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1 This is an appeal from the decision of a primary judge (French J) given on 23 July 2001. The appeal is brought against the dismissal of an application by the appellant in which he sought judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 12 January 2001. In its decision the Tribunal affirmed a decision of a delegate of the respondent not to grant to the appellant a protection visa. He had applied for that visa under the provisions of the Migration Act 1958 (Cth) ("the Act").

2 The principal criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Act. Those references are defined by s 5 of the Act to refer to "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967".

Rahman v Minister for Immigration & Multicultural Affairs [2002] FCAFC 88 (

Rahman v Minister for Immigration & Multicultural Affairs [2002] FCAFC 88 (4 April 2002); [2002] FCA 372
Last Updated: 9 May 2002


Rahman v Minister for Immigration & Multicultural Affairs [2002] FCAFC 88
Rahman v Minister for Immigration & Multicultural Affairs [2002] FCA 372



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 372


Federal Court of Australia Act 1976 (Cth) s 24

Migration Act 1958 (Cth) ss 5, 36(2), 48B, 417, 476, 476(1)

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 referred to

ATAUR RAHMAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W358 of 2001

LEE, COOPER and RD NICHOLSON JJ

4 APRIL 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA


WESTERN AUSTRALIA DISTRICT REGISTRY
W358 of 2001




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
ATAUR RAHMAN

APPELLANT

AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:
LEE, COOPER and RD NICHOLSON JJ

DATE OF ORDER:
4 APRIL 2002

WHERE MADE:
PERTH



THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

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
W358 of 2001




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
ATAUR RAHMAN

APPELLANT

AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT



JUDGE:
LEE, COOPER and RD NICHOLSON JJ

DATE:
4 APRIL 2002

PLACE:
PERTH




REASONS FOR JUDGMENT
THE COURT:

1 This is an appeal from the decision of a primary judge (French J) given on 23 July 2001. The appeal is brought against the dismissal of an application by the appellant in which he sought judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 12 January 2001. In its decision the Tribunal affirmed a decision of a delegate of the respondent not to grant to the appellant a protection visa. He had applied for that visa under the provisions of the Migration Act 1958 (Cth) ("the Act").

2 The principal criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Act. Those references are defined by s 5 of the Act to refer to "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967".

3 Sub-Article 1(A) of the Convention provides the following definition of "refugee&quo;
t;:

"For the purposes of the present Convention, the term "refugee" shall apply to any person who:...(2)...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country:..."
4 The appellant is a citizen of Bangladesh who arrived in Australia on 10 July 2000. He claimed to have a well-founded fear of being persecuted for reasons of his political opinion.

5 In his initial interview the appellant stated he had come to Australia in order to support his family. He said he had left Bangladesh because of frequent flooding and cyclones, no money to buy food, no work and because his family was upset. He was recorded as having said neither he nor his family had any association or involvement with any political group or organisation.

6 In his application for a protection visa the appellant provided a different account. In an attached statutory declaration he stated:

"1. I am a single Muslim man from Bangladesh who lived with my family in my home in Gabua village about 400 kilometres south of Dhaka. My father was a farm owner which supported our family.
2. After I had completed my schooling I started my wholesale food business with help from my father. I then brought (sic) two river transport boats which I used to transport cargo and people on the Paira, Lohlia, Srimanta and Biskhali rivers around my visa.

3. I had been running my business since 1989 and it was doing well and I was earning good money.

4. When this present government came into power in 1996, the people of the government Awami League demanded tolls from businessmen all over the country. Once the local activists of the government party came to me and demanded money to run their party. The first time in 1997, I complied with their demands and gave them money-$4,000 (Aust) and the second time in the same year they came and demanded a motor bike from me.

5. The second time I gave them about $1,500 (Aust) instead of the motor bike. They then came a third time, in 1998, for more money and they demanded about $30,000 (Aust). I refused to try and get that amount of money. Then they intimidated me and told me that they would come the next day.

6. They came the next day as they had threatened. When they came I was in a meeting with my manager, accountant & other employees and they wanted to know if I was there. My manager told them that I was inside and so they came in and threatened me. They then told me to join their party. As I declined to join, about 30 people started to ransack my offices and attack my employees. I was stabbed in the hand.

7. They left, telling me to join their party ad (sic) giving me an ultimatum. People would come during 1999 and continually look for me and threaten my employees.

8. I made a decision in 1999 to complain to the police station to the police inspector. They told me that as those people intimidating me belonged to the government party and so the police cannot help me. Having failed to get justice from the police, my having gone to the police to the notice of the government activists and they started to intimidate my family. For example, my younger brother was coming from the market and they kidnapped him. He was kept for about 10 days and then I got a letter demanding a ransom which I had to pay - about $7,000 (Aust) - and my brother was released.

9. This occurred this year in January 2000. It has been no use going to the police because they refuse to act, even on the kidnapping. I complained to the Deputy Commissioner of our district about the matter as well as the local MP and no one can help me. I am only asked why I do not want to join the party.

10. People from the government party started hunting for me so I started to move around to keep myself safe. I feared for my life to the extent that I decided to leave the country.

11. I cannot get protection from the authorities in my country. I have suffered acts of violence and criminality against me and my family and though I have tried to get protection I am unable to. I am persecuted because I am not a member of the government party."

7 Following a hearing, to which the appellant gave further evidence, the Tribunal set out its findings and conclusions in relation to the appellant's claims and its reasons for its decision to affirm the delegate's decision not to grant a protection visa to the appellant. Under the heading "Findings and reasons" the Tribunal noted the appellant had initially made claims on non-Convention related issues. It stated the claims which he subsequently made in a statutory declaration provided with his protection visa application were in such conflict with his initial statement that the two could not be reconciled. It considered they therefore raised questions in regard to the veracity of his claims and his overall credibility. The Tribunal noted that even if the appellant's second set of claims was considered together with his oral evidence, there was doubt as to whether the actions which he claimed had occurred amounted to persecution for a Convention reason, even if it was accepted that the agents of persecution are members of a particular political party.

8 The Tribunal noted that in his second set of claims the appellant claimed to have a profile as a supporter of the BNP political party. It considered his evidence in this regard was not convincing. It was of the view that even if the appellant was a supporter of the BNP, it was at an insignificant level. Since he had made no claims to have been of concern to either the BNP or the Awami League during the election period in 1996, the Tribunal found he was not of political concern to either party. The Tribunal noted that the appellant had made no claim to have been approached for anything other than money by the Awami League prior to a claimed attack and that his claimed assistance to the BNP was of such insignificance that it was implausible any political party would want to forcibly recruit him. The Tribunal found the appellant is a person of no significant political profile and of no political interest to either the Awami League or the BNP.

9 In relation to the appellant's claims regarding approaches to him by the Awami League and being intimidated into becoming a member or supporter, the Tribunal found:

(i) The first two donations made by the appellant to the Awami League were made because he chose to do so and he did not suffer the extortion that he claimed.

(ii) The Tribunal accepted the appellant's first account in which he claimed his business had closed down, he was unemployed and the family was very poor. The Tribunal accepted his claims in the first interview in preference to his later accounts to be wealthy and to be fleeing the country out of fear.

(iii) The appellant made no mention in his initial interview of an attack on him or of a claimed kidnapping of his brother. Despite the appellant's claims to have been stressed at that time by a recent diagnosis of diabetes, the Tribunal did not accept that these two incidents, which would have been so significant in his motivation for leaving, would have been withheld if they were genuine.

(iv) Since the Tribunal accepted the appellant's initial claims, it did not accept that he would have been the target of extortionists and to have faced an attack or a ransom demand for the return of his kidnapped brother. The Tribunal found these claims had been fabricated and it rejected them.

(v) Although the Tribunal accepted the appellant was approached for donations on a few occasions, it did not accept his business closed as a result of extortion.

(vi) The appellant acknowledged at the Tribunal hearing that he came from an area where there was regular flooding and this would impact on his ability to run a stable business, although there may well have been other factors which brought about the collapse of that business. However, the Tribunal did not accept that any of those possible factors were Convention-related.

(vii) In his first statement the appellant claimed he owned and ran a small grocery business. He made no mention of having a river transport business as later claimed by him. The Tribunal found this latter claim had been fabricated for the purpose of supporting a claim that the appellant had been a wealthy and successful businessman rather than a failed small businessman, as he had first claimed. It found the appellant was a small businessman whose business had failed for non-Convention related reasons in Bangladesh.

10 In relation to the appellant's claimed reasons for failing to seek protection in Bangladesh, the Tribunal found:

(i) If the Tribunal had accepted the appellant's claims in his statutory declaration, he would have had the resources to seek assistance from the BNP, through advocates and the courts, and would have done so although he claimed that he had not done so. The Tribunal found he did not do so because the extreme actions which he claimed occurred had not occurred.

(ii) The Tribunal did not accept a claim by the appellant that all influential BNP members were jailed following the 1996 elections. It did not accept a claim by him that the court system in Bangladesh is corrupt at all levels. The Tribunal preferred the independent material before it and found that the BNP is a powerful opposition and the courts at high levels are not influenced by the government. Accordingly, it found the appellant could have found protection from the extortion he claimed, if he was the wealthy businessman and supporter of the BNP that he claimed.

(iii) Since the Tribunal found the appellant was not a successful businessman and was not politically motivated or of political interest to any political party, the Tribunal rejected his claims to have faced extortion for any political reason and accordingly found this was why he did not seek protection through the BNP or the courts.

11 In relation to the differences between the appellant's claims in his interview on arrival and in his statutory declaration accompanying his protection visa application, the Tribunal found:

(i) The Tribunal accepted that the appellant is a diabetic, diagnosed as such in Australia for the first time. Notwithstanding that, if he was fearful of being killed in Bangladesh as he had claimed for the reasons he claimed, the Tribunal did not accept he would have failed to put at least the basic elements of those claims to the Department officer if they were genuine.

(ii) The Tribunal found the inconsistencies between the two accounts to be so great that the only plausible explanation was that the second set of claims had been, for the main part, fabricated, in an attempt to bring the appellant's case within the ambit of the Convention and a criterion for a protection visa.

(iii) The Tribunal found the appellant's prime reasons for leaving Bangladesh and entering Australia as he did were those stated at his initial interview. While it accepted that, as a businessman, he was approached by members or supporters of the Awami League in his area to give money, the Tribunal did not accept that the magnitude of the situation was as it had been put by the appellant, or that it was for reasons of his political opinion.

12 The Tribunal summarised its reasons by stating that:

(i) The appellant was not credible and that this was demonstrated by the nature of the inconsistencies between his interview on arrival and the statutory declaration which he prepared for his application for a protection visa.

(ii) As a businessman, the appellant was approached to provide money to support the Awami League solely for reasons of money and there was no other element present.

(iii) The appellant's claim to have been attacked and his brother to have been kidnapped as a means of extorting money for political reasons, or to coerce him into becoming a member of the Awami League, was not accepted.

(iv) Any difficulties the appellant suffered in Bangladesh and his reasons for leaving that country were not Convention related, and in any event, he had recourse to protection through the courts.

(v) Any fear of persecution which the appellant might hold was not well-founded or for a Convention reason, and the appellant was not a refugee. Having considered the evidence as a whole, the Tribunal was not satisfied the appellant is a person to whom Australia has protection obligations under the Refugees Convention. Accordingly, the appellant did not satisfy the criterion set out in s 36(2) of the Act for a protection visa.

13 French J reviewed the reasons of the Tribunal in detail. He concluded there was nothing in what the appellant had said which exposed any of the permitted grounds of review in s 476 of the Act. Furthermore, he was unable to discern in the Tribunal's reasons for decision and its approach to the matter, any error of the kind which would give rise to a ground for review. Accordingly, he dismissed the application.

14 The grounds of review which are relied upon by the appellant are fourfold. Firstly, it is contended the Tribunal did not consider his political opinion arising from his involvement in the BNP. Secondly, it is contended the Tribunal did not consider or believe the evidence as to his business background. Thirdly, it is said the Tribunal did not believe his evidence concerning sickness. Fourthly, it is said the Tribunal did not consider the evidence in relation to the kidnapping of his younger brother. The appellant indicated in the notice that he would provide further detailed submissions.

15 The appellant is unrepresented and does not have legal skills. Understandably the grounds of appeal are cast without regard to the requirements of the law which restrict the role of this Court on appeal. All of the matters raised by the appellant raise issues of fact, inviting the Court to remake the findings of fact made by the Tribunal. The jurisdiction of this Court does not permit it to engage in such merits review.

16 Nevertheless, the Court has approached the appeal on the basis that the intention of the grounds put forward by the appellant as a self-represented litigant is to invite the Court to examine the reasons of the Tribunal for error of law falling within s 476(1) of the Act and not apprehended in the reasons for judgment of French J.

17 In his oral submissions to the Court the appellant said firstly, that since the last hearing in this Court his political party had informed him that there was a case outstanding against him as a consequence of which he had been sentenced to imprisonment for ten years. He claimed the party's advice was that he should not therefore go back to Bangladesh or he would be imprisoned for breaching the Public Safety Act. In support of this claim he tendered a letter, which was marked for identification. The letter is dated 2 January 2002. As translated to the Court, the letter is written on the letterhead of the Bangladesh Jatiatabadai Party in the Patuakhali district. It advised him that a case under the Public Safety Law had been submitted by the previous Awami government against him and that upon the High Court completing the hearing, it had decided that the appellant should be sentenced to ten years imprisonment and 15,000 taka fines, in lieu of payment one additional year's imprisonment. It advised him not to come to the country. It was said for the appellant that the case had been held at the High Court in Dacca on 18 September 2001. The letter tendered bore the faxed date of 29 July 2001 but the appellant claimed that was due to an error in dating arising from the machine on which it was dispatched.

18 Secondly, the appellant tendered a further document. It was directed to the finding of the Tribunal that the claim which he made about his business was incorrect. As interpreted to the Court, the document is a document of sale of two launches to the appellant at a market price of 1, 040, 000 taka on 17 April 1990. It was evidence which the appellant contends would show that the Tribunal's finding that he was not engaged in the business of river transport was in error.

19 The respondent objected to the admission into evidence of each of these documents. We allow those objections. Neither document was relevant material before the Tribunal. In the case of the former document, we accept the submission made by counsel for the respondent that it cannot possibly show any error either on the part of the learned primary judge or the Tribunal. There was no claim by the appellant that he had a well-founded fear of persecution arising from the politically motivated institution of a case against him pursuant to the Public Safety Law.

20 In relation to the second document, said to show that the Tribunal was in error in finding that he was not engaged in any river transport business, this is evidence which also was not before the Tribunal and hence not considered in its reasons by the primary judge. The objections to the admission of each document is therefore allowed.

21 In relation to the matters referred to in both documents, we understand that the respondent will make all necessary inquiries to inform himself whether there are circumstances arising from either or both of those letters making it appropriate to exercise his discretion under either s 48B or s 417 of the Act to permit the appellant to file a further application for a protection visa or to substitute a decision in favour of the appellant.

22 We have also considered whether the Tribunal was in error of law in identifying the wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or making an erroneous finding or reaching a mistaken conclusion in the sense recognised in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [82]. No such error is apparent.

23 For these reasons we conclude that there is no ground of reviewable error applicable in respect of the Tribunal's reasons. Accordingly, the appeal from the decision of the primary judge must be dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee, Cooper and

RD Nicholson.



Associate:

Dated: 4 April 2002

The appellant represented himself




Counsel for the Respondent:
Mr AA Jenshel




Solicitor for the Respondent:
Australian Government Solicitor




Date of Hearing:
21 February 2002




Date of Judgment:
4 April 2002

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