NARS v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1005

FEDERAL COURT OF AUSTRALIA

NARS v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1005

MIGRATION – no point of principle.

Migration Act 1958 (Cth)

NARS V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 696 OF 2003

BEAUMONT J
19 SEPTEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 696 OF 2003

BETWEEN:	NARS APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	19 SEPTEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed, with 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 696 OF 2003

BETWEEN:	NARS APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BEAUMONT J
DATE:	19 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

1. The applicant, a citizen of Bangladesh, seeks to set aside a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 22 May 2003, being a decision to affirm a decision by the Minister’s delegate made on 21 June 2001 to refuse the applicant a protection visa.

2. The applicant appeared before the Court without representation, although he appears to have had some expert assistance.

3. The claims made by the applicant in support of his application for a protection visa are his fear of harm in Bangladesh from members of the Awami League (“AL”) and the Jatiya Party for reasons of his political activities and association with the Bangladeshi Nationalist Party (“BNP”).  He claimed that he was a political youth leader with the BNP and that AL members had ransacked and looted his business, harassed and physically attacked him and his family and made threats to kill him.  He claimed the (then) AL government would not provide protection.

4. The applicant lodged an application for review to the Tribunal on 30 June 2001.  Although he wrote that a submission from his adviser would be provided, nothing was ever received by the Tribunal.

5. On 24 December 2002, the Tribunal wrote to the applicant telling him that it was unable to make a favourable decision on the papers and inviting him to a hearing.

6. In a completed response to a hearing form dated 13 January 2003, the applicant indicated that he wanted to attend a hearing before the Tribunal but he did not appear.  Neither the applicant nor his adviser provided any explanation for the non-attendance.  Nor did the Tribunal receive any further correspondence from him.  In these circumstances, the Tribunal proceeded to a decision on the review without taking any further action to enable the applicant to appear before it.  In my view, there was no procedural unfairness or other jurisdictional error in the Tribunal’s actions.

7. The Tribunal found that the applicant’s failure to provide promised additional material and supporting documentary evidence, and his failure to address the concerns raised by the delegate and to appear at his hearing before the Tribunal, raised doubts about the veracity of his key claims.

8. The Tribunal further found that the applicant’s claimed incidents of harm lacked important details and information, such as whether there were any witnesses, whether the events were reported to the police and what action, if any, was taken.

9. Moreover, the Tribunal cited accepted independent country information which indicated that the applicant’s party (the BNP) was now in government with a large majority and would operate to protect its citizens from the actions of violent elements of the AL.

10. Accordingly, the Tribunal decided that Australia did not owe the applicant protection obligations because the Tribunal was unable to be satisfied on the evidence before it that he had a well-founded fear of persecution.

11. There is no supporting affidavit to the application, but the application for judicial review relies upon the following grounds:

    ‘1.The RRT decision puts me in jeopardy of being forced to return to Bangladesh where I will be persecuted and even could be killed by the ultranationalists and political thugs of Awami League.  The Tribunal has ignored the merits of my claim and did not act in good faith in regards to the claim.’

12. In my opinion, this assertion cannot constitute a basis for judicial review.

    ‘2.       I was deprived of natural justice.’

13. In my view, there is no substance in this contention.

    ‘3.The tribunal fails to consider the claim in the light of current socio-political situation of Bangladesh, therefore, I trust the Tribunal has not acted in accordance with the provisions of the United Nations Convention 1951 which was amended by the 1967 protocol relating to the status of refugees where Australia itself is a party.’

14. In my opinion, no basis for judicial review exists on this submission.

    ‘4.The procedures that were required by the Act and Regulations to be observed in connection with the making of the decision were not observed.’

15. In my view, there is no substance in this assertion.

    ‘5.I believe the decision from the RRT involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the tribunal.’

16. Again, in my view, these submissions cannot provide any basis for judicial review here.

17. Accordingly, the application will be dismissed, with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated:             24 September 2003

Solicitor for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	18 and 19 September 2003
Date of Judgment:	19 September 2003