Naba v Minister for Immigration and Multicultural Affairs

[2001] FCA 1827

FEDERAL COURT OF AUSTRALIA

NABA v Minister for Immigration & Multicultural Affairs [2001] FCA 1827

NABA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1473 of 2001

STONE J
18 DECEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1473 OF 2001

BETWEEN:	NABA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	18 DECEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the 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	N 1473 OF 2001

BETWEEN:	NABA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	18 DECEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bahrain who arrived in Australia on 1 December 1998. His divorced wife and daughter are still living in Bahrain. He applied for a protection visa on 4 July 2001. His application was refused by a delegate (“Delegate”) of the respondent on 27 August 2001 and the Refugee Review Tribunal (“Tribunal”) handed down a decision affirming the Delegate’s decision on 25 October 2001. On 30 October 2001, the applicant commenced proceedings in this Court seeking a review of the Tribunal’s decision, under Pt 8 of the Migration Act 1958 (Cth) (“the Act”).

   THE APPLICANT’S CLAIMS

2. In his written statement dated 11 July 2001, the applicant claimed that he had a well-founded fear of persecution because of his religion and his political opinions. He alleged that because he is a Shi’ite Muslim (Bahrain’s main religion is Sunni Muslim) he had not been allowed to hold government jobs or own land or property. He claimed that he faced imprisonment if he prayed in mosques and his employer, who was a Shi’ite Muslim, had been forced to sack him.

3. In relation to his political opinion, the applicant claimed that he was persecuted because he was a member of the political group called the Bahrain Front. This group allegedly met at the house where he lived with his family and his brother. He claimed that on 14 July 1996 he was arrested, tortured and detained for helping his brother print pamphlets for the group. When tortured he gave information about members of the group to the police. Subsequently some members of the group were detained. He was released after serving 18 months in prison because a “human rights” delegate had come to Bahrain.

4. After his release the applicant moved to the town of Issa where he claimed to have been subjected to more harassment. He received threatening letters, his car was set on fire and he was forced by his wife’s family to divorce her. After three months in Issa he was again arrested and detained for two and half months.

5. The applicant claimed that, after his release, while working at a travel agency in Issa, his employer had helped him obtain a visa. He further claimed that when he arrived in Australia in December 1998 he was unaware that his Australian visa was valid only for three months as he believed he held a five year visa.

6. At the Departmental interview held on 13 August 2001 the applicant made some changes to his written statement. For reasons that will become clear it is not necessary to detail those claims.

   THE TRIBUNAL’S DECISION

7. In making its decision on the application for the protection visa the Tribunal considered the applicant’s application, the Departmental interview of 13 August 2001, the submissions made on behalf of the applicant and independent country information concerning the political situation in Bahrain.

8. The Tribunal accepted that the applicant was a citizen of Bahrain. Despite some inconsistencies in his account, it also accepted, somewhat tentatively, the applicant’s claims that he was involved in the Bahrain Front group and was detained and ill treated on two occasions for this reason. 

9. The Tribunal accepted that,

   “repeated arbitrary detentions and physical assault while detained amount to persecution if they occur, as they did in [the applicant’s] case, because of a political opinion imputed to the detainee.”

10. The Tribunal found, however, that at most the applicant was a very low level participant in anti-government activities. It inferred this from the fact that, under the law in Bahrain as it then was, he could have been delayed much longer than was the case. It was also relevant that he was allowed to leave the country without hindrance. The Tribunal summarised its views on this point as follows:

    “I am satisfied that [the applicant] was, at most, a very low level participant in anti-government activities. He does not claim otherwise. I infer from the fact that the then-law allowed him to be detained without charge for much longer than he was, and that he was then allowed to leave the country after passing the usual security checks … that this is also how he was perceived by the authorities. I find that this was the case. This fact, coupled with the evidence that since his departure all political prisoners have been released and remain at liberty, leads me to find that the chance that [the applicant] may be re-arrested or otherwise harmed by the authorities because of his political opinion if he returns to Bahrain is remote in the extreme.

    For these reasons I find that his fear of persecution for the Convention reason of his political opinion by the Bahraini authorities is not well-founded.”

11. In relation to the applicant’s claim to fear persecution because of his religion the Tribunal noted that he had completed 12 years of education, he had gained a tertiary trade qualification and that his family had operated a successful business. On the basis of these findings the Tribunal found that the applicant’s fear was not well-founded. Whilst the Tribunal stated that it was plausible that the mosque where the applicant attended prayers was monitored by authorities, the Tribunal found that the attendance was limited by how busy the applicant was rather than by discrimination or fear of the authorities. On the basis of the independent country information the Tribunal found that the Shi’a had been subjected to some discrimination, but that “their situation had significantly improved”. Consequently, the Tribunal was satisfied, “that Shi’a Muslims in Bahrain are not subjected to persecution solely because of their religion.”

12. The Tribunal also considered the applicant’s fear of harm arising from the fact that, whilst under torture he revealed to the authorities the identities of approximately 25 members of the political group with which he was affiliated. The Tribunal’s rejection of the applicant’s claim in so far as it was based on this fear was influenced both by the information before it of significant liberalisation in the political climate of the country and the fact that while the applicant’s fear appeared to be genuine, what he feared was revenge by the families of the persons whom he named. While this is a real fear, it is not a fear for a Convention reason. In submissions Mr Lloyd noted that it was possible for the applicant to apply to the Minister for an exercise of the Minister’s discretion under s 417 of the Act. While Mr Lloyd was careful to state, and it is obviously the case, that he is not in a position to advise the applicant nor to predict the outcome of any such application, this may well be an appropriate course for the applicant to take.

13. The decision of the Tribunal is ultimately based on its assessment of the changes that have occurred in Bahrain under recent liberalisation. In his submissions before this Court the applicant quarrelled with this assessment made by the Tribunal. It is not, however, within the jurisdiction of this Court to review the weight which the Tribunal attaches to evidence.

14. Recent amendments to the Act moreover, result in this Court’s jurisdiction being even more very severely limited than previously. The decision under challenge is a privative clause decision within the meaning of s 474 of the Act. While the respondent accepted that under s 39B of the Judiciary Act 1903 (Cth), this Court has jurisdiction to review decisions of the Tribunal, the scope of this jurisdiction is severely limited by the privative clause provisions in s 474 and s 476 of the Act. The applicant has not been able to point to any error made by the Tribunal, other than quarrelling with the weight it had given to evidence. Nothing that is akin to jurisdictional error of the kind that might possibly fall within the limited jurisdiction of the Court has been identified. For this reason the application must be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             18 January 2002

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	18 December 2001
Date of Judgment:	18 December 2001