NAGC & Ors v Minister for Immigration
[2002] FMCA 171
•7 August 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAGC & ORS v MINISTER FOR IMMIGRATION | [2002] FMCA 171 |
| MIGRATION – Review of decision of the Refugee Review Tribunal affirming a delegate’s decision not to grant a protection visa – alleged lack of good faith – alleged bias – alleged procedural unfairness – credibility of the principal applicant. |
Federal Magistrates Court Rules 2001 (Cth)
| First Applicant: Second Applicant: | NAGC NAGD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ478 of 2002 |
| Delivered on: | 7 August 2002 |
| Delivered at: | Sydney |
| Hearing Date: | 7 August 2002 |
| Judgment of: | Driver FM |
REPRESENTATION
| The applicants were self represented. |
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The applicant NAGC is to be appointed litigation guardian in respect of the applications of NAGE and NAGF.
Need for compliance with rule 11.13 and 11.11(2) of the Federal Magistrates Court Rules 2001 is dispensed with.
The application is dismissed.
The applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed at $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ478 of 2002
| NAGC |
First Applicant
NAGD
Second Applicant
NAGE
Third Applicant
NAGF
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
I have before me for ex tempore judgment an application by four applicants to review two decisions of the Refugee Review Tribunal (“the RRT”). Applicants NAGC, NAGD and NAGE applied to review the decision of RRT made on 5 March 2002, and applicant NAGF applied to review the second decision of the RRT made on the same day. The principal applicant is NAGC, NAGD is his wife and NAGD and NAGF are two minor children of the principal applicant and his wife. I made orders at trial this afternoon for NAGC to be appointed litigation guardian of NAGE and NAGF under the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) for the purposes of these proceedings.
The background facts to this matter are accurately set out in written submissions prepared by the solicitors for the respondent Minister, in particular in paragraphs one, two, three, four, five and six of those submissions and I adopt that statement of background facts as follows for the purposes of this decision.
Applicants NAGC, NAGD and NAGE (the husband, the wife and the son respectively) submitted an application for protection visas on 5 November 1999. Only the husband made his own claim to be a refugee; the others applied for visas as part of the family unit. This application was rejected by a delegate of the respondent on 1 December 1999 and the applicants applied for review by the RRT on 21 December 1999. The RRT held a hearing on 1 March 2002.
Applicant NAGF (the daughter) was born in Australia on 7 June 2000. Her parents lodged a protection visa application on her behalf, which adopted her father’s claims. This application was refused by a delegate of the respondent on 26 April 2001 and an application for review by the RRT was lodged on 15 May 2001. The RRT in effect combined the hearing of this matter with the other family members’ case. It delivered a separate decision in which it concluded that, since the daughter’s claims rested solely on those of her father, her application must suffer the same fate as that of the other family members.
The father claimed to have been a prominent member of the Bangladeshi Nationalist Party (BNP) and to have had problems with the government after the Awami League came to power in the mid 1990s. In particular, he pointed to attacks on the family’s house and threats to the family in August and September 1999, just before the family left Bangladesh. At the RRT hearing he produced, among other documents, a warrant for his arrest dated 15 September 1999.
By the time of the RRT hearing, there had been further elections in Bangladesh and the BNP had been returned to power. This issue was canvassed at the RRT hearing and the father claimed that many opponents, including his local rival, were now in the BNP.
The RRT did not accept that the father had been a significant local figure in the BNP and that he faced serious harm at the hands of a local opponent. It reached this view because:
a)the wife gave only a vague account of the incidents which led to their departure and, when pressed for detail, was inconsistent with the husband’s account;
b)the husband was unsure of the year in which the Awami League had come to power, and since coming to Australia had (on his account) neither kept in touch with allies in Bangladesh nor made any contact with BNP support groups in Australia; and
c)the RRT concluded that the arrest warrant was a fraudulent document obtained at the eleventh hour to bolster his case.
The RRT also considered that, even if the husband’s claims were accepted, the harm which he feared arose from a local rivalry and could be avoided by moving to another part of Bangladesh. Given his education and skills, the RRT thought it would be reasonable to expect him to do so.
Accordingly, the RRT concluded that the husband, and therefore the rest of the family, were not persons to whom Australia owed protection obligations under the Refugees Convention.
The first applicant has filed in Court written submissions in support of the application. It is accepted that the outcome of the principal application of NAGC will determine the outcome for the remaining applicants. In his written submissions, the first applicant makes a number of complaints about the RRT decisions, in particular, the principal decision concerning his own application. He says that the RRT did not go through what he describes as the real picture of his claim. He submits that the RRT had predetermined the outcome before the hearing and went through the hearing simply as a matter of form. This amounts to an allegation of a lack of good faith on the basis of actual bias.
The first applicant also asserts that a number of errors were made by the RRT in the assessment of his claims. These were first, that the RRT had incorrectly assessed his claim in relation to a local rival who had made threats against him and his family arising out of problems that the two had experienced in local elections. The first applicant asserts that this man, who had been a member of the Awami League, has now joined the BNP, and that the problems between the two continued.
Secondly, the first applicant submits that the RRT was wrong in rejecting as fabricated a warrant of arrest which the applicant had submitted at a late stage to the RRT in support of his claims.
Thirdly, the first applicant asserts that the RRT acted in a procedurally unfair way in questioning his wife about statements of fact he had made and drew insupportable conclusions from the answers given by his wife. Fourthly, he asserts that the RRT placed unnecessary stress on a relatively unimportant matter of the time of a national election in Bangladesh in which the Awami League had come to power in 1996, not 1995 as he had told the RRT.
Fifthly, he asserts that he provided a reasonable explanation to the RRT of his failure to maintain contact with the BNP since he had been in Australia. Next, he asserts that the RRT did not properly assess his ability to relocate to another part of Bangladesh in order to avoid conflict with his local rival in the BNP. Finally, he asserts that the RRT failed to take into account that he had travelled to Australia a number of times on business purposes during which visits he did not make any claim to be a refugee. The first applicant elaborated on these submissions orally.
In his written submissions Mr Kennett, for the Minister, submits that no legal error can be identified from the decision and reasons of the RRT on the basis that the conclusions drawn by the RRT were properly drawn from the material before it. In response to the written submissions prepared and submitted today by the first applicant and in response to the first applicant’s oral submissions, Mr Kennett submits that the assertions made by the applicants do not support a contention of bias or any contention of some other legal error such as a constructive failure to properly exercise the jurisdiction conferred on the RRT.
If I am persuaded by Mr Kennett's submissions, the application will fail and it will be in that event unnecessary to consider the operation of the privative clause in the context of this application. Having considered the material submitted to me in the court book and having heard from the first applicant and Mr Kennett, I am persuaded that I should accept the submissions put on behalf of the Minister. I am unable to accept that the matters raised by the first applicant establish a case of bias or on any other grounds, a lack of good faith. It is understandable that when significant numbers of similar claims are made in migration cases before the RRT, presiding members may come to a hearing with suspicions about the veracity of the claims made.
These applicants, like many others from Bangladesh and India and Sri Lanka, make a claim for refugee status on the basis of political activity. While the presiding member in the RRT may well have come to the hearing with suspicions about the veracity of those claims, that does not itself establish a lack of good faith or bias. The RRT does not have to uncritically accept whatever claims are made. It can and indeed should, where it has suspicions, test the veracity of those claims. That is what the RRT was doing in questioning the applicant about factual matters, such as the date of the Bangladeshi election at which the Awami League gained power.
It would have been expected that if the applicant had been involved in politics in Bangladesh to the extent he claimed, he would have been familiar with the date or at least the year of such an important national election. It was not an irrelevant matter. Alternatively, if the applicant had, as he says, lost interest in politics and lost contact with Bangladeshi political figures since arriving in Australia, that in itself would have been a relevant matter for the RRT to take into account in considering whether he still faced a risk of persecution, should be return to Bangladesh.
Likewise, the RRT’s questioning of the applicant's wife was a reasonable approach by the RRT to test the veracity of the applicant's claims. The applicant's wife was kept out of the hearing room while the applicant was questioned, then she was asked questions about some of the factual assertions made by the applicant, in particular, his assertions about an attack on his home some short time prior to his leaving Bangladesh to come to Australia. It is true that on page 13 of the reasons for decision of the RRT, at page 139 of the court book, the presiding member notes that the wife was initially uncertain when questioned on these matters and provided responses that were general and not related to a time frame.
The presiding member states that he persisted, assuring the second applicant that he did not need to have specific dates but only approximate times. It might be thought, therefore, surprising that on pages 15 and 16 of the reasons for decision of the RRT, at pages 141 and 142 of the court book, the presiding member drew attention to inconsistency between the accounts of the husband and the wife. However, even taking into account that the wife was not expected to give precise details the presiding member, in my view, properly took into account that the statements made by the wife made no mention of a claimed shooting at the house a week before the parties' departure from Bangladesh and that she made reference to two other alleged incidents that had apparently not been mentioned by the first applicant.
It was open to the presiding member to take an adverse view on credibility based upon that inconsistency. The presiding member rejected the claims made by the first applicant about his political profile in Bangladesh. The presiding member said at page 16 of the decision, on page 142 of the court book, that in considering these claims as a whole, he concluded that the first applicant did not have the political motivation that he claimed and that he was not involved at the level he claims to have been. I find that this conclusion of the RRT was reasonably open to it on the material before it.
The RRT also rejected as fabricated an arrest warrant put before the RRT a short time before the hearing. The presiding member took into account country information indicating that such documents are readily obtainable from Bangladesh for a fee and the first applicant himself acknowledged that it was possible to buy anything in Bangladesh.
The applicant explained to me that the document was an original because it is common for several originals of an arrest warrant to be prepared in Bangladesh and to be supplied on request. The presiding member placed stress on the fact that the document presented to the RRT was an original document which, in the view of the presiding member, supported the conclusion that the document was not genuine. Even if the presiding member was wrong in that, the doubts expressed by the presiding member about the document on the basis of what appears on the document were reasonably open to the RRT. In addition, even if the RRT was wrong in finding that the document was fabricated, it would simply have provided evidence of an arrest warrant having been issued, without establishing any necessary political connection to the issuing of the arrest warrant.
Finally, the RRT found that even if the first applicant's claims were accepted he could relocate within Bangladesh, having regard to his education and claimed skills as a businessman. The first applicant before me contested that finding on the basis that relocation within Bangladesh is not a simple matter, having regard to the congestion within the country and the poverty of the country when compared to Australia.
It seems to me that the RRT’s conclusion on relocation was reasonably open to it, bearing in mind the skills apparently held by the applicant and bearing in mind that his claim of persecution was based upon conflict with one individual. It would seem to be possible for the applicant to remove himself from the animosity of that individual through relocation within Bangladesh.
The conclusion I draw is that the hearing conducted by the RRT and the decision and reasons of the RRT do not disclose bias or a constructive failure to exercise jurisdiction or any other discernible legal error. In the circumstances, it is unnecessary to consider the application of the privative clause and I will dismiss the application.
I will order that the applicant pay the costs of the respondent Minister of and incidental to the application, which I will fix at $4,000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 14 August 2002
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