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MIGRATION - Review of decision of RRT - applicant member of JCD - Tribunal found lack of credibility - whether "Muin" type claims are available to applicant - whether such errors constitute bad faith - whether alleged errors constitute reviewable breaches of natural justice principles.

NARF v Minister for Immigration [2003] FMCA 15 (22 January 2003)

NARF v Minister for Immigration [2003] FMCA 15 (22 January 2003)
Last Updated: 4 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NARF v MINISTER FOR IMMIGRATION
[2003] FMCA 15



MIGRATION - Review of decision of RRT - applicant member of JCD - Tribunal found lack of credibility - whether "Muin" type claims are available to applicant - whether such errors constitute bad faith - whether alleged errors constitute reviewable breaches of natural justice principles.



Muin v Refugee Review Tribunal [2002] HCA 30

NAAV v Minister for Immigration [2002] FCAFC 228

NADR v Minister for Immigration [2002] FCAFC 293

Applicant:
NARF



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 931 of 2002



Delivered on:


22 January 2003



Delivered at:


Sydney



Hearing date:


22 January 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs in the sum of $4,250.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 931 of 2002

NARF


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of Bangladesh who arrived in Australia on 26 January, 2000. On 9 March, 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration. On 17 March a Delegate of the Minister refused to grant him a protection visa and on 10 April the applicant applied for a review of that decision.

2. The Tribunal's review was conducted in June 2002, a decision was made on 23 June, 2002 and was handed down on 16 July, 2002. The decision upheld the decision of the Delegate. The applicant now seeks judicial review of that decision. The applicant's claim to hold a well founded fear of persecution for Convention reasons arises out of his membership of the student wing of the Bangladesh Nationalist Party known as the JCD.

3. The applicant claimed that his activities as a member of the JCD had come to the attention of a businessman who supported the opposition party known as the Awami League. This businessman had attempted to encourage the applicant to leave the JCD and to join the Awami League. The applicant says he refused and as a result was assaulted by persons employed by the businessman. He claims to have been badly beaten, rendered unconscious and required to spend approximately 10 days in hospital. He believes he would be killed if he was returned to Bangladesh. The applicant also made claims about false charges being levelled against him.

4. All these matters were summed up by the Tribunal in its findings but after consideration of the evidence and of country information available to the Tribunal, the Tribunal said this:

" In summary of the above, I find there to be a lack of credibility in many of the applicant's claims. I am not satisfied that he encountered problems of such magnitude that he has been forced to escape from Bangladesh and am of the firm view that he left Bangladesh for reasons unconnected with a need to find protection for persecution. I am satisfied that he can avail himself of the protection of the authorities in relation to harm that he might face over the expression of his political opinion if he does engage in politics. I am not satisfied that he has a well founded fear of persecution under the terms of the Convention in Bangladesh."

5. The application filed by the applicant makes a claim that the Tribunal by ignoring relevant evidence and making findings in the face of contradicting independent evidence entered on its task with a lack of bona fides. The application claimed that the Tribunal had acted with actual bias. These claims were modified in a document entitled "applicant's submissions" that was filed in the Court shortly before the hearing.

6. That document relied very heavily on the judgment of the High Court of Australia in Muin v Refugee Review Tribunal [2002] HCA 30. The applicant claims that the facts in his case are almost identical to those which came before the High Court in Muin. At paragraph 9 of the submissions the applicant says:

" The decision in relation to the applicant was misleading, and that the Tribunal Member must have known of its error and did nothing to correct it. The applicant strongly believes that the decision was acted on bad faith on the part of the Tribunal."

7. The applicant faces a number of difficulties. Firstly, he has not pointed to any evidence which would establish the facts that were agreed in Muin. Secondly, he has not established that the Tribunal did ignore evidence. Thirdly, he has not provided any other grounds upon which he can produce evidence of a lack of bona fides on the part of the Tribunal.

8. The relevance of a Muin type claim to the legal environment that exists following the decision of the Full Bench of the Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228 was considered by another Full Bench of the Federal Court in NADR v Minister for Immigration [2002] FCAFC 293. In that case Kiefel J who gave the major judgment of the Court said at [22]:

"The agreed facts in Muin went a long way towards the conclusion, on the part of the majority of the Members of the Court, that Mr Muin had been misled into thinking that he did not need to put information before the Tribunal. It would not have been necessary for him to provide that information if the Tribunal had itself had reference to it."

She goes on to say at [24] the following:

"Muin does not establish, as the submissions for the appellants implied, that the effect of sending a letter in those terms will amount to a denial of procedural fairness in circumstances where the Tribunal has not referred to the Part B documents in its later decision. Rather it holds 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. Whether it is necessary to infer that the Tribunal was not likely to have considered the material, or whether it is sufficient that it may not have done so, is perhaps moot. It is also of importance that a conclusion that the plaintiff was misled was rendered possible largely because of agreed facts."

9. Her Honour then went on to point out that the case before her, as the case before me, at a factual level may differ substantially from Muin, there are not agreed facts, there is no evidence that the applicant was misled and there is no evidence that he would have provided certain or any additional information had he believed that the matters referred to in the Part B documents had not been read.

At [29] Her Honour also considers the position in the light of NAAV, she says:

"[29]. In my view the decision in Muin does not avail the appellant. Further, Muin was not a case decided in connection with a privative clause. It is not disputed that the decision here is a private clause decision to which section 474(1) of the Migration Act 1958 (Cth) applies. NAAV holds that, provided the conditions referred to in Hickman are observed, section 474(1) operates, in effect to validate jurisdictional errors, including a breach of the rules of natural justice."

10. It seems to me that putting the applicant's case at its highest he can only argue a breach of natural justice. There really is no ground for making the assertion which he does, that the Tribunal did not enter into its task in a bona fide manner. This being the case I am bound by the decision in NADR and am unable to find in favour of the applicant.

11. I dismiss this application. I order that the applicant 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 $4,250.00.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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