NAGO v Minister for Immigration
[2003] FMCA 300
•17 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAGO v MINISTER FOR IMMIGRATION | [2003] FMCA 300 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – whether the RRT considered all of the applicant’s claims – no reviewable error found. |
Migration Act 1958 (Cth)
| Applicant: | NAGO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ514 of 2003 |
| Delivered on: | 17 July 2003 |
| Delivered at: | Sydney |
| Hearing date: | 17 July 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr D Jordan |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ514 of 2003
| NAGO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
( Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 8 November 2002 and handed down on 28 November 2002. The RRT affirmed a decision of a delegate of the respondent not to grant to the applicant and his wife protection visas. In these proceedings the first applicant is the husband who was the principal applicant before the RRT. The second applicant is the wife, who made no claims of her own and claimed protection as a family member of the first applicant's family. In these reasons I refer to the husband as the applicant.
The applicant claimed that he would be persecuted in Bangladesh by reason of his political activities. The general background is accurately set out in paragraphs 2, 3, 4 and 5 of the written submissions for the respondent filed on 15 July 2003. I adopt those paragraphs for the purposes of this decision:
The applicants are husband and wife. Only the husband (the applicant) made specific claims for protection pursuant to the Convention. The applicant’s wife applied for a protection visa as a member of his family unit.
The applicant is a citizen of Bangladesh. He claimed to fear persecution for reason of political opinion arising from his activities in support of the Bangladesh Freedom Party. These claims included the following:
i)The applicant joined the Bangladesh Freedom Party in 1989. He was elected as a vice president of a regional branch of the party in 1991 and was elected as an executive member of the Dhaka branch of the party in 1995.
ii)Following its election to government in 1996, the Awami League targeted the leaders of the Bangladesh Freedom Party. As a leading activist for the Bangladesh Freedom Party, the applicant was one of those who attracted adverse attention. This included false cases being filed against him, having his house ransacked and attacks from Awami League members.
iii)It was in order to escape this mistreatment that the applicant travelled to Australia in November 1999.
On two bases, the RRT was not satisfied that the applicant’s fear of persecution was well founded:
i)The applicant was permitted to leave Bangladesh on a passport issued in his own name. This cast doubt on his claim that several false cases remained outstanding against him.
ii)Following elections in October 2001, the Awami League was removed from government and the Bangladesh National Party (the BNP) was elected with a huge majority. There was no record of any persecution directed against members of the Bangladesh Freedom Party by previous BNP governments.
These findings were based upon a detailed review of relevant country information by the RRT.
The review application filed in the Federal Court on 20 December 2002 asserts that the decision of the RRT is invalid because the RRT did not follow procedures required by the Migration Act 1958 (Cth) (“the Migration Act”); secondly, that the RRT decision was affected by an error of law and jurisdictional error; thirdly, that there was no evidence or other material to justify the making of the decision; fourthly, that the RRT member made the decision in bad faith; and finally, that there was a constructive failure of the exercise of jurisdiction by the presiding member.
The application is supported by an affidavit by the applicant also filed on 20 December 2002. That affidavit contains factual assertions relevant to a consideration of the applicant's protection visa application. The grounds of review in the proceedings before this Court were not particularised. The applicant did not comply with an order that he file written submissions in advance of today's hearing. Nevertheless, I did hear submissions orally from the applicant. In his oral submissions the applicant asserts that the RRT did not pay close attention to his case. He submits that the RRT presiding member failed to clarify particular points and simply disbelieved him.
The applicant submits that his claims were not given proper consideration by the RRT and that the presiding member was simply guessing in making findings about the risk of persecution. In reply Mr Jordan, for the respondent Minister, submits that no jurisdictional error in the decision of the RRT has been demonstrated. In particular, Mr Jordan submits that the applicant’s claim that the RRT presiding member simply disbelieved him without any proper basis is not justified (court book, pages 92–93). At the bottom of page 92 the presiding member stated:
The applicant husband is a former Freedom Party activist. The applicants genuinely fear that for that reason they will be persecuted if they return to Bangladesh.
It follows that the presiding member accepted that the fear of persecution expressed by the applicant was a genuine fear. The only adverse finding on credibility made by the presiding member related to the admittedly important issue of whether the applicant would face false charges if he returned to Bangladesh. The RRT presiding member doubted that claim, noting that the principal applicant was able to leave Bangladesh on his own passport.
The presiding member said that there is evidence that the lower courts in Bangladesh can be manipulated through the laying of false charges. There is also evidence, the presiding member said, of long pre-trial detention and police torture and mistreatment of detainees. However, the presiding member found by reference to country information that there was no evidence of such persecution of Freedom Party members by the Bangladesh National Party. The presiding member concluded that he was not satisfied that there was a real chance that the present government of Bangladesh would use any false charges to persecute the applicants.
This rejection of an important part of the applicant's claims was, in my view, properly based on country information and an assessment of the credibility of that claim. The conclusion reached by the presiding member was reasonably open to him on the material before him.
Mr Jordan also submits that the applicant's claim that the RRT failed to properly consider and investigate his claims lacks substance. Mr Jordan submits that the RRT presiding member was aware from country information of the problem of political violence in Bangladesh, but properly and reasonably placed stress on the change of government that occurred in Bangladesh with the election of the BMP government. Mr Jordan submits that the conclusion by the presiding member that the applicant's fear of persecution is not well founded was not a guess, but was a rational and reasonable conclusion properly based upon the available information.
Generally, I accept those submissions by Mr Jordan. The main issue for consideration in my mind is whether the RRT considered properly or at all that part of the applicant's claims that related to his fear of persecution at the hands of individual Awami League activists. That fear is dealt with in some detail in paragraphs 5 and 6 of the applicant's affidavit. Mr Jordan objected to that affidavit on the basis that it could not be evidence in these proceedings. If the factual allegations are new, they are not relevant. If the factual allegations are the same as those that were made to the RRT, then the court book provides better evidence.
I regard the affidavit as relevant to these proceedings only as an aid in identifying the protection visa claims made by the applicant to the RRT. I am satisfied that the claims made by the applicant in paragraphs 5 and 6 of his affidavit formed part of his claims to a protection visa, albeit in summary form. The relevant claim appears at paragraph 11 of the applicant's statement (court book, page 38).
At the RRT hearing, the applicant chose to concentrate on his fear of arrest on false charges laid by the Bangladesh government. Nevertheless, it is clear that the applicant had not abandoned his claim of a fear of persecution at the hands of Awami League activists acting as individuals. On page 90 of the court book at the centre of the page, the presiding member states:
The applicant husband states that those people who were against him are still coming around to his house searching for him. They do this because they have a great desire to harm him.
It follows, in my view, that an issue for consideration by the RRT was whether the applicant and his wife faced a well founded fear of persecution because of hostile acts by individual Awami League activists. A necessary part of that consideration would be a consideration of whether the applicant would be able to access effective state protection.
Unfortunately, the findings and reasons set out in the presiding member’s decision are very brief. In the circumstances, the Court is left to interpret whether this aspect of the applicant's claims was considered. The question of whether the RRT overlooked a relevant consideration is, in my view, a borderline one. The claim has not been dealt with explicitly. However, on a careful reading, I have concluded that the presiding member has dealt with the claim. First, the presiding member accepted that both applicants had a genuine fear of persecution. I take this to mean that the presiding member accepted that the principal applicant had faced problems with Awami League activists in the past.
Secondly, the presiding member placed great importance on the change in the political environment in Bangladesh following the election of the BNP government. The presiding member noted that the Awami League which had sought to harm Freedom Party activists was no longer in power. I take this to mean that the presiding member concluded that Awami League activists no longer had a power base from which they could pursue persecution of Freedom Party activists.
The presiding member concluded that he was not satisfied that there is any real chance that the applicants will be persecuted should they return to Bangladesh. I take this to be a conclusion that whatever problems the principal applicant may have experienced previously because of his political activities would not recur. In the circumstances, it was not necessary to consider explicitly the availability of effective state protection.
There is no substance to the grounds of review set out in the application. The issues raised by the applicant orally today do not establish a jurisdictional error. The decision of the RRT is a privative clause decision. I will therefore dismiss the application.
On the question of costs, I am satisfied that costs should follow the event and I will therefore make an order for costs. The sum of $3,000 is, in my view, sufficient on a party/party basis in this matter. I will therefore order that the application be dismissed and that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the amount of $3,000.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 August 2003
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