Arefin v Minister for Immigration & Multicultural Affairs [2001] FCA 1097

FEDERAL COURT OF AUSTRALIA

Arefin v Minister for Immigration & Multicultural Affairs [2001] FCA 1097 Migration Act 1958 ABU REZA MOHAMMED NURUL AREFIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 306 OF 2001 HEEREY, EMMETT & ALLSOP JJ 7 AUGUST 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 306 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: ABU REZA MOHAMMED NURUL AREFIN

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: HEEREY, EMMETT & ALLSOP JJ

DATE OF ORDER: 7 AUGUST 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant 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 N 306 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: ABU REZA MOHAMMED NURUL AREFIN

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: HEEREY, EMMETT & ALLSOP JJ

DATE: 7 AUGUST 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT

HEEREY J: 1 The appellant appeals from a decision of a judge of this Court who refused an application for a review under Pt 8 of the Migration Act 1958 (Cth) (the Act) of a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision of a delegate of the Minister to refuse the appellant a protection visa. 2 The appellant claimed to fear persecution in Bangladesh arising from his work as a liberal journalist publishing numerous articles and writings criticising the policies and activities of Islamic fundamentalists. He also claimed to have been a founding member of the Nirmal Committee which was established to bring to trial members of Jamaat-e Islam, the fundamentalist Islamic party in Bangladesh who were believed by the Committee to have committed war crimes during 1971 war of independence. 3 In support of his claims the appellant submitted a large volume of his publications and other documentation such as photographs of himself with high profile Bangladeshi liberals. He identified a course of harassment and persecution over several years which he claimed to have suffered in Bangladesh at the hands of Islamic fundamentalists in retaliation for his public criticisms of their activities, for example: 1. In January 1992 he was followed by two motor bikes and the riders fired shots and threw bombs at him. 2. In June 1993 his six year old daughter was kidnapped. He received a telephone call from a man who offered to return his daughter if he ceased his publications. He agreed and his daughter was returned the next day. 3. In September 1993 fundamentalists fired shots and threw hand grenades into the offices of the newspaper where he worked. 4. In June 1995 a bomb was thrown into his car critically injuring his driver. 5. In October 1995 a shot was fired at his car, breaking the rear windshield. 4 The appellant claimed that he had been unable to obtain protection from the authorities in Bangladesh because of the political influence wielded by the Islamic fundamentalists. It was also asserted that he had received harassment in Australia from Bangladeshi Islamic fundamentalists in retaliation for his publications in Australian newspapers. The harassment included anonymous letters and telephone calls. 5 The Tribunal conducted a hearing in May 1999 and then arranged for inquiries to be made in Bangladesh by the Department of Foreign Affairs and Trade (DFAT) in relation to the appellant's claims. The results of DFAT's investigations were forwarded to the appellant. He responded to the DFAT inquiries with further written submissions and initial material and gave further evidence at a second hearing in July 2000. In support of its decision the Tribunal gave very substantial reasons extending over about 30 pages. In addition to a substantial volume of material provided by the appellant, the Tribunal's decision was based upon a comprehensive analysis of a large body of country information. 6 The Tribunal accepted that the appellant worked as a journalist and that he had published articles and a book espousing anti-fundamentalist views. The Tribunal also accepted that he was associated with leading members of the Nirmal Committee and may have been injured when the offices of his newspaper were bombed in 1993. However, the Tribunal was not satisfied that this resulted in the appellant having a well founded fear of persecution in Bangladesh. In essence, this conclusion was founded upon the following findings: 1. The appellant was not an entirely credible witness and had exaggerated his importance as a political figure and the extent of the harassment he had received; 2. It was clear from the country information that the height of Islamic fundamentalist violence against journalists and progressives was from 1992 until 1994. Since then the level of such violence had declined markedly. Moreover the Awami League, which was the most secular of Bangladesh's major political parties, was elected to government in 1996 and neither supported nor condoned religious extremists and extremism or violence; 3. Information from DFAT and a variety of other sources indicated that there were many liberal and secular journalists who continued to express their views without facing serious problems and that the Nirmal Committee continued to exist without serious problems effecting its members and supporters; 4. In any event, the evidence indicated that people who had been threatened by fundamentalists could obtain protection from the authorities. Although there was only a remote chance that the appellant would need protection, it would be available to him if required. 7 The case of the appellant before the primary judge proceeded on a quite different basis from that which was advanced before us. The appellant sought leave to amend his grounds of appeal by abandoning those that were agitated before the primary judge and replacing them with the following: "GROUND 1