S1060 of 2003 v Minister for Immigration
[2004] FMCA 832
•3 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1060 of 2003 v MINISTER FOR IMMIGRATION | [2004] FMCA 832 |
| MIGRATION – Refugee Review Tribunal – application for review of decision affirming the decision of a delegate of the Minister not to grant a protection visa to the applicant – applicant a citizen of Bangladesh – no reviewable error. |
Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.91X, 424A
NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241
NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494
| Applicant: | S1060 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1478 of 2004 |
| Delivered on: | 3 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 3 November 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant is to pay the Respondent’s costs in the sum of $4,000.00.
Transcript of reasons required.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1478 of 2004
| S1060 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The decision was handed down on 7 December 1998. In that decision the Refugee Review Tribunal affirmed the decision of a delegate of the Respondent minister to refuse an application by the Applicant for a protection visa.
The Applicant seeks a review of the decision by the Refugee Review Tribunal. He filed his application on 19 May 2004. He has on
12 October 2004 filed an amended application and that is the application I will consider today.
The delay between the handing down of the decision by the Refugee Review Tribunal in December 1998 and the commencement of the proceedings in May 2004 is explained by the fact that the Applicant told the Court today he was a party to a certain class action which was brought. That matter has now come to an end.
The brief facts are that the Applicant is a national of Bangladesh. He arrived in this country on 9 August 1996. He lodged his application for a protection visa on 9 October 1996. On 29 April 1997, his application was refused by a delegate of the Minister. On 21 May of that year he made his application for review by the Refugee Review Tribunal. That decision which was made against him was made on 7 December 1998.
He claimed in his application that he feared persecution because of his political views. He said he was opposed to muslin fundamentals and supported Taslima Nazrin in the 1994 problems that she experienced. He said that this brought him into conflict with other people who might also then seek to take revenge against him.
In his amended application he sets out a number of amended grounds of review. He says that the Tribunal did not consider the definition of a refugee in that consideration should be given to the cumulative effects of various fears and persecution or that consideration should be given to each separate aspect of a claim of persecution.
He said the decision was unlawful because the Tribunal did not follow the proper procedure required by the Migration Act and failed to comply with section 424A(1) of the Act.
He said the Tribunal failed to accord procedural fairness to him. He said the Tribunal did not consider the harm he might suffer if he were to be detained or in prison pending Court hearing of false charges against him and that that was a constructive failure to exercise jurisdiction.
He submitted that he had been denied procedural fairness in not being given an opportunity to comment on the Tribunal's acceptance of country information about document fraud in Bangladesh.
He submitted that the Tribunal had taken irrelevant considerations into account and failed to consider relevant considerations.
He submitted an affidavit sworn on 18 May 2004. In that application he set out the evidence in support of his contentions. He said that the Tribunal discarded all his submitted documents without giving any valid reasons. He denied that he had submitted any false documents. He said that he had given his correct name and that he was a truthful witness. He reiterated that he was a member of the party known as the BMP and said that a warrant for his arrest had been issued on 4 July 1996 and that on 25 September 1996 he was sentenced to four years gaol.
He said the Tribunal did not believe him and that the Tribunal member made a decision with a closed mind. He said he believed he was denied procedural fairness because his documents were not taken into account. He reaffirmed that he had a fear of persecution if he was compelled to go back to his country.
The Applicant has given an oral submission today. He asked that the Court should consider his case again. He said that the Tribunal did not accept his evidence at the time that the passport upon which he travelled to Australia was not a genuine passport. He said that it was a false passport but the Tribunal said it was a genuine one.
He said that the Tribunal did not accept that he was a supporter of Taslima Nazrin and he said that one does not have to have read all of her books to be a supporter of her.
He denied that the judicial system in Bangladesh was independent and he affirmed that it was not independent. He said that if he were to return to Bangladesh he would be arrested. He sought to submit a book about Bangladesh relating to torture in that country. That book was written in August 2004 and I declined to allow that book to be submitted in evidence as it was not in existence at the time the Refugee Review Tribunal considered his case.
He again asked that the Court should reconsider his case although I pointed out to him that the Court does not engage in a hearing on the merits of the case but looks at whether or not the proceedings in the Refugee Review Tribunal were conducted in a proper exercise of the Tribunal's jurisdiction. When he was asked about the relevant considerations taken into account he said that that was because the Tribunal had told him that his passport was genuine when he said that it was a false passport. He also said that the Tribunal had said that his Court papers were not genuine but he said that they were.
The Respondent's counsel Mr Kennett provided a written submission and also made an oral submission. In the written submissions the Respondent's counsel summarised the findings of the Tribunal in respect of the Applicant's case. Mr Kennett also approached the grounds set out in the amended application. He submitted that grounds 1 and 2 in the amended application allege that the Tribunal did not correctly apply the test for refugee status but submitted correctly in my view that those contentions were not particularised and had not been amplified by written submissions. They were not in fact amplified in oral submissions today and in my view they cannot be made out.
In ground 3 which referred to the Tribunal not giving the Applicant particulars of country information upon which it relied which was said to be a failure to comply with section 424A(1) of the Migration Act and to provide procedural fairness. The Respondents submitted quite correctly that the argument relating to section 424A will not assist the Applicant in that the section did not commence until 1 June 1999. As such it was not in force when the Tribunal made its decision.
It was also submitted that there was no evidence before the Court as to whether the substance of the country information was discussed with the Applicant and the Tribunal and there was in fact no evidence such as a transcript of the hearing which would allow the Court to draw an inference of the material that was not discussed. In that matter I was referred to a recent decision by the Full Court of the Federal Court in NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241. That was an appeal against a decision by a Federal Magistrate and the discussion at paragraphs 20 and 21 about an inference that had been drawn during the hearing before the Federal Magistrate about whether the country information concerning document fraud had been raised in these proceedings.
In paragraph 21 their Honours said:
For one thing, the appellant's case is premised upon an assumption -
It was also made by the learned Federal Magistrate that should be -
albeit on a tentative basis that the tribunal had not raised the issue of the authenticity of certain documents with the appellant appearing. However, his Honour did not make a finding in relation to this matter.
The Federal Magistrate observed that this appeared to be the case from the record of the Tribunal decision.
Their Honours went onto say that:
On the evidence before the Federal Magistrate it was not open to him to have made a finding that this issue had not been canvassed as his Honour had no transcript and had not been given any evidence, either in affidavit form or orally to the effect that this issue had not been raised. There was simply no basis upon which his Honour could properly have made this finding
That appears to me to be a similar situation here.
The Respondent in considering ground 4 claimed that the Tribunal denied the Applicant procedural fairness by not giving him an opportunity to comment on the Tribunal's acceptance of document fraud in Bangladesh. I was referred to the decision of NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494.
Here it is submitted that there is not a proper basis for an inference of any substance that the country information was not raised with the Applicant. It was also a situation that the issue was raised in writing and the Applicant has then advised the Respondent and the Tribunal went onto consider whether the applicant had a convention claim on the assumption that he was facing criminal charges.
There was also in the submission the general unparticularlised allegations of error set out in ground 5 which on the evidence before me or on the submissions before me seemed to relate to questions of factual issues and of course this Court is not here to decide on the merits of the Applicant's case.
The original decision sets out a number of reasons and an assessment of the Applicant's claims. They are quite comprehensive and begin at page 200 of the Court book and go through to page 203. I will paraphrase them and I will leave out the surname of the Applicant, as he is entitled to protection under section 91X of the Migration Act.
In effect the Tribunal expressed serious doubts about the claim that the applicant entered Australia on a false passport saying that according to the document examination unit of the respondent department, the passport upon which the applicant travelled genuine. The Tribunal did not believe that the Applicant was ever an active supporter of Taslima Nazrin saying that he had never read the book Shame which was the subject of some controversy. The Applicant has of course replied to that by saying that one does not have to read all of a person's books to be their supporter.
The Tribunal found the Applicant's evidence relating to his political activities and the problems that this caused to be lacking in credibility, in particular he had made no mention of the charges which had supposedly been laid against him before his departure from Bangladesh until 18 months after he lodged his application for a protection visa.
The Tribunal commented unfavourably on the fact that the Applicant had failed to mention the claim that he had been sentenced to four years gaol following a trial in September 1996 until the hearing. The Tribunal said that trials in Bangladesh are not held in secret and if the Applicant's documents were accepted at face value his trial and the sentence imposed would have been reported in the local media.
The Tribunal considered the police and Court documents and a newspaper article provided by the Applicant. The documents were not provided by the applicant to the Tribunal until after the hearing. The Tribunal went on to express dissatisfaction that the documents were in fact genuine.
The Tribunal then went onto say that even if the Applicant's claim was accepted that he was wanted by the authorities in Bangladesh that the Tribunal was not satisfied that this was a claim under the convention. Violence is a feature of political life in Bangladesh and members of the Applicant's party are amongst those who are involved in violence.
The Tribunal went onto say that Bangladesh is a democracy and the convention is not intended to provide protection for those who engage in or incite violent actions against political opponents in a democracy and the consequences of their act.
The Tribunal considered the letters allegedly sent to the Applicant via the BMP and again was not satisfied that the documents are genuine.
The upshot of all this is that the Tribunal was not satisfied as to the Applicant's evidence, either the Applicant's oral evidence or the Applicant's documentary evidence. The Tribunal has given reasons upon which this dissatisfaction has been based and in my view the reasons given support the conclusions laid.
The Applicant has asked for the Court today to reconsider the application as if it were a hearing de novo, a fresh application. That is not the function of the Court in hearing an application of this type.
I am not satisfied that there has been any failure by the Tribunal to exercise its jurisdiction. I am not satisfied there has been any lack of procedural fairness. In my view the Tribunal considered the matters raised by the Applicant but on assessing the evidence was not satisfied that the Applicant's evidence should be accepted. That is a decision within the province of the Refugee Review Tribunal. There is no reviewable error and the application is dismissed.
I will require a transcript of my reasons for this decision.
In this jurisdiction costs usually follow the event and I am of a belief that it is appropriate that the applicant being the unsuccessful party should pay the Respondent's costs. A figure of $4000 has been suggested. In my view that is within the range provided by schedule 1 of the Federal Magistrates Court Rules.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V Lee
Date: 17 November 2004
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