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MIGRATION - Review of Refugee Review Tribunal - application for a protection visa - whether the applicant has a well-founded fear of persecution for reasons of religion or political association - whether the applicant was denied procedural fairness - where the credibility of documentary evidence was in issue.

NADA v Minister for Immigration [2003] FMCA 148 (10 April 2003)

NADA v Minister for Immigration [2003] FMCA 148 (10 April 2003)
Last Updated: 2 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NADA v MINISTER FOR IMMIGRATION
[2003] FMCA 148



MIGRATION - Review of Refugee Review Tribunal - application for a protection visa - whether the applicant has a well-founded fear of persecution for reasons of religion or political association - whether the applicant was denied procedural fairness - where the credibility of documentary evidence was in issue.



Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] 190 ALR 60

Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA

Kamal v Minister for Immigration [2002] FCA 818

Applicant:
NADA



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1300 of 2002



Delivered on:


10 April 2003



Delivered at:


Sydney



Hearing date:


10 April 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Self Represented with Bengali Interpreter



Counsel for the Respondent:


Mr S Lloyd



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 1300 of 2002

NADA


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

15 August 2000. On 11 September 2000 he launched an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act. On

31 October 2000 a delegate of the Minister refused to grant him a protection visa and on 27 November 2000 he applied for review of that decision.

2. I note with some interest that it took almost two years for a decision to be made by the Tribunal in this matter. I note that it has only taken approximately six months for this matter to be heard by this Court. The Tribunal upheld the decision of the delegate and it is against that decision the applicant seeks review.

3. At [CB 122] the Tribunal succinctly sets out the applicant's claims. It states:

"The applicant claims that because he and his spouse are of differing religious backgrounds, ie Muslim husband and Christian wife, they will face harm in Bangladesh from fundamental Muslim extremists and that the government would not be able to protect them from that harm. He claims that their engagement/wedding party was attacked by religious opponents in March 2000.

He further claims that as a member of the Jatiya Party he is at risk of harm from the party's political enemies. He claims they have and will make political capital out of his mixed faith marriage, and that he was physically attacked by political opponents in January 2000. He further claims that he was being sought by the Bangladesh authorities because of false charged laid against him in 1992 and that in April 2000 he was arrested in false charged and detained for two weeks before being released on bail."

4. The tribunal in its findings and reasons at [CB 123] accepted that the applicant was a supporter of the Jatiya Party and, although it does not state so explicitly, would appear to explicitly accept that the lady to whom he is either married or engaged is a Christian. However, the tribunal notes that the Jatiya Parry is currently one of the members of the Coalition Government in office in Bangladesh and finds as far fetched the applicant's fear that he has a real chance of harm from supporters of other political parties. The tribunal made some further findings as follows:

"The tribunal also considers the applicant's claims that he was detained in 1992 and again in 2000 to be fabrications designed to advance his claims, a fabrication that his lawyer has been party to in writing, the letter submitted to the tribunal (or the letter, like the police and court documentation relating to events in 1992, are themselves fabricated documents). In making this finding the tribunal has regard to the independent evidence cited above, which the tribunal accepts, that fabricated documents are very commonly procured in Bangladesh. In making this finding the tribunal further finds as inconceivable that he (the applicant) should have been sought for some eight years on very serious charges but that he was not found by the authorities although during this time he was issued with a passport (which was subsequently re-validated), that he departed and entered the country three times to travel to India in 1998, and that he was detained by the authorities in April 2000 and that he again departed the country to come to Australia. Moreover, throughout this period he was in stable employment at the one address."

5. The applicant in his application states that the tribunal made mostly sweeping statements without perceiving the religious and political position in Bangladesh. He criticised the tribunal for not accepting his evidence. The form of application is one that would be familiar to any judicial officer who has had experience in these matters and especially of applicants from Bangladesh. It appears to be in a standard form and one that was relevant prior to the decisions of the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] 190 ALR 60 and more recently in Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2.

6. The applicant also provided me with written submissions and written argument. I think it can be safely assumed that the applicant did not write these himself and the author had caught up with Muin and mentioned briefly in paragraph 5 the latter case. Unfortunately, the applicant in neither the written submissions nor his oral representations to me was able to provide that any substantive argument or evidence to support an allegation of bad faith or a failure to provide procedural fairness either of the Muin type or of the type considered by the High Court in Plaintiff S157 of 2002.

7. I am therefore left with the applicant's representations, which are essentially an argument that he should have been believed and that the information that he provided to the tribunal should have been sufficient to convince the tribunal that he was a person to whom Australia owed protection obligations. In Kamal v Minister for Immigration [2002] FCA 818 at [36] Mansfield J said:

"It is not for the court, in reviewing a decision of the tribunal, to form its own view as to whether it would not have given the perceived inconsistencies the significance attributed to them by the tribunal, or upon any such view to conclude that the tribunal's assessment of the applicant's claims should not have been made. Those evaluative processes are for the tribunal."

8. The tribunal carried out its evaluation. It listened to the evidence of the applicant and it took into account certain country information. Most importantly, in regard to the mixed marriage it took into account the fact that reports that had been received from the Australian High Commission indicated that there really were not severe problems with persons who entered into mixed marriages where those persons were of the educated middle class and lived in the larger cities. The tribunal considered that this applied to the applicant.

9. If I have any criticism at all of the tribunal it is about its very firm findings concerning the fabrication of the documents which are found at [CB 66-74]. These documents have all the appearance of genuine documents. They have multiple seals, they have certificates of comparison with the originals and they have the look of a genuine document. To say the particular documents are fabricated because the country information indicates that some documents are fabricated, even when the tribunal has other concerns about the charges that are allegedly contained in those documents, does, to my mind, seem to be pushing the tribunal's fact finding ability to its limit.

10. However, I do not believe that this criticism impugns the decision which is based upon additional reasons and findings that the tribunal was within its powers to make. I dismiss the application. I order that the applicant pay the respondents costs which I assess in the sum of $4250 in accordance with Federal Magistrates Court Rules, Part 21, Rule 21.02(2)(a).


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

Associate:

Date:
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