Rashid v Minister for Immigration and Multicultural Affairs

[2001] FCA 1688

FEDERAL COURT OF AUSTRALIA

Rashid v Minister for Immigration & Multicultural Affairs [2001] FCA 1688

HARUNOR RASHID v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

No. W 291 of 2001

SPENDER, MERKEL, ALLSOP JJ
PERTH
29 NOVEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 291 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	HARUNOR RASHID APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SPENDER, MERKEL, ALLSOP JJ
DATE OF ORDER:	29 NOVEMBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs, to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 291 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	HARUNOR RASHID APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SPENDER, MERKEL, ALLSOP JJ
DATE:	29 NOVEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

SPENDER J:

1. This is an appeal from the dismissal by a single judge of this court, Heerey J, of an application for review under Pt 8 of the Migration Act 1958 (Cth) (the Act) of a decision of the Refugee Review Tribunal (the Tribunal) affirming the decision of a delegate of the Minister made on 5 April 2000 refusing the grant of a protection visa to the applicant.

2. The applicant is a citizen of Bangladesh and according to his application for a protection visa, was born on 5 December 1975.  He is a single male.  His age is mis-stated in the reasons for judgment of the primary judge given on 27 June 2001.

3. He arrived in Australia on 11 January 2000 and lodged an application for a protection visa on 15 January 2000.  The Convention ground relied on was that of political opinion: namely, opposition to the Communist Party in Bangladesh.  The applicant had arrived in Australia on a previous occasion in September 1998.  On that occasion he was interviewed, did not make a claim that he was persecuted and was subsequently deported to Bangladesh.

4. The Tribunal hearing in this matter was conducted on 15 May 2000.  The appellant gave oral evidence to the Tribunal, and the decision affirming the decision of the delegate was given on 27 June 2000.  The oral submissions of the appellant to this court consisted of a repetition of the basis of his claim that he was the victim of political persecution in Bangladesh.  However, the Tribunal rejected the appellant's claim to have a well-founded fear of persecution in relation to the Communist group in his local area.

5. The Tribunal did so because it rejected the entire claim in this regard as being fabricated for the sole purpose of providing a basis for a protection visa.  Also, however, the Tribunal said that even if it did accept the appellant's account, it found that he could reasonably find protection from the claimed harm by relocating to Dhaka. 

6. The Tribunal gave alternative reasons for that conclusion.  First, it found that given the population density of Bangladesh and the distance that Dhaka was from his local area, the chance of the local Communists locating the appellant in Dhaka were remote and insubstantial.  Secondly, if the appellant relocated to Dhaka he could avail himself of the same protection which was available to all citizens in Bangladesh, since the harm he fears is not at the hands of the government, tolerated by the government or that the government is unable to protect him. 

7. Mr Rashid appeared for himself before this court.  He argued at length about the findings by the Tribunal and maintained his claim that those findings were wrong.  He did not attempt to indicate why the finding of the Tribunal rejecting the genuineness of his claims involved legal error; nor why the decision of the primary judge involved legal error.  That is understandable.  His submission sought simply to challenge those findings maintaining that they were wrong. 

8. The appellant apparently does not understand the function of this Court.  This Court has no jurisdiction to review findings by the Tribunal on the merits.  It is not for us to say whether the Tribunal was right or wrong.  I have carefully examined the reasons of the Tribunal and the reasons for judgment of the primary judge.  No reviewable error infects those reasons, with the consequence that in my opinion the appeal ought to be dismissed with costs.

   MERKEL J:  

9. I agree.

   ALLSOP J:  

10. I agree also.

    SPENDER J:  

11. The order of the Court is that the appeal is dismissed.  The appellant is to pay the respondent's costs of the appeal to be taxed if not agreed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Merkel and Allsop.

Associate:

Dated:             29 November 2001

The Appellant appeared on his own behalf
Counsel for the Respondent:	Mr A.A. Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 November 2001
Date of Judgment:	29 November 2001