NALS v Minister for Immigration
[2003] FMCA 451
•29 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NALS & ANOR v MINISTER FOR IMMIGRATION | [2003] FMCA 451 |
| MIGRATION – Review of decision of RRT where applicant puts forward claims which are not supported by particulars or evidence – where no error is revealed. |
Judiciary Act 1903 (Cth), s.39B
| Applicant: | NALS & ANOR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 670 of 2003 |
| Delivered on: | 29 September 2003 |
| Delivered at: | Sydney |
| Hearing date: | 29 September 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Sara McNaughton |
| Solicitors for the Respondent: | Blake Dawson Waldron |
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 670 of 2003
| NALS & ANOR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application on the part of a husband and wife who are citizens of Bangladesh. They arrived in Australia on 20 March, 2001. On 24 April, 2001 they lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural affairs.
On 17 May, 2001 a delegate of the Minister refused to grant them protection visas and on 13 June, 2001 they applied for review of that decision from the Refugee Review Tribunal. The tribunal considered the papers with which it had been supplied and wrote to the applicants on 24 December 2002 advising them that it was unable to make a decision in their favour on this information alone. It appointed Monday, 20 January 2003 for a hearing.
The applicants attended this hearing, in which it became clear that the male applicant was the person who alleged that he had a well founded fear of persecution for the convention reason of political activity and religion and that his wife was part of this family unit.
On 14 January, 2003, the applicant had sent a detailed letter to the tribunal setting out his claims. This letter is found between [CB 66] and [70].
The applicant is a 37 year old Bangladeshi of the Muslim religion, who holds both a Bachelors and Masters Degree from Dhaka University. Whilst in Bangladesh he ran a successful business, as did his wife. He has family remaining in Bangladesh. The applicant claimed that he had been active in the Jamaat-e-Islami Party (JI) as a student, becoming vice president of a student wing of the party. He had been organising secretary of a local government unit of the party from 1995 and had been elected a member of the city committee of the party.
He claims that during the time that the Awami League was in power in Bangladesh, he had become a victim of a reign of terror instigated by that party against members of JI. He claimed that he could hardly sleep for fear of being arrested on false charges and that several cases have been lodged against him. He claimed that his younger brother had been arrested and beaten for not answering questions, and that he and his family have gone into hiding for fear of persecution.
He says that he fled the country to save his life and that of his wife. He says that his remaining family now live in dire poverty and that his once flourishing business was now in complete ruins. He owes money in Bangladesh.
The applicant told the tribunal that he believed that widespread lawlessness was prevalent in Bangladesh. He felt that people were being killed in broad daylight and in most cases the perpetrators were never caught or tried. He discussed with the tribunal the changing government. He accepted that JI was now a partner in the government with the BNP. But he did not believe that this coalition would solve the problems of the Islamic Chatra Sibir. He was also concerned that the false charges laid against him had not yet been dismissed and that he would still have to face them when he returned. He says that he sought guarantees from his party that he would not be pursued on his return, but they had said they could not give him any guarantees.
The tribunal discussed with the applicant his travelling arrangements. It noted that he had travelled quite extensively on business and that he had been able to attend in Dhaka at the Australian Consulate to obtain a visa for Australia. The tribunal noted that this did not cause the applicant any concern or lead to his arrest under any of the false charges which had been laid against him. The tribunal discussed with the applicant the question of his relocation. The applicant had told the tribunal that his family had relocated but he felt that it would be dangerous and useless for him to relocate because Bangladesh was only the size of Tasmania and he would soon be found.
In it's findings and reasons the tribunal noted these matters, but stated at [CB 88]:
“ The tribunal is not satisfied that the applicant was of such prominence in the party as to be subjected to severe harm or mistreatment. The applicant has provided no evidence to support his claims to have suffered violence at the hands of the authorities, and made no reference to these claims in his oral evidence, (despite being asked to set out his difficulties in Bangladesh as fully as possible in order to support his claims). The applicant acknowledges that the authorities made no attempt to limit his travels from Bangladesh despite the existence of outstanding charges against him. The tribunal finds that the authorities do not appear to have given importance to seeking out the applicant and considers that this suggests the applicant was not a significant target for police or similar action.”
The tribunal made other findings including those that the applicant could relocate and that he would be able to speak out in favour of JI and that there was no real chance of the applicant experiencing such violence at the levels described in s.91R of the Act as examples of persecution. The tribunal referred to the applicant's concern that as a loan defaulter action will be taken against him, but found that this was not a convention related reason.
The applicant appeared in person and provided me with an outline of submissions which he had drawn up with the assistance of a friend who he said had legal knowledge. This document is not easy to read but Ms McNaughton in her helpful written submissions, has dealt with each of the matters raised there. I quote from those submissions:
“A claim of jurisdictional error cannot be sustained on any of the bases set out by the applicant:-
“(1)The applicant has failed to particularise what he alleges is the error of law involving the incorrect interpretation of law as it related to the facts of the case and the respondent cannot identify any such error.”
I can identify no such error either.
“(2)The tribunal did not fail to consider valid documents submitted by the applicant. All of the claims set out in the two written submission documents were probably considered by the tribunal. The applicant did not submit any other "valid documents" apart from the copies of the passports.”
It is my understanding of the applicant's complaint that this did not relate to documents which he submitted because he said that he was unable to submit any. It was more a complaint in relation to the tribunal not itself finding the type of documents which the applicant would have wished to have produced had he had an opportunity so to do. This of course is not the duty of the tribunal as it is the applicant's duty to make his own case.
“(3)There is no basis to suggest that the tribunal's decision was unjust, nor that it was made without taking into account the gravity of the applicant's circumstances or the consequences of the claim. In any event, to the extent that such a ground seeks a review on the merits, such review is not available in this court.”
I accept these submissions.
“(4)The tribunal did consider the current situation prevailing in Bangladesh. It referred to the current situation in its reasons, several points, for instance at CB85, 87 and 89. Indeed, the applicant was given an opportunity to comment on independent country information in relation to the current situation in the hearing. The applicant has given no indication of why it is alleged that the tribunal improperly exercised its power.
I am quite satisfied that the tribunal did put to the applicant the fact of the current situation in Bangladesh and certain country information relating to that situation. If what the applicant is referring to is the failure of the tribunal to put to him information which might have proved his own assertions about his inability to speak up on behalf of JI, then once again this is not the tribunal's duty, it is his own.
“(5)To the extent the applicant has raised a no evidence ground for review, the applicant has not identified which finding of fact made by the tribunal was supposedly not supported by any evidence.”
The applicant was required to provide proper particulars in accordance with the standard directions made in this matter. His failure to do so would seem to support the respondent's argument that the tribunal has not made the type of error alleged.
(6)“The tribunal did have material before it (the fact that his mother had relocated) on which it could make an assessment as to the reasonableness of relocation.”
I am satisfied that this evidence does exist and that the tribunal was entitled to come to the conclusion which it did upon the basis of that evidence.
(7)“In every other respect, the tribunal's decision was based on findings and inferences of fact which were supported by probitive material before the tribunal.”
I accept this conclusion having read the tribunal's reasons for decision and the papers contained in the court book.
The applicant appeared before me today. He asked me to exercise my compassion to allow him to remain in the country. I explained to him that this is not within the power of the court. I explained that the Minister was always open to consider applicants made on compassionate grounds but that he would not do so whilst there are currently proceedings before the court. I would hope the applicant will take this into account when considering whether or not to appeal this decision.
I am unable on the papers, or on anything that I have heard from the applicant, to find any grounds under which I can give review to this decision under s.39B of the Judiciary Act 1903 (Cth). 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 fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM
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