NAQG v Minister for Immigration
[2004] FMCA 432
•27 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAQG & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 432 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visa. PRACTICE AND PROCEDURE – Litigation guardian – one of three applicants is a minor – circumstances justifying dispensation with the requirement for appointment of a litigation guardian. |
Migration Act 1958 (Cth)
Federal Magistrates Court Rules 2001 R. 11.08
Jones v Dunkel (1959) CLR 298
Bhardwaj v MIMIA 209 CLR 58-97
Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476
MIMIA v Landers [2003] FCA 1485
NAGO v mimia [2003] FCA1302
NAQZ of 2002 v MIMIA; NAQY of 2002 v MIMIA [2003] FCA 898
Commissioner for ACT Revenue v Alphaone Pty. Ltd (1994) 49 FCR 576
Abebe v The Commonwealth (1997) CLR 510
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) ALR 437
| First Applicant: | NAQG |
| Second Applicant: | NAQH |
| Third Applicant: | NAQI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 1244 of 2003 |
| Delivered on: | 27 February 2004 |
| Delivered at: | Sydney |
| Hearing date: | 27 February 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicants: | Mr Young |
| Counsel for the Respondent: | Mr Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The requirement for a litigation guardian to be appointed for the Third Applicant is dispensed with.
The application is dismissed
The First and Second Applicants are to pay the respondent’s costs in the sum of $4,500.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1244 of 2003
| NAQG |
First Applicant
And
| NAQH |
Second Applicant
And
| NAQI |
Third Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal (“The Tribunal”) affirming a decision of the Delegate of the Respondent not to grant protection (Class XA) visas to the applicants. The Tribunal’s decision was handed down on 24th April 2003.
The applicants’ claims for refugee status are based on those of the First Applicant, NAQG. The Second Applicant is his wife, and the Third Applicant is his daughter.
The Third Applicant, NAQI, is a child. She was born on 5th March 1991, so she is not yet 13 years of age. Although she is a party, she took no independent part in the proceedings, and her claim is dependent on that of her father. In the circumstances, I believe it is appropriate to dispense with the requirement for her to have a litigation guardian, as required by Rule 11.08.
Background
The Applicants are citizens of Bangladesh. They arrived in Australia lawfully on 16th August 2001 and applied for protection (Class XA) visas on 14th September 2001. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs made a decision to refuse their applications on 24th December 2001.
The Applicants applied for a review of that decision on 21st January 2002. In a statutory declaration lodged with the Application for Review, the First Applicant said that he feared persecution in Bangladesh because of his political background. He had been subjected to false accusations that he had been involved in bombing and robbery and said he had been served with two warrants on 29th March 2002 (which would appear to be a typing error, and the correct year should be 2001). He said that he feared detention and death if he were to be held in a detention centre whilst awaiting trial.
The First Applicant went on to say that he decided to leave Bangladesh permanently. He went to the United Kingdom on two occasions seeking residence there, but returned home to Bangladesh after receiving assurances from a high-ranking police officer in Bangladesh that the cases against him would be quashed.
On 18th February 2003 the Refugee Review Tribunal wrote to the First Applicant to invite him to attend a hearing on Wednesday 26th March 2003. The Applicants attended the hearing and the First and Second Applicants gave evidence through an interpreter, in a hearing that lasted for three hours. The Applicants called a friend to give evidence on their behalf. The friend said that the First Applicant had suffered a lot in Bangladesh.
On 24th April 2003 the Tribunal handed down its decision affirming the decision not grant protection visas to the Applicants. The Tribunal accepted that the First Applicant had been forced to make “corrupt payments” whilst he was engaged in a construction business, but noted that the business closed in 1993, 8 years before the Applicants arrived in Australia. The Tribunal also accepted that the First Applicant had been assaulted by supporters of a rival political party in 1990.
The Tribunal noted the copies of warrants for the First Applicant’s arrest that he submitted to the Tribunal, but also accepted independent country information that false official documents were readily available in Bangladesh. More importantly, as far as the Tribunal was concerned, was the fact that the First Applicant chose to return to Bangladesh on 6th February 2001 after his first visit to the United Kingdom, saying that he returned because of fighting between English people and citizens of the Indian sub-continent (presumably Indians, Pakistanis, Bangladeshis and Sri Lankans) and the person whom he knew would not give him the shelter that he sought.
The Tribunal accepted those claims, but said:
“(T)he Tribunal is satisfied that if the Applicant had a well-founded fear of serious harm amounting to persecution for a Convention reason, then he would not have been willing to return to Bangladesh and face the risk of being arrested on one of those claimed false charges and with the possibility of being killed while in detention as he claims.”[1]
[1] Court Book page 112
The Tribunal did accept that the first Applicant visited the United Kingdom again in May 2001. Again, he chose to return to Bangladesh, this time because he said that a friend knew a senior police officer in Bangladesh who undertook to take steps to withdraw or discontinue the charges against him. The Tribunal was sceptical about the circumstances, and noted that the First Applicant had been able to leave Bangladesh on three occasions in 2001 without any apparent difficulty, using his own passport, visiting the U.K twice and then coming to Australia. The Tribunal concluded:
“(T)he Tribunal has not been able to satisfy itself there are any charges outstanding for the Applicant[2] in Bangladesh, real or false, notwithstanding the claimed made by the Applicant and the claimed copies of documents that he produced, and is satisfied that he does not have a well-founded fear of persecution for a foreseeable future.”[3]
[2] ie the First Applicant
[3] Court Book p. 113
The Tribunal also went on to consider the independence of the courts in Bangladesh. The Tribunal was satisfied from the independent country evidence that the courts in Bangladesh are independent and that “they can be relied upon to fairly assess cases even if a governing party’s activist does in fact file false charges.”[4] The Tribunal was satisfied that the First Applicant could rely on the courts to deal properly with any false charges against him.
[4] Court Book page 113.
The Tribunal also commented (at page 115 of the Court Book) that the Second Applicant had claimed in the hearing that, only two or three days, before she had received a letter about one of her daughter’s friends who had been kidnapped, but would be released if the First Applicant returned to Bangladesh. The Tribunal noted that the Second Applicant produced no documentary evidence at all about that incident, and did not accept the claim.
As a result of the decision of the Refugee Review Tribunal, the Applicants made an Application to the Federal Court on 20th May 2003 for review of that decision. On 13th June 2003, Tamberlin J ordered by consent that the matter should be transferred to the Federal Magistrates Court.
The hearing
Counsel for the Applicants and the Respondents each prepared written submissions, which were very useful. I also heard oral submissions from Mr Young, for the Applicants, and Mr Lloyd, for the Respondent. I also had the advantage of having a transcript of the proceedings before the Tribunal tendered in evidence. Mr Young also said that he would file an Amended Application by the end of Wednesday
25th February, setting out the orders that the Applicants really wanted.
The applicants’ submissions
In his written submissions on behalf of the Applicant, and elaborated upon in oral argument, Mr Young of counsel summarised the Tribunal’s reasons for rejecting the Applicants’ claims as:
a)If the First Applicant feared persecution in the form of arrest and detention on false charges, he would not have returned to Bangladesh from the UK.
b)The First Applicant would not have returned to Bangladesh on a second-hand oral assurance solely on the informal advice of a third person that his problems would be fixed.
c)If the First Applicant feared persecution, he would have sought protection in the UK.
d)The First Applicant does not claim that he had to pay bribes either to get a passport or to leave or return to Bangladesh.
Mr Young submitted that the Tribunal never asked the First Applicant why he would have returned to Bangladesh and risk arrest or detention, or why he did not stay in London rather than travel to Australia. At no point, it was submitted, did the Tribunal ever suggest to the Applicants that issues about travelling to London were being considered as part of the reason to reject the First Applicant’s claim that he feared persecution.
The claim by the First Applicant that a friend of his called Kium could talk to a senior Police officer in Bangladesh who could resolve the outstanding charges against him formed an important part of the Applicants’ submission. Mr Young submitted that the evidence at page 17 of the transcript supported the proposition that the First Applicant had actually spoken to the Police officer himself.
The submission is that the Tribunal failed to address this claim, which is an important element of the Applicants’ case, and failed to give the Applicants any indication that the claim might not only be disbelieved but the First Applicant’s answer might be used as a basis to affirm the decision not to grant a protection visa. By not considering this claim, Mr Young contended, the Tribunal denied the Applicants natural justice: (NAGO v Minister for Immigration and Multicultural and Indigenous Affairs ([2003] FCA 1302).
Mr Young further submitted that the Tribunal made no inquiries about the reasons for the First Applicant not seeking protection in the United Kingdom, whilst querying why he did not stay in London.
In relation to the point in sub-paragraph 16, as to why the Tribunal drew an adverse inference from the fact that the First Applicant did not give evidence of offering any bribe to anyone to obtain a passport or to enter or leave Bangladesh, Mr Young submitted that there would be few circumstances in which a Tribunal could be entitled to draw “an administrative law equivalent of a Jones v Dunkel[5] inference” from the failure of an applicant to lead evidence on such a point. He pointed out that the review is an inquisitorial process rather than an adversarial process.
[5] (1959) 101 CLR 298
Mr Young went on to put the proposition that if the person affected by a decision is not informed of the case against him or her and given a reasonable opportunity to answer it, there is no decision under the Migration Act, citing Bhardwaj v MIMIA 209 CLR 597 and Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476. This must be considered in the context of s.425 of the Act, which requires a hearing if the Tribunal is unable to make a decision in favour of the Applicant on the basis of the documentary material before it. Mr Lloyd, for the Respondent, conceded that this was a correct statement of the law.
Mr Young also submitted an applicant’s attention must be drawn to those elements of the review relating to the issues relating to the decision under review, from the point of the Tribunal. It is unfair to decide and issue adversely to a party without putting the adverse material to the party and inviting him or her to comment (NAQZ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 898). The Tribunal must direct the applicant’s attention to the matters that the Tribunal regards as critical (Minister for Immigration and Multicultural and Indigenous Affairs v Landers [2003] FCA 1485).
In short, he submitted, if the Tribunal simply asks the applicant to explain why he or she fears persecution without indicating the matters of concern in the applicant’s case, there is no proper compliance with the provisions of s.425 of the Migration Act.
The Respondent’s submissions
Counsel for the Respondent, Mr Lloyd, commented that the Applicants’ written submissions bore no resemblance to the grounds specified in the Application and replied to the matters in the submission. He consented to the Applicants’ counsel filing a properly particularised amended application by close of business on Wednesday 25th February.
Mr Lloyd contended that the Applicants’ submissions overstated the obligations placed upon the Tribunal by the provisions of the Migration Act. He cited the decision of the High Court in
Abebe v The Commonwealth(1997) 197 CLR 510, where it was held that proceedings before the Tribunal are inquisitorial rather than adversarial, and the Tribunal is not in the position of a “contradictor” of the applicant’s case. Gummow and Hayne JJ (with whom Gaudron and Kirby JJ concurred) held:
“The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the Applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.”[6]
[6] at 576
The High Court reaffirmed that proposition in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437, pointing out that the rule in Browne v Dunn[7] has no application to proceedings before the Refugee Review Tribunal:
“The Tribunal Member is not an adversarial cross-examiner, but an inquisitor obliged to be fair. The Tribunal Member has no ‘client’, and has no ‘case’ to put against the applicant.”[8]
[7] (1893) 6 R. 67
[8] at [57]
Mr Lloyd submitted that the three cases relied on by the Applicants’ counsel, NAQZ v MIMIA (supra), MIMIA v Landers (supra), and NAGO v MIMIA (supra), did not, in fact, assist the Applicants’ case. NAQZ was a case where it was claimed there was a denial of natural justice when the Tribunal did not put to the applicants in that case a suspicion, based on adverse country information, that the documents they relied upon may have been forged, thereby denying them the opportunity to comment on this crucial point. He submitted that this is not the situation in this case, because the Tribunal’s adverse conclusions were premised upon its lack of satisfaction with the Applicant’s own evidence.
MIMIA v Landers was a case where Heerey J found that the Migration Review tribunal had erred in two ways:
a)by failing to draw the applicant’s attention to part of the statutory definition, which his Honour considered to be a denial or procedural fairness; and
b)by misleading the applicant into considering that a critical element of the statutory criteria was not a problem for him, thereby allowing the applicant to fail to address that element.
In Mr Lloyd’s submission, neither of the above issues arises in this case. I believe that this submission is correct.
NAGO is a case where Beaumont J allowed the application because the Tribunal had failed to consider one of the applicant’s claims. This does not apply here, as there is no evidence that the Tribunal failed to consider any of the applicant’s claims.
Conclusions
I am not satisfied that the Applicant has made out his case. It appears to me that the Tribunal did not accept the Applicant’s evidence on a number of matters. The Tribunal did not accept that the Applicant faced false charges in Bangladesh, and found that, even if he did, he would have little to fear because of the independence of the courts in Bangladesh. I find that there is evidence to support the Tribunal’s view.
The Tribunal did not believe that the Applicant would spend a lot of money to travel to the United Kingdom and return to Bangladesh, just on the assurance of a police officer that any charges against him would be fixed.
The Applicant himself traversed the topic of seeking protection for himself in the United Kingdom. There is no evidence that he did seek protection on either of his two visits to the United Kingdom, which leads to the inference that he did not seek protection there. It was open to the Tribunal to conclude, based on that inference, that the Applicant did not have a fear of persecution.
I believe that the application should be dismissed with costs.
I certify that the preceding thirty-five(35) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 6 July 2004
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