Hossain v Minister for Immigration and Multicultural Affairs

[2000] FCA 1137

FEDERAL COURT OF AUSTRALIA

Hossain v Minister for Immigration & Multicultural Affairs [2000] FCA 1137

MD AMJAD HOSSAIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1420 OF 1999

LEHANE J
15 AUGUST 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1420 OF 1999

BETWEEN:	MD AMJAD HOSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LEHANE J
DATE OF ORDER:	15 AUGUST 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the application.

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 1420 OF 1999

BETWEEN:	MD AMJAD HOSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LEHANE J
DATE:	15 AUGUST 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, a Bangladeshi national, arrived in Australia on 4 September 1997.  He carried a Bangladeshi passport issued, he said, in a false name and bearing an Australian visa (he has subsequently obtained, in Australia, a Bangladeshi passport in what he claims is his own name).  On 21 October 1997, he lodged an application for a protection visa.  A criterion for such a visa is that the applicant for the visa be a non‑citizen in Australia to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol related to the Status of Refugees (Migration Act 1958 (Cth) s 36(2)). The application form was lodged on behalf of the applicant by a migration agent. It was incomplete, because the questions requiring particulars of the basis of the applicant’s claim to be a refugee were answered “please see my statutory declaration when provided”. No statutory declaration was ever provided to the Minister. It followed that the “application” was not valid (Migration Act s 45; Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435). Section 47(3) of the Migration Act provides that the Minister is not to consider an application that is not a valid application.  Nevertheless, a delegate of the Minister considered the application and purported to refuse it.

2. On 28 November 1997, the applicant lodged an application for review by the Refugee Review Tribunal of the decisions purportedly made by the delegate.  The applicant provided to the Tribunal various documents said to establish his identity and some aspects of his circumstances.  The Tribunal informed him, by letter dated 7 October 1999, that it was not prepared to make a favourable decision on the papers.  The Tribunal offered the applicant a hearing on 4 November 1999, an offer which the applicant accepted.  On 3 November 1999, however, the applicant submitted a medical certificate, on the basis of which he claimed to be unable to attend the hearing the following day.  The hearing was accordingly stood over to 11 November.  Up to that time the foreshadowed statutory declaration, setting out the basis of the applicant’s claims, had still not been provided either to the Minister or to the Tribunal.  The declaration, dated 10 October 1999, was provided to the Tribunal on 10 November 1999.

3. The Tribunal proceeded to conduct a hearing on 11 November 1999. It gave its decision orally at the conclusion of the hearing and then, on 17 November 1999, sent the applicant, as required by s 430D of the Migration Act, a copy of the statement prepared in accordance with s 430.  Its decision was to affirm the decision of the delegate not to grant the applicant a protection visa.

4. The applicant now seeks judicial review of the Tribunal’s decision under Pt 8 of the Migration Act.  The sole ground stated in the application (which the applicant lodged himself, though he appears to have had some assistance – probably not legally qualified assistance – in its preparation) is error of law “involving an incorrect interpretation of the application of the law to the facts as found by the person who made the decision” (Migration Act s 476(1)(e): the application may be taken to raise both limbs of that ground). At the hearing, however, counsel for the Minister drew attention to the fact that the invalidity of the initial application for a protection visa might, having regard to cases such as Li Wen Han v Minister for Immigration and Multicultural Affairs [2000] FCA 421 and Kundu v Minister for Immigration and Multicultural Affairs [2000] FCA 560, have the result that the decision of the Tribunal was liable to be set aside under s 476(1)(b) or (c) of the Migration Act.  The Minister indicated that he would consent to an amendment of the application so as to raise those grounds, submitted that I should refuse to follow Li Wen Han and Kundu and that accordingly the application should be dismissed and suggested that, in any event, I should defer delivering judgment until the Full Court had delivered its decision in a pending appeal which squarely raised the applicability of the grounds in s 476(1)(b) and (c) in cases such as the present. The applicant consented to that course.

   FULL COURT DECISION

5. On 14 July 2000, the Full Court delivered its decision in Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906. In that case, as here, a delegate of the Minister purported to make a decision refusing an application for a protection visa where the form of application did not specify the basis on which the applicant claimed an entitlement to protection: the relevant questions were answered “statement to follow”. The applicant in fact signed a statutory declaration and sent it to the Minister but, by the time it was received, the delegate had already made the decision refusing the application. That declaration and a further statutory declaration were before the Tribunal, to which the applicant applied for review of the delegate’s “decision”. The Tribunal affirmed the decision not to grant a protection visa. The Full Court held by majority (Spender and Gyles JJ; Marshall J dissenting) that it was not a requirement of a valid application for a protection visa that the form of application be complete in all respects when initially lodged; deficiencies might be made good by the subsequent lodgement of additional material. It held also that, since s 415 of the Migration Act permits the Tribunal to exercise all the powers and discretion of the original decision maker, the Tribunal might exercise those powers on review, if then in possession of information necessary to complete the application, even if the original decision maker proceeded on an invalid application.

6. I am bound by the decision in Yilmaz.  The parties have had the opportunity to lodge further written submissions in the light of that decision, and the applicant has lodged submissions which do not, however, suggest any relevant distinction between Yilmaz and this case. In my view there is, in the circumstances I have described, no such distinction. Consequently, if the application were amended so as to rely on s 476(1)(b) or (c), it would, to that extent, fail. Despite the Minister’s expressed attitude, there has been no application to amend. This aspect of the case may, therefore, be left at that.

   ERROR OF LAW?

7. In order to deal with this ground it is necessary to refer briefly to the claims made by the applicant before the Tribunal.  The applicant claimed to have been born on 15 May 1964 in what is now Bangladesh.  His parents, he said, were born in Bihar.  From 1947 they resided in Pakistan.  The applicant’s declaration makes a series of general statements about persecution of the Bihari community following the formation of Bangladesh as an independent state in 1971.  It refers also to persecution by the Pakistan government of members of the Bihari community who had resettled in Pakistan.  The essence of his own claims appears in the following two paragraphs of his declaration:

   “However, because of continuos [sic] torture in Bangladesh on the Biharee Community, therefore we demonstrated peacefully on the street by handing out letters and putting up posters and shouting slogans, demanding to stop all sorts of disorientation’s [sic] by the Administrations as well as the Bangladesh Nationals, and also demanded to either accept us or arrange our safe departure to Pakistan.  During the time of peaceful demonstration under my leadership, we handed out pamphlets, placed wall posters, made speeches and demanded the Government to accept our reasonable demands.  Therefore, the police along with Bangladesh settlers surprisingly attacked on our peaceful demonstration on 29 July 1994, by spraying tear gas, along with random beatings and bashing of the demonstrators, with the help of the Bangladesh Police.  During the time of their barbarian attack on our peaceful demonstration, most of our community had been seriously injured and some of the supporters had been detained by the Police.  However, we were lucky enough to escape from the occurrence with serious injuries as the Law Enforcement Authorities as well as the Bangladesh settlers intention was to arrest us for prosecution.  At the time of the Police assault, some Police officers were also injured by the stones, which were thrown by the Bangladesh Nationals with the intention to injure us.

   Immediately after the incident, the Police formerly [sic] accused us in involving anti‑state activities as well as possession of illegal weapons with the intention to create an unlawful Law and Order situation with the instigation of an International Secret Agent.  The Police started in interrogating our community members and searched in various places to detain me for prosecution.  In addition, the Police has formerly [sic] submitted a charge sheet against myself and my other friends on the basis of which the court declared us absconders, and ordered the Law Enforcement Authorities to arrest us anywhere we could be found.  Therefore, I have found my life sudden danger and accordingly I managed to obtain a passport in a different name through an agent, who also helped my safe departure from Bangladesh for the sake of my life from prosecution.  Therefore, I certainly believe that I am possibly facing vigorous punishment upon my return to Bangladesh, and therefore, request the Honorable [sic] Tribunal to consider my application.”

8. The applicant relied also on a number of documents, some of which he had supplied to the Minister in support of his initial application, others of which he provided later to the Tribunal.  The documents provided to the Minister included what purported to be an extract from a register of births giving the applicant’s date of birth as 15 May 1964 and his place of birth as an address in Dhaka; certificates relating to a secondary school certificate examination and a higher secondary school certificate examination; a driving licence; and a document which is dated 12 September 1978 and appears to be a form of identity card, bearing a photograph of the applicant, stating his name, his father’s name and his date of birth and giving as his “address in camp” Hut‑285, Block C, Geneva Camp, Mohammadpur, Dhaka‑1207 (the camp, apparently, was a large camp occupied by Bihari refugees).  The first of the later group of documents is a certificate purporting to come from the Non‑Local Relief Committee, Zone “A”, Geneva Camp, certifying that the applicant, “at present residing at 4/5, South Kalyanpur, Mirpur, Dhaka, Bangladesh”, “was an inmate of this camp”.  The certificate continues:

   “His family members are Behari Refujee [sic].  At emergence of Bangladesh in 1971 the behari [sic] people were rendered, homeless, jobless and became distressed and stateless as refujees [sic] passing their days of lives in utter miserable condition and struggling of their settlement.”

9. The next document purports to be a report by a police officer to a superior in the police force at Mohammadpur, Dhaka, reporting in graphic terms on a Bihari protest (“… they were delivering anti‑Govt. and anti‑state slowgans [sic] in obsence [sic] languages.  They closed the main road and destroyed many Govt. and public properties vehicles etc. …  We requested them earnestly not to deliver such type of anti‑Govt. slowgans [sic] as a result of which they burnt with envy and got infuriated on us and begun to throw brick bats on us and exploded some bombs towards us one after another … .  We to control this predicament situation used tear gas to disperse them, and advanced with fortitude to arrest them, …  All the accused are biharies [sic] known as stranded Pakistanies [sic].  They were hideous, ferocious, turbulent, rampant and contumacious in nature …”).  The final document purports to be a charge sheet listing, among others, the applicant as one of those implicated in the events described in the preceding document.

10. The applicant gave evidence at the hearing before the Tribunal.  The Tribunal’s reasons indicate that his account then did not add anything of significance to what appears from the declaration and the documents.  Significantly, the applicant told the Tribunal that up to the time of his departure from Bangladesh he lived in a hut in the Bihari camp known as Geneva Camp; but the Bangladeshi passport which he obtained in Australia, his application for a protection visa, his driving licence and the “Non‑Local Relief Committee” certificate all state, as his address, a street address in Dhaka.  The Tribunal records, as the applicant’s explanation, that his family used the address as a mailing address because there was no way to receive mail inside the camp.

11. The Tribunal did not accept the applicant’s claims.  It found that several, at least, of the documents which he had produced were falsified (it recorded that the applicant had, during the hearing, in effect accepted that some of the documents were falsified).  The Tribunal expressed itself as “absolutely satisfied that the Applicant is a party to the falsification of all the evidence in this matter purporting to portray him as a person without Bangladeshi nationality who lived in a Bihari camp until his trip to Australia and who has been hunted by Bangladeshi authorities since his leadership of a protest”.  The Tribunal went on to find that, on the evidence of the primary application form and the second passport, it could not accept that the applicant had not chosen or accepted Bangladeshi nationality (as he claimed before the Tribunal) or that, from independence until he left Bangladesh, he lived in the camp.  Indeed, the documents led the Tribunal to find “[that] the Applicant never lived in the camp” and that finding was “considered by the Tribunal to be conclusive”.

12. I can detect no error or, indeed, any substantial reason for concern, in the reasoning process which led the Tribunal to those conclusions.  Three matters, among those on which the Tribunal relied, will sufficiently demonstrate this.  First, there is the identity card purportedly dated in 1978.  The Tribunal described that as a “pristine document” which could not be as old as its date suggested; and the photograph which it bore was one of the applicant as he appeared before the Tribunal, not as he might have appeared over twenty years earlier.  The Tribunal recorded that the applicant, confronted with those difficulties, accepted that the document was a reconstruction.  Secondly, the applicant at first suggested to the Tribunal that the police documents were originals, not translations.  When the Tribunal pointed out that the report concluded “yours faithfully, sd/illegible” the applicant resiled from that position.  Thirdly, the applicant’s language of choice (he gave evidence to the Tribunal, as he addressed the Court, through a Bengali interpreter) was Bengali, not Urdu.  Additionally, the Tribunal relied on country information which presented a very different picture from that suggested by the applicant of the treatment of Biharis by both Bangladesh and Pakistan.

13. The applicant’s submissions were to the effect that the Tribunal had reached erroneous conclusions of fact. But that, of itself, even if made out, is not a ground on which the Court can set aside the Tribunal’s decision.  The findings of fact to which I have referred led the Tribunal necessarily to the conclusion that it was not satisfied that the applicant was a refugee.  To reach that conclusion on those findings was not itself erroneous in law; and, at the beginning of its reasons, the Tribunal summarised the relevant law in a conventional way which does not suggest that the Tribunal in any respect misunderstood it.  The ground on which the applicant relies in this proceeding, accordingly, is not made out.  Nor is any other reviewable error evident on the material before me.

    CONCLUSION

14. It follows that the application is dismissed.  The Minister seeks an order for payment of his costs.  There is nothing in the circumstances of the case which, in my view, should lead to any order other than the usual one.  Accordingly, I order also that the applicant pay the respondent’s costs of the proceeding.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate:

Dated:             15 August 2000

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 May 2000
Date of Judgment:	15 August 2000