Hossain v Minister for Immigration & Multicultural Affairs [1999] FCA 739 (3 June 1999)

Last Updated: 4 June 1999

FEDERAL COURT OF AUSTRALIA

Hossain v Minister for Immigration & Multicultural Affairs [1999] FCA 739

MIGRATION - protection visa - review of Refugee Review Tribunal determination that applicant not a refugee - no point of principle

Migration Act 1958 (Cth), ss 36, 476

Matter No. N 65 of 1999

KABIR HOSSAIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VON DOUSSA J

SYDNEY

31 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N65 OF 1999

BETWEEN:	KABIR HOSSAIN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	VON DOUSSA J
DATE OF ORDER:	31 MAY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of these proceedings.

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	N65 OF 1999

BETWEEN:	KABIR HOSSAIN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	VON DOUSSA J
DATE:	31 MAY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for a review of a decision of the Refugee Review Tribunal (the RRT) made on 7 January 1999. The RRT found that Kabir Hossain, a Bangladesh national, was not a refugee for the purposes of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York as at 31 January 1967 (the Convention). As the RRT held that Mr Hossain was not a refugee he was not entitled to a protection visa under s 36 of the Migration Act 1958 (Cth) (the Act). Article 1A(2) of the Convention defines a refugee as any person who,

"owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

2 This application is brought under s 475 of the Act. By s 476 the powers of this Court on a review are limited. The Court may only grant judicial review on one of the grounds specified in s 476(1). The application seeks to invoke the ground stated in s 476(1)(e), namely that the decision involved an error of law, being an error involving an incorrect interpretation of the law or an incorrect application of the law as to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision. The application merely repeats the relevant language of s 476(1)(e) and does not give particulars of an error of law or of a reason why it is said that there was an incorrect interpretation or application of the law. The application does no more than state that the applicant genuinely believes that he has substantial grounds and presented an enormous amount of evidence to the Department of Immigration and Multicultural Affairs (the Department) as well as to the RRT which incorrectly assessed his application.

3 The applicant arrived in Australia on 6 December 1997. He was interviewed along with the three travelling companions with whom he arrived at the Brisbane airport. The leader of the group, a Mr Chowdhury, said that he was here with the applicant and the others to purchase cattle. Mr Chowdhury said that the applicant had been employed by him as a farm assistant for three months.

4 On 5 January 1998 the applicant made an application for a protection visa asserting that he was a refugee. His application was refused and a subsequent application to have the decision reviewed had also been declined. The applicant put forward his case that he is a refugee on the following grounds. He said that he is a citizen of Bangladesh. He claimed that he has been an active member of the political party, Bangladesh National Party (BNP) which was in government in Bangladesh between 1991 and 1996. He said that he could not sit his final exams at school because of his association with student politics. He was a student leader of the student union of the BNP. He said that in 1983 he left school with no formal qualifications and joined a branch of the BNP and in 1988 became general secretary of a regional branch of the party. Before the RRT the applicant produced a certified letter from the Dhaka City Committee of the party confirming his position. He said that he was well known in the Dhaka district and during the 1996 elections he canvassed from door to door to obtain votes for the local party candidate. That candidate, who had been a former student leader, failed to gain election and an Awami League candidate won the particular seat. As a consequence he says that workers for the defeated candidate became victims of a ferocious revenge carried out by the supporters of the elected member.

5 A number of revengeful acts which affected the applicant were described by him to the RRT. He said that on 1 July 1996 his house was looted by Awami League supporters and his father and a brother were wounded. After that he said many attempts were made on his own life. The last of those attempts was on 6 April 1997 following which he was admitted to a private clinic. That attempt involved an attack upon him on a public road. In addition, he said that Awami League activists made a number of false reports about him, and others, to the authorities. In consequence he had been falsely charged with offences he did not commit. He alleged a number of false charges are still outstanding against him. He said that the charges allege that he and others on 24 June 1997 conducted a party meeting whilst armed in the field of a primary school. Another charge alleges that the applicant in company with others attended a government primary school on the same day. In support of these allegations the applicant produced a letter from his lawyer regarding pending charges and also a copy of an arrest warrant dated 10 August 1997 which is referred to in the lawyer's letter.

6 The applicant gave evidence to the RRT that the passport on which he travelled to Australia was issued without difficulty in Dhaka on 11 August 1996, and that he left Bangladesh legally from the international airport.

7 The RRT in its reasons for decision canvassed the evidence produced by the applicant and evidence available to it from other sources including evidence about the political situation in Bangladesh. The RRT observed:

"When determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims that have been made. That may involve an assessment of the credibility of the applicant. When assessing such credibility the Tribunal must be sensitive to the difficulties often faced by asylum seekers and should give the benefit of the doubt to those who are generally credible but who are unable to substantiate all of their claims. However, a decision maker is not required to accept uncritically any and all allegations made by an applicant. It is not necessary to have rebutting evidence available to the Tribunal before it can find that a particular factual assertion by an applicant has not been made out nor must it accept claims which are inconsistent with independent evidence regarding the situation in the applicant's country of nationality."

8 In my opinion that statement correctly describes the function which the Tribunal was required to carry out.

9 On the material before it the RRT accepted that the applicant was a national of Bangladesh. The RRT accepted that ordinary members of the BNP have been subjected to attacks in Bangladesh by members of other political parties, particularly the Awami League. However, apart from the applicant's own assertions and the letter from a person purporting to be the office secretary at the Dhaka City Committee, there was no evidence that the applicant had any connection with the BNP. The RRT did not accept the applicant as a credible witness and it did not accept his claims that he was an activist for the BNP. Moreover, the RRT did not accept the applicant's claim of politically motivated false charges against him. The RRT did not accept the documents which he had tendered in support of his claim as genuine documents, and in so far as the applicant alleged that he had been attacked on several occasions the RRT did not accept that any attacks on him were motivated by political opinions. The RRT gave reasons for reaching these adverse conclusions.

10 The RRT did not accept the applicant as a credible witness because he had during the course of the hearing knowingly admitted making false statements to the Department on two occasions and admitted knowing that a false document apparently obtained by Mr Chowdhury had been presented to the Department in support of his claim to the effect that he was a person of good repute. The RRT also considered that a number of the claims made by him were internally inconsistent, and that many claims given in evidence before the RRT had not been raised on earlier occasions when it could have been expected that they would have been raised had they been true.

11 The RRT had before it independent evidence that false documents were readily available in Bangladesh. That evidence was brought to the applicant's attention during the hearing. The RRT also had the applicant's admission that another letter bearing the same date as the letter from Dhaka City Committee of the BNP was false. On the totality of the evidence the RRT therefore concluded that the letter from the Dhaka City Committee was itself false as was the arrest warrant and the letter from the lawyer. The RRT also gave other reasons for not accepting the applicant's claim that charges against him were politically motivated. The alleged charges were made some five months before the applicant departed for Australia. The RRT considered his evidence that the police could not find him was implausible as he had lived at the same address for some ten years and continued in regular employment. Further the RRT had available to it a journal published by the BNP called "Evidence" which purported to list comprehensively the party officials which had been charged following the election. The applicant was not mentioned as one of the parties charged in the journal.

12 In the course of the hearing the applicant had shown to the RRT scars on his legs and the applicant asserted that these were caused by assaults upon him by the Awami League supporters. The RRT did not accept that the scars were so caused. The RRT noted that there was evidence that many non politically motivated assaults occurred in Dhaka and the applicant had failed to mention the assault that was said to have caused the scars when he made his original application.

13 These findings of fact were open to the RRT on the material before it and it was open to the RRT to disbelieve the evidence of the applicant.

14 In essence the applicant's complaint is that the RRT got the facts wrong. What the applicant seeks from this Court is a review of the findings of fact on the merits. Section 476 of the Act does not allow this Court to conduct a merits review.

15 The applicant has misunderstood the limited role and functions of this Court. At today's hearing the applicant said that he wished more time to enable him to obtain further documents from Bangladesh. He said those documents would be supportive of the facts which he asserted. However, this Court cannot receive new evidence, nor for the reasons that I have given can this Court reopen the findings of fact already made. This Court can only interfere with the decision of the RRT if an error of law is demonstrated. No error of law has been demonstrated and for that reason the application must be dismissed.

16 There will be an order that the applicant pay the respondent's costs of these proceedings.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.

Associate:

Dated: 31 May 1999

The Applicant appeared in person:
Counsel for the Respondent:	Mr D Godwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 May 1999
Date of Judgment:	31 May 1999