Rahman v Minister for Immigration and Multicultural Affairs

[2000] FCA 1790

FEDERAL COURT OF AUSTRALIA

Rahman v Minister For Immigration & Multicultural Affairs [2000] FCA 1790

MD HABIBUR RAHMAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1067 OF 2000

LINDGREN J
5 DECEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1067 OF 2000

BETWEEN:	MD HABIBUR RAHMAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	5 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.        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	N 1067 OF 2000

BETWEEN:	MD HABIBUR RAHMAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	5 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

General

1. Upon this matter being called on for hearing this afternoon, the applicant (“Mr Rahman”) was called but did not appear.  Mr Justin Smith of counsel with instructing solicitor were present ready for the hearing, as was an interpreter to assist Mr Rahman.

2. This morning, there was received in the Registry of the Court, by facsimile, a certificate dated 28 November 2000, of Dr K Viswanath, relating to Mr Rahman.  There was no accompanying document.  The certificate was to the effect that as at the date of it Mr Rahman was suffering from “allergic reaction to skin”.  The certificate said that he would be unfit for work for four weeks and was on treatment.  The certificate did not describe any particular kind of work for which the health problem rendered Mr Rahman unfit.  Unfitness for work for four weeks is not unfitness to attend court for half a day.  I am not persuaded by the certificate at all.  Moreover, Mr Rahman’s case is a weak one and it is in everyone's interest that it be disposed of now.  If the sending of the doctor's certificate by someone to the Court this morning is to be treated as an application by Mr Rahman for an adjournment, I refuse that application.

3. Order 32 subrule 2(1) provides, inter alia, that if, when a proceeding is called on for trial, any party is absent, the Court may dismiss the action or proceed with the trial.  I have decided to dismiss the action.  Mr Rahman was present before me on 16 November when his application was fixed for hearing today at 2.15 pm.  The sending of the doctor’s certificate to the Court this morning suggests that he knows that the hearing is fixed for this afternoon.

4. Notwithstanding what I have said, I think I should deal with the facts of the matter to some extent, if only to show that no injustice is done by a dismissal of the application for lack of appearance.

   Background to Mr Rahman’s application

5. Section 29 of the Migration Act1958 (Cth) (“the Act”) provides that subject to the Act, the respondent (“the Minister”) may grant a non-citizen permission, to be known as a visa, to do one or both of the following:

   (a)travel to and enter Australia;

   (b)remain in Australia.

6. Mr Rahman applies under s 476(1) of the Act for review of a decision of the Refugee Review Tribunal (“RRT”) affirming a decision of a delegate of the respondent (“the Delegate”) not to grant him a protection visa permitting him to remain in Australia. It is not in dispute that the Minister delegated all relevant powers to the Delegate pursuant to s 496 of the Act.

7. Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as “amended” by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, “the Convention”).  As a party to the Convention, Australia has undertaken protection obligations to a person who is a “refugee” as defined in the Convention.

8. Article 1A(2) of the Convention provides that a refugee is any person who:

   “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

9. Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994, which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

10. The RRT’s decision was a “judicially-reviewable decision” (s 475(1)(b) of the Act); the applicant was entitled to apply to this Court for review of it on certain grounds (s 476); and the Court has the jurisdiction provided by Part 8 of the Act, but no other jurisdiction, with respect to it (ss 485, 486).

11. Mr Rahman’s case is that he is outside the country of his nationality, Bangladesh, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of religion.

    Procedural background

12. Mr Rahman arrived in Australia on 27 June 1998.  On 22 July 1998, he applied, through Andrew P Dent of Leitch Hasson Dent, Solicitors and Migration Agents, for the protection visa (visa sub-class 866).  The Delegate refused the application on 2 November 1998.  On 26 November 1998, Mr Rahman applied to the RRT for review of the Delegate’s decision.  The RRT conducted a hearing on 23 August 2000.  On 28 August 2000, the RRT affirmed the Delegate’s decision.  On 5 October 2000, Mr Rahman filed his application in this Court for review of the RRT’s decision.

    The reasons for decision of the RRT

13. The RRT commenced its reasons for decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of a “refugee”.  It then turned to consider Mr Rahman’s claims and evidence.

14. According to Mr Rahman’s protection visa application, his wife, child, parents and siblings are resident in Bangladesh.  He was educated until 1990 and was previously employed in the food preparation and hospitality industries. 

15. According to a statutory declaration attached to his protection visa application, Mr Rahman was born a Sunni Muslim but could not understand why the Sunni community prevented others from the free exercise of their religions.  He befriended a fellow student who came from the Ahmadia group and was thrown out of school for his religious beliefs.  Mr Rahman was attracted to those beliefs and attended Ahmadia religious activities.  His family and the Sunni communities tried to stop him from becoming involved in the Ahmadia religion.  However, Mr Rahman only became more devoted, and converted to the Ahmadia faith. 

16. Extremist Sunnis began harassing Mr Rahman and his family, attacked him several times at home, and beat him.  The Sunni community laid false charges against him and a Charge Sheet and Warrant of Arrest were issued in respect of him.  Mr Rahman claimed that he would face “rigorous punishment” on his return to Bangladesh because of his religious activities.

17. The RRT noted that Mr Rahman was extremely vague in talking about the Ahmadia religion, how he came to be involved in it and what it was about it that attracted him.  The RRT gave illustrations.  As well, the RRT invited Mr Rahman to comment on various inconsistencies in his claims and evidence.

18. The RRT reviewed independent country information on:

    ·    Islamic extremism in Bangladesh;

    ·    the Bangladeshi judicial system;

    ·    documentation purportedly issued by Bangladeshi authorities and produced by asylum seekers from Bangladesh; and

    ·     religious minorities in Bangladesh, including Ahmadis.

19. The RRT had considerable difficulty with Mr Rahman’s credibility.  He seemed to the RRT to have only a sketchy understanding of Ahmadia religious beliefs and could not provide a coherent account of the alleged harassment of him.  The RRT did not accept that he was committed to the Ahmadia religion or involved in any activity relating to the promotion of it.

20. The RRT did not accept that Mr Rahman was the subject of arrest warrants and associated action and did not accept the documents put forward by him as valid documents.  Mr Rahman seemed to the RRT to have little appreciation of what the documents contained.  There appeared to the RRT to be nothing in the letters Mr Rahman submitted to it to support his claims that he was being pursued for reasons of his religion.  The RRT did not believe the key aspects of Mr Rahman’s story.

21. The RRT was not satisfied that Mr Rahman ever sustained any harm for reason of his religion or imputed religion, from Sunni groups or from anyone else, and was therefore not satisfied that there was a real chance that he would be harmed in Bangladesh in the future for a Convention reason.

    Grounds of the present application for an order of review

22. In his application filed in this Court on 5 October 2000, Mr Rahman stated the ground of his application to this Court as follows:

    “The officer from the Tribunal exercised power under section 431 of the Migration Act 1958 and has decided that I am not a person to whom Australia has protection obligations under the Refugee Convention.

    I certainly believe that the Department of Immigration as well as the Refugee Review Tribunal, has certainly made an error of law being an error involving an incorrect interpretation of the application of the law to the facts as found by the person, who made the decision.”

    Reasoning on the present application for an order of review

23. The application is without any legal merit.  It is an attempt to challenge a decision against Mr Rahman based on findings on credit.  The RRT disbelieved him.  It was entitled to do so on the materials that were before it.

24. Accordingly, if Mr Rahman had appeared today, he would not have been able to say anything that would have made any difference in the result. 

    Conclusion

25. The orders of the Court are that:

    1.The application be dismissed.

    2.The applicant pay the respondent’s costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             8 December 2000

There was no appearance for the Applicant.
Counsel for the Respondent:	Justin Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	5 December 2000
Date of Judgment:	5 December 2000