NATK v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1158

FEDERAL COURT OF AUSTRALIA

NATK v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1158

NATK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N835 OF 2003

EMMETT J
7 OCTOBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N835 OF 2003

BETWEEN:	NATK APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	7 OCTOBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the application be dismissed;

2.the applicant pay the respondent’s costs of the proceeding.

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	N835 OF 2003

BETWEEN:	NATK APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	7 OCTOBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 16 October 2001.  On 8 November 2001, he lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 20 February 2002, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa and, on 18 March 2002, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision.

2. On 22 May 2003, the Tribunal affirmed the delegate’s decision not to grant a protection visa. The reasons for that decision were published on 18 June 2003 and, on 14 July 2003, the applicant lodged an application to the Court for orders under s 39B of the Judiciary Act 1903 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth) in respect of the Tribunal’s decision. The application set out thirteen grounds as follows:

   ‘[1]The Tribunal erred in law amounting to jurisdictional error in finding that I do not have genuine fear of persecution for a convention reason and that I have no well founded fear of persecution within the meaning of the convention. I do not meet the criteria set out in s.36(2)of the Act of Protection visa;

   [2]The finding that I did not and does not have a genuine fear of persecution for a convention reason and the consequential satisfaction were not formed by a correct application of the applicable law hence the necessary option does not exist;

   [3]The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act;

   [4]Exceeded its jurisdiction in making its decision to affirm the First Respondent’s decision;

   [5]Constructively failed to exercise its jurisdiction in arriving its decision;

   [6]The Tribunal Member having formed certain ventilating views and did not accept me as a credible witness and rejected all my claims;

   [7]The Tribunal Member because of the ventilating views induced by bias ought not to be carried with a practical certainty of considering all the materials readily available and / or accessible and the Member continued an erroneous approach to my claims and failed to address my mind to the material questions arising out of those material;

   [8]The Tribunal failed to perform the duty imposed on it by the Migration Act (section 425(1) to decide the applicant’s case on the material put to it and by conducting an appropriate enquiry there on;

   [9]The said decision of the Tribunal was made by the Tribunal was not a bona fide attempt to act in the Tribunal’s authority;

   [10]The Tribunal has failed to consider that my risk of harm and persecution are politically motivated;

   [11]The Tribunal has considered documents that I have submitted in support of my claim as false without any investigation in this regard;

   [12]I am entitled for a Protection Visa, Which I have applied; and

   [13]I have well founded fear of persecution in the country of habitual residence i.e. Bangladesh.’

3. The application was supported by an affidavit purporting to have been sworn or declared by the applicant on 14 July 2003.  When the application was called on for hearing today, the applicant appeared in person with the assistance of an interpreter.  He said, through the interpreter, that he does not understand English.  It is by no means clear that the applicant understood what he was saying in the affidavit.

4. The affidavit asserts that the Tribunal erred in law amounting to jurisdictional error in finding that the applicant does not have a genuine fear of persecution for a Convention reason.  It also asserts that the Tribunal had not taken into consideration ‘the threat to life or liberty, significant harassment’ to the applicant that he experienced and would experience on return to Bangladesh.  The affidavit also asserted eight of the grounds set out in the application in language almost identical to those grounds.  It also contained the following assertion:

   ‘The Tribunal failed to put the adverse country information to me to enable me to have an opportunity to submit my explanations and materials in reply to the alleged adverse materials relied by the Tribunal.’

5. When I invited the applicant to make submissions in support of his application, he indicated that he wished to apply for an adjournment to obtain further documents from Bangladesh.  He was unable to be specific as to the documents that he wished to obtain and was unable to proffer any explanation as to why he had not sought the documents before.  When I asked him about the assertion in his affidavit that the Tribunal failed to put adverse country information to him, he responded that the Tribunal had put material to him but had not taken proper notice of it.

6. The Minister contends that the decision of the Tribunal is a ‘privative clause decision’ within the meaning of s 474(2) of the Act. Accordingly, under s 474(1), it is:

   • final and conclusive; and
   • must not be challenged, appealed against, reviewed against, quashed or called in question in any court; and
   • is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. 

   A decision is a privative clause decision if it is a decision of an administrative character made under the Act.

7. The Tribunal was satisfied that the applicant is a citizen of Bangladesh.  In its reasons, the Tribunal recorded that the applicant claimed to fear persecution in Bangladesh from supporters of the Bangladesh National Party (‘BNP’) who threatened him with harm because of his membership of the Awami League and its associated political activities.  The applicant claimed that he was targeted by BNP supporters because he was particularly effective in increasing public support for the Awami League.  The applicant claimed that he would be at risk of harm from BNP supporters if he returned to live in Bangladesh.  He claimed that the state authorities would not provide protection. 

8. The Tribunal accepted that the applicant was a supporter of the Awami League and that he was involved in the Awami League while he was at school and when he started college.  However, the Tribunal did not accept that the applicant had an active role in organising demonstrations, protests and meetings between 1992 and 1997, as he claimed, although the Tribunal did accept that the applicant may have taken part in such activities.  The Tribunal considered that the applicant’s evidence as to the nature of his party activities was very generalised and lacked the detail that the Tribunal would have expected the applicant to give if he had been involved in organising such activities. 

9. The applicant claimed that the BNP supporters targeted him because they knew that he was an Awami League activist and was very effective in increasing public support for the party.  However, the Tribunal did not accept that the applicant was a committed activist for the Awami League or was known to be very successful in increasing public support for the party.  It therefore followed that the Tribunal did not accept that the BNP or BNP supporters targeted the applicant for harm for those reasons.

10. The Tribunal accepted the applicant’s claims that he was an Awami League supporter but found that he did not have a high profile and was not prominent in the Awami League.  The Tribunal also accepted that the applicant, from time to time, may have attended gatherings, demonstrations, protests and strikes.  It referred to the fact that country information before it indicated that such events were common in Bangladesh.  The Tribunal accepted that during such a gathering the applicant may have been attacked and injured in April 1997, as he claimed.  The Tribunal observed that such incidents have been a common feature of Bangladeshi politics and usually involved supporters of the major political parties.

11. The Tribunal was satisfied that the 1997 college gathering, described by the applicant, became violent and that the applicant was involved in that violence.  However, the applicant was not able to give a coherent or satisfactory reason as to why BNP supporters attacked him in 1997.  The Tribunal was satisfied that if the applicant was attacked and injured, that arose from the applicant’s participation in a gathering that became violent.  The Tribunal was not satisfied that the harm caused to the applicant arose out of any systematic and discriminatory conduct against the applicant.  The Tribunal was not satisfied that the essential and significant reason for the harm suffered by the applicant following the incident was for reasons of his membership of the Awami League or his political opinion.

12. The Tribunal recorded that the applicant lived and worked in Dubai from 1997 until he returned for a short visit to Bangladesh in September 2001.  The applicant claimed that, when he returned to Bangladesh in September 2001, he was threatened by BNP supporters during the visit and, as a consequence, he decided to leave Bangladesh after fifteen days.  The Tribunal did not accept that the applicant was threatened by BNP supporters when he returned to Bangladesh.  The applicant had been absent from Bangladesh for many years and had no active involvement in the Awami League whilst he was away.  The Tribunal did not consider that the applicant's evidence that he was threatened by BNP supporters on his short return to Bangladesh was credible.

13. The Tribunal referred to country information suggesting that since 2001 some high profile members of the Awami League have been detained unfairly and mistreated.  That country information suggested that the treatment had been widely publicised and criticised by domestic and international commentators.  The Tribunal stated that this must be considered in the context of Bangladeshi politics, which over the years has been characterised by the governing party’s use of government resources to undermine the opposition and the corresponding use of violent concerted protest by opposition parties to disrupt the day-to-day operations of the government.  The Tribunal found, however, that there was no evidence to indicate that membership or support of the Awami League would result in a risk of persecution by the BNP government.  The Tribunal was satisfied that Bangladeshis are able to be involved in politics and express their political views without being victims or perpetrators of violence. 

14. Taking all of that material into account, the Tribunal was not satisfied that the applicant faced a real chance of persecution should he return to Bangladesh now or in the foreseeable future. The Tribunal was not satisfied that the applicant had a well- founded fear of persecution for reasons of his political opinion or any other Convention related reason. Accordingly, the Tribunal was not satisfied that the criterion in s 36(2) of the Act was satisfied.

15. The applicant’s original application for a protection visa set out particulars of his claims.  On 15 January 2002, a delegate of the Minister wrote to the applicant with relevant country information on the situation in Bangladesh advising the applicant that he was entitled to respond to the information in the letter, as the information could be taken into account in determining his application.  In response, the applicant’s adviser sent submissions addressing the issues raised in the delegate’s letter.  That exchange explains to some extent the applicant’s response to my inquiry in the course of the hearing concerning the assertion in his affidavit that the Tribunal failed to put adverse country information to him.

16. The grounds set out in the application are devoid of specificity. There are assertions of error of law, amounting to jurisdictional error, on the part of the Tribunal in finding that the applicant does not have a genuine fear of persecution and that that finding was formed on an incorrect application of the law. In the absence of any particularisation of the grounds, I am not persuaded that there was any error on the part of the Tribunal. I am certainly not satisfied that there was any jurisdictional error such that a conclusion could be drawn that the decision of the Tribunal was not made under the Act.

17. It follows that the decision of the Tribunal was a privative clause decision and s 474(1) precludes any interference with the decision by this Court.  Accordingly, in my opinion, the application should be dismissed. 

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

Associate:

Dated:             21 October 2003

Counsel for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Counsel for the Respondent:	M N Allars
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 October 2003
Date of Judgment:	7 October 2003