Masued v Minister for Immigration and Multicultural Affairs

[2001] FCA 1247

FEDERAL COURT OF AUSTRALIA

Masued v Minister for Immigration & Multicultural Affairs [2001] FCA 1247

MASUED v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 23 OF 2001

EMMETT J
1 AUGUST 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 23 OF 2001

BETWEEN:	MASUED APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	1 AUGUST 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application be dismissed.

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

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	W 23 OF 2001

BETWEEN:

MASUED

APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:

EMMETT J

DATE:

1 AUGUST 2001

PLACE:

PERTH

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh, who arrived in Australia on 11 July 2000.  The applicant made an application, dated 26 October 2000 and accompanied by a letter dated 27 October 2000, for a Protection (Class XA) visa with the Department of Immigration and Multicultural Affairs.  On 28 November 2000 a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), refused to grant a protection visa.  On 1 December 2000 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of that decision.  On 12 January 2001 the Tribunal affirmed the decision not to grant a protection visa. 

2. On 25 January 2001 the applicant filed an application to this Court for an order for review of the decision of the Tribunal. However, the application does not specify any grounds. When the matter came on for hearing today the applicant was unrepresented but was assisted by Mr Aziz Islam, an interpreter. The applicant was unable to advance any submissions in support of any of the grounds contained in s 476(1) of the Migration Act 1958.

3. I have considered the reasons of the Tribunal in reaching the decision that it made on 12 January 2001.  Those reasons indicate that the applicant had claimed that he fears persecution at the hands of the ruling party in his local area for reasons of his political opinion.  In his application for a protection visa, the applicant said that he was a single Muslim man from Bangladesh who lived with his family in his home village about 200 kilometres south-east of Dhaka.  He said that his childhood had been relatively uneventful but he started to have problems when he became involved in politics in 1988.  At that stage it appears he joined the student wing of the Jatiya party.

4. The applicant agreed with the Tribunal that the Jatiya party had been formed by General Ershad who became Prime Minister in the mid-eighties and who was forced to resign in December 1990.  The applicant agreed that the BNP had been in power from 1991 to June 1996 when there were new elections and the Awami League narrowly defeated the BNP and took power through a loose coalition with the Jatiya party.  The applicant also agreed that there was at least one member of the Jatiya party in the current cabinet as Minister for Communications.

5. The applicant claimed that in 1997 he became president of the Ramganji branch of the student wing of the party.  He claimed that in 1997, when the Bangladeshi government initiated the peace process to settle the insurgency problems among the Chittagong hill tribes, he was part of a movement opposing that process.  He said that in October 1997, at the local level, his branch of the party gave its support to an opposition movement against the peace process.  He claimed that a united student movement was launched and a convening committee was formed of which he became a convenor.  He claimed that, on 25 November 1997, a meeting was scheduled between the leaders of the insurgents and the government of Bangladesh.  He claimed that they called a strike on that day and that he and his group then had a large procession that clashed with the government’s procession.  He claimed that there was a confrontation with the government's procession and the clash lasted for three hours.

6. The Tribunal rejected the applicant's claims that he had been appointed coordinator of the opposition demonstrations.  The Tribunal considered that the opposition might, in unusual circumstances, have appointed a member of a party other than the BNP as its coordinator but only if the person had such leadership or coordination skills to warrant that step.  The Tribunal did not accept that the applicant satisfied that description.

7. Next, the Tribunal dealt with the demonstration of 25 November 1997.  By the applicant’s own account, the local authorities took no action against the rally and for the first two days it proceeded without incident.  That led the Tribunal to conclude that the Awami League, at its upper levels, was not concerned by the demonstration.  However, the situation changed on 25 November as the consequence of an outbreak of violence.  While the Tribunal accepted that the applicant was injured by a random bullet, it did not accept his claim that he was targeted and shot by the police. 

8. The Tribunal concluded that the applicant's injury was the consequence of being in the wrong place at the wrong time.  It characterised the incident as a random shot and one that could equally have come from the opposition demonstrators just as it could come from the other side.  The Tribunal did not accept the applicant's claim that the police were on the side of the Awami League.  Demonstrations had been held for two days without any action being taken.  The action was taken by the police only when violence erupted.  The Tribunal found therefore that the applicant sustained his injury as a result of being struck by a random bullet. 

9. Next the Tribunal dealt with the applicant's claim to have arrest warrants issued against him and to be wanted by the authorities.  The Tribunal found that the applicant had exaggerated his profile and role in the 1997 demonstrations.  The Tribunal found that he was not wanted by the police and that no charges were made against him. 

10. Next the Tribunal dealt with the applicant’s claims to be at risk from his own party.  When the applicant was first interviewed by the department he made no claim to have left Bangladesh because of any problems with his own party or a fear of harm at the hands of members of that party.  The Tribunal found that as the head of a small group of twenty one in the student wing of the Jatiya party, he held no position of any prominence, such that his party would have any reason to turn against him and cause him harm.

11. Finally, the Tribunal considered the judicial system in Bangladesh.  The Tribunal did not accept claims that the applicant had outstanding charges against him for any political reason.  The Tribunal found, however, that even if there were outstanding charges, the applicant had recourse to protection through the judicial system in Bangladesh.  Given the applicant's limited profile and his total withdrawal from any political activity for the past year, the Tribunal found there would be no political will to harm the applicant.  The Tribunal concluded that, even if there were outstanding charges as claimed by the applicant, he could rely on the judicial system to defend himself from any false charges.  The Tribunal considered that the applicant would be able to get the services of a solicitor if needed and that his father would pay for those services.  The Tribunal concluded, therefore, that the applicant could rely on the protection of the state from any harm he might fear.

12. The Tribunal then summarised its findings.  The applicant held a relatively minor position in an opposition party in 1997 and, although he held the title of president of the Jatiya party student wing, his actual political profile was insignificant.  The applicant participated in a demonstration over a three-day period in his own area, and on the third day after violence broke out, he was injured in a melee when guns were fired on both sides.  The applicant continued in his role as president of the Jatiya party youth wing, with a group of twenty one members, until the end of 1999 when he resigned.  From that time the applicant has had no political involvement, and intends to have nothing further to do with any political group or activity.  While there are no warrants for the applicant’s arrest, or any charges against him, if there were, the applicant’s profile and disengagement from politics is such that he would be able to rely on the judicial system in Bangladesh to defend himself. 

13. The Tribunal concluded, therefore, that the applicant had no well-founded fear of persecution for any political opinion or any opinion imputed to him.  The Tribunal, therefore, was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

14. Having considered the reasons that I have just summarised, I am unable to glean any ground under s 476 of the Migration Act for interfering with the Tribunal’s decision.  The Tribunal’s findings are essentially findings of fact and the Tribunal has made findings against the credibility of certain of the applicant’s claims.  While I accept that the applicant maintains that he is unhappy with the Tribunal’s decision, I am not satisfied that the reasons the Tribunal give rise to any reviewable error.  It follows, in my opinion, that the application should be dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             4 September 2001

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	Mr L Tsaknis
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 August 2001
Date of Judgment:	1 August 2001