NANH v Minister for Immigration - [2004] FMCA 45

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NANH v MINISTER FOR IMMIGRATION

[2004] FMCA 45

MIGRATION – Review of RRT decision – where applicant alleges failure to consider evidence presented in support of claim – where application was produced for applicant by his “friend” – where applicant had no understanding of the nature and purpose of this document – where applicant essentially seeking merits review – where credibility of applicant affected because of inconsistent claims made – where allegation of bad faith made but not particularised.

Migration Act 1958 (Cth) s.427

SBBS v Minister for Immigration [2002] FCAFC 361

Applicant:

NANH

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1212 of 2003

Delivered on:

28 January 2004

Delivered at:

Sydney

Hearing date:

28 January 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1212 of 2003

NANH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh. He arrived in Australia on 24 December 2000. On 9 January 2001 he lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 8 March 2001 a delegate of the Minister refused to grant him a protection visa and on 26 March 2001 the applicant applied to the Refugee Review Tribunal for a review of that decision. The applicant was represented by a migration agent and on his behalf submissions were made to the Tribunal and a hearing was held in February 2003. On 14 February 2003 the Tribunal determined to affirm the decision not to grant a protection visa and handed down that decision on 11 March 2003.
The applicant was aggrieved by the decision of the Tribunal and on 4 April 2003 filed an application in the Federal Court seeking a review of the decision. The application takes a form which has become familiar, it is stated in paragraph one:
“The Refugee Review Tribunal has not attended any evidence in relation to the applicant's claims and thus it's decision is influenced by sufficient doubts. The applicants provided a suitable vehicle and most of the grounds relied upon facts and documents, which the Tribunal did not consider. The RRT heavily depended in their handling of the issues based on the generalised facts and findings of DIMIA.”
The general complaint of ignoring of evidence is carried through the other nine paragraphs which make reference to cases such as Walton v Philip Ruddock, The Minister for Immigration & Multicultural Affairs [2001] FCA 1839, Craig v South Australia (1995) 184 CLR 163, Abebe v Commonwealth of Australia (1999) 197 CLR 510 and R v Hickman; ex parte Fox and Clinton [1945] 70 CLR 598 at 615.
The proceedings were transferred on 14 May 2003 from the Federal Court into this court by order of Stone J. On 20 January 2004 the applicant provided a written argument which states that the applicant appeals from the decision that:
“The applicants [sic] appeals from the decision of the Refugee Review Tribunal given of [sic] 14 February 2003 pursuant to s 476(1)(f) on the grounds that the decision was induced or affected by actual bias.”
The document then goes on to give particulars of actual bias which seem to consist of the statement that the Tribunal did not accept that he was persecuted because of his political opinion. This document then continues with references to Muin v Refugee Review Tribunal [2002] HCA 30, the privative clause, the Hickman principles, the decision in Plaintiff S157/2003 v Commonwealth of Australia [2003] HCA 2 and references to breaches of natural justice.
At the commencement of the hearing I asked the applicant whether or not he had any knowledge of certain of the matters contained in this document; he indicated that he did not. He told me that he had asked a friend to prepare it for him. The document is a familiar one down to the spelling errors and the reliance upon a section of the Migration Act that no longer is contained therein.
I am of the view that it is not appropriate for an applicant in one of these matters in this court to purport to rely on a document in respect of which he has had no real input and doesn't understand the nature or purpose. It may be of some assistance to judicial officers dealing with these matters if the Full Bench of the Federal Court would express a view as to whether it is necessary in reasons for decision to trawl through these documents.
In this particular case, however, the claim of bias was very quietly made. What it in fact amounted to was a plea that the Tribunal that had heard the evidence from this particular applicant did not accept it. The applicant wished his claims to be placed before another tribunal differently constituted with whom he thought he might have more chance of success. The applicant said to me words to the following effect:
“ He (the Tribunal) listened to everything I have said but the decision is not a proper decision. I have a lot of problems in my country, for example, political problems. In spite of hearing all the problems and without investigating anything he made a decision. I think this is not right.”
The applicant claimed to have a well-founded fear of persecution for the Convention reason of political opinion. He told the Tribunal that after he finished school he joined the Chattra Dal which is the youth wing of the BNP. In the mid 1990s there were several incidents between the local branch of the Chattra Dal and the Chattra League which is the student wing of the Awami League.
The applicant claimed that in these incidents he narrowly escaped death and received severe wounds in various parts of his body and was required to receive hundreds of stitches. He was hospitalised for a month. The applicant advised the delegate that false charges had been laid against him.
When the matter came before the Tribunal the applicant's story changed somewhat. He was still concerned about his political views but this time his alleged tormentors were the Purba Bangla Communist Party known as the sarbaharas. His concern was that if he returned to Bangladesh members of this group would seek to kill him.
These matters were discussed in some detail with the Tribunal and the discussion can be found between [CB 201] and [204]. At [CB 208] the Tribunal makes the following comment:
“ In the pre-hearing claims the image of the applicant that was put forward was that he was a political activist who was being pursued by his political enemies (including a major political party, the then governing Awami League) and the police, not least in relation to unjustified cases against him and that the only way he could escape this danger was to leave the country.
That image collapsed very quickly at the hearing. Indeed, the likelihood of that collapse was clear from an examination of country information and maps of Bangladesh.
I do not know if any of the applicant's claims are true. What he said at the hearing and the expression on his face when he was discussing keys parts of his claims leaves me to conclude that most or all of his claims are false, even those at the hearing. I do not know if the source of the fabrications is the applicant or the adviser or whether the responsibility should be shared - I simply note the fact the keys parts of the claims made on the applicant's behalf before the hearing were unfamiliar to the applicant at the hearing and the fact that the pattern in the claims is very similar to that in other cases involving the same adviser. In any event, the dramatic contrast between what was claimed before the hearing and what was claimed or admitted or obvious speaks for itself.”
In short the Tribunal did not find the evidence of the applicant credible but in respect of his alleged fear of the sarbaharas it found that these concerns appeared to be restricted to activities in and near Kushtia:
“If for any reason the applicant does not wish to live in that area, the only part of the country in which he claims to have had difficulties, the country information on pages 12 and 16 leads me to conclude that there are many other parts of the country in which it would be reasonable to expect him to be able to relocate. He has managed to support himself in unfamiliar countries for almost seven years so I have no doubt of his ability to support himself in the country in which he was born, was educated, spent most of his life and still has family.
The Tribunal took the view that the applicant did not have a genuine fear of persecution for a Convention reason.
Perhaps the most recent comprehensive discussion of bad faith in the context of an application for a protection visa was given by the Full Bench of the Federal Court in SBBS v Minister for Immigration [2002] FCAFC 361. There was set out nine important criteria. At [43] they said:
“First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial; see SBAU at [27] citing SBAP v Refugee Review Tribunal [2002] FCA 590 per Heerey J at [49] and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA805 per Hely J at [25].”
Nothing the applicant has said to me in his submissions or contained in the document entitled Applicant's Written Argument goes into these matters in any detail at all and given the very serious nature of an allegation of bad faith it seems to me that the applicant has denied himself the opportunity of making the argument by his failure to so particularise his claim.
Perhaps the best argued ground put forward by the applicant was an alleged failure by the Tribunal to make its own investigations. This is a complaint frequently made but misunderstands the nature of the Tribunal's responsibilities. Certainly s.427 of the Migration Act 1958 (Cth) permits the Tribunal to gather information, but it does not put the Tribunal under any duty to exercise that power and its ability to collect information must be set against the purpose of the Tribunal which is to provide a fair but speedy and economic resolution of the issues.
In order to do this, the Tribunal has collected a considerable body of information concerning the various countries from which persons applying for asylum may have originated. This country information is updated and in addition members of the Tribunal tend to specialise in particular countries so that they have a basis of knowledge to use in their decision making task. There is every evidence that the Tribunal in this case had such knowledge and utilised it. There is no evidence that the Tribunal took into account any matters about which it did not inform the applicant or upon which it failed to seek the applicant's views.
In the end the Tribunal came to the opinion that the applicant was not a reliable witness. This decision on credibility is one which is for the Tribunal alone and there is nothing in any of the papers which I have seen or indeed in any of the allegations made by the applicant which would suggest that the Tribunal's view about his credibility was brought about as the result of bad faith.
The applicant also complained to me that the Tribunal ignored the threat from the sarbaharas which he believed was real and would result in him being killed if he returned to Bangladesh. The court appreciates the seriousness of this claim. It is no easy thing to dismiss an application when that dismissal may result in the death or injury of the applicant. However, a decision as to whether or not this would occur is the Tribunal's, it is a question of fact and not one for the court. The court must consider whether or not the Tribunal dealt with the concern raised by the applicant. It did.
In these circumstances, I am unable to see any grounds upon which I am able to review the decision of the Tribunal. I dismiss the application.
I order that the applicant pay the respondent's costs which I assess in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: