NAJB v Minister for Immigration
[2003] FMCA 332
•24 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAJB v MINISTER FOR IMMIGRATION | [2003] FMCA 332 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – generic grounds of review advanced – no reviewable error found. |
Migration Act 1958 (Cth), ss.36, 474
Chan v Minister for Immigration (1989) 169 CLR 379
Minister for Immigration v Guo (1997) 191 CLR 559
Minister for Immigration v Jia (2001) 205 CLR 507
Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601
| Applicant: | NAJB |
| Respondent: | MINISTER FOR IMMIGRATIONN & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ413 of 2003 |
| Delivered on: | 24 July 2003 |
| Delivered at: | Sydney |
| Hearing date: | 24 July 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
Applicant appeared in person
| Counsel for the Respondent: | Mr J D Smith |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ413 of 2003
| NAJB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 9 December 2002 and handed down on 14 January 2003. The applicant is a citizen of Bangladesh. He arrived in Australia on 25 March 2000. On 1 February 2001 he lodged an application for a protection visa. That application was refused by a delegate of the Minister on 16 February 2001. On 19 March 2001 the applicant applied for review of that decision to the RRT. The RRT affirmed the delegate's decision not to grant to the applicant a protection visa.
The application for protection visa was made on the basis of asserted political persecution. The applicant claimed that he was a member of the Jatiya Party in Bangladesh and that he had been threatened with death and that he was falsely accused of a crime. The applicant attended a hearing before the RRT on 3 December 2002 and gave evidence and made submissions in support of his application. The RRT decision is accurately described in paragraph 6 and paragraph 7 of Mr Smith's written submissions filed on 21 July 2003. I adopt those paragraphs for the purposes of this judgment as follows:
The RRT did not find the applicant to be a credible witness and although it accepted that the applicant was a member of the Jatiya Party in Bangladesh it did not accept that he left Bangladesh because he feared that he would be persecuted because of his political opinion and, critically, that he did not fear that he would be persecuted for reasons of political opinion or any other reason in the Convention within the reasonably foreseeable future in Bangladesh (court book, page 106.8). The RRT gave the following reasons for those findings:
a)the applicant did not mention in his application to the Department that he had been falsely charged with murder;
b)the evidence given by the applicant at the hearing was vague and unconvincing;
c)his claim that his political enemies wished to kill him and would carry out the threat if he returned home simply because he belonged to the Jatiya Party did not sit well with other information before the RRT;
d)the applicant’s claim that the current BNP Government is targeting all of its opponents and would target [the applicant] if he returns was at odds with other evidence before the RRT to the effect that the BNP has a neutral attitude to the Jatiya Party; and
e)the applicant’s failure to apply for a protection visa until he had been in Australia for nine months was a strong indication that he did not leave Bangladesh because he feared he would be killed or gaoled because of his political opinion.
On the basis of these findings the RRT concluded that the Applicant was not a person to whom Australia owed protection obligations and so did not meet the criterion for the grant of a protection visa under s.36(2) of the Migration Act 1958 (Cth) (“the Migration Act”).
Briefly, the RRT found that the applicant was not a credible witness. The RRT found that the applicant did not have a genuine fear of persecution in Bangladesh.
The grounds of review contained in the application filed on 10 February 2003 and the affidavit filed in support on the same day are generic. In addition, the applicant's written submissions filed on 18 July 2003 have the appearance of common form submissions. They bear a marked similarity to other applications and written submissions prepared by asylum seekers from Bangladesh. I infer that the applicant had some assistance in the preparation of his documents.
The applicant represented himself before me today. None of the grounds set out in the application and referred to in the written submissions have any substance in the context of this matter. The applicant asserts reliance upon the decision of the High Court in Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601 but no evidence was presented. The applicant asserts that the RRT ignored evidence but that is not supported by the decision record.
The RRT considered the material put before it by the applicant but found that some documents were fraudulent. The RRT considered the claims put forward by the applicant but did not believe them. The credibility findings made by the RRT are set out in the court book on pages 105 to 107. The RRT sets out five bases on which it concluded that the applicant's claims were not credible. The decision record erroneously describes these as six, but there are only five. The grounds on which the RRT concluded that the applicant's claimed fear of persecution was not genuine were reasonably open to the RRT on the material before it. I agree with and accept the submissions made in writing by Mr Smith at paragraphs 8 to 11 of his written submissions:
The RRT’s decision was based essentially on its finding of credit. The RRT however, did not simply make a generalised finding of credit but rather specifically addressed the claims made and the evidence given in respect of the other information available to it. Of particular importance to the RRT was the fact that the applicant did not make an application for a protection visa until nine months after he arrived in Australia on a student visa. This led the RRT to make a finding that the applicant did not fear that he would be persecuted for reasons of political opinion or any other reason in the Convention in Bangladesh. The definition of “refugee” in the Convention contains both a subjective and objective element in that there must be a subjectively held fear and an objective basis for that fear: see for example Chan v Minister for Immigration (1989) 169 CLR 379; Minister for Immigration v Guo (1997) 191 CLR 559.
Where, as here, a person is found not to have a subjective fear of persecution, that person cannot meet the definition of a refugee within Article 1(a)(2) of the Convention and so is not a person to whom Australia owes protection obligations within the meaning of s.36(2) of the Migration Act. For that reason alone the RRT’s conclusion in that respect was determinative of the application for review. That finding was one of fact and was open to the RRT on the material before it. Accordingly, no error of law was made by the RRT in arriving at its decision.
Although the application for review raises, in the broadest of terms, claims that there was a lack of bona fides, actual bias, and that the RRT otherwise committed a jurisdictional error, the only evidence which is before the Court, apart from the affidavit sworn by the applicant (which simply reagitates questions of fact), is the decision of the RRT and the material before it. There is nothing in that material or in the statement of reasons prepared by the RRT under s.430(1) of the Migration Act which suggests that the RRT had so prejudged the matter as to be unable or unwilling to change its mind regardless of the material put before it: Minister for Immigration v Jia (2001) 205 CLR 507 at 532 per Gleeson CJ and Gummow J, or that the RRT failed to make a bona fide attempt to exercise its power.
The applicant has not established that there was any jurisdictional error in the decision or in the procedure adopted by the RRT and the application must be dismissed with costs.
There is no jurisdictional error apparent on the record of the RRT decision. The proceedings before the RRT were fair. Although bad faith was alleged there is no substance to that allegation. The Hickman provisos to the privative clause in s.474 of the Migration Act are satisfied. The decision of the RRT is a privative clause decision. I will dismiss the application.
On the question of costs, the applicant having been wholly unsuccessful and the Minister wholly successful, Mr Smith has applied for an order for costs. Mr Smith has submitted that an order for costs in the sum of $4,000 would be appropriate. The applicant has referred to his impecuniosity. However, as I pointed out to him, impecuniosity is not a reason to refrain from making a costs order. This matter is one that I would describe as a matter of average to less than average complexity. The Minister's legal representatives were put to some effort in the preparation of relevant documents. However, the legal argument has been straight forward. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 August 2003
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