Hossain v Minister for Immigration and Multicultural Affairs

[2001] FCA 224

FEDERAL COURT OF AUSTRALIA

Hossain v Minister for Immigration & Multicultural Affairs [2001] FCA 224

EMTIAZ HOSSAIN v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 895 of 2000

HILL J
5 MARCH 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 895 OF 2000

BETWEEN:	EMTIAZ HOSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	5 MARCH 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the 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	N 895 OF 2000

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

JUDGE:	HILL J
DATE:	5 MARCH 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, Mr Hossain, applies to the Court for judicial review under s 476 of the Migration Act 1958 (“the Act”) of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming the decision of the Minister for Immigration and Multicultural Affairs not to grant to him a protection visa.  In short substance, it was Mr Hossain’s claim that he was entitled to a protection visa because he satisfied the definition of “refugee” to be found in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as varied by the 1967 Protocol Relating to the Status of Refugees (the “Convention”).  Mr Hossain relied before the Tribunal on statements and submissions prepared either by him or on his behalf as well as oral evidence which was taken before the Tribunal.

2. He said in effect that his family was ethnically Bihari and that his father had initially migrated to Bangladesh from a district in Calcutta to escape torture inflicted on him because of his religion by the local Indian Hindus.  He said also that he was targeted because he was ethnically Bihari.  Mr Hossain claimed to have joined a Bihari movement working to promote the rights of Biharis and campaigning for Bangladeshi citizenship for Bihari people.  His claim to be a refugee was related to his claim to be a Bihari as Biharis were often in Bangladesh subjected to torture and ill-treatment. 

3. Mr Hossain, as a defender of Bihari rights, claimed to have been targeted and tortured; had his life threatened; his shop burnt down; his person abused and robbed and ultimately had been forced to flee the country though he had returned when his claim for refugee status apparently failed in India.  He said he then remained underground; continued to be abused and threatened and had ultimately gone to Nepal where he was forced to return to Bangladesh.  He said he then applied for a visa to the United States but was refused. 

4. Ultimately he obtained a visitor’s visa for Australia to which he came in September 1997. 

5. In support of his application, he provided a number of photocopied documents which the Tribunal sets out in its reasons at page 6.  These documents were translated into English.  The Tribunal rejected Mr Hossain’s application in essence for two alternative reasons.  The first can be said to have gone to his credibility.  The Tribunal member said of his evidence that it was vague, confused, implausible, internally inconsistent and inconsistent with independent evidence concluding that it was neither credible nor reliable.  I shall return to that matter in a moment.  The alternative ground in the Tribunal member’s decision (and it was not at all addressed in any submission that was made to me) was that even if the Tribunal member had concluded that Mr Hossain was indeed Bihari and that everything else he said was true Biharis, including those who live in refugee camps, do not face persecution in Bangladesh.  Hence, any fear of persecution Mr Hossain may have had would not have been well-founded.  That, without more, was enough to determine the case against Mr Hossain without more.  However, the proceedings before me concentrated on the first of the two matters and not the second. 

6. Mr Hossain, who was assisted by a friend, sought to rely upon s 476(1)(a) or (c) as well as s 476(1)(g) of the Act. As to the first two paragraphs of s 476(1) to which reference was made, in essence, the submission was that the Tribunal’s decision was not authorised when one has regard to s 420 of the Act because it did not go to the real merit of Mr Hossain’s case. The ground of review under s 476(1)(g) related to a finding of the Tribunal that a school certificate produced by Mr Hossain was effectively a bogus document. In support of the latter submission, it was sought to read a declaration apparently signed by the headmaster of a high school in Dhaka, presumably the school to which the Tribunal referred, effectively confirming that Mr Hossain took part in various exams from the school in 1984 and that it was known practice that students from other schools could be registered and take part in exams from that school without it necessarily being the fact that they had completed their education there.

7. It is necessary to say something about the Tribunal’s reasons.  The first matter to which the Tribunal gave attention was whether Mr Hossain was to be accepted as having that name or whether he had some other name, for example, Lablu Ahmed being the name on the passport on which he travelled to Australia and which was apparently a valid passport.  It was in this context, apparently, that Mr Hossain provided the school certificate to which I have already referred.  The Tribunal noted that the certificate was apparently issued by a school which Mr Hossain had not claimed to have attended when he completed his application for a protection visa, a matter that is addressed in the declaration to which I have referred.  The certificate was apparently written in particularly poor English, not to be expected of a certificate actually issued by the principal of a high school.

8. At the hearing, Mr Hossain had no explanation for the poor English in the certificate and said he had not attended this high school but that he had only registered with it for examinations, a matter rather in conflict with the text of the certificate which said that he had been a regular student at the institution.  The Tribunal member also had regard to material before her which indicated that there was quite a prevalence of document fraud in Bangladesh.  She refused to place weight on the documents which had been given to her in support of the claim that his name was Emtiaz Hossain.  Given all these circumstances, it is not surprising that the Tribunal decided that it could not form a view one way or the other as to what Mr Hossain’s proper name may have been.

9. It was submitted to me, if I understand the submission, that the Tribunal could not leave it at this but would actually have to go and find one way or the other what an applicant’s true name is. With respect, I do not think that is a correct interpretation of the legislation. It is true, of course, that the Tribunal is charged by s 420 of the Act, in carrying out its functions, to act in accordance with substantial justice and the merits of the case. Although reference was not directly made to s 430 of the Act it is also true to say that the Tribunal must set out its findings on any material question of fact. However, nothing in the Act requires the Tribunal to make a decision between two names when it is unable to reach a conclusion as to which of them is correct. The significance of the applicant’s name was relevant largely on the question of credibility. It is relevant perhaps also to the real issue that the Tribunal had to decide, namely whether it was satisfied Mr Hossain was indeed a refugee within the definition. For the Tribunal to be satisfied that he was, it would be necessary for the Tribunal to decide whether he was, as he claimed, a Bihari and therefore liable to be persecuted because of his ethnic or religious views or whether, as on one view of the matter it was possible, he was in fact a Bengali and therefore not someone who was liable to suffer persecution for a Convention reason.

10. The Tribunal did not accept that Mr Hossain was a Bihari.  It did not accept this for a whole series of reasons some, but not all, of which were attacked in the course of submissions.  The first was that in the original application written in his own handwriting Mr Hossain said he was Bengali.  However, at the hearing he retracted this, the notation to this effect having been at some stage altered and the word “Bihari” entered in its place.  I will not set out the entirety of what the Tribunal said about the matter.  It suffices to say that it was open to the Tribunal to find that Mr Hossain had made a mere mistake as was submitted or, alternatively, that he had given inconsistent accounts which went to his credibility.

11. The second matter that the Tribunal took into account was that Mr Hossain’s father came from near Calcutta.  The Tribunal thought that having regard to the fact that the father’s origin was in the Calcutta area that was strong evidence not, it must be said, conclusive evidence, as was suggested to me, but strong evidence that the applicant was Bengali in origin.  On this point, it was submitted that the evidence relied upon by the Tribunal was inconsistent with other material that was before the Tribunal, particularly an article in the Manchester Free Press entitled “The Peoples of Bangladesh, The Biharis” which appears at pages 12 to 14 of the Tribunal’s reasons.  The passage to which I was taken over and over again and which was said to be inconsistent with the Tribunal's decision reads as follows:

    “Some Biharis immigrated to what is now Bangladesh during British rule . . . During Partition in 1947, there was a mass movement of peoples between India and Pakistan.  Of the eight million who moved from India into Pakistan, about 1.3 million moved into the Eastern wing.  One million were Muslims from Bihar, who came to be known collectively as ‘Biharis’.”

12. The article continues to refer to the fact that these Biharis were Urdu speakers and became unpopular to the point that there were killings in 1971 at least until the independent state of Bangladesh was formed in December of that year though there were further clashes thereafter.  By 1972, the article reports some 278,000 Biharis were living in camps on the outskirts of Dhaka and reconciliation programs were initiated.  The article continues, relevant to another matter:

    “Urdu-speakers were taught Bengali in an effort to overcome the most obvious obstacle to their acceptance by the Bengalis.  However, there were, and remain, deep psychological barriers to overcome . . .”

13. The passage is not, in my view, in any way inconsistent with what the Tribunal says.  In fact, all the passage seems to me to say is that one million people who moved from India into Pakistan were Biharis.  Why that is inconsistent with the proposition that someone from Calcutta is most likely Bengali, I do not know.  It is presumably true that some Biharis came from Calcutta. 

14. The third matter which the Tribunal relied upon was the fact that, although given the opportunity, Mr Hossain would not speak Urdu.  In fact, in a statement he had made to the Tribunal he indicated in writing that he spoke Urdu though did not do so well as he had been educated in Bengali.  He said he had a limited knowledge of Urdu from a family environment where the language was spoken.  The problem that the Tribunal was concerned with was that he refused to take the opportunity at all to speak the Urdu language from which the Tribunal deduced that he was unable to speak Urdu, that his credit was not very good and that it was strong evidence he was not a Bihari as unlike other Biharis he was not an Urdu speaker. 

15. The next matter concerns the position of Mr Hossain's father and other members of his family.  Apparently, in his evidence, Mr Hossain said that his family had lived in a refugee camp since 1972.  However, in other evidence, he said his father had been able to retain employment in a clerical position in a bank until at least his retirement in 1987 and other family members (his widowed sisters) lived in accommodation which they owned and rented out properties to derive income.  The Tribunal rhetorically asked why one would accept that the family would live in a refugee camp when there was financial ability to go elsewhere.  It was submitted that the property of the widowed sisters had come from their deceased husbands.  This may or may not be so.  There was no evidence before the Tribunal that answers that question one way or another nor does it really throw any light on the matters the Tribunal itself was concerned with. 

16. The Tribunal was also concerned about Mr Hossain’s evidence of his activities in Bangladesh.  He had claimed not to have worked for something like three years and the Tribunal regarded it as somewhat implausible that he would have saved enough since he had opened a butcher’s shop in 1987 and operated it until 1994 to permit him to live for some three years with or without the addition of some support from a friend.  The Tribunal concluded that it was more likely that he was in some employment between 1994 and 1997 or that the family was wealthier than indicated. 

17. For these reasons, the Tribunal did not accept the claim that Mr Hossain was a Bihari but rather concluded that he had fabricated this claim and indeed was a citizen of Bengali ethnicity.  Matters of fact of this kind are not matters entrusted to Judges of this Court.  They are matters of fact for decision by the Tribunal.  This Court is not permitted to engage in a merits review.  That is the function of the Tribunal.  The role of this Court is very limited.  The grounds of review upon which applications may be founded are very limited.  Numerous and ordinary grounds of judicial review are expressly excluded.  For example, this Court is excluded from setting aside a decision notwithstanding the decision is so unreasonable that no reasonable person could possibly have reached it. 

18. Many of the submissions to me were really submissions that went to the logic one way or the other of what the Tribunal had done. It may well be, if I was deciding the merits, that I would approach the matter totally differently. But, I am constrained to consider only the grounds which are open to me under s 476 of the Act.

19. It is no real help to criticise the Tribunal on the basis that it spent its time on technicalities such as Mr Hossain’s name rather than the merits of the case.  Even if it were true, it cannot really be said that when one is unsure as to the identity of an applicant that is an irrelevant matter in deciding whether that person is or is not a refugee within the definition.  Certainly, the submissions made to me were unable to point to evidence before the Tribunal inconsistent with anything the Tribunal had said.  In my view, there is just no ground for setting aside the Tribunal’s decision that it was not satisfied Mr Hossain was a Bihari.  Once the Tribunal reached that conclusion (and there was evidence before the Tribunal from which it was open to the Tribunal to so hold) his claim to be a refugee simply vanished.

20. The other matter to which reference must shortly be made is the question of the documentary material, in particular the declaration, to which I made reference.  As I have already indicated, a ground of review sought to be made out is that there was no evidence or other material to justify the making of the decision.  The decision in this case is the decision that Mr Hossain was not, at least to the satisfaction of the Tribunal, a person who is a refugee within the definition.  With great respect to the submission, it is difficult to see how one treats the relevant fact, being the authenticity of the school certificate, as forming the basis of the entire decision the Tribunal reached. 

21. Even if one accepts, as I do, that the school letter and other documentary material which Mr Hossain put in evidence before the Tribunal supported what Mr Hossain said about his schooling that was not a matter upon which the Tribunal’s whole decision was based. The problem really is that the Tribunal came to its decision that Mr Hossain was not a Bihari and therefore that his claims to be a refugee could not be accepted on the basis of a whole series of matters of which these documents form but a part. One must remember that s 476(1)(g) of the Act is qualified by s 476(4) which relevantly provides that the ground is not to be taken to be made out unless either the person who made the decision was required by law to reach that decision only if a particular matter was established or based the decision on the existence of a particular fact and that fact did not exist. The former alternative, of course, could have no application. The latter has no application here because the Tribunal’s decision was based not on the existence or non-existence of the authenticity of that certificate. The question whether he did or did not merely register at the school to do exams rather than actually study was only a matter of peripheral relevance.

22. The Tribunal’s decision is made up of a number of circumstances which collectively led the Tribunal to the conclusion that Mr Hossain was not a refugee. In my view, the ground under s 476(1)(g) like the ground under either s 476(1)(a) or (c) is not made out. It follows that the application should be dismissed.

23. I order the applicant to pay the respondent Minister’s costs.

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

Associate:

Dated:  10 April 2001

The Applicant appeared in person:
Counsel for the Respondent:	A F Backman
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	5 March 2001
Date of Judgment:	5 March 2001