Applicant S1874 of 2003 v Refugee Review Tribunal

[2003] FCA 1617

FEDERAL COURT OF AUSTRALIA

Applicant S1874 of 2003 v Refugee Review Tribunal [2003] FCA 1617

S1874 OF 2003 v REFUGEE REVIEW TRIBUNAL & ANOR

N1013 OF 2003

EMMETT J
4 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1013 OF 2003

BETWEEN:

APPLICANT S1874 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

4 DECEMBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        the application be dismissed;

1.        the applicant pay the second 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	N1013 OF 2003

BETWEEN:

APPLICANT S1874 OF 2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	4 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh who arrived in Australia on 23 November 1996.  He lodged an application for a protection visa under the Migration Act 1958 (Cth) on 23 December 1996. On 9 April 1997, he was informed of the decision of the delegate of the second respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), to refuse a protection visa. On 2 May 1997, the applicant sought a review of that decision by the Refugee Review Tribunal (‘the Tribunal’). On 30 November 1998, the Tribunal affirmed the decision not to grant a protection visa.

2. The applicant was subsequently a party to proceedings brought in the High Court of Australia on a representative basis seeking relief in respect of the decision of the Tribunal.  On 25 November 2002, the High Court granted leave to the applicant to file an application seeking an order nisi for prerogative writ relief in relation to the decision of the Tribunal.  On 19 June 2003, a draft order nisi was filed on behalf of the applicant by Adrian Joel & Co, solicitors.  The matter was subsequently remitted to this Court.

3. On 27 October 2003, I made orders that the applicant file and serve, on or before 24 November 2003, a statement of contentions of relevant facts and law and any affidavits upon which the applicant intends to rely at the hearing.  That order has not been complied with. 

4. In the meantime, on 19 November 2003, Adrian Joel & Co filed a notice of withdrawal from acting on behalf of the applicant.  The Minister now asks the Court to dismiss the application pursuant to O 10 r 7(2) by reason of a failure to comply with the directions that I gave on 27 October 2003.  The applicant was informed of the directions that were given on 27 October 2003 by letter from the Minister’s solicitors dated 20 November 2003.  When the matter was called today there was no appearance for the applicant.  I am informed by the solicitor for the Minister that the applicant declined to attend Court when invited to do so at the Villawood Detention Centre.

5. I have read the reasons of the Tribunal for affirming the delegate’s decision to refuse a protection visa.  The reasons record that the applicant travelled to Australia on an Indian passport, which he claimed was fraudulently obtained.  He claimed that he was a national of Bangladesh.  While he did not submit any documents which substantiate his identity as that of a Bangladesh national, the Tribunal considered that he spoke fluent Bengali and displayed some knowledge about Bangladesh.  The Tribunal was prepared to accept his assertions that he is a national of Bangladesh and thus assessed his claims as against Bangladesh as his country of nationality.

6. The applicant claimed that he feared persecution because of his involvement with the Bangladesh National Party (‘BNP’) and because he is of the Hindu faith.  The Tribunal had serious doubts about whether the applicant had a subjective fear of persecution.  On his own evidence, the applicant travelled into and out of Bangladesh from 1991 until 1996, spending up to six months in India.

7. The Tribunal had grave concerns about the applicant’s credibility.  It considered that there were numerous inconsistencies between the account given to his initial solicitor, the statement lodged by his adviser to the Tribunal in March 1998 and the evidence given at a hearing before the Tribunal nine days later.  The Tribunal considered that the application disclosed fabrication and embellishment of claims over time to enhance the applicant’s claims for refugee status.  The Tribunal did not accept that the applicant was a member of the BNP or that he faced serious harm of any kind for reasons of his political opinion.

8. The Tribunal accepted that the applicant is a member of the Hindu minority in Bangladesh, which has experienced discrimination and has been disadvantaged in areas such as access to government jobs and political office.  The Tribunal also accepted the independent evidence that Islamic extremists have attacked women, religious minorities and development workers and that the Bangladeshi government has sometimes failed to denounce, investigate, and prosecute the perpetrators of such attacks.  However, the Tribunal accepted the evidence before it that the Constitution of Bangladesh protected the right to practise the religion of one’s choice and that that right is respected in practice.

9. The Tribunal found that the applicant has not in fact suffered detriment in education of sufficient severity as to amount to persecution.  The Tribunal considered that the independent evidence did not suggest a recurring pattern of violence against Hindus in Bangladesh.  Accordingly, while the Tribunal accepted that Hindus are subject to discrimination and harassment in Bangladesh, it did not accept that the applicant has been subject to any treatment in Bangladesh which amounts to persecution.

10. There is nothing on the face of the reasons of the Tribunal to indicate error.  In the absence of any material produced on behalf of the applicant to support any grounds upon which the Court could review the decision of the Tribunal, it is appropriate to accede to the Minister's application. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             22 January 2004

Counsel for the Applicant:	No appearance
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	4 December 2003
Date of Judgment:	4 December 2003