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MIGRATION - Review of decision of RRT - claim of lack of bona fides in manner Tribunal dealt with applicant - time given to make additional submissions - submissions made - no reviewable error.

NASJ v Minister for Immigration [2002] FMCA 316 (21 November 2002)

NASJ v Minister for Immigration [2002] FMCA 316 (21 November 2002)
Last Updated: 4 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NASJ v MINISTER FOR IMMIGRATION
[2002] FMCA 316



MIGRATION - Review of decision of RRT - claim of lack of bona fides in manner Tribunal dealt with applicant - time given to make additional submissions - submissions made - no reviewable error.



Migration Act 1958 (Cth) s.474

NAAV v Minister for Immigration [2002] FCAFC 228

Applicant:
NASJ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 799 of 2002



Delivered on:


21 November 2002



Delivered at:


Sydney



Hearing Date:


21 November 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Ms V Hartstein



Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs in the sum of $4,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 799 of 2002

NASJ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this case is a citizen of Bangladesh who arrived in Australia on June 25 2001. He held a student visa valid until 22 June 2002. After arrival he applied for and received a new student visa which entitled him to work a limited 20 hour a week but the visa was valid until 22 June 2002 as the previous one.

2. On 2 April 2002 the applicant was detained by the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act and on 30 April 2002 he lodged an application for a protection visa with the Department under class XA.

3. A delegate of the Minister declined to grant the applicant a protection visa on 12 June 2002 and on the same day the applicant sought review of that decision by the Refugee Review Tribunal. There was a hearing before the Tribunal on 19 July 2002 where the applicant was represented by an adviser who was a migration agent. At the hearing the applicant, through his adviser, sought some further time to make further submissions and according to the applicant today a period of 14 days was granted.

4. In fact the further submissions, which were supplied in writing by the migration agent, were provided within 1 week. The Tribunal then considered the matter and made its decision on 7 August 2002. The notification of the decision was given to the applicant in detention on 8 August 2002. The applicant is no longer in detention. The applicant's concerns, which he argues gave him a well-founded fear of persecution for convention reasons, arise out of his claim that he was an active member of the Awami League Student Wing.

5. In this position he had run foul of the government and in particular another activist Mr Sadek Hossain Khoka. The Tribunal considered these submissions, questioned the applicant and compared his story with country information available to it. The Tribunal came to the conclusion that it did not accept the claims of the applicant.

6. It believed that the claims were inconsistent, that the applicant showed little understanding or knowledge of the student movement of the Awami League and it dismissed as an illogical fabrication all the claims which the applicant made concerning Mr Khoka, apart from one which did not refer to the applicant himself.

7. In his application the applicant states that the Tribunal incorrectly interpreted his claims for being a refugee by trying:

"To wilfully complicate the applicant's relation to the particular political party in concern and disprove his claims as having said and have painted a confusing picture."

8. The applicant submits that the Tribunal found a particular incident that contributed significantly to the applicant's claim as having never taken place without conducting any fact finding in relation thereto.

9. The second ground raised by the applicant is:

"The Tribunal did not render the applicant time and opportunity to produce evidence of his claims and hence was unrealistic and biased in deciding the fate of the applicant."

10. Since the imposition into the Migration Act 1958 (Cth) ("Migration Act") of s 474 (the privative clause) and the decision of the Full Bench of the Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228 an allegation of actual bias is effectively the only remedy available to persons such as this applicant in seeking review of a decision of the Refugee Review Tribunal.

11. The Full Bench of the Federal Court and other judges of that Court as well as Federal Magistrates have made it clear that whilst there can be no comprehensive definition of bias, all are agreed that it is a serious matter and one which requires the most stringent proof. Proof does not come from mere assertion. It is also said that bias cannot be established merely from the fact that the Tribunal has found contrary to the submissions of an applicant. And the findings themselves, it should always be remembered, are the product of consideration of evidence and argument.

12. I have considered the decision of the Tribunal and the evidence utilised by it which is contained in the court book. I am satisfied that the applicant was given sufficient time to provide additional submissions. It is not being suggested that there is evidence that could have been brought to the notice of the Tribunal that the advisers did not bring to the Tribunal's notice because they did not have enough time to do so.

13. I note particularly that although a period of 2 weeks was granted by the Tribunal the submissions were completed within one. There is nothing to indicate that the Tribunal entered upon this case with a closed mind or was not prepared to give full consideration to the matters raised by the applicant. It did this, it found his arguments wanting and it so advised in its reasons for decision. I can find no evidence of even what the applicant calls "a little bias" in these reasons.

14. The application must be dismissed. The applicant shall pay the respondent's costs which I assess in accordance with Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $4,000.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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