Rahman v Minister for Immigration & Multicultural Affairs

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.