Hossain v Minister for Immigration and Multicultural Affairs

[2001] FCA 1202

FEDERAL COURT OF AUSTRALIA

Hossain v Minister for Immigration & Multicultural Affairs [2001] FCA 1202

MAHMUD HOSSAIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 898 of 2000

WHITLAM J
29 AUGUST 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 898 of 2000

BETWEEN:	MAHMUD HOSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	29 AUGUST 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.        The applicant pay the respondent’s costs.

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 898 of 2000

BETWEEN:	MAHMUD HOSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	29 AUGUST 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under s 476 of the Migration Act 1958 (“the Act”) to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 July 2000 affirming the decision not to grant the applicant a protection visa.

2. The applicant is a citizen of Bangladesh.  He claimed to fear persecution for reason of his political opinion.  The Tribunal’s reasons comprise 19 pages.  It summarized the key findings as follows (at p 19):

   “In summary, I do not accept that the Applicant was a member of the Jatiya Jubo Command, that he faces outstanding charges, or that the Awami League attacked him, tried to kill him or attacked his house and injured his family member.  I am of the view that the Applicant fabricated these claims in an attempt to create for himself the profile of a refugee.  Having rejected the Applicant’s claims in relation to the Jatiya Jubo Command on the facts, I cannot be satisfied that he has a well-founded fear of persecution for a Convention reason.  I note that the Applicant has not been involved in political activities in Australia.  In the circumstances, I consider that the chance that he would become involved in political activities if he returned to Bangladesh is remote and insubstantial.”

3. According to independent evidence noted by the Tribunal, the Jatiya Jubo Command was the youth wing of the Bangladesh Freedom Party whose activists were harassed by the Awami League government of that country.  The reference to “outstanding charges” relates to the applicant’s claim to be one of several persons charged with offences allegedly committed in Dhaka on 31 January 1997.  The Tribunal had earlier set out in some detail all the claims made by the applicant, both in writing and in oral evidence at a hearing before the Tribunal.

4. The applicant lodged with his protection visa application a range of documents.  Amongst them were what purported to be certified copies of a First Information Report dated 1 February 1997 prepared by a police sub-inspector in Dhaka, a Warrant of Arrest dated 2 February 1997 signed by the Chief Metropolitan Magistrate of Dhaka, a Charge Sheet dated 3 July 1997 prepared by another Dhaka police sub-inspector and Order Sheets dated 12 November 1997 from the Chief Metropolitan Magistrate’s Court at Dhaka.

5. The Tribunal said (at p 14) that it did not consider the applicant to be a reliable or credible witness.  It then made (at pp 15-19) a number of specific findings for which it gave reasons.  The Tribunal considered that the failure of the police to arrest the applicant before he left Bangladesh was strong evidence that there were, in fact, no outstanding charges against him.  Specifically, it said (at p18):

   “I note the documents provided by the Applicant in support of his case.  As noted above, the independent evidence before me, which I accept, indicates that there is a very high level of document fraud in Bangladesh.  The evidence also indicates that fraudulent documents can be obtained with the assistance of the police and that lawyers in Bangladesh will provide, for a fee, a letter advising that it is unsafe for an asylum seeker to return to Bangladesh.  Given this independent evidence, I am unable to place any weight on the court and police documents provided by the Applicant in support of his claims.”

6. The amended application for an order of review relies on the grounds specified in pars (e) and (g) of s 476(1) of the Act. As developed by counsel for the applicant, however, the case depends solely on s 476(1)(g). The focus of challenge was the finding by the Tribunal that the applicant was not facing charges in Bangladesh. Counsel submitted that it was impossible for the Tribunal’s findings on credibility to be unaffected by its perceptions about the authenticity of the documents I have described in [4] above. Although counsel referred to a transcript of the hearing before the Tribunal, he expressly eschewed any attack based on the rules of natural justice. It is said that the Tribunal made a finding of fact that the documents in question were fraudulently obtained and that that fact did not exist.

7. In order to establish the authenticity of the documents, the applicant tendered in this proceeding what purported to be certified copies of a Warrant of Arrest issued on 30 March 1998 by a Session Judge of Dhaka and the Order Sheet of the Session Judge Court, Dhaka for the period between 20 January 1998 and 27 November 2000. Counsel for the respondent objected to the tender on several grounds, but primarily on the ground of relevance. He submits that the applicant’s case misconceives the ground of review under s 476(1)(g) of the Act.

8. I accept the respondent’s submission. The first requirement of s 476(1)(g) is not made out. There was other evidence to which the Tribunal referred to justify its decision. The applicant’s approach is impermissible for reasons recently explained by the Full Court in Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [31] - [32].

9. Further, whilst the position is that the tendered documents would, in any event, not establish the authenticity of the documents submitted with the visa application, such authenticity was not a fact upon the existence of which the decision was based.  See Khan v Minister for Immigration and Multicultural Affairs [2001] FCA 736 per Gyles J at [7] - [12].

10. The applicant has failed to make out the ground of review pressed.  The application will 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 Honourable Justice Whitlam.

Associate:

Dated:             28 August 2001

Counsel for the applicant:	W G Hodgekiss
Solicitor for the applicant:	Philip Parbury & Associates
Counsel for the respondent:	Dean Jordan
Solicitor for the respondent:	Blake Dawson Waldron
Date of hearing:	21 February 2001
Date of judgment:	29 August 2001