Rahman v Minister for Immigration and Multicultural Affairs S136/1999 [2000] HCATrans 88 (10 March 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S136 of 1999

B e t w e e n -

MOHAMMED SHAIFUR RAHMAN

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MARCH 2000, AT 2.00 PM

Copyright in the High Court of Australia

McHUGH J: Yes, you are Mr Rahman?

MR M.S. RAHMAN: Yes, sir.

MR J.D. SMITH: If it please the Court, I appear for the respondent in this matter. (instructed by Australian Government Solicitor)

MR J. BHARATI affirmed as interpreter.

McHUGH J: Thank you, Mr Bharati. (Through Interpreter) Mr Rahman, you have 20 minutes to present your argument, but because you are acting through an interpreter, the Court will give you twice that long to put your argument, if you need to. You do not have to take the whole time but the Court will give you that much time, if you want it.

MR RAHMAN (through interpreter): Yes, your Honour.

McHUGH J: Well now, Mr Rahman, would you tell us why there is an error of law on the part of the Full Court of the Federal Court in this case?

MR RAHMAN (through interpreter): I have been rejected three times in my interview; they called me three times and then again they did not give the interview.

McHUGH J: Mr Rahman, if you would be more comfortable, we do not mind you sitting down.

THE INTERPRETER: He is not understanding me.

McHUGH J: He is not understanding you?

THE INTERPRETER: Yes.

MR BHARATI: Because he speaks half Hindi and half Bengali; my language is Bengali.

THE INTERPRETER: I come from India, I come from Bangladesh, but somebody who is confident to speak in the Bengali language from Bangladesh, he wants somebody from there, not from India, although we speak Bengali, but we speak in an Indian accent.

MR RAHMAN: No, sir, he is speaking half Hindi and half Bengali, but I understand Bengali, but I cannot understand Hindi.

CALLINAN J: You seem to understand a fair amount of English. You speak English very well.

MR RAHMAN: My English is no good, so I told the Court, I do not understand, so I need help.

CALLINAN J: But you understood what I said to you then. You can understand what I am saying to you, can you not?

MR RAHMAN: Yes.

CALLINAN J: And you could reply to that?

MR RAHMAN: Yes.

CALLINAN J: Why do you not try to do it yourself and we will see how you proceed, how you get on?

MR RAHMAN (through interpreter): I know what is there.

McHUGH J: Well, Mr Rahman, the problem that you have in coming to this Court is that we do not deal with questions of fact, which is what this case seems to involve or which this case seems to be about.

MR RAHMAN (through interpreter): Without taking an interview, they rejected my case.

McHUGH J: That is not a matter that you can complain about in this Court. We only deal in this jurisdiction with questions of law and, indeed, it is more than questions of law; you have got to show that the Tribunal misunderstood what the law was or failed to understand your case in some way, but all that your papers indicate is that you want to argue the merits of your case.

MR RAHMAN (through interpreter): I do not know what is law and what is fact, I do not know.

McHUGH J: Well, that is the problem. The merits and the facts are for the Tribunal. The law says that the Tribunal is the body that looks at the facts and looks at the merits of the case. That is why you lost your case in the Federal Court, because the Federal Court cannot look at the facts or the merits either.

MR RAHMAN (through interpreter): I am not saying that thing. RRT did not consider very well my case and that is why I am appealing to this Court that RRT and other courts also did not take my case seriously.

McHUGH J: That is not correct and the judges in the Federal Court looked at the case and, having regard to what they could do, they came to the view that there was nothing they could do. The Australian Parliament has legislated so that questions of merit and who was to be believed is to be determined by the Tribunal and only by the Tribunal. (To interpreter): Ask him what does he want to put to us?

MR RAHMAN (through interpreter): RRT did not do justice with me, that is why I want to just tell the Court that RRT they did not understand, they did not explain and they did not do anything seriously. Only they took the ten minutes interview and then after they finished the case. They did not hear anything from me. A very short time they gave me and they hear from me.

McHUGH J: (To interpreter): Who is he talking about when he says "they"?

MR RAHMAN (through interpreter): I am talking about the RRT, Refugee Review Tribunal.

McHUGH J: RRT. Well the RRT has given a judgment. It is nine pages long and it considers all your claims and it rejects them. The Tribunal found that, first of all, the taunts that you suffered did not amount to persecution. They found that your failure to obtain a job in 1987 was not sufficient to show that there existed systematic discrimination in employment against people with a Pakistani background in Bangladesh.

MR RAHMAN (through interpreter): I am not understanding.

THE INTERPRETER: He is telling that "I am not understanding".

McHUGH J: They made some other findings. The Tribunal found that the attacks on you in 1987 and 1995 were not because of your political opinions.

MR RAHMAN (through interpreter): I am not understanding anything.

McHUGH J: Mr Rahman, the merits of your case are a matter for the Tribunal and it rejected - your Tribunal, they held you are not a refugee and therefore you are not entitled to a protection visa. It is up to the Tribunal to make that decision and the Federal Court and this Court can only interfere if they have made some error of law or failed to take into account something they should have taken into account, or took something into account that they did not take into account, matters like that, but the merits are not for the courts. Justice Callinan and I have carefully studied these papers. I have read them again and again, and I cannot see anything here that would warrant the grant of leave to appeal against the decision of the Federal Court. Mr Rahman, what would you like to say? The Court will listen to you, if you can point to some error which would entitle either this Court or the Federal Court to interfere with the decision, but you have got to point to something.

THE INTERPRETER: Again, he has written some points to raise here.

McHUGH J: Well tell us what the points are. Justice Callinan and I have read the written argument which has been filed in Court, but there is nothing in that written argument which would entitle us to interfere. It seems to me that it is very unlikely that you wrote this argument yourself, that somebody must have written it for you.

MR RAHMAN (through interpreter): I told somebody and he has written in English.

McHUGH J: Yes, but there is nothing in there which suggests error on the part of the Tribunal.

MR RAHMAN (through interpreter): Whatever the Tribunal has told me there that you do not have any fear of persecution.

McHUGH J: What the Tribunal found was, you had no well-founded fear of persecution. You may have a fear yourself, but the Tribunal held it is not well-founded, that you have got no real basis for your fear.

MR RAHMAN (through interpreter): Whatever I wanted to tell there, they did not give any value what I had a problem in Bangladesh.

McHUGH J: Well, the Tribunal said that although they had grave doubts about the truthfulness of this corrected version that you gave, nevertheless it would proceed on the assumption that it was true, but even if it was true, it did not establish that you had a well-founded fear.

MR RAHMAN (through interpreter): That thing I want to raise, that what is a defence between the - if they said they are true, then why not well-founded?

McHUGH J: Well the Tribunal made a judgment and they said, first of all, that Mr Rahman had given one version about matters and then in September 1988, by letter, he put forward a quite different version and, over and above everything else, the Tribunal found that you did not lack protection in the State of Bangladesh, that the government would protect you. Mr Rahman, these matters were for the judgment of the Tribunal, not for this Court. It is not for us to judge whether you had a well-founded fear of persecution or not, that was for the Tribunal, and the Tribunal found that you did not have such a fear and unless you can point to some error in that, there is nothing we can do.

CALLINAN J: And, Mr Rahman, the two other courts could not find any error either. The Full Federal Court found no error.

MR RAHMAN (through interpreter): Nobody understand what I want to tell the Court. This is a big problem. Three times they call interview and they rejected, and when they sent a letter, they sent a letter on the wrong address. I did not receive that letter on my own address and I came to the Federal Court and this Court only to tell that. They have not sent letter of rejection to my address. I did not receive the letter.

McHUGH J: But Justice Wilcox ordered a new hearing. He had a second hearing, did he not?

MR RAHMAN: Not that one, it is first.

McHUGH J: You are talking about the first one?

MR RAHMAN: Yes.

McHUGH J: But we are not concerned with the first, that is over. You got a second hearing, and that is what it is about and your case was heard a second time.

THE INTERPRETER: I am telling him about the rejection of the Federal Court and High Court.

McHUGH J: The Parliament has said that the Tribunal is to be the experts, they are to judge these claims, and that it is not for the courts to be judging whether your claim should be accepted or not. It is only when the Tribunal makes a legal error that the Courts can do something to interfere, and that is what happened in respect of your first case. The Tribunal made an error and it was sent back to them. Now, I have pointed out to you the difficulties. Is there anything that you want to point to that constitutes an error by the Tribunal - a legal error?

MR RAHMAN (through interpreter): I have given - all that I have found I have already presented to the Court.

McHUGH J: I am sorry, he has - - -?

THE INTERPRETER: Whatever I have found, I have given already, that is the thing.

McHUGH J: Thank you, Mr Rahman. We have read your papers and we have listened to what you had to say. We need not hear you, Mr Smith.

The Court has carefully read the written submissions contained in the applicant's summary of argument and has heard what he has said today in support of the application. However, we have come to the very firm conclusion that he has failed to show any ground whatever for the grant of special leave. That being so, we must dismiss the application.

MR SMITH: I would ask for an order for costs.

McHUGH J: Do you really press it? I suppose you are instructed - - -

MR SMITH: Yes.

McHUGH J: Mr Rahman, the Minister has - sorry. (To interpreter) Did you tell him what has happened.

MR RAHMAN (through interpreter): I have financial difficulties. I am unable to pay the costs, your Honour.

McHUGH J: Yes. Well, I understand that. However, we really have no option. We have to order you to pay the costs but it seems most unlikely that the Minister will be able to get them from you.

The formal order of the Court is application dismissed, the applicant to pay the costs of the application.

Adjourn the Court.

AT 2.29 PM THE MATTER WAS CONCLUDED