NAJQ v Minister for Immigration
[2004] FMCA 105
•4 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAJQ v MINISTER FOR IMMIGRATION | [2004] FMCA 105 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether jurisdictional error. |
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 397
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749
NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262
Minister for Immigration & Multicultural Affairs, Re; Ex-parte S20/2002 (2003) 198 ALR 59
WAGU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 912
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188
Muin v Refugee Review Tribunal (2002) 190 ALR 601
| Applicant: | NAJQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1332 of 2003 |
| Delivered on: | 4 February 2004 |
| Delivered at: | Sydney |
| Hearing date: | 4 February 2004 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application is dismissed.
That the applicant pay the respondent's costs fixed in the amount of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1332 of 2003
| NAJQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 29 January 2003, affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa. The applicant, who is a citizen of Bangladesh, came to Australia on 25 September 2000. Prior to that he had been living in Kuwait since leaving Bangladesh in 1993. He applied for the visa on 30 October 2000. It was refused on 29 November 2000. He applied to the Tribunal for review on 4 December 2000. The Tribunal held a hearing on 4 December 2002. In his application to the Federal Court on 18 February 2003 he made a number of claims which are not properly particularised. An accompanying affidavit repeats his claim to be a refugee.
On 13 March 2003 the matter was transferred to this court and the applicant was ordered to file an amended application by 12 May 2003. No amended application was filed. Written submissions were provided by the applicant prior to the hearing. These submissions complain generally of a number of matters. As the applicant is self represented I have considered not only the issues that he raises but also the material before me to determine whether there is any jurisdictional error.
The Tribunal Decision
The applicant claimed to fear persecution by reason of his political opinion in Bangladesh. He claimed to have been a leading member of the Jatiya Party and to have suffered false charges from members of the rival Bangladesh National Party (the BNP) and the Awami League in 1988 and 1989. He claimed for the first time at the Tribunal hearing to have been beaten by Awami League members in December 1989. After the BNP came to power they ordered his arrest. He feared for his life. He went to Kuwait in 1993 on an employment visa. He claimed that after the Awami League came to power it continued to issue warrants of arrest against him, and he claimed to fear further harm from the BNP and the Awami League if he returned to Bangladesh. While in Kuwait he had renewed his passport at the Bangladesh Embassy.
The Tribunal found that the applicant's pivotal claim to have been beaten in December 1989 was false. It had regard to the fact that the claim was not raised until one day before the Tribunal hearing, that the applicant by then introduced further detail to the story and that his claims in relation to injuries suffered were inconsistent with the description in a hospital document provided by him in support of his claim. The Tribunal rejected the submission by the applicant’s adviser that the claim had been referred to in the applicant's statutory declaration in a claim that he had become ‘subject to political suppressions by the political opposition alliance’.
As a result the Tribunal found that the authenticity of the documentation provided by the applicant in relation to the hospital admission and the nature of his wounds was false. Having regard to the credibility problems of the applicant in relation to the claimed beating and independent evidence in relation to document fraud, the Tribunal found that other photocopied documents (apart from those downloaded from the web) which had been provided by the applicant on 3 December 2002 were also false.
The Tribunal did, however, find that the applicant was a member of the Jatiya Party and was involved in political activities. However it found that he had a low political profile, that he was able to leave Bangladesh on his own passport and that he had lived overseas for almost a decade. Independent evidence in relation to the situation in Bangladesh did not suggest that the applicant would be targeted if he returned to Bangladesh. The Tribunal was not satisfied that there was a real chance in the future of the applicant being selected or targeted for persecution for reason of his political opinion. Furthermore, although two false cases were lodged against him, for the reasons referred to and because the higher courts in Bangladesh were said to display a significant degree of independence, the Tribunal was not satisfied on the evidence that there was a real chance in the future of these claims being tried against the applicant for his political opinion.
Considering all his claims, the Tribunal was not satisfied that the applicant faced a real chance of persecution should he return to Bangladesh now or in the foreseeable future. Hence it was not satisfied on the evidence before it that the applicant had a well founded fear of persecution for a Convention related reason.
In his application the applicant claimed that the Tribunal had not attended any evidence in relation to his claims. No particulars of this claim have been provided and insofar as it is alleged that the Tribunal failed to have regard to relevant considerations this has not been established on the material before the court. From the Tribunal reasons for decision it is clear that the Tribunal had regard to the claims made by the applicant. Contrary to the claim in the application, the Tribunal did consider the supporting information and documents submitted by the applicant albeit that it did not accept the genuineness of supporting documents. The applicant was unsuccessful because of the view the Tribunal took of the information and its assessment, based on independent country information and the other factors referred to, that his claimed fears were not well founded. As was said by Justice McHugh in Chan Yee Kin v MIEA (1989) 169 CLR 379 at 428 It is unlikely that refugee status is to be granted to a person whose account, although plausible and coherent, is inconsistent with the Tribunal's understanding of conditions in that person's country of nationality. Further insofar as the the applicant seek merits review, merits review is not available in the court (MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272.)
The applicant also claimed that the Tribunal was biased. This is a serious allegation and should only be made when there are proper grounds for so doing (SCAS v MIMIA [2003] FCAFC 397). There are no proper grounds for the allegation in this case especially having regard to the principles in SBBS v MIMA (2002) 194 ALR 749. There is nothing in the material before me to suggest prejudgment or even that a reasonable observer might entertain an apprehension that the Tribunal might not bring an impartial and unprejudiced mind to resolution of the application. Nor has it been established that the Tribunal ignored relevant evidence or that the claim that the Tribunal made findings ‘in the face of contradicting independent evidence’ establishes any jurisdictional error. The weight to be given to particular independent evidence is a matter for the Tribunal.
The applicant's written submissions raise a number of other issues. It is contended that the Tribunal erred in failing to investigate the applicant’s claims. Insofar as this suggests that the Tribunal was under an obligation to make further inquiries, no such duty arises in the circumstances of this case. The applicant also submitted that the Tribunal did not complete the exercise of its jurisdiction as it made no findings as to what socio-political changes might occur in Bangladesh in the reasonably foreseeable future and failed to assess whether the applicant's fears of being persecuted for being ‘a popular politician of Bangladesh’ were well founded in the reasonably foreseeable future. Contrary to this submission the Tribunal did in fact consider the reasonably foreseeable future properly. It concluded on the basis of a number of factors, as was open to it, that the applicant did not face a real chance of persecution should he return to Bangladesh now or in the foreseeable future.
The applicant also complained that the Tribunal did not provide him with particulars of information which formed part of the reason for the Tribunal decision. In the written submissions he referred particularly to information that political persecution in Bangladesh had subsided. He submitted that such information was not just information about a class of persons. This appears to suggest that there was a failure to comply with section 424A of the Migration Act 1958 or a lack of procedural fairness. However the claim that the Tribunal did not provide the applicant with particulars of information about the present situation in Bangladesh is contrary to what the reasons for decision record occurred in the hearing. The Tribunal account of the hearing on 4 December 2002 indicates that information in relation to the current situation in Bangladesh was discussed with the applicant. No transcript of the hearing has been tendered to suggest that this did not occur. No breach of s.424A or lack of procedural fairness is established in this respect.
Although not specifically raised by the applicant, I have considered whether the material before me raises in any other way a possible lack of procedural fairness or failure to comply with s.424A. The Tribunal rejected the applicant's claims about an alleged beating on the basis of a number of factors, including the late provision of the information, the addition of further detail and the inconsistency of his claimed injuries with those described in a hospital document. It went on to reject other documents in light of the applicant's credibility problems and independent evidence in relation to document fraud. There is authority (NARV v MIMIA [2003] FCAFC 262), to suggest that in some circumstances a Tribunal is under an obligation to put information in relation to document fraud to an applicant for comment, consistent with its obligation to disclose adverse information that is credible, relevant and significant, and that such information may not be within the exception to section 424A. However, in this case the Tribunal reasons for decision indicate that in the hearing the Tribunal put its concerns and information about the level of document fraud in Bangladesh and the prevalence of Bangladeshi asylum seekers providing fraudulent documents to the applicant for comment. The applicant's response to such information (that it is impossible and cannot happen) is referred to in the Tribunal reasons for decision.
Similarly, and relevant to the Tribunal conclusions in relation to the future, the Tribunal put to the applicant information not only in relation to the present situation in Bangladesh, but also in relation to the independence of higher levels of the judiciary. Insofar as it seems to be contended that there is there may be some illogicality in the Tribunal treatment of material before it, illogicality of itself does not constitute a jurisdictional error. There is nothing in the material before me to suggest that there is a lack of procedural fairness. In this case I am not satisfied that there is any breach of section 424A or any lack of procedural fairness (cf WAEJ v MIMIA [2003] FCAFC 188).
This is not a case where claims were rejected on the basis of material which should have been put to the applicant (cf WAGU v MIMIA [2003] FCA 912). Critical issues were raised with the applicant.
None of the applicant's other generally worded, but unparticularised, written arguments, or the material before me raise any jurisdictional error. In particular, the applicant's written arguments refer to Muin (Muin v Refugee Review Tribunal (2002) 190 ALR 601) as ‘very relevant’ without further explanation. There is nothing in the material before me to suggest that that case has any relevance to the circumstances of this case. As no jurisdictional error has been established the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The respondent seeks that the unsuccessful applicant pay costs set in the amount of $3,500. The applicant raises his impecuniosity and the fact that he has previously paid an amount of $2,000 in connection with his application for a protection visa. Such factors are not, however, reasons for departing from the normal position that the unsuccessful applicant should meet the costs of the respondent in a case such as this. The impecuniosity of the applicant may be taken into account by the Minister in the timing and manner in which it is sought to recover any such costs. I consider the amount sought appropriate in light of the nature of this and other similar matters. Costs should be fixed under the Federal Magistrates Court Rules.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 4 February 2004
0
6
0