NAPF v Minister for Immigration - [2004] FMCA 399

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAPF v MINISTER FOR IMMIGRATION

[2004] FMCA 399

MIGRATION – Application for review of decision of Refugee Review Tribunal – whether Tribunal properly applied ‘real chance’ test – whether Tribunal failed to consider applicant’s claim.

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Randahawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration & Multicultural & Indigenous Affairs v Wu Shan Liang (1996) 185 CLR 259
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
Minister for Immigration & Multicultural & Indigenous Affairs v JiaLe Geng (2001) 205 CLR 507
Minister for Immigration & Multicultural & Indigenous Affairs v Thiyagarajah (2000) 199 CLR 343

Applicant:

NAPF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1247 of 2003

Delivered on:

19 March 2004

Delivered at:

Sydney

Hearing date:

19 March 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application is dismissed.
That the Applicant pay the Respondent’s costs set in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1247 of 2003

NAPF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) which the Tribunal handed down on 11 April 2003 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.
The applicant applied for the visa on 2 August 2001. On 10 October 2001 the delegate wrote to the applicant providing information which was adverse to his claims for comment. The applicant did not respond. The delegate's decision refusing the visa was made on 23 November 2001. The applicant applied to the Tribunal for review on 28 November 2001. His migration agent provided a written submission to the Tribunal on 4 March 2003. The Tribunal invited the applicant to a hearing which he attended on 19 March 2003.
The applicant claimed to fear persecution by reason of his political opinion or membership of a particular social group in Bangladesh arising from a claim to have been involved in the founding and activities of the Sirajdikhan Humanitarian Organisation. This was described by the applicant as a secular humanitarian organisation founded in January 1990 which comprised nine friends who were committed to social activities and wanted to improve the situation in their village. He claimed that their goal was to encourage women to cast votes properly, and to stop child marriages and polygamy.
The organisation was not formally established or registered. The applicant claimed that the local Muslim Fundamentalists opposed the organisation and that he was threatened and attacked as a result. He claimed that one of the group retaliated and was killed by the Fundamentalists. The others went to the police but no attention was paid to them. He claimed that he was constantly harassed and that on 5 May 1990 he left Bangladesh for the Middle East. The organisation closed down at the end of May 1990. In mid 2001 the applicant returned briefly to Bangladesh for some 12 days before coming to Australia. He arrived in Australia on 13 July 2001. The applicant claimed to fear further harm from Muslim Fundamentalists if he returned to Bangladesh.
The Tribunal accepted the applicant's claims as to his involvement in the Sirajdikhan organisation founded in January 1990, that the organisation intended to undertake reforms, that he and his friends were warned not to pursue this agenda and that the applicant was hit in an altercation that led to one of his friends, (who broke the leg of an opponent) being killed in the ensuing melee. The Tribunal had regard to a number of factors, including that the applicant did not claim that after this incident he or his friends were detained, tortured, imprisoned or charged with any offences or that he was wanted by the police for questioning, that he had not had any difficulty leaving Bangladesh in May 1990 on his own passport issued in his name, or in or leaving Bangladesh some 11 years later or during the time that he was there.
The Tribunal found that the difficulties the members of the organisation had experienced occurred some 13 years earlier and that while the applicant claimed that one of the members had gone to another part of Bangladesh, it was not claimed that the others had left the village or experienced any difficulties, harassment, discrimination or serious harm. The Tribunal accepted that for a few months some 13 years ago the applicant was one of a group of nine people that developed what may have been seen as a reformist agenda that ran into community opposition from certain quarters within his local village. However, based on the claims made by the applicant, the Tribunal was not satisfied that the treatment he received was serious harm amounting to persecution or that it was for a Convention reason. Nor was the Tribunal able to satisfy itself that some 13 years later when most of his friends had apparently remained in the village without difficulty, there was a real chance that the applicant would experience serious harm amounting to persecution for a Convention reason if he returned to Bangladesh either now or in the foreseeable future.
Notwithstanding that finding, the Tribunal went on to consider whether it would be reasonable for the applicant to relocate to another part of Bangladesh. It had regard to the applicant's personal situation, his language ability and his lengthy employment in the Middle East and to the fact that the friend involved in the organisation who had moved elsewhere in Bangladesh was not said to have any difficulties.
At the hearing the Tribunal had asked the applicant why he could not live elsewhere in Bangladesh. He replied that he did not consider it safe. He did not elaborate on that answer despite being given the opportunity to do so. He did not claim the difficulties he had experienced were at anything other than the local village level or that anyone such as Fundamentalists was actively looking for him or would track him down or be able to do so wherever he went in Bangladesh. The Tribunal concluded that it would be entirely safe and reasonable for the applicant to live elsewhere in Bangladesh if he chose to do so and found any subjective fear he may have was not a well founded fear of serious harm amounting to persecution for a Convention reason.
In his application for review the applicant relied on a number of grounds. First, he claimed that he would be persecuted on return to Bangladesh. This is a disagreement with the merits of the Tribunal decision and does not establish jurisdictional error.
He claimed the Tribunal ignored the merits of the claim and did not act in good faith. He also claimed that he was deprived of natural justice. The Tribunal reasons for decision make it clear that the applicant was unsuccessful because of the view the Tribunal took of the facts. It found that at the date of the decision the applicant’s fears were not well founded. The Tribunal correctly applied the principles in Chan v MIMIA (1989) 169 CLR 379 and went on to consider the reasonableness of relocation in accordance with Randhawa v MILGEA (1994) 52 FCR 437. The Court cannot review the merits of the Tribunal's decision: MIMIA v Wu Shan Liang (1996) 185 CLR 259.
There is nothing in the material before me that establishes a lack of good faith or a denial of natural justice whether constituted by actual or apprehended bias or otherwise. The applicant did not seek to tender a transcript of the hearing nor does he specifically complain of events in the hearing except in one respect to which I return. His complaint in his written submissions is that the Tribunal was influenced by prejudice and as such he was deprived of natural justice. A person who alleges lack of good faith or bias has a heavy burden. Actual bias is rarely demonstrated solely on the published reasons of the Tribunal: SBBS v MIMIA [2002] FCAFC 361. There is nothing in material before the Court to suggest that the Tribunal had formed a prejudgment or was in any way dishonest in its task or reckless. Nor is there anything to suggest that there is any real likelihood that a reasonable observer might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to resolution of the application: MIMIA v JiaLe Geng (2001) 205 CLR 507. The Tribunal properly considered and indeed accepted the applicant's claims in relation to the events of 13 years ago.
It was also claimed that the Tribunal failed to consider the applicant’s claim in the light of the current socio-political situation in Bangladesh. In the written submissions the applicant set out information and made submissions in relation to the current situation in Bangladesh. However, this is not a re-hearing. It is for the Tribunal to make the determination on the material before it at the time of the decision: MIMIA v Thiyagarajah (2000) 199 CLR 343.
Further, insofar as the applicant takes issue with the manner in which the Tribunal dealt with the question of relocation no error is apparent in the manner in which it did so. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1992) 52 FCR 437, Black CJ stated that a person’s fear of persecution in relation to a country will remain well founded with respect to the country as a whole, if as practical matter, the part of the country in which protection is available is not reasonably accessible to the person and that the practical realities facing a person must be carefully considered extending beyond physical or financial barriers. However His Honour went on to indicate that while it would ordinarily be quite wrong for a decision maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, the extent of the decision-maker’s task will be largely determined by the case sought to be made out by the applicant.
In this case, as in Randhawa, the impediments raised by the applicant or apparent on the material before the Tribunal, were addressed. The Tribunal considered the general claim that the applicant did not feel safe elsewhere in Bangladesh as well as the matters personal to him. The Tribunal also had regard to the fact that the applicant had not claimed that the events had occurred at anything other than a local level and did not claim that anyone (such as fundamentalists) was actively looking for him. No jurisdictional error is apparent in the Tribunal consideration of relocation.
There is no particularisation nor is there anything to support the claim that the procedures required by the Act and regulations were not observed.
Finally, the applicant contended that the decision involved an error of law being the incorrect interpretation of the applicable law or an incorrect application of the law to the facts. In the written submissions it is argued that the Tribunal did not properly apply the ‘real chance’ test from Chan Yee Kin v MIEA (1989) 169 CLR 379. However, this is not established. There is nothing in the material before me to suggest that the Tribunal applied some inappropriate test such as a test based on ‘probability’ as submitted by the applicant. In determining whether the applicant’s fear was well-founded it correctly considered whether there was a real chance that the applicant would be persecuted. Chan does not, however, establish that ‘no risk’ to the applicant is acceptable (in which McHugh referred to a 10 per cent chance but excluded a far-fetched possibility and Mason CJ suggested that ‘real chance’ conveys the notion of a ‘substantial, as distinct from a remote chance’ of persecution occurring and that there may be less than a 50 per cent chance of persecution).
Finally, the applicant contended in written submissions that the Tribunal made a ‘gross mistake’ in its reasons. The submissions state that the Tribunal accepted that the applicant was hit by radical Muslims but the Tribunal did not see any evidence of his detention, torture by the opponents or by the administration. It was submitted that the Tribunal made a mistake as the applicant did not anywhere in his evidence say that the administration were directly interested in him, rather that they were reluctant to offer him the required protection and ignored his appeal to them while he was assaulted and intimidated by Islamic fanatics.
However the Tribunal did not misunderstand the applicant’s claims as submitted. It correctly observed that the applicant did not claim to have been harmed by the authorities. The Tribunal did not in this particular instance need to deal explicitly with any claim that the applicant could not access State protection in Bangladesh as it was not satisfied that his fears were well founded regardless of the issue of State protection. No jurisdictional error in the manner contended by the applicant or in any other way is apparent in the Tribunal reasons or procedures. Accordingly, the application should be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. The respondent seeks costs. There is nothing in this case to suggest that it is inappropriate that the applicant should pay the Minister's costs. He claims to be unable to pay the full amount sought at one time. Impecuniosity is not a reason for not awarding costs, albeit that it may be taken into account by the Minister in the timing and manner in which it is sought to recover costs.
The amount of $4000 sought is appropriate in light of the nature of this and other similar matters.

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

Associate:

Date: 28 June 2004