Arefin & Ors v MIMA S185/2001 [2002] HCATrans 200 (23 April 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S185 of 2001

B e t w e e n -

ABU REZA MOHAMMED NURUL AREFIN

First Applicant

RAHELA AREFIN

Second Applicant

SALMINA AREFIN

Third Applicant

SABRINA BINTE AREFIN

Fourth Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ

GUMMOW J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 23 APRIL 2002, AT 2.54 PM

Copyright in the High Court of Australia

___________________

MR A.R.M.N. AREFIN appeared in person.

MS S. KAUR-BAINS: May it please the Court, I appear for the respondent. (instructed by Blake Dawson Waldron)

GLEESON CJ: Would you swear the interpreter, please, officer.

NUTAN SAGAR MAHARAJ, affirmed as interpreter:

GLEESON CJ: Yes, Mr Arefin. You can address us in English or in your native language as you choose. If you want to start in English and then interrupt yourself and avail yourself of the services of the interpreter, you can do that too.

MR AREFIN: Thank you, your Honour. I can speak English but I have some difficulties in understanding the technical things of the Court.

GLEESON CJ: That is all right. You proceed in what way suits you and if you want to interrupt yourself and use the services of the interpreter, then you can do that.

MR AREFIN: Thank you, your Honour. My submission is that I had applied for the refugee status and I have gone through all the process, the Tribunal, the two courts, and I have come to High Court. I understand from the Refugee Convention definition, under Australian law, to succeed in an application for a protection visa, an applicant must be afraid to return to their country of nationality and there must also be a real

chance that they will face serious harm of discrimination or an abuse of their fundamental human rights in that country within the reasonable foreseeable future.

I would like to say in this Court that the fundamentalists in Bangladesh have never declined, which the Tribunal said in the decision that the fundamentalists has declined in Bangladesh, but the last national election the fundamentalists got 17 seats in the Parliament and they got two Ministers in this current government. I have given plenty of documents to the Tribunal but the Tribunal have not given weight on my documents that I have provided.

There was a report from the DFAT Dhaka was completely biased and they have completely jeopardised my claim and they have raised various - your Honour, I believe that DFAT Dhaka.....raised various personal issue and tried to bypass the reality facts and the evidence on which the Tribunal and the Federal Court, the Full Court, directly or indirectly dependent. This constitutes a breach of section 424A and 424B. Talking to the Tribunal has been forewarned that the presiding member - talking to the honourable member of the Tribunal, I found that the Tribunal is anyhow biased by the DFAT reports.

Then before the decision I have written an application to the principal member to change or to ask the Tribunal to give weight on my documents and the principal member then wrote me a letter which is in the authorities book, page 27, sir. In reply to my letter the principal member told me that:

the weighing of the evidence is a matter for the Member concerned with which I cannot, and should not, interfere.

As I have understand through the Migration Act of 420(1)(b), that clearly indicate that:

must act according to substantial justice and the merits of the case.

I would like to point out, your Honours, to 422A(1)(b) that the principal member got the power:

another member constitute the Tribunal for the purposes of that review;

if the Principal Member thinks -

that substantial weight had not given to the documentary evidence. But the principal member ignored my letter and in the submission it is noted that he should not interfere. That is a constitutional breach of section 422A(1).

I have given more documentary evidence which has not been accepted by the Tribunal to the application book, page 29, last paragraph:

It is clear from the evidence set out above that the height of fundamentalist violence against journalists and others in Bangladesh seen to be too secular or to be critical of fundamentalists or their views occurred between about 1992 and 1994 and that there have been substantial changes since that time. The level of fundamentalist activity declined markedly after 1994 and, in 1996, the Awami League, the most secular of all Bangladesh's major political parties came to power. The Awami League neither supports nor condones religious extremism or violence.

Your Honours, there is a report for the "Reporters sans frontieres". It is an old report for 2001 where it has been clearly indicated that the fundamentalists have gained their power, they are back to the government and they are most powerful even than before. I refer to the authorities, page 5. This is clearly mentioned in paragraph 3, your Honour:

On 23 March -

this year -

Maulana Delwar Hossain Sayeedi, a member of parliament from Jamaat-e-Islami (a fundamentalist party in the coalition government), had already made violent remarks about journalists who "confuse Muslims as Islamists". He had demanded that "the blood of journalists be checked to see if they are Muslims or not".

This address was made publicly. In the same page, paragraph 1, there was a letter from the "Reporters sans frontieres". In this letter they have asked Interior Minister, the Home Minister, of Bangladesh to express his:

concern about threats and pressure by Islamist movement leaders against the independent media. "It is your duty to call to order political leaders of your ruling majority who violently threaten journalists", said Robert Menard, RSF general secretary. "You should not be surprised to see articles in the international press on the Islamisation of Bangladesh when fundamentalist groups are allowed to openly threaten the independent press", he added. The organisation urged the minister to reinforce security around those journalists and media that requested protection.

But, your Honours, this Minister is from the current government.....national party who got two of their Ministers from the Islamic Fundamentalist Party in Bangladesh, Jamaat-e-Islami.

CALLINAN J: There are only 17 members though, are there not, out of 300?

MR AREFIN: Your Honour, yes, there are 17 but they have got two Ministers in the Parliament. There was recently a report in "Far Eastern Economic Review" which I have given in the authorities, page 6. In this report it is said that:

Bangladesh that threatens trouble for the region and beyond if left unchallenged. Islamic fundamentalism, religious intolerance, militant Muslim groups with links to international terrorist groups, a powerful military with ties to the militants, the mushrooming of Islamic schools churning out radical students, middle-class apathy, poverty and lawlessness--all are combining to transform the nation.

Through all these reports it clearly indicates that this country has become a fundamentalist country. There is one more report in this authorities book on page 12:

About 15,000 Moslems gathered to expressed their support for fugitive Saudi terrorism suspect Osama bin Laden during a rally in the Bangladeshi capital Dhaka -

So every fundamentalist group is working there and anyone who challenge, who writes against them, they face serious problem. In my authorities, page 5, there is a report from the "Reporters sans frontieres" that:

Reporters Without Borders notes that on 5 February 2002 a passer-by was killed and several others injured by the explosion of incendiary bombs thrown by Muslim fundamentalists protesting against the presence of journalist Shahriar Kabir in the south-eastern town of Chittagong.

Shahriar Kabir was one of my colleagues with whom I worked at the Nirmul Committee and he was one of the reporters in Bangladesh. He write similar like me against the fundamentalists.

I came to this country in November 1995 and since, today, I have been observing different newspapers, through Internet and other means and report from the friends in the country and I found that the Jamaat-e-Islami, the fundamentalist party, they are waiting for me and they want to kill me because that is their normal practice. That is their normal thing they do. Your Honours, I like to refer another thing, that I told the Tribunal that I am in danger with the Jamaat-e-Islami, the fundamentalist party, in Bangladesh but DFAT has disclosed my whereabouts to the Jamaat-e-Islami, the fundamentalist party, in Bangladesh. They have asked them whether I am in danger by their hand. So they put me in more danger, and which breach the Act, 440(1)(c), disclosing my whereabouts, which the DFAT officers have done.

Your Honours, as I am representing myself, I have difficulties to understand the technicalities and the law, but what I feel, that the Islamic fundamentalists, they compelled me to leave Bangladesh and now they are more powerful in that country. So, your Honours, the decision which was given by the Tribunal has ignored the letter which was given by the national poet, Shamsur Rahman, who was attacked by the fundamentalists. He was one of the icons of anti-fundamentalists in Bangladesh. He gave a letter to the Tribunal explaining my situation in Bangladesh, that I am in danger with that, but the Tribunal did not give any weight on that. The Tribunal said:

I do not accept Mr Ahmed's evidence in this letter regarding that strength or activities of fundamentalists in Bangladesh in recent years.

Actually, the Tribunal was confused by the DFAT reports which have been attack me personally.

In the report it has been included that I have been deployed to the newspaper to handle labour problem. I am working as a journalist since 1980 and I joined that newspaper in 1991 and he said that I had been deployed there for - the DFAT had personally attacked me because that gentleman, the political economic officer of DFAT, was one of our colleagues and he got the personal jealousy in the workplace before that, which had been not asked by the Tribunal, and, another thing, the DFAT report explained that I have misappropriated the fund from the newspaper which I worked without consulting with the editor of the newspaper.

Later on when I receive this report through Tribunal I talk to my editor. My editor, Kazi Shahid Ahmed, had written a letter to the Tribunal, then the Tribunal at - their decision said they had not taken these parts but they have taken the other part. The report was completely biased and was made to distort my whole claim in this process. That is why they went to the Jamaat-e-Islami, who I am afraid that they will kill me. DFAT went to them to ask me whether I am in danger in them, which is absolutely a breach of Act. Then they said I have been mishandling fund from the newspaper and then the DFAT report says that I have been deployed as a news editor in a daily newspaper to handle the labour problem.

In the report they have said that I have never been a member of Nirmul Committee, the most anti-fundamentalist party in Bangladesh, but I have provided two of the letters to the members of the Nirmul Committee. They said that I am a member of the committee and I worked for them from the very beginning but the DFAT said they have consulted some other guys. They have not consulted to the people to whom I gave the letters from them.

In my conclusion I would like to say, your Honours, my life is in danger, more danger in Bangladesh. I am in more danger with my two kids here and my wife. If I will return back to my country, I will be killed and crippled, or whatever. The fundamentalists are increasing their power in Bangladesh day by day by the support of other fundamental groups. So I appeal to the Court to reprocess my whole application, to give an order to reprocess the whole application in the current situation that is prevailing in Bangladesh regarding the fundamentalists. That is all, your Honours, thank you.

GLEESON CJ: In this matter we have considered the written submissions filed on behalf of both parties and the oral argument addressed by the applicants. It is important that the applicants should understand that it is not the function of this Court, nor was it the function of the Federal Court, to re-examine the factual merits of the facts of the case for refugee status that the applicants sought to make out. No reason has been shown to doubt the correctness of the decision of the Full Court of the Federal Court, and for that reason the application is dismissed with costs. We will adjourn.

AT 3.15 PM THE MATTER WAS CONCLUDED