NAEH v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 186

FEDERAL COURT OF AUSTRALIA

NAEH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 186

NAEH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1215 of 2002

MOORE J
SYDNEY
13 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1215 OF 2002

BETWEEN:	NAEH APPLICANT
AND:	MINSTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	13 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed with 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 1215 OF 2002

BETWEEN:	NAEH APPLICANT
AND:	MINSTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	13 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Background

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 5 November 2002, which affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) refusing to grant the applicant a Protection (Class XA) Visa under the Migration Act 1958 (Cth) (“the Act”). The criterion for the grant of such a visa is, subject to subd AL of Div 3 of the Act, that the applicant is a person to whom Australia has protection obligations, under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 (“the Convention”).

2. The applicant is a citizen of Bangladesh.  He arrived in Australia on 27 October 2000.  On 14 November 2000 the applicant lodged the application with the Department of Immigration and Multicultural and Indigenous Affairs.  On 2 January 2001 the delegate of the Minister refused to grant the applicant a protection visa.  The applicant applied to the Tribunal for a review of that decision on 19 January 2001. 

   The Tribunal’s reasons

3. The Tribunal’s reasons begin with a discussion of the relevant legislation and what is comprehended by the definition of “refugee”, by the notion of “persecution” and by the notion of “well-founded fear”.  In a section of its reasons entitled “Claims and Evidence”, the Tribunal summarised the claims made by the applicant.  The applicant gave oral evidence to the Tribunal on 15 October 2002 and provided additional information (mainly Bangladeshi newspaper clippings) for consideration by the Tribunal.  The Tribunal also had before it the Departmental file relating to the applicant, the material referred to by the delegate of the Minister and other material drawn from a range of sources.  The following is a summary of the applicant’s account of his circumstances drawn from the reasons for decision of the Tribunal. 

4. While a student in Bangladesh the applicant became involved in social and political activities in his college and neighbourhood.  The applicant later became involved in student politics joining Islami Chattra Shibis (“ICS”), which is the student wing of the political party Jamaat-e-Islami Bangladesh.  The applicant held different official positions in ICS, including welfare secretary, press secretary and finance secretary.  During the applicant’s involvement with ICS, other political parties were in power, specifically, the Bangladesh National Party (“the BNP”), and later, the Awami League.  Members of opposition groups, especially the Chattra League (a student organisation of the Awami League) became hostile to the applicant and other members of his student organisation, because of their social and political activities.  They tried to destroy the applicant’s political career.

5. The applicant’s organisation would hold meetings nearly every day at different locations (at the college, at residences or in the city).  More often than not the police would try to close down the meetings and would often arrest members.  On one of those occasions the applicant was arrested with his friend, who was the organising secretary of the student organisation.  The police would regularly beat them and torture them by electric shock treatment.  At the hearing before the Tribunal the applicant gave oral evidence that he was arrested and held for a week in early 1998.  The applicant indicated that he still had the marks of electric shock treatment on his fingers.  The applicant was released through “negotiation” with political leaders, and the court that granted him bail.

6. During the period Awami League was in power (after the BNP had lost government) the supporters of the new government persecuted the applicant and other members of his student organisation and tried to destroy their credibility with other students.  They killed the applicant’s friend Abdul Karim and attempted to kill the applicant.  The Awami League supporters filed false charges against the applicant.  He said that the real reason for the false charges was because of his political opinion, which was harmful to his political enemies.

7. After the false charges were laid he received a visit at his residence from the Awami league activists and police.  The applicant and the applicant’s family feared for his life and they organised an air ticket and visa to Mozambique.  The applicant fled Dhaka on 27 September 1998 for Mozambique.  He had had no problems leaving Bangladesh because he had all the correct papers and so the false charges issue never arose.  In 26 January 1999, after Mozambique, the applicant went to Swaziland.  The applicant’s family sent him money to start a business with a friend, but the business was unsuccessful.  The applicant’s parents warned him not to return home as the political situation in Bangladesh had worsened.  The applicant found the situation in Southern Africa also to be difficult and sold his property and left for Australia.  The applicant has not returned to Bangladesh since he left in 1998.

8. The applicant’s claim for a protection visa is based on a fear of harm by his former political opponents in both the Awami League and the BNP because of his support for the Jamaat-e-Islami as a member of its student organisation. 

9. In a section in its reasons with the title “Findings and Reasons”, the Tribunal commenced by noting that the applicant had acknowledged that, after leaving Bangladesh, his own party had formed a coalition government with the BNP, replacing the Awami League in power.  The Tribunal accepted that the applicant was a member of the ICS and that he was an activist “at the local level”.  The Tribunal also was prepared to accept that given that the applicant was involved with an opposition political party, he had been detained by the police and subjected to physical abuse.  The Tribunal was not however satisfied that the applicant was released on bail and that he had had false charges filed against him.  The Tribunal based this finding on the fact that the applicant had not been apprehended by the authorities before he left Bangladesh and he was able to obtain a passport and depart though immigration and security checks en route to Africa where the Bangladesh Embassy provided him with a new passport.

10. While the Tribunal acknowledged that political violence continues in Bangladesh under the new regime, the Tribunal found that it was significant that the applicant had been absent for some four years.  The Tribunal was not satisfied that the applicant would “still be of interest to his former political opponents” because “the applicant had been involved in student politics”.  Moreover the Tribunal found that it would be reasonable for the applicant, who had shown “sophistication having lived abroad”, to relocate to a large city like Dhaka.  The Tribunal found the applicant’s claims that his opponents would pursue him to Dhaka to be unconvincing. 

11. The Tribunal concluded:

    In the circumstances of the applicant’s case, the Tribunal is not satisfied by the totality of the evidence before it, that there is a real chance the applicant would be harmed now or in the foreseeable future if he returned to Bangladesh.

    Issues in the application

12. The application for review in this court was filed on 18 November 2002. The application is made under s39B of the Judiciary Act1903 (Cth). The application contains a number of general claims. The grounds set out in the application are as follows:

    2.The Tribunal did not consider the applicant as a refugee despite my evidentiary proofs. The procedures that were required under the Migration Act 1958 to be observed in connection with the making of the decision were not observed.

    The Tribunal ignored the merits of the claim.   

    The Tribunal did not take into consideration the applicant’s real chance of persecution.

    3.        The Tribunal misjudged the state of the applicant’s claim.

    The Tribunal made a number of errors to decide the applicant’s review.

    The applicant was deprived of his right to natural justice.

    The Tribunal did not provide an opportunity to the applicant to make comments on the decision the Tribunal relied on.

13. In written submissions handed up at the hearing (prepared with the assistance of a migration agent) the applicant repeated these generalised complaints about the decision of the Tribunal and the procedures it followed.  However the applicant was not able to provide any particulars concerning any of the issues raised nor point to any part of the Tribunal’s decision or the material he had provided it to illustrate these complaints. 

14. The respondent in written submissions submitted that the Tribunal did not make any error of law and that the application does not particularise any error in the Tribunal’s decision. The respondent also submitted that the applicant appears to be seeking to challenge the Tribunal’s finding of fact and inviting the court to engage in merits review. The respondent submitted that any finding that the fears that the applicant held were no longer well-founded were findings of fact open to the Tribunal on the evidence before it. The respondent also submitted that it was open for the Tribunal to find that it was reasonable for the applicant to relocate to another area. Counsel for the respondent concluded by stating that that since there is no arguable jurisdictional error in the Tribunal’s decision, the operation of s 474 of the Act and the effect of Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 is immaterial to this matter.

15. I have read the reasons for decision of the Tribunal and the material furnished by the applicant and the independent country information.  The analysis by the Tribunal of circumstances presently prevailing in Bangladesh is not particularly detailed.  Nor is its reasoning concerning why the applicant would not be of interest to his political opponents.  However, the independent country information the Tribunal had, including newspaper clippings furnished by the applicant, does not obviously point to a contrary conclusion.  It is not apparent to me that any jurisdictional error attends the decision making of the Tribunal. 

16. Accordingly, the appropriate order is to dismiss the application.  The applicant submitted that no orders be made as to costs because of his impecuniosity.  While I understand why the submission was made, the applicant’s impecuniosity does not warrant, in the circumstances of this case, a departure from the general principle that costs should follow the event.  Accordingly, I will order that the applicant pay the Minister’s costs. 

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             13 March 2003

The applicant appeared in person.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	5 March 2003
Date of Judgment:	13 March 2003