NAPH v Minister for Immigration
[2002] FMCA 290
•11 November 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAPH v MINISTER FOR IMMIGRATION | [2002] FMCA 290 |
| MIGRATION – Review of decision of RRT – applicant failed to satisfy Tribunal of genuiness of his well founded fear of persecution – no evidence of bias – no conduct which would provide ground for review under s.39B Judiciary Act. |
Migration Act 1958 (Cth) s.474
Judiciary Act 1903 (Cth) s.39B
NAAV v Minister for Immigration [2002] FCAFC 228
Zahid Minister for Immigration [2002] FCA 1108
Minister for Immigration v Eshetsu (1999) 197 CLR 611
| Applicant: | NAPH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 762 of 2002 |
| Delivered on: | 11 November 2002 |
| Delivered at: | Sydney |
| Hearing Date: | 11 November 2002 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr R Bromwich |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 762 of 2002
| NAPH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
The applicant in this matter is a citizen of Bangladesh who arrived in Australia on 10 November 1999 on a Malaysian passport. On
8 December 1999 he lodged an application for protection (class XA) visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958.
On 10 February 2000 a Delegate of the Minister refused to grant a protection visa, and on 6 March 2000 the applicant applied for review of that decision. The review was carried out in May 2002 and a decision was made on 30 May 2002 and handed down on 25 June 2002. It is in respect of that decision that the applicant seeks review from this Court.
The applicant provided to the Tribunal and to the Delegate a considerable amount of written information purporting to establish his identity, his political affiliations, and the reasons for his well-founded fear of persecution for Convention reasons. These documents are reproduced in the Court Book between CB [60] and [82]. The applicant claimed to be politically active in the Jatiya Party before he left Bangladesh. He claimed to have been arrested, he claimed to have been shot at, and he claimed that there was a warrant out for his arrest if he should ever return to Bangladesh.
The Tribunal examined all of these allegations. It considered all of the documents. It noted the existence of country information claiming that the production of false documents was rife in Bangladesh. The Tribunal noted that the responses given by the applicant to questions put to him was vague and lacking in detail. In the end the Tribunal came to the conclusion that it could not accept any of the story put to it by the applicant, save the possibility that he was indeed a Bangladeshi citizen.
The Tribunal came to the conclusion that the documents were in all probability created for the purposes of strengthening the applicant's claim, and it was unlikely that he had ever been a member of the Ershad JP faction of the Jatiya party.
The applicant claims, as he must do, that the Tribunal came to its decision in a manner which lacked bona fides, but he did not particularise these submissions in the written document which he produced to the Court. He quotes appropriately from the judgment of von Doussa J in NAAV v Ministerfor Immigration [2002] FCA FC228 at [674] but does not indicate how he brings the Tribunal which heard his case within von Doussa J’s criteria.
The applicant also makes reference to a decision of Sackville J in Zahid v Minister for Immigration [2002] FCA1108, where his Honour reviewed the decision in NAAV and explained it. Once again the applicant has not made any submissions as to how his case falls within the grounds of review which, French J considered in NAAV supra at [535], and which were referred to by Sackville J in Zahid.
The applicant says that the Tribunal did not make its decision in good faith because it denied the authenticity of his documents and did not believe his allegations of ill treatment by political opponents. It is the prime responsibility of the Tribunal to make these decisions on fact and to come to a conclusion as to whether or not it believes a particular applicant.
Provided that it carries out that task in a bona fide manner the Tribunal is protected by section 474 of the Migration Act from what were previously reviewable errors. Its powers are now widened so that such errors are no longer a cause for review. I have considered the whole of the decision of the Tribunal. To my mind, the conclusions which it has drawn are conclusions which were open to it on the facts and I would be unable to find error under section 39B of the Judiciary Act in any event.
The final point made by the applicant is that a breach occurred of s.420(2)(b) of the Migration Act which states that:
“The Tribunal, in carrying out its functions under this Act, is to pursue the object of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal in reviewing a decision:
a)is not bound by technicalities, legal forms or rules of evidence; and
b)must act according to substantial justice and the merits of the case is a controlling procedure.”
The High Court has already given its views on that matter in Minister v Eshetsu (1999) 197 CLR 611, particularly at 628. Their Honours are of the view that this section is merely facilitative and not restrictive. To my mind, the Tribunal in this case has acted in compliance with that section in any event.
In those circumstances, I am unable to find any lack of bona fides and therefore the applicant’s request for review must fail. I dismiss the application. I order that the applicant shall pay the respondent's costs, which I assess pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $4,000.00.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM
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