NAKL v Minister for Immigration
[2003] FMCA 498
•28 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAKL v MINISTER FOR IMMIGRATION | [2003] FMCA 498 |
| MIGRATION – Review of RRT decision – application for a protection visa – where applicant claims to have a well founded fear of persecution on grounds of political opinion – where Tribunal used country information that the applicant claims could be controverted by other evidence – where Tribunal’s finding as to credibility influenced a finding of fact – where applicant believed function of the court to be a rehearing of Tribunal decision. |
Abebe v The Commonwealth (1999) 197 CLR 510
Waterford v The Commonwealth (1987) 163 CLR 54
| Applicant: | NAKL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 708 of 2003 |
| Delivered on: | 28 October 2003 |
| Delivered at: | Sydney |
| Hearing date: | 28 October 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr M Wigney |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 708 of 2003
| NAKL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a citizen of Bangladesh. He arrived in Australia on 14 September 2000 and on 4 October 2000 he lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs. A delegate of the Minister refused his application on 17 January 2001. On 9 February 2001 he applied for a review of that decision by the Refugee Review Tribunal. The Tribunal invited the applicant to a hearing which took place on 3 December 2002. The applicant was represented by a migration agent who appears to hold legal qualifications, although it is not clear whether or not he is a practising solicitor. On 20 January 2003 the Tribunal made its decision to affirm that of the delegate and it handed this down on 12 February 2003.
The applicant claims to have a well-founded fear of persecution for the Convention reason of political opinion because he alleges that he was a member of the student wing of the Jatiya Party, which he says he joined in about 1992. He claimed that in 1997 he was elected joint secretary of the Magura District Branch. He claims that on 25 August 1998 he was severely beaten and spent 2 weeks in hospital, having led a demonstration and having been attacked by members of the Awami League. He says that he became even more deeply involved in politics thereafter and on 3 March 2000 he led a demonstration in support of a general strike.
When he returned home after the demonstration he was told that a number of policemen had come to his house to arrest him. He claims that a number of false cases including cases of murder and rape have been filed against him. He told the Tribunal that these cases had been brought against him in 1997 and that they were still outstanding. Later, he told the Tribunal they were made in August 1999 and in December 2000.
The applicant told the Tribunal that he feared that if he returned to Bangladesh he would be killed by members of the Awami League. He told the Tribunal that he had been involved in certain acts which the Tribunal considered to be acts of criminal damage.
The Tribunal's findings and reasons are short. They commence with the following:
[CB 81] “I did not find the applicant to be a truthful or a credible witness. There are significant differences between the evidence which he provided in his written submissions to the department and the claims which he made at the hearing and when this was pointed out, he changed his evidence again in an attempt to reconcile the differing accounts. These differences and the manner in which the applicant provided his evidence at the hearing lead me to the conclusion that he had concocted the claims made in his protection visa application and at the hearing. I do not believe he was a leading member of the Jatiya Party or a full time political activist prior to his departure from Bangladesh nor that false charges were laid against him in 1997, 1999 or 2000 because of his political activities, nor that he was of interest to the Bangladeshi authorities or anyone else at the time of his departure from Bangladesh because of his political opinion, nor that he fears that he will be persecuted because of his political opinion if he returns to Bangladesh now.”
The applicant filed his application originally in the Federal Court on 7 March 2003. There were nine grounds of application but these are difficult to comprehend. The applicant did not file any amended grounds of application in accordance with the orders of the Registrar but he did file a one page outline of submissions. These deal with three disagreements that the applicant has with the findings of the Tribunal. The first of these alleged errors is the Tribunal's observation made to the applicant at the hearing and recorded at [CB 81] that it understood:
“The Bangladeshi Courts acted in an independent manner, at least at the higher levels, and they would deal appropriately with any charges laid against the applicant.”
This observation did not form any part of the Tribunal's reasons for affirming the delegate's decision. In any event, if it was a finding it was a finding that was open to the Tribunal on the materials before it. It is drawn, virtually word for word, from the US Department of State report relating to Bangladesh and found at [CB 129]. The relevant part is contained at [CB 135].
When it is accepted that a finding was open to the Tribunal on the material before it, it is not open to challenge and it is immaterial that some other evidence or material may have supported a contrary finding. This is a finding on a question of fact, which is the very purpose for which the Tribunals have been created. See Abebe v The Commonwealth (1999) 197 CLR 510; Waterford v The Commonwealth (1987) 163 CLR 54 at [77] per Brennan J.
The second error alleged by the applicant is that the Tribunal did not believe his claim that he was youth secretary of the local branch of the Jatiya Party and then became board secretary of the district branch at the age of 20. The respondent submits that the Tribunal's finding in this respect flowed from its adverse finding as to the applicant's truthfulness and credibility as a witness. He argues that such a finding is a matter of fact and accordingly is reserved for the Tribunal and not open to challenge. He says that it was open to the Tribunal to make the adverse credibility finding and therefore, to disbelieve the applicant's claim to have been a senior member of the Jatyia Party. I think the submissions are correct. Findings of credibility are findings which a Tribunal is clearly able to make and indeed, as has been said so many times in the past, is the function of the Tribunal "par excellence".
The third alleged error relates to the Tribunal's recitation of the applicant's evidence concerning his father's support for him, found at [CB 78]. I accept the respondent's submission that this evidence played no real part in the Tribunal's reasoning or decision. To the extent that the finding may be erroneous, this is nothing more than an error of fact and could not amount to jurisdictional error.
The matters which were raised by the applicant in his written submission were repeated before me. The applicant said to me that he did not believe that the Tribunal had decided the matter correctly and he wished me to reconsider the whole matter. It is quite clear that the applicant is under the misapprehension that review by this Court is simply a re-hearing of the matters which were before the Tribunal. This is not the case. This Court's jurisdiction is strictly limited and I am unable to overturn a decision of the Tribunal, merely because I take a different view of the facts to that which it took.
Because the applicant was unrepresented before me I carefully read through the Court Book and the Tribunal's decision. It seems to me that this document indicates that all matters raised by the applicant were considered and that the applicant was given a very fair chance of responding to the concerns which the Tribunal had about the truth of what it was being told. There is no suggestion made, and I cannot find any cause for one, that the Tribunal failed to provide the applicant with procedural fairness.
In all the circumstances, I am unable to review this decision. I dismiss the application. 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 Magistrate's Court rules.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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