NAHU v Minister for Immigration - [2003] FMCA 314

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAHU v MINISTER FOR IMMIGRATION

[2003] FMCA 314

MIGRATION – Review of RRT decision – whether the applicant has a well founded fear for a convention reason – where the applicant fails to provide particulars or evidence to support allegations – where applicant relies on written submissions prepared by another – whether there was any jurisdictional error in the Tribunal’s decision.

Migration Act 1958 (Cth), s.420(2)(b)
Judiciary Act 1903 (Cth), s.39B

Goodwin-Gill The Refugee and International Law (1983)

Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal (2002) 190 ALR 60
NADR v Minister for Immigration [2002] FCAFC 293
Minister for Immigration v Eshetu [1999] HCA 21
Chanv Minister for Immigration (1989) 169 CLR 379

Applicant:

NAHU

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 232 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 S Lloyd

Solicitors for the Respondent:

Sparke Helmore Solicitors

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 232 of 2003

NAHU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a Bangladeshi citizen. He arrived in Australia on

14 September 2000. On 4 October 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 29 December 2000 a delegate of the Minister for Immigration refused to grant him a protection visa and on 19 January 2001 the applicant applied for review of that decision. The Refugee Review Tribunal heard oral evidence from the applicant on 13 November 2002 and decided the matter on 19 November. The decision was handed down on 12 September 2002. The Tribunal's decision was to uphold the original finding of the delegate.
The applicant is well educated. His family owns a philately and antique business which it carries out in the district of Sirajgonj but the applicant has relatives, including sisters, living in Dhaka. The applicant himself is a philatelist of some note. He has participated in a number of competitions for stamp collectors. He has won prizes. The applicant is also an atheist.
The applicant's claim to have a well founded fear of persecution for a Convention reason arises out of his fear of returning to Bangladesh following certain assaults which he claims were made upon him in 1999. He also fears retribution from the State Minister and Local Member of Parliament who is the organising secretary of the Awami League. The applicant claims that he was attacked by members of the Awami League and targeted by Muslim fundamentalists and high ranking Awami League leaders.
The applicant claims that the reason for these attacks arose from his known rejection of the religion of Islam and in particular because of his entry into a stamp exhibition in New Delhi in 1987 of a series of 64 A4 sheets of stamps held together in four large frames and referred to as "Man and Religion". The applicant told the Tribunal that these stamps depicted persons in the nude and he also claimed that there was a political message in the entry which was intended to show that Islam stopped people from doing good deeds and should be rejected as a religion.
The applicant claims that he won a prize for this exhibit and that when he was attacked in July 1999 it was because of what had occurred. He claimed that he had become a celebrity in Bangladesh as a result of his stamp collecting activities, that there had been newspaper articles about him and that this had antagonised the local state minister who was also concerned that he was an atheist.
All these matters were considered in some detail by the Tribunal and were rehearsed in its decision. At [CB 78] the Tribunal gives its finding in the following form:
" I accept that the applicant is a national of Bangladesh. I accept that he is a stamp collector and that he has won prizes for his stamps at various exhibitions including an international exhibition held in India in December 1997. I accept that the theme of the applicant's display at this particular exhibition was man and religion. I accept that some of the stamps the applicant showed at this exhibition showed figures in the nude. I accept that the applicant does not believe in or practice Islam.
However, I am of the view that the applicant has significantly exaggerated his profile and has claimed a notoriety he did not in fact have in Bangladesh. I am of the view that the applicant did so in order to create for himself the profile of a refugee. I am of the view that significant aspects of the applicant's evidence cannot be relied on. In particular, I am not satisfied that the applicant was assaulted either because of his entry into the stamp exhibition or because of his atheism. I am not satisfied that if the applicant was assaulted he was told that the stamp exhibition was the reason for the attack. I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason."
There then follows between [CB 78] and [CB 82] justification for the Tribunal's finding as expressed above. The Tribunal points out the problems with the evidence that it foreshadowed and then makes a number of observations upon the applicant's credibility and upon the credibility of some of the documents which he produced. These comments appear to me from my reading of the court book and the supplementary court book to be ones that the Tribunal was entitled to draw from the evidence which was then before it.
At the hearing before me the applicant sought to rely upon a set of written submissions filed in court on 21 July 2003 but dated 17 July 2003. The applicant himself speaks very little English. He advised me that these submissions had been prepared by a friend who he says he did not pay. He indicated that he had told the friend of his personal situation and that was used in the submissions. There are 11 paragraphs to the submissions which are contained in the court file. The first paragraph identifies the applicant. The second paragraph informs the court that the applicant is not familiar with the procedures of the court and that although at first he thought he could conduct his case himself he has discovered that he cannot do so but because he does not have the funds to employ a legal representative he is asking the court to take into account the submissions which are being made.
The third paragraph of the submissions suggests that the Tribunal did not take into account current observations by human rights organisations about the situation in Bangladesh. It makes reference to an article but it does not say whether that article was provided to the Tribunal. In any event there is no jurisdictional error by a Tribunal in failing to deal with a piece of general evidence concerning the situation in a country which is not directly relevant to the claims being made by the applicant.
Paragraph 4 of the submissions refers to a procedural error of the type considered by the High Court of Australia in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 60. Cases which have been heard since Muin have made it quite clear that that case was decided on a particular set of agreed facts and that in order for another applicant to succeed on the basis of the decision in Muin, the second applicant would have to be able to establish those facts for himself. This would require the provision of evidence. No evidence has been provided in the matter before me. I need only to refer to the statement of Keifel J at [26] in NADR v Minister for Immigration [2002] FCAFC 293 to indicate what was required and what was not provided.
Paragraph 5 of the submissions is a political statement concerning the current regime in Bangladesh. Paragraph 6 of the statement is an attempt to interpret s.420(2)(b) of the Migration Act 1958 (Cth) (“the Migration Act”). There are no particulars provided of how the Tribunal has failed to do substantial justice or consider the merits of the case. In any event, as Mr Lloyd has stated, the decision of the High Court in Minister for Immigration v Eshetu [1999] HCA 21 makes it clear that even if this had occurred it would not constitute a jurisdictional error.
Paragraphs 7 and 8 of the applicant's submissions are an attack upon the findings of the Tribunal. But this type of attack, whilst understandable, is of no assistance to an applicant who seeks judicial review under s.39B of the Judiciary Act 1903 (Cth). It is clearly the duty and responsibility of a Tribunal to come to its own view as to the facts of a case and the credibility of a witness and it is not for this court to interfere in that process.
Paragraph 9 of the submissions makes reference to the decision of the High Court in Chanv Minister for Immigration (1989) 169 CLR 379 and McHugh J's approval of a passage from the book by Professor Goodwin-Gill entitled The Refugee and International Law (1983) which states that fear of persecution and lack of protection are themselves inter-related elements. This court has no quarrel with that quotation but is unable to see how it advances the applicant's case.
Paragraph 10 of the submissions makes reference to continuing human rights violations in Bangladesh and states that the Tribunal did not take them into consideration. My reading of the reasons for the decision of the Tribunal indicate that it did take into account the human rights situation in Bangladesh, but it came to the conclusion that in the case of this particular applicant, he was able to draw upon the assistance of the police force when he had been the subject of what the Tribunal considered to be a random physical assault. Finally the submission says that the Tribunal had made a jurisdictional error not to consider the totality of the facts and failed to provide an opportunity to comment on information which the Tribunal relied on in its decision. No particulars are provided and no evidence is put forward to show how these allegations might be made out. They do not appear to be readily discernible upon the face of the record.
In all the circumstances, I am obliged to decline to review this decision of the Tribunal. 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 Magistrate's Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: