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MIGRATION - Application to review decision of Refugee Review Tribunal - no jurisdictional error - credibility - no denial of procedural fairness.

NADY v Minister for Immigration [2003] FMCA 246 (29 May 2003)

NADY v Minister for Immigration [2003] FMCA 246 (29 May 2003) Last Updated: 8 July 2003 FEDERAL MAGISTRATES COURT OF AUSTRALIA NADY v MINISTER FOR IMMIGRATION [2003] FMCA 246 MIGRATION - Application to review decision of Refugee Review Tribunal - no jurisdictional error - credibility - no denial of procedural fairness. Judiciary Act 1903 Migration Act 1958 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2001) 68 ALR 407 Muin v Refugee Review Tribunal (2002) 190 ALR 601 NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 Plaintiff S257 of 2002 v The Commonwealth of Australia (2003) 195 ALR 24 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 498 Applicant: NADY Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS File No: SZ134 of 2002 Delivered on: 29 May 2003 Delivered at: Sydney Hearing date: 29 May 2003 Judgment of: Barnes FM REPRESENTATION Counsel for the Applicant: Nil Solicitors for the Applicant: Nil Counsel for the Respondent: Mr R Bromwich Solicitors for the Respondent: Australian Government Solicitor ORDERS (1) That the application is dismissed. (2) That the applicant pay the respondent's costs set in the amount of $4,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules. FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY SZ134 of 2003 NADY Applicant And MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent REASONS FOR JUDGMENT Background and Tribunal decision 1. This is an application under section 39B of the Judiciary Act for review of a decision of the Refugee Review Tribunal (The Tribunal) made on 23 September 2002 and handed down on 17 October 2002 affirming a decision of a delegate of the respondent to refuse the grant of a protection visa to the applicant. The applicant applied to the Federal Court and the matter was transferred to this Court. 2. The background to this matter is that the applicant, who is a citizen of Bangladesh, arrived in Australian on 11th June 1999. On 16 July 1999 he lodged an application for a protection visa. The basis of his claim was a fear of persecution by reason of being a homosexual. He claimed to have engaged in homosexual activities in Bangladesh, that as he had been observed or heard having sexual relations on two occasions this became publicly known, that he and his boyfriend had been bashed by local people and that the police had taken no action. On 23 September 1999 a delegate of the respondent refused the grant of a protection visa. The applicant applied to the Tribunal for a review of that decision. 3. The Tribunal held a hearing on the 22 March 2002. Subsequently it received a submission from the applicant's migration agent on 28 March 2002. The Tribunal affirmed the decision of the delegate to refuse the grant of a protection visa. It found that the applicant was not a credible witness. It did not accept his claim to be a homosexual to be true. It gave reasons for its rejection of his claims and conclusion on credibility. In particular, the Tribunal considered the claims and evidence of the applicant and aspects of the applicant's observed behaviour at the hearing as detailed in the reasons for decision. The Tribunal did not accept that the applicant's specific claims as to the unusual circumstances of his sexual activities in Bangladesh were true. It found that it was not reasonable to believe that he and his boyfriend would engage in such public or observable behaviour. The Tribunal concluded that such claims were fabricated. The Tribunal also gave reasons for its conclusion that the applicant's evidence of his homosexual activities in Australia was inaccurate and fabricated, based in particular on inaccuracies in his evidence and the circumstances and nature of his evidence at the hearing. 4. The Tribunal found further, that even if it did accept that the applicant was homosexual as claimed (which it did not), it would still find that he was not a credible witness and that his evidence was contrived and not reasonable to believe as being true. Further, the Tribunal had regard to independent country information in relation to the situation in Bangladesh and concluded that whilst there was a level of discrimination against homosexuals, it was not at such degree as could be considered persecution within the Refugee Convention and s.91R of the Migration Act 1958 (C'th) (the Act). In concluding that the applicant's claims were without merit the Tribunal also took into account the fact that the applicant had not taken the opportunity during several visits to South Africa to seek protection in that country despite his claimed fear in relation to Bangladesh. 5. The Tribunal concluded on the evidence before it that it was not satisfied that the applicant had a well founded fear of persecution within the meaning of the Refugee Convention. The application 6. In the application the applicant raised what amount to four grounds of review. In his written submissions and in oral submissions he dealt with one of those grounds. As he is self represented, I have considered all of the grounds raised and the material before the court to consider whether there is any reviewable error. First, it appears to be alleged that there was a failure on the part of the Tribunal to attend to or take into account evidence in relation to the applicant's claims. There was said to be no basis to doubt the applicant's account of events. It was also said that the material he produced was not considered by the Tribunal. However, this ground has not been established. The applicant failed because he was not believed, not because his claims were not considered. The Tribunal also considered his claims on the basis that he was a homosexual as claimed. The Tribunal is not under an obligation to obtain rebuttal evidence in relation to claims made by applicants. Essentially the Tribunal decision turned on its assessment of the credibility of the applicant. Assessment of credibility is a function of the Tribunal par excellence (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2001) 68 ALR 407 at [67]). 7. The main ground pursued by the applicant was an asserted failure by the Tribunal to follow the proper procedures as required by the Migration Act 1958. In this context the applicant referred, in his written and oral submissions, to the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601. 8. It was suggested by the respondent that the applicant did not appear to contend that any of the Part B documents before the delegate were not considered in a sense of ignored or overlooked by the Tribunal. Nonetheless, I have considered that possibility in relation to the arguments of the applicant. However, it is clear that there is no evidence before the court that the Tribunal did not have before it, or did not consider, the Part B material listed in the delegates decision record in the relevant documents at page 43. Indeed, the Tribunal decision refers specifically to two of the documents listed in the Part B documents, being a country information report and a profile of Bangladesh, as well as to other information, some of which appears to be more up to date than the material referred to in the Part B list. 9. Muin is authority for the proposition that, as was said by the Full Court in NADR v MIMIA [2002] FCAFC 293 at paragraph [24] per Keifel J, there is a want of procedural fairness where an applicant before a Tribunal is misled into thinking that the Tribunal has considered particular relevant information and, as a result, did not ensure that such information was placed before it. However, not only is there no evidence before the court that the Tribunal had not considered the Part B material, there is also no evidence to establish that any such information that was not considered was relevant at the time of the Tribunal decision or, importantly, that the applicant would have bought any such information to the Tribunal's attention had he been aware that the Tribunal had not considered particular relevant information as submitted. The applicant has not established that there was a denial of procedural fairness in the sense considered in Muin. 10. The applicant also took issue with the Tribunal's method of reliance on the material in the Part B documents and the manner in which it was used. In written and oral submissions he submitted that the Tribunal had not considered the material properly or thoroughly and in oral submissions he took exception to the fact that information had been sourced from the electronic media in Bangladesh. He claimed that particular information relied upon by the Tribunal (being Country Information Service 1996, Bangladesh: persecution of homosexuals in South Asia (CISNET database: CX16187) which is reproduced in the bundle of relevant documents at page 140) if read properly, could be found to be material in relation to issues before the Tribunal, presumably, in relation to persecution by reason of homosexuality, as claimed by the applicant. However, the Tribunal referred to such material (CB104) in its conclusions. Insofar as the applicant takes issue with the weight attributed to aspects of the information before it, this is a matter for the Tribunal. 11. The applicant takes issue with the fact finding of the Tribunal. This is a matter for the Tribunal and does not demonstrate any jurisdictional error or denial of procedural fairness on Muin or other grounds. 12. The application also states, without elaboration, that the Tribunal decision was affected by an error of law and jurisdictional error. No particulars of these claims have been provided. I have considered the Tribunal decision and no such error is apparent on the face of the Tribunal reasons or on the material before the Court. 13. Finally, the application asserts that there was no evidence or other material to justify the making of the decision. There is no substance to this allegation. The applicant put forward his claims but was rejected on credibility grounds. The Tribunal also considered his claim on the basis that it was true, but found on the basis of independent evidence, as was open to it on the evidence before it, that there was not a well founded fear of persecution within the Refugees Convention. This does not establish that there was not evidence or other material to justify the making of the decision. In light of this conclusion, it is not necessary for me to determine whether, if a decision was made without any evidence, that would or would not amount to a jurisdictional error. 14. There is no jurisdictional error or denial of natural justice apparent in the Tribunal reasons or procedures. This means that it is not necessary to determine the effect of Plaintiff S157 of 2002 v The Commonwealth of Australia (2003) 195 ALR 24 or the contentious issue of the scope of section 474 of the Migration Act. 15. Hence, the decision is a privative clause decision. It has not been submitted, nor is it apparent that there was any failure to comply with any of the so called Hickman provisos. Accordingly, the application must be dismissed. Recorded - Not Transcribed 16. As the applicant has been wholly unsuccessful and there is nothing out of the ordinary in this matter to warrant departure from the normal approach, it is appropriate that he should bear the Minister's costs. In light of the nature of this and other similar cases, I consider it is appropriate to fix the costs in the amount of $4000. I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM Associate: Date: 29 May 2003
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