Samad v Minister for Multicultural Affairs

[2000] FCA 1495

FEDERAL COURT OF AUSTRALIA

Samad v Minister for Multicultural Affairs [2000] FCA 1495

Mohammed Abdus Samad v Minister for Immigration and Multicultural Affairs

N 462 of 2000

SYDNEY
MATHEWS J
16 OCTOBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N462 OF 2000

BETWEEN:	MOHAMMED ABDUS SAMAD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MATHEWS J
DATE OF ORDER:	16 OCTOBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant is to pay the respondent’s 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	N462 OF 2000

BETWEEN:	MOHAMMED ABDUS SAMAD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MATHEWS J
DATE:	16 OCTOBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, Mr Samad, seeks review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 March 2000, in which the Tribunal affirmed a decision of the Minister's delegate, refusing to grant him a protection visa. 

2. In order to be eligible for a protection visa, an applicant must show that he or she has a well founded fear of persecution in his country of nationality for reasons of race, religion, nationality, membership of a particular social group or political opinion.  Mr Samad says that he has a well founded fear of persecution for reason of his political opinion.

3. Mr Samad was born in Bangladesh in 1951.  He lived there all his life until 12 July 1995 when he left for Australia, arriving here the next day.  On 10 August 1995 he applied for a protection visa.  In his application form he said that he was President of the Jatiyo Party in his district of Munshigong.  He said that he had been arrested and injured several times by Government soldiers because of his activities with the Party.

4. On 7 December 1995 Mr Samad was interviewed by the Minister's delegate.  He conceded that there were some errors in his original application.  He said that he was more afraid of local hooligans than of the BNP, which was then the ruling party in Bangladesh.  On 13 February 1996, he wrote to the delegate repeating that incorrect accounts had been included in his original application.  Mr Samad, who speaks no English, said that he had been assisted by a Bengali-speaking acquaintance who had been over-zealous and made exaggerated claims. 

5. On 25 March 1998 the Minister's delegate refused Mr Samad's application.  There is no explanation for the delay of over two years before that decision was given. 

6. On 20 April 1998, Mr Samad applied to the Tribunal for review of the delegate's decision.  On 22 February 2000, the Tribunal conducted a hearing which Mr Samad attended with an interpreter.  Again, there is no explanation for the delay of nearly 2 years between the lodgement of his application and the date of the hearing.  There is no transcript of this hearing, but Mr Samad’s evidence was described in the Tribunal’s decision in the following terms: he told the Tribunal that most of the claims made in his original application were incorrect.  He said that he was a member of the Jatiyo Party between 1989 and 1995 when he left Bangladesh.  In 1993 he was a part time journalist with a daily newspaper.  On 2 February of that year a meeting of the Jatiyo Party was disrupted by demonstrators from the rival BNP Party.  A photograph taken by Mr Samad was published in the press.  It showed two of the local BNP “hooligans”, as he described them, involved in the throwing of bombs.  These two men, named Munnar and Nazim were, as a result of Mr Samad’s photograph, charged and convicted for their participation in the riot.  They were both sentenced to two years imprisonment.  It was after their release in 1995 that Mr Samad's problems started.  The two men, he said, made him an active target for harassment.  They assaulted and threatened him on several occasions.  He feared for his life and it was this that precipitated his departure from Bangladesh in July 1995.  One of them, Nazim, died in 1999.  However Mr Samad told the Tribunal that he still feared reprisals from Munnar should he return to Bangladesh.  Munnar is a political opportunist who is now aligned to the governing Awami League. He has continued to cause problems for Mr Samad's family and Mr Samad fears that he will be killed if he returns to Bangladesh.

7. The Tribunal in its decision accepted the substance of Mr Samad's claims as to the events which precipitated his departure from Bangladesh.  It did not accept Mr Samad’s claim that actions or prosecutions had been commenced against him since his departure from that country.  Given his background, the Tribunal did not accept that he continued to be of any interest to the Bangladesh authorities.  In this regard the Tribunal noted that the BNP government was replaced by the Awami League in June 1996, a change which could only have been favourable to Mr Samad.

8. The Tribunal, as indicated, accepted that Mr Samad was a target of harassment from Nazim and Munnar.  However it found that this did not constitute persecution which was in any way sanctioned by the Bangladesh government.  They were personal acts of revenge unrelated to Mr Samad’s political opinion.  The Tribunal accepted that Mr Samad might fear a revival of this harassment on his return, but found that this was not a fear of persecution for a Convention reason.  Any such harassment would be personally rather than politically motivated. 

9. In his application to this Court, Mr Samad relied upon three grounds under s 476 of the Migration Act1958 (“the Act”). The first ground, under s 476(1)(a) is that procedures that were required by the Act to be observed in connection with the making of the decision were not observed. In support of that ground the application said:

   “The Tribunal did not act according to substantial justice and the Tribunal member ignored the merits of the case.  Furthermore, the applicant was not provided an opportunity to make further comments or to provide further substantial documents which would help him.”

10. No further particulars were given in support of this ground.  Mr Samad is unrepresented before me and has made submissions to the court with the assistance of an interpreter.  I asked him whether at any stage he sought to provide further information to the Tribunal before it gave its decision.  He said he did not.  As already indicated, he attended at the Tribunal’s hearing and gave oral evidence, which was essentially accepted.  He was therefore given every opportunity to present his case and to provide any supporting documentary records.  Accordingly I can find no substance in this ground.

11. The second ground, under s 476(1)(e) of the Act, is that the decision involved an error of law. In this regard, it is suggested that the Tribunal failed to ask itself relevant questions concerning the likely consequences of Mr Samad being returned to Bangladesh. However, as the respondent’s Counsel pointed out in her written submissions, the Tribunal accepted that Mr Samad had been harassed by Munnar and Nazim and that he feared reprisals from Munnar should he return to Bangladesh. The Tribunal went on to find that this harassment did not amount to persecution for a Convention reason. There was no suggestion that Mr Samad feared any other adverse treatment in Banglasdesh. In my view the Tribunal has addressed the issue more than adequately in its reasons.

12. Finally, a ground of review was raised under s 476(1)(g), namely that there was no evidence or other material to justify the making of the decision. No particulars were furnished in support of this ground. The circumstances which will give rise to such a ground are circumscribed in cases such as this. I can see nothing in the circumstances of the present case which could bring it within that provision.

13. I asked Mr Samad today to tell me how he submits the Tribunal fell into error.  In response he gave a factual account, commencing with the riots in February 1993, of the events which precipitated his departure from Bangladesh.  This was similar to the account which he gave to the Tribunal at the hearing.  He was invited to point to any legal error on the part of the Tribunal but was unable to do so.  This is hardly surprising.  One would not expect him to be able to dissect the Tribunal's reason for legal error.  Accordingly, I have closely scrutinised the Tribunal's reasons myself in order to discern whether any error can be found.

14. In this case I can find no suggestion of error.  The Tribunal's finding that the reprisals feared by Mr Samad are personal rather than political was really the only finding available, given the material before it.  I therefore find that none of the grounds of review have been made out.  The application will be dismissed.  The applicant is to pay the respondent's costs.

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

Associate:

Dated:             16 October 2000

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Applicant:
Counsel for the Respondent:	Ms R M Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 October 2000
Date of Judgment:	16 October 2000