NAHV v Minister for Immigration - [2003] FMCA 395

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAHV v MINISTER FOR IMMIGRATION

[2003] FMCA 395

MIGRATION – Review of decision of the RRT – application for a protection visa – where the applicant claims to have a well-founded fear of persecution for political reasons – where the Tribunal held that the applicant could relocate – whether there was jurisdictional error in the decision – whether the Tribunal was biased.

Migration Act 1958 (Cth), s.91R
Judiciary Act 1903 (Cth),s.39B

Randhawa v Minister for Immigration (1994) 52 FCR 437
SBBS v Minister for Immigration [2002] FCA FC 361

Habibi v Commonwealth of Australia (1999) 197 CLR 5-19
Waterford v Commonwealth of Australia (1987) 163 CLR 54

Applicant:

NAHV

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 405 of 2003

Delivered on:

5 September 2003

Delivered at:

Sydney

Hearing date:

5 September 2003

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

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 405 of 2003

NAHV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh. He arrived in Australia on

22 September 2000. On 27 October 2000 he lodged an application for a Protection (Class XA) Visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth) (“the Migration Act”). On 19 December 2000 a delegate of the Minister refused to grant him a protection visa and on 22 January 2001 he applied for review of that decision. The Tribunal offered the applicant an opportunity to attend upon it in person and give evidence, which he accepted. The Tribunal made its decision on 21 November 2002 and handed that decision down on 17 December 2002. The Tribunal's decision was to affirm the original decision of the delegate.
The applicant claims to have a well-founded fear of persecution for a convention reason arising out of his activity as a teacher in the local Madrassa in his village. He stated to the Tribunal that he believed he would be harmed by people in his village if he returned to Bangladesh. They were angry with him because he had taught young boys not to get involved in politics and crime. He stated that he was often threatened by people in his local village and once he was caught by them. They blindfolded him and took him away. He was beaten. A bribe was paid to release him. An uncle decided that he should not stay in the village and arranged for him to go to the United Arab Emirates.
The applicant departed Bangladesh for the United Arab Emirates in 1986. Apart from three visits to Bangladesh, he has not lived in that country since. When his visa in UAE expired he came to Australia.
In a statement which the applicant made and was submitted to the Tribunal and which is found at [CB 43-44] the applicant states:
“Under the Refugee Convention I might not be considered as such a refugee but in principle of humanity I have every right to seek refuge from fear and persecution as a member of the global human being.”
Later in the same statement he says:
“Under law my passport is valid for my return again to Bangladesh. But it is naive that I could be again persecuted and killed. I am sure in the regime of Awami League I cannot return and if Australia persuades me to return at last, she in turn put me again within the grip of death.”
The Tribunal questioned the applicant about the possibility of him relocating within Bangladesh. The applicant indicated that he was not financially capable of relocating. It is clear from the decision of the Federal Court in Randhawa v Minister for Immigration (1994) 52 FCR 437 that if it is reasonable to expect a person who has a well founded fear of persecution in relation to one part of the country from which he or she has fled to relocate to another part of the country, then that person will not be a refugee for the purposes of the convention or s.91R of the Migration Act.
In the same case the court held that the factors to be taken into account in considering the reasonableness of a claim that an applicant could not relocate should be those factors which are raised by the applicant himself. At 443 Black CJ said:
“I agree that it would ordinarily be quite wrong for a decision maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision maker's task will be largely determined by the case sought to be made out by the applicant.”
It seems that in this case, both before the Tribunal and before myself, the applicant's main claim for not being able to relocate was financial. The Tribunal did ask him if he would come to any harm if he relocated and the applicant stated that he could not say yes or no at this stage because Bangladesh was unpredictable.
The application filed in this court suggests in paragraph 1A of its details that the Tribunal acted in bad faith in relation to the applicant's claims. It then goes on to suggest that the Tribunal did not follow the proper procedure and that the Tribunal's decision was affected by an error of law and jurisdictional error. The application is accompanied by an affidavit but the affidavit is really no more than the statement of facts which the applicant had already put both to the delegate and to the Tribunal.
No particulars of the claim that the Tribunal acted in bad faith have been given. As has been made quite clear by the Full Bench of the Federal Court in SBBS v Minister for Immigration [2002] FCA FC 361, an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker. It is an allegation not to be lightly made and must be clearly alleged and proved. The applicant has not been able to satisfy me that he has even commenced upon the path which might lead to such a finding.
The applicant in his submissions to me made reference to a problem with his daughter who appears to be sick and in need of regular blood transfusions. This is not a matter which was raised either before the delegate or before the Tribunal. It is therefore not a matter which I could take into account, although if it is properly articulated it may be a matter which the Minister could take into account in an application for humanitarian relief.
I am satisfied that the Tribunal in this case entered upon its task in a proper manner and did not fall into any jurisdictional error in the making of its decision. The Tribunal noted that the applicant had not lived in Bangladesh for some 12 years but had returned there on three occasions without suffering any harm.
The Tribunal noted that the applicant was a self-employed carpenter and if he managed financially to relocate in both the UAE and Australia he would in all probability not have any financial difficulties in relocating within Bangladesh. Even if the Tribunal is wrong as to this, it was a wrong finding of fact which is a matter within jurisdiction. (Habibi v Commonwealth of Australia (1999) 197 CLR

5-19; Waterford v Commonwealth of Australia (1987) 163 CLR 54 at 77).
In the circumstances I am unable to find any grounds for review of this decision under s.39B of the Judiciary Act 1903 (Cth). I must dismiss the application, which I do. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21, Rule 21.2(2)(a) of the Federal Magistrate Court rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: