Rashid v MIMA

[2000] FCA 966

FEDERAL COURT OF AUSTRALIA

Rashid v MIMA [2000] FCA 966

MIGRATION – Migration Act 1958 (Cth) s 476 – actual bias – announcing decision at the conclusion of the hearing does not indicate actual bias

Migration Act 1958 (Cth) s 476

HARUNUR RASHID v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1433 of 1999

BRANSON J
SYDNEY
10 JULY 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1433 of 1999

BETWEEN:	HARUNUR RASHID Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	BRANSON J
DATE OF ORDER:	10 JULY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The decision of the Tribunal be affirmed.

2.The applicant pay the costs of the respondent, including the costs of the respondent thrown away by reason of the adjournment allowed on 4 July 2000.

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 1433 of 1999

BETWEEN:	HARUNUR RASHID Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	BRANSON J
DATE:	10 JULY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. Mr Rashid filed on 13 December 1999 his own application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the respondent that Mr Rashid was not entitled to a protection visa.  He attended a directions hearing before a Registrar of this Court with the assistance of an interpreter on 27 January 2000.  On that day he was given advice concerning the desirability of obtaining legal advice.  He was also given a list of people or organisations who might provide him with legal advice either for free or for a limited fee.  By a letter dated 31 January 2000 Mr Rashid was advised that his application would be heard by the Court on 4 July 2000.  Notwithstanding the length of notice of the hearing given to Mr Rashid, when the matter was called on 4 July he sought an adjournment.

2. The adjournment was sought to allow him to obtain legal representation.  Mr Rashid gave the name of the barrister who he believed would act for him if the hearing were adjourned.  Over the objection of the Minister, but after consultation with the barrister named by Mr Rashid, the matter was re-listed for hearing today.  Again, Mr Rashid has appeared without legal representation.  It has not been suggested that this is because the hearing date has proved unsuitable to his barrister.  I have not considered it appropriate in the circumstances to further adjourn the hearing.

3. The application filed in this matter was apparently prepared by Mr Rashid himself, or at least without legal advice. The application does not comply with the requirements of order 54B of the Federal Court Rules. It makes no explicit reference to s 476 of the Migration Act 1958 (Cth). It seems apparent from what Mr Rashid has said today that he principally seeks merits review of the decision of the Tribunal. As I have sought to explain to Mr Rashid, this Court is not entitled to consider afresh whether he is entitled to a protection visa. That is a matter for the determination of the Refugee Review Tribunal.

4. Mr Rashid has further contended, as I understand him, that the decision of the Tribunal was induced or affected by bias.  Having heard what Mr Rashid has said on this topic, it appears likely that he misunderstood, perhaps because of problems of interpretation, certain comments of the Tribunal.  The transcript of the Tribunal hearing has been placed in evidence.  I am satisfied that the Tribunal member did not make the remarks which Mr Rashid has sought to attribute to him.  I will return in a moment to Mr Rashid’s concern that the Tribunal’s decision was given immediately after the close of the hearing.

5. Mr Rashid’s written application also asserts that the decision of the Tribunal involved an error of law.  Mr Rashid was not able to identify any such error of law but I have paid attention to the reasons of the Tribunal myself to see if any error of law is disclosed.

6. Mr Rashid claimed to have a well founded fear of being persecuted if he returns to Bangladesh, his country of nationality, for reason of his political opinions.  Mr Rashid had earlier given both written and oral evidence that he joined the Freedom Party on 1 May 1996 and later became a leader of the party.  In his written statement which accompanied his application for a visa he said the following:

   “An election date was scheduled for 12 June under caretaker government.  In 6 June, while I was coming from Agla Bazzer towards to my home, on the way when I was passing the Awami league election camp at 7 o’clock at night, a few Awami league terror encircled me and took me at A.K.J friends Club.  They were forcing me to do the election in favor of Awami league.  But I refused it directly.  They were become angrier by my reply.  Suddenly a person named as Arjo, a member of local Jubo league shoots me by the short gun.  The bullet wounded my left eye.  After that occurrence they left the club and local people sent me to the Nawabgonj Health Complex.  I was examined by Dr Sheik Golam Murtaza and declared my left eye unworkable.  By this sad news all of my family members were crying emotionally.  From that incident I became insecure in my own land.

   The parliamentary election was held on 12 June 1996.  Awami league won the majority seats in the parliament and formed the government of Bangladesh.  From that day I was hiding here and there.  Awami league workers were threatening my family members and asked, ‘where is Harunur Rashid today’?  With an angry voice.  My family was more afraid.  They were also pushing me to leave the Country for my safe and secure life.

   At present Awami league is on conspiracy to destroy the Freedom party.  On the name of Mujib murder they have arrested many of our leaders and workers.  They were not stopping by arrest but they torturing them in police custody.  I was a leading activist of Freedom party that’s why Awami workers attacked my house many times.  I was out for the party’s work.  That’s why they could not find me.  Instead of me they have tortured my family members.

   They have lodged a few numbers of false cases against me.  Police forces were trying to arrest me.  But it was very difficult to hiding within the country as a know person like me.  If Awami league worker able to know where abuts they would kill me at any time with at any cost.

   …

   No one there, who can save my life from the Awami league thugs and their administration.  As a member of Freedom party, every day is nightmare for me in Bangladesh.  Awami league is considering our few leaders in involvement in Mujib’s murder.  We are the victims of their first revenge.  Besides, a large number of false cases have implicated against me.  When I have found there is no other alternative to stay in Bangladesh.  Then I have managed a visa to come to Australia.”

   The Tribunal found that Mr Rashid was “a highly unimpressive witness”.  It said:

   “He did not satisfy the Tribunal that he knew anything about the FP from the inside.  His whole account of time lines was, as demonstrated, very unreliable, with the result that none of the claimed effects in his account can be satisfactorily linked to the claimed causes.  The facts in the Applicant’s case shifted awkwardly and unsuccessfully to meet the adverse positions put to him by the Tribunal.

   The Tribunal accepts that the Applicant sustained an air gun pellet to the eye socket, as shown in an x-ray attached to his file.  However, the Tribunal is satisfied that this happened in June 1997, not in June 1996, and that it did not happen in the circumstances claimed, but in some other circumstances, probably accidental, and not, serendipitously, outside an Awami League holiday camp located in or near the Applicant’s small village.

   The Tribunal considers the posters presented by the Applicant to be fakes; the apparent presence of the glass eye in the photographs supports this conclusion, but the Tribunal arrives at it largely on the grounds that the rest of the Applicant’s evidence seriously undermined his assertions about FP membership and candidature and even about serious involvement with Jatiyo Party.

   The Applicant has not satisfied the Tribunal that he would be unable to reside elsewhere in Bangladesh, outside of his small village, if he needed to do so for any reason.

   The Tribunal is not satisfied on the evidence before it that the Applicant is a credible witness.  It is not satisfied that he faces a real chance of Convention-related persecution in Bangladesh.  He is not a refugee.”

7. The transcript shows that the Tribunal member spoke robustly to Mr Rashid during the hearing about inconsistencies in his evidence.  However, I see no reason to conclude that the decision of the Tribunal was induced or affected by actual bias.  There were serious problems with the evidence which Mr Rashid gave to the Tribunal.  In particular there were problems with the date that he gave as the date when he joined the Freedom Party and his evidence as to the length of his membership of the Party.  It was appropriate for these problems to be drawn to Mr Rashid’s attention to allow him, if possible, to explain them.  Having read the transcript of the hearing before the Tribunal, I am satisfied that nothing in it demonstrates that the Tribunal member brought a closed mind to the matter or was otherwise actually biased against Mr Rashid.

8. In particular, the fact that the Tribunal announced its decision at the conclusion of the hearing after only a short adjournment does not indicate actual bias.  The credibility of Mr Rashid was an important matter so far as his claim to be a refugee was concerned.  The Tribunal explored aspects of Mr Rashid’s credibility during the hearing.  As I have said, the Tribunal member did this in robust language but this does not of itself establish actual bias.  The Tribunal found in the words of the member “incredible inconsistencies” in Mr Rashid’s story, such that under questioning the story was “falling apart”.  It was not inappropriate for the Tribunal member to judge, as he apparently did, that he would not gain a better view of the sustainability of Mr Rashid’s story by delaying delivery of the Tribunal’s decision.

9. Mr Rashid was not able to assist the Court by identifying the error or errors of law which he asserts were made by the Tribunal.  The written reasons of the Tribunal contain an acceptable statement of the applicable law.  Mr Rashid’s claim to be entitled to a protection visa was firmly based on his evidence that he was a local leader of the Freedom Party.  However, the Tribunal found that Mr Rashid’s evidence “seriously undermined his assertions about FP membership and candidature”.  The injury to his eye, which Mr Rashid asserted was a result of his membership of the Freedom Party, the Tribunal member found was probably suffered accidentally.

10. In the circumstances it was open to the Tribunal, consistently with a proper understanding of the applicable law, not to have the satisfaction necessary for Mr Rashid to be entitled to a protection visa. I am not satisfied that the decision of the Tribunal involved an error of law involving an incorrect interpretation of the applicable law or incorrect application of the law to the facts as found by the Tribunal, nor am I satisfied, having given consideration to the contents of the green book, the transcript of the hearing before the Tribunal, and the written reasons of the Tribunal, that any of the grounds of review specified in s 476 of the Act can be shown to exist in this case.

11. The decision of the Tribunal must be affirmed.  I so order.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:  19 July 2000

Mr Rashid appeared for himself
Counsel for the Respondent:	Ms Hartstein
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 July 2000
Date of Judgment:	10 July 2000