Hossain v Minister for Immigration & Multicultural Affairs [1999] FCA 809

FEDERAL COURT OF AUSTRALIA

Hossain v Minister for Immigration & Multicultural Affairs [1999] FCA 809 M D SHAHID HOSSAIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 115 OF 1999 DOWSETT J 18 JUNE 1999 BRISBANE (MATTER HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 115 OF 1999

BETWEEN: M D SHAHID HOSSAIN

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: DOWSETT J

DATE OF ORDER: 18 JUNE 1999

WHERE MADE: BRISBANE (MATTER HEARD IN SYDNEY)

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the costs of the respondent. 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 115 OF 1999

BETWEEN: M D SHAHID HOSSAIN

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: DOWSETT J

DATE: 18 JUNE 1999

PLACE: BRISBANE (MATTER HEARD IN SYDNEY)

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal affirming an earlier decision refusing an application for a protection visa. The applicant was born on 9 June 1963 in Dhanmondi in Bangladesh. He arrived in Australia on 22 February 1996 and applied for a protection visa on 21 March 1996. As is well known, a person will qualify for a protection visa if he is a refugee according to the relevant United Nations Convention which defines a refugee as any person who:- Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country … . 2 The applicant claimed that he had been "compelled to leave my country basically to save my life and to live the rest of my life without fear and worry". He alleged that his political activities and association with political people "made my life unsafe in Bangladesh". He referred particularly to political unrest since the beginning of 1995 and dated his own fears to the middle of that year when "the strong movement against the present government (BNP Government) began". (I should point out at this stage that many of the applicant's references to parties as being in government or opposition have been overtaken by events, but I have recorded the material as it appears in the record.) He then referred to the activities of the Awami League and the Jatiya Party. He said that their rising strength and random violence towards their rivals compelled him to leave Bangladesh for a safer place. He said that he feared harassment and perhaps, death at the hands of these organizations in the event of his return. He attributed this to his involvement with the BNP. He alleged that the other parties consider him to be "always behind most of the political mischief in Dhaka". His fear is of "political hooligans" and "those who participate in mischievous activities and violence under a political banner". He claimed to have been declared "a targeted BNP worker" by the Awami League, the Jatiya Party and the Jamayet-e-Islami People". He also said that "Even though I am not involved in any student politics and their activities, still the student wing of these parties are also running after me, eg: the Bangladesh Chatra League and the Islami Chatra Shibir". 3 He claimed that his own political activities dated from 1978 when he went to college and became active in the student wing of the Awami League, known as the Chatra League. He subsequently transferred his allegiance to the student wing of the BNP, and was active in that organization until March 1982, when Prime Minister Sattar, a BNP candidate, was deposed by General Ershad. He then spent a couple of years in Chittagong before returning to Dhaka. He again became associated with his previous political cronies. It seems that most of them had changed their ideology and joined the Jatiya Party. The applicant, however, remained loyal to the BNP and when possible, contributed to it and to the movement against "the dictator Ershad". Ershad fell in December 1990, and the applicant again became active in BNP politics. In the following five years (coinciding with the term in office of Prime Minister Zia) the applicant's political dedication and activities attracted the adverse attention of the Awami League, the Jamayet and the Jatiya Party. They attacked and tried to kill him and condemned him as a political conspirator and a BNP secret agent. 4 He claimed that it was well known that he was closely associated with Prime Minister Zia's son. He was harassed and insulted for this. He said that his family was also threatened and harassed by local hooligans and thugs. He was subjected to financial extortion by Awami "hooligans" in the course of his business, notwithstanding the fact that he was a leading figure in the BNP party. He was physically attacked on one occasion, the police taking no action. His younger brother (who was active in the Freedom Party) was attacked on a later occasion. He went into hiding. The applicant asserted that in 1994, he was actively involved in the mayoral elections in Dhaka on behalf of the BNP candidate. He was again active in the 1996 parliamentary elections. He said that it is quite common for BNP supporters to be harassed and attacked by members of other parties. The government is apparently unable to offer security. Many workers and leaders of the BNP are in hiding. Ms Zia has, herself, been attacked and harassed on occasions. 5 He alleged that in 1994, his political opponents commenced false criminal proceedings against him. He was able to refute them by use of his own party connections. He said that the BNP would now be unable to assist because it is too concerned with other matters. He has been told by the police that they can no longer protect him from attack. The police, themselves, fear reprisals if they take action against such attackers. He said that he was advised to leave Dhaka city for a few weeks and then realized that he could not be safe in Bangladesh. A friend helped him leave the country. The BNP Party is now in opposition at national level, and the applicant alleged that the government is victimizing BNP adherents. 6 The applicant also provided translations of two letters. The first appears to be dated 4 June 1996 and is a letter to the Officer-in-Charge of the Dhanmondi Police Station, complaining that certain persons forcibly entered the applicant's house, and that when they did not find him, they threatened to kill him when they found him. They did some damage and left. The second letter is from the applicant to the same addressee, alleging that on 4 December 1995 he had been assaulted whilst on his way home. The assailants demanded toll and attacked him when they were denied money. He claimed to have been injured. He also provided an extract from a newspaper dated 3 December 1996 in which it was alleged that BNP activists were being held on false criminal charges. 7 Basing the opinion upon what the applicant had said and upon information available as to conditions in Bangladesh, the relevant delegate of the Minister refused the application and notified the applicant accordingly by letter dated 16 January 1997. The delegate considered that the information available indicated that the political parties were "working relatively co-operatively together". The Bangladesh Awami League won a majority in the 1996 general elections with 146 seats out of 300, forming a Government with the support of the Jatiya Party. The BNP held 116 seats. The election was said to be fair. The delegate found that there was no evidence to support the applicant's claim that he was a well-known political figure in Bangladesh. She rejected the letters to the police, apparently upon the basis that the originals had not been submitted and because of an opinion expressed by the Department of Foreign Affairs and Trade that:- Our – and other diplomatic missions' view – is that nearly 100% of refugees humanitarian cases are accompanied by fraudulent documentation (DFAT country profile on Bangladesh, 1994 page 9). 8 I say nothing about the appropriateness of acting on such an opinion. The delegate pointed out that the applicant had lived continuously at the same address from 1985 until 1995, and then at another address until his departure in February 1996. This was thought to be inconsistent with his alleged fears. He obtained a visa in December 1995 but did not depart until February 1996. This was said to be "unacceptable delay for someone with a claimed fear of persecution". Reference was made to information suggesting that the current Prime Minister was committed to cracking down on violence irrespective of political affiliation. The delegate considered that there was no evidence to support the assertion that the present government would be unable to protect him from false prosecution. She accepted the volatility of politics in Bangladesh but was not satisfied that violence towards Mr Hossain was likely. In other words, the delegate was not satisfied as to the truth of the applicant's claims. 9 Subsequently, the applicant presented a statutory declaration by himself providing further information. He reasserted his fear of persecution by the Awami League, the Jamayet-e-Islami and the Jatiya Party. He said he did not claim to be a well-known political figure in Bangladesh but to be politically active in the local area of Dhanmondi. He supplied documents said to be extracts from "The New Nation" newspaper relating to what he said was an attack on his home in February 1996. The article was, however, not published until 23 February 1997. He also attempted to explain matters raised by the delegate including his continued residence at one address and the delay in leaving Bangladesh. He provided extracts from "The Daily Millat" for 28 January 1998, a newspaper article in "The New Nation" for 27 January 1998 and a certified copy of a charge sheet dated 17 January 1998 against him. The newspaper report for 28 January 1998 refers to an incident on 19 January 1998 when three unknown terrorists attacked the house of "Mr Shahid Hossain, Vice-President of BNP Dhanmondi, Central Road and blasted hand bombs". The translation of the article claims that they searched Shahid Hossain and asked him about his father. They forcibly entered the house and found his younger brother and tortured him. Various other details were given. It is also said that Kasheem Ali, Shahid Hossain's father, filed "a general diary in Dhanmondi Police Station on 20 January 1998 whose number is 1264". 10 As I have said, the translation refers to the invaders searching Shahid Hossain, that is the present applicant, notwithstanding that he entered Australia on 22 February 1996 and, as far as I know, has not returned to Bangladesh since that date. It would be inconsistent with his alleged fears for him to have done so. This reference appears in the sentence:- They came with a baby taxi to the house of Shahid Hossain and searched him. 11 It is possible, however, that the use of the pronoun "him" is a mistranslation of a pronoun referring to the word "house" rather than to "Shahid Hossain". This possibility is strengthened by the next sentence:- They asked about him to his father Kasheem Ali. As he failed to give them correct news about him, then they became furious with him. 12 There would be no point in asking Kasheem Ali about the applicant if he were present. Thus, one is inclined to give the applicant the benefit of the doubt and assume that the reference to "and searched him" was a reference to searching the house. It is a little difficult to believe that if the applicant were seeking to mislead the Department, he would have made such an error. 13 The charge sheet dated 17 January 1998 is against numerous people, including the applicant. The document appears to be designed to ground the issue of a warrant. Although there is a reference to the relevant section of the Bangladesh Penal Code, the nature of the alleged offence does not appear from the charge sheet. There is an attached document dated 26 March 1997 which appears to record a complaint by the same complainant against some of the same defendants (but not the applicant) which alleges:- An unlawful mass gathering in the office compound and unauthorized entry and hit with sharp weapons, did injuries, snatching wrist watch and demolishing the office and shops etc which are not recorded. 14 There is also a letter of complaint dated 26 March 1997 which appears to refer to the latter offence but does not name the present applicant. There is an article from "The New Nation" for 23 February 1997 under the heading "Attack on BNP Leader's Residence Deplored" by a "staff reporter". The article is as follows:- A group of armed miscreants attacked the residence of a BNP Leader at Dhanmondi area in the city recently. It is learnt that at 7.00 pm on February 1 1996 a gang of terrorists raided the residence of Mr Shahid Hossain ex Vice-President of Bangladesh Nationalist Party (BNP) and searched for Mr Shahid. They fled away due to resistance of local people. The terrorists threatened the other family members in absence of Shahid, it is alleged. A GD entry has been made with Dhanmondi Police Station in this regard with the GD no is 231-4-2-97. 15 In the edition of "The New Nation" for 27 January 1998 the following article appears under the heading "Bomb Hurled in front of BNP Leader's House":- A three-member group of terrorists has hurled bombs (cocktail) recently in front the residence of Mr Shahid Hossain, former Vice-President of Dhanmondi Thana BNP at Dhanmondi Central Road in city and they tortured his brother Ibne Salman when they did not find Mr Shahid in his house. 16 There is also an extract headed "Terrorists' Raid on the Residence of the Dhanmondi BNP Leader Shahid Hossain". Under the heading "Staff Reporter!" appear the words:- Issued on 27 January 1998 from the Daily Desh Janata. 17 The following article then appears:- On January 19, a group of three terrorists exploded hand-bomb in the residence of the former Dhanmondi BNP Vice-President Shahid Hossain located at the Central Road Dhanmondi. Having come to the residence of Shahid on board a baby taxi, the attackers searched for him first. They asked his father information leading to his whereabouts. As his father Kasheem Ali was unable to provide any accurate information, the terrorist grew angry and forced their way inside the room. There they met Shahid's younger brother Ibne Salman and physically tortured him. 18 There appear to be two incidents involved in all of this, one prior to 23 February 1997 reported in the newspaper of that day and one, probably on 19 January 1998, reported in the newspaper of 27 January, in "The Daily Millat" of 28 January and in the news clipping headed "Terrorists' Raid on the Residence of the Dhanmondi BNP Leader Shahid Hossain". 19 I turn now to the reasons of the Refugee Review Tribunal (the "Tribunal"). 20 The Tribunal rejected the application because it disbelieved the applicant for three primary reasons:- (1) Irregularities in his claims; (2) Irregularities in supporting documentation; (3) Lack of supporting information from the applicant about his claim to be an active supporter of the BNP. 21 A particular aspect of these criticisms was the Tribunal's refusal to accept as valid the article of 23 February 1997. The Tribunal considered "that the article has been fabricated to bolster the applicant's claims". The reasons for this conclusion were that it appeared a year after the attack and refers to the applicant as the "ex Vice-President of the BNP in Dhanmondi", although the applicant had not claimed to a Vice-President or to have held any position in the BNP from 1990 onwards. It was also said that:- The typeface of the article does not fit with the rest of the paper. The article was not submitted to the Department although it was published before (the applicant) made his application for a protection visa. 22 It might appear to the reader of the Tribunal's reasons that the article had been provided in the form of a photocopy of a newspaper extract, facilitating such falsification. However it turns out that the newspaper was itself produced and is part of the record. There is some justification for the comment as to typeface, although I am not sure that I would have inferred on that basis that the article had been falsified. It is curious that the article should refer to an event which had occurred so long in the past but again, I am not sure that I would have been willing to draw an inference of falsification from that fact. The criticism concerning the status of the applicant also seems to me to be a little harsh. It may be that he had not claimed to be a vice-president of the BNP in Dhanmondi, but there is no suggestion that such matter was ever put to him. He certainly did not claim to be a high-profile politician, but he did claim to have been politically active. It was suggested on his behalf that the vice-president of that particular branch is not a person of particular importance. That may be so. I consider that as a matter of fact, the Tribunal was on somewhat shaky ground in concluding that the article was a fabrication. I will return to this matter at a later stage. 23 The Tribunal then referred to articles concerning the attack on 19 January 1998. There is some discrepancy as to the date amongst the various articles, but that is of no real relevance. The Tribunal noted that these articles apparently appeared after the applicant had been notified by the Department of the initial refusal of his application. It was also pointed out that the applicant had said that he did not know where his brother resided, although the reports suggest that he was residing in the applicant's home at the time of the incident. Of course, the applicant's statement that he did not know where his brother resided was made in 1996 and may not necessarily have had any relevance to his state of knowledge in early 1998. 24 The Tribunal then dealt with the charge sheet dated 17 January 1998. It pointed out that it referred to an information dated 26 March 1998, after the date of the charge sheet. It appears to refer to the applicant in relation to an attack on an office of the Awami League on 26 March 1997 and to a complaint dated 17 January 1998. Because of various inconsistencies in the documents and the apparent delay in prosecution, the Tribunal was "unable to accept the documents as genuine and considers that they have been fabricated to support the applicant's claims." I will return to this matter at a later stage. 25 The Tribunal considered various other matters and then concluded that it was unable to accept the applicant as a truthful witness. It said at p 10 of its reasons that:- It considers that he has fabricated his claims to be an activist in the BNP and to have been attacked by political opponents in order to obtain a protection visa. The documents submitted by the applicant in support of his claims have been fabricated by or on behalf of the applicant. 26 The rejection of the application depended upon the finding that the applicant was not a credible witness. This led to there being no evidence before the Tribunal sufficient to satisfy it that he was a refugee. Obviously, rejection of the validity of the documents to which I have referred played a part in that decision. There are two alternative courses by which the Tribunal may have reached its decision. It may have considered all of the various criticisms made of the applicant's case, including those related to the documents, and concluded that he was unreliable and that the documents were probably false. In my view, there could be no criticism of that course. The alternative course would be to have determined the question of the falsity of the documents separately and in advance of the decision as to the credibility of the applicant. If it were considered that he had sought to rely on false documents, which he must have known to be false, that would be a factor of considerable weight in assessing his credibility. The final decision as to his credibility may then have depended upon a preliminary finding that he knowingly used false documents to support his case. In those circumstances the question would arise as to whether or not the Tribunal was entitled, upon the evidence, to conclude that the documents were false. If the Tribunal were following that course, it would not have been entitled to use any views it may have had as to the applicant's credibility in determining whether or not the documents were false as his credibility was the ultimate matter for resolution. In that latter situation it might be arguable that there was a reviewable error pursuant to par 476(1)(g) of the Migration Act 1958 (Cth) as expanded by subs 476(4). 27 It is difficult to ascertain from the reasons which of the two courses was taken by the Tribunal. On p 10, and again on p 13 of the reasons, the assertion is made that "The Tribunal is unable to accept the applicant as a truthful witness". This observation is followed by comments about his use of falsified documents. At an earlier stage in the reasons, the Tribunal had indicated its unwillingness to act upon the documents as authentic. It seems more probable than not that the Tribunal rejected the documents as part of the process leading to the ultimate decision as to credibility rather than as part of that ultimate decision. In those circumstances it is necessary to consider whether or not the evidence and other material justified the intermediate decisions as to the falsity of the relevant documents. In the end, and although I may have come to a different conclusion, I find that there was evidence to justify the Tribunal's views of the documents. The Tribunal summarized the evidence upon which it relied to conclude that the documents were false, and it is impossible to say that such evidence was incapable of justifying that conclusion. The Tribunal was entitled to infer that each of the documents was false and to use such inferences as the basis for an ultimate inference as to the reliability of the applicant's evidence. 28 I am unable to identify any other basis for challenging the decision. In those circumstances the current application must be dismissed with costs.