CONTI J
SYDNEY
20 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 583 OF 2001

BETWEEN:	MAHMUDUR RAHMAN APPLICANT
AND:	MINISTER FOR IMMIGRATION OF MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	20 AUGUST 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Application be dismissed.

2.The Applicant pay the costs of the Respondent.

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	N 583 OF 2001

BETWEEN:	MAHMUDUR RAHMAN APPLICANT
AND:	MINISTER FOR IMMIGRATION OF MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	20 AUGUST 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an Application for Review against the Decision of the Refugee Review Tribunal (“RRT”) made on 10 May 2001, whereby the RRT affirmed the Decision of the Delegate of the Minister not to grant the Applicant a protection visa, because as in the case of the Delegate, the RRT was not satisfied that the Applicant was a refugee within the convention definition. Pursuant to Order 80 of the Federal Court Rules, the Applicant was provided with legal advice relating to the prospects of success of his application. For reasons which have not been disclosed to this Court, the Applicant’s legal adviser did not appear for the Applicant at the hearing before this Court. The Applicant had not been legally represented before the RRT.

2. The form of the Application for Review does not specify any grounds upon which the Applicant seeks to rely in his application for review of the RRT’s decision. The only observations made by the Applicant throughout the application are to the effect that “details will be sent later”. As of today, no further details have been provided which particularise the nature or basis of the Applicant’s claims as to error on the part of the RRT.

   Factual background

3. The Applicant is a citizen of Bangladesh who was born on 3 January 1974. He is not married, though he does have family members who continue to reside in Bangladesh. The Applicant arrived in Australia on 20 January 2000 on a student visa, which permitted him to stay in Australia until 25 December 2000. Despite the period designated in the student visa, the Applicant departed for Bangladesh on 26 June 2000 and re-entered Australia on 14 September 2000. After his return to Australia, he lodged an application for a protection visa on 23 February 2001. When the matter was before the RRT, he claimed to have a well-founded fear of persecution on the basis of his political opinion and also his religious beliefs, or rather disbeliefs.

4. Some of the Applicant’s claims as recorded by the RRT in its decision were initially set out in a submission that was attached to his primary application. The Applicant supplemented such material with oral submission at the hearing before the RRT. The content of such written and oral submissions may be relevantly summarised as follows. The basis for the Applicant’s claims commenced with events that occurred back in 1991, when he commenced his studies at Dhaka University and sought to participate in political groups on campus. He soon realised that such groups were all connected with fundamentalist Islamic devotees. The Applicant said that on various occasions, he had publicly expressed his discontent with Islamic belief to the point where he became known as a dissident. As various persons engaged around his University campus began to spread the views expressed by the Applicant on Islam, he suffered a backlash from other persons involved in the student political wings at the University. His complaints about the Islamic beliefs included him questioning the Muslim practice of attending the Mosque five times a day to pray, and also that it was not right to be polygamous, even though ‘the prophet’ had had thirteen wives.

5. The Applicant claimed that such expression of his views resulted in various forms of harm being inflicted upon him. This included being targeted by local Muslims who knocked on his bedroom door each day for morning pray. He also said that he had been subjected to verbal abuse and threats of punishment for not attending the Mosque. Perhaps a more serious claim included his alleged abduction in 1999 by Muslim fanatics whereupon he was beaten by them. He claimed to have been ostracised by his community and although he lived at his parents house, he was still ill-treated and fearful of going outside to face those who did not share his lack of religious belief. Prior to his first visit to Australia, according to what the Applicant claimed in his written statement, he had been informed by a friend that two fundamentalist parties were plotting to kill him by reason of the views he had expressed over the last years at the University.

6. It is significant to record that the Applicant chose to escape Bangladesh through obtaining a student visa to study in Australia. As the RRT pointed out, such is a relatively costly and administratively complicated option to exercise, requiring as it does much more time and financial commitment than a visitor’s visa. Such a course, if pursued, requires the satisfaction, not only of the Department of Immigration, but also of the educational institutions that a refugee may desire to attend.

7. Prior to the Applicant’s visa expiring in December 2000, the Applicant claimed that he had fallen ill with food poisoning and was consequently hospitalised. The Applicant said that he was advised by the doctor that he had to rest and recuperate at home for a few months under supervision. The Applicant had been studying in Canberra at the time but decided that it was best for him to return to Bangladesh, where he would be under the care and supervision of his family. It was asserted by the Applicant that such return on his part to Bangladesh was a practical consideration, due to having no available friends in Australia with whom he could stay, and from whom he could obtain adequate supervision while he was ill. Upon his return to Bangladesh, the Applicant claimed that he was again the subject of plots to kill him, after his enemies had discovered his return to Bangladesh. He explained to the Tribunal that he was able to avoid being killed because his enemies only found out about his presence in Bangladesh some time towards the end of his stay there. Shortly after the Applicant left Bangladesh to return to Australia a second time, some three months later in September 2000, the Applicant claimed that he was informed that his enemies came to his family home soon thereafter and demanded that he be handed over to them. Despite the Applicant being so informed, he did not seek a protection visa in Australia upon his initial return. Instead, he continued with his studies here. It was not until some five months later in February 2001 that the Applicant lodged an application for a protection visa.

   The RRT’s findings

8. The findings of the RRT may be summarised as follows:

   (i)The RRT accepted that the Applicant was a Bangladeshi national and that his studies had been his overriding focus;

   (ii)The RRT did not accept, having regard to the vague and unsatisfactory evidence referred to in [5] above, that he had ever possessed a serious or reasoned preoccupation with the place of religious teaching in Bangladeshi society, nor that his thoughts on the subject had ever been widely heard except among his friends. Instead the Applicant was far more concerned with his studies. This was demonstrated by his attempts to have his study visa renewed, and by his repeated failure in the meantime to either find a quicker way out of Bangladesh, or to apply for a protection visa here, in spite of what he claimed were the continuous threats against his life;

   (iii)When the Applicant had fallen sick, his doctor did not specifically advise him to go back home to Bangladesh. His return to Bangladesh was correspondingly voluntary. Those circumstances constituted strong evidence of an absence of the fear he claimed to have had for his life, if he were to return to Bangladesh;

   (iv)Much of the Applicant’s evidence to the RRT was internally inconsistent. Furthermore the RRT concluded, on the wealth of the independent evidence to which it had access, that the Applicant was wrong about the fundamentalist bias of the student political groups at Dhaka;

   (v)The Applicant was an entirely unreliable witness. The application for a protection visa was the result of an after thought, upon his student career in Australia coming unstuck because of his short-sightedness in undertaking illegal work; and

   (vi)The Applicant does not have in the result a well-founded fear of persecution.

9. Having regard to the Application for Review before the Court, and what the Applicant has submitted before me today, there is nothing to suggest that the RRT committed any error of law in deciding the Applicant’s claim adversely to him. The fact of the matter is that the Applicant did not present the RRT with any evidence that supported his claims to the effect that he was active in expressing any particular political or religious belief, and following on from this, that any such expression of view had led to his being persecuted by fundamentalist Islams at Dhaka University. Furthermore the RRT rejected the credit worthiness of the Applicant, which is of course a matter which strongly affects any weight which can be given to the Applicant’s case. I might add for completeness that it is for the RRT, and not for the Court, to assess the credibility of an Applicant’s claim: see Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J. Since the Applicant’s claims contained inconsistencies and inherent implausibilities, the RRT was plainly entitled to reject his application: see for instance Vichlenkova v Minister for Immigration and Multicultural Affairs [1999] FCA 1338 at [3]. The RRT’s decision to affirm the Delegate’s refusal to grant the Applicant a protection visa was largely based on its conclusions as to the Applicant’s lack of credibility in light of the evidence that was presented before it. Such findings in no way represent an error of law: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.

10. I would accordingly dismiss the Application and order that the Applicant pay the costs of the Respondent.

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

Associate:

Dated:             23 August 2001

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	20 August 2001
Date of Judgment:	20 August 2001