NACL v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 542

FEDERAL COURT OF AUSTRALIA

NACL v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 542

NACL v MINISTER FOR IMMIGRATION AND MULTICULTURAL  AND INDIGENOUS AFFAIRS
N 1567 of 2001

SACKVILLE J
SYDNEY

1 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1567 OF 2002

BETWEEN:	NACL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	1 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant to 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 1567 OF 2002

BETWEEN:	NACL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	1 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE PROCEEDINGS

1. This is an application for review of a decision by the Refugee Review Tribunal (“RRT”) made on 7 November 2001.  The RRT affirmed a decision of a delegate of the respondent (“the Minister”) made on 11 March 1998 not to grant the applicant a protection (class XA) visa. 

2. The application for review of the delegate’s decision was lodged with the RRT on 1 April 1998. The RRT’s delay of three and a half years in determining the application for review is partly accounted for by the fact that the RRT member to whom the matter was first allocated, and who held the first hearing, resigned prior to making a decision. The change in composition of the RRT necessitated a second hearing, which took place on 9 October 2001. At the first hearing, held on 22 March 2000, the applicant had been represented by a migration agent. At the second hearing he was represented by a solicitor.

3. The applicant appeared at the hearing in this Court without legal representation. The application for review in this Court is framed by reference to grounds that were specified in Part 8 of the Migration Act 1958 (Cth) (“Migration Act”) prior to its repeal by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), which came into force on 2 October 2001. The key provision in the new Part 8 of the Migration Act is s 474, which provides as follows:

   “(1) A privative clause decision:
              (a)       is final and conclusive; and

   (b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

   (c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

   (2)     In this section:

   Privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not)…”.

   The RRT’s decision in the present case is a “privative clause decision” within the definition in s 474(2) of the Migration Act.

4. In the absence of any clearly formulated or particularised ground of review, the application fails to specify a basis upon which this Court could set aside or quash the RRT’s decision. The applicant also faces the difficulty that s 474(1) of the Migration Act, depending upon its proper construction, may create an insuperable barrier to a claim by him for relief in this Court, even if a properly drawn amended application were to be filed.

5. Since the applicant was unrepresented, I indicated to Mr Smith, who appeared for the Minister, that I proposed to deal with the matter on the basis that the applicant seeks leave to amend his application to invoke the jurisdiction of the Court pursuant to s 39B(1) of the Judiciary Act 1903 (Cth). That provision confers original jurisdiction on this Court

   “with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth”.

   Mr Smith did not oppose that course.

6. Any application for leave to amend could only succeed if there was, at the least, a reasonably arguable basis, independently of the effect of s 474(1) of the Migration Act, for finding that the RRT had committed a jurisdictional error. If such an error had been committed by the RRT, it would still be necessary to determine the impact of s 474(1) on the applicant’s claim for relief.

   THE APPLICANT’S CLAIMS

7. The applicant is a citizen of Bangladesh. He was born in that country on 15 January 1969. He claimed before the RRT to have a wife and child still living in Bangladesh. He arrived in Australia on 17 January 1998, on a visa issued to him in Singapore. He had lived in Singapore from January 1996 until his departure for Australia in January 1998.

8. The applicant made a number of statements outlining his claims to be a person entitled to a protection visa. In his first statement, the applicant claimed that he feared persecution by members of the Awami League in Bangladesh by reason of his membership of the Bangladesh National Party (“BNP”). He said that he had been attacked on several occasions and that his house had been burned and looted. He also claimed that he had been falsely charged with offences in Bangladesh, presumably because of his political affiliation.

9. In later statements, the applicant claimed that Awami League terrorists had tried to kill him in 1990 because of his involvement in a local dispute concerning land owned by his father. He said that he had again been attacked in 1995 and had suffered a serious eye injury. He also claimed that he was wanted in Bangladesh by the police and that local Awami League supporters were searching for him. He supported his case by producing letters suggesting that it would be dangerous for him to return to Bangladesh.

   THE RRT’S DECISION

10. The RRT described the applicant’s evidence as “confused, vague, implausible and internally inconsistent.”  It pointed to the significant disparities between the written and oral evidence that the applicant gave at the first hearing before the RRT and the written and oral evidence given at the second.  The RRT also considered that the applicant had sought to avoid directly answering questions put to him and had not provided additional details when they were requested by the RRT.  The RRT concluded that the applicant was not

    
     

    a person who was telling the truth and that his evidence was not reliable.

11. These adverse findings in respect of the applicant’s credibility resulted in the RRT rejecting his claims to fear political persecution in Bangladesh.  It stated as follows:

    “Overall, the applicant’s evidence concerning his political activities, the alleged false charges against him and the alleged assault on him, as well as his explanations for the failure of the police to arrest him were most unsatisfactory.  In the circumstances, I am unable to be satisfied that the applicant was active with the BNP, that there are false charges against him, that the police wanted to arrest him for that reason, that Awami League members assaulted him in 1995 or at all or that the Awami League otherwise wished to harm him.  In my view, the applicant fabricated his claims in this regard in an attempt to create for himself the profile of a refugee.  I am of the view that the applicant was of no adverse interest to the Bangladeshi authorities or the Awami League for reasons of his political activities at the time he left Bangladesh.  As I do not accept that the applicant was of any interest because of his political activities, I do not accept that the applicant’s father or brother were of any adverse interest to the Bangladeshi authorities or the Awami League because of the applicant”.

12. The RRT found that the chance that the applicant would be politically active if he returned to Bangladesh was remote, given that he had not been politically active before he had left that country. The RRT continued as follows:

    “In any event, the independent evidence is that the BNP has just had a landslide victory in parliamentary elections in Bangladesh.  It is a legal political party which has won some 185 seats in the national parliament.  As noted above, the independent evidence also indicates that violence pervades the political culture in Bangladesh.  Members and supporters of all political parties frequently clash with each other and with the police.  The independent evidence also indicates there is generally a culture of violence in Bangladeshi society of which political violence is but one manifestation.  That said, the evidence clearly suggests that the BNP has a large number of members and supporters in Bangladesh – indeed, that is supported by a clear majority of the population.  There is no evidence that all BNP members, including BNP members who are active on local branch committees, are vulnerable to attack by the Awami League or by anyone else.

    In the circumstances, I am of the view that the chance the applicant would be harmed if he returned to Bangladesh and actively supported the BNP is remote.  Further, given that the BNP is a legal political party that contests elections and is represented in parliament, I am of the view that the applicant could actively support the BNP without becoming involved in violence.  There is no evidence to suggest that all BNP members and supporters inevitably become involved in violent clashes.  In my view the applicant is not obliged to participate in violent street demonstrations.  I am of the view that he could openly participate in political activities and express his political opinion in Bangladesh without subjecting himself or anyone else to violence.  The applicant has not claimed that he was involved in violence in the past and I am of the view that the chance that he would choose to become involved in violence in the future is remote.  In the circumstances, even if the applicant openly supports the BNP in Bangladesh, I am not satisfied that this would given [sic] rise to a well-founded fear of persecution for a Convention reason.”

13. The RRT then referred to the applicant’s claim that his family had been involved in a dispute with the Awami League concerning land owned by his father. The RRT was not satisfied that this claim was true. The failure of the applicant to provide details of this alleged dispute in his written statement suggested that the claim had been fabricated. In any event, even if the applicant’s family had been involved in a dispute with the Awami League, the applicant’s own evidence made it clear that the dispute had arisen because the Awami League wanted to gain access to the land without paying for it. There was nothing to suggest that the League’s unwillingness to pay for the land was associated with the applicant’s actual or perceived political opinion or for any other Convention reason.

14. In these circumstances, the RRT was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention.

    REASONING

15. The applicant has put forward his argument to this Court with the assistance of an interpreter. As might be expected, his complaints about the RRT’s decision in essence relate to its finding that his account of the critical events should not be accepted. These complaints concern the merits of the RRT’s fact finding process and do not establish any jurisdictional error in the sense to which I have referred.

16. The applicant made two specific points in support of his claim for relief.  First, he said that he wanted more time in which to obtain documents from Bangladesh in order to support his case before the RRT.  Secondly, he contended that the RRT had formed an unfavourable view of his credit by reason of similar findings made in relation to other Bangladeshi applicants.

17. The fact that an applicant wishes to have more time to adduce further evidence to support his case does not establish jurisdictional error on the part of the RRT. There may be circumstances in which an unreasonable refusal by the RRT to grant an adjournment to enable an applicant to obtain further material might amount to a denial of procedural fairness (as to the relationship between s 474(1) of the Migration Act and a denial of procedural fairness see NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263). However, nothing of the kind happened in this case.

18. As I have noted, the proceedings before the RRT took over three years to decide.  The applicant had a very long time indeed to gather material to support his case.  In fact he engaged a solicitor (having previously been represented by a migration agent) in or shortly before early June 2001.  The solicitor wrote a letter on 18 June 2001 to the RRT requesting a month in which to lodge a further statement providing more up to date information.  A statutory declaration made by the applicant was in fact lodged with the RRT on 18 July 2001.  The second RRT hearing did not take place until 9 October 2001.  There was no suggestion that the RRT was asked to grant further time to the applicant to obtain additional documentation.  In these circumstances, the RRT did not deny procedural fairness to the applicant.

19. As to the applicant’s second contention, the RRT’s reasons demonstrate that its findings as to the applicant’s credibility were based on the evidence before it, including the applicant’s own evidence and the RRT’s assessment of the applicant as a witness.  The findings were not based on the outcome of other claims determined by the RRT.

    CONCLUSION

20. The application must be dismissed, with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.

Associate:

Dated:            1 May 2002

The applicant was self-represented.

Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	30 April 2002
Date of Judgment:	1 May 2002