NBDF v Minister for Immigration
[2006] FMCA 266
•16 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBDF v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 266 |
| MIGRATION – RRT decision – Jordanian student – mistreated by intelligence authorities on one occasion – Tribunal found fears not to be well‑founded – no error found. |
Acts Interpretation Act 1901 (Cth), s.8
Migration Act 1958 (Cth), ss.91R(2), 424A(1), 424A(3)(b), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
| Applicant: | NBDF |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1474 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 16 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 16 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr J A C Potts |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1474 of 2004
| NBDF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed in the Federal Court on 26 March 2004 which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 February 2004 and handed down on 25 February 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
The application was transferred to this Court by Hely J on 6 May 2004. The Court has the same jurisdiction as the Federal Court in relation to the matter, pursuant to s.483A of the Migration Act 1958 (Cth). Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth) but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The jurisdiction of both Courts is subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal’s decision and send the matter back to the Tribunal unless I am satisfied the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s claims should be believed nor whether he qualifies for a protection visa nor any other permission to stay in Australia. The power to decide those matters is given to the administrative officers in the Department of Immigration and to the Refugee Review Tribunal.
The applicant is a national of Jordan who arrived in Australia in December 2000 on a student visa which was due to expire in May 2003. On 28 October 2002 he applied for a protection visa assisted by migration agent. His application attached medical certificates suggesting that he had suffered illness which had adversely affected his studies.
A statement attached to the application set out his claims to qualify as a refugee for the protection of Australia. He said that he came from a large family which came “from a small tribe. As Jordan is a tribal society, a person coming from a small tribe had no chance of attaining a high position or a respectable social status”. He said that he had difficulty getting into universities in Jordan, but obtained admission to a university in Iraq where he studied for four years and qualified as an agricultural engineer specialising in animal production. He said he was a member of the student union and attended symposiums, lectures and debates in which he was outspoken about corrupt Arab regimes, economic sanctions imposed on Iraq, the Israeli occupation of Palestine and other matters. He said that this activity included criticism of the Jordanian regime with other students. He said every time he returned to his family during holidays: “the Jordanian Intelligence used to summon me to their offices”, where: “they used to be very nice to me and they would ask me to sit down and ask me questions about the situation in Iraq”.
However, on his return after his completion of his studies in July 1996, his questioning included serious mistreatment. He was questioned about his activities outside the classroom. He said:
Every time I used to say something that was not acceptable to him, the officers around me would hit me asking me not to lie. That investigation took several hours. At the end I was unable to talk and in severe pain. They threw me in a cell. Their detention lasted for about a week. During it I had several sessions of interrogations.
He told the security officers that although he had been outspoken, he had not been a member of a political party or a group who held secret meetings. When he was released he thought “that they might find out later I was saying the truth and that they would not call me again”.
The applicant looked for a job but was unable to obtain one in his area of training, and thought that there were security reasons for this. He said:
Nothing worked out for me in my home country. My bitterness grew stronger. I could not believe that I cannot survive in my own country. Every couple of months, they would call on me. In their subsequent investigations they were insisting on knowing my relationships with some groups of people who were also studying in Iraq at that time as well as my relationship with the BAATH party which is illegal in Jordan.
He said that he obtained the renewal of his passport, and obtained a job in Saudi Arabia specialising in animal production, but left that job after 10 months because the conditions were not acceptable to him. He returned to Jordan in early 2000 and was questioned by intelligence officers about his life in Saudi Arabia. He then, at the end of that year, applied for a student visa to come to Australia. He said: “through another high ranking intelligence officer, I was able to obtain [an intelligence clearance]”.
He said that he had hoped to obtain further qualifications in Australia so that he could get permanent residence, but when he became ill he could not succeed in his studies. He said: “my depression affected me so much. At the same time I was very afraid of going back to Jordan, so I decided to apply for a protection visa in Australia”.
A delegate refused the application on the 13 March 2003. The delegate referred to the definition of “serious harm” in s.91R(2), which provides that being unable to obtain work would not be “persecution” unless the denial “threatens the person’s capacity to subsist”. The delegate did not accept that the applicant was “currently of adverse attention to the Jordanian authorities, or that he would be denied any sort of employment or capacity to subsist”.
The applicant appealed to the Refugee Review Tribunal on 10 April 2003, assisted by his agent. No additional material was forwarded to the Tribunal, and the application for review said: “please refer to my original statement lodged with my application”.
The applicant attended a hearing conducted by the Refugee Review Tribunal on 29 January 2004. A transcript of the hearing is not in evidence before me and I have only the Tribunal’s description of the hearing contained in its reasons.
The Tribunal received further information from the applicant about his family in Jordan. It asked him his reasons for waiting two years before applying for a protection visa, and the applicant elaborated the explanation which was contained in his original statement.
He was questioned about his period of study in Iraq. The applicant told the Tribunal that “apart from being involved with the Student Union, he had no involvement with any political or religious groups, including Palestinian groups”. He agreed with the Tribunal that in fact it was not illegal to belong to the Ba’ath Party, and told the Tribunal that he could not afford to belong to the Ba’ath Party because of his family not belonging to a big or powerful tribe.
The applicant gave more details about the episode in 1996 where he was mistreated when questioned by the Jordanian security officers. At the first interrogation he had been hit once in his waist and an officer had pushed his head forward in an uncomfortable way. No assaults occurred during the remainder of his detention but he was affected psychologically.
The applicant was questioned about his difficulties in obtaining work. According to the Tribunal he said:
He thought that “they” were fighting him. He was only looking for ordinary jobs, but could not get one, which made him think that Intelligence was behind it. He said that it was true that the economic situation was bad at the time, but he thought that Intelligence was obstructing him.
The Tribunal records him saying that he “got a job as a truck driver about two years before he went to Saudi Arabia in 1999”.
In his application to this Court, the applicant criticises the Tribunal for not asking more details about that job as a truck driver, and he told the Court that the position was in a family business and was, for various reasons, unsatisfactory. However, on the evidence before me, I am not able to conclude that the applicant was denied an opportunity to explain that job to the Tribunal in the course of its hearing.
The Tribunal questioned the applicant about how he renewed his passport in 1998. It said that he was vague in explaining how he had done this through “connections in Intelligence”.
The applicant told the Tribunal that between 1996 and 1999 he was questioned maybe every two and a half months by intelligence but was not mistreated. He explained the difficulties of his employment in Saudi Arabia. Once again, although the applicant complains to the Court about not being asked more questions about this employment, I am not able to be satisfied on the evidence before me that the applicant was denied a reasonable opportunity to explain it. The Tribunal was certainly told about the conditions which he found unacceptable.
The applicant told the Tribunal that he returned to Jordan in about January 2000, and had been questioned for about two hours about what he had been doing there. He said: “they just wanted to know what was happening. They were not rude as they had been before, although they kept him waiting outside for half an hour or so in their usual way”. The applicant was asked what he was doing in the period between January and December 2000. He said he had been “trying to get a job”. He said that he was “not questioned by Intelligence during that year”.
In its reasons, the Tribunal referred to some country information concerning human rights concerns in Jordan, including abuse of power by police and security forces.
Under the heading “Findings and Reasons”, the Tribunal said:
While the Tribunal considers that the applicant’s fundamental claims are credible, it is of the view that he invented or exaggerated some aspects of his claims in order to support his application for refugee status.
The Tribunal did not accept the claim that the intelligence authorities had obstructed the applicant in obtaining employment. It also considered that the questioning of the applicant by Jordanian authorities did not constitute harassment constituting “persecution” under the Convention, except in relation to the episode in July 1996. The Tribunal thought that, given the difficult political situation of Jordan in relation to Iraq during the relevant period: “the Jordanian authorities had a legitimate interest in the applicant’s activities, and a right to question him about them”.
The Tribunal found, however, that the July 1996 treatment of the applicant exceeded “appropriate conduct” in pursuit of legitimate aims, applying a test suggested by McHugh J in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 258. The Tribunal therefore found in relation to that episode that “the applicant has been persecuted in the past for reasons of his imputed political opinion as an opponent or critic of the Jordanian regime”.
The Tribunal then addressed the central issue, whether there was a real chance that the applicant would be persecuted if he returned to Jordan in the foreseeable future. After some discussion, it concluded:
The applicant, on his own evidence, is a person with limited interest in politics, and with no involvement in any political organisation. He was an ordinary member of the Jordanian Student Union in Iraq, which he left in 1996. The evidence indicates that the authorities showed a decreasing interest in the applicant after his detention in 1996, and they did not mistreat him after that time. The applicant himself was prepared to return to Jordan, breaking a 12 month work contract, in 2000 and did not apply for protection in Australia until two years after he arrived. Taking all these circumstances into account, the Tribunal is not satisfied that there is a real chance that the applicant will be persecuted if he returns to Jordan in the foreseeable future. It is therefore not satisfied that the applicant has a well‑founded fear of persecution in Jordan.
I have carefully considered the reasoning of the Tribunal. In my view it shows a careful analysis of the claims and evidence given by the applicant and an appropriate use of legal authority. I think its conclusions were open to it on the evidence, and I am unable to identify any jurisdictional error affecting its decision.
The application filed in the Federal Court on 26 March 2004 contained one ground which alleged: “the RRT ignored parts of the applicant’s claims in the statement attached to his application for the relevant visa submitted”. However, no particulars of this were provided. For myself, I have not been able to identify any material element in the applicant’s claims which was overlooked by the Tribunal.
An amended application filed by the applicant contains two discursive grounds which suggest that it was unfair for the Tribunal to have given weight in its assessment to the fact that the applicant had obtained a job in Jordan as a truck driver, and that he had returned to Jordan after his employment in Saudi Arabia. As I have indicated above, it is suggested that “the RRT Member did not ask me about the nature of my job in Jordan”, and did not properly weigh his reasons for giving up his job in Saudi Arabia.
However, as I have indicated, on the evidence before me I am not persuaded that the applicant was denied an opportunity to fully explain his history in relation to his employment. Moreover, I do not consider that the Tribunal has overlooked the applicant’s concern that he was unable to obtain employment which he regarded as appropriate to his qualifications and aspirations. I consider it was open to the Tribunal to regard the applicant’s conduct in remaining in Jordan, returning to it after working in Saudi Arabia, and delaying his application for protection in Australia, as supporting its inability to be satisfied that there was a real chance that he would be persecuted if he returned.
The last application filed by the applicant contains an annexure headed “Further Grounds”, containing three paragraphs asserting a failure by the Tribunal to comply with its duty to invite written comments pursuant to s.424A(1). However, no particulars of the information which it is argued the Tribunal should have invited the applicant to comment upon are provided in this document, and the applicant has not addressed these grounds in his oral submissions. No written submission was filed. Neither counsel for the Minister nor I were able to identify in the Tribunal’s reasons any element which might give substance to these grounds. I have noted above that all the information in the applicant’s original visa application statement was “given” to the Tribunal by express reference in his application for review (c.f. s.424A(3)(b)). This included reference to his delay in applying for protection, and his explanation which did not persuade the Tribunal.
The applicant’s submissions to me today made factual points concerning his employment history, which I have referred to above. He also made a complaint that he thought the Tribunal’s decision was unfair because he believed it had reached a decision “too early”, and had therefore not fully listened to nor appreciated his various explanations in relation to the points which ultimately caused the Tribunal not to be satisfied as to his prospects of being persecuted.
It is understandable that an applicant who has put his history before a Tribunal and has been largely believed will feel disappointed that the Tribunal decision is not in his favour, and may form a belief that this was the result of a closed mind. However, on the evidence before me, I do not consider that an objective bystander considering the proceedings of this Tribunal might have formed any such apprehension. Reading the reasons which the Tribunal has given for its decision does not, in my opinion, provide any evidence that the Tribunal closed its mind before reaching its decision. Indeed, in my view, the Tribunal’s reasons suggest that it performed a careful examination of all that it had been told by the applicant.
For the above reasons, I have not been able to find jurisdictional error affecting the Tribunal’s decision. It is therefore a privative clause decision for which relief from the Court is barred by s.474(1) of the Migration Act, and I must dismiss the application.
I certify that the preceding thirty‑four (34) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 1 March 2006
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