Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the Tribunal was following a finding that it was not satisfied of his apostasy - whether the applicant has a well-founded fear of persecution for reasons of religion - required to whether the applicant was denied procedural fairness.

NACY v Minister for Immigration [2003] FMCA 171 (1 May 2003)

NACY v Minister for Immigration [2003] FMCA 171 (1 May 2003)
Last Updated: 16 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NACY v MINISTER FOR IMMIGRATION
[2003] FMCA 171



MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the Tribunal was following a finding that it was not satisfied of his apostasy - whether the applicant has a well-founded fear of persecution for reasons of religion - required to whether the applicant was denied procedural fairness.



Migration Act 1958 (Cth), ss.425, 426A

Prasad v Minister for Immigration (1985) 6 FCR 155

Luu & Anor v Renevier (1989) 91 ALR 39

Applicant:
NACY



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGEOUS AFFAIRS



File No:


SZ 1270 of 2002



Delivered on:


1 May 2003



Delivered at:


Sydney



Hearing date:


1 May 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Self Represented



Counsel for the Respondent:


Mr A J McInerney



Solicitors for the Respondent:


Sparke Helmore Solicitors



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1270 of 2002

NACY


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh. He arrived in Australia on

26 October 2000. He held a visitors visa subclass 676. On 7 December 2000 he lodged an application for a protection (Class 6A) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 6 March 2001 the delegate of the minister refused to grant a protection visa and on 26 March 2001 the applicant applied for review of that decision.

2. The tribunal invited the applicant to attend and give evidence. The applicant declined this opportunity. Instead he submitted through a migration agent a statement. The tribunal considered the applicant's claim in his absence, pursuant to s.426A of the Migration Act 1958 (Cth) ("the Migration Act") having provided him with an invitation to appear pursuant to s.425.

3. The applicant claims that he is from a conservative Muslim family who was introduced to Christianity when he was at college in Bangladesh. On 27 March 2000 he claims to have converted to Christianity through a court affidavit and changed his name to one of an English appearance. The applicant says that as a result of his apostasy he was unable to return home because he had upset his family members, he believed his siblings intended to deprive him of his share in his father's property and he had been attacked by Muslim fundamentalists. The applicant claimed that he could not get a job once people discovered that he had renounced Islam and was unable to go out. He felt that if he returned to Bangladesh he would be persecuted.

4. The tribunal considered these claims together with the more general submissions of the migration agent at [CB 62] the tribunal says:

"I accept that the applicant is a national of Bangladesh. However, I have a number of problems with his claims. The applicant claims that he converted to Christianity and has changed his name. However, I note that the applicant made and signed his application for a protection visa in the name [which appears on his passport]. He has not explained why he did so. In addition, the applicant has provided virtually no details of his claim. For example, he has not stated which Christian denomination he joined. Nor has he provided any details of his religious activities either in Bangladesh or in Australia. The applicant states that he was attacked by fundamentalists on a number of occasions. However, he has not provided any information concerning when, where, how often or under what circumstances these attacks allegedly occurred.

Furthermore, the applicant indicates that he was rejected by his family and was unable to return home after he converted to Christianity. However, he does not indicate where or with whom he lived in the period following his baptism and prior to his departure from Bangladesh. Nor does he provide any information in relation to what he did to support himself during this period. I note also that although the applicant claims that his family rejected him, his application for a protection visa indicates that he is in contact with members of his family by telephone. It is not explained why it is that he is in contact with his family if they are angry with him and would not let him return home.

Given the lack of detail contained in the application for a protection visa, I am unable to make findings of fact in relations to the applicant's claims. I am therefore unable to be satisfied that the applicant has a well-founded fear of persecution for a Convention reason."

5. In his application to the court the applicant indicates five areas in which he believes that the tribunal was in error. He states that the procedures that were required to be observed were not observed. He states that the tribunal did not consider the current situation prevailing in Bangladesh. He states that the tribunal did not provide him with an opportunity to comment on information in relation to its decision and as a result he was deprived of natural justice. The applicant states that the tribunal failed to consider the seriousness of apostasy from Islam and that the tribunal rejected his claim without investigation.

6. I am satisfied that the tribunal did observe the procedures which are required of it in accordance with the Migration Act. A notice under s.425 was sent, the applicant himself made the decision not to appear, and the tribunal proceeded in his absence as it was entitled to do.

7. The tribunal did not consider the current situation prevailing in Bangladesh because it came to the view that it did not have sufficient information from the applicant from which it could make a finding of facts that he had a well-founded fear of persecution for Convention reasons. A decision-maker is not required to make the applicant's case for him or her; Prasad v Minister for Immigration (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. If the tribunal is unable to accept as a fact the reasons given for the applicant's fear, in this case his conversion to Christianity, there is no need for the tribunal to look at the country's situation to decide whether or not such fear is well-founded.

8. I am satisfied that the tribunal did provide the applicant with the statutory opportunities to comment on information and that there is no question that he did not receive natural justice.

9. I am satisfied that in the circumstances of this case there was no need for the tribunal to consider the situation of apostates in Bangladesh because it had come to the view, to which it was entitled to come on the facts, that it could not be satisfied that the applicant was an apostate. I am satisfied that the tribunal did not reject the applicant's claim without investigation. It investigated his claims on the basis of the evidence that was put before it. It found those claims, and the evidence supporting it, lacking. This is a question of fact which is entirely within the jurisdiction of the tribunal. The tribunal acted within jurisdiction.

10. I dismiss this application. I order that the applicant pay the respondent's costs which I assess in the sum of $4250 in accordance with Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia