FEDERAL COURT OF AUSTRALIA

Hossain v Minister for Immigration & Multicultural Affairs [1999] FCA 410

MIGRATION – refugee status – protection visa – review of Refugee Review Tribunal decision – decision based on findings of fact as to credibility – duty of Tribunal to warn applicant of rejection of elements of evidence – limits of duty.

Migration Act 1958 (Cth) s 29, s 36

Bhuiyan v Minister for Immigration & Multicultural Affairs (Unreported, Wilcox J, 14 October 1998), distinguished

MOHAMMAD MUZAFFAR HOSSAIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1336 OF 1998

FRENCH J

SYDNEY

12 APRIL 1999

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The Applicant to 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.

REASONS FOR JUDGMENT

Background to these Proceedings

1                     Mohammad Hossain is a national of Pakistan.  He was born on 22 February 1967 at Hyderabad.  He travelled to Australia from Pakistan on a visitor’s visa arriving in this country on 26 April 1997.  He is the holder of a Pakistani passport issued on 20 April 1994.

2                     On 22 July 1997 Mr Hossain made application for a Protection Visa (866).  He was granted a Bridging Visa A allowing him to remain in Australia lawfully until twenty eight days after his application had been decided by the relevant officer of the Department of Immigration and Multicultural Affairs.  His application for a Protection Visa relied upon the contention that he was a non-citizen in Australia to whom Australia had protection obligations under the United Nations Refugees Convention as amended by the Refugees Protocol.  That is, it was an application involving the assertion that he was a refugee to whom the Convention applied. 

3                     Put shortly, the basis of his application was that he is a member of the religious movement known as the Ahmadi Movement or Qadiyami.  Members of this Movement claim to follow the Muslim tradition but do not accept Mohammed as the final prophet of God’s revelation.  They are and have been subject to mistreatment and discrimination in Pakistan including prosecution for breaches of blasphemy laws which attract the death penalty.

4                     According to Mr Hossain in material put before the Refugee Review Tribunal, he was born into a Sunni Muslim family and remained a Sunni believer until 1990.  He claimed that, as he grew up, he had seen a lot of discrimination and clashes between Sunni and Ahmadi religious groups and became curious about their differences.  He read books and articles about Ahmadi religious beliefs and established and maintained contact with Ahmadi religious activists.  He sought information about their philosophies and beliefs and about their prophet, Mirza Ghulam Ahmed.  Eventually, he said, he severed his affiliations with the Sunni religion and became a member of the Ahmadi movement.  Mr Hossain said that following his conversion he became an activist for the movement organising meetings, handing out leaflets and trying to motivate Sunni and Shia Muslim communities to join the Ahmadi religious movement.  He claimed to have become a prominent speaker and organiser who urged people to accept the philosophy of the Ahmadi religious beliefs.  He asserted that as a result of his religious activism he became the subject of persecution by Sunni and Shia Muslim community leaders and law enforcement authorities.  He claimed to have been the subject of trumped up charges and to have received death threats from other religious activists as well as from law enforcement authorities.  He fled to Bangladesh on 31 December 1996 for temporary shelter and there obtained a visitors visa to Australia.  He said that he feared he would be killed by the Sunni and Shia majority communities or would face life imprisonment.

5                     By a letter dated 11 December 1997 Mr Hossain was advised that his application for a Protection Visa had been refused.  It may be noted that while there had been material placed before the Department relating to discrimination against followers of the Ahmadi religious movement in Pakistan there was little detailed material verifying Mr Hossain’s personal circumstances.  Although the application referred to a Declaration of Facts concerning himself, no such declaration was provided with the application or before the Department made its decision.  Mr Hossain failed to attend an interview which had been arranged for him with the Department on 10 December 1997.  The departmental officer was satisfied on the evidence that Ahmadi and Qadiani Muslims may obtain passports legally and travel without official impediments even if they have Ahmadi or Qadiani designated in the religion column of the personal particulars page of their passport.  On his application Mr Hossain had claimed that he obtained his passport without difficulty and departed Pakistan lawfully.  Based on that information the departmental officer found that under the Pakistan law relating to passports he must have signed a statement on his application form disclaiming the Ahmadi Prophet and Founder.  The Departmental record of decision noted that Mr Hossain had indicated in three submissions to the Department that he would provide evidence establishing that he is an Ahmadi Muslim.  But seven months after he arrived in Australia and four months after he applied for a Protection Visa that evidence had still not been submitted.  The departmental officer gave no weight to his claim that he is a member of Pakistan’s Ahmadi community.  He concluded that Mr Hossain did not have a real chance of Convention-based persecution if he were to return to Pakistan and that his fear of persecution on return was consequently not well-founded.

6                     In January 1998 Mr Hossain applied to the Refugee Review Tribunal in Sydney for a review of the departmental decision.  On 11 September 1998 he was sent a letter from the Tribunal advising that it had examined the papers relating to his application but it was not prepared to make a favourable decision on that information alone.  He was offered the opportunity to give oral evidence at a hearing by the Tribunal in support of his claim.  The hearing date proposed was Thursday, 8 October 1998.  He was also offered the opportunity to present oral evidence from witnesses to the Tribunal. 

7                     On 28 September 1998 the solicitors acting for Mr Hossain wrote to the Tribunal enclosing applications for Protection Visas for members of his family, namely his spouse and two sons who had arrived in Australia on 20 July 1998 on visitors visas for a period of three months.  Mr Hossain was subsequently advised that only his application for review could be dealt with as the applications of his wife and children had not been through the primary decision-making process.

8                     On 8 October 1998 the Tribunal wrote to Mr Hossain care of his solicitors changing the proposed hearing date from 8 October to 12 October.  Given the short notice Mr Hossain’s solicitors asked for rescheduling to a later time and the hearing was rescheduled accordingly to 14 October 1998.  On 12 October 1998 Mr Hossain’s solicitors lodged additional material before the Tribunal including a statutory declaration from Mr Hossain, a copy of a submission dated 5 December 1997 in support of his original application, an extract from the Constitution of Pakistan, a copy of a later submission dated 1 August 1998 and copies of independent press reports from outside Pakistan confirming the extent of the persecution of Ahmadia religious activists in Pakistan.

9                     A hearing proceeded before the Refugee Review Tribunal on 14 October 1998.  At that hearing the Tribunal requested Mr Hossain to make available to it his original Pakistan passport as well as that of his spouse.  These documents were enclosed with a letter dated 19 October 1998 from Mr Hossain’s solicitors.  As the Tribunal recorded in its reasons it noted that there were some inconsistencies in the information in Mr Hossain’s primary application and his adviser’s submissions.  It stated at the hearing that it had doubts whether he was an Ahmadi or not and that it was a matter for him whether or not to submit further documentation.  The Tribunal stated at the hearing that to allow for this it would not make its decision before 2 November 1998.  Subsequently, additional documentation was provided on 4 November 1998.  This additional documentation was described as:

1.         Urdu version of the First Information Report (FIR) setting out a complaint against Mr Hossain said to have been made to police in Pakistan.

2.         A certified copy of Mr Hossain’s membership of the Ahmadia (Qadyanis) Religious Movement in Pakistan.

3.         A certified copy of a receipt from the Ahmadia (Qadyanis) in Pakistan as evidence of Mr Hossain’s membership contribution towards that movement.

10                  On 13 November 1998 the Tribunal affirmed the departmental decision not to grant a Protection Visa.  Subsequently Mr Hossain has applied to this Court for review of the Tribunal’s decision under the provisions of the Migration Act 1958 (Cth).

The Grounds of Review

11                  The application for an order of review was filed by Mr Humayun Kabir, described as a Migration Agent care of Leitch Hasson & Dent, Solicitors.  Mr Kabir is not a legal practitioner and was permitted to appear on a pro bono basis for Mr Hossain at the hearing of the application.  The stated grounds of the application were:

“That the Respondent exercised power under Section 431 of the Migration Act 1958 and decided that I am not a person to whom Australia has protection obligations under the Refugee Convention.

I certainly believe that the Department of Immigration as well as the Refugee Review Tribunal, has certainly made an error of law being an error involving an incorrect interpretation of the application of the law to the facts as found by the person who made the decision.

I therefore request the Honourable Federal Court to sympathetically assess my application for review under Section 476(1)(e) of the Migration Act.”

The Statutory Framework

12                  The grant of visas is authorised by s.29 of the Migration Act 1958, which provides, in part:

"29(1)  Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:

(a)       travel to and enter Australia;

(b)       remain in Australia."

13                  The Act provides for prescribed classes of visa and for the prescription of criteria for visas of specified classes (s.31).  Section 36 specifies a class of visa known as "protection visas" in the following terms:

"36(1)  There is a class of visas to be known as protection visas.

   (2)  A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

14                  Regulations are authorised to provide that visas or visas of specified classes may only be granted in specified circumstances (s.40).  Regulation 2.04 of the Migration Regulations provides that for the purposes of s.40, and subject to the Regulations, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part.

15                  Schedule 2 sets out various sub-classes of visa.  Subclass 866 is the Protection (Residence) visa.  Clause 866.211 of subclass 866 specifies the following criteria for the grant of such a visa:

"866.211  The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:

(a)       makes specific claims under the Refugees Convention; or

(b)       claims to be a member of the same family unit as a person who:

            (i)         has made specific claims under the Refugees Convention; and

            (ii)        is an applicant for a Protection (Class AZ) visa."

16                  It is also a criterion that the Minister must be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee Convention (866.221).

17                  The Refugee Convention is the Convention Relating to the Status of Refugees 1951 which is to be read with the Protocol Relating to the Status of Refugees 1967.  Article 1 of the Convention, read with the Protocol, defines a refugee as a person who fulfils the following conditions:

"...owing to 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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

18                  Section 411 of the Act sets out a class of decisions designated as "RRT-Reviewable Decisions".  The class of decisions so designated includes a decision to refuse to grant a protection visa (s.411(1)(c)).  An application for review of an RRT-Reviewable Decision is made to the Refugee Review Tribunal (s.412(1)).  Where a valid application is made for review of an RRT-Reviewable Decision, the Tribunal is required to review the decision (s.414(1)).  The Tribunal may, for the purposes of the review, exercise all the powers and discretions conferred by the Migration Act 1958 on the person who made the decision (s.415(1)).  The Tribunal is expressly empowered to affirm or vary the decision under review, remit it for reconsideration or set it aside and substitute a new decision (s.415(2)).

19                  Part 8 of the Act provides for the review of decisions by the Federal Court and in s.475 sets out a class of decisions known as "judicially-reviewable decisions".  This includes decisions of the Refugee Review Tribunal (s.475(1)(b)).

20                  An application for review by the Federal Court of a judicially-reviewable decision is limited by s 476 to one or more of the following grounds:

"(a)     that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b)       that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)        that the decision was not authorised by this Act or the regulations;

(d)       that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e)        that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(f)        that the decision was induced or affected by fraud or by actual bias;

(g)       that there was no evidence or other material to justify the making of the decision."

The Tribunal’s Decision

21                  The critical finding on which the Tribunal based its decision that Mr Hossain was not entitled to Convention protection was its finding that he is not a member of the Ahmadi religious movement.  That finding was unequivocal and stated thus:

“The Tribunal is not satisfied that the applicant is an Ahmadi and finds that he is not wanted by the authorities in Pakistan.  Taking account of the whole of the evidence, the Tribunal is satisfied that there is not a real chance of the applicant’s being persecuted for reason of his religion or for any other Convention reason if he were to return to Pakistan.”

The Tribunal did find that members of the Ahmadi religious movement are subject to persecution on account of their religion.  It extensively reviewed independent information relating to the position in Pakistan stating that:

“Ahmadis have traditionally experienced mistreatment and discrimination in Pakistan.  Although they consider themselves to be Muslims, they are regarded as heretics by both mainstream Sunni and Shia Muslims, due to doctrinal differences.  Ahmadis have been designated ‘non-Muslim’ by the authorities.  At the end of 1996, the Human Rights Commission noted that there were 144 cases pending against Ahmadis pursuant to the blashphemy (sic) laws, under which the death penalty can be, and has been imposed…”

In addition there was evidence of denial of freedom of speech and/or assembly, the closure of mosques, discrimination in employment and education, forced religious conversion, social and economic boycotts and threats and serious assaults sometimes resulting in death.  The general conclusion of the Tribunal was that:

“…there is discriminatory legislation targeted at Ahmadis which, together with a climate of social and religious intolerance, can result, and has resulted, in instances of persecutory treatment of individuals among the 4 million or so Qadianis.”

22                  Although it found that Mr Hossain was reasonably consistent across his written comments and oral evidence in relation to the main content of his claims, the Tribunal in other respects did not find him to be a satisfactory witness.  It noted that he was not as assiduous as might have been expected in pursuing his case.  He gave no detailed information in his primary application of 22 July 1997.  A bare claim that he was an Ahmadi wanted by police because of false cases lodged against him by Sunni followers was submitted in a letter of 1 August 1997.  It was indicated that a statutory declaration would be submitted.  A further letter from his adviser dated 8 September 1997 attaching background materials also indicated that a declaration would be presented.  A letter from the adviser of 5 December said that Mr Hossain was out of contact interstate when the Department tried to schedule a hearing with him for 17 November 1997.  No statutory declaration or further particulars had been provided at the time of the primary decision on 11 December.  The application for review was lodged without particulars and ultimately particulars of the claims were filed with the Tribunal in a statutory declaration dated 4 October on 12 October. 

23                  It was only at the request of the Tribunal that the original Urdu version of the FIR, of which an English translation had previously been submitted, was made available.  Before the hearing there was apparently no effort to acquire corroborative documentary evidence of Mr Hossain’s status as an Ahmadi which is readily available from the Ahmadiyya movement central organising body in Rabwah in Pakistan.  Mr Hossain had not sought evidence of his status from the Ahmadiyya Australia office in Sydney.  Time was allowed after the hearing and he subsequently submitted a certified copy of a certificate dated 18 June 1996 from the Ahmadiyya group in Karachi.  The body of it was in English but the letterhead in Urdu was not translated.  He also submitted a certified copy of a document in Urdu which was untranslated but was said to be a receipt from the Ahmadiyya in Pakistan as evidence of his membership contribution.

24                  The Tribunal commented on the manner in which Mr Hossain had pursued his case only because it was difficult to reconcile his manner of doing so with a fear of persecution and concomitant strong desire to secure protection in Australia.  That in turn raised a question about his credibility.  Other aspects going to credibility were the tendency of Mr Hossain to amend his responses to fit new points of detail and consistency raised with him.  It is not necessary for present purposes to review all the matters which the Tribunal traversed in assessing his credibility. 

25                  The certificate of membership of the Ahmadiyya group did not come from the headquarters in Radwah but was signed over a stamp of the Ahmadiyya group in Karachi.  Mr Hossain had given no indication at the hearing that he had previously obtained any certification of membership.  But the certificate was dated 18 June 1996.  The Tribunal was not satisfied that it was genuine and did not give it any weight.  It treated similarly the purported receipt which was filed with it.  The Tribunal found Mr Hossain’s evidence of having been in receipt of death threats from religious opponents and from law enforcement authorities and of having a false case lodged against him to be implausible.  It said:

“His claim to have kept himself hidden from the law enforcement authorities is inconsistent with his claim to have moved freely back to his home after being away in Lahore;  his claim that there was a false case against him and that he was wanted by authorities is inconsistent with his unimpeded departure from Karachi airport some two and a half weeks after the case was launched.”

26                  In connection with the FIR document the Tribunal said:

“This original is in a standard format well-known to the Tribunal, filled out in manuscript, but the preprinted Urdu script is blurred and illegible to the extent that it has to be assumed that the translator relied on prior knowledge of similar documents rather than actually reading what was printed.  Dates written in three places in manuscript using Latin figures, “1994”, are not reflected in the translation; dates in the translation in what appear to be equivalent sections of the text are rendered as “1996”  The FIR is stamped in two places with a barely legible rubber stamp from a local Karachi police station; it carries one defaced serial number and what is apparently a replacement number; it is on discoloured paper as though produced by a thermal process and is roughly deckled along the top edge as though torn from a pad.  The Tribunal is not satisfied that the FIR is genuine and does not give it weight.”

27                  In the event the Tribunal, for reasons which are plainly based upon an assessment of the evidence before it and including Mr Hossain’s credibility, was not satisfied that he was an Ahmadi.  That contention was critical to his claim for refugee status and that contention having been rejected his claim for refugee status failed.

Challenge to Findings of Fact

28                  The appeal for review was lodged, it would seem without any real comprehension of, or thought given to, the limits of judicial review of decisions of the Refugee Review Tribunal.  It is a matter of concern that the application was filed by a qualified migration agent not qualified as a legal practitioner who used the address of a firm of legal practitioners for whom he works in Sydney as his business address.  While I appreciate that Mr Kabir who filed this application and spoke on behalf of Mr Hossain, acted pro bono, this does not condone the lodgment in this Court by professional advisers of applications for review which are doomed to failure because they seek what review cannot give, an appeal on the facts.

29                  The bulk of Mr Kabir’s written submissions and his oral argument travel little beyond a challenge to the Tribunal’s findings on the critical issue whether Mr Hossain was a member of the Ahmadi movement.  I do not intend to traverse those submissions further.

30                  One contention was advanced that the Tribunal, constituted by the same member in another case of Shahid, decided on 18 June 1998, had found that an FIR submitted to it was an authentic document.  This merely highlights the factual nature of the findings which Mr Hossain sought to attack.  In that case, as the Tribunal found, the FIR did not “…bear the evidence of multiple photocopying and illegible print and stamps that mark as bogus some purported FIRs submitted to the Tribunal”.  Plainly there were factual differences which led to a different outcome in relation to the FIR belatedly submitted to the Tribunal in this case. 

31                  An argument was also advanced by Mr Kabir that the Tribunal had an obligation to warn Mr Hossain that it did not accept the genuineness of the documents submitted by him.  In this connection he relied upon a decision of Hely J given on 31 March 1999, Faruque Ahmed v Minister for Immigration & Multicultural Affairs [1999] FCA 359.  In that case his Honour held that the Tribunal had been invited by the applicant to verify the authenticity of certain documents submitted to it by him.  These were warrants for the arrest of the applicant on false charges.  His Honour held that it followed from Eshetu v Minister for Immigration Multicultural Affairs (1997) 71 FCR 300, Meadows v Minister for Immigration & Multicultural Affairs (Unreported Full Federal Court, 23 December 1998) and Bhuiyan v Minister for Immigration & Multicultural Affairs (Unreported, Wilcox J, 14 October 1998) that:

“…if RRT was to fulfil its duty to act “according to the substantial justice and merits of the case”, it was encumbent on it to make it plain to the applicant that RRT did not intend to make the enquiries which the applicant invited it to make, but nonetheless proposed to proceed upon the basis that it was not satisfied as to the genuineness of the documents, and encumbent on it first to afford the applicant an opportunity of putting whatever he wished to say in that regard.”

32                  The present case is plainly distinguishable.  The additional documents were made available to the RRT in response to its identification to Mr Hossain that the question of his membership of the Ahmadi religious group was in doubt in the Tribunal’s view.  The Tribunal had no duty to go further and afford Mr Hossain any additional opportunity to address that question.  It took all reasonable steps to give him every opportunity to put his case.  It found against him on the facts of that case.  There is no error of law on the part of the Tribunal and the application will be dismissed.

Conclusion

33                  For the preceding reasons this application is dismissed with costs.

Associate:

Dated:              12 April 1999