NAOV v Minister for Immigration
[2004] FMCA 202
•18 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAOV v MINISTER FOR IMMIGRATION | [2004] FMCA 202 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – no jurisdictional error. |
Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407
VAAW v Ministerfor Immigration [2003] FCAFC 259
SBBS v Ministerfor Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
ChanYee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 179
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 124 ALR 265
Aziz vThe Minister for Immigration & Multicultural Affairs (2002) 1985 ALR 166
Kioa v West (1985) 159 CLR 550
| Applicant: | NAOV |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1248 of 2003 |
| Delivered on: | 18 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 18 March 2004 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr M. Wigney |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application be dismissed.
That the applicant pay the respondent's costs fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1248 of 2003
| NAOV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) that was made on 10 March 2003 and handed down on 1 April 2003 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.
The applicant is a citizen of Bangladesh who arrived in Australia on 7 February 1999. He applied for a protection visa on 26 October 2001. The application was refused by a delegate of the respondent on
27 November 2001 and the applicant sought review by the Tribunal on 24 December 2001.
The applicant made claims in connection with his protection visa application and provided further submissions through his migration agent on two occasions in connection with his application for review by the Tribunal.
The basis of the applicant's claim for a protection visa was that he feared persecution in Bangladesh for reason of his political opinion and also as a result of the circumstances surrounding and the existence of an extra-marital relationship. He claimed that he had been an activist for the Jatiya party and a follower of President Ershad during his years at school and college and had been office-holder in his college branch of the party, and that when the Bangladeshi Nationalist Party (the BNP) came to power in 1992 he was targeted by the government and that a few false cases were laid against him.
He went to India in 1993 to study at university and remained there until 1997. He married a Bangladeshi woman in 1995. He returned to Bangladesh in 1997 and came to Australia in 1999. After coming to Australia he formed a relationship with a woman other than his wife, (in circumstances that he details at some length in the submission accompanying his protection visa application). He claimed that his mother-in-law was well connected, this his new relationship had been reported to community leaders in his locality in Bangladesh, that fundamentalist Muslim groups had ostracised his family and that he feared being punished under Sharia law by being stoned to death should he return to Bangladesh. He claimed that a warrant had been issued against him. He also claimed to fear persecution for his political opinion because his peers were being harassed, assaulted and arrested in Bangladesh.
In connection with his application to the Tribunal for review, the applicant’s migration agent provided two separate submissions which addressed the claims based on his political opinion and on his relationship. On 26 April 2002 the Tribunal wrote to the applicant and advised him that it had considered the material before it in relation to his application but that it was unable to make a decision in his favour on that information alone. In response to the hearing invitation the applicant indicated that he wished to attend the hearing, that he did not require an interpreter or for the Tribunal to take oral evidence from other witnesses. He did not indicate that he wished to bring any other person to the Tribunal hearing. He attended the hearing on 31 May 2002.
It appears from the Tribunal reasons for decision that in the course of the Tribunal hearing the applicant claimed that when he returned to Bangladesh in 1997 from India he was beaten by BNP activists, that he had to remain in hiding until he left Bangladesh in February 1999 and that although he had complained to the police they did nothing about his complaint but filed a case against him.
On 1 April 2003 the Tribunal handed down its decision affirming the decision of the delegate to refuse the protection visa application.
At the start of its reasons for decision the Tribunal outlined the concept of persecution as defined in s.91R of the Migration Act 1958. It also noted that the Tribunal is not required to accept uncritically any and all of the allegations made by an applicant but indicated that when assessing credibility, as it was necessary to do, the Tribunal must be sensitive to the difficulties faced by asylum seekers and should give the benefit of the doubt to those who are generally credible but unable to substantiate all of their claims.
The Tribunal accepted that the applicant was a Bangladeshi who arrived in Australia in February 1999; that he had been an active student politician from 1990 to 1992 and that he had organised meetings against both the Awami League and the BNP. It found, however, that it had been over 10 years since he had been a student politician and that it was unlikely that he would now be a target for harm as a result of his student activities. The Tribunal was not satisfied that the applicant was beaten by BNP activists when he returned to Bangladesh from India in 1997, or that he was in hiding for the next two years until 1999, or that a case had been filed against him. The Tribunal was satisfied that the applicant had been able to avoid harm for several years and leave the country on his own passport because he was of no particular interest to the authorities or to any political organisation. The Tribunal was not satisfied that the applicant would be of any interest to authorities or to any political organisations in Bangladesh or that he would be at risk of persecution should he return to Bangladesh.
The Tribunal also had regard to the applicant's claims to fear harm from Muslim militants if he returned to Bangladesh because he had left his wife and formed an extra-marital relationship allegedly publicised by his former wife. He claimed that his parents had been ostracised and that he expected to be stoned to death or gaoled for 14 years and to be unable to get employment. The Tribunal stated that it could find no evidence to support a conclusion that the applicant would be at risk of gaol or stoning because he had left his marriage and formed a relationship with someone else. It found that whilst he might be ostracised by some, it was not satisfied that he would be unable to obtain employment and to earn a living or that any harm he suffered would amount to persecution.
In conclusion, the Tribunal was not satisfied by the totality of the evidence before it that there was a real chance that the applicant would be persecuted now or in the foreseeable future if he returned to Bangladesh. As it was not satisfied that the applicant had a well founded fear of persecution, the Tribunal was not satisfied that he was a person to whom Australia has protection obligations under the Refugees Convention.
The applicant sought review in the Federal Court on 28 April 2003 and the matter was transferred to this court.
In the application for review a number of grounds are raised. In the written submissions filed by the respondent prior to the hearing those grounds are repeated and elaborated on, although presented in a somewhat different format.
I have considered all of the grounds raised by the applicant in his application, in his outline of submissions and in oral submissions today. Although he appears to have had some assistance in connection with the preparation of the outline of submissions, as he is unrepresented I have also considered all of the material before me in determining whether or not there is any jurisdictional error.
The first of the grounds relied upon by the applicant was that the Tribunal erred in law amounting to jurisdictional error because it did not consider his chance of being persecuted owing to his current relationship. In the outline of submissions the applicant also submitted that his claim in relation to persecution by reason of his political opinion had not been considered by the Tribunal. It is apparent however, from the Tribunal reasons for decision, that the Tribunal did not fail to consider the applicant's claim to fear persecution by reason of his current relationship or by reason of his political opinion and his past history or any of the integers of such claims. However it was not satisfied that any harm that the applicant would suffer as a result of his relationship would amount to persecution. Nor was it satisfied that he would be of any interest to authorities or to political organisations if he returned to Bangladesh. Hence he would not be at any risk of persecution should he return to Bangladesh in relation to the claims based on his political history.
The Tribunal considered all of the claims including the cumulative effect of the applicant’s experience and his claims as to the future in concluding that it was not satisfied that he had a well-founded fear of persecution. The Tribunal reasons for decision depend to some extent on its findings in relation to the credibility of the applicant. It accepted some of his claims and did not accept others. It gave reasons for its failure to accept some of those claims which were open to it on the material before it. In those circumstances, credibility being a matter for the Tribunal par excellence, (Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407and also Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547), no error is apparent in the manner in which the Tribunal considered those claims or reached its conclusions in relation to credibility.
It was also submitted that the Tribunal did not reach its conclusions by a correct application of the applicable law or in accordance with the requirements of the Migration Act. The Tribunal applied the correct law. Its decision was based on factual findings that it was not satisfied or persuaded that the applicant was at risk of persecution if he returned to Bangladesh. Such findings were open to the Tribunal. It was not required to accept the applicant's claim unequivocally and no error has been established in this respect. It was submitted in the outline of submissions that the Tribunal had failed to take into consideration whether non-violent harassment could fall within the notion of serious harm under s91R(1) of the Migration Act. It is apparent from the Tribunal reasons for decision that it had regard to such provision, the effect of which it set out correctly in the introduction to its reasons. In the assessment of the applicant's claims the Tribunal had regard to matters relevant under s91R and in particular to the concept of serious harm in concluding that the harm feared would not amount to persecution. Reading the Tribunal reasons as a whole it is clear that it had regard to the limitations in s91R. It did not make a finding that non-violent harassment could not amount to serious harm, rather, it concluded that the particular harm that it accepted that the applicant feared in the future was not such as to amount to persecution. The Tribunal considered the fears expressed by the applicant. It gave reasons for rejection of some fears. It accepted that he would be ostracised by some because of his extra-marital relationship but found no evidence to support the conclusion that he would be at risk of jail or stoning as he claimed. The Tribunal also considered but was not satisfied that he would be unable to obtain work and earn a living. In so doing the Tribunal had regard to the type of conduct that amounts to serious harm in s.91R(1) is addressed in s.91R(2) insofar as the claims of the applicant raised such issues. Its finding that it was not satisfied that the applicant would be unable to obtain work or to earn a living addresses the issues of significant economic hardship or denial of capacity to earn a livelihood referred to in s91R(2). The findings in this respect are findings of fact properly for the Tribunal. It has not been established that there was any error in the way in which the Tribunal approached its task or that it failed to apply the law correctly. (See VAAW v Ministerfor Immigration [2003] FCAFC 259.)
It was further submitted by the applicant that the Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction. This, of course, is a broad statement of conduct that may amount to jurisdictional error. It is not particularised in the application and of itself does not establish any jurisdiction error.
It is complained that the Tribunal was biased and did not exercise its jurisdiction bona fide. Proof of bad faith and bias are proof of extreme circumstances; SBBS v Ministerfor Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361. Such allegations are serious allegations that should not be made lightly. It is a rare case in which bias will be established merely on the basis of the Tribunal reasons for decision such as are before the court in this case. There is no basis on the material before me for such allegations. Neither bias nor bad faith can be inferred from the Tribunal reasons. There is nothing to suggest that the Tribunal was, as was submitted, looking for reasons to reject the applicant's claims. Having regard to the inquisitorial nature of Tribunal proceedings it is clearly appropriate for the Tribunal, particularly where credibility is in issue, to put matters to the applicant. Nor is there anything on the material before me to suggest that the Tribunal was “unduly adversarial” as claimed or that there was apprehended bias.
The Tribunal recognised, properly, (and contrary to the complaints of the applicant), the difficult situation in which an applicant for a protection visa might find him or herself in its acknowledgement of the need for sensitivity to the difficulties faced by asylum seekers and the need to give the benefit of the doubt. At the same time it did not err in adopting the principles that a decision-maker is not required to accept uncritically any and all allegations made by an applicant, that it is not necessary to have rebutting evidence available to it before the Tribunal can find that a particular factual assertion has not been made out and that it is not required to accept claims inconsistent with independent evidence in relation to the country of nationality. (See Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 124 ALR 265, Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 and ChanYee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 179).
The transcript of the Tribunal hearing is not before the Court. The applicant complains generally that he had no assistance during the hearing. He had the assistance of a migration agent in connection with his review application, albeit that the migration agent did not attend the Tribunal hearing. He did not have the assistance of an interpreter; that was because, as he indicated on the response to hearing invitation, he did not need an interpreter. Indeed, his complaint does not suggest that he had inadequate English. Rather, he complains that he should have been given the opportunity to have a further hearing or to make further submissions to the Tribunal after the hearing and in the extended period of time before the decision was handed down.
First the delay in finalisation of the matter by the Tribunal does not establish a jurisdictional error either in the nature of a lack of procedural fairness or otherwise. There is no suggestion on the material before me that there was a change of circumstances not taken into account by the Tribunal, that the applicant sought and was denied the opportunity to provide further information to the Tribunal, or that he sought an adjournment or further hearing.
The applicant also claims that the Tribunal failed to perform the duty imposed on it by s.425 of the Migration Act. Section 425 of the Act provides that:
The Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
In this case the Tribunal properly invited the applicant to a hearing. He attended the hearing and there is nothing on the material before me to suggest that he did not have an opportunity in that hearing, consistent with the obligations in s.425, to give evidence and present arguments. He also took the opportunity, through his migration agent, to provide two extensive written submissions to the Tribunal.
As to the suggestion that the Tribunal did not conduct appropriate inquiries, the Tribunal has no general duty to inquire. Any obligation to conduct inquiries will arise only in a rare or exceptional case (Aziz vThe Minister for Immigration & Multicultural Affairs (2002) 1985 ALR 166). There is nothing in the material before me to suggest that this was such a case or that the Tribunal undertook to the applicant to make further inquiries. There was nothing exceptional about the applicant's case or the matters raised by the applicant that required the Tribunal in this instance to conduct further inquiries.
The Tribunal has necessarily to put critical matters before the applicant to give him an opportunity to comment (Kioa v West (1985) 159 CLR 550). There is nothing to suggest that the Tribunal ignored the applicant's explanations. It did not accept all of the claims but it provided reasons for its failure to accept certain of those claims which were open to it on the material before it.
It is suggested, without particularisation, that there was a lack of procedural fairness. There is nothing on the material before me to suggest that there was any lack of procedural fairness either in the manner in which the Tribunal conducted the review, in the hearing, the time take for finalisation of the decision or in any other way. There is also a suggestion (again without particularisation) that there was a failure to observe an expectation in the mind of the applicant. There is nothing in the material before me to suggest that this is a case in which any concept of expectations on the part of the applicant is relevant.
Finally, the application indicated that he was unrepresented and without the assistance of a lawyer. He sought an opportunity to provide further written submissions in response to the argument of Counsel for the respondent and any matters raised at the time of the hearing. Counsel for the respondent addressed matters raised by the applicant as well as the respondent’s written submissions. These were available to the applicant prior to the hearing. Nothing in the conduct of these proceedings makes it necessary or appropriate that there be a further adjournment or time for further submissions.
The applicant has had time in which to seek legal assistance. He had the opportunity to and did participate in the legal advice scheme provided to Protection Visa applicants. No jurisdictional error or, indeed, breach of any of the so-called Hickman provisos is apparent. The decision is a privative clause decision and is protected by s.474 of the Act. The application should be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. It is appropriate that he should meet the costs of the respondent. He made no submissions in relation to the application for costs. In light of the nature of this and other similar matters, I consider that an amount of $4,000 is appropriate and that costs should be fixed under the Federal Magistrate Court Rules.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 18 March 2004
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