NAIO v Minister for Immigration - [2003] FMCA 360

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAIO v MINISTER FOR IMMIGRATION

[2003] FMCA 360

MIGRATION – Review of RRT decision – where the applicant claims to have a well-founded fear of persecution for reasons of political opinion – where the applicant had been invited to attend the hearing but did not – where the applicant seeks a merits review – where the applicant argues that the Tribunal failed to act in good faith – where the applicant argues that the Tribunal ignored relevant evidence – where applicant’s arguments were not particularised well – whether there is a reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.474

Minister for Immigration v Jia (2001) 205 CLR 507
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 1
SGDB v Minister for Immigration [2003] FCA 74
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] 190 ALR 60

Applicant:

NAIO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 451 of 2003

Delivered on:

15 August 2003

Delivered at:

Sydney

Hearing date:

15 August 2003

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Mr T Reilly

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 451 of 2003

NAIO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh who arrived in Australia on

27 November 2000. On 28 December 2000 he lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs. The application was considered by a delegate of the Minister on 16 February 2001. On 7 March 2001 the applicant applied for a review of the unfavourable decision. The Refugee Review Tribunal considered the applicant's case and on

31 October 2002 wrote a letter to the applicant advising him that having considered the material before it, it was unable to make a decision in his favour on that information alone. The Tribunal offered the applicant an opportunity to be heard on 5 December 2002 [CB 56].
On 5 December 2002 a letter was addressed to the Tribunal from the applicant's migration consultant. This letter which is found at [CB 90] is in the following form:
“I act for Mr Applicant. The applicant has instructed me to inform the Tribunal that he will not appear at the hearing today. He wishes to receive the decision on the basis of the documents containing in the file.
Should you have any queries regarding this matter please feel free to contact me at the above address.”
The applicant claimed that he had a well-founded fear of persecution for the Convention reason of political opinion. He joined the Jatiya Party in 1986 when Mr Ershad was President. He rose to become an executive of the Kanighat Than Branch of the party in 1992. He provided the delegate with a history of violence towards himself commencing on 20 July 1996 when his house was looted, his brother was abused and threats were made against him. He stated that local members of the Awami League tried to kill him on several occasions.
He told the delegate that on 29 January 1997 he was severely beaten when returning home from a bazaar and was hospitalised for two weeks. He claimed that he received no protection from the local police and that eventually a number of false cases were filed against him. He stated that because of the pressure he left Bangladesh and went to Dubai for a few months but as the situation had not improved upon his return he decided to leave the country permanently and come to Australia. He told the delegate that he feared that his life would be in danger if he returned to Bangladesh.
The applicant submitted in support of his contentions statements from his mother and a neighbour. Through his agent he also submitted some relevant country information. This evidence is discussed by the Tribunal at [CB 101-102].
The Tribunal noted that the applicant had not taken the opportunity to appear before it. The essence of the Tribunal's reasons can be found in two paragraphs on [CB 103] reproduced below:
“The applicant has provided some information regarding his alleged reasons for fearing persecution in Bangladesh but many questions remain unanswered. He claims that local Awami League members wished to seriously kill him because of his association with the Jatiya Party but it is unclear why they would want to take such extreme measures against him. While I am aware that violence between political parties is not uncommon in Bangladesh, it is not my understanding that members of the Jatiya Party are generally at risk of serious harm from members of the Awami League or any other political party. Furthermore, the Awami League lost power last year and Mr Applicant has not explained why he would be unable to obtain protection from the current government, if not in his local area, then elsewhere in Bangladesh.
Mr Applicant also claims that he faces false charges which were laid against him for political reasons but has not explained exactly what these charges are and what steps he has taken to defend himself against them. It is my understanding that while there are some problems in the lower courts in Bangladesh, the higher courts act in an independent manner, which suggests that Mr Applicant would get a fair hearing if he confronted his accusers in a court of law. It is also my understanding that people facing such charges are frequently granted anticipatory bail and are not held in prison while their case is determined. It is also unclear how Mr Applicant was able to obtain a passport in his own name and travel to and from Bangladesh apparently without problems during a time that the police were actively seeking to arrest him.
If Mr Applicant had attended the hearing it would have been possible to investigate these issues more fully. However, on the evidence currently before me, I am not satisfied that he has a well founded fear of persecution for reasons of political opinion or any other reason contained in the Convention.”
The applicant provided the court with a written argument. I can only assume from the applicant's lack of knowledge of the English language that this is a document which he did not prepare himself, although it may well have been prepared on the basis of information which was provided by him. There are 12 submissions. The first submission criticises the country information. It appears to be arguing that the Tribunal did not accept the evidence that was provided on his behalf. This is an argument as to merits which the court cannot indulge in.
The second submission makes reference to the procedures requiring to be observed under the Migration Act 1958 (Cth) (“the Migration Act”) not being observed. There is then a reference to s.474 of the Migration Act but s.474 is the well-known privative clause. I cannot see how that might be relevantly used as an argument in favour of review. The third submission states that the Tribunal ignored the merits of the claim. This is once again a matter in respect of which the court is unable to enter the ring.
The fourth ground is that the Tribunal did not act in good faith in regard to his claims. In Minister for Immigration v Jia (2001) 205 CLR 507 the High Court made it clear that a party asserting actual bias on the part of a decision-maker carries a heavy onus. The allegation must be distinctly made and clearly proved (per Gleeson CJ and Gummow J [69] and Kirby J [127]). In this case there is absolutely no particularisation of the claim nor, from my reading of the Tribunal's decision, any evidence of a possibility of it on the face of the record.
The fifth submission is that the Tribunal misjudged the fate of the applicant's claims. I am really at a loss to understand what this means. It is not particularised and I cannot see that it assists me in my task to make a decision on requesting of a review.
The sixth matter is that the Tribunal made a number of errors to decide the fate of my claims. Once again no particularisation is provided and no evidence is forthcoming. I cannot make such a finding in the absence of either of these matters.
The seventh submission suggests that the tribunal ignored relevant evidence "and its finding in the face of contradicting independent evidence which indicates actual bias constitute jurisdictional error being a breach of procedural fairness which is an essential condition of the exercise of the decision making powers". I am not told what evidence has been ignored. I am not told what is the contradicting independent evidence. And as I said previously I am not prepared to make any finding of actual bias in regard to this decision of the Tribunal on the basis of what is contained in the applicant's submissions.
Submission number eight claims that the applicant is a genuine refugee and that his claims have not been investigated. It is once again an argument about bias because it says that the decision of the Tribunal and the decision of the delegate are identical. It is not unreasonable to expect that there would be a similarity between the decision of the Tribunal and the decision of the delegate given that the Tribunal had no opportunity to hear the applicant in person. The mere fact that the two decisions are the same is not evidence of bias.
The ninth and tenth submissions refer to decisions of the High Court of Australia in such cases as Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 1; SGDB v Minister for Immigration [2003] FCA 74 and Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] 190 ALR 60. Unfortunately, the submission does not explain exactly why these cases are relevant or what parts of them the applicant would particularly wish me to look at. It is for the applicant to make his case himself and not merely to point the court in the general direction of areas in which he believes he may find assistance.
The eleventh submission is a plea for the application to be sent for review to another member of the Tribunal. It is a plea that is understood but is not able to be complied with.
Finally, the applicant states that he was badly sick and that was why he did not attend the Tribunal hearing. The letter from his migration agent makes no mention whatsoever of sickness, no medical certificates have been provided or were provided to the Tribunal.
I gave the applicant an opportunity to address me on any further matters which he wished to raise that might persuade me to provide him with a review pursuant to s.39B of the Judiciary Act 1903 (Cth). He was silent.
In the circumstances 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 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: