NAIB v Minister for Immigration - [2003] FMCA 342

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAIB v MINISTER FOR IMMIGRATION

[2003] FMCA 342

MIGRATION – Review of RRT decision – application for a protection visa – where the applicant claims to have a well-founded fear of persecution for reasons of political opinion – where the Tribunal made adverse findings as to the credibility of the applicant’s evidence – where the applicant claims that there was a denial of procedural fairness, error of law, jurisdictional error, that the Tribunal acted in bad faith and it failed to address the correct question.

W148/00A v Minister for Immigration (2001) 185 ALR 703

Applicant:

NAIB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 314 of 2003

Delivered on:

31 July 2003

Delivered at:

Sydney

Hearing date:

31 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 $3,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 314 of 2003

NAIB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is a national of Bangladesh who arrived in Australia on 3 August 2000 and applied for a protection (class XA) visa from the Department of Immigration & Multicultural & Indigenous Affairs on 29 August 2000. That application was considered by a delegate of the Minister and rejected on 17 November 2000. The applicant applied for a review of that decision by the Refugee Review Tribunal on 18 December 2000. The Tribunal considered the papers and requested the applicant to attend upon it to give evidence. That was done on 22 November 2002.
On 25 November 2002, the Tribunal came to its decision which it handed down on 18 December 2002. The Tribunal determined to uphold the original finding of the delegate. The applicant's claim to have a well founded fear of persecution for the convention reason of political opinion arises out of his involvement as the elected Vice President of the College Committee of the Student Wing of the BNP in 1998 and certain events which occurred to him thereafter. The applicant told the Tribunal that he had led a number of demonstrations against the Awami League and had been elected to Dhaka committee of the Student Wing of the BNP.
He assisted Shawkat Ali in certain elections that were held in 1991 and 1996. In 1998 and 1999 he claimed to have been attacked on two occasions by Awami League personnel. He claims that in 1998 he was taken to court where he stayed three days prior to being sent to gaol for approximately two months. He then claims he was granted bail and released. He was charged, he says, with political murder, carrying members and laying bombs in Dhaka.
In 1999 the second incident occurred. In March a public meeting of the Awami League had been bombed. He was arrested and was accused of setting bombs at the meeting. He was held for three months in the central gaol until the end of June 1999. He claims to have been charged with laying and exploding bombs but was released. He says there was no evidence to connect him directly and it was a totally fabricated allegation. The applicant then obtained a passport and a visa with which to visit Australia.
The Tribunal's assessment of the applicant was set out in its findings and reasons at [CB 138]:
“Whilst the Tribunal is satisfied that the applicant may have been a member of the BNP, it cannot be satisfied that the applicant's claims regarding his alleged arrests in 1998 and 1999 and any of the events thereafter are credible. The applicant's claims in evidence in this regard are implausible and contradictory. The Tribunal cannot be satisfied that the applicant has been truthful in his claims and evidence, and cannot be satisfied that he has any claim to have a well-founded fear of persecution for a Convention reason.”
The Tribunal then goes on to analyse the incident in 1998 and the incident in 1989 and explained why he believes that the applicant's evidence in regard to these is not credible. For example, he states that the applicant told him he'd been released on bail but there is independent country evidence to the effect that there is no bail system in Bangladesh; people can only be released on bond. The Tribunal also expresses his doubts as to the ability of the applicant, faced with such serious charges as he claims to have been faced with, readily obtaining a passport and a visa to allow him to travel into Australia.
The applicant seeks a review of the decision of the Tribunal on the basis of an application filed in the Federal Court on 13 January 2003. It sets out five grounds of review, namely; (a) the Tribunal did not follow proper procedure; (b) the Tribunal's decision was affected by error of law and jurisdictional error; (c) there was no evidence to justify the decision; (c) the Tribunal acted in bad faith; and (e) the Tribunal constructively failed to exercise its jurisdiction by failing to address the correct question. As Mr Kennett says in his helpful written submissions none of these grounds has been explained by particulars or written submissions.
There is an affidavit filed by the applicant in support of his application. This documents sets out at length the essence of the applicant's claim to have a well-founded fear of persecution. As such it would be excellent evidence for the Tribunal but has no relevance to these proceedings.
In W148/00A v Minister for Immigration (2001) 185 ALR 703 the Full Bench of the Federal Court said:
“A finding as to credibility is a finding of fact and, as the authorities indicate, the reviewing body must not set aside such finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.” Per Tamberlin and R.D. Nicholson JJ at [64].
As McHugh J has pointed out in Re Minister for Immigration; Ex parte Durairajasingham [2000] 168 ALR 407 at [67]:
“This was essentially a finding as to whether the prosecutor could be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence.”
The reasons given by this Tribunal for not believing the applicant in his claims are based upon a reasonable assessment of those claims and country information available to the Tribunal. I cannot see any grounds for review in regard to that finding.
The Tribunal also dealt with the applicant's political opinion at [CB 141-142]. The Tribunal did not accept that the applicant was a prominent activist in the BNP or a "number one" enemy of the Awami League. The Tribunal gives reasons for that view and also notes that the positions held by the applicant were held by him over ten years prior to the hearing. The Tribunal utilises country information to come to the conclusion that a low level political activist is unlikely to face political harassment after returning to Pakistan. The Tribunal noted that the applicant felt that he was able to return to Bangladesh after he had visited India and Nepal in 1999 and was therefore not satisfied that the Awami League or anyone else would have ongoing adverse interest in him.
The conclusions reached by the Tribunal above also appear to be based upon evidence available to the Tribunal and therefore not the subject of an application for review.
I dismiss this application. I order that the applicant pay the respondent's costs, which I assess in the sum of $3,250 pursuant to Part 21 Rule 21.02(2)(a) Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: