NALV v Minister for Immigration

[2004] FMCA 326

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NALV v MINISTER FOR IMMIGRATION [2004] FMCA 326

MIGRATION – Application for review of Refugee Review Tribunal decision – whether credibility findings open to Tribunal – whether lack of procedural fairness. 

Migration Act 1958

Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547

W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703

Applicant: NALV

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1334 of 2003

Delivered on: 19 February 2004

Delivered at: Sydney

Hearing date: 19 February 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr JD Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed.

2. That the Applicant pay the Respondent's costs set in the amount of $4,500 pursuant to the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1334 of 2003

NALV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 20 February 2003 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.  The applicant, a citizen of Bangladesh, arrived in Australia on 13 October 2001 and lodged an application for a protection visa on 8 November 2001.  He claimed to fear persecution by reason of his religion of Buddhism and the activities undertaken by him in pursuit of his religious beliefs.  On 12 March 2002 a delegate of the respondent refused to grant a protection visa.  On 9 April 2002 the applicant sought review of that decision by the Tribunal.  The applicant attended a hearing before the Tribunal on 20 December 2002. 

2. The applicant claimed to have been one of the leaders of a Buddhist welfare organisation at College.  He claimed that his father was killed when Muslim settlers took his land and property in 1992.  He claimed that he then took over his father’s work with the organisation and that he will be killed over this work.  He claimed his family home had been attacked and he had been detained and not charged.  He claimed he would also be persecuted because he had been photographed participating in a public protest in Australia relating to the death of a prominent Buddhist in Bangladesh. 

3. In the Tribunal hearing he explained that he had only been a monk for one week from 10 September 2000 and for eight months in Thailand in 2001.  The Tribunal handed down its decision on 20 February 2003.  It accepted that the applicant was a Bangladeshi national and a Buddhist from Chittagong and that he may have been a monk on two past occasions perhaps for personal spiritual reasons.  However, based on his evidence at the hearing that he stopped being a monk because he had no vocation and only posed as one for safety, the Tribunal found that he was not vocationally drawn to monastic life or to the propagation of Buddhist teachings.  Nor was it satisfied that he was interested in providing a service for the Buddhist community in Bangladesh.  In reaching this conclusion it had regard to inconsistent and implausible evidence from the applicant.  It found that he was not a credible witness. 

4. The Tribunal accepted that the applicant’s father had died in 1992 and that this may have been related to the contest for land in and around Chittagong at that time but was not satisfied that this was anything other than a spontaneous incident born of the times in which it occurred.  Nothing in the applicant’s evidence satisfied the Tribunal that this had ever led to a significant compromise of his protection status, given his subsequent study, travel and qualification for a degree.  The Tribunal considered that certain of the claims lacked credibility particularly given the absence of evidence of harm to the applicant’s alleged successors.  It concluded that the applicant fabricated some aspects of his evidence, in particular a claim in relation to the circumstances of being denied entry to South Korea (which he claimed was because he was Buddhist but which occurred when he had no visa to enter that country). 

5. The Tribunal did not accept that evidence about the fate of a prominent Buddhist monk murdered in Bangladesh assisted as the applicant did not have the same status, profile, notoriety or commitment as that monk.  Evidence of the applicant’s participation in a protest in Australia and its coverage in a Bangladesh community newspaper was found to suggest a level of public concern for human rights in Bangladesh. 

6. The Tribunal was satisfied, on the basis of the applicant’s survival in Bangladesh and independent evidence some of which the applicant relied on, that he had adequate protection from persecution in Bangladesh.  Having rejected his credibility it was not satisfied that the applicant faced real chance of Convention-related persecution in Bangladesh.  The applicant sought judicial review of the Tribunal decision on 25 March 2003 in the Federal Court.  The matter was transferred to this court.  The applicant raises a number of grounds in his application for review.  He did not file written submissions.  I have however, considered those grounds and the issues raised by the applicant in the hearing today, as well as all the material before me in considering whether any jurisdictional error is apparent. 

7. The first ground in the application is expressed as a claim that the Tribunal erred in taking into consideration the threat to life or liberty and significant harassment that the applicant would experience on return to Bangladesh.  I accept that, as conceded by the respondent, what is meant is a claim that the Tribunal did not take that matter into account.  The applicant’s claims to fear future harm were based on his claims about past activities.  The Tribunal rejected the claims of past harm and was satisfied he had adequate protection from persecution as a Buddhist in Bangladesh.  Having rejected the applicant’s claims of harm and his credibility it was not satisfied that he faced a real chance of Convention-related persecution in Bangladesh.  Such findings adequately addressed the future in this case and no error is apparent.  The findings as to credibility and fabricated claims are matters of fact for the Tribunal par excellence: Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 at [67]. Such findings were open to the Tribunal for the reasons it gives and no error is demonstrated in such conclusions: Kopalapillai v MIMA (1998) 86 FCR 547 at 558-559 and W148/00A v MIMA (2001) 185 ALR 703 at [64] – [69] per Tamberlin J and RD Nicholson JJ.

8. The second ground is that the Tribunal erred in finding that the applicant did not have any profile that would place him in jeopardy on his return to Bangladesh.  The Tribunal findings in this respect were based on its rejection of the applicant’s credibility.  The findings were open to the Tribunal on the material before it for the reasons it gave.  In so far as the applicant seeks merits review, such review is not available in this court. 

9. The applicant also makes unparticularised assertions that the Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction and asserts that he is entitled to a protection visa.  In oral submissions today he raised a number of issues.  In particular he complained of the conduct of the Tribunal hearing.  The only evidence before the court in relation to the conduct of the Tribunal is the Tribunal reasons for decision.

10. The essence of the applicant's complaint seems to be that he was not given sufficient opportunity by the Tribunal to detail his claims either during or after the Tribunal hearing.  In that respect I note a number of matters.  First, the applicant had the opportunity to submit information to the Tribunal.  In fact he took that opportunity.  His migration agent provided a written response to adverse information drawn to his attention by the Department.  The applicant made claims in his review application and provided a written submission from his migration agent (largely in relation to the situation in Bangladesh and enclosing independent information) on 12 November 2002.  Further documents were provided on 18 November 2002 which were discussed with the applicant during the hearing.  The submissions from the applicant are addressed in the Tribunal reasons for decision. 

11. The applicant claims that he was misled by the Tribunal in that it was suggested or implied that he would have time after the hearing to provide further documentation or information.  However there is nothing in the material before the court to suggest that the Tribunal in any way informed the applicant that he would have the opportunity to provide further information.  Moreover it is not the case that the Tribunal made its decision only a few days after the hearing as suggested.  The hearing was on 20 December 2002, the decision was not made until 30 January 2003 and handed down on 20 February 2003.  There is nothing to suggest that during the time after the hearing and before the handing down of the decision, the applicant sought to provide any further information or that any failure to do so was attributable to any action of the Tribunal.  No lack of procedural fairness has been established in relation to the conduct of the hearing or otherwise. 

12. The applicant also claimed that his case was rejected on the basis of a single incident.  However the Tribunal reasons turn not simply on one event but on the Tribunal's assessment of all of the applicant's claims and the evidence as a whole.   It is the case that the Tribunal concluded that the applicant introduced a number of ‘outrageously fabricated ambits’ into his evidence such as the claim about his turnaround at Seoul Airport and that the Tribunal regarded this adversely in the course of assessing his credibility, but this was not the only reason that the Tribunal found that the applicant did not satisfy the criteria for a protection visa.  Indeed the Tribunal relied to some extent on the applicant's own evidence, being independent information from a US Department of State Country Report about the situation in Bangladesh and also his conflicting evidence that from 1997 he no longer belonged to the Buddhist Welfare Association (although he remained associated) yet he claimed that it was membership of this organisation that gave rise to his claims to fear harm as well as to the harm that he claimed to have suffered.  The Tribunal also had regard to the fact that the applicant claimed to have been tonsured as a Buddhist monk on only two occasions – for one week and then for eight months and stated that he did not have a vocation. 

13. The Tribunal considered each of the applicant's claims, made findings of fact in relation to past events and considered on the basis of those findings and the country information in relation to the current circumstances in Bangladesh the future possibilities of risk of persecution for any Convention reason.

14. The applicant also complained that he put forward sufficient information in relation to the murder of his father.  In fact the Tribunal stated in its reasons for decision that it could accept that the applicant's father died in 1992 and that his death may have been related to the contest for land in and around Chittagong at the time.   The applicant asked the court to consider his claim to be a refugee and stated that it was not possible for him to go back to Bangladesh.  Merits review is not available. 

15. No jurisdictional error has been established.  Accordingly the application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The respondent seeks that the applicant pay costs of $4500.  The applicant referred generally to his impecuniosity.  He sought a waiver of any costs.  However the applicant has been unsuccessful.  Impecuniosity in itself is not a ground for not awarding costs, although it may be taken into account by the Minister in relation to the manner in which costs are sought to be recovered.  There is nothing in this case that makes it inappropriate that the applicant should bear the costs.  The amount sought is appropriate in light of the nature of this and other similar cases. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  19 February 2004