Rahman v Minister for Immigration & Multicultural Affairs

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.