NAPW v Minister for Immigration

[2004] FMCA 346

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAPW v MINISTER FOR IMMIGRATION [2004] FMCA 346

MIGRATION – Application for review of Refugee Review Tribunal decision – – credibility – whether substance of independent information put to applicant – no jurisdictional error.

Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
VHAP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82
Applicant A376/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1498
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 179 ALR 389
Kopalapillai v Minister for Immigration& Multicultural Affairs (1998) 86 FCR 547

Applicant: NAPW

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1340 of 2003

Delivered on: 3 May 2004

Delivered at: Sydney

Hearing date: 3 May 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

1. That the application is dismissed.

2. That the Applicant pay the Respondent's costs set in the amount of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1340 of 2003

NAPW

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) which was handed down on 24 April 2003 refusing to grant the applicant a Protection Visa.  The applicant is a citizen of Bangladesh.  He last arrived in Australia on 18 November 2000 having visited Australia several times since late 1998.  He applied for a Protection Visa on 11 December 2000.  He claimed to fear persecution in Bangladesh for reason of his political opinion and religion as a Hindu and as an active member of the Jatiya Party. 

2. He claimed that members of the rival Awami League had targeted him and his family.  He claimed to have been the victim of an assault on

   
   

   1 August 1998 and that the police had raided his house a number of times only to arrest him.  He also claimed that as a member of the Hindu minority he would face persecution by Muslims in the event of his return to Bangladesh. 

3. On 28 February 2001 a delegate of the respondent refused to grant a protection visa and on 15 March 2001 the applicant applied to the Tribunal for a review of that decision.  On 9 August 2002 the Tribunal wrote to the applicant advising him that it had considered the material before it and was unable to make a decision in his favour on that information alone.  It invited him to attend a hearing which he did. 

4. The applicant's adviser also lodged written submissions and a large number of documents with the Tribunal.  In a written submission of

   
   

   12 September 2002 the adviser addressed at length both issues and independent information referred to or relied upon in the reasons of the delegate of the respondent. 

5. The Tribunal was not satisfied that the applicant’s claim that he was attacked and seriously injured in August 1998 was true.  It was satisfied that, as his passport indicated, he was in India at the time that he claimed to have been attacked.  The Tribunal had put to the applicant that he was out of the country at the time of the attack.  He stated that someone else had used his passport to go to India.  The Tribunal rejected this explanation and concluded that it was a fabrication to explain away a problem with the applicant’s claim and a deliberate attempt to mislead the Tribunal.  The Tribunal found that the applicant's attempt to mislead the Tribunal cast considerable doubts on his credibility and, in addition, that his evidence was generally unconvincing and that he seemed prepared to adjust the evidence to fit any new information. 

6. The Tribunal accepted that the applicant was a Bangladeshi national and a Hindu.  The Tribunal was not satisfied that the applicant had a well-founded fear of being attacked and harmed or possibly killed by Awami League thugs because they feared that he and his family might persuade many Hindus to support the Jatiya Party.  Even if the applicant and his family were Jatiya Party supporters, the Tribunal was not satisfied that the Awami League would have any interest in harming him or that the authorities would be unable or unwilling to protect him.  It had regard to evidence that the current BNP-led Government did not have any record of oppressing Jatiya Party supporters. 

7. The Tribunal also considered the applicant's claim that there were outstanding cases issued against him involving serious charges.  It was not satisfied that there were any such outstanding charges against the applicant.  The Tribunal had regard to the fact that the applicant was able to leave Bangladesh on his own passport indicating that the police had no immediate interest in arresting or detaining him.  Even if there were such charges it was not satisfied that the BNP-led Government would pursue false charges laid by the Awami League Government against the applicant, nor based on independent information in relation to the judiciary, was it satisfied that the applicant would be denied a fair trial on any charges that he may face. 

8. The Tribunal accepted information from the applicant in relation to the suffering of Hindus in India, increased harassment and harm from fundamentalist Muslims, a lessening of the general level of religious tolerance and evidence of some attacks on Hindus and outbreaks of communal violence involving a small proportion of the large Hindu community in Bangladesh.  However the Tribunal concluded that independent evidence in relation to the situation of the many millions of Hindus in Bangladesh did not establish that there was any real chance that the applicant would be persecuted as a Hindu by Muslims wanting Hindus to leave the country as claimed. 

9. In the application for review filed 19 May 2003 the applicant relied on a number of grounds.  He has not filed written submissions and in the hearing today he sought to re-agitate the facts or findings of the Tribunal.  He did not know how the Tribunal came to the conclusion that it did and he did not agree with the way that it reviewed his claims.  He suggested that if anyone made proper inquiries they would find that he had been telling the truth. 

10. Factual findings are a matter for the Tribunal and, in so far as the applicant seeks merits review, that is not available in this Court.  The Tribunal decision turned on findings of fact made by it, in particular in relation to the credibility of the applicant and his evidence.  It did not believe the applicant and rejected his claims.  Such credibility findings and factual findings were open to the Tribunal on the material before it.  Credibility is a matter for the Tribunal par excellence - Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407. The findings were open to the Tribunal on the material before it and no error is identified in that respect. (Kopalapillai v Minister for Immigration (1998) 86 FCR 547)

11. Insofar as the applicant is suggesting the Tribunal should have made further investigations, it is for the applicant to establish his case and there is nothing in the material before me to suggest that the Tribunal either undertook or was under an obligation to make further inquiries in this particular instance. 

12. The applicant also claimed that the Tribunal asked him again and again whether his story was true.  The Tribunal has an inquisitorial role and it is appropriate in a hearing that it put to the applicant the critical issues and concerns it has with his claims.  No error is apparent in the matters raised by the applicant. 

13. As to the grounds raised in his application: the applicant claimed first that the Tribunal failed to identify the issues of the case, particularly what was his fear on return to his homeland.  The Tribunal correctly identified the relevant issues in this case and asked itself the correct question, namely, whether or not it was satisfied that the applicant had a well-founded fear of persecution in Bangladesh by reason of his political opinion or religion.  It did address the applicant's fears in relation to the future both generally and in relation to the specific claims in relation to false charges as well as his claimed general fear of persecution as a Hindu and because of loyalty to the Jatiya Party, and it had regard to the changes in Bangladesh since the applicant had left the country. 

14. The second ground relied on was that the procedures under the Migration Act, in particular section 430, were not observed.  The applicant claimed that the Tribunal failed to recognise the connection between the applicant's father being a great freedom fighter and a priest in the local temple and the family becoming a target of oppression after the 2001 election.  It has not been established that there has been any failure to comply with section 430 of the Act.  (I note in this respect that if the Tribunal had failed to comply with section 430 that would not amount to jurisdictional error - MIMA v Yusuf (2001) 206 CLR 323). The Tribunal considered the applicant’s claim about the influence of his family in rejecting the claim that the Awami League would want to harm him because they feared he and his family might persuade many Hindus to support the Jatiya Party.

15. The third ground relied upon by the applicant was that the Tribunal made a jurisdictional error in accepting that Hindus in Bangladesh had been suffering increased harassment and harm from fundamentalist Muslims and that the new government had lessened the general level of religious tolerance that had prevailed in Bangladesh but in not accepting that the applicant's family became victims of atrocities sponsored by the government.  This also appears to be a challenge to the factual findings of the Tribunal.  The Tribunal considered and rejected the applicant’s claim to have been attacked in August 1998.  No jurisdictional error is apparent in this respect or in its consideration of the applicant’s claims about the future.

16. The fourth ground raised by the applicant took issue with the Tribunal's failure to accept the applicant's claim and also an alleged failure to provide him with an opportunity to comment on materials on which the Tribunal relied.  It alleged a denial of procedural fairness.  No lack of procedural fairness is established in this case.  The Tribunal reasons for decision indicate that information specifically about the applicant that was significant to its findings was put to him for comment during the hearing, in particular in relation to his travel movements at the time of the planned assault.  The Tribunal also refers in its reasons for decision to country information in relation to the situation in Bangladesh which is not specifically about the applicant.  On the authority of VHAP v MIMIA [2004] FCAFC 82, such general country information is within subsection (3) of section 424A. There was no novelty or surprise in the Tribunal's reliance on such information. The reasons of the Tribunal identify the country information it relied on. The decision does not turn significantly on findings based on particular country information that was either not obvious or not already disclosed, having been referred to in the delegate's decision and, importantly, having been addressed specifically in the written submissions of the applicant's adviser of 12 September 2002.

17. In particular, the applicant's adviser addressed the issue of the independence of the judiciary and the current political situation in Bangladesh.  Furthermore, there is no information before the court as to what the applicant would have done if he had known that the Tribunal intended to use information which was not put to him if there were such information.  The applicant has not identified any particular information relied upon and not put to him.  (See VHAP at [16] to [17] and Applicant A376/2002 v MIMIA [2003] FCA 1498 at [35] to [38] in which the failure of an applicant to tender any evidence about what was put or not put to him in the course of a Tribunal hearing meant that a similar ground failed). I have considered generally whether the material before me reveals any lack of procedural fairness or other jurisdictional error. No such error is apparent.

18. The fifth ground relied upon was that the Tribunal used country information from the Department of Foreign Affairs and Trade in relation to the country situation and that such material was biased.  There is no substance to this contention.  It was for the applicant to put to the Tribunal other information if he wished to do so.  Further, while the ground is expressed in terms of biased information, there is nothing in the material before me to suggest either actual or apprehended bias on the part of the Tribunal.  Moreover the case was decided not merely on the basis of country information but also on the Tribunal view in relation to the credibility and plausibility of the applicant based on his evidence and past events.  The applicant also claimed that there was no material to justify the decision. This is not established.  The findings of fact made by the Tribunal were open to it on the material before it. The applicant provides no particulars of how it was alleged that the decision was an improper exercise of power and this is not established. 

19. The applicant also claimed that the Tribunal assessed his case only as a member of the Jatiya Party and failed to consider him as a member of a particular social group.  The applicant claimed, and the adviser's written submissions repeated, that he claimed to fear persecution on the basis of religion and political opinion.  No reference is made to membership of a particular social group.  While a Tribunal is obliged to consider such a claim, albeit not put in those terms, if it is raised on the material before it, in this instance there was nothing in what the applicant put before the Tribunal that required it to consider such a claim:  Dranichnikov v MIMA (2003) 179 ALR 389.

20. Finally, the applicant claimed that the Tribunal failed to accord him substantial justice. Such a claim does not establish any jurisdictional error.  As indicated above no denial of procedural fairness is apparent on the material before me.  As no jurisdictional error has been established the application must be dismissed.  

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful. It is appropriate that he meet the respondent's costs. Bearing in mind the nature of this and other similar matters, I consider than an amount of $4,500 is appropriate and that costs should be set under the Federal Magistrates Court Rules.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  1 June 2004