NAOP v Minister for Immigration - [2003] FMCA 573

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOP v MINISTER FOR IMMIGRATION

[2003] FMCA 573

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – application claiming political persecution in Bangladesh – RRT made adverse credibility findings against the applicant – RRT placed no weight on documents submitted by applicant due to country information relating to document fraud – RRT did not have to disclose that country information as its decision was not based on a rejection of the documents.

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
NAOA v Minister for Immigration [2003] FMCA 572
NARV v Minister for Immigration [2003] FCAFC 262
WACO v Minister for Immigration [2003] FCAFC 171
WAEJ v Minister for Immigration [2003] FCAFC 188
WAGU v Minister for Immigration [2003] FCA 912

Applicant:

NAOP

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1221 of 2003

Delivered on:

8 December 2003

Delivered at:

Sydney

Hearing date:

8 December 2003

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1221 of 2003

NAOP

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFAFIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 7 March 2003 and handed down on 27 March 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant claimed political persecution in Bangladesh. The general background facts are set out in paragraphs 2, 3 and 4 of written submissions prepared by Mr Reilly on behalf of the Minister. I adopt those paragraphs for the purposes of this judgment:
The applicant applied for the visa on 17 May 2001(court book, pages 1-31). The delegate’s decision refusing the visa was made on 31 May 2001 (court book, page 35-43). The applicant applied to the RRT for review on 18 June 2001 (court book, pages 44-47). The RRT held a hearing on 6 March 2003.
The applicant claimed to fear persecution for reason of his political opinion in Bangladesh. He claimed to be a leading member of the Jatiya Party ("JP") and to fear harm from members of the rival Awami League ("AL"). He claimed to be wanted on a false charge stemming from 1991, and that he was in hiding before leaving for the United Arab Emirates in 1992, where he lived until coming to Australia in 2001, apart from a visit to Bangladesh from November 1997 to April 1998, when he also claimed to be in hiding. See generally court book, pages 1-4, 68-71.
The RRT found that the applicant was not credible, and had fabricated his claims: court book, page 75.9. The RRT noted that the Applicant knew little about the JP (court book, page 75.4) and concluded that he was not even a member: court book, page 75.7. The RRT rejected all the applicant’s substantive claims: court book, page 75.8.
The applicant relies upon his application for review filed on 23 April 2003, a short affidavit in support filed on the same day, and written submissions filed today. The application and supporting affidavit provide a general foray into migration law as do the written submissions. Generally, however, the application, affidavit and written submissions do not advance much beyond a contest over the merits of the RRT decision. As I explained to the applicant, it is not the function of the Court to review the merits of the RRT decision.
The applicant has asserted actual bias. However, the allegation is without substance. The applicant's only complaint is that he was not believed and that the RRT did not go further to investigate his claims. Nothing has been advanced by the applicant to substantiate the claim of actual bias. The applicant also asserts a claim of procedural unfairness based upon the High Court decision in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. No particulars have been given and the applicant was not able to expand upon the claim in oral argument. The applicant simply appealed to me to send the case back to the RRT for a more thorough investigation by a different RRT member.
Nothing the applicant has raised could lead to a favourable outcome in his application. However, noting that he is a self-represented litigant without legal knowledge of his own, I have not restricted myself to the arguments the applicant has put. In my view, the case turns on two issues only: first, whether the adverse conclusions on credibility made by the presiding member were reasonably open to her on the material before her; and secondly, whether the presiding member failed to disclose to the applicant country information relating to document fraud in Bangladesh and, if so, whether there was a breach of the rules of procedural fairness.
The answer to the first question must be yes. The adverse conclusions on credibility reached by the presiding member were reasonably open to her on the material before her. The applicant claimed to be a senior member of the Jatiya Party in Bangladesh. However, he was unable to demonstrate at the RRT hearing the sort of knowledge of politics that might reasonably be expected from a Jatiya Party member, especially a senior one. The presiding member reasonably concluded that, given the applicant's lack of knowledge about the Jatiya Party and political events in Bangladesh, he was not a member of the Jatiya Party. There was, therefore, a proper basis for the presiding member to conclude that the applicant did not have a well founded fear of persecution in Bangladesh.
The second issue is not quite so easy to resolve. On pages 75 and 76 of the court book the presiding member said:
I note the documents the applicant has provided in support of his claims. However, the independent evidence before me indicates that there is a high level of document fraud in Bangladesh and that such documents are very easy to obtain with the assistance of the courts and the police. In view of the independent evidence in relation to this issue, I do not place any weight on these documents as evidence in support of the applicant's claims.
It does not appear from the discussion of the conduct of the hearing before the presiding member on pages 70 and 71 of the court book that the country information was put to the applicant at the hearing. The Minister has made no concession on this point. Nevertheless, I infer from the presiding member's silence on this issue that she did not disclose to the applicant the relevant country information. The question then is whether it was procedurally unfair for her not to do so.
Curiously, I dealt with a very similar case this morning. That was the case of NAOA v Minister for Immigration [2003] FMCA 572. The applicant in that case had a similar name to this applicant and his claims for a protection visa were very similar. The case was decided by the same presiding member on the same basis. Both applicants had spent five years out of Bangladesh at a critical period. A factor present in NAOA not present in this case was that the applicant in NAOA sought to recast his evidence to avoid the consequences of that lengthy absence. However, neither applicant was believed.
In this case, I adopt the same view as I did in NAOA. I accept from the Full Federal Court decisions in WACO v Minister for Immigration [2003] FCAFC 171, WAEJ v Minister for Immigration [2003] FCAFC 188 and WAGU v Minister for Immigration [2003] FCA 912 that a failure by the RRT to disclose to an applicant information bearing upon a significant adverse finding on credibility concerning documents may amount to jurisdictional error. Further, I accept that, based upon the decision of the Full Federal Court in NARV v Minister for Immigration [2003] FCAFC 262, a failure by the RRT to disclose country information relating to document fraud in Bangladesh may also involve jurisdictional error where the RRT bases in whole or part a decision upon documents found to be fraudulent.
The distinguishing feature in this case, as in NAOA, is that the applicant's credibility was destroyed without the need for the presiding member to make any finding on the credibility of the documents in issue. The presiding member did not make any finding on whether the documents were fraudulent or not. She simply placed no weight on them. In WAGU at paragraph 44, His Honour French J said this in relation to a decision of the Full Federal Court in WAEJ:
One of the matters complained of in the Full Court was that there had been a breach of the rules of natural justice in the failure of the Refugee Review Tribunal to give the appellant the opportunity to deal with concerns held by the Tribunal but not disclosed to him regarding the genuineness of a document submitted by the appellant to the Tribunal in support of his application.
His Honour then referred to the particular document and what the RRT said about it and referred to the following quote from the decision of the Full Federal Court in WAEJ:
On its face the foregoing was a statement by the RRT [that] the document was not authentic. This was not a case where dishonesty on the part of the appellant had been demonstrated thereby providing support for the further conclusion that the appellant had arranged for the preparation, and tender of, [a] non‑authentic, or forged document which the RRT could disregard. There was no finding by the RRT that the evidence of the appellant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis.
In contrast, the case I have before me is a case where the RRT found that the evidence by the applicant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis. On that basis this decision can be distinguished from the decision dealt with by the Full Federal Court in NARV.
I find that there was no jurisdictional error in the decision of the RRT. I will dismiss the application.
On the question of costs, the application having been dismissed Mr Reilly has submitted that I should make an order for costs fixed in the sum of $4,250 on a party/party basis. The applicant has told me that he is impecunious. Impecuniosity, however, is not a reason for the Court to refrain from making a costs order. I note that in the matter of NAOA I made a costs order on a party/party basis fixed in the sum of $3,000. In that matter, costs actually incurred on behalf of the Minister were somewhat less than in this matter.
I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.

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

Associate:

Date: 15 December 2003