Rahman v Minister for Immigration & Multicultural Affairs

[1999] FCA 1106

FEDERAL COURT OF AUSTRALIA

Rahman v Minister for Immigration & Multicultural Affairs [1999] FCA 1106

MOHAMMED SHAIFUR RAHMAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 391 of 1999

LINDGREN, EMMETT, GYLES JJ
11 AUGUST 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 391 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MOHAMMED SHAIFUR RAHMAN Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGES:	LINDGREN, EMMETT, GYLES JJ
DATE OF ORDER:	11 AUGUST 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant 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 391 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MOHAMMED SHAIFUR RAHMAN Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	LINDGREN, EMMETT, GYLES JJ
DATE:	11 AUGUST 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

LINDGREN J:

1. The appellant appeals from a judgment delivered on 14 April 1999 by which French J dismissed an application for review of a decision of the Refugee Review Tribunal.  The Court has heard briefly from the appellant this morning and had previously studied his written submission to the Full Court, as well, of course, as the papers in the appeal book.  The Court is able to give judgment immediately.

2. The background to the matter can be shortly summarised.  The appellant arrived in Australia by ship from his country of nationality, Bangladesh, on 22 or 23 October 1995 and applied for a protection visa by an application dated 5 February 1996, lodged on 8 February 1996.  He was interviewed by the Department of Immigration and Multicultural Affairs.  His application for a protection visa was refused on 30 May 1997.  By an application dated 9 July 1997, lodged on 11 July 1997, he applied for a review of that decision by the Refugee Review Tribunal.

3. The first decision of the Tribunal on the application was that it did not have jurisdiction.  The Tribunal gave that decision on 28 January 1998.  But on 9 June 1998, this Court set aside that decision and remitted the matter to the Tribunal to be heard and determined in accordance with law. 

4. On 18 September the appellant lodged with the Tribunal a written submission dated 10 September of some five pages.  There was a hearing before the Tribunal on 28 September followed by a written submission by the appellant's Migration Adviser dated 8 October.  On 15 October, the Tribunal gave its decision refusing the protection visa.

5. On 11 November 1998, the appellant applied to this Court for review of the Tribunal’s decision.  On 10 April 1999, some four days prior to the hearing before French J, the appellant made a five page written submission to his Honour.  He heard the application for review on 14 April and gave an ex tempore judgment on the same day dismissing the application.

6. The notice of appeal filed on 4 May 1999 sets out the following grounds:

   “The Judge did not consider the full submission to the Court while delivering the judgement.”

   “The judgement contains wrong information (detail of submission will be provided).”

7. The appellant elaborated on the grounds of appeal by a five page letter dated 21 May 1999 addressed to, in effect, this Full Court.  Of course we have taken into account the content of that document as well as what the appellant has put to us orally this morning. 

8. It does not seem necessary for me to review the facts of the matter.  The Judge at first instance gave an account of them in his Reasons for Judgment of 14 April 1999.  The appellant’s first ground of appeal suggests that he may be under the misapprehension that because his Honour’s reasons do not refer to everything that was contained in his submission dated 10 April 1999, his Honour did not take that submission into account.  Of course that is not the position.  I see no reason to think that French J did not take into account, not only that submission made to him, but also the earlier documents which were before the Tribunal.

9. The second matter to be mentioned is that the submissions made both before his Honour and before us amount to an attack on the view of the facts which the Tribunal took.  This is what the appellant means when he gives as his second ground of appeal:

   “The judgement contains wrong information.”

   But it is not the role of the Court, either at first instance or on appeal, to review the merits and to revise the Tribunal’s view of the facts. This is, in general terms, a matter accorded to the Tribunal by the legislative scheme. In the course of the hearing I tried to explain to the appellant the very limited grounds of review of the Tribunal’s decision available in this Court under s 476 of the Migration Act 1958 (Cth) (“the Act”).

10. Another matter which perhaps should be mentioned is an allegation of bias.  His Honour rejected an allegation of bias against the Tribunal and there is no reason to think that he was in error in doing so.  As sometimes happens, an unrepresented litigant forms the impression that a decision-maker was biased against him or her for no more reason than that the decision was adverse.

11. The appellant has also complained that the Tribunal failed to observe the requirements of s 420 of the Act. It is now established by the authority of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 that a failure to follow the course required by that provision is not for the purposes of s 476(1)(a) of the Act, a failure to observe a procedure which the Tribunal is required by the Act to observe.

12. For these reasons I would dismiss the appeal.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             13 August 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 391 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MOHAMMED SHAIFUR RAHMAN Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	LINDGREN, EMMETT, GYLES JJ
DATE:	11 AUGUST 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

EMMETT J:

1. I agree.  I would like to add that I have given careful consideration to the written submissions that were made by the appellant to French J prior to his decision.  Those submissions were contained in the letter of 10 April 1999 which is contained in the appeal book.  In those submissions the appellant examined in some detail the reasons of the Tribunal and took issue with a number of the statements made in the Tribunal's reasons.  I do not think that it is necessary to deal with each of the matters raised in that letter.  I think it is sufficient to say that French J gave consideration to the appellant's contentions. 

2. The Tribunal accepted that the appellant was taunted at school, but for the reasons given by the Tribunal, the Tribunal was not satisfied that that amounted to persecution within the meaning of the Convention.  The Tribunal also referred to the appellant's concern that he was denied employment.  Again for the reasons given, the Tribunal was not satisfied that any denial of employment in 1987 constituted persecution within the meaning of the Convention.

3. The principal matter relied on by the appellant concerned his assertion of fear of retribution from one or other of two sources.  He originally said that he was concerned that he would be attacked by his own party.  However, as the Tribunal pointed out, that assertion was withdrawn and replaced by an assertion that he was in fear of an opposing party, that is the Awami League.  Because of that change in the appellant's story the Tribunal expressed grave doubts about the veracity of the appellant’s corrected version.

4. However, the Tribunal went on to consider the appellant's claim on the assumption that his corrected version was correct.  For the reasons given, the Tribunal was satisfied that, even if there were a risk of harm from the Awami League, that was not because of the political views of the appellant but because of a perceived desire to obtain retribution in respect of the alleged incident involving the mutilation of a member of the Awami League.

5. I am not persuaded that there was any error in the reasons of the Tribunal which falls within s 476(1) of the Migration Act. The appellant must be aware, or ought to be aware, that the powers of this Court are very limited, as Lindgren J has indicated. I am not satisfied that any ground has been made out within s 476 or that there has been any error on the part of the trial Judge. I agree that the appeal should be dismissed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             13 August 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 391 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MOHAMMED SHAIFUR RAHMAN Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	LINDGREN, EMMETT, GYLES JJ
DATE:	11 AUGUST 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

GYLES J:

1. I agree with each of the judgments that have just been delivered.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             13 August 1999

The appellant appeared in person:
Counsel for the Respondent:	Mr Justin Smith
Solicitor for the Respondent:	The Australian Government Solicitor
Date of Hearing:	11 August 1999
Date of Judgment:	11 August 1999