NAKB v Minister for Immigration
[2003] FMCA 320
•1 August 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAKB v MINISTER FOR IMMIGRATION | [2003] FMCA 320 |
| 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 activity – whether there was any jurisdictional error in the decision of the RRT. |
Migration Act 1958 (Cth) s.424A
Minister for Immigration v Wu Shan Wang (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510
VEAJ of 2002 v Minister for Immigration [2003] FCA 678
VDAU v Minister for Immigration [2003] FCA 363
SBBS v Minister for Immigration [2002] FCAFC 361
VAAC v Minister for Immigration [2003] FCAFC 74
| Applicant: | NAKB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 589 of 2003 |
| Delivered on: | 1 August 2003 |
| Delivered at: | Sydney |
| Hearing date: | 28 July 2003 |
| Judgment of: | Baumann 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 fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 589 of 2003
| NAKB |
Applicant
And
| MINISTER FOR IMMIGRATION |
Respondent
REASONS FOR JUDGMENT
The applicant, who is a citizen of Bangladesh, arrived in Australia on a legally obtained passport, on 28 November 2000. On 4 January 2001 he lodged an application for a protection (Class XA) visa under the Migration Act 1958 (Cth) (“the Act”).
On 8 March 2001 a delegate of the respondent refused the visa resulting in an application to the Refugee Review Tribunal (“the RRT”). On 30 January 2003 the RRT affirmed the delegate’s decision.
In the period of 2 years after the initial application was lodged, the RRT noted that the applicant’s claims had changed over time. The essence of and the basis for the concerns of the applicant can be summarised for the purposes of these reasons as:
a)He fears persecution in Bangladesh by reason of his political opinions.
b)He claimed to be a prominent member of the student wing of the Bangladesh Nationalist Party (BNP), which is now in government in the country.
c)He claimed to have been attacked and beaten by members of the former Government party, the Awami League (AL) on
23 December 1998 and fears violence and false charges if he is required to return to Bangladesh.d)Shortly before the hearing on 30 January he claimed to also fear persecution from members of the BNP itself, thereby preventing him from relocating safely anywhere in Bangladesh.
After identifying inadequacies, internal inconsistencies and contradictions in the totality of the applicant’s claims which gave the evidence an unreliable character so far as the RRT was concerned, the RRT concluded that no credible claim establishing a genuine fear of persecution had been established.
The RRT cogently analysed the evidence before it, and I am satisfied the ultimate conclusion was open to it on that evidence.
By amended application filed on 24 July 2003 the claim that the RRT decision “was infected by jurisdictional error” relied upon the following particulars:
a)The RRT did not comply with s.424A, by having regard to information not provided to the applicant as relevant to the determination.
b)The information included certain “country information” or “independent information” of a general nature, not specifically about the applicant.
c)At the hearing before me, the applicant was unrepresented and though the court provided an interpreter, he was unable to expand on the ground in the amended application. It appears the amended application was drawn by independent Counsel retained on a pro-bono scheme.
The limited oral submissions received from the applicant revealed a misunderstanding about the powers of the court. He also disagreed with the findings of fact made by the RRT and he repeated before me simply that he was in fear of persecution.
Mr Reilly for the respondent correctly submitted that the court cannot review the merits of the Tribunal’s decision: Minister for Immigration v Wu Shan Wang (1996) 185 CLR 259 at 272 and there is no error of law, let alone jurisdictional error, if the Tribunal made a wrong finding of fact: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [137].
The only purported error is the alleged failure to comply with s.424A. The applicant relied upon the decision of Gray J in VEAJ of 2002 v Minister for Immigration [2003] FCA 678. In this case His Honour said that if it was
“intended to exclude all general country information from the scheme of s.424A, the legislature would only have been required to say so expressly, or to omit any reference at all.” [39]
Gray J took the view that general country information, which is central to the decision-making process of the Tribunal, should be given to the applicant together with any explanation as to why that information was relevant to the review of the delegate’s decision, and an invitation to comment on the information.
For completeness Mr Reilly responded to the issue by submitting that:
a)The view of Gray J is at best obiter.
b)The view is at odds with some other single Judge decisions (VDAU v Minister for Immigration [2003] FCA 363 at [43]-[69]).
c)The view is contrary to decisions of the Full Court in SBBS v Minister for Immigration [2002] FCAFC 361 at [29] and VAAC v Minister for Immigration [2003] FCAFC 74 at [17], [18], [19] and [20].
I would of course regard any analysis and decision of a Superior Court Judge to be persuasive, however where it is at odds with Full Court authority I am bound to follow that authority. I note that Gray J did not seek to distinguish the earlier Full Court decisions. It may of course be the case that these earlier decisions were not brought to his attention.
No reviewable error has been established and the application must be dismissed. I am satisfied that an order for costs in favour of the respondent should be made and I fix the quantum of those costs at $4,000.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date:
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