NACF v Minister for Immigration

[2003] FMCA 288

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NACF v MINISTER FOR IMMIGRATION [2003] FMCA 288

MIGRATION – Review of decision of RRT – where the application discloses only a submission about the Tribunal’s decision – where no grounds for review are articulated by the applicant.

Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth), s.39B

Federal Magistrate Court's Rules, Part 21 Rule 21.02(2)(a)

Kamal v Minister for Immigration [2002] FCA 818
W148/00A v Minister for Immigration [2001] FCA 679

Applicant: NACF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 1382 of 2002

Delivered on: 23 May 2003

Delivered at: Sydney

Hearing date: 23 May 2003

Judgment of: Raphael FM

REPRESENTATION

Solicitors for the Applicant: Applicant in person

Counsel for the Respondent: Mr S Lloyd

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1382 of 2002

NACF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant, who is a person who originates from Bangladesh, arrived in Australia on 19 October 1999 as the holder of a student visa.  After attending classes for a few days on 25 November 1999, he applied for a protection visa (class XA).  On 29 February 2000, a delegate of the Minister refused to grant such a visa and on 9 March 2000 the applicant sought review of that decision by the Refugee Review Tribunal. 

2. Some two years later the Tribunal dealt with the applicant's claim.  In accordance with its obligations, it considered the written material provided by the applicant in detail and decided that it was unable to grant a protection visa on the basis of that information alone.  It therefore arranged for a hearing, which was attended by the applicant.  The Tribunal's decision which is found between pages 62 and 82 of the Court Book indicates the matters upon which the Tribunal had sufficient concern to require the applicant to appear for an oral examination.  The Tribunal notes that the hearing was attended by an officer of UNHCR.  The decision itself reflects a close attention to detail and to the obligations of the Tribunal under the Migration Act 1958 (Cth).

3. The well founded fear of persecution for a convention reason stated by the applicant was his membership of the Bihari group of "stranded Pakistanis".  He claimed that as a result of his membership of this group he suffered persecution in Bangladesh.  The persecution which the applicant described appears to involve pressure from a family friend for the applicant to give up his inherited right to certain shops and property which he received from his father.  At [CB 78] the following appears:

   “ The Tribunal asked the applicant what would happen if he returned to Bangladesh.  In reply he said that his late father's friend would hurt him because he wanted his property.”

4. Although there is some evidence that the applicant suffered at least discriminatory conduct whilst he was at school, this appeared to have occurred a considerable time ago.  There was a reference to having been hit by some thugs which the Tribunal described as:

   “An evidently isolated incident on one particular sports day.  Meanwhile he went on to reside and work in evidently stable circumstances.”

5. In the findings and reasons of the Tribunal a conclusion is drawn that the applicant is not, as he claimed, a stateless Bihari, but a Bangladeshi citizen. The Tribunal goes on to doubt the credibility of much of what the applicant has claimed. The Tribunal explains the reasons for its decision between [CB 79] and [81]. Those reasons include the circumstances of the applicant's property holdings, the fact that the applicant does not appear to have much knowledge of the Urdu dialect which most stranded Pakistanis speak, the very confused evidence concerning the pressure placed upon him by the so-called family friend to sell his properties and the confused evidence in respect of his travel to Australia.

6. At the commencement of the proceedings the applicant confirmed that he had sworn an affidavit on 12 October 2002 which commences with the words "I am a citizen of Bangladesh".  The applicant advised me that he had not written the affidavit himself and this I accept.  But nonetheless it does appear to give some strength to the conclusions reached by the Tribunal.

7. Although the usual order for an amended application and an affidavit in support was made it was, as usual, not complied with.  We are left with an application that Mr Lloyd in his helpful written submissions described as:

   “An application in a form which will be familiar to the court in judicial review proceedings lodged by applicants from Bangladesh.  It contains no meaningful particulars of any alleged jurisdictional error.”

8. On 19 May 2003 the applicant provided certain submissions to the respondent. These submissions consist of 11 short paragraphs commencing with:

   “1.The Tribunal did not consider the applicant as a refugee despite many evidentiary proofs. 

   2. The procedures that were required to be observed under the Migration Act 1958 in connection with the making of the decision were not observed.

   3.The Tribunal ignored the merits of the claim.  It did not take into consideration the verdict from Bangladesh Country Report.

   4.The Tribunal did not act in good faith in regards to my claims.

   5. The Tribunal misjudged the fate of the applicant's claim.

   6. The Tribunal made a number of errors to decide the fate of the applicant's claim.  The applicants were not, and still are not, represented by the solicitor. “

9. I have to confess to the same sense of familiarity with this document as I do with the application document itself. 

10. I ask the applicant to explain to me in his own words why he believed the Tribunal had erred in law in the manner in which it came to its decision.  He responded:

    “ I told them the truth about the sad story of my life.  They did not believe the sad story.  I wanted to get more documentation to get evidence of my story, but my friend in Bangladesh has not replied.  I cannot afford a barrister.  The Tribunal was wrong not to rely on my information.  I wish to live like a human being, I don't want to go back to Bangladesh as life is miserable there.”

11. The case before me today is simply one of an applicant who, understandably, does not accept the views upon his credibility expressed by the Tribunal.  However, as Mansfield J said in Kamal v Minister for Immigration [2002] FCA 818:

    “ It is not for the court, on review in the 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 claims could not have been made.  Those evaluative processes are for the Tribunal.”

12. Stronger words were used by the Full Bench in W148/00A v Minister for Immigration [2001] FCA 679:

    “ A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.”

13. I am satisfied that the applicant has neither raised nor established any grounds under which this decision may be reviewed pursuant to s.39B of the Judiciary Act 1903 (Cth). I must 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 Magistrate Court's Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: