Rahman v Minister for Immigration & Multicultural Affairs [2001] FCA 1066

FEDERAL COURT OF AUSTRALIA

Rahman v Minister for Immigration & Multicultural Affairs [2001] FCA 1066

MIGRATION – protection visa – review of decision of Refugee Review Tribunal refusing visa – judicial review constrained by provisions of s 476 of Migration Act 1958 (Cth). Migration Act 1958 (Cth) s 476 ATAUR RAHMAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W22 OF 2001 FRENCH J 23 JULY 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W22 OF 2000

BETWEEN: ATAUR RAHMAN

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE OF ORDER: 23 JULY 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The Applicant pay the Respondent's costs.

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 W22 OF 2000

BETWEEN: ATAUR RAHMAN

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: FRENCH J

DATE: 23 JULY 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 Ataur Rahman is a citizen of Bangladesh who arrived in Australia without any lawful authority on 10 July 2000. On 26 October 2000, he lodged an application for a protection visa under the Migration Act 1958 (Cth) and on 28 November 2000, a delegate of the Minister for Immigration and Multicultural Affairs refused his application. On 1 December 2000, he applied to the Refugee Review Tribunal for a review of that decision. The Tribunal conducted a hearing on 5 January, at which time Mr Rahman gave oral evidence. 2 On 12 January, the Tribunal made a decision affirming the delegate's decision not to grant a protection visa. On 25 January, Mr Rahman lodged an application for an order for review with the Perth Registry of the Federal Court to review the Tribunal's decision. Apart from the fact that it is in the form of an application for an order for review, there is nothing on the application which indicates what are the grounds upon which review is sought. However, pursuant to directions which were made on 20 February by the Registrar, Mr Rahman has subsequently filed a written statement in Court setting out why he considers the decision of the Refugee Review Tribunal is wrong, and I will turn to that shortly. 3 I first go to the record which is in the form of two affidavits of Mr Carey of the Australian Government Solicitor's office annexing papers which were before the Tribunal. Among those papers is an officer's record of an initial interview with Mr Rahman upon his arrival in Australia. This is the form which is known as Unauthorised Arrivals Interview. In Part C of that document, he was asked when he had left his country of nationality and he said it was on 25 May. In earlier answers he indicated that he came through Indonesia by boat, although he had flown to Indonesia from Bangladesh. He was asked when he had begun to plan leaving his country of nationality and said it was since his business had closed down. Asked why he did come to Australia, the recorded answer was: " to support my family" Asked why he left his country of nationality, his answer as recorded was: "frequent flooding/cyclones no money to buy food no work – my family crying in front of me If I had 3 meals a day & frequent flooding I would not have come to this country. (sic) My country is small but has a large population – very hard to live there." Then asked whether he had any reasons for not wishing to return to his country of nationality, he said: "If I go back to Bangladesh my family will die of starvation." The interview also elicited that he had got the idea of travelling to Australia from an agent in Bangladesh, that he had paid $US4,000 to that agent who arranged an Indonesian visa and that he had flown on Thai International to Jakarta. From there he had taken a train to Jogjakarta where he stayed for five or six days. He then went to Bali, stayed there for one or two weeks and thereafter took a boat to Australia. 4 In support of his application for a protection visa, he made a statutory declaration in which he said that he is a single Muslim man from Bangladesh who lived with his family in his home in Gabua village, about 400 kilometres south of Dhaka. His father owned a farm which supported the family. After he had completed schooling he started a wholesale food business with the help of his father and then bought two river transport boats which he used to transport cargo and people in rivers around his area. He had been running the business since 1989. It was going well and he was earning good money. 5 When the present government came to power in 1996, the government party, the Awami League, demanded tolls from businessmen all over the country. On one occasion local activists of the Awami League came to him and demanded money to help run their party. On the first occasion in 1997, he complied with their demands and gave them money amounting to $A4,000. Later in the same year they came and demanded a motor bike from him. On that occasion he gave them about $A1,500 instead of the motor bike. In 1998, they came a third time and wanted $30,000. He said he refused to try and get that amount of money and that they then intimidated him and told him they would come the next day. 6 They came the next day as threatened. When they came he was in a meeting with his manager, accountant and other employees. They wanted to know if he was there. The manager told them that he was inside and so they came in and threatened him. They then told him to join their party. As he declined to join, about thirty people started to ransack his offices and to attack his employees. He said he was stabbed in the hand. They left telling him to join their party and gave him an ultimatum. People came during 1999 continually looking for him and threatening his employees. 7 Mr Rahman made a decision in 1999 to complain to the police but they told him that because those who intimidated him belonged to the government party the police could not help him. Having failed to get justice from the police, the fact he had gone to them came to the notice of the government activists and they started to intimidate his family. His younger brother was kidnapped while coming from the market and kept for about ten days and he received a letter demanding a ransom for about $A7,000 which he had to pay and his brother was released. That occurred, he said, in January 2000. It was no use going to the police because they would refuse to act even on the kidnapping. 8 He complained to the Deputy Commissioner of his District about the matter as well as to the local member of the parliament and nobody could help him. He was only asked why he did not want to join the party. People from the government started hunting for him so he started to move around to keep himself safe. He feared for his life to the extent that, in the end, he decided to leave the country. He could not get protection from the authorities. He had suffered acts of violence and criminality against himself and his family and although he had tried to get protection, he was not able to do so. He was persecuted, he said, because he was not a member of the government party. 9 Subsequently, submissions were made on his behalf by Craddock Murray Neumann, Solicitors, in connection with the Tribunal hearing and in that submission, dated 4 January, his representative summarised his claims thus: "Mr Rahman is aged 35. He is single and has no children. Mr Rahman is not a member of any political party, but supports the BNP. Mr Rahman was pressured to pay large sums of money to local Awami League activists. Mr Rahman was threatened and assaulted by Awami League activists. Mr Rahmans (sic) younger brother was kidnapped and only released after payment of a ransom. Mr Rahman complained to the police, the Deputy Commissioner of his District and his local MP, but he did not receive any help or assistance." 10 Country information relating to Bangladesh was also relied upon to support his claims, including statements in the US Department of State Report from 1998 that: (a) there is widespread corruption and lack of discipline among the police (b) corruption is endemic (c) the government restricts or denies many fundamental human rights (d) police commit extrajudicial killings and routinely use torture and other forms of abuse when interrogating suspects (e) the police use the Special Powers Act to make arbitrary arrests and to harass political opponents and other citizens without formally charging them (f) judicial independence does not exist or is compromised. The material relied upon in relation to the working of the courts was a quotation from the Department of State Report to the effect that because of crowded court dockets and magistrates' reluctance to challenge government, the judicial system did not deal effectively with criminal cases that might be political in origin. While higher levels of the judiciary displayed a significant degree of independence and would often rule against the government, lower level courts were more susceptible to pressure from the Executive Branch. There was also said to be corruption with the legal process, especially at lower levels, and that citizens' ability to obtain due process was undermined by corruption in the judiciary. So far as the question of internal flight was concerned, it was submitted that the situation in Bangladesh was such that Mr Rahman would not be safe anywhere. There was no effective State protection, especially given widespread corruption and little control over the police. 11 In a supplementary submission dated 9 January, Mr Rahman's solicitors stated that he had instructed them to reiterate that he was feeling unwell at his initial interview held on 18 July and did not recall the entirety of it and what he had said to the interviewer. The solicitors said they were instructed that he was told by a nurse, who had conducted a preliminary medical examination prior to that interview, that he had diabetes. He did not know what diabetes was and had been told by the nurse that it was a disease that would damage his kidneys, his heart and his eyesight and would probably shorten his life. The submission was that he was extremely upset by that information. He instructed his lawyers that he was not thinking clearly at the initial interview and that even later at the time of the writing of his letter, he was not aware of some of the things that were said at the interview. He said he had answered the questions but did not give any additional information as he wanted the interview to be completed quickly. He said that at the time of the interview he had a severe headache, was feeling nauseous, had a burning sensation in his feet, heart palpitations and could not concentrate. Authority was given to the Tribunal to access Mr Rahman's medical records in relation to his diagnosis as a diabetic. 12 In its reasons for decision, the Tribunal made reference to the legislation, the Refugee Convention and its requirements and then to the claims and evidence before it. It is not necessary to retrace its description of his claims and evidence. Their substance has already been stated in the outline that I have mentioned, save for the claim to be a supporter of the opposition BNP party. It should be noted that following the hearing the Tribunal contacted a nurse at the Port Hedland Detention Centre who confirmed that Mr Rahman is a diabetic and has been taking tablets for that condition in the Centre. 13 Under the heading "Findings and Reasons", the Tribunal noted that Mr Rahman had initially made claims on non-Convention related issues, that his statutory declaration, however, provided claims which were at such conflict with his initial statement to the Department that the two could not be reconciled and that this raised questions in regard to the veracity of any of the claims and his overall credibility. If the second set of claims was considered together with his oral evidence to the Tribunal, there was doubt about whether the actions which he alleged amounted to persecution for a Convention reason even if it were accepted that the agents of the persecution were members of a particular political party. 14 The applicant had also claimed to have a profile as a supporter of the BNP. The Tribunal rejected that claim as not convincing. He said that he had supported the BNP by encouraging people to attend BNP meetings, none of which he had attended in the five months prior to his departure. He could not provide any reasonable approximate date for the last time he had attended any. When asked how he had encouraged people to attend or support the BNP, he had described a role which could not be, in the Tribunal's view, characterised as significantly active. When people asked him what party he felt they should support, he suggested the BNP or if there was a meeting of the BNP, he would suggest to customers at his business they should attend even though he didn't go himself. The Tribunal said: "I am of the view that even if the Applicant was, as he claims, a supporter of the BNP, it was at an insignificant level and that since he made no claims to have been of concern to either the BNP or the Awami League during the election period in 1996 I find he was not of political concern to either party." 15 In summary, he had no direct involvement in any political situation. In his written account, in his statement and his narrative at the Tribunal he had made no claim to have been approached for anything other than money by the Awami League prior to the claimed attack. In relation to his claims to have been intimidated into becoming a member or supporter of the Awami League, the Tribunal observed that by his own account he chose to give money to the Awami League. He chose to give money to the Awami League on the first occasion he was approached, although it did not accept that his donation was at the level he claimed. Similarly, on the second occasion, when he said he gave people the money, he once again made no claim of any political motivation behind the donation other than the request from the Awami League representatives. On his own account the Tribunal found he gave that money without coercion and did not suffer the extortion that he claimed. 16 In his first statement, which the Tribunal accepted, Mr Rahman claimed that his business had closed down, he was unemployed and his family was very poor. Although he claimed to be not thinking clearly on that occasion, the Tribunal noted that he was recorded as saying that he was unemployed but that he had been self-employed and that his business had closed down. The Tribunal concluded that he was consistent in his claim to have lost his building and to be unemployed even when, as was the case in relation to certain of the questions in Part C, they did not suggest any relationship to his business or work. 17 Even if he were shocked by his diagnosis of diabetes, the Tribunal did not accept that this caused him to give such directly opposing claims to his later ones and it found his claims in the first interview to reflect the true situation rather than his more recent account of being wealthy and fleeing the country out of fear. Moreover, no mention was made of an attack on him or the claimed kidnapping of his brother to the officer who first interviewed him. The Tribunal found his claims to have been the target of extortionists and to have faced an attack or a ransom demand for the return of a kidnapped brother were fabricated and they were rejected. 18 The Tribunal concluded that he had owned and run a small grocery business. He had made no mention of any river transport business initially. That was fabricated to support a claim that he was a wealthy and successful businessman rather than a failed small businessman as first put. The Tribunal then considered the position on the assumption that his claims were true, as made on 26 October, and the Tribunal said that he would, in any event, have had the resources to seek assistance from the BNP through advocates and the courts and would have done so, although he claimed he did not do so. It found he did not do so because the extreme actions which he said occurred, did not occur. 19 It did not accept his claims that all influential BNP members were gaoled following the 1996 elections, nor that the court system is corrupt at all levels. It preferred the independent material before it which led to its conclusion that the BNP is a powerful opposition and that the courts at higher levels are not influenced by the government and that Mr Rahman could have found protection from the extortion he claimed if he were the wealthy businessman and supporter of BNP that he said he was. 20 The Tribunal also considered differences between the claims in the arrival interview and the statutory declaration under a separate heading and again relied upon the inconsistencies in the two accounts which it said were so great that the only plausible explanation is the second set of claims had been for the main part fabricated in an attempt to bring his case within the ambit of the Convention. In summary, it found Mr Rahman was not credible and that he was not a refugee. 21 In his written statement to this Court, Mr Rahman made a number of points. He said the Tribunal member didn't consider the persecution which he would face if he were deported to Bangladesh. There was information about his country which was in clear support of his claims. That information was to the following effect: (a) there is widespread corruption and lack of discipline among the police; (b) corruption is endemic; (c) the government restricts or denies many fundamental human rights; (d) police commit extrajudicial killings and routinely use torture and other forms of abuse when interrogating suspects. He said he was aggrieved by the Tribunal although he put his claims to it. It was very clear from the independent country reports, including reports from Amnesty International, that many political activists were detained without charge or trial under the Special Powers Act. Torture, including rape in custody, was widespread and had led to at least one death. He referred also to another incident involving people from that government party seizing two boats which he used as river transport. He said in his written statement that his family informed him recently about the latter incident and told him a government party group was still looking for him. They told his family they must bring him to join the party otherwise he would be persecuted. He was very worried that if deported he would be persecuted; that under the judicial system in Bangladesh many of the citizens do not receive fair trials and can be convicted without any reasons. He said that he arrived here in July 2000 and that since being held in detention he had contracted diabetes which he said was becoming, as he put it, "very high". I take this to mean acute, due to the detention environment. He asked me to consider his case on humanitarian grounds in this hearing. 22 As I explained to Mr Rahman in the course of the hearing, the grounds upon which the Court can make an order for review of a Tribunal decision are confined. They are confined by s 476 of the Migration Act 1958 (Cth) and they do not extend to allowing the Court to revisit the merits of the Tribunal's factual decision, that is to say, even if the Court were of the opinion that the Tribunal had come to a wrong conclusion on the facts, and I do not say that this is such a case, the Court could not interfere with the Tribunal decision. The only grounds for review are those set out in s 476. 23 Plainly, there is nothing in what the applicant has said which exposes any such grounds of review, nor am I able to discern in the Tribunal's reasons for decision and its approach to this matter, any error of the kind which would give rise to a ground for review. In the circumstances, the application will be dismissed with costs. I certify that the preceding twenty three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French J.