Hossain v Minister for Immigration and Multicultural Affairs

[2001] FCA 315

FEDERAL COURT OF AUSTRALIA

Hossain v Minister for Immigration & Multicultural Affairs [2001] FCA 315

MIGRATION – application for a protection visa – well-founded fear of persecution for reason of political opinion – delegate refused application on mistaken assumption that no supporting material provided - the application became valid on receipt of the supporting material – whether the Tribunal’s decision involved an error of law under s 476(1)(e) of the Migration Act 1958 (Cth) – grounds raised seek to challenge Tribunal’s factual findings.

Migration Act 1958 (Cth) s 476(1)(e)

Yilmaz v Minister for Immigration and Multicultural Affairs [2000] 100 FCR 495 followed

A S M MAHTAB HOSSAIN V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N836 OF 2000

MATHEWS J
5 APRIL 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N836 OF 2000

BETWEEN:	A S M MAHTAB HOSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MATHEWS J
DATE OF ORDER:	5 APRIL 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant is to 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	N836 OF 2000

BETWEEN:	A S M MAHTAB HOSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MATHEWS J
DATE:	5 APRIL 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 June 2000 in which the Tribunal affirmed a decision of the respondent’s delegate to refuse the applicant’s and his family’s application for a protection visa.

2. In order to be eligible for a protection visa, an applicant must show that he or she is a 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”.  The applicant says that he has a well-founded fear of persecution in Bangladesh, his country of nationality, by reason of his political opinion.

   FACTUAL BACKGROUND

3. The factual background is as follows.  The applicant, who was born on 1 July 1968, arrived in Australia on 16 October 1998 accompanied by his wife and eighteen-month old daughter.  On 11 November 1998 he applied for a protection visa on behalf of himself, his wife and daughter.  On his application form he said “please see my statutory declaration”.  No statutory declaration was forwarded with the application.  On 24 November 1998 a statutory declaration, bearing that date, was sent to the Department.  Departmental records show that it was received on 27 November 1998. 

4. On 30 November 1998 the respondent’s delegate refused the application, upon the mistaken assumption that no statutory declaration substantiating the applicant’s claim had been received by the respondent.

5. Had the applicant’s statutory declaration not been received by the Department before the date of the respondent’s determination it is likely that the application would have been invalid, with consequential effects upon steps subsequently taken.  However current authority establishes that the claim became valid on receipt of the statutory declaration, which was plainly before the respondent’s delegate made his decision (see Yilmaz v MIMA [2000] 100 FCR 495). This issue is thus of no further concern in these proceedings.

6. The applicant said in his statutory declaration that he had been a prominent political activist in Bangladesh.  In 1989 he joined the Bangladesh Freedom Party (“BFP”).  He became a member of the Executive Committee of the Dhaka District Committee of the party, and was very active in party activities, which included leading processions and participating in demonstrations.  This brought him into conflict with the Awami League (“the League”), which, he said, subjected him to various pressures and threats.  Most significantly, the League lodged what the applicant described in his statutory declaration as a “false and fabricated” charge of murder against him.  This meant that he had to escape Bangladesh, which he said he did in 1993, travelling to Malaysia.  He remained in Malaysia until he left for Australia in October 1998, apart from a very brief return visit to Bangladesh in August 1997.  In Malaysia he met and married his wife, a Malaysian citizen, and his first child was born. 

7. As already mentioned, the respondent’s delegate refused the applicant’s application on 30 November 1998.  On 17 December 1998 the applicant applied to the Tribunal for review of this decision.  Subsequently, on 1 June 1999, a second child was born to the applicant and his wife.  An application for a protection visa was lodged on this child’s behalf on 1 October 1999, and rejected by the respondent’s delegate on 26 October 1999.  This was also the subject of an application to the Tribunal, and was combined with the applicant’s application.  Accordingly, the Tribunal decision of 9 June 2000 dealt with all family members.  As the claims of the other family members were derivative of Mr Hossain’s claim, the Tribunal referred to him as “the applicant”, and I shall do the same.

8. The Tribunal conducted a hearing at which the applicant attended and gave evidence.  A transcript of his evidence was not amongst the material before me, but it was described in the Tribunal’s decision.  In the absence of any suggestion to the contrary, I must assume this to be a generally accurate statement of what transpired at the hearing.  During his evidence, the applicant corrected an error which he said he had made in his earlier statutory declaration.  It was, he said, in May 1992, not 1993, that he left Bangladesh and went to Malaysia.  He had become general secretary of the BFP in January 1992, and remained in that position until he left Bangladesh four months later.  The applicant told the Tribunal that he had planned to remain in Malaysia, but in 1997 the Malaysian Government announced that foreign men who were married to Malaysian women would not be given residency on that basis.  Thus it was that he obtained a visitor’s visa to Australia, and brought his family here in October 1998.

9. In general, as the Tribunal commented in its decision, the claims in the applicant’s statutory declaration as to his political involvement, and the consequential difficulties he suffered in Bangladesh, were considerably greater than the claims he made at the hearing.  This gave the Tribunal “serious reservations” as to the truth or accuracy of the applicant’s claims.  Nevertheless, the Tribunal went on to assess those claims on their merits.

10. The Tribunal did not accept that the applicant was the subject of an outstanding warrant for murder.  If he were, the Tribunal considered that his Bangladesh passport would not have been renewed, as it was, in 1997.  Nor would the applicant have been able to enter and leave Bangladesh using his own passport, in August 1997. 

11. The Tribunal did not accept the applicant’s claim that he was at risk of persecution by reason of his former allegiance with the BFP.  Independent country information indicated that the BFP was, at least until 1996, a legal party.  Some party leaders had been arrested, but this was by reason of crimes which they admitted they had committed, not because of their political opinion.

12. The Tribunal concluded that any fear of persecution the applicant might have for reason of his political opinion was not well-founded.  It thus affirmed the delegate’s decision. 

13. In his application to this Court the applicant, who is not legally represented, said:

    “I certainly believe that the Department of Immigration as well as the Refugee Review Tribunal, has certainly made an error of law being an error involving an incorrect interpretation of the application of the law to the facts as found by the person who made the decision.”

14. This must be taken as a ground under s 476(1)(e) of the Migration Act 1958 (Cth)(“the Act”). That section provides as follows:

    476 Application for review

    (1)Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

    ……

    (e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

15. No particulars of any errors of law were provided with the application. 

16. In the final section of his application, the appellant said:

    “I genuinely believe that I have the substantial grounds and have presented an enormous amount of evidence to the Department of Immigration and Multicultural Affairs as well as the Refugee Review Tribunal, which has incorrectly assessed my application.

    I therefore request the Honourable Federal Court to sympathetically assess my application for a review under Section 476(1)(e) of the Migration Act.”

17. This would appear to be a request for the Court to review the merits of the Tribunal’s decision, something which, as I have endeavoured to explain to the applicant, is outside the jurisdiction of this Court under s 476 of the Act.

18. The application was first listed for hearing on 1 February 2001 before Emmett J.  The applicant told his Honour that he was receiving assistance from a member of the Bangladesh community who had left Australia on vacation and whose return had been delayed through illness.  The applicant sought an adjournment of the proceedings in order to obtain the assistance of this adviser.  His Honour accordingly vacated that hearing date and relisted the matter for 22 February 2001.

19. On 22 February 2001 the applicant appeared on his own behalf.  His command and understanding of English were generally sufficient to enable him to participate in the proceedings, and to present his own oral submissions, but he was assisted by an interpreter when necessary.  The applicant told me that his adviser was still detained overseas.  He sought a further adjournment of the proceedings in order to enable him to pursue alternative avenues for obtaining advice.  This was opposed by Mr Johnson, who appeared for the respondent.  I declined to grant a further adjournment, but allowed the applicant a further two weeks in order to furnish written submissions to the Court.  The applicant also made oral submissions at the hearing.  He complained that the Tribunal member had not shown him some of the documents, containing country information, upon which the Tribunal later relied in its decision.  The Tribunal member, the applicant said, did not ask many questions at the hearing.  The applicant assumed that he would obtain a favourable outcome.  He was surprised to learn that the Tribunal had rejected his application.

20. On 8 March 2001, precisely two weeks after the hearing, the applicant lodged hand-written submissions with the Court.  He said that his adviser had still not returned from overseas and that the submissions were therefore written without legal or other assistance.  In his submission the applicant complained of the delegate’s decision made without regard to his statutory declaration.  As to the Tribunal’s decision, the submissions set out various respects in which, it was suggested, the Tribunal had reached erroneous conclusions.  There is little point detailing them here, for in all cases they related to the Tribunal’s factual findings.

21. Mr Johnson, on behalf of the respondent, noted that the applicant’s written submission sought to cavil with the merits of the Tribunal’s decision.  Mr Johnson did not seek to furnish further submissions in response.

22. Neither the applicant’s oral submissions at the hearing nor his subsequent written submissions raise any material which suggests that the Tribunal’s decision involved any error of law under s 476(1)(e) of the Act. Nor has material been provided which would support any other ground of review to this Court. The Tribunal’s findings which are criticised by the applicant were all factual conclusions which were available to be drawn on the material before it. The applicant’s only other criticism was that the Tribunal based its decision upon country information of which he had not been informed. But a failure to meet the rules of natural justice is not a ground of review to this Court: (see s 476 (2)(a) of the Act).

23. As is normal practice with unrepresented applicants, I have closely examined the Tribunal’s decision in order to discern whether any reviewable error appears on its face.  In my view it does not.  In the circumstances I have no choice but to dismiss the application and affirm the Tribunal’s decision.  The applicant is to pay the respondent’s costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.

Associate:

Dated:             5 April 2001

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr G Johnson
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	22 February 2001
Date of Judgment:	5 April 2001