Hossain v Minister for Immigration & Multicultural Affairs [2001] FCA 46 (6 February 2001)

Last Updated: 7 February 2001

FEDERAL COURT OF AUSTRALIA

Hossain v Minister for Immigration and Multicultural Affairs [2001] FCA 46

IMMIGRATION - appeal from decision dismissing an application for an order for review of a decision of the Refugee Review Tribunal - applicant claimed that he would face persecution from the Awami League if he was returned to Bangladesh because he is a member of the Bangladesh National Party - RRT found Appellant not a credible witness in relation to material claims and otherwise failed to establish genuine fear of persecution if returned to Bangladesh - inability of Court to interfere with findings of fact of Tribunal - no error of law demonstrated.

PRACTICE AND PROCEDURE - new ground of review not raised before primary judge.

Migration Act 1958 (Cth).

Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 referred to.

He v Minister for Immigration and Multicultural Affairs (1997) 72 FCR 342 referred to.

MOHAMMAD DALOWER HOSSAIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1134 OF 2000

WILCOX, WEINBERG & CONTI JJ

6 FEBRUARY 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1134 OF 2000

BETWEEN:	MOHAMMAD DALOWER HOSSAIN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WILCOX, WEINBERG & CONTI JJ
DATE OF ORDER:	6 FEBRUARY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Appeal be dismissed.

2. The Appellant to pay the costs of the Respondent.

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	N 1134 OF 2000

BETWEEN:	MOHAMMAD DALOWER HOSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WILCOX, WEINBERG & CONTI JJ
DATE:	6 FEBRUARY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1 This is an appeal from the decision of a judge of this Court, made on 13 October 2000, to dismiss the Appellant's application for an order of review of the decision of the Refugee Review Tribunal ("the RRT") made on 11 May 2000, whereby his Honour affirmed the decision of the delegate of the Minister not to grant the Appellant a protection visa, because as in the case of the delegate, the RRT was not satisfied that the Appellant was a refugee within the Convention definition.

Factual Background

2 The Appellant is a Bangladeshi national born in July 1968. He has four brothers and one sister, all of whom are still living in Bangladesh. His father had operated a business there but is now retired and lives with his mother. All of his family continue to reside in Bangladesh. The Appellant came to Australia on 22 August 1998 on a visitor's visa, and two days later on 24 August 1998 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 7 October 1998, a delegate of the Minister refused his application. The Appellant has resorted to the usual avenues of review and appeal of and from this decision. The Appellant has not yet been successful.

3 When the matter came before the RRT, the Appellant claimed that he had a well-founded fear of persecution for reasons of political opinion. Such claim was said to arise out of his support for the Bangladeshi Nationalist Party ("the BNP"). In 1996, the Awami League (the AL") was the successful party in the Bangladesh election. The AL and the BNP are political opponents, if not enemies. It was acknowledged by the RRT that since the AL's victory in 1996, there have been substantiated accounts of violence involving the supporters of the two parties. It was also recorded by the RRT that the AL has engaged in the practice of abusing its powers by attacking and falsely accusing its political enemies namely members of the BNP. Indeed the Appellant claimed that false charges were laid against him through the influence of the AL. The Appellant submitted to the RRT that he was amongst the political enemies of the AL.

4 In 1993, some time prior to the AL obtaining power, the Appellant left Bangladesh to work in Malaysia. He remained there for five years, whereupon he travelled to the Philippines and ultimately obtained a visitor's visa to Australia.

5 The Appellant explained to the RRT that he had no choice but to leave Bangladesh in light of the false charges brought against him (see [3] above). These charges were said to have been a result of the influence of the AL. We should add, however, that these charges were brought when the BNP was still in power. The Appellant also told the RRT that one of his brothers had been an unsuccessful candidate for a local seat in Bangladesh, and that as a consequence, the Appellant's family is said to have faced constant persecution. But when asked to give some examples of such persecution, the RRT found the Appellant to be slow in responding, and the only example he provided involved an incident when his brother (the one who stood for election) had his motor bike stolen by the successful AL candidate. The RRT correctly recognised this as an event of theft and criminality, and not of persecution. The Appellant nevertheless pressed his claim before the RRT for a well-founded fear of persecution upon the following bases in summary as follows:

(i) false charges against him still remain and have not been dismissed;

(ii) his family has been seriously mistreated since the AL's victory in the 1996 election; and

(iii) such mistreatment on the part of the AL would extend to him if he was to return to Bangladesh.

The RRT's conclusions

6 The relevant findings of the RRT can be summarised as follows. Though it was accepted that the Appellant was a supporter of the BNP, the RRT rejected the claim that he was a member of the BNP. The RRT also rejected claims by the Appellant that false charges were brought against him and that his family has suffered ongoing persecution since the AL's political victory in the 1996 elections. The RRT concluded that although there was enmity between the AL and the BNP in Bangladesh, this circumstance would have no relevant consequence to the Appellant should he return there, particularly given that he has not been present in Bangladesh for seven years. The RRT further concluded that during that time, the Appellant had in effect avoided the BNP government's struggle for political survival, and he must now be almost forgotten by his former allies and enemies.

The decision of the primary judge

7 When the matter was before the primary judge, there were four grounds upon which it was sought to have the RRT's decision set aside. They can be summarised as follows:

(i) The RRT ignored the Appellant's claim that he had been oppressed by his political opponents.

(ii) The RRT was biased in a certain respect.

(iii) The RRT failed to look at certain newspaper reports which concerned violent acts carried out against persons engaged in political activities.

(iv) The RRT was further biased apparently in a certain second respect.

The primary judge held that the RRT did not ignore the Appellant's claims. Instead, such claims, at least for the most part, were not believed and were rejected by the RRT. In relation to the two claims of bias, there was nothing the Appellant identified of any real substance to his Honour in order to support the same. Finally, the alleged failure of the RRT to pay regard to documents concerning violent attacks on political activists was substantially misconceived. Furthermore, although the RRT accepted that there existed enmity between the BNP and the AL, nevertheless the RRT concluded that such enmity would not adversely affect the Appellant if he returned to Bangladesh, for the reasons articulated by the RRT (see [6] above).

The Appeal.

8 The grounds of appeal are expressed in very general terms as follows:

(i) that procedures required by the Act and Regulations in making the decision were not observed; and

(ii) that there was no evidence to justify the making of the decision.

Such first ground of appeal is not supported by any reasoning or example of how the procedures required by the Migration Act 1958 (Cth) and Regulations were not complied with by the RRT. Moreover, this ground was not relied on by the Appellant when the matter came before the primary judge for hearing. It is therefore not appropriate, nor in the interests of justice, that the Appellant be allowed to raise such ground of review before the Full Court, the same not having been articulated before the primary judge, and is still not being explained, much less satisfactorily so: cf Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 at 416 per Lee J. The first ground of review must fail.

9 The second ground of review must also fail, because it is misconceived in relation to what the RRT found and the manner in which the primary judge addressed the testimony of the Appellant to the RRT. The RRT rejected the evidence proffered by the Appellant concerning his alleged persecution and apprehension of further persecution by members or followers of the BNP, finding that the same was lacking in credibility. His Honour held that he was not entitled to interfere with or reverse such factual findings of the RRT, and in so doing he was plainly correct: cf He v Minister for Immigration and Multicultural Affairs (1997) 72 FCR 342 at 344 per Davies J. The primary judge was therefore correct in rejecting the grounds for review before him.

10 Accordingly, the appeal should be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 6 February 2001

Counsel for the Applicant:	Appellant appeared in person
Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 February 2001
Date of Judgment:	6 February 2001