NARH v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1212

FEDERAL COURT OF AUSTRALIA

NARH v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1212

NARH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 668 OF 2003

STONE J
29 OCTOBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 668 OF 2003

BETWEEN:	NARH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	29 OCTOBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed with costs including any reserved costs. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 668 OF 2003

BETWEEN:	NARH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	29 OCTOBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh who arrived in Australia on 2 March 2001.  On 11 April 2001 the applicant applied, under the Migration Act 1958 (Cth) (‘Migration Act’), for a protection (class XA) visa. On 29 October 2001 a delegate of the respondent refused that application. The applicant sought review of that decision by the Refugee Review Tribunal (‘Tribunal’) which, on 15 May 2003, affirmed the delegate’s decision not to grant the applicant a protection visa. The applicant now seeks review of the Tribunal’s decision under s 39B of the Judiciary Act 1903 (Cth).

2. This matter was originally listed for hearing before me at 10.15 am on Monday, 13 October 2003.  At 2.45 pm on Friday, 10 October 2003 the Court received an application for adjournment of the hearing on the basis of the applicant’s ill health.  The medical certificate submitted in support of this application was uninformative and, in any event, covered a period ending before the date scheduled for the hearing.  The applicant was told that he should attend Court, if for nothing more than the adjournment application.  Nevertheless, when, on Monday morning, the applicant informed the Court that he was too ill even to attend for that purpose, bearing in mind that the applicant was not legally represented, I adjourned the hearing to 10.15 am today.  The applicant again did not appear and there has been no communication or explanation from him.  In the circumstances I have decided to proceed with the hearing in the applicant’s absence.  I have been assisted by detailed written submissions filed by counsel for the respondent.  The applicant has not provided any written submissions. 

   THE GROUNDS FOR REVIEW

3. The grounds for review are expressed in the application as follows:

   ‘1.The decision of the Tribunal involved a jurisdictional error of law being an error of law involving an incorrect interpretation of the applicable law to the fact of the case was found in the decision. 

   2.The Tribunal failed to take relevant consideration into account in exercising its power to determine the applicant as a refugee. 

   3.The Tribunal member refused to accept that the applicant has a well-founded fear of persecution on Convention reasons. 

   4.The Tribunal decision was unjust and was made without taking into account the full gravity of the applicant’s circumstances and the consequences of the claim.  The decision by the Tribunal is not justifiable by the evidences used in the decision. 

   5.The applicant was a member of Ahamedi Sect. of Muslim which is subject to oppression by the mainstream Sunni Muslim community.  The Tribunal did not consider the applicant as a member of this community without any evidentiary proof. 

   6.The Tribunal made a number of errors to decide the fate of the applicant’s claim.  It is greatly affected the applicant to ensure justice.’

   THE APPLICANT’S CLAIMS

4. The applicant is an unmarried Bangladeshi citizen who was born in the Bargun district in Barisal division in 1977.  He left Bangladesh on a valid passport and came to Australia without any difficulty.  He claims to fear persecution in Bangladesh because of his involvement with the Bangladesh National Party (‘BNP’), his membership of a minority religious group (Ahmadi) and his active support for a women’s liberation group. 

5. In his application to the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’) the applicant detailed claims of his involvement with the BNP, including attendance at several rallies, some of which he organised.  He claims to have had a finger cut off defending himself against an attack by members of Satra Shibbir and that his father (who from 1991 to 1997 was president of a BNP branch in Barguna) was assassinated by Awami League supporters in November 1997.  The applicant gave details of three occasions on which he has been arrested and briefly detained, allegedly for involvement with the BNP.  The applicant based his claim to be entitled to a protection visa upon his fear that if he returns to Bangladesh he will be persecuted (and possibly killed) by the police and/or fundamentalist Muslim groups, for reason of his political and religious beliefs. 

   THE TRIBUNAL’S REASONS AND DECISION

6. The history of the applicant’s hearing before the Tribunal is not unlike that before this Court.  The hearing was originally scheduled for 22 April 2003.  On 16 April 2003 the applicant requested an adjournment of the Tribunal hearing due to his ill health.  The Tribunal agreed and rescheduled the hearing for 15 May 2003.  On 29 April 2003 the applicant requested a further postponement on the basis that an important witness who he planned to call would not be able to attend the Tribunal on 15 May 2003.  The Tribunal declined this further request. 

7. The Tribunal considered the claims of the applicant and decided that he had either exaggerated or fabricated most of them.  In its reasons for decision the Tribunal articulated ‘three good sets of reasons for concluding that the applicant has no real chance of persecution for a convention reason if returned to Bangladesh’ (original emphasis). 

   ‘First, the applicant has failed, to a quite astonishing degree, to provide support or credible support for the key claims in his April 2201 submission to DIMIA and later changed some claims or added to them in a way that was not credible. 
   …
   Second, the applicant’s behaviour in Bangladesh and Australia undercuts his claims fatally. 
   …
   Third, the country information on the matters raised in this case does not support the picture which the applicant has painted.’  (original emphasis)

8. In relation to its first set of reasons the Tribunal noted that the applicant had at least seven opportunities (over 26 months) to provide credible evidence in support of his claims and that he had not availed himself of any of them.  The Tribunal commented that:

   ‘The failure of the applicant to supply such material is all the more damning against the background of the fact that he was informed three times that his case to date was not convincing (in the DIMIA letter of July 2001, the DIMIA decision record of October 2001 and the RRT letter of 5 March 2003)’. 

9. The Tribunal also noted that the applicant had changed, added to or disavowed certain of his claims at the hearing before it and, in particular, that he had disavowed his claim that he was a member of a women’s liberation group.  The Tribunal was particularly sceptical about the applicant’s claims that he is an Ahmadi and commented on the unreliability of his supporting witnesses and the applicant’s ‘limited knowledge and dedication to his claimed religious community’.  It also dismissed the applicant’s documentary evidence as of no weight.  The Tribunal noted that it had been 17 months since the BNP came to power in Bangladesh.  While the Tribunal accepted as credible the applicant’s claim to be a student member of the BNP it was not convinced that he was Ahmadi, nor that he would be persecuted in Bangladesh either as a member of the BNP or as an Ahmadi. 

10. In relation to its second set of reasons the Tribunal commented that the applicant had, in the 18 years before coming to Australia, lived in just two districts in Bangladesh and that for the last eight of those years he had resided in the Barisal district, where he lived and worked.  The Tribunal noted that it was only in these two districts that the applicant claimed to have a profile and found that, if the applicant’s claims were true, he could be expected to relocate to one of the 62 other districts within Bangladesh.  The Tribunal also said:

    ‘There are other matters which lead me to conclude that he was not wanted and did not feel in danger: the brevity of the three claimed detentions… the fact that he had his passport renewed in September 2000 without difficulty… the fact that he did not use it until six months later; the fact that he obtained his Australian visa in January 2001 but did not use it until five weeks later; the fact that he was able to depart Bangladesh without impediment while using the passport in his own name; the fact that he did not apply for a protection visa until he had been here six weeks;  the fact that he did not reply to the DIMIA letter of July 2001; the failure to provide promised or requested material.’ 

11. In relation to its third set of reasons the Tribunal referred to country information which indicated that the political party the applicant claims to support is now in power and that persecution of Ahmadis was never as severe as the applicant claims.  Further, such persecution of Ahmadis as there was had significantly eased since the BNP came to power. 

12. It is fairly clear from the above summary of the Tribunal’s reasons that it essentially treated the decision as turning on questions of fact.  The Tribunal found against the applicant on those questions of fact and concluded that, having considered the evidence as a whole, it was not satisfied that the applicant is a person to whom Australia owes protection obligations.  Accordingly, the Tribunal dismissed the application for review of the delegate’s decision not to grant the applicant a protection visa. 

13. Although the applicant’s grounds for review suggest some errors by the Tribunal which,  if substantiated, would enliven this Court’s jurisdiction to grant relief,  I am satisfied, having carefully considered the Tribunal’s reasons, that the decision is not vitiated by jurisdictional or other legal error, nor by a lack of good faith.  Irrespective of whether the Court agrees or disagrees with the Tribunal’s findings of fact where, as here, those findings are open to the Tribunal the Court does not have jurisdiction to review the Tribunal’s decision on the merits. 

14. In the circumstances the application must be dismissed with costs including reserved costs. 

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             29 October 2003

Counsel for the Applicant:	There was no appearance by the applicant.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	29 October 2003
Date of Judgment:	29 October 2003