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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - whether the RRT proceedings were fair - alleged problems of interpretation - no reviewable error found.

NARY v Minister for Immigration [2003] FMCA 44 (20 February 2003)

NARY v Minister for Immigration [2003] FMCA 44 (20 February 2003)
Last Updated: 5 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NARY v MINISTER FOR IMMIGRATION
[2003] FMCA 44



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - whether the RRT proceedings were fair - alleged problems of interpretation - no reviewable error found.



Applicant:
NARY



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INIGENOUS AFFAIRS



File No:


SZ974 of 2002



Delivered on:


20 February 2003



Delivered at:


Sydney



Hearing date:


20 February 2003



Judgment of:


Driver FM



REPRESENTATION

Applicant appeared in person

Solicitors for the Respondent:


Ms B Rayment

Sparke Helmore



ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs of and incidental to the application, fixed at $3,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ974 of 2002

NARY


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This ex tempore judgment relates to an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 21 June 2002 and handed down on 17 July 2002. The application for review filed in the Federal Court on 13 August 2002 set out the following grounds:

(1) The RRT erred in law, amounting to jurisdictional error, in finding that the applicant does not have any profile that places him at risk outside his home town in Bangladesh.

(2) The RRT exceeded its jurisdiction in making its decision to affirm the respondent's decision.

(3) The RRT constructively failed to exercise its jurisdiction in arriving at its decision.

(4) The applicant is entitled to a protection visa, which he has applied for.

(5) The applicant has a well founded fear of persecution in the country of his nationality. (That is stated in the application to be India but I understand that to be a mistake - he is from Bangladesh).

2. The application is supported by an affidavit from the applicant, also filed on 13 August 2002. I have received that affidavit into evidence. That affidavit repeats the grounds of review in the application.

3. In oral argument before me today, the applicant advanced different concerns about the RRT decision. In substance, the applicant now asserts that the proceedings before the RRT were unfair. He says the proceedings were unfair because he was not able to convey properly his reasons for claiming a protection visa. He says there were problems with interpretation. He also says that time before the RRT was short. He says that the presiding member would not accept his claims.

4. The applicant says that he tried to explain to the presiding member how members of his family had been killed, but this was either not understood or not believed. The applicant asked me to delay a decision in this case so that he could put further material before me. He also asked that I transfer the proceedings to the Federal Court. I declined both requests.

5. The Minister, who is now the only respondent in these proceedings, relies on written submissions filed on 18 February 2003. Those submissions note that the application contains no particulars which might assist the Court in determining whether the RRT made a reviewable legal error. However, the matters put before me today by the applicant orally go to the issue of procedural fairness.

6. In the proceedings before the RRT, the applicant claimed to fear persecution on the basis of his religion, namely Buddhism. He claimed that his father and sister had suffered persecution; in particular, his sister who had been killed by Muslim fanatics. This persecution was said to have happened on account of his religion. The applicant claimed that he was sent to Thailand in order to avoid further persecution.

7. The applicant was not believed by the RRT. In particular, the presiding member found that the applicant was not a reliable or credible witness (court book, page 47). The presiding member found that the evidence given by the applicant was vague, generalised, unconvincing, lacked specific detail, was elaborated and fabricated.

8. The RRT was entitled to make findings on credibility on the material before it. I accept the submission put by Ms Rayment, for the Minister, that the finding by the RRT that the applicant does not have any profile that places him at risk outside his home town in Bangladesh is a finding of fact not of law. The findings of fact and the findings on credibility made by the RRT were findings that the RRT was entitled to make on the material before it. I find that, in terms of the matters raised in the application and supporting affidavit no legal error in the decision of the RRT has been established.

9. I also find that the submissions made today by the applicant about the lack of procedural fairness are not sustained. The applicant had the assistance of an interpreter in the Bengali language as well as a migration agent at the RRT hearing. He told me from the bar table that he was concerned about the quality of the interpretation at the hearing. Nevertheless, he conceded that he did not say anything about it at the time and did not raise it afterwards until today. Mr Ali, who interpreted in court today, explained to me that the applicant speaks a dialect which, I understand, comes from to the Chittagong area in Bangladesh.

10. I accept that the applicant's use of this dialect renders interpretation more difficult. Nevertheless, I am satisfied that the applicant was able to communicate effectively in court today. Notwithstanding the applicant's assertions from the bar table, I have no evidence before me that there were any significant interpretation problems at the RRT hearing. The reasons for decision of the RRT make it clear that the RRT understood that the applicant was making serious claims of persecution, including a claim that his family had suffered violence. The presiding member understood the claim, but did not believe it.

11. It is apparent from the hearing information form (court book, page 34) that the applicant had approximately two hours before the RRT to explain his case. I am not persuaded that the applicant was disadvantaged. I am satisfied that the proceedings before the RRT were procedurally fair.

12. I will, therefore, dismiss the application.

13. On the question of costs, Ms Rayment, on behalf of the Minister, has sought an order for costs fixed in the sum of $3,300. The applicant has told me that he did not previously understand that he may be liable to pay costs. That may be so, but the Minister is entitled to an order for costs as the Minister has been wholly successful. In my view, by comparison with awards in other similar matters an amount of $3,000 would be appropriate. I will therefore order that the applicant pay the Minister's costs and disbursements of and incidental to this application, which I fix in the sum of $3,000.


I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 28 February 2003
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