Hussain v Minister for Immigration and Multicultural Affairs

[2002] FCA 420

FEDERAL COURT OF AUSTRALIA

Hussain v Minister for Immigration & Multicultural Affairs [2002] FCA 420

MIGRATION - judicial review - Refugee Review Tribunal - affirmation of decision rejecting application for protection visa - claim by applicant to be persecuted by Awami League on account of political affiliations - evidence rejected by Tribunal - submissions by applicant going almost entirely to merits - no reviewable ground disclosed - use of common form paragraphs in reasons for decision - reference to non-existent “written submissions” - no effect on final decision - untenable explanation by Tribunal.

Migration Act 1958  (Cth)

ASHRAF HUSSAIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W366 OF 2001

FRENCH J
9 APRIL 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W366 OF 2001

BETWEEN:	ASHRAF HUSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH
DATE OF ORDER:	9 APRIL 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W366 OF 2001

BETWEEN:	ASHRAF HUSSAIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	FRENCH
DATE:	9 APRIL 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Bangladesh.  He arrived in Australia on 1 July 2000 without lawful authority.  Although his date of birth is not known, he was about twenty three years of age at the time of his arrival.

2. On 23 May 2001, he lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa.  That application was declined by a delegate of the Minister on 7 June 2001.  On 15 June 2001, the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision. On 14 August 2001, the Tribunal affirmed the decision not to grant a protection visa.  The applicant lodged an application in this Court for an order of review on 16 August 2001.

   Evidence and Claims

3. The applicant has never married and his father and mother are apparently both deceased.  The applicant was interviewed by an officer of the Department, on 17 July 2000. He was asked “Why did you leave your country of nationality (country of residence)?” and  “Why did you come to Australia?”.  His recorded answer to the first question was:

   “Unemployment problem in Bangladesh.
   A lot of difficulties (What kind of difficulties) - too many uncertainties - people being killed - beaten up.  (Any personal difficulties) - at this point some part of the recorded notes were crossed out.The remaining note under this heading was “wanted to achieve a good future”.

   Against the question “Why did you come to Australia?”, the recorded answer was “hoped to achieve a bright future”.  Asked if he had any reasons for not wishing to return to his country of nationality, he is recorded as saying he would have difficulty.  He did not want to go back.  There was no work.  He asked rhetorically what he would do there.

4. The applicant’s application for a protection visa was filled out in handwriting, although said to have been prepared with the assistance of a migration agent.  There was a statutory declaration, dated 22 May 2001, apparently attached to the application.  In his declaration the applicant described himself as a Muslim, born on 26 December 1977.  He said he could not return to Bangladesh because he had serious grave and well-founded fears for his life given his past political involvement while living in that country.  He commenced formal schooling at the age of five and completed his education in 1995.  At the conclusion of his education he remained unemployed until May 2000.  During that time he was supported by his brothers and family members.  In return for that support he helped out at home. 

5. The applicant said he was a member of the Jatyotabadi Chhatra Dal (JCD), Student Front of the Bangladesh Nationalist Party (BNP).  He joined the party in 1992 and was an active member of its Sylhet Branch.  In fact he was a member of the Executive.  He joined JCD as an ordinary member when admitted into Sylhet Madan College in 1992.  He was an active ordinary member from 1992 until 1996.  At that time he was a member of the District Committee.  However, in 1996 the Bangladesh Awami League came to power.  The applicant said the Awami League began persecuting members of the BNP, arresting and detaining them and initiating false cases against them.  He claimed that local police were in collusion with members of the student organisation which supported the elected Bangladesh government.  His party started political campaigns against the sitting government and police repression against them increased.

6. He was opposed politically to a person called Bablu, a member of the Bangladesh Chhatra League (BCL), which was the student wing of the Bangladesh Awami League.  The applicant wanted to form a local committee of his party in his locality.  Bablu objected and obstructed his efforts to do so.  Nevertheless, the applicant said he proceeded to form the committee.  One day, he claimed, Bablu raided his house and ransacked it.  He was away at the time.  Bablu allegedly left an ultimatum to the applicant that he would kill him.  There was a later clash between members of his party and Bablu’s party on this question.  In this clash, Bablu was injured.  Legal proceedings were instituted against the applicant.  The police started looking for him and, for fear of being apprehended, he stayed away from his house.

7. According to the applicant, members of the BCL, supported by the local police, harassed himself and other members of his party.  This resulted in his arrest in 1998 when he was detained for ten to twelve days and interrogated and beaten by police.  Although he was released on bail members of the BCL began hounding and threatening him.  The applicant said he went into hiding again in areas around fifteen to twenty kilometres from Sylhet, one of which is called Barlekha. 

8. The applicant said the situation deteriorated.  He alleged that an Awami leader forcibly took over possession of the property of a friend of the applicant’s father.  That man  initiated proceedings against the Awami leader.  However followers of the Awami leader intimidated his friend’s father and caused him to withdraw the case.  The applicant was involved in a protest about this, which brought him into further conflict with the local opposition.  In a clash between party members, one of the BCL members was injured and another killed.  The applicant, his friend and his father were accused in legal proceedings of the murder of the opposition party member. 

9. The applicant said he was forced to go into hiding again.  His family told him it was not safe for him to remain in the country and that he should leave.  Followers of the opposition Awami leader came to the applicant’s house and threatened to kill him.  The applicant said he urgently needed to leave Bangladesh after the many death threats that occurred against him.  He was introduced to a people smuggler who was paid about $A10,000 for organising his escape.  He said that in May 2000, accompanied by the smuggler, he flew to Jakarta where he remained for two days.  From there he went to Bali and then to an island called Bima where he boarded a boat and sailed for five days until the boat was intercepted by Australian authorities close to Ashmore Reef.

   The Tribunal Hearing

10. In referring to the applicant’s claim and evidence, the Tribunal stated that it had before it the departmental file, which included the record of the interview conducted with the applicant when he arrived in Australia, the protection visa application, a record of an interview with the delegate and written submissions in support of the application.  The Tribunal also said it had written submissions in support of the application for review.  There were in fact no written submissions.  However, an affidavit sworn by the Tribunal member on 16 November 2001 said that the reference to “written submissions in support of the application for review” was a reference to the applicant’s response to Part D of his application for review.  In that part of the application for review he was asked his reasons for making the application.  His response was “I DISAGREE AS I HAVE WELL-FOUNDED FEAR FOR MY LIFE IF I RETURN TO BANGLADESH”.

11. I do not accept this explanation.  It is simply not sensible to describe the applicant’s answer to the form question as “written submissions in support of the application for review”.  It appears that, in all probability, what the member did was to use a common form paragraph outlining the classes of material usually before the Tribunal.  A court engaged in the process of judicial review must, of course, have a realistic appreciation of the practical difficulties surrounding high volume administrative decision-making of the kind with which the Tribunal is faced at the present time.  The use of common form paragraphs is not of itself objectionable provided that the Tribunal properly addresses their content.  Slips will no doubt be made from time to time.    Great care should be taken that any explanation offered to this Court in an affidavit sworn for that purpose by a Tribunal member or officer is properly considered.  In this case, however, nothing turns on the mistaken reference in the reasons for decision to “written submissions in support of the application for review”.

12. The Tribunal referred to the arrival interview, which has already been mentioned, and to the statutory declaration in support of the application for a protection visa.  It observed that in the course of his interview with the delegate, the applicant reiterated his claim that there are pending charges against him in Bangladesh.

13. Prior to his interview with the Tribunal, the applicant was sent a notice under s 424A of the Migration Act 1958 (Cth) drawing attention to his initial statement upon arrival in Australia when he did not claim any ongoing involvement in political activities and did not indicate that he was of any adverse interest to Bangladeshi authorities at the time he left Bangladesh. He was told in the s 424A notice that he would be given an opportunity to provide comments in relation to the matter at the interview to be held during the hearing.

14. In the course of the interview the applicant was asked about his family in Bangladesh and the occupations of various of his brothers.  He was asked about his own education and employment.  Asked what would happen to him if he returned to Bangladesh, the applicant said he would be arrested, put in gaol, convicted and punished.  He said people belonging to other political parties wanted to beat him up and possibly kill him.  He said he had no security in Bangladesh.  These things would happen to him because he had been accused of murder, because he was a JCD worker and because he had organised a committee in his area.  He was then asked to review the circumstances in which the murder charge against him arose.  He repeated his account of the property dispute between his friend’s father and an Awami League leader who had taken possession of the land by using false documents.  He repeated that he had protested against the Awami League leader’s behaviour.  He also said that a strike had been called on 5 November 1999.  He had taken part in a procession in front of Sylhet Court protesting about the atrocities of the government party.  The Awami League attacked the procession.  People had to defend themselves.  A person from the Awami League was killed in the encounter.  The applicant said some of them fled from the scene.  He was in the middle of the procession, however he did not hit anybody.  He said he was the subject of proceedings because he was physically present.  He did not see who was killed or under what circumstances.

15. Given that the incident had occurred on 5 November 1999, the applicant was asked why the police were not able to arrest him before he left Bangladesh.  He said he had gone into hiding.  However, the Tribunal put to him that he had already said he was living at home until he left Bangladesh.  The applicant denied he had said this.  He said he had to leave his home and go into hiding.  He said he hid with his relatives.  He lived with a number of different aunts, with his cousin in  his grandfather’s house as well as with his sister and other relatives.  Nevertheless, the Tribunal put to him that it would not have been that difficult for police to arrest him if they wanted to given that he was allegedly staying with so many relatives.  He said some of the places in which he stayed are remote.  He stated whenever he got the news that police were coming to arrest him, he would leave.

16. The Tribunal also asked the applicant about his political activities.  He said he had only been a member of the student front, the JCD and had not joined the BNP.  Asked why he remained a member of the JCD when no longer a student, the applicant said there are many people who do this.  It is only when they “show their mettle” that they are accepted into the higher levels of the party.  In relation to political activities after he finished his studies, the applicant said he formed a committee in his area and whenever there was a meeting being held in his area he would attend.  He would organise meetings whenever the party wanted him to do so.

17. The applicant said he was not involved in campaigning in the 1996 elections.  Asked why not, he said he had joined the party in 1996.  However, in his application for a protection visa he said he joined the JCD in 1992.  He said that was right but he became active at the district level in 1996.  The Tribunal put to the applicant that it still did not understand why he would not have campaigned during the 1996 election given his involvement with the JCD.  The applicant said he took the word “campaigning” to mean “camping” and said he had campaigned during the election although he had never camped.  He printed posters, put them on walls and went door to door to tell people who to vote for and organised meetings.  He denied he had ever been involved in political violence.  He had taken part in processions and demonstrations. 

18. Asked why at entry he had not given any indication of his involvement in politics in Bangladesh, he said he did indicate that at the time he had many other problems.  He said the interpreter had told him he should not say anything that would jeopardise his case.  The smuggler who took him out of Bangladesh had also said he should take this line.  The smuggler had told him not to say anything about his police problems.  He should just say he had employment problems.  The applicant reiterated those involved in JCD and the BNP are not safe in Bangladesh.

19. There were some documents provided to the Tribunal at the end of the hearing.  The applicant said his family had obtained these documents from a Bangladeshi court.  He said they related to charges against him.  By reference to English language translations, it appeared the documents purported to relate to alleged charges against the applicant arising out of an incident on 5 November 1999.  They included a letter from a lawyer advising the applicant to stay out of the country, and a letter allegedly from the President of the Bangladeshi Nationalist Student Party, Sylhet Branch.  That letter said he was a prominent and active member of the party and had become the target of “Awami League musclemen”, that many warrants of arrest had been issued against him implicating him with false charges and that the police authority had been making all out efforts for his arrest.

    The Tribunal’s Findings and Reasons

20. The Tribunal referred to independent evidence relating to Bangladesh and noted, inter alia, that there was no sign of political repression on a scale that would make it difficult for opposition party members to continue to live and take an active role in politics in Bangladesh.  The Tribunal observed that Bangladeshi society is violent in the context of conflict between supporters of various political parties and that violence pervades many aspects of the society.  It also referred to independent evidence of “a very high level of document fraud in Bangladesh”.  Such evidence also indicated that lawyers will provide, for a fee, a letter advising that it is unsafe to return to Bangladesh.  Other independent evidence was said to refer to the prevalence of Bangladeshi asylum seekers providing fraudulent documents.  Reference was made to a February 1998 report from the US Bureau of Democracy, Human Rights and Labor, which stated:

    “Asylum applicants from all [political] parties submit voluminous documentation to support their claims, including in particular outstanding warrants for their arrest if they return to Bangladesh and other alleged court and police documents.  Arrest warrants are not generally available to the public, and all such documents should be scrutinized carefully.  Many “documented” claims of outstanding arrest warrants have proved to be fraudulent.”

21. In its findings and reasons, the Tribunal accepted that the applicant is a Bangladeshi national and that while a student he was a supporter of the JCD, the student wing of the BNP.  Significant aspects of his evidence, however, were found to be “internally inconsistent and implausible”.  Overall the Tribunal did not accept the applicant was a credible or reliable witness.  It did not accept that he remained politically active once he left college, that he had a clash with an Awami League leader or that there were outstanding politically motivated charges against him.  The Tribunal was of the view that the applicant fabricated those claims in an attempt to create for himself the profile of a refugee.  The Tribunal referred to the arrival interview and the applicant’s indication that he was only politically active while a student and the absence of any suggestion that he had any problems in Bangladesh arising out of more recent political activities.  While accepting that there may be reluctance to disclose full details of a refugee’s claims on arrival in Australia, the Tribunal observed that the applicant was specifically told that the interview was his opportunity to provide any reasons he should not be removed from Australia.  He was also told that at any later interview if he said something different, doubts might be raised about the reliability of what he said.  The Tribunal considered it implausible that when asked why he had left Bangladesh he would focus on his problems with employment.  It considered it implausible that in such circumstances he would say that he had only been involved in political activities when he was a student if he had in fact continued to be involved in political activities and actually feared persecution for that reason. 

22. On the independent evidence, which it accepted, the Tribunal found there were two elections in 1996, one in February and one in June.  Those were the most recent general elections that had been held in Bangladesh.  Had the applicant actively been involved in political activities in Bangladesh after 1995 he would have been aware of the fact that there were two elections instead of stating, as he did, that there was only one.  His claim that police wanted to arrest him in relation to the incident of 5 November 1999 was rejected.  He did not leave Bangladesh until May 2000, some six months later.  If the police had wanted to arrest him, they had ample time to do so.  Although the applicant had claimed that police were not able to do so because he was in hiding, he had confirmed at the beginning of the hearing that prior to his departure from Bangladesh he lived in his family home in Sylhet with his siblings and the family of his married brother.  Even if his later story were correct, straightforward investigative work would have disclosed that he was staying with his relatives.  Overall the Tribunal was not satisfied that he was involved in any political activities after he ceased being a student or that there were charges against him.  It did not accept that he was attacked or harassed or that he was involved in a clash in which a person was killed.  It did not accept that he was of any interest whatsoever to the Awami League or the Bangladeshi authorities at the time of his departure from Bangladesh or that he was of any adverse interest to them at the time of the hearing.  It did not place any weight on the documents submitted by the applicant having regard to the high level of document fraud in Bangladesh.

1. The Tribunal, having not accepted that the applicant had been involved in political activities since 1995 and that the chance of his involvement if returned to Bangladesh was remote, it nevertheless considered whether he had a well-founded fear of persecution arising out of his support for the JCD. 

2. Independent country evidence suggested that as the largest opposition party in Bangladesh with over 100 seats in the national parliament, the BNP had a large number of members and supporters in Bangladesh.  There was no evidence that all BNP members, including BNP members active on local branch committees, were vulnerable to attack by the Awami League or by anyone else.  The Tribunal was of the view that the chance the applicant would be harmed if he returned to Bangladesh and actively supported the JCD and the BNP was remote.  Independent evidence indicated that violence between student political groups was in fact not politically motivated.  There was no evidence to suggest that all JCD and BNP members and supporters inevitably become involved in violent clashes.  In the event the Tribunal was not satisfied the applicant had a well-founded fear of persecution arising out of his support for the JCD and the BNP.

   The Application

3. The application filed by the applicant in this Court on 16 August 2001 set out no grounds at all for an order for review.

   The Applicant’s Argument

4. The matter came on for hearing on 8 November 2001.  Attempts to secure pro bono legal representation for the applicant had been unsuccessful. The applicant made oral submissions on his own behalf.  For the most part they went to the factual merits of the Tribunal’s decision and did not disclose any basis for impugning it. 

5. In the course of his submissions the applicant made reference to documents he had provided to the Tribunal during the hearing, which documents were said to evidence proceedings pending against him in Bangladesh.  The documents did not appear in the materials before the Court.  The applicant also said he had made oral submissions to the Tribunal to the effect that about 200 people had been killed at a violent demonstration in which he had participated - presumably the demonstration of 5 November 1999.  He said he had withdrawn from the area in which violence was occurring and did not see who killed the person in respect of whose death he was alleged to have been implicated.  He said he also told the Tribunal that about 35 people at that demonstration were killed by police.  He said the Tribunal did not record in its reasons that anyone was killed by police. 

6. There does appear to be a reference to material embodying these figures in the Tribunal’s reasons as it said:

   “The applicant stated that up to 1999 up to 200 JCD workers had been killed by BCL leaders and thirty five top leaders had been killed.”

   I have listened to the tapes of the Tribunal hearing in relation to this part of the evidence.  The Tribunal member put to the applicant that, although violence was a feature of politics in Bangladesh, the evidence indicated that those who did not themselves engage in violence were not likely to be subject to it.  The applicant replied by reiterating a previous statement that up to 200 JCD workers had been killed by BCL people up to 1999.  He also said that of their top leaders about 35 had been killed by BCL and by the police.  The reference to the police was not reproduced in the Tribunal reasons.  I am not satisfied however that any reviewable error has been disclosed in this respect.  Having regard to the view which the Tribunal formed of the applicant’s credibility, the fact that it did not refer to the police would not have made any difference to the outcome.  In any event, the Tribunal is not required to refer to all evidence adduced before it.

7. As to the documents which the applicant said he submitted to the Tribunal, these were produced to the Court after the hearing exhibited to an affidavit sworn by a solicitor employed by the Australian Government Solicitor’s office.  These documents are English translations of what appear to be court documents including a warrant for the arrest of the applicant dated 1 July 2001, a record of proceedings in a magistrate’s court in the Sylhet District and incorporated therein a statement said to outline the prosecution case against the applicant arising out of the demonstration of 5 November 1999.  There was also a document designated “Charge Sheets” and documents designated “First Information Report”.

8. The Tribunal, it will be recalled, referred to the prevalence of document fraud in Bangladesh.  It noted the documents provided by the applicant, but placed no weight on them as evidence of the truth of the applicant’s claims.  There is no ground for review available arising out of the Tribunal’s treatment of the documents tendered at the hearing by the applicant.

   Conclusion

9. For the preceding reasons, there is nothing disclosed in the applicant’s arguments or otherwise appearing from the material before the Court to indicate that any of the grounds of review available under s 476 of the Act could be made out in this case.  The application will be dismissed with costs.

I certify that the preceding thirty one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:             9 April 2002

The applicant appeared in person.
Counsel for the Respondent:	Mr AA Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 November and 4 December 2001
Date of Judgment:	9 April 2002