NAHR v Minister for Immigration
[2003] FMCA 318
•24 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAHR v MINISTER FOR IMMIGRATION | [2003] FMCA 318 |
| MIGRATION – Review of RRT decision – application for a protection visa – where the applicant did not attend the Tribunal hearing – whether the applicant has a well-founded fear of persecution for reasons of political activity – whether there is any evidence that there is a ‘real chance’ that the applicant would suffer persecution in the future – whether there was any jurisdictional error in the RRT’s decision. |
Migration Act 1958 (Cth), s.426A
| Applicant: | NAHR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 252 of 2003 |
| Delivered on: | 24 July 2003 |
| Delivered at: | Sydney |
| Hearing date: | 24 July 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 252 of 2003
| NAHR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a citizen of Bangladesh who arrived in Australia on 5 October 2000. On 15 November 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 3 January 2001 a delegate of the Minister refused to grant a protection visa and on 1 February 2001 the applicant applied for a review of that decision.
The Tribunal considered the applicant's file and wrote to him advising that it had considered all the material before it but was unable to make a favourable decision on that information alone. The applicant was invited to attend a hearing and give evidence. On the morning of the hearing the applicant advised he was ill and was unable to attend. He provided a doctor's certificate. A further hearing date was notified to the applicant but he did not attend before the Tribunal and no explanation was received. The Tribunal therefore proceeded to deal with the matter in accordance with its powers under s.426A of the Migration Act 1958 (Cth).
The Tribunal noted that the applicant claimed that he had a well founded fear of persecution for the Convention reason of political activity arising out of his support of the Bangladeshi National Party and its student wing in the 1980’s. He claimed that he had been caught up in violent clashes between various student groups and had been arrested and tortured by the Awami League. He claimed that his family had paid bribes to secure his release and he had been required to move around Bangladesh over a period of about 10 years in order to avoid arrest.
The Tribunal noted that the applicant's adviser had submitted that even though the Awami League government was no longer in power and had been replaced by a government led by the BNP the applicant still faced a risk of persecution. The adviser submitted that the Awami League was still in a position to harm the applicant and the applicant also faced a risk of harm because of his past association with certain BNP figures who the present government were trying to force out. The adviser submitted material critical of the present government's human rights record.
The Tribunal considered these matters and at [CB 174 to 175] quotes at length from a critical Human Rights Report prepared in 2001 by the US State Department. The Tribunal also makes reference to Operation Clean Heart which is a government sponsored program intended to respond to the growing concern in Bangladesh and the international community about the continuing deterioration in law and order within Bangladesh.
The Tribunal came to a decision which it expressed in the following terms:
“The applicant originally claimed to fear persecution at the hands of the Awami government because of his support for the BNP and its student wing during the 1980s. He claimed he had been caught up in violent clashes and various student groups and had been arrested and tortured by the Awami League government. His family paid bribes to secure his release and he lived in different places in Bangladesh for 10 years. It seems he now claims to fear persecution from Awami League activists or the BNP government. Unfortunately the applicant's claims are not supported by evidence which he himself could give, as the applicant declined the opportunity to attend a hearing and give evidence. In the absence of such support I am not satisfied that the applicant's claims are true. I note that his claims are not inherently likely. For instance, he claims to have been arrested and tortured before being released on bail. He was then apparently able to avoid re-arrest for many years before leaving Bangladesh on his own passport. Nor is it apparent why the applicant would be at risk at harm following the change of government.
In any event, even if the applicant's claims are accepted, it seems that whatever political involvement or difficulties he had he was able to avoid further harm while living in Bangladesh for many years before leaving for the UAE. It is not apparent, on the limited information available, why he would be at any greater risk of harm now. I'm not satisfied that there is any real chance that the applicant would be persecuted if he were returned to Bangladesh. I am not satisfied that any fear of persecution he may have is well founded.”
The applicant came before this court today unprepared. He sought an adjournment. I declined to give him an adjournment because he had been informed in February of the date of the hearing and had also received the benefit of the Minister's scheme for the provision of legal advice. He admitted that he had received advice from a barrister on
30 June 2003. I accept that he speaks very little English and that he was not the author of either the application or of the lengthy and quite articulate affidavit prepared in support.
However, this document only rehearses his claims for asylum, it does nothing to indicate why he believes the Tribunal made a jurisdictional error in the manner in which it came to its decision. On the face of the record it would seem that the Tribunal considered the relevant information that had been presented on behalf of the applicant but for the reasons which it gave, and which I have set out, came to the view that on balance the applicant did not have a well founded fear of persecution as there was no real chance of him being singled out for harm because of his political activities if he did return to Bangladesh.
I accept Mr Kennett's submission that that was a conclusion of fact which the Tribunal was entitled to reach and which it is not within the power of this court to re-visit. I also accept Mr Kennett's submission that none of the grounds of review referred to in the application have been particularised or pressed by the applicant. This is not unsurprising given the applicant's knowledge of the English language or of the procedures before this court.
I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court rules.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
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