Rahman v Minister for Immigration and Multicultural Affairs

[2000] FCA 1794

FEDERAL COURT OF AUSTRALIA

Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1794

IMMIGRATION – whether Tribunal failed to make a finding on a material question of fact – whether there was evidence or other material to justify the making of the Tribunal’s decision.

AATIQ SHARIFUR RAHMAN V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

JUDGE:         BEAUMONT J
DATE:           22 DECEMBER 2000
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1167 OF 2000

BETWEEN:

AATIQ SHARIFUR RAHMAN

APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

BEAUMONT J

DATE OF ORDER:

22 DECEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

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	N 1167 OF 2000

BETWEEN:	AATIQ SHARIFUR RAHMAN APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BEAUMONT J
DATE:	22 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION

1. This is an application to review judicially a decision of the Refugee Review Tribunal (“the Tribunal”) affirming the decision of the Minister’s delegate to refuse to grant the applicant a protection visa.  The applicant, a Bangladesh citizen of 23 years of age, arrived in Australia on 3 May 2000 on a student visa which had been cancelled on 14 January 2000.  The applicant had previously (in 1998) entered Australia on a student visa. 

2. The applicant has appeared in person with the aid of an interpreter but it seems he had some professional assistance in drafting the grounds of his amended application for an order of review.  The applicant relies upon two grounds:  (1)    A contention that s 368(1) (scire licet, s 430(1)), of the Migration Act 1958 (Cth) (“the Act”) was breached because the Tribunal made no finding with respect to a particular aspect of his claim; and (2) a contention that there was no evidence or other material to justify the Tribunal’s decision.

3. In order to understand the issues, it will be necessary to refer to the Tribunal’s statement of its reasons relevantly as follows:

   THE TRIBUNAL'S REASONS

4. The Tribunal first described the claims and evidence relevantly to the following effect:

   (a)       Claims and evidence 

5. Upon arrival at the airport, the applicant was interviewed.  He asked for a reconsideration of the cancellation of his student visa.  He produced evidence of a course cancellation at a business college.  He was unable to produce evidence of the payment of fees.  The applicant said that the course had already begun in March.  He did not respond to the suggestion put to him that he had already missed his semester.  The applicant was informed that the student visa cancellation would not be revoked. 

6. The applicant then applied for protection in Australia providing relevantly information to the following effect:

   ·He was involved in politics in Bangladesh as an active member of the Bangladesh National Party (BNP);  and the political situation in Bangladesh was such that he could not remain there, where he was living in fear of being killed by members of the Awami League (“the League”). 

   ·During the last election in Bangladesh he was caught and beaten by members of the League. 

   ·Members of the League had come to his house and threatened to kill him if he continued with his political activities. 

   ·In November 1996, the applicant was detained by police for several days and tortured. 

   ·In February 1997, the applicant’s hand was burned with a cigarette by League men, and the applicant’s life was threatened. 

   ·In October 1997, after a clash between members of the BNP and the League, the applicant was arrested by the police and detained for two months. 

   ·After Aslam Sardar, a prominent member of the League, was killed in June 1998, the applicant “went underground”, staying with friends.  He then applied for the Australian student visa. 

   ·He returned to Bangladesh in September 1999 because his mother was very sick.  In November 1999, he took part in a BNP demonstration, was arrested and gaoled for twenty-seven days.  He was badly beaten and hospitalised.

   ·In January 2000, the applicant was arrested by police at the office of the BNP and gaoled for four months. 

   ·Upon his release in April 2000, the applicant was informed that he was on the police list of suspects for the murder of Mr Aslam.  The applicant then decided to return to Australia. 

   (b)       Findings and reasoning

7. In essence, the Tribunal's findings and reasonings were to the following effect:

8. The Tribunal referred, amongst other things, to several letters produced by the applicant, written by others who knew the applicant, including Mirza Abbas.  The Tribunal noted that Mr Abbas qualified some of his comments which, in any event, were “written in a general way partly based on accounts from parties close to the applicant and largely non-specific information”.  The Tribunal found that the letters did not provide credible evidence that the applicant had been gaoled for four months this year;  and for the reasons given later, the Tribunal found that the applicant had not been gaoled for four months as claimed.

9. The Tribunal rejected Mr Abbas’ claim that he knew that the applicant was wanted for Mr Aslam Sardar’s murder;  and found, for reasons it later gave, that the claim was not plausible. 

10. The Tribunal further found that the applicant “was of little political significance”.

11. The Tribunal said:

    “I accept that the Applicant was jostled and threatened at the polling booth in June 1996.

    However, in any event the Awami League won the election which leads me to doubt that the Awami League members would be motivated to continue to target and harass a low profile political figure such as the Applicant whose party they had defeated and who was in no position to pose any significant political threat.

    I reject the Applicant’s claims that the police were harassing him and wanting to arrest him ten to fifteen days after the 1996 elections.

    By his own account, neither he nor any of his family was home at the time the police came and they were only told by neighbours that the police were looking for him.

    The police never returned and, I find it implausible that his visit to India for a short period of fifteen days would have deterred them from taking action if they intended to in the first place.

    As discussed in detail below I find that the Applicant has fabricated accounts of events, arranged for fraudulent statements to be made and been inconsistent in his account.

    The fact that he only made claims after being stopped at the airport in May 2000 when he had the opportunity to do so from October 1998 to September 1999 leads me to doubt his claimed fear despite his claims that he didn’t do so after being been told by a migration agent that Bangladeshi cases never succeeded.

    Further to this he remained in Bangladesh for six months after his mother’s death.

    Therefore, even if I accept that he overcame his fear out of genuine concern for his mother’s circumstances I can find no explanation for his continued stay in the country if he held a genuine fear of persecution since he had a passport and an active visa to travel to Australia… and I reject his claims to have been imprisoned on two occasions in 1999 and 2000.

    I find his credibility is so damaged that I can only accept certain elements of his case by giving him the greatest latitude in regard to benefit of the doubt.

    In regard to his claim to have been jailed for a week in November 1996, while I have serious reservations I give the Applicant the benefit of the doubt and I accept that this did occur.  The Applicant was unable to provide me with details as to how his party arranged for his release and claims that he was accused of arms possession.

    I find that he was arrested and detained for the reasons he has claimed and, was held for suspected possession of arms.

    I find that his party, albeit in opposition, was able to effectively intervene, represent him and obtain his release without any further adverse action being taken against him.

    Given this level of support from his party and the independent evidence in regard to the independence of the Bangladesh judicial process, which I also accept, I find that the Applicant has demonstrated that he has the contacts to resources to be protected from such harm and, that on this occasion the authorities were satisfied that he was not guilty of being in possession of illegal arms as no further attempts were made to detain him on this basis.

    As stated by the Applicant and by the official from the BNP in Bangladesh the Applicant occupied a minor position in a small ward.  I do not accept that he would have, single handedly attempted to represent a businessman in a matter of extortion such as he has claimed when he could have referred the matter on to a more influential party member.  I also find it implausible that the businessman would choose to seek out the Applicant, a mere acquaintance and minor office bearer in the opposition party to take up his cause against a ruling party leader in a matter of extortion.

    I accept that the Applicant, as a participant and party member took part in a demonstration in October 1997 which became violent and in which, by his own account members of his own group entered into the violence and where police attempting to restore order were injured.

    I also accept, as plausible, that he and others were detained under the SPA [Special Powers Act] and held.

    I am of the opinion that the detention was in line with the purposes for which this law of general application was enacted and used by both parties when in government rather than for a political reason.

    However, even if that was not the case, by his own account, the Applicant’s party was able to again represent him and organise his release by paying bail and again no further adverse action was taken against him.

    I find this was the second and last time he was detained and held by the authorities.

    I also find that it was the particular circumstances he was in at the time of his arrest, particularly the latter where he was openly involved in an act of violence and public disturbance that caused attention to be focused on him rather than his political opinion.

    Accordingly I find that he faces no prospective harm for reasons of his political opinion.

    As discussed below he suffered no further consequences after that time and I am satisfied that he does not face a ‘real chance’ of facing persecution for that reason in the reasonably foreseeable future”. 

12. The Tribunal went on to reject his claims (i) to have been accused of the murder of Mr Aslam Sardar;  and (ii) to have been detained in 1999 and 2000.

13. The Tribunal said:

    “In regard to the two incidents of imprisonment which he claimed occurred in 1999/2000 he made no mention in his interview at the airport.

    I have taken into account that he was provided with an interpreter and was able to speak to a migration agent who is from the Applicant’s country of nationality.

    There was no language difficulty and, by his own account, the Applicant had previously sought counsel in regard to a protection visa from that lawyer.

    At the interview the Applicant said that his adviser told him to tell the interviewer his situation.

    Despite this the Applicant made no reference to a claimed detention of four months which had ended, according to his claims, ten days prior to his arrival in Australia and after his release had been arranged by his party.

    Of itself, this would be sufficient for me to find that this inconsistency, under these circumstances, is such that the claim is false.

    However, further to that, having spoken to the author of a letter supporting the Applicant’s claims and dated two days after his arrival I find that person knew nothing of the claimed four month detention.”

14. With respect to the applicant’s claim to have been detained in 1999, the Tribunal said:

    “I find that this account has also been fabricated and concocted following the Applicant’s interview at the airport.

    I also give no weight to the Applicant’s claims that following the release from his four month detention of 2000 the Awami League again attempted to lodge a false case against him for the murder of an Awami league leader in June 1998.

    If, as he claims, they have been intent on laying false charges against him since June 1998 it is implausible that they would have failed to do so in the period from September 1999 when he entered the country in his own name and went to his home and, by his account, openly engaged in a major public demonstration against the Awami League and remained until 2 May 2000 when he again left the country on a passport in his own name”.

15. The Tribunal concluded:

    “These fabrications lead me to find that the Applicant entered Bangladesh openly in September 1999 to visit his ailing mother who unfortunately passed away the following month.  He remained in the country for personal reasons until May 2000 without facing persecution or any adverse interest from the Awami League.
    
    

    I find he was stopped at the airport and advised he had no right of entry and, in a desperate attempt to remain made claims for a protection visa.

    I find the Applicant has made no effort to be involved in his political party in Australia and that his minimal political involvement in Bangladesh is such that he would not be of such interest to the members of the Awami League in Bangladesh that he would face prospective harm amounting to a real chance of persecution.

    This being the case, any fear of persecution the Applicant may hold for reasons of his political opinion is not well founded and he is not a refugee.”

    THE GROUNDS OF THE CLAIM FOR JUDICIAL REVIEW

    (a)       The claim of a failure to make a finding on a material question of fact 

16. It is submitted that, in breach of s 430(1), the Tribunal failed to set out its findings on the material question of fact, that is to say, with respect to the applicant’s claim to be a victim of persecution because he was a close associate of Mr Abbas.

17. Reliance is placed upon the following: 

18. In a submission to the Department dated 6th July 2000 prepared by solicitors then acting for the applicant, the following statement was made:

    “The applicant is a friend of Mirza Abbas who was arrested in March 1997 together with three other leading members of the BNP (see enclosed copy of ‘Bangladesh:  Arrest of BNP Members Could be Politically [Motivated]’, Amnesty International, 26.3.1997).  It is submitted that it is entirely credible that the applicant has been subject to detention and torture as claimed due to his association with Mr Abbas and because he is a political activist.”

19. Attached to the solicitor's letter were copies of photographs of the applicant with other members of the BNP.  One photograph shows the applicant with Mr Abbas, who is described as “ex Member of Parliament.  Ex May[o]r of Dhaka City”.

20. The approach in principle to be taken in this area was explained in the majority judgment of Black CJ, Sundberg, Katz and Hely JJ in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 as follows:

    · a failure to comply with s 430(1) is a failure to observe procedures required by the Act to be observed in connection with the making of a decision and therefore constitutes a ground of review under s 476(1)(a): see [43];

    ·    s 430(1) does not impose any obligation on the RRT to prepare a statement disclosing a satisfactory process of reasoning leading to the decision it reached, although the RRT is obliged to set out its findings on any material questions of fact: see [44] and [47];

    ·    there is no specific requirement in s 430(1) for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made, although if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT’s actual reasoning process: see [46];

    ·    the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make.  Consequently, it must make findings on questions of fact “that are central to the case raised by the material and evidence before it” or upon which the “decision, one way or the other, turns”, having regard to the process of reasoning the RRT has employed as the basis for its decision: see [48], [56] and [57];

    · a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact must be dealt with: see [56]. Accordingly, a failure to comply with s 430 is not made out by reason only of the failure on the part of the RRT to explain why it had not accepted and acted upon material which was contrary to the findings which it had made on an issue: see [56] and [64];

    ·    fundamentally, on a fair reading, the reasons of the RRT need to reveal to the parties why the decision went the way it did: see [62].

21. (see Najarian v Minister for Immigration & Multicultural Affairs [2000] FCA 993 at par 13).

22. In response to the ground presently relied upon, the Minister makes the following submission:

    “5.Accordingly [that is having regard to the statements of principle enunciated in Singh above, at pars 48, 56, 57 and 64], to determine whether the RRT complied with its obligations under s 430(1), it is not sufficient merely to compare the claims made by the applicant and the evidence adduced in support of those claims with the findings actually made.  The reasons of the RRT must be examined to determine the process of reasoning and then to find those facts arising from the material before the Tribunal which were critical to the decision.

    6.The findings and reasons of the RRT are set out in its statement at RD 147 – 156.  The RRT starts by summarising the applicant’s claims that he has been and will continue to be targeted by members of the Awami League.  Next, the RTT sets out the instances on which the applicant claimed to have suffered harm in the past [RD 148-149] and discusses the applicant’s credibility briefly.  The RRT then makes findings in respect of two letters relied on by the applicant in support of his claims.  Although the RRT accepts the letters as genuine [RD 150.2] it does not find them especially supportive of the applicant’s claims and, in particular, they did not lead the RRT ‘… to conclude that the Applicant held any significant position in the party’.

    7.Following this, the RRT makes findings about the particular claims of harm suffered by him, the applicant’s actual fear of persecution and about the prospects of the applicant being persecuted in the future.  The two findings relevant to these proceedings were:

    a.the applicant did not have a genuine fear of persecution:  RD 152;  and

    b.the applicant faces no prospective harm for reasons of his political opinion because:

    i.he has the contacts and resources to be protected from such harm:  RD 153.3;  and

    ii.his last arrest was caused by his open involvement in an act of violence and public disturbance rather than his political opinion:  RD 154.2.

    8.In light of these findings, the question of the applicant’s connection with Mirza Abbas and any possible consequences of that were not critical to the decision.  The applicant’s advisers made the claim in relation to this connection in their letter to the RRT dated 7 August 2000 [RD 79]:

    ‘It is submitted that it is entirely credible that the applicant has been subject to detention and torture as claimed due to his association with Mr Abbas and because he is a political activist.’

    RD 84.6

    9.The connection with not critical to the decision because, even if the RRT had accepted that it was the cause of the first detention, it would not have affected the findings that the applicant had sufficient contacts (including Mr Abbas) to avoid such detention and the second detention was found not to have been so caused.  In any event, the finding that there was no subjective fear of persecution was determinative of the application and any connection with Mr Abbas had little to do with that.”

1. I agree.  This ground of review is rejected accordingly.

   (b)The “no evidence” ground

2. In the amended application this ground was expressed as follows:

   “2.There was no evidence or other material to justify the making of the decision.

   Particulars

   The Tribunal found as a fact that the applicant had been given an adequate opportunity when interviewed at Sydney airport on arrival to put forward a complete and coherent account of his claims to be a refugee.  This fact did not exist because the interview at the airport was conducted in accordance with a basic proforma which was not designed to elicit the type of detail which the Tribunal believed it could.”

3. In answer to this ground, the Minister makes the following submission:

   “10.     In order for an application to succeed under s 476(1)(g):

   a.The impugned particular fact must be critical to the decision in the sense that there are no other parallel facts which support the same line of reasoning:  Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, 220-221 per Black CJ;

   b.There must be no evidence to support the fact:  s 476(1)(g):  and

   c.The applicants must prove by admissible evidence that the fact does not exist:  s476(4)(b);  Curragh at 224.

   11.The applicant here has not established any of these.  Firstly, however, it appears that the RRT did not in fact make the finding which the applicant alleges was not supported by any evidence.  The three passages in which the airport interview is referred to in the RRT’s statement of reasons are at RD 133-134, RD 138-139 and RD 154-155.  Nowhere in these passages does the RRT state (or find) that the applicant had ‘been given an adequate opportunity when interviewed at Sydney airport on arrival to put forward a complete coherent account of his claims to be a refugee’.  The most which the RRT found was that the applicant had been given an opportunity to mention the detentions in 1999 and 2000 which later appeared in his statutory declaration in paragraphs 12 and 13:  RD 51.  The importance of this finding was that the RRT did not accept those claimed detentions.

   12.However, the RRT had another, parallel reason for not accepting the claims.  That reason was that the BNP members in Bangladesh to whom it spoke by telephone were not aware of those detentions:  RD 155.  For that reason, the first requirement under s 476(4)(b) is not satisfied.

   13.Secondly, at the airport interview, the applicant was asked two pertinent questions:

   a.Have you previously been threatened or harassed by the government party?  And

   b.In what way were you harassed?

   RD 5

   14.      It is reasonable to assume, as the RRT did, that this did provide the applicant with the opportunity to outline or even merely mention the fact that he had been detained in Bangladesh by the Awami League in 1999 and 2000.  On that basis, there was sufficient evidence to justify the making of the decision.”

4. I agree and reject this ground accordingly.

   ORDERS 

5. In the result, the application is dismissed, with costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated:             24 January 2001

Solicitor for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	15 December 2000
Date of Judgment:	22 December 2000