Rahman v Minister for Immigration & Multicultural Affairs

[1999] FCA 846

FEDERAL COURT OF AUSTRALIA

Rahman v Minister for Immigration & Multicultural Affairs [FCA] 846

MIGRATION – Refugee application – Review of Tribunal decision – Claim of fear of persecution on account of political opinion – Applicant involved in student politics in Bangladesh – Student groups reflected national political parties and issues – Some student leaders killed – Issue as to whether applicant ceased to be politically active well before departure from Bangladesh – Tribunal disbelieved many claims – Interpretation difficulties at hearing – Whether Tribunal erred in law in finding discrepancies in evidence, given the interpretation difficulties – Whether Tribunal member was affected by actual bias – Whether Tribunal failed to make findings on a material question of fact.

Migration Act 1958, ss 430 and 476

MOHAMMAD SADIQUR RAHMAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N176 of 1999

WILCOX J
24 JUNE 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N176 OF 1999

BETWEEN:	MOHAMMAD SADIQUR RAHMAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	24 JUNE 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant, Mohammad Sadiqur Rahman, pay the costs of the respondent, Minister for Immigration and Multicultural Affairs.

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	N176 OF 1999

BETWEEN:	MOHAMMAD SADIQUR RAHMAN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	24 JUNE 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. WILCOX J:  This is an application for review of a decision of the Refugee Review Tribunal refusing an application for a protection visa.

   The facts

2. The applicant, Mohammad Sadiqur Rahman, sought recognition as a refugee, within the meaning of the Convention on Refugees, on the basis that he had a well-founded fear of being persecuted for reasons of political opinion if returned to his native Bangladesh.  The Tribunal found Mr Rahman had “fabricated or greatly exaggerated his claims regarding his political involvement in Bangladesh”, that he may have had some involvement in politics while he was a student but he ceased to be a student in 1992.  Specifically, the Tribunal member did not accept Mr Rahman was “a leading member of the Chatra Dal at Kapasia College during 1994 and 1995”, as he had claimed, nor that he was “forced to go into hiding and then leave Bangladesh in 1996 because he had been targeted by his political opponents”.  It followed that the Tribunal did not accept that Mr Rahman fears “he will be persecuted by his local political enemies or by the current Awami League government of Bangladesh because of his political activities or because he gave evidence against some of them in a murder trial”. 

3. These findings were, of course, findings of fact. However, counsel for Mr Rahman raised three matters which, he contended, constituted grounds for review under s476 of the Migration Act 1958.

   Interpretation difficulties

4. The first proposition is that the Tribunal erred in law in making a finding of fact that there were discrepancies between the oral evidence given by Mr Rahman to the Tribunal and the written statement he had previously submitted for consideration.  When asked how this could constitute an error of law, counsel for Mr Rahman said a finding of discrepancy could only be made on the basis of a correct interpretation of the oral evidence.  He pointed out the Tribunal member had acknowledged deficiencies in the interpretation service provided at the oral hearing.

5. No complaint about the quality of the interpretation was made during the course of the hearing.  However, after the hearing but before the Tribunal announced any decision, Mr Rahman wrote to the Tribunal member saying he was not satisfied with the interpreter who had assisted at the hearing.  He asked for the tape to be checked and that he be given another hearing.  The Tribunal member invited Mr Rahman to provide examples of misinterpretation.  Mr Rahman apparently listened to one of the three tapes and identified one alleged misinterpretation.  He also said he was not treated fairly during the hearing; that there had been “laughing and mumbling” during the translation of a particular statement.  In her reasons for decision, the Tribunal member described what happened next:

   “I listened to those portions of the tape where Mr Rahman claimed there had been problems.  As I do not speak Bengali there were clearly limitations to what I would gain by this, but I wanted to reassure myself that I had not laughed at Mr Rahman or treated him unfairly in some other way.  Neither the interpreter nor I laughed at Mr Rahman, nor I do believe that he was treated unfairly during the hearing.  I listened to the interchange which Mr Rahman claimed involved ‘mumbling and laughing’.  There is an extremely brief interruption of some 2 seconds to the flow of the translation which appears to have been caused by the interpreter sneezing.  It is certainly true that I asked Mr Rahman on a number of occasions to wait until the interpreter had interpreted my statements before replying.  I did this because he sometimes answered my questions without waiting for the interpreter or interrupted her when she was interpreting what one of us had said.  I explained to him several times I wanted him to wait because I wanted to be very sure that I had understood his claims.  I also arranged for a Bengali interpreter to listen to a small portion of the taped hearing and offer an opinion on the quality of the interpreting.  The interpreter said that there were problems in the interpretation of some words on the portion of tape to which he listened.

   Following this Mr Rahman was invited to attend a second hearing scheduled for 7 August 1998.  In 4 August 1998 Mr Rahman forwarded a medical certificate stating that he was undergoing an operation on 6 August 1998.  In an accompanying letter he complained that he had not been treated fairly during the first hearing and his health had suffered as a result.  The hearing was cancelled and Mr Rahman was asked to provide a medical certificate indicating how long it would be before he was well enough to attend a hearing.  On 8 September 1998 he forwarded a medical certificate indicating that he had been unfit for work from 11 June 1998 to 22 June 1998.  In a letter accompanying this he stated that he was willing to come to another hearing, but not if I continued to hear his case as he believed that I had not treated him fairly during the first hearing.  Alternatively, he said that he would respond to written questions.  On 18 September 1998 he was advised that I did not intend to disqualify myself from the case as I did not consider he had been unfairly dealt with during the first hearing.  He was invited to attend a hearing of the Tribunal on 26 October 1998.  Mr Rahman did not respond to this invitation and on 16 October 1998 he was sent a letter reminding him of the scheduled hearing.  He again requested in writing and by telephone that his case be heard by a differently constituted Tribunal as he did not believe he had been fairly treated.  I again declined to have the case constituted to another Member.”

6. Thereafter, on 1 February 1999, the Tribunal member issued her decision disallowing the claim for refugee status.  In her reasons for decision, the member commented on the interpretation problem:

   “I accept that the interpreting at Mr Rahman’s Tribunal hearing was flawed.  However, he was invited to attend another hearing to discuss his claims and clarify any matters which may have become confused because of interpreting problems.  He refused to attend unless the case was constituted to a different Member because he claimed he was ill-treated and laughed at by me or by the interpreter.  Neither the interpreter or I laughed at Mr Rahman during the hearing and I do not believe he was treated badly.  As noted above, I asked him on a number of occasions to wait  for the interpreter and not interrupt until she had finished, but, as I explained at the hearing, I did this because I wanted to be sure we understood each other.  I consider that Mr Rahman has been given ample opportunity to state his claims and provide any evidence he wishes to in support of his case.

   Furthermore, I do not believe the interpreting problems at the hearing affected my understanding of Mr Rahman’s claims.  He speaks passable English and appeared to understand much of what I said to him without any need for an interpreter and, for the most part, he appeared to respond to the questions I had put in an appropriate fashion.  In my experience this does not happen when the interpreting is seriously flawed.  In any event, even if I ignored the evidence given at the hearing, serious problems regarding his credibility remain.  For example, the discrepancy between the information contained in Mr Rahman’s initial application form regarding when he was a student and where he lived and worked after this and the claims he made in his written submission regarding the same period, was clearly not the result of an interpreting problem during the hearing.  If Mr Rahman had attended a second hearing it may be that some of the problems with his evidence set out above would have been resolved.  However, he refused to do so and on the evidence currently before me I am not satisfied that his claims regarding his continuing involvement in student politics are true, nor that he has a well-founded fear that he will be persecuted because of his political opinion if he returns to Bangladesh now. ”

7. I agree that, where a tribunal  of fact does not understand the language in which evidence is given, any finding of discrepancies between oral evidence, given through an interpreter, and a prior written statement must depend upon an accurate interpretation of the relevant oral evidence.  In the present case, the Tribunal member accepted there were interpretation problems but, as she pointed out, her finding of discrepancies did not depend on passages that suffered these problems; indeed, they did not depend only on discrepancies between the oral evidence and written evidence.  No point of law is raised by this first point.

   Actual bias

8. The second matter concerns the Tribunal member’s alleged laughter. When I asked counsel the relevance of this, he suggested it was indicative of bias. He eventually put a submission that the Court should find actual bias, within the meaning of s476(1)(f) of the Migration Act, but conceded the only basis for that submission was what was said to be laughter at one point, followed by a sigh as the Tribunal member asked the next question.  At counsel’s request, I listened to the relevant part of the Tribunal hearing tape.  The part includes discussion about a claim by Mr Rahman that his father was attacked, at his home after Mr Rahman had departed Bangladesh for Australia, by Mr Rahman’s political enemies and thereby sustained a broken arm for which he had treatment in India.  In support of this assertion, Mr Rahman tendered a discharge report, bearing the name of a Calcutta hospital, that referred to hospitalization of Mizanur Rahman for an “old unreduced … dislocation” of the left shoulder.  The Tribunal member pointed out to Mr Rahman that this injury was different to that stated by him and was said to be an old injury.  She suggested the report did not support his claim, but Mr Rahman insisted it did.  There was then a noise which I would describe as a gasp, perhaps of disbelief, not laughter.  The member then invited Mr Rahman to detail any claim he had not yet mentioned.  She did so in a tone that was measured but not aggressive or hostile, and not conveying any antipathy or unwillingness to consider whatever information Mr Rahman might wish to give.

9. I see no basis for the claim of actual bias.  It would have been preferable for the Tribunal  member not to have evinced any reaction to Mr Rahman’s insistence that the report supported his claim of a broken arm; but her reaction is easily understandable.  Given that Mr Rahman had the report in front of him, it was almost as if he was insisting black was white.  What is important, however, is that the member gave Mr Rahman no reason to believe she was unable or unwilling to consider his case on its merits and, for that purpose, to pay careful attention to anything he wished to put before her.  I see no reason to ascribe that position to her.

   Findings on material questions of fair

10. The final matter relates to the Tribunal’s failure to have regard to, or make findings concerning, three documents that Mr Rahman presented to the Tribunal in which statements are made about events in Bangladesh.

11. All three documents are, apparently, in Bengali but English translations were provided.  Two of the documents are newspaper cuttings.  One seems to be taken from “The Daily ITTEFAQ” of Thursday, August 13, 1992.  It refers to a half-day strike on the previous day at Kapasia.  The strike was said to have been instigated by the Chatra League “in protest against the attack on some Chatra League workers including Sadiqur Rahman on 10^th August”.  Assuming that this is a reference to the applicant, it is not inconsistent with the Tribunal’s acceptance of his claim to have been active in the Chatra League in 1992.

12. The other newspaper clipping is from “Banglar Bani” and is dated Saturday, 20 February 1993.  It refers to the death by stabbing of a Chatra League activist, Zahidul Haque Khan Biplab.  The cutting suggests serious conflict at this time between members of the Chatra League and members of Chatra Dal.  However, the existence of such conflict was accepted by the Tribunal .  Mr Rahman is not named in the article.  Nothing in the article is inconsistent with the Tribunal’s finding that Mr Rahman was inactive in student politics after 1992.

13. The provenance of what I will call “the third document” is obscure.  The original is typed, apparently in Bengali, on plain paper.  The translation reveals it is headed “Protest against the accusation of murder of Munir”  It deals with the death of a Chatra Dal leader, Iqbal Hossain Munir, and states the “sin of this killing has been placed on us, the innocent workers of the Chatra League which is completely false and fabricated”.  The document goes on to refer to an internal conflict of power within the Kapasia branch of Chatra Dal “since the joining of expelled Chatra League leaders Mohammed(sic) Sadiqur Rahman, Soleman, and Jamal to Chatra Dal in December 1993”.  The document asks “[h]ow did Mohammed Sadiqur Rahman and Jamal get the opportunity to exercise student politics while they are employed in a job”.

14. It seems the Tribunal member was sceptical about the authenticity of this document. If it was mentioned at all in the portion of her reasons headed “Reasons for Decision”, this was only in a comment dealing with a number of documents.  She said:

    “In reaching my decision, I have considered the letter regarding Mr Rahman’s dismissal, the letters from the Chatra League dismissing and threatening him and the statements which he and his father allegedly made to the police.  However, in light of my conclusions regarding Mr Rahman’s credibility as set out above and evidence regarding the ease with which fraudulent documents can be obtained in Bangladesh, I find these documents to be self-serving and have given them no weight (on fraudulent documents see DFAT cable DA1412 dated 20 November 1996).”

15. Having regard to the nature of the third document and the lack of any explanation as to how it came into, and remained in, Mr Rahman’s possession, it is understandable the Tribunal was unwilling to give weight to it.  A disturbing aspect of the hearing is that the Tribunal member did not ask Mr Rahman about the document, or the other documents referred to in the passage I have quoted, or put questions or comments that would alert him to the fact that she entertained doubts about their authenticity.  However, it is not open to the Court to set aside a Tribunal decision on the ground that a breach of the rules of natural justice occurred in connection with the decision -  see Migration Act, s476(2)(a) – or that the Tribunal failed to “act according to substantial justice and the merits of the case”: see s420(2) and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at paras [48] to [51], [106] to [109], [158] and [176] to [179].

16. I have considered whether the Tribunal’s decision is vulnerable to challenge on the basis that it failed to set out findings in respect of the third document. Section 430(1) provides:

    “430.(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

    (a)        sets out the decision of the Tribunal  on the review; and

    (b)        sets out the reasons for the decision; and

    (c)        sets out the findings on any material questions of fact; and

    (d)refers to the evidence or any other material on which the findings of fact were based.”

17. Failure to comply with the requirements of s430(1) would be a failure to observe one of the procedures required by the Act; making the decision reviewable under s476(1)(a).

18. It can be argued the Tribunal indicated a view about the third document in the passage from its reasons set out above in para 15.  Perhaps so, but a general statement about “the ease with which fraudulent documents can be obtained in Bangladesh” gives little insight as to the Tribunal’s view about this particular document which, on its face, supported Mr Rahman’s claim that he remained politically active in 1995.

19. However, it is important to note that the requirement of s430(1)(c) extends only to findings on material questions of fact.  The Tribunal is not bound to publish findings on every issue of fact that arises at a hearing.  Material questions of fact are those questions on which the decision turns:  see Muralidharan v Minister for Immigration and Multicultural Affairs (1996) 62 FCR 402 at 413-414.

20. In the present case, I do not think it can fairly be said that the authenticity of the third document was an issue upon which the Tribunal’s decision turned. Authenticity was an issue that arose only in the context of the Tribunal’s assessment of the applicant’s credibility. The authenticity issue had only background relevance to a material issue: Mr Rahman’s political activities after 1992. Although it would have been preferable for the Tribunal specifically to address the third document in its reasons, as in the oral hearing with Mr Rahman, I do not think its failure to do so constituted a breach of s430(1)(c) of the Migration Act.

21. The applicant has not succeeded in establishing any ground of review available under s476 of the Act. The application must be dismissed with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            24 June 1999  

Counsel for the Applicant:	P Gwozdecky instructed by S Haque (Migration Agent)
Solicitor for the Respondent:	A Markus of Australian Government Solicitor
Date of Hearing:	11 June 1999