NABG v Minister for Immigration - [2003] FMCA 78

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NABG v MINISTER FOR IMMIGRATION

[2003] FMCA 78

MIGRATION – Review of decision of the Refugee Review Tribunal – application for protection visa – whether the applicant had a well-founded fear of persecution for reasons of political association – credibility of applicant’s evidence – whether documents given to the Tribunal were genuine – whether it is appropriate for the Tribunal to make decisions as to the validity of corroborative evidence in document form – whether the applicant had been denied procedural fairness.

Judiciary Act 1903 (Cth), s.39B

Gamaethige v Minister for Immigration [2001] FCA 565
Kamal v Minister for Immigration [2002] FCA 818
Minister for Immigration v Durairajasingham [2000] 168 ALR 407

Malik v Minister for Immigration, FedCt (SA), 14/11/1997
Minister for Immigration & Ethnic Affairs and Anor v Surjit Singh (1997) 142 ALR 191
P v Minister for Immigration [2001] FCA 989
WACK v Minister for Immigration [2002] FCAFC 122
W148/00A v Minister for Immigration [2001] FCA 679

Applicant:

NABG

Respondent:

MINISTER FOR IMMIGRATION

File No:

SZ 1071 of 2002

Delivered on:

19 February 2003

Delivered at:

Sydney

Hearing date:

19 February 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the Respondent:

Mr M Wigney

Solicitors for the Respondent:

Clayton Utz

CORRIGENDUM

The citation of this judgment should be “NABG & Ors v Minister for Immigration [2003] FMCA 78”.

The four applications NABG, NABH, NABI and NABJ were heard together on 19 February 2003 and this judgment is for all four applicants.

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,250.00.

Associate:

Date: 22 May 2003

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1071 of 2002

NABG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is a citizen of Bangladesh. Together with his wife and two children, he arrived in Australia on 6 February 2000 and applied for protection visas on 25 February 2000. On 20 March 2000 a delegate of the Minister refused to grant that application and on 12 April 2000 the applicant applied for a review of that decision.
The review was carried out by the Refugee Review Tribunal which interviewed the applicant and made its decision on 13 August 2002. It handed down that decision on 3 September 2002. The Tribunal affirmed the decision of the delegate of the Minister not to grant protection to this family.
The applicant seeks review from this court. He submitted an application which indicated that the Tribunal had not:
“Attended any evidence in relation to the applicant's claims and thus its decision is influenced by sufficient doubts. The applicant provided a suitable vehicle and most of the grounds relied upon facts and documents, which the Tribunal did not consider. Thus the applicant relied on the following grounds:
(a)The Refugee Review Tribunal do not follow the proper procedure as required by the Migration Act thus, the procedures that were required by the actual regulations to be observed in connection with the making of the decision were not observed [MOIN (sic), Lee's (sic) case].
(a) The RRT decision was affected by an error of law and jurisdictional error.
(b) There was no evidence or other material to justify the making of the decision.”
The applicant also filed an affidavit that sets out the grounds that he had for seeking asylum in Australia and which have been noted in the decision of the Tribunal found between [CB112-122].
The applicant claimed before the Tribunal and the delegate that he was an active member of the Jatiya party and as a result, and in the hurly burly of Bangladeshi politics, he had been the subject of harm from persons who had political opinions that differed from his own. In particular, members of the Awami League and the Bangladesh National Party. These problems had commenced after he joined the Jatiya party in 1987. They reached some form of crescendo in 1991, following which the applicant took his family to the United States. He made an application for refugee status in the USA but it was not determined by the time that he returned to Bangladesh in mid 1993 to reinvigorate his business activities.
The applicant claimed that he had further problems arising out of his political convictions and his membership of a political party in 1999 and that cases had been brought against him wrongfully. It was because of this that he decided that he would have to leave the country again and journey to Australia. The applicant indicated to the Tribunal that those behind the persecution that he claimed, were members of the Awami league including it's pro-Jatiya party faction. He also advised the Tribunal of some involvement of an uncle of his who was a BNP member and with whom he had a land dispute going on for many years.
The applicant produced in support of his claim a number of documents including certified copies of charge sheets, a warrant of arrest and magistrate's order sheets. These indicated that the applicant had been arrested with some others and that it was noted that he had absconded.
The Tribunal was sceptical about these documents [CB 119]. He recites his debate with the applicant about them and is concerned that fake documents were easy to obtain in Bangladesh and that he believed that these documents were not genuine. In his findings and reasons the Tribunal states that he found the evidence of the applicant confused and unconvincing. He gives examples [CB 120]. The Tribunal indicates that the evidence did not suggest that members of the Jatiya party were generally at risk of harm from members of the BNP or the Awami League in 1999. He notes that the applicant did not experience any problems between 1993 and 1999.
At [CB 121] the Tribunal indicates that he believed that the applicant's evidence was confused and unconvincing because it was not true, because his claims were false. He indicated that he believed that the applicant had concocted these claims in order to obtain a protection visa. He believed that the police and court documents were fraudulent. He added that the applicant agreed that false documents could easily be obtained in Bangladesh.
The applicant has not further particularised his grounds for the review other than those that I set out at the commencement of these reasons. He did have the benefit of some advice pursuant to the Minister's scheme but he did not serve any amended application on any evidence upon which he intended to rely as he was ordered, nor did he file and serve an outline of submissions five working days before the hearing date, or at all. The applicant did not articulate his grounds of concern in any more detail when the matter came before me. He contented himself with pointing out that the documents were not fraudulent.
I have to confess to some concern about the finding of the Tribunal in regard to the documents. The finding appears to be based on two constituents. The first would appear to be the Tribunal's view of the applicant's credibility and the second is the country information which indicates that false documents can easily be obtained in Bangladesh and the applicant's agreement with that. There have been decisions of the Federal Court which indicate that it is not appropriate for a Tribunal to make a decision as to the validity of corroborative evidence in documentary form on the basis that the Tribunal does not accept the evidence of the applicant. In other words, the court has suggested the responsibility of the Tribunal is to make up its mind as to the corroborative value of the documents and then make up its mind about the credibility of the applicant. (See Gamaethige v Minister for Immigration [2001] FCA 565 at [54], Minister for Immigration & Ethnic Affairs and Anor v Surjit Singh (1997) 142 ALR 191, Malik v Minister for Immigration, FedCt (SA), 14/11/1997 and P v Minister for Immigration [2001] FCA 989).
In this case the issues are slightly intertwined because of the confusing evidence given by the applicant on dates, including dates surrounding the documents. I am sensible of the injunctions of the High Court and the Federal Court concerning a court giving a judicial review in respect of findings on credibility. In Kamal v Minister for Immigration [2002] FCA 818 at [36] Mansfield J said:
“ It is not for the court, on reviewing a decision of the Tribunal, to form it's own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude with the Tribunal's assessment of the applicant's claims should not have been made. Those evaluative processes are for the tribunal.”
Support for this view is found in cases such as WACK v Minister for Immigration [2002] FCAFC 122 and Minister for Immigration v Durairajasingham [2000] 168 ALR 407. McHugh J made the now often quoted remark that findings on credibility are the function of a primary decision maker “par excellence”; W148/00A v Minister for Immigration [2001] FCA 679.
To my mind and from what I have read in the papers, there is sufficient evidence to justify those findings of the Tribunal concerning the applicant's credibility. It is to be remembered that the Tribunal saw the applicant and was the person asking him the questions. The applicant's demeanour must have some effect upon a Tribunal's decision. In those circumstances and without further assistance from the applicant, I am unable to see any grounds under s.39B of the Judiciary Act 1903 (Cth) which will permit me to review the decision of the Tribunal.
I must therefore dismiss this application and order that the applicant pay the respondent's costs in the sum of $4,250.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: