FEDERAL COURT OF AUSTRALIA Rahman v Minister for Immigration & Multicultural Affairs [2001] FCA 368 MIGRATION – meaning of "decision" in s 476(1)(g) Migration Act 1985 (Cth) – relationship between s 476(1)(g) and s 476(4) – whether decision regarding objective basis for fear of persecution affected by error of law within the meaning of s 476(1)(e) WORDS AND PHRASES – "error of law", "decision" Migration Act 1958 (Cth) ss 36(2), 430(1), 476(1)(e), 476(1)(g), 476(2), 476(4) Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(2)(g), 6(2)(g) Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 referred to Mohammed v Minister for Immigration & Multicultural Affairs [2000] FCA 264 applied Minister for Immigration & Multicultural Affairs v Li Yue [2000] FCA 856 applied Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 cited Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 applied Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 referred to MD MAZIBAR RAHMAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1076 OF 2000 GYLES J SYDNEY 3 APRIL 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1076 OF 2000 BETWEEN: MD MAZIBAR RAHMAN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GYLES J DATE OF ORDER: 3 APRIL 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant to pay the costs of the respondent. 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 1076 OF 2000 BETWEEN: MD MAZIBAR RAHMAN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GYLES J DATE: 3 APRIL 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application to review the decision of the Refugee Review Tribunal ("the Tribunal") made on 25 August 2000 (handed down on 13 September 2000), whereby the Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa on the basis that the applicant did not satisfy the criterion set out in s 36(2) of the Migration Act 1958 (Cth) ("the Act"). 2 The applicant, who is a citizen of Bangladesh, arrived in Australia on 10 April 1999, and lodged an application for a protection visa on 12 April 1999. The delegate refused the application on 22 April 1999, and on 17 May 1999 the applicant applied to the Tribunal for review of that decision. The essence of the applicant's case was that he feared that he would be subjected to persecution (in the form of violence) by the supporters of the Awami League political party by reason of his support for and association with the Bangladesh Nationalist Party ("BNP") if he returned to Bangladesh. 3 The applicant made various claims which were rejected by the Tribunal, and no complaint is made about that. However, the Tribunal accepted that the applicant was a BNP supporter and that he was attacked and hurt by political opponents during 1994. This involved two incidents where the claims of the applicant (which were accepted by the Tribunal) were recited in his statement as follows: "11. … Therefore, their leaders and workers targeted me. On 23 July 1994 at 6 pm while I was addressing a public gathering at Nakhal Para High School. I was targeted to shot by a group of the Awami goons. Unfortunately the bullet shot one of my friends who was beside me. 12. On 12 December 1994 while I was returning home from Gulistan at 3 pm. A group of known Awami goons attacked me. They encircled me and started kicking, boxing and punching on my faces. Finally they used hockey sticks to beat me. By their constant torture I lost sense and discovered myself at the Dhaka Medical College Hospital. I spent 15 days at the Hospital. I reported the incident to the local police station but did not obtain any responses from them." 4 The critical part of the Tribunal's findings is as follows: "The applicant claimed that in 1994 he was attacked by political opponents. He claimed that it was indicative of the circumstances he will suffer in the future if he is forced to return to Bangladesh. In response to the claim, the Tribunal considered information from external sources, regarding the violent nature of political activity, particularly rallies, in Bangladesh. The Tribunal accepts the applicant's claim that he was physically attacked by political opponents in Bangladesh. However, the Tribunal is not satisfied by the evidence that these incidents are indicative that the Awami League was specifically targeting the applicant. It is the Tribunal's view that the applicant was implicated in political violence, at a particular time and place, and that those events are effectively over. The Tribunal is not satisfied that the past incidents of violence against the applicant are indicative of what will happen to him in the future. It is the Tribunal's view that the applicant was unfortunate to be caught in broad disputes between the BNP and their opponents. However, the applicant indicated when he left his home town and later the country that he wants to avoid political violence. The Tribunal accepts DFAT advice, referred to above, that citizens of Bangladesh can peacefully express their political views against the government without attracting the adverse attention of the authorities/government. Information from external sources referred to above indicates that political rallies can be violent in Bangladesh and that there are risks associated with attending such rallies. However, the information also indicates that citizens of Bangladesh have alternative, safer, options in expressing their political opinion and that only a minority of political activists are implicated in political violence. These options will also be available to the applicant if he returns to Bangladesh in the foreseeable future. Therefore, the Tribunal's is not satisfied that the applicant is at risk of suffering persecution in Bangladesh due to his political opinion." 5 As the applicant's case was ultimately framed (after amendment), it had two limbs: 1. The finding that the attacks on the applicant which were accepted to have occurred were the result of broad disputes and not specifically targeted at him was not reasonably open as there is no evidence or other material to justify the making of the decision, contrary to s 476(1)(g) of the Act; 2. That, whether or not the first argument is successful, the Tribunal erred in law by not correctly applying the decision of the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 ("Chan") to the facts as found by it, contrary to s 476(1)(e) of the Act. no evidence 6 A short answer to the applicant's contention would be if, as submitted by counsel for the respondent, there were evidence or other material to justify the impugned finding. Counsel for the respondent has referred me to passages from material cited by the Tribunal in its decision from answers provided by the Department of Foreign Affairs & Trade, from the 1999 Country Reports on Human Rights Practices and an earlier United States Department of State Report. I can see that those passages might, at a stretch, form a basis for finding that the incident in which the applicant says he was shot at was impersonal in the sense that he was targeted because he happened to be speaking at a political meeting rather than because of his identity. I cannot, however, see that this material provides any basis at all for describing the physical attack upon him in that way. 7 This conclusion necessitates a closer look at the application of s 476(1)(g) and s 476(4) of the Act. I do so on the basis that the Tribunal accepted the existence of the relevant subjective fear by the applicant and that what was at issue was the objective basis for that fear. The essence of the decision of the Tribunal was that the fear was not objectively well founded. In the present case, that finding is the basis for the finding that the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations which, in turn, was the basis for the actual decision to affirm the decision not to grant a protection visa. 8 The difficulties of making out the requirements of s 476(1)(g) by an unsuccessful applicant before the Tribunal who has failed to satisfy the Tribunal as is necessary are obvious. The issue was noted, but did not need to be resolved, by the Full Court in Mohammed v Minister for Immigration & Multicultural Affairs [2000] FCA 264 at par 20 ("Mohammed") (see also Minister for Immigration & Multicultural Affairs v Li Yue [2000] FCA 856 at pars 53 and 54). 9 The argument for the applicant was that the finding about the nature of the incident in 1994 to which I have referred, and which I agree was not supported by any evidence or other material, was part of the chain of reasoning of the Tribunal which led to the ultimate reviewable decision which therefore was based upon that finding for the purposes of s 476(4)(b). It was not agreed on behalf of the respondent that the finding is a finding as to the existence of a particular fact which did not exist within the meaning of s 476(4)(b). My own inclination is to think that the finding made here is not of a particular fact within the meaning of s 476(4)(b). The Tribunal found that the primary facts occurred but was not prepared to find a further fact, namely, that the applicant had been targeted. However, assuming that it is a particular fact which did not exist, there is a question as to whether the reviewable decision was based upon the particular fact in the sense explained by Black CJ in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-221. 10 In my opinion, however, it is not necessary to pursue these issues as the major difficulty confronting the applicant is illustrated by the decision, cited by counsel for the applicant, of the Full Court in Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 ("Indatissa") in which the point is made that s 476(4) is not reached until the requirements of s 476(1)(g) are satisfied. The Court said: "27. It is not sufficient simply to establish the two matters referred to in s 476(4)(b). That paragraph qualifies s 476(1)(g). It does not constitute a definition of what will amount to there being no evidence or other material to justify the making of the relevant decision. That is to say, it is not sufficient to show that a decision was based on the existence of a particular fact and that that fact did not exist. If that was sufficient, any decision of a Tribunal based on the existence of a particular fact could be challenged in the Federal Court by adducing evidence designed to persuade the Federal Court to reach a different conclusion concerning the existence of that fact. Such an approach is demonstrably unsound. …" There can be no doubt that s 476(4) limits, rather than expands, the scope of s 476(1)(g). As was said in Indatissa (at par 31): "In order to satisfy the ground contained in s 476(1)(g) it is necessary, but not sufficient, to satisfy the requirements of s 476(4)." 11 Section 476(1)(g), where it refers to the "decision", obviously refers to the reviewable decision which, in the present case, is the decision to affirm the decision of the delegate of the respondent. Liberally construed, this may include a decision that the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations. The decision that the Tribunal was not satisfied that the applicant was at risk of suffering persecution in Bangladesh due to his political opinion is not the reviewable decision but is rather a reason for that reviewable decision, or, as explained in another case referred to by the applicant, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 ("Bond"), was a decision on the way to making the reviewable decision. 12 In any event, whether that be right or not, the Full Court in Mohammed make clear that s 476(1)(g) refers to the reviewable decision itself not to the statement of findings and reasons by the Tribunal pursuant to s 430(1) (at par 19). The comparison is between the decision on the one hand and the evidence and other material on the other. This does not involve scrutiny of the reasoning of the Tribunal. When viewed in this way, the present applicant could not possibly succeed in establishing this ground. This is not a case in which all of the evidence and material is one way, pointing inexorably to a decision that the applicant was entitled to protection. There was ample material which, if accepted, would establish that a supporter of the BNP will not suffer persecution for that reason in Bangladesh. That being the case, there is no necessity to resolve, in this case, the questions which arise as to the application of s 476(4). 13 Even if I were not bound to follow Mohammed I would do so, as to construe s 476(1)(g) as entitling the Court to scrutinise the foundation for each fact found to be essential in the chain of reasoning of a lay Tribunal would be tantamount to permitting a full appeal on questions of fact. It may not be out of place to say that in the bewildering plethora of decisions on s 476(1)(g) some may have proceeded upon that basis. error of law 14 The argument for the applicant was, in effect, that given the Tribunal's acceptance of the violence suffered by the applicant in 1994 the finding as to the lack of a well founded fear involved an incorrect application of the law as explained in the decision of the High Court in Chan and in particular the judgment of McHugh J. 15 Counsel for the respondent pointed out that the decision in Chan was expressly referred to by the Tribunal in the introduction to the reasons in terms which cannot be criticised and that there is no error of law expressed in the reasons which can be identified. It was also put that the passage of time, and the very particular circumstances of the violence, are such that it cannot be assumed that such violence would recur. The Tribunal was entitled to accept the external material which it did. It was also entitled to find (as it did) that the applicant was not a political activist with a profile likely to attract attention. It was argued that the finding was well open to the Tribunal which did not, of itself, indicate any failure to understand the effect of the statute. 16 The preferred position of the applicant was that this ground should be considered in the light of the fact that there was no proper basis for the "non targeting" finding discussed above, relying upon Bond. I do not believe that this is open. In the first place, s 476(1)(e) refers to "the facts as found by the person who made the decision". In the second place, s 476(1)(g) provides the avenue for any factual attack upon a decision. 17 The ground of review which was established in Chan was that the decision that the applicant did not have a well founded fear of being persecuted was an exercise of power so unreasonable that no reasonable person could so exercise it within the meaning of s 5(2)(g) and s 6(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Section 476(2) of the Act expressly excludes that ground of review in the present case. There are, no doubt, circumstances where an unreasonable decision can be explained by reason of the failure of a decision-maker to understand or apply the law. However, that conclusion does not follow inexorably and, for reasons explained by the Full Court in Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 (at pars 42, 43, 60, 65 and 77), although in a slightly different context, it is not appropriate to avoid the constraints of s 476(2) by detecting an unexpressed error of law too readily. 18 As submitted on behalf of the respondent, the Tribunal referred to Chan in terms, and also set out the substance of what has become known as the real chance test, in the earlier part of the reasons. When it came to make the findings, the Tribunal did not, in terms, repeat that test. I would not conclude from that circumstance that the test had been forgotten. The reasons show that the Tribunal took a particular view as to the political situation in Bangladesh, and as to the political profile of the applicant, which meant that there was no real chance of persecution. In my opinion, although the argument of the applicant is not without substance, and the decision by the Tribunal may be harsh, it was a factual decision which, whether or not it was reasonable, involved no error of law within the meaning of s 476(1)(e). conclusion 19 As each basis for appeal has been rejected, the application must be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 3 April 2001 Counsel for the Applicant: D Burwood Counsel for the Respondent: D Jordan Solicitor for the Respondent: Clayton Utz Date of Hearing: 29 March 2001 Date of Judgment: 3 April 2001