NABN v Minister for Immigration
[2003] FMCA 180
•8 May 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NABN v MINISTER FOR IMMIGRATION | [2003] FMCA 180 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – application for protection visa – whether applicant has a well-founded fear of persecution due to him being a homosexual – where the Tribunal made findings as to credibility – whether the applicant was denied procedural fairness – whether there was a jurisdictional error. |
Judiciary Act 1903 (Cth), s.39B
Kamal v Minister for Immigration [2002] FCA 818
Li Shi Ping v Minister [1994] 35 ALD 225
| Applicant: | NABN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 1301 of 2002 |
| Delivered on: | 8 May 2003 |
| Delivered at: | Sydney |
| Hearing date: | 8 May 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Solicitors for the Applicant: | Self Represented |
| Counsel for the Respondent: | Ms V Hartstein |
| Solicitors for the Respondent: | Clayton Utz |
CORRIGENDUM
Delete the words “due to him being a homosexual” in the catchwords.
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1301 of 2002
| NABN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Belarus. He arrived in Australia on
11 October 2000. On 13 October 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 8 December 2000 a delegate of the Minister refused to grant him a protection visa. On 10 January 2001 the applicant applied for review of that decision to the Refugee Review Tribunal.
Approximately one year and nine months later, the Refugee Review Tribunal arranged for a hearing in the matter. The applicant attended. On 19 August 2002 the Tribunal made its decision which it handed down on 10 September 2002. The decision made by the Tribunal was to affirm the decision already made by the Minister's delegate.
On 1 October 2002 the applicant filed in the Federal Court of Australia a request for review under s.39B of the Judiciary Act 1903 (Cth). In his details of claim he said:
“I state that RRT has erred in law where applying test of well-founded fear. Not all the submitted country information was considered. RRTs member was biased against onshore claims on political grounds.”
An affidavit in similar form was also lodged.
On 23 October 2002 Lindgren J made orders by consent which included orders requiring the applicant to file and serve any amended application and any evidence upon which he proposed to rely on or before 20 November 2002. The applicant was also ordered to file and serve an outline of submissions on or before five working days prior to the hearing date. The matter was then transferred to this court. The applicant did not comply with those orders.
The applicant who is an engineer by profession and who lived for the last 10 years before his departure for Australia in Grodny claims to hold a well-founded fear of persecution for the Convention reason of political opinion. He claims that he joined the Belarusian Popular Front (BPF) in 1997. He claims that he was arrested on a number of occasions and was detained. The applicant claims that in December 1999 he was effectively dismissed from his employment because of his political activities. Following his dismissal the applicant claims that he worked for the BPF and possibly its successor the BNP arranging transportation of printing materials from Poland. In August 2000 a bus which he used to take trips to Poland and return with the printed material was burned.
The complaints which he lodged about these matters were ignored and he was bashed by a group of unknown people who promised him "another lesson in democracy" in the future. In September and October 2000 he received a number of anonymous telephone threats. Because of his concern about these matters the applicant moved his family to safety in another city in October 2000. He obtained a passport and fled to Australia.
Before me the applicant stated that although the hearing before the Tribunal had lasted one and a half hours he was effectively only questioned for approximately 10 minutes. However, he did respond to a question from me concerning the matters referred to in the reasons for decision to the effect that the questions which had been set out there by the Tribunal had been asked and the responses which were set out had been given.
At a later stage in the hearing the applicant told me that he thought one of the reasons why his application was refused by the Tribunal was because he didn't have any documents to support his claim. He asked rhetorically how he could have prepared a sack of documents when he was escaping the country. He also said that he did not believe that his fear could be proved by documents. The kernel of the Tribunal's decision is contained between [CB 69 and 70] of the court book. At [CB 69] the Tribunal says:
“I am led to conclude that the applicant was not active with the BPF as he claims. I am of the view that the applicant fabricated his claim in this regard in an attempt to enhance his claims to refugee status.”
In the next three paragraphs the Tribunal expands and provides reasons for the conclusion which I have set out above. The findings are findings upon credibility. In this regard I accept what Mansfield J said in Kamal v Minister for Immigration [2002] FCA 818:
“It is not for the court, on reviewing a decision of the Tribunal, to form its 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 that the Tribunal's assessment of the applicant's claim should not have been made. Those evaluative processes are for the Tribunal.”
I am satisfied that there is no evidence of bias on the part of the Tribunal on the face of the decision. I have little doubt that the reference to bias in the application was placed there because at the time the application was made bias was one of the few grounds upon which an applicant could successfully seek review of the Tribunal's decision.
In her helpful written submissions Ms Hartstein points out that even if there were some substance to the applicant's claim in relation to country information a failure by the Tribunal to take into account relevant evidence would not necessarily amount to jurisdictional error. It is well said that not every error of fact is an error of law and not every error of law is a jurisdictional error. A mere failure to take into account a particular piece of evidence, even if important, is not reviewable unless it signified a complete failure to take into account a statutory consideration which the decision maker was bound to take into account see Li Shi Ping v Minister [1994] 35 ALD 225 at 236-7.
In all the circumstances, whilst acknowledging that the situation in Belarus is not a happy one, I am unable to find any grounds for review of this Tribunal's decision. I must therefore dismiss the application.
I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: