NALK v Minister for Immigration - [2003] FMCA 388

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NALK v MINISTER FOR IMMIGRATION

[2003] FMCA 388

MIGRATION – Review of RRT decision application for a protection visa – where the applicant claims to have a well-founded fear of persecution for political reasons – where the applicant claims that the Tribunal did not give him enough time to get over his sickness before making its decision – where the applicant seeks a review of the merits of the decision – whether there was a denial of natural justice.

Migration Act 1958 (Cth), s.36(2)

Applicant:

NALK

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 640 of 2003

Delivered on:

4 September 2003

Delivered at:

Sydney

Hearing date:

4 September 2003

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondent:

Mr R Bromwich

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SZ 640 of 2003

NALK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant, who is a citizen of Bangladesh, arrived in Australia on 17 October 1999. On 24 November 1999 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 28 February 2000 a delegate of the Minister refused to grant him a protection visa and on 16 March 2000 the applicant applied for a review of that decision.
Two hearings were held for the applicant to give oral evidence. The first on Tuesday 16 July 2002. At that time the applicant presented as being traumatised and uncomprehending. A certificate from a Dr Dean was produced, which the Tribunal did not find satisfactory. The Tribunal then proceeded with the hearing through the applicant's adviser. However, on 21 October 2002 further medical evidence was provided to the Tribunal. That evidence indicated that the applicant was seeking approximately two years further time before it was said that he could function without treatment. At that stage the Tribunal sent to the applicant certain country information and offered him an opportunity to comment upon it. Eventually, a further oral hearing was arranged for early January 2003. Following that hearing the Tribunal made its decision on 30 January 2003 and handed it down on 20 February 2003.
The applicant tells me today that he was not fit or in a position to give clear evidence before the Tribunal in January, however he has provided me with no medical certificates or any other evidence by which that statement can be corroborated. Having read the whole of the Tribunal's decision I am of the view that the Tribunal properly decided to hear the matter on that day and was able to obtain from the applicant a coherent explanation of the grounds upon which he claimed to have a well founded fear of persecution for the convention reason of political opinion.
The applicant claimed that he was a member of the BNP and was a prominent political activist within that organisation from 1995. He claimed to be the organising secretary of the Dhanmondi BNP branch. He claimed that he had been attacked and harassed during the 1996 election campaign by supporters of the Awami League. He says that in March 1998 League activists had attacked his home intending to kill him and in 1999 they had attacked a peaceful demonstration which he was leading and had injured him. The applicant stated that later false charges had been laid against him. He was wanted for arrest by the police. He believed his life was in danger and he would have to escape from Bangladesh. This he did by obtaining a visitor's visa to Australia in 1999.
The applicant submitted a number of documents to the Tribunal in support of his claim. These dealt with the false charges and the court cases. The Tribunal also heard additional claims in January 2003. These included that the BNP Government was unable to stand up to the Islamic fundamentalist parties in the governing coalition. The applicant told the Tribunal that as the country information shown to him by the Tribunal indicated false charges laid against many people had been dropped but those against him were still pending. The applicant submitted copies of certain Bangladeshi newspaper articles on the high crime levels in Bangladesh and advised the Tribunal that his family had told him it was not safe for him to come home. He said that he feared harm from the Awami League and from Jammat Islam, the main Islamic fundamentalist party.
The Tribunal dealt with the applicant's submissions and accepted that he had been a BNP branch organiser and that he had been threatened with harm by Awami League thugs. The Tribunal accepted that the applicant had been injured in demonstrations and that people had tried to extort property from his family and that they had laid false charges against him that are still pending. In other words all the main allegations put by the applicant were accepted by the Tribunal. Where the Tribunal parted company with the applicant was in its interpretation of the current situation in Bangladesh and therefore the existence or non-existence of a continuing well founded fear of persecution.
The Tribunal referred to country information which indicated that the BNP had now won an election and were in power. The information indicated that one of the members of the coalition was the more radical Islamic party. The Tribunal stated that the evidence which it had found showed that the authorities of Bangladesh were willing and had demonstrated their intent to protect people from harm incited for political or other reasons.
The Tribunal did not accept an allegation made by the applicant that he would be forced to re-enter the political arena if he returned to Bangladesh. The Tribunal cited country information which backed-up that view. The Tribunal also indicated that it believed that the applicant could avail himself of the protection of the Bangladeshi authorities. It said that in regard to any fear of further persecution from the Awami League or in respect of the fabricated charges which the applicant still has to meet.
The Tribunal cited evidence that indicated that 99 per cent of the 69,010 people arrested by the Government of the day since 1974 on false charges under the Special Powers Act have been released because the grounds of detention had been judged by the courts to be weak and vague.
Based upon these matters the Tribunal concluded that it was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees' Convention, and that the applicant did not satisfy the criteria set out in s.36(2) of the Migration Act 1958 (Cth) for a protection visa.
The applicant provided me with two documents. The first was a lengthy set of submissions which he says were prepared by himself and a friend with some legal training. The second document was entitled, “Written Arguments”. Mr Bromwich in his helpful outline of submissions deals with the arguments raised in the first document comprehensively. I am going to file both of those documents with the papers because I cannot see the necessity to iterate them in these reasons. Suffice to say that I take the view that Mr Bromwich's submissions are correct.
In the written arguments provided by the applicant to me today and in his oral submissions he made the following points. Firstly, that the Tribunal had not given him enough time to get over completely from the sickness that he was going through at the time of the hearing.

I have already dealt with this in my reasons. I believe that the Tribunal did give the applicant sufficient opportunity to deal with the case before it, and in any event, the applicant has not provided any evidence to suggest that he was incapable at the time of the hearing.
The second matter relates to the situation in Bangladesh. The applicant says that he is definitely going to be prosecuted upon his arrival in Bangladesh and the previous cases lodged against him are still pending. This is really a debate or dispute with the Tribunal as to its findings about the situation in the applicant's home country and is, in effect, seeking a merits review from the court which this the court is unable to give.
The third submission suggests that the Tribunal did not follow the principles of natural justice and hadn't given the applicant an opportunity to explain fully about his personal circumstances. I have read the court book and the decision of the Tribunal. It seems to me that the Tribunal gave the applicant every opportunity to put his case to it, and I am not satisfied that the applicant has made out any claim of this nature.
The fourth matter relates to major changes in the policies of the government of Bangladesh, and states that members of the applicant's own party are still facing persecution and that the authorities have failed to protect them. This, again, is a matter of fact upon which the applicant gave evidence to the Tribunal and upon which the Tribunal has made findings. It is not for this court to interfere with those findings on questions of fact.
The fifth submission is that the Tribunal has adopted an improper procedure while conducting their hearing by not giving the applicant sufficient time to recover from depression and therefore committed a procedural error. This seems to me to be the same point as the one raised by the applicant in his first submission. I'm satisfied that it is without merit.
The sixth submission is a complaint that the Tribunal made its decision on the basis of general information based on media reports that were not accurate. This is an attack on the country information or the evidence which the Tribunal used to satisfy itself that the claims made by the applicant did not constitute those within the definition of a refugee. The ability of the Tribunal to utilise country information for this purpose is well established and I have been given no authority to suggest otherwise.
Finally, the applicant states there is no guarantee of safety for his life if he goes back to Bangladesh. The Tribunal did not reach the same conclusion as the applicant in regard to this matter. It is not the function of this court to substitute its views of the situation in Bangladesh for those of the Tribunal. This court is restricted to a consideration of the methods by which the Tribunal reached its conclusions.
In all the circumstances, I am unable to grant the applicant review of the 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 nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: