Hossain v Minister for Immigration and Multicultural Affairs

[2000] FCA 1883

FEDERAL COURT OF AUSTRALIA

Hossain v Minister for Immigration & Multicultural Affairs [2000] FCA 1883

MOHAMMAD DALOWER HOSSAIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO N 593 2000

O’LOUGHLIN J
13 OCTOBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 593 OF 2000

BETWEEN:	MOHAMMAD DALOWER HOSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	O’LOUGHLIN J
DATE OF ORDER:	13 OCTOBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application be dismissed.

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 593 OF 2000

BETWEEN:	MOHAMMAD DALOWER HOSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	O’LOUGHLIN J
DATE:	13 OCTOBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant in this matter is a Bangladesh national.  He was born on 17 July 1968 and is therefore thirty-two years of age.  He arrived in Australia on 22 August 1998 and within a few days he lodged an application for a protection visa.  On 7 October 1998 a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) refused his application.  Mr Hossain sought a review of that decision by the Refugee Review Tribunal (“the Tribunal”) but on 11 May 2000 the Tribunal affirmed the delegate’s decision.

2. Mr Hossain claimed that he satisfied the convention definition of a refugee.  He said that he had a well-founded fear of persecution for reasons of his political opinion, namely his support for the Bangladesh Nationalist Party (“the BNP”).  Mr Hossain claimed before the Tribunal that he had joined the BNP which formerly held Bangladesh until mid 1996.  In 1996 the political enemy of the BNP, the Awami League (“the AL”), was successful in the elections.  The Tribunal noted that since 1996 when the AL took power there have been substantiated accounts of inter-party violence.

3. The Tribunal also was aware that sections of the AL had exploited its influence to attack and frame political enemies.  Mr Hossain told the Tribunal that he was one such enemy of the AL.  He said that if he returned to Bangladesh he would be targeted for serious mistreatment, violence and the pursuit of false criminal charges.  In 1993 some three years before the AL took power Mr Hossain left Bangladesh to work in Malaysia.  He stayed there for five years and during that time the Bangladesh authorities renewed his passport.  After his contract in Malaysia ended he travelled to the Philippines and he obtained a visitor’s visa to Australia.

4. Mr Hossain’s explanation to the Tribunal for leaving Bangladesh in 1993 was that he had to leave because he had been victimised with false charges that had been laid against him through the influence of his political enemies.  This of course was whilst the BNP was still in power.  Mr Hossain told the Tribunal that his family continued to live in their usual place of residence.  His father operates a business, two of his siblings are students, two others are looking for work.  The spouses of two of his siblings also reside with the family.  He said to the Tribunal that all of the information about his family was up to date to a few months before the Tribunal hearing.

5. He also told the Tribunal that one of his siblings had been an unsuccessful BNP candidate for a local seat and he said to the Tribunal that his family constantly faced persecution.  The Tribunal asked him to give some examples of the persecution that had been experienced by members of his family.  I now read what it is that the Tribunal said of his answer:

   “He was slow and stumbling in reply and took some time to formulate an answer at all.  Eventually he said that his brother’s motor cycle had been stolen by the successful candidate in the local election.”

   But at best, this struck the Tribunal as an issue of criminality and theft and not as an example of persecution.  The Tribunal recognised that Mr Hossain’s claims before the Tribunal were to this effect.  There were still false charges standing against him.  There has been serious mistreatment of his family by members of the AL since the 1996 elections and he is fearful that this mistreatment would spread to him if he were to return.

   I now summarise what the Tribunal concluded after having heard Mr Hossain’s evidence.  It accepted that he was a Bangaldeshi national who preferred the BNP to the AL but it said that if he was ever a member of the BNP, he did not hold office nor was he a leader in the party.  But the Tribunal said this, and I quote from what it wrote:

   “The Tribunal considers itself entitled to doubt that the applicant ever even joined the party.  For the overwhelming bulk of his evidence as to the Convention related harm and action motivated by fear of it is simply unreliable opposed not least of all by other claims be himself has made.”

6. What Mr Hossain must understand is that the Tribunal heard him give his evidence, I did not.  The Tribunal had the opportunity to ask him questions, I have not.  That is why as a law point, I cannot interfere with the Tribunal’s decision.  The Tribunal did not accept that his family had faced years of persecution.  The Tribunal even went so far as to say that one part of his evidence about having to leave Bangladesh for Malaysia was ludicrous, outlandish, unreliable and totally incredible.  These were the conclusions that the Tribunal reached after giving Mr Hossain the opportunity to tell the Tribunal his story.

7. In the papers that were prepared for Mr Hossain and filed in this court there were four grounds upon which it was sought to have me set aside the Tribunal’s decision.  The first of those grounds complained that the Tribunal ignored his claim that he had been oppressed by his political opponents namely the AL but as I have endeavoured to explain his claim was not ignored.  Unfortunately, it was not believed.  The next two grounds, number 2 and number 4, claimed that the Tribunal was biased.  That means that the Tribunal was unfair and did not give him a fair go.

8. I have read through the papers.  I have read the Tribunal’s reasons for its decision.  I cannot see anything that would suggest that the Tribunal was biased against Mr Hossain.  Lastly, there was a ground that the Tribunal did not look at some documents which had been submitted as part of Mr Hossain’s case.  Mr Beech-Jones suggests that this is a reference to some newspaper reports, reports which concerned violent act carried out against people involved in political activities.

9. On this subject, one of the first things that the Tribunal said was that, it recognised that there was enmity between the BNP and the AL.  Again, and unfortunately for Mr Hossain, the Tribunal did not believe that it would have any effect on him if he went back to Bangladesh after all these years.  All of what I have said are the reasons why I must dismiss Mr Hossain’s claim.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Loughlin.

Associate:
Dated:             20 December 2000

The Appellant appeared in person
Counsel for the Respondent:	Mr Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	13 October 2000
Date of Judgment:	13 October 2000