Hussain, Abid v Minister for Immigration & Multicultural Affairs

[1997] FCA 595

IN THE FEDERAL COURT OF AUSTRALIA                  ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY                 )  No NG 942 of 1996
  )     
GENERAL DIVISION  )     

BETWEEN:               ABID HUSSAIN    

Applicant

AND:  MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

Coram:           Davies J.
Date:              30 June 1997
Place:              Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application will be dismissed with 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  )  No NG 942 of 1996
  )     
GENERAL DIVISION  )     

BETWEEN:                   ABID HUSSAIN    

Applicant

AND:  MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

Coram:           Davies J.
Date:              30 June 1997
Place:              Sydney

REASONS FOR JUDGMENT

This is an appeal from a decision of the Refugee Review Tribunal.  The task of the Refugee Review Tribunal was to decide whether the applicant, Mr Abid Hussain, held a "well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion".  The function of the Court is not to review the matter on its merits.  The decision maker of fact was the Refugee Review Tribunal.  The function of the Court is to determine whether the Tribunal made an error of law. 

The evidence given to the Tribunal by Mr Hussain was that he was a member of a group called Mohajirs, who were people who had left India and settled in Pakistan after the partition.  Mr Hussain gave evidence that there were problems between the citizens of
Pakistan and a Mohajir association called The Mojahir Quami Movement ("MQM").  Mr Hussain said to the Tribunal that his father had had contacts with that organisation.  He gave evidence that after some killings in Karachi which were blamed by some Pakistani people on the MQM, his cousin, Qamar Zaman, was arrested and subsequently killed.

Mr Hussain gave evidence to the Tribunal that about two months after the cousin was killed, his father and brother set off to travel to a town called Gujranwala.  They did not return and their whereabouts are unknown.  Mr Hussain said to the Tribunal that he himself was a member of the MQM and that he feared for his life.  The Tribunal was aware of the general problems concerning the MQM and there is in the material before the Court several decisions of Refugee Review Tribunals, including a decision of the member who constituted the Refugee Review Tribunal in this case, in which claims of persons who were Mohajirs were accepted and their status as refugees was accepted.

However, the Tribunal in this matter was of the view that the problems encountered by Mohajirs were problems encountered in the Sindh province and that the same problems did not arise in the Punjab where Mr Hussain and his family had lived.  The Tribunal held in the present case:-

"There is evidence that indicates that there is some discrimination in the form of affirmative action policies in regard to employment in the public sector for Mohajirs in Sindh province." 

The Tribunal went on:-

"However, this is not relevant to the applicant's case.  He was born in another province, Punjab.  He lived with his parents who owned their own home and two farms and ran a successful dairy business.  The applicant was educated, permitted to move internally within Pakistan and be issued with a passport to travel out of the country if he so chose.  He has not satisfied me that he faced any systemic or systematic discrimination which could amount to persecution." 

That conclusion of the Tribunal was a conclusion which was open to the Tribunal as the decision maker of fact.  The Tribunal did not accept all the evidence given to it by Mr Hussain.  Mr Hussain arrived in this country on a false passport, he made his application for refugee status in a false name and the facts which were set out in the application and in the subsequent lengthy statutory declaration, which was prepared by a solicitor, were inconsistent with some of the evidence which he gave to the Tribunal.

The Tribunal thought it necessary to weigh up the evidence and the credibility of Mr Hussain.  The Tribunal said:-

"Although it is generally the case that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt (UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Reedited, Geneva, January 1992, at paragraphs 196-197 and 203-204), it is for the Tribunal to assess particular claims advanced in support of the Applicant's case.  `A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not mad out' (Selvadurai v The Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal, Heerey, J, 20 May 1994, p.7)."

The Tribunal's approach as set out in that paragraph was a correct approach.  Having reviewed the applicant's evidence and his earlier statements, the Tribunal found:-

"The applicant over a period of time has demonstrated he is not a reliable or credible witness."

The Tribunal did not accept that Mr Hussain was a member of the MQM.  However, the Tribunal did accept that his cousin had been killed and that his father and brother had disappeared.  As to the cousin, documents which were put before the Tribunal suggested that
he had been killed because he had been involved earlier in the death of people who were killed during an election.  The Tribunal thought that it was probable that the basis for the attack was one of revenge. 

As to the disappearance of the father and the brother, the Tribunal said that it was not satisfied that their disappearance was the result of persecution for a Convention reason.  The father and the brother had left the family home to take money to a nearby town.  The Tribunal said:-

"Although the Applicant's father and brother have disappeared the Applicant could provide no news of their fate whatsoever.  The Applicant stated that they were taking money to the bank at the time they disappeared.  I am unable to make a finding that they were attacked and robbed but equally neither the Applicant nor I could reasonably conclude that they were kidnapped or killed because they were Mohajirs.  The lack of evidence or corroborative material renders any conclusion baseless speculation." 

These findings of fact were open to the Refugee Review Tribunal.  The Tribunal was generally familiar with the problems facing Mohajirs in Pakistan and the Tribunal was familiar with the lawlessness with exists in the Punjab.  The Tribunal could see that Mr Hussain had fear because of the disappearance of his brother and father and the death of his cousin but it came to the view that there was not an adequate basis for a fear that the killings and disappearances were due to persecution for a Convention reason.

I see no error of law in the Tribunal's decision.  The decision was one which it was open to the Tribunal to make and it approached its task by asking the correct questions.  It follows that on that ground the application must be dismissed. 

Another issue has been raised and that is as to whether the application was lodged within 28 days after service of notice of the decision.  There has been tendered on behalf of the respondent a statement which sets out signatures for the receipt of delivery items.  That receipt shows a receipt of the decision of the Refugee Review Tribunal on 1 November whereas the application was not lodged until 3 December.  However I have not thought it proper to ask Mr Hussain at this point of time to give evidence about the receipt.  It seemed to me that the time that would be taken in an investigation of that matter would not be justified.  Accordingly it is on the basis that there was no error of law in the decision of the Refugee Review Tribunal that I must dismiss the application.

The application will be dismissed with costs.

I certify that this and the 4 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.

Associate:

Date:   30 June 1997

The applicant appeared in person.

Counsel for the respondent:  R. Beech-Jones

Solicitor for the respondent:  Australian Government Solicitor

Date of hearing:  30 June 1997

Date of judgment:  30 June 1997