Rashed v Minister for Immigration and Multicultural Affairs

[2000] FCA 1475

FEDERAL COURT OF AUSTRALIA

Rashed v Minister for Immigration & Multicultural Affairs [2000] FCA 1475

CITIZENSHIP & MIGRATION – protection visa – application for order of review of decision of Refugee Review Tribunal (“RRT”) affirming decision of delegate of Minister refusing grant – no question of principle

MOHAMMED ALI RASHED V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 729 OF 2000

EMMETT J
9 OCTOBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 729 OF 2000

BETWEEN:	MOHAMMED ALI RASHED APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	9 OCTOBER 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 729 OF 2000

BETWEEN:	MOHAMMED ALI RASHED APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	9 OCTOBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh.  He arrived in Australia on 2 September 1999.  On 1 October 1999 he lodged an application for a protection (class AZ) visa.  On 17 November 1999 a delegate of the Minister refused to grant a protection visa and on 1 December 1999 the applicant applied for a review of that decision by the Refugee Review Tribunal (“the Tribunal”).  On 19 May 2000 the Tribunal affirmed the decision not to grant a protection visa.  The applicant was notified of the decision on 13 June 2000 and on 11 July the applicant lodged an application to this Court for an order of review of the Tribunal’s decision. 

2. The grounds stated in the application to this Court are as follows:

   “The respondent exercised power under section 431 of the Migration Act 1958 and 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.”

   The language of the second part of those grounds is clearly reminiscent of section 476(1)(e) of the Migration Act 1958 (Cth) (“the Migration Act”).  In the prayer for relief in the application the applicant seeks that the Court:

   “..sympathetically assess my application for review under section 476(1)(e) of the Migration Act.”

3. However, no particulars of any error are disclosed in the application.  Pursuant to directions that I gave when the matter first came before me, written submissions were prepared and filed by the applicant.  The only reference to a question of law is to be found in the following passage of those written submissions:

   “I would also like to mention that the concept of persecution was discussed by the High Court in the leading case of Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 369, where it was stated that the concept of persecution involves selective or discriminatory treatment, and that the deprivation of life or liberty, the infliction of torture or the denial of fundamental human rights for a Convention Region [I assume it is meant to be a ‘Convention Reason’] may constitute persecution. 

   Professor J. C. Hathaway's book, ‘The Law of Refugee Status’ defines persecution as ‘the sustained or systematic violation of basis [sic] human rights demonstrated by a failure of State protection’ (pp 1-4-105).  Accordingly, I would like to draw the Honourable Federal Court’s attention to the fact that the Case Officer from the Department of Immigration and Multicultural Affairs, as well as the Refugee Review Tribunal, has failed to assess the extent of my fears of persecution in Bangladesh, where I am certainly facing a vigorous punishment upon return.”

4. The applicant’s written submissions also assert that the Tribunal failed to place any weight on the applicant’s submission to it and the documentation submitted in relation to his fears of persecution.  He said that he had presented an enormous amount of evidence to the Department, as well as the Tribunal, which had been ignored at the time of assessment.  That is said to be the reason why the decision of the Tribunal involves an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found.

5. The Tribunal’s reasons record that the applicant gave oral evidence to the Tribunal on 11 May 2000.  He claimed to have been a prominent political activist for the Freedom Party, having joined that party in 1993.  He claimed that he had become general secretary of a Freedom Party branch near Dhaka at a party convention in 1995 and had been responsible for organising all the party structure as well as meetings and demonstrations.  He also claimed to have had numerous clashes with the Awami League who, he said, had tried to kill him several times and had attacked his house on many occasions.  He said that the Awami League had lodged a false charge against him after it had won the elections and had ordered police to arrest Freedom Party members everywhere. 

6. The Tribunal recorded that the applicant appeared partly conversant with major political events in Bangladesh but that he tended mainly to speak in constantly reiterated generalities regarding Awami League corruption and favouritism when asked to display his knowledge of politics.  The Tribunal recorded several matters in which a person claiming the interest in politics that the applicant claimed was peculiarly mistaken.  There were three matters. 

7. First, he said that the 1996 election in which the Awami League had attained power had been held in March or April 1996.  In fact, it had been held in June.  He also claimed that the Freedom Party did not contest a single seat in the 1996 election whereas in fact the Freedom Party contested about 10 per cent of the seats at that election.  Finally, he claimed that the Freedom Party leader, Colonel Farouk Rahman, had been arrested in 1977, had been coerced to go to Libya in an ambassadorial role, returned to Bangladesh in 1983, had been arrested and gaoled for two years and, after his release, had formed the Freedom Party in 1987.  In fact, Colonel Farouk Rahman returned to Bangladesh in 1985 and was not gaoled until after the Awami League government passed the Indemnity Repeal Act in November 1996.

8. Principally because of those matters, the Tribunal considered that the applicant’s evidence lacked credibility.  The Tribunal found that independent evidence did not support that applicant’s claim that he and all Freedom Party members were under arrest or face arrest by the current government of Bangladesh.  The Tribunal found that the independent evidence supported the conclusion that only selected leaders of the Freedom Party, up to about 25 in all, many of whom were out of the country and who were believed directly responsible for the assassination of Sheik Mujib and his family, had arrest warrants issued for them.

9. The Tribunal considered that the evidence before it did not support the applicant’s associated claim that the government intended to prosecute all those who had been acquainted with Colonel Farouk.  The Tribunal found a lack of credibility in the applicant’s claims of having been active in the Freedom Party at all.  The Tribunal was not satisfied that the applicant worked for the Freedom Party.  Given that conclusion, the Tribunal was not satisfied that the applicant experienced any problems from Awami League activists or the law and order apparatus over his claimed Freedom Party work.  Further, the Tribunal found that the applicant had a tendency to alter his evidence when challenged and that that added to the Tribunal’s view that his claims lacked credibility. 

10. The Tribunal in its reasons set out the terms of article 1A(2) of the Refugees Convention and summarised the effect of the High Court’s decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. I do not perceive any error in that summary. I do not discern any error of law in the reasons that have been published by the Tribunal. I consider that the decision of the Tribunal was based entirely on its assessment of the credibility of the applicant. It follows, in my opinion, that the applicant has not demonstrated any ground within section 476(1) of the Migration Act upon which this Court could intervene in the decision of the Tribunal.  In my opinion, the application should be dismissed with costs.

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

Associate:

Dated:             23 October 2000

The applicant appeared in person.
Counsel for the Respondent:	Mr D Godwin
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	9 October 2000
Date of Judgment:	9 October 2000