NAOX v Minister for Immigration
[2004] FMCA 55
•6 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAOX v MINISTER FOR IMMIGRATION | [2004] FMCA 55 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – whether the tribunal proceedings were fair considered – applicant not given opportunity to comment on country information – the country information was not determinative of the outcome – application dismissed. |
Migration Act 1958 (Cth), s.36
NAOP v Minister for Immigration [2003] FMCA 573
NARV v Minister for Immigration [2003] FCAFC 262
| Applicant: | NAOX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1242 of 2003 |
| Delivered on: | 6 February 2004 |
| Delivered at: | Sydney |
| Hearing date: | 6 February 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Ms J Jagot |
| Solicitors for the Respondent: | Australian Government Solicitor |
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 |
SZ1242 of 2003
| NAOX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 24 March 2003 and handed on 11 April 2003. The RRT affirmed a decision of a delegate of the respondent Minister not to grant the applicant a protection visa.
The applicant is from Bangladesh and made claims of political persecution. The relevant background facts are set out in paragraphs 2 and 3 of written submissions prepared on behalf of the Minister by Ms Jagot. I adopt those paragraphs for the purposes of this judgment:
The applicant is a citizen of Bangladesh. The applicant made application for a protection visa claiming that he:
· was a member of the Freedom party;
· had been the subject of false charges (murder) by the Awami League;
· had been a target of political persecution by the Awami League (who burned and looted his home);
· consequently, had spent four years in hiding; and
· was fearful of the police, because of the false charges (court book, pages 20-28).
The RRT, by letter dated 3 February 2003, invited the applicant to give oral evidence and present arguments in support of his claim on 24 March 2003. At the RRT hearing, the applicant gave evidence and addressed a number of questions asked by the RRT (court book, page 128 ff).
Ms Jagot also accurately summarises the RRT's findings and reasons in paragraphs 4-6 of her written submissions. I also adopt those paragraphs for the purposes of this judgment:
The RRT records the evidence given by the applicant (court book, page 130 to 131). The RRT also identifies the documents submitted by the applicant (court book, pages 131 to 132). Evidence from other sources is referred to at pages 132 to 134 of the court book.
The reasons for the decision record the following findings:
· the RRT was satisfied that the applicant is a citizen of Bangladesh (court book, page 135);
· the RRT had essential and critical concerns about the applicant’s reliability as a witness (court book, page 135);
· given the range of inconsistencies in his evidence at the hearing and the inherent implausibility in his claims and evidence, the RRT was not satisfied as to the truth of the applicant’s claims, and was not satisfied that he has any claim to have a well founded fear of persecution for a Convention reason (court book, page 135);
· the RRT did not believe and was not satisfied that the applicant was a member of the Freedom Party. His answers to all significant questions about the party were incorrect (court book, page 136);
· the applicant was found to have an utter and absolute lack of knowledge about significant and essential aspects of the party (court book, page 136);
· thus, the RRT was not satisfied that the applicant has been harmed by the Awami League in the past or that he would face any harm in the reasonably foreseeable future (court book, page 136);
· the RRT found that the applicant has fabricated his claim (court book, page 137);
· as to the supporting documents, the RRT gave them no weight (at court book, page 137):
a) first, because the RRT has made grave adverse findings against the applicant’s reliability as a witness, it cannot rely on any document provided by him; and
b) thus, the supporting documents were found, in the circumstances, to be a self-serving fabrication written for the express purpose of enhancing the applicant’s claim; and
c) secondly, because of the high level of document fraud in Bangladesh;
· in summary, the RRT did not believe the applicant was a member of the Freedom party, a claim he was found to have manufactured; did not believe he had suffered any harm in the past or that he would face any harm in the reasonably foreseeable future. Considering the applicant’s mendacity on essential and other aspects of his claim, as well as inconsistencies with the independent evidence, the RRT found the applicant’s claim to be a fabrication. Having made its significant adverse finding as to the applicant’s credit, the RRT concluded that it was not satisfied that there was a real chance of the applicant being persecuted for a Convention reason in the foreseeable future, and therefore was not satisfied that the applicant’s fear was well founded (at court book, page 138).
Accordingly, the RRT concluded that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention and that the applicant did not satisfy the criterion set out in s.36(2) of the Migration Act 1958 (Cth) (“the Migration Act”) for a protection visa (at court book, page 138).
The applicant proceeds on the basis of his application filed on 28 April 2003 and a supporting affidavit filed the same day. In that application and affidavit, the applicant claims, first, that the RRT should have considered him to be a refugee. However, that is a simple disagreement with the outcome of the RRT proceedings. As I explained to the applicant, it is not the function of this Court to decide whether or not he is a refugee. Neither can I review the decision of the RRT on its merits. The function of this Court is consider whether the decision of the RRT is vitiated by jurisdictional error.
The second ground of review is that procedures required to be followed under the Migration Act were not observed. The applicant also asserts that there was a denial of natural justice or procedural fairness. There are no particulars given. It does not appear to me that any procedural requirements of the Migration Act were breached. The only issue is whether the RRT proceedings were fair. Ms Jagot deals with these matters in paragraphs 18 to 22 of her written submissions. In substance, I agree with and adopt those paragraphs:
The applicant does not identify any matter capable of constituting a procedural error which goes to jurisdiction. The applicant was notified of the hearing, had the opportunity to attend and submit documents, did attend and give oral evidence.
In NARV v Minister for Immigration [2003] FCAFC 262 (24 November 2003), the Full Court (Ryan and Finkelstein JJ, Downes J contra) held that where the applicant had not been given the opportunity to respond to country information about document fraud, which was a matter significant to the RRT’s decision, the applicant had been denied procedural fairness (a jurisdictional error).
In NAOP v Minister for Immigration [2003] FMCA 573 (8 December 2003), this Court (Driver FM) distinguished the decision in NARV on the facts. In NAOP, the RRT made adverse findings about the applicant’s credibility and rejected the applicant’s claim. In so doing, the RRT gave no weight to the country information about document fraud. Driver FM said that in that case, where the applicant’s credibility had been destroyed and findings were made on that basis, the placing of no weight on the purportedly corroborative material did not bring the matter within the scope of the reasoning in NARV. In short, the RRT’s decision was not based, in whole or part, on the country information as to document fraud – that information was not “significant” to the decision made.
In this case, it is plain that the facts are on all fours with the reasoning in NAOP. The RRT made findings about the applicant’s credibility by reference to the nature of the claims and the evidence given by the applicant at the RRT. The supporting documents, in light of those findings already made, were simply given no weight. The country information was simply not significant to the decision made. See, in particular, the references at court book, pages 134 (the document fraud reference), 135 to 136 (the findings on the applicant’s credibility), 137 (the findings on the supporting documents – particularly the no weight reference at 137.7), 137.9 to 138 (the summary of conclusions – no reference to the document fraud information).
It follows that if the RRT inferred that the country information relating to the prevalence of document fraud in Bangladesh was not put to the applicant (about which the respondent makes no concession), then it would be satisfied that there was no denial of natural justice in the event.
The applicant is concerned that the RRT did not accept the accuracy of a newspaper article he presented which, on its face, describes a visit to his home in Bangladesh by some terrorists who demanded money and threatened him and his family.
It does not appear to me, on the basis of the English language translation of that article on page 95 of the court book, that the article on its face establishes any connection between what appears to have been a criminal act and the applicant's claims of political persecution. However, the RRT did not get to the stage of analysing in detail what might have been the significance of the article if it had been true. The presiding member rejected in totality the claims of political persecution made by the applicant. The presiding member considered in some detail those claims but found them to be totally lacking in credibility.
The RRT also had regard to country information on the subject of document fraud in Bangladesh. It is not apparent from the court book that the applicant was given an opportunity to comment upon that country information. There is no concession on that issue by the Minister but it is open to me to infer from the record of the RRT proceedings that the applicant did not have that opportunity.
If he did not have that opportunity, I am satisfied that no jurisdictional error results. There would be a jurisdictional error if the RRT had based its decision upon country information about document fraud that the applicant had not had the opportunity to comment on. However, this is not a case where the applicant had made claims which were otherwise plausible but which were rejected on the basis of country information. This was not a case in which the RRT had any doubt about the credibility of the applicant's claims.
The RRT member found in the clearest possible terms that the claims were not credible based upon the analysis by the RRT of them. The only effect of the country information on document fraud was to confirm the view the RRT had already adopted. In those circumstances and consistently with my decision in NAOP v Minister for Immigration procedural fairness did not require that the applicant be given an opportunity to comment upon the country information.
The applicant also asserts that the RRT failed to take into account all the material facts of his claim. This is dealt with in paragraphs 12 and 13 of Ms Jagot's submissions. I agree with and adopt those paragraphs for the purposes of this judgment:
The applicant has not identified any material claim that the RRT failed to consider. In the affidavit in support of the application, the applicant referred to the RRT not taking into consideration the possibility of the applicant being persecuted by the Awami League. However, that matter was central to the RRT’s assessment of the application and was plainly taken into account. The RRT found the applicant to be untruthful and to have fabricated his claims to be a member of the Freedom party and a target of political persecution by the Awami League.
The RRT was entitled to make the factual findings that it made in respect of the applicant’s membership of the Freedom party and any actual or foreseeable persecution of the applicant by the Awami League. That process of consideration, evaluation and conclusion discloses no error of law.
It is clear from the court book that the RRT did take into account all of the applicant's claims but rejected them. The conclusions reached by the RRT were reasonably open to it on the basis of the material before it.
The only other ground of review advanced is one of bias. There is nothing in the record of the RRT proceedings which gives me any cause for concern on the question of bias. I reject that ground. There is no jurisdictional error in the decision of the RRT.
Accordingly, the decision is a privative clause decision. I must dismiss the application.
On the question of costs, the applicant having been wholly unsuccessful, Ms Jagot submits that I should make an order for costs fixed in the sum of $4,500 on a party-party basis. This was a matter of no more than average complexity. An order for costs at the rate of $4,500 would fall at the high end of the range of costs that I have allowed in such cases. In this matter, in my view, an order for costs in the sum of $3,500 would be adequate recompense to the Minister.
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 fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 February 2004
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