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MIGRATION - appeal from decision of primary judge affirming decision of Refugee Review Tribunal - where application disclosed no grounds for review - where applicant failed to attend Full Court hearing

Rahman v Minister for Immigration & Multicultural Affairs [2002] FCAFC 25 (

Rahman v Minister for Immigration & Multicultural Affairs [2002] FCAFC 25 (13 February 2002); [2002] FCA 144
Last Updated: 6 May 2002


Rahman v Minister for Immigration & Multicultural Affairs [2002] FCAFC 25
Rahman v Minister for Immigration & Multicultural Affairs [2002] FCA 144



NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.


FEDERAL COURT OF AUSTRALIA
Rahman v Minister for Immigration & Multicultural Affairs [2002] FCA 144


MIGRATION - appeal from decision of primary judge affirming decision of Refugee Review Tribunal - where application disclosed no grounds for review - where applicant failed to attend Full Court hearing

Federal Court Rules O 52 r 38A(1)(d), O 52 r 38A(2)

MAHMUDUR RAHMAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1251 of 2001

BRANSON, WEINBERG & DOWSETT JJ

13 FEBRUARY 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA


NEW SOUTH WALES DISTRICT REGISTRY
N1251 OF 2001



BETWEEN:
MAHMUDUR RAHMAN

APPELLANT

AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:
BRANSON, WEINBERG & DOWSETT JJ

DATE OF ORDER:
13 FEBRUARY 2002

WHERE MADE:
SYDNEY



THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA


NEW SOUTH WALES DISTRICT REGISTRY
N1251 OF 2001



BETWEEN:
MAHMUDUR RAHMAN

APPELLANT

AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT



JUDGES:
BRANSON, WEINBERG & DOWSETT JJ

DATE:
13 FEBRUARY 2002

PLACE:
SYDNEY




REASONS FOR JUDGMENT
BRANSON J

1 This is an appeal from a decision of a judge of the Court whereby an application for an order of review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 10 May 2001 was dismissed. The application for an order of review disclosed no grounds for review. The words "details will be sent later" appeared in the space provided on the form for grounds of review. As at the time that the matter came before the primary judge no grounds of review had been provided to the Court by the then applicant.

2 The then applicant had no legal representation when his application came on for hearing before Conti J. His Honour, after reviewing the case of the appellant before the Tribunal and the determination of the Tribunal observed:

"Having regard to the Application for Review before the Court, and what the Applicant has submitted before me today, there is nothing to suggest that the RRT committed any error of law in deciding the Applicant's case adversely to him. The fact of the matter is that the Applicant did not present the RRT with any evidence that supported his claims to the effect that he was active in expressing any particular political or religious belief, and following on from this, that any such expression of view had led to his being persecuted by fundamentalist Islams at Dakar University. Furthermore the RRT rejected the credit worthiness of the Applicant, which is of course a matter which strongly affects any weight which can be given to the Applicant's case. I might add for completeness that it is for the RRT, and not for the Court, to assess the credibility of an Applicant's claim: see Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J. Since the Applicant's claims contained inconsistencies and inherent implausibilities, the RRT was plainly entitled to reject his application: see for instance Vichlenkova v Minister for Immigration and Multicultural Affairs [1999] FCA 1338 at [3]. The RRT's decision to affirm the Delegates refusal to grant the Applicant a protection visa was largely based on its conclusions as to the Applicant's lack of credibility in light of the evidence that was presented before it. Such findings in no way represent an error of law: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547."

3 The appellant promptly filed a notice of appeal against the decision of Conti J, but again, instead of providing grounds of appeal, wrote on the notice of appeal form, in the place reserved for grounds, the words "details will be sent in a later day". No grounds of appeal have been provided to the Court.

4 Yesterday, as I am advised, a telephone call was received in the Registry of the Court whereby a person claiming to be a relative of the appellant advised the Court that the appellant was suffering from a tumour and was in hospital. Today, at approximately 1:45pm, a facsimile transmission from a migration agent was received by the Court addressed to the Listing Manager of the Court. The facsimile transmission included a letter which reads:

"We act on behalf of Mr Mahmudur Rahman and informing [sic] you that our client, Mr Mahmudur Rahman, would not be able to attend the court due to his serious illness.
We therefore request and applying [sic] to the court for extension of time and set a new date for said hearing.

We attached [sic] a copy of the authority to Act as Agent and a certificate from Dr Sam Salem to verify [sic] of his illness. Please do not hesitate to contact me if you require further information."


5 The facsimile transmission included an appointment of a person to act as agent apparently signed by the appellant, and a copy medical certificate apparently signed by Dr Sam Salaam. The medical certificate, which bears today's date, describes the medical condition of the appellant - as best can be read - as "acute diarrhoea" and certifies that the appellant is not fit for work from 13 February 2002 to 13 February 2002 inclusive.

6 There might be thought to be some inconsistency between the telephone information provided to the Court yesterday as to the health of the appellant and the information provided in the medical certificate today. It is also of concern that no grounds of appeal have been provided by the appellant to this Court. This concern is enhanced by the circumstance that he appeared before the primary judge with no grounds of application having been provided on his application for review. There is a basis at least for suspicion that the appellant is not genuinely seeking to exercise his right of appellate review of the decision of the primary judge.

7 In all of the circumstances the Court decided to accede to the submission made on behalf of the respondent that the Court should proceed under Order 52, rule 38A(1)(d) of the Federal Court Rules. That is, to proceed with the hearing generally today in the absence of the appellant. The Court made that decision mindful of the provisions of Order 52, rule 38A(2) which provides that, if the hearing proceeds in the absence of the party and an order is made, the Court may on motion by that party set aside or vary the order, or give directions for the further conduct of the appeal.

8 I am confident that if the appellant is able to establish by proper evidence that he was too ill to attend the Court today, and that there is some merit in his appeal, a motion to set aside the orders made today would be likely to succeed.

9 I turn to the appeal itself. The applicant is a national of Bangladesh who arrived in Australia on 20 January 2000 on a student visa, valid until 25 December of that year. He voluntarily departed Australia for Bangladesh on 26 June 2000 returning on 14 September 2000. He was detained by the Department of Immigration and Multicultural Affairs for failing to comply with the conditions of his visa. On 23 February 2001 he applied for a protection visa. He made a written statement in support of his application. In that statement, amongst other things, he said, at a date which cannot now be read:

"[indecipherable] ... I entered Dharka University to study accounting. After six months I tried to become involved with political groups but I found all of them were connected with fundamentalist Islam.
The local religious leaders considered that I was not a true Muslim because I questioned the philosophy of Islam and stated that religion is personal and cannot be implemented by force. I espoused this view to my friends and those who would listen to me at the University.

In 1997 I completed my accountancy degree. By this time I had become more and more concerned with the practices of fundamentalist Islam in Bangladesh, especially because of the way that women were treated. I publicly expressed my discontent especially at university and I became known within our community as a `dissident' and anti-Islam.

Local Muslims targeted me by knocking loudly near my bedroom to wake me for morning prayer almost every day from 1988 until I left Bangladesh in 2000. Usually religious leaders knocked on people's door only during Ramadhan.

If I did not attend the mosque for morning prayer I would be verbally abused and threatened me with punishment for not attending the mosque.

During July 1999 on a Muslim holy-day, Friday, I was abducted by religious authorities. They took me to the mosque and beat me. Then they left [me] on the street in a semi-conscious state. Later I was treated by an unqualified local doctor. I still have scars on my head from this attack.

I was criticised and ostracised by my community. Although I lived at my parent's house I was ill-treated and fearful of going outside, which I rarely did.

I did not seek protection from the police because I knew that no-one in my position has received help from the police. This is because the police in my area are mostly Muslim and because the police are easily bribed.

Jarmate Islami and Chatra Shibir are two political parties who are aware of my political-religious views and they have planned to kill me. I was told this by a trusted friend, Borhan Uddin, a few days before I left to come to Australia in January 2000.

I applied to come to Australia as a student so that I could find protection.

I asked my parents to give me money so that I could leave Bangladesh and they agreed to do this.

I entered Australia on 21 January 2000 with a student visa and began studying at University of Canberra in ACT.

In April 2000 I suffered from severe food poisoning which debilitated me for several months. I attended North Shore Hospital in Sydney. A doctor at this hospital suggested that I return to Bangladesh to fully recover because I did not have anyone in Australia who could look after me and I could not stay any longer at the hospital.

I went to Bangladesh in June 2000. While I was in Bangladesh I stayed in hiding in my family's home with my family. I stayed in the house during my stay because I was ill and scared of going out in case the Islamic religious people learned I was where I was."


10 The appellant claimed that while he was in Bangladesh he had heard from friends that people from political parties wanted to kill him and he also claimed that he subsequently has heard from his parents by telephone that religious fundamentalists were trying to locate him so that they could kill him. The Tribunal in response to the claims of the now appellant made the following findings:

"The Tribunal accepts that the Applicant is a Bangladeshi national and that, as he himself claims, his study career has been his overriding focus. The Tribunal accepts that the Applicant simply erred in undertaking work earlier this year contrary to the rules governing the process of examining his claim to continue in Australia as a student. The Tribunal does not accept, on the vague and unsatisfactory evidence cited above, that the Applicant has ever cultivated a serious or reasoned preoccupation with the place of religious teaching in Bangladeshi society, or that his thoughts on the subject have ever been widely heard except among friends. The Tribunal finds that he preferred commerce to serious study on what he claims is an issue of serious principle to him. The Tribunal notes that he never wrote that book and, on what is presently indicated, concludes that he probably never will.
The Tribunal finds that the Applicant has behaved in a manner that is highly inconsistent with his claimed fear of persecution, in choosing to come to Australia as a student, in pursuing his study agenda here, in his efforts to have his study visa renewed and in his repeated failure, meanwhile, either to seek a quicker way out of Bangladesh or to apply for protection here, in spite of what he claimed were renewed threats against him.

The Tribunal does not accept that the Australian doctor's advice dictated that the Applicant seek home rest specifically in Bangladesh where he supposedly faced murder threats. His repatriation to Bangladesh was thus entirely voluntary. This too is strong evidence of a lack of the fear he claims to have had for his life there. It is also found by the Tribunal to be entirely satisfactory evidence of his ability to return to Bangladesh without facing serious harm.

The Applicant's evidence in the present matter is tarnished by revision and subsequent denial. Much of it is internally inconsistent. The Tribunal concludes on the wealth of independent evidence before it that the Applicant was simply wrong about the ubiquitous fundamentalist bias of student political groups at Dhaka University.

The Applicant is an entirely unreliable witness in the present matter. The Tribunal concludes that his application for protection visa was a result of afterthought after his student career in Australia came unstuck as a result of his short-sightedness in undertaking illegal work.

The Tribunal is not satisfied that the Applicant faces a real chance of Convention-related prosecution in Bangladesh. He is not a refugee."

11 Having considered the claims made by the appellant, the reasons for decision of the Tribunal and the judgment of Conti J, I can identify no ground upon which an appeal against the decision of Conti J could be allowed. In my view the approach adopted by his Honour is in no way tainted by error. I would dismiss the appeal with costs.

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: 6 March 2002

IN THE FEDERAL COURT OF AUSTRALIA


NEW SOUTH WALES DISTRICT REGISTRY
N1251 OF 2001



BETWEEN:
MAHMUDUR RAHMAN

APPELLANT

AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT



JUDGES:
BRANSON, WEINBERG & DOWSETT JJ

DATE:
13 FEBRUARY 2002

PLACE:
SYDNEY




REASONS FOR JUDGMENT

WEINBERG J

12 I agree for the reasons given by the learned presiding judge that the appeal should be dismissed with costs. I also agree with Her Honour's observations regarding the operation of Order 52, rule 38A(2) and the requirements which the appellant must meet if he is to move to set aside or vary these orders.

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



Associate:

Dated: 6 March 2002

IN THE FEDERAL COURT OF AUSTRALIA


NEW SOUTH WALES DISTRICT REGISTRY
N1251 OF 2001



BETWEEN:
MAHMUDUR RAHMAN

APPELLANT

AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT



JUDGES:
BRANSON, WEINBERG & DOWSETT JJ

DATE:
13 FEBRUARY 2002

PLACE:
SYDNEY




REASONS FOR JUDGMENT

DOWSETT J

13 I also agree.

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



Associate:

Dated: 6 March 2002

No appearance for the Appellant





Counsel for the Respondent:
Mr J D Smith




Solicitor for the Respondent:
Clayton Utz




Date of Hearing:
13 February 2002




Date of Judgment:
13 February 2002

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