Rahman v Minister for Immigration & Multicultural Affairs [1999] FCA 73 (10 February 1999)

Last Updated: 11 February 1999

FEDERAL COURT OF AUSTRALIA

Rahman v Minister for Immigration & Multicultural Affairs [1999] FCA 73

S K M HABIBUR RAHMAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 1171 OF 1998

HELY J

10 FEBRUARY 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1171 OF 1998

BETWEEN:	S K M HABIBUR RAHMAN Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	HELY J
DATE OF ORDER:	10 FEBRUARY 1999
WHERE MADE:	SYDNEY

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
NEW SOUTH WALES DISTRICT REGISTRY	NG 1171 OF 1998

BETWEEN:	S K M HABIBUR RAHMAN Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	HELY J
DATE:	10 FEBRUARY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application under s 476 of the Migration Act 1958 for review of a decision of the Refugee Review Tribunal ("RRT") given on 6 October 1998 affirming the decision not to grant a protection visa to the applicant. The application for an order of review, although listing "grounds" of the application, does not raise any one of the grounds listed in s 476 of the Act. The power of the Court to review such a decision is dependent upon one of the grounds specified in s 476 being made out.

2 The applicant appeared for himself with the assistance of an interpreter. When the matter was called on for hearing, I endeavoured to explain to the applicant that for him to succeed in his application, he would need to establish that RRT made a mistake in reaching its decision, and that any such mistake constituted an error of law. I am not convinced that the applicant understood the limited nature of the Court's power of review, because the only submission which he put was to the effect that everything which he had told RRT was correct; he did not know why they refused his case; they should have realised that his claim was a good one and he wishes the matter to be remitted to RRT for his case to be reviewed again. Nothing which was put to me by the applicant could possibly constitute one of the grounds referred to in s 476.

3 It is unsatisfactory that a judge whose function is to decide a case, should also be called upon to review the papers so as to see whether a case which the applicant has not identified or articulated is made out. Nonetheless, in view of the applicant's position, I have re-read the decision of RRT in order to see whether I can discern reviewable error.

4 RRT accepted that the applicant was a member of the Jatiya Party, and involved with its affairs until he left Bangladesh in 1992. For reasons which it gave, RRT did not accept the applicant's claim that he was a prominent Jatiya Party member when he was in Bangladesh. The applicant's claim to refugee status was based upon an asserted fear of being persecuted for reasons of political opinion. He claimed that there were outstanding false charges against him in Bangladesh which had been levelled against him because of his Jatiya Party activities. He also claimed that he will be targeted by BNP supporters in revenge for the killing by the police of BNP supporters in an incident which occurred in 1989.

5 RRT did not accept that any charges, false or otherwise, had been laid against Mr Rahman. It gave reasons for coming to that conclusion. It was open to RRT to come to the conclusion which it did. RRT has set out its reasoning process, and the reasons which RRT gave are capable of sustaining the conclusion to which it came. I do not see any error, let alone reviewable error in this aspect of RRT's decision.

6 The applicant also claimed that he will be targeted by BNP activists because of an incident in which two BNP activists were killed by the police in 1989. RRT described the incident in this way:

"He states that in 1989 he was present in a government building when it was surrounded by opposition group protesters. They were BNP supporters and members of a BNP supported underground group. A magistrate gave an order permitting the police to fire on the crowd. Two of the protesters were killed. Mr Rahman states that the BNP supporters want to take revenge on him because of this incident, as he was still the secretary of the sub-district branch of the JP [Jatiya Party] at the time. Two JP people have been killed by these BNP supporters."

7 RRT accepted that there was an incident in 1989 such as that described by Mr Rahman. It also accepted that the applicant has a genuine subjective fear of being targeted by BNP activists seeking revenge for this incident. RRT was, however, of the view that if the applicant is targeted by BNP activists because of this incident, it will not be "for reasons of" his political opinion, but because the activists are seeking revenge for the deaths of their colleagues.

8 Thus whilst RRT accepts that the applicant had a genuine subjective fear of being targeted by BNP activists seeking revenge for this incident, it found that this fear was not of persecution for a Convention reason. That is a conclusion which was open to it.

9 RRT also considered whether the applicant would otherwise be at risk of harm should he return to Bangladesh because of his Jatiya Party membership or activities. Despite finding that violence was a pervasive part of the culture of political life in Bangladesh, RRT was of the view, based on the independent evidence, that members or supporters of the Jatiya Party were not subjected to treatment which could be characterised as persecution by members or supporters of other political parties. Although RRT accepted that if the applicant returned to political activities upon returning to Bangladesh he could be harmed by members of other political parties, if that occurred, it would be in the context of acts of violence committed by members of all Bangladeshi political parties, and not as a result of persecution.

10 The fact that all political parties are from time to time involved in armed clashes with the police and with each other, as part of the political milieu of Bangladesh, does not mean that there is persecution within the meaning of the Convention, because the violence lacks the selective or discriminatory quality which is inherent in the notion of persecution, and because it lacks the requisite "official" quality in the sense that it is official, or officially tolerated, or uncontrollable by the authorities of Bangladesh.

11 Accordingly, the application for review should be dismissed 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 Hely.

Associate:

Dated: 10 February 1999

Applicant:	In person
Counsel for the Respondent:	V A Hartstein
Solicitor for the Respondent:	M Grey Australian Government Solicitor
Date of Hearing:	1 February 1999
Date of Judgment:	10 February 1999