NAGN v Minister for Immigration
[2003] FMCA 453
•1 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAGN v MINISTER FOR IMMIGRATION | [2003] FMCA 453 |
| MIGRATION – Review of decision of RRT – where application made out of time – where applicant is unable to establish jurisdictional error. |
Migration Act 1958 (Cth), s.477(1)(A)
| Applicant: | NAGN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 757 of 2003 |
| Delivered on: | 1 October 2003 |
| Delivered at: | Sydney |
| Hearing date: | 1 October 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
The applicant to pay the respondent’s costs in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 757 of 2003
| NAGN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh. He arrived in Australia on 11 January 2000. On 10 August 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 11 September 2000 a delegate of the Minister refused to grant a protection visa and on 6 October 2000 the applicant applied for review of that decision from the Refugee Review Tribunal.
On 4 September 2002 the Tribunal wrote to the applicant informing him that it could not make a decision in his favour on the material that had been provided alone and offered him the opportunity to come to a hearing. The applicant took advantage of this opportunity and the Tribunal made its decision in the matter on 4 November 2002 handing it down on 27 November 2002. The Tribunal affirmed the decision of the delegate.
The applicant was not satisfied with the decision of the Tribunal and applied for judicial review to the Federal Court of Australia. In April 2003 he filed a notice of discontinuance of that application but on
5 May 2003 he took out an application in this court. He tells me that he did this because at the time he discontinued the matter in the Federal Court the law was very harsh but that he had heard it had become somewhat softer.
The filing of the application in this court on 3 June 2003 was a breach of s 477(1)(A) of the Migration Act 1958 (Cth) and the respondent has filed a notice of objection to competency. The respondent accepts that if I find that the Tribunal committed a jurisdictional error in the manner in which it came to its conclusions then I am empowered to deal with the case notwithstanding the time limits set out in s.477(1)(A) have been exceeded.
The applicant's claim to have a well-founded fear of persecution for the Convention reason of political opinion comes about from his having joined the youth wing of the Bangladeshi National Party (BNP) in about 1990. He claims to have been active in the college committee at Dakha College where he undertook his B.Com.(Hons) degree. He claims that he became general secretary of 39 Ward Jubodal.
It is not entirely clear whether, or if at all, the applicant left the student wing of the BNP but he told the Tribunal that he had not joined the BNP itself.
The applicant claimed that on 27 June 1996 men from the Awami League burnt and looted his house. One of his brothers was injured in the attack but the attackers did not hurt the applicant as he was not at home at the time. The applicant also claims that in 1999 he was set upon by 7 or 8 people in Topkhana Road, Palton. These people surrounded him, badly beat him up and then quickly left the scene. He was taken to hospital where he stayed for approximately 20 days. This incident occurred on 18 August 1999 but the applicant did not leave Bangladesh until January 2000.
The Tribunal provided its findings and reasons for its decision in some detail between [CB 62] and [69]. The Tribunal accepts that the applicant was involved in the BNP youth wing and for some 18 months over an 8 year period he held what appeared to be fairly junior positions in several organisations comprising respectively some 50 and 20 members.
On the other hand the Tribunal came to the view that the claims made by the applicant both in his visa application and at the hearing were often vague and general. The Tribunal criticises the applicant for his failure to provide any corroborative evidence either of his political activities or of the incidents that he refers to.
The applicant also alleges that he is the subject of false charges. He referred the Tribunal to two such charges one of which was made in 1994 and the other at the beginning of 1999. The Tribunal noted that the applicant was unable to give it any information as to the resolution of the 1994 charge some 8 years later. The Tribunal also noted that the applicant claimed not to know the details of the charge that was made at the beginning of 1999 even though he did not leave the country until the beginning of the year 2000.
The Tribunal put to the applicant the now familiar country information concerning the change in government in Bangladesh so that the BNP, which the applicant claimed to have supported, was now in power. The applicant responded that many members of the Awami League had joined the BNP and still bore hatred in their hearts for people such as him. At [CB 67] the Tribunal says:
“ While the Tribunal accepts that the applicant was beaten by hooligans on 18 August 1999, in view of the above and doubts the Tribunal has about the applicant's credibility, the Tribunal is not satisfied that there was a Convention-related reason or element behind this attack but rather finds that this claim has been made in order to enhance his claim for refugee status.
That said, and even if the Tribunal accepted all the claims made by the applicant that he has in the past been targeted by the Awami League (which it doesn't) because he was as a student a supporter of the BNP, independent country information accepted by the Tribunal indicates that the Awami League is no longer in power in Bangladesh but rather that the BNP now forms government in Bangladesh.”
At [CB 68] the Tribunal says:
“The Tribunal also accepts that the applicant did not apply for a protection visa until 7 months after his arrival in Australia. The Tribunal was satisfied that if the applicant had a well-founded fear of persecution for a Convention reason as he claims, he would have applied for a protection visa shortly after his arrival in Australia - and certainly not waited 7 months before doing so.”
The application filed in this matter is not of much assistance either to the court or to the applicant in attempting to comprehend what his grounds for review are. It says:
“ I am a refugee applicant under UN Convention and Refugee Review Tribunal did not consider my protection visa claim. The Refugee Review Tribunal did not inquire my claim and fully depended on DIMIA decision and affirmed the matter on the basis of DIMIA decision.
The Refugee Review Tribunal's decision was affected by error of law and lack of procedural fairness as well as denial of natural justice issue. There was no evidence or other materials to justify in making of the decision.”
When he appeared before me the applicant told me that there was not much material in the decision of the Tribunal. He said there were a lot of errors and that I should consider them. He told me that he thought his case needed to be re-considered. He told me that he had been told that he was wasting his time here but he did not believe that was correct. He said that the court had received his application and he should be heard.
I have looked in detail at the decision of the Tribunal. In a matter in which there are very few allegations made and even less corroborative material, the Tribunal has, to my mind, gone out of its way to provide a detailed critique of the application and a series of findings and reasons which are logical and based upon evidence that was before it. I am unable to find in this document or in anything the applicant has said to me jurisdictional error of any sort. I am satisfied that the applicant was provided with procedural fairness and that there was neither actual nor apprehended bias as might possibly have been suggested in the applicant's application.
I dismiss this application but in doing so I do it on the basis that it is an incompetent application having been filed after the time provided for under s.477(1)(A) of the Migration Act. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
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