NALB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 614

FEDERAL COURT OF AUSTRALIA

NALB v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 614

NALB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 286 of 2003

WILCOX J
16 JUNE 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 286 of 2003

BETWEEN:	NALB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	16 JUNE 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The applicant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 286 of 2003

BETWEEN:	NALB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	16 JUNE 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant the applicant a protection visa.

2. The applicant told the Tribunal he was born in Burma but taken to Bangladesh at an early age, apparently at about 6 or 7 years.  After that time he resided in Bangladesh, until he came to Australia in February 2001. 

3. The applicant made no claim of persecution against him whilst he was in Burma, possibly because of his young age in leaving Burma.  The applicant did claim to have suffered discrimination and hardship in Bangladesh.  The Tribunal member understood this to have arisen out of his appearance and accent. 

4. The Tribunal found the applicant to be "a sincere and credible person and accepts his evidence". 

5. The Tribunal considered the application for a protection visa on two bases.  The first basis was the position if the applicant was returned to Burma, his place of nationality.  The Tribunal thought that Burma, as a predominantly Buddhist country, might be loathe to accept the applicant, a member of the minority Muslim hill tribes that border Bangladesh.  The member accepted the possibility that the applicant might face some level of discrimination in Burma but held, on the evidence, that he could not be satisfied that any such discrimination would amount to serious harm for a Convention reason.

6. The Tribunal then considered the position of the applicant in Bangladesh.  In the Tribunal's reasons the follow passage appears. 

   “The Tribunal accepts that Bangladesh has been the applicant’s country of former habitual residence, having lived there, albeit illegally, since a very early age.  However, the applicant has presented no claims that he would suffer persecution should he return to Bangladesh.  The Tribunal accepts that he may well have difficulty being accepted back into Bangladesh from where he departed using a false passport which is now being held by the Department.  It would appear that he in fact never had any formal right of residence.  However, even were he to be accepted back as a resident of Bangladesh where he has led a life of some hardship, discrimination and precariousness, there is no evidence before the Tribunal that he has suffered persecution.  The Tribunal accepts that he has suffered discrimination in Burma but on the basis of the evidence before it the Tribunal finds that any such discrimination he has suffered in the past, or may suffer in the future, in Bangladesh, does not amount to serious harm for a Convention reason.”

   The reference in the last sentence to “Burma” is obviously an error.  The Tribunal must have intended to refer to Bangladesh.

7. Having considered the situation of the applicant in both Burma and Bangladesh, the Tribunal concluded he does not have a well founded fear of persecution, for a Convention reason, in either country.

8. The applicant has not submitted the Tribunal fell into error of law in its approach to his case.  Neither does he suggest the Tribunal failed to follow required procedures.  I see no error of law or failure to comply with proper procedure. 

9. The critical issue, for the Tribunal, was whether the hardship, discrimination and precariousness, which it found to have occurred, was of sufficient significance to amount to persecution within the meaning of the Convention on the Status of Refugees.  This was a question of fact and degree, for the Tribunal to determine.  It is not a question cognisable in this Court. 

10. The Tribunal was aware of the humanitarian considerations raised by the applicant's case.  Towards the end of its reasons, the Tribunal said: 

    “The Tribunal accepts that this essentially stateless person is in a most unenviable situation and faces an uncertain future.  Indeed, it would appear that Australia may well have difficulties having either Burma or Bangladesh accept him.  These concerns obviously raise humanitarian issues in terms of his being able to lead a life of security and reasonable welfare.  However the Tribunal’s role is limited to determining whether the applicant satisfied the criteria for the grant of a protection visa.  A consideration of the applicant’s circumstances on humanitarian grounds is a matter solely within the Minister’s discretion.”

11. Given that the Tribunal found the applicant to be sincere and credible, that he is a young man with his life before him and the unenviable position noted by the Tribunal, this may be a case where the Minister would see fit to intervene.  However, that is a matter for the Minister to determine.  It is not something about which the Court should express any view.

12. The order that I make is the application be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            20 June 2003

The applicant appeared in person.
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	16 June 2003