Applicant S274 of 2003 v Minister for Immigration and Multicultural Affairs

[2006] FCA 716

FEDERAL COURT OF AUSTRALIA

Applicant S274 of 2003 v Minister for Immigration & Multicultural Affairs

[2006] FCA 716

APPLICANT S274 OF 2003 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD 2441 OF 2003

STONE J
7 JUNE 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2441 OF 2003

BETWEEN:	APPLICANT S274 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT
PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	7 JUNE 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the first respondent’s costs in the amount of $1,500.

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	NSD 577 OF 2005

BETWEEN:	APPLICANT S274 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT
PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT

JUDGE:	STONE J
DATE:	7 JUNE 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh, with a wife and two daughters.  Prior to arriving in Australia, the applicant operated a restaurant and hotel in Chandpur in Bangladesh.  In the late 1980s and particularly from the middle of 1990 the applicant began to experience difficulties with his Muslim landlord.  The applicant claims that on several occasions the landlord refused to pay for meals that he had consumed in the restaurant and on one such occasion there was a fight between the landlord and one of the applicant’s brothers.  Shortly after this incident, the applicant claims that the landlord demanded the applicant leave the premises.  Around this time the landlord’s family also began to object to the applicant’s and the applicant’s wife’s Hindu religious practices.  The landlord also told the applicant’s daughters that they would be forced to marry a member of his family if they stayed in the region.  The applicant took his family to India.  On 26 May 1996 the applicant arrived in Australia on an Indian passport.  A delegate of the first respondent refused to grant the applicant a protection visa.

2. The Refugee Review Tribunal found that the applicant was a credible witness.  However, the Tribunal found that in the future the applicant was unlikely to be the victim of the conduct that he complained about, since his dispute with his landlord was effectively over.  Further, the Tribunal found that there was no evidence that the applicant or his family were the victims of systematic harm that would amount to persecution because of their Hindu faith, particularly given the Tribunal’s finding, on the basis of independent country information, that the situation for Hindus in Bangladesh had improved since the applicant lived there.  Finally the Tribunal found that even if the applicant’s fear of persecution was well-founded, he could relocate in Bangladesh to avoid the feared harm.  Accordingly the Tribunal affirmed the decision of the delegate of the first respondent to refuse to grant the applicant a protection visa.

3. On 11 November 1998, Einfeld J dismissed an application for judicial review of the Tribunal’s decision.  On 5 June 2003 the applicant commenced proceedings in the High Court seeking an order nisi.  The matter was remitted to this Court.

4. The applicant’s draft order nisi contains seven grounds, only three of which take issue with the Tribunal’s decision.  The remaining four address the decision of the delegate of the first respondent and are not relevant to this application.  In large part the applicant’s written submissions were directed to the merits of the Tribunal’s decision although, in part, they appear to bear no relation to the facts of the applicant’s case.  In any event this Court does not have jurisdiction to review the merits of the Tribunal’s decision and this aspect of the applicant’s submissions must be disregarded.  It appears from the applicant’s order nisi and those parts of the written submissions that could be considered relevant, that the applicant’s claims can be reduced to four. 

5. At the hearing of his application I summarised my understanding of the four claims to the applicant and gave him the opportunity to address the Court in support of them.  The applicant chose to rely on his written submissions and declined to make any oral submissions.

6. The applicant’s first claim relies on the decision in Muin v Refugee Review Tribunal (2002) 76 ALJR 966. He claims that the Tribunal did not afford him procedural fairness; it told the applicant that it had considered all the material but failed to consider favourable information in the delegate’s Part B documents. The applicant did not identify the favourable information to which he refers and there is no independent country information listed in Part B of the decision record. Given the absence of any details this claim must be rejected.

7. The applicant also claims that the Tribunal failed to give him an opportunity to respond to its concerns about his evidence.  However, in its reasons for decision the Tribunal records that it discussed the  following issues with the applicant:

   (a)that his problems ‘appeared to be with a particular Muslim family and to relate primarily to a dispute over property’;

   (b)the applicant’s good relationship with other Muslims;

   (c)the fact that incidents of problems between Hindus and Muslims were not so severe that Hindus feared Muslims throughout Bangladesh; and

   (d)the possibility of the applicant relocating to Dhaka. 

   It seems clear that the applicant was given an opportunity to comment upon the Tribunal’s key concerns about the his evidence and therefore the applicant’s second claim must be rejected.

8. The applicant’s third claim is that the Tribunal failed to meet its obligations of procedural fairness arising under the Migration Act 1958 (Cth) ‘(the Act’). Sections 424A and 424B of the Act were not enacted at the time of the Tribunal’s decision and accordingly the Tribunal cannot have made a jurisdictional error in failing to comply with them. In addition, there is no evidence that the Tribunal did not take into account relevant information in making its decision. The applicant attempted to provide some allegedly more recent information about the circumstances facing Hindus in Bangladesh in his written submissions. Either this is an attempt at a merits review of the Tribunal’s decision or it is an attempt to identify new information not considered by the Tribunal. Insofar as it is the applicant’s submission that the Tribunal ought to have taken this information into account in making its decision, this submission must fail. Clearly there can be no error in the Tribunal failing to consider information that was provided after it had made its decision. Finally, there is no evidence that the Tribunal failed to meet the obligations imposed by ss 425 and 426 of the Act. By letter dated 4 June 1998 the Tribunal invited the applicant to attend a hearing in support of his claims. On 2 July 1998 the applicant accepted this invitation and, in fact, duly appeared before the Tribunal.

9. The applicant’s final claim is that there was no evidence on which to base the Tribunal’s finding.  The Tribunal’s decision was based expressly on the evidence of the applicant and on independent country information.  This evidence was identified clearly in the Tribunal’s decision.  This claim must also fail.

10. Accordingly, the application for an order nisi must be refused with costs.  Mr Markus, who appeared for the first respondent, has requested that a costs order be made in the fixed amount of $1,500.  He has satisfied me that, given the work involved in this matter, $1,500 is a reasonable amount and I will order accordingly.

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

Associate:

Dated:            7 June 2006

The applicant appeared in person.
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	7 June 2006
Date of Judgment:	7 June 2006