NANL v Minister for Immigration

[2003] FMCA 543

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NANL v MINISTER FOR IMMIGRATION [2003] FMCA 543

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – whether the RRT hearing was procedurally fair – whether the RRT member was biased – whether the RRT erred in the assessment of the applicant’s credibility – no reviewable error found.

Migration Act 1958 (Cth), s.476

Minister for Immigration v Jia & Anor (2001) 205 CLR 507
NADO v Minister for Immigration [2003] FCA 215
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
Vichlenkova v Minister for Immigration [1999] FCA 1338

Applicant: NANL

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1215 of 2003

Delivered on: 26 November 2003

Delivered at: Sydney

Hearing date: 26 November 2003

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr D Jordan

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1215 of 2003

NANL

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 17 March 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant proceeds on the basis of two applications, the first filed on 9 April 2003 and the second filed on 27 June 2003.  The first application is generic in character.  The second application provides elaboration and explanation of the grounds that review advanced. 

   
   

   I permitted the applicant to rely on both applications.  I also received two affidavits by the applicant made on 9 April 2003 and 24 November 2003.  I received the second affidavit over the objection of Mr Jordan on the ground of lack of relevance.  The applicant also relies upon written submissions filed on 18 November 2003.  He tells me that he was assisted in preparing his documents by a friend.  Whoever prepared the written submissions appears to have been relying upon an out of date version of the Migration Act 1958 (Cth) (“the Migration Act”). The submissions refer to the now repealed s.476 of the Migration Act. However, in my view, no harm is done by that erroneous reference because it is clear from the two applications and the affidavits by the applicant and the balance of the written submissions that the applicant is simply seeking to establish jurisdictional error in accordance with the jurisdiction available to this Court.

3. The background to these proceedings is accurately set out in paragraphs 2 through to 8 of written submissions prepared by Mr Jordan.  I adopt those paragraphs for the purposes of this judgment:

   The applicant is a citizen of Bangladesh.  He claimed to fear persecution in Bangladesh for reason of political opinion, arising from his activities in support of the Bangladesh National Party (“the BNP”).

   In his application for a protection visa lodged on 25 July 2001, the applicant made the following claims:

   i)He joined the student wing of the BNP in 1990.  In succeeding years he was elected to various positions within the student wing of the BNP, culminating with his election in 1998 as general secretary of the BNP student wing at his college.

   ii)At this time, he was involved in political demonstrations, resulting in arrest and detention for three days.

   iii)On 20 February 2000 he was attacked and beaten by political opponents from the Awami League.  He sustained injuries and was hospitalised for one month.  After receiving death threats from his attackers, he moved to live in Raozan, which was another region within the Chittagong district where the applicant had lived previously.

   iv)At Raozan, he received shelter from Saluddin Kader Chowdhury, an influential leader of the BNP.  The applicant rejected Chowdhury’s invitation to join him in acting against the BNP.  This resulted in the applicant being beaten on 16 September 2000 by thugs employed by Chowdhury. 

   v)In order to escape persecution from the Awami League and Chowdhury, he joined an Iranian ship as a cook.  He travelled to various countries and deserted the ship when anchored in Adelaide in July 2001.

   The protection visa application was supported by a declaration confirming that the applicant was not the subject of any outstanding charges and was unaware of any investigation that may lead to charges (court book, page 32).

   By letter dated 10 October 2001, a delegate of the respondent informed the applicant of issues adverse to his claims. The applicant was informed that the election of the BNP government in October 2001 meant that his fear of persecution for reason of BNP membership was not well founded.  He was also informed of information which indicated that violence in the context of political activity in Bangladesh is mostly attributable to criminal elements and is often motivated for personal reasons (court book, pages 35-36).

   The applicant’s adviser responded by letter dated 7 November 2001 (court book, pages 38-39).  The response enclosed newspaper cuttings and letters purporting to verify the applicant’s claims.  However, the documentation also raised new claims including that the applicant had been the victim of many false cases (court book, page 43), had been gaoled as a result of false cases, and was the subject of further requests for detention under the penal code and the Special Powers Act (court book, pages 56-58).

   Following the decision of the respondent’s delegate, further material  was submitted to the tribunal on the applicant’s behalf, which raised additional claims including the following:

   i)In light of the election of the BNP government in October 2001, the applicant’s adviser referred to instances of harassment directed against members of the Awami League and appeared to assert, for the first time, that the applicant was an Awami League activist.

   ii)A video was submitted, purporting to show colleagues of the applicant in a meeting and marching in support for him.

   iii)It was asserted that the false cases filed against the applicant may result in life imprisonment or capital punishment.

   The applicant’s evidence at the hearing before the RRT made further changes to his claims.  For example:

   i)The applicant claimed that there was only one false case laid against him, which had occurred following his arrest in 1998.

   ii)The RRT noted that the applicant had lived at only two addresses and had not sought to move outside the Chittagong district.  In response the applicant asserted, for the first time, that he had relocated for a brief time outside the Chittagong district.

   iii)The applicant said that he was not responsible for the claim that he had been an Awami League activist.

4. Mr Jordan also accurately sets out the material findings of the RRT in paragraphs 9 through to 12 of his written submissions.  I also adopt those paragraphs for the purposes of this judgment: 

   The RRT delivered its decision orally at the end of the hearing on 17 March 2003.

   The RRT found that the applicant’s claims were not credible.  This finding was primarily based upon the inconsistency and contradictions affecting the claims advanced at various stages by the applicant. The tribunal’s adverse finding on credibility was also influenced by the applicant’s reliance upon documentation which appeared to have been fabricated and country information which undermined the applicant’s claimed fear of persecution.

   The RRT went on to make a number of alternative findings:

   i)Even if he held the positions in the student wing of the BNP as he claimed, the applicant had characterised himself as only a low profile political leader. Moreover, his political involvement had ceased several years ago.

   ii)If the attacks in February and September 2000 did take place, they occurred as part of the general cycle of violence associated with student politics in Bangladesh.

   iii)If there are false cases pending against the applicant, the available country information indicates that he would receive justice through the superior courts and, in any event, the authorities would be unlikely to pursue a person affiliated with the ruling BNP.

   iv)Country information indicated that it was reasonable for the applicant to relocate from the Chittagong district to another area within Bangladesh.

   On these bases, the RRT concluded that the applicant did not have a well founded fear of persecution for a Convention reason and affirmed the decision of the respondent’s delegate.

5. It is not altogether clear from the documents filed by the applicant what the complete range of grounds of review is that the applicant is seeking to pursue.  I gave the applicant the opportunity to make oral submissions to me this afternoon.  Upon hearing him, I agree with what Mr Jordan says in paragraph 14 of his written submissions concerning the grounds being advanced by the applicant.  In my view, both applications as explained by the applicant raise three grounds.  The first is that the RRT failed to accord the applicant procedural fairness.  The second is that the decision of the RRT is vitiated by actual bias because the RRT member adopted an unshakeable predetermined view of the outcome.  Thirdly, the applicant asserts that the RRT erred in its approach to an adverse credibility finding made against the applicant. 

6. As to the claim of procedural unfairness, the applicant asserts that he was not given a fair opportunity to present his arguments to the RRT.  I drew the attention of the applicant to the extensive discussion in the court book about claims made by the applicant prior to the hearing before the RRT and what the applicant said when he appeared at the hearing before the RRT.  The applicant asserts that the presiding member was not interested in listening to his arguments but simply required him to answer yes or no to questions put to him.  I put to the applicant that that was at odds with the description of what occurred at the hearing set out (court book, pages 189-193).  I had the interpreter read that section of the decision record to the applicant. 

7. The applicant submitted to me that, notwithstanding the apparently detailed discussion of his claims at the hearing set out by the presiding member, the audio record of the RRT hearing would prove otherwise, but no transcript of the audio record has been prepared and neither was I invited prior to the hearing today to listen to any particular part of the tapes of the hearing.  I declined the applicant's invitation to listen to the tapes after the hearing in order to see whether his claims might be substantiated.  In my view, the record of the RRT hearing appearing on the face of the decision record of the RRT speaks for itself.  I agree with and adopt paragraph 15 of Mr Jordan's written submissions in this regard:

   On the available evidence, there is no basis to assert that the applicant was denied procedural fairness. It is evident from the RRT’s summary of the evidence at the hearing that the applicant was clearly apprised of the critical issues and given an opportunity to respond directly to the RRT’s concerns in relation to credibility and the inconsistencies affecting the applicant’s claims.

8. As to the allegation of bias, the applicant's concern is that the presiding member appeared to adopt an adverse view about the applicant's claims and proceeded to make an oral decision immediately at the end of the hearing.  The presiding member was entitled to deliver his decision and reasons orally.  Indeed, I am adopting the same procedure today.  Further, the presiding member was entitled to and may even have been required to put to the applicant doubts the presiding member had about his claims.  It is apparent that the presiding member had difficulty accepting critical elements of the applicant's claims.  However, the doubts no doubt held and certainly expressed by the presiding member at the hearing are not indicative of bias.  The presiding member took the opportunity at the hearing to test the applicant's claims and to draw to the applicant's attention serious doubts held by the presiding member.  I have no concern whatsoever about that approach by the presiding member and there is no substance to the allegation of bias.  I also adopt, for completeness, paragraph 16 of Mr Jordan's written submissions on this issue:

   The applicant’s complaint that the RRT held a pre-determined view appears to derive from the RRT’s election to give an oral decision at the conclusion of the hearing. This course is clearly contemplated in s.430D of the Migration Act. The RRT’s election to proceed in this way is no basis to find that the RRT had a pre-existing state of mind which disabled it from making a proper evaluation of the relevant materials and, as such, was actually biased against the applicant.[1] On the evidence, the applicant cannot discharge the heavy onus of demonstrating actual bias.[2]

   [1] For example, Minister for Immigration v Jia & Anor (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [72]; Hayne J agreeing at [176]; see also per Kirby J at [130]-[132]

   [2] For example, Minister for Immigration v Jia & Anor per Gleeson CJ and Gummow J, quoting French J at [37]; see also per Kirby J at [121]

9. As to the adverse creditability finding, I note that on page 198 of the court book, the presiding member made the following finding:

   The applicant has not presented his claims for refugee status in a credible way and the claims themselves are not credible.  His case fails because of four key factors: the inadequacy and contradictions of the DIMIA application claims; the manner in which the applicant and his adviser kept adding to the claims later; the unimpressive documents and videos submitted; and the country information.

10. The presiding member went on to detail its reasons for this adverse credibility finding.  I agree with and adopt paragraph 17 of Mr Jordan's written submissions in relation to the credibility finding:

    The RRT employed conventional reasoning in reaching the adverse credibility finding and referred to relevant authority.  The assessment of whether or not the applicant could be believed was a task for the RRT “par excellence”.[3] In performing this task, the RRT was entitled to have regard to the inconsistencies which arose as the applicant’s claims evolved over time.[4] The RRT’s process of reasoning in this regard discloses no error.

    [3] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [68]; see also Vichlenkova v Minister for Immigration [1999] FCA 1338 at [3]

    [4] Compare NADO v Minister for Immigration [2003] FCA 215 at [32]-[33]

11. The adverse credibility finding was reasonably open to the RRT on the material before it.  In addition, I note that although it was not necessary to do so, the presiding member went on to consider what the applicant might do if he held a genuine fear of persecution.  The RRT found that the applicant could relocate.  The applicant disagrees with that view adopted by the RRT, but the applicant's submissions about that finding do not advance beyond an argument over the merits of it.  There is no jurisdictional error in the decision of the RRT. 

12. Accordingly, the decision is a privative clause decision.  I will dismiss the application. 

13. On the question of costs, the applicant being wholly unsuccessful and the Minister wholly successful, Mr Jordan has sought on the Minister's behalf an order for costs fixed in the sum of $4,000 on a party party basis.  The applicant did not wish to put any submissions to me on the question of costs.  An order for costs in the sum of $4,000 is at the higher end of the range of costs commonly awarded in this jurisdiction in this Court.  However, the amount of work required to be done by the Minister's legal team is somewhat more than usual.  A substantial court book and a supplementary court book have been prepared.  Mr Jordan was required to deal with two applications, two supporting affidavits and written submissions.  In addition, it was appropriate for the Minister to be represented by counsel at the hearing today.  The sum of $4,000 is in my view reasonable.  I will order that the applicant pay the respondent Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  9 December 2003