Hossain v Minister for Immigration & Multicultural Affairs

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).