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MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether applicant had a well-founded fear of persecution for Convention reasons - alleged fear for reasons of political association - credibility of applicant's evidence - whether the Tribunal's decision lacked bona fides - whether the Tribunal ignored relevant material - whether this court can review the Tribunal's decision on its merits.

NAAL v Minister for Immigration [2003] FMCA 52 (20 February 2003)

NAAL v Minister for Immigration [2003] FMCA 52 (20 February 2003)
Last Updated: 19 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAAL v MINISTER FOR IMMIGRATION
[2003] FMCA 52



MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether applicant had a well-founded fear of persecution for Convention reasons - alleged fear for reasons of political association - credibility of applicant's evidence - whether the Tribunal's decision lacked bona fides - whether the Tribunal ignored relevant material - whether this court can review the Tribunal's decision on its merits.



Judiciary Act 1903 (Cth) s.39B

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Kamal v Minister for Immigration [2002] FCA 818

Applicant:
NAAL



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1072 of 2002



Delivered on:


20 February 2003



Delivered at:


Sydney



Hearing date:


20 February 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Self Represented



Counsel for the Respondent:


Mr Michael Wigney



Solicitors for the Respondent:


Clayton Utz


ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4,250.00 pursuant to Part 21 rule 21.02(2)(a) of the Federal Magistrates Court Act.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1072 of 2002

NAAL


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

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

11 April 2000. He was a seaman whose ship arrived in Port Adelaide on that day. On 19 April 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration. On 8 May 2000 a Delegate of the Minister refused to grant a protection visa.

2. The applicant applied for review on 30 May 2000 and the matter was referred to the Refugee Review Tribunal, which interviewed the applicant and made its decision to affirm the delegate's decision on

26 July 2002. The decision was handed down on 20 August 2002.

3. The applicant claimed that he was the cultural secretary of a government college student union in 1993 and 1994 and was a student activist in the BNP party. In 1995 he joined the party itself and was appointed as general secretary of the local constituency unit. The applicant claimed that there was a split in the party over the candidature of a Mr Bulu and he and his group were supporters of another candidate who was unsuccessful.

4. The applicant claimed to have been involved in a meeting at which an attack was launched by a group of Awami league followers. He claimed that after the Awami league was elected to power he had further problems including the filing of a false case against him and being beaten up by an Awami league party member. These incidents persuaded him that he would be best served by leaving Bangladesh and he obtained work with a shipping line in 1997. He did return to Bangladesh in 1999 but continued his work as a seaman until he found he way to Adelaide in 2000. He stated that at the time of his departure from Bangladesh in 1997 the police had been trying to arrest him on false charges and that he had to go into hiding so that they could not find him. He said that in 1999 when he returned to Bangladesh he remained in hiding for three months.

5. The Tribunal considered the applicant's claims against the background of independent evidence much of which is quoted between [CB 90] and [CB 96]. The Tribunal accepted that the applicant became an active member of the BNP student wing, particularly in the area of culture. Although before me today the applicant seemed to indicate that he did not think that the Tribunal had done so. The relevant passage is found at the top of [CB 97]. In the second paragraph of that part of the Tribunal's reasons the Tribunal accepted that the applicant became a BNP party member and held positions both in student politics and in the local constituency. The Tribunal also accepted the applicant's claims concerning the problems with Mr Bulu.

6. What the Tribunal does not accept is that the applicant had false charges laid against him, or that he was convicted in absentia as he claimed. The Tribunal provided a reason for this view, being that the applicant had twice departed and once re-entered Bangladesh as a seaman using his own passport. The Tribunal took the view that it was most unlikely that he would not have been found by government authorities if he truly had been the subject of a criminal conviction. The Tribunal also found it implausible and did not accept that the applicatant would have been convicted in 2000 for a crime he was alleged to have committed in 1996.

7. The Tribunal found that the applicant was only active in Bangladesh in politics at a local level, and given the fact that he had been away from the country for such a long time, it did not accept that his political profile would have remain sufficiently prominent, that those he claims to fear would still seek him. The applicant in addressing me, said that the Member did not ask him about violence in Bangladesh. I am not satisfied that that is the case, but in any event, the Tribunal set out in some detail country information which indicated that the political situation in Bangladesh is violent and many of the concerns that the applicant claimed to have are concerns which may be genuinely held by politically active people in Bangladesh. The Tribunal came to the conclusion that those fears would not be held by this applicant. The applicant also submitted that the Tribunal had not accepted that he was a cultural secretary at the university, but as I have indicated this is also wrong.

8. The applicant requested an adjournment and in my reasons for declining that request I pointed out that the essence of the Tribunal's decision was that it did not accept the evidence of this individual applicant even though it was prepared to accept the situation in Bangladesh for which the applicant contended. Provided the Tribunal has evidence upon which that finding can be made, it would not have made any reviewable error by coming to that conclusion. The applicant argued that the Tribunal was biased, but his reasons for making that very serious allegation effectively arose out of the decision itself. To the extent that it arose out of an allegation that the Tribunal had not properly considered the evidence, I have already found that the applicant was wrong in this. I cannot accept that the Tribunal approached this matter with any lack of bona fide.

9. I accept the submission made by Mr Wigney for the respondent, that the Tribunal did not ignore evidence, he considered it and did not accept it, the reasons for which were given at [CB 97-98]. I think Mr Wigney is right when he submits what the applicant is really seeking here is a review of the merits. He wishes me to take a different view of the situation in which he finds himself to that to which the Tribunal came. This is not something which the court can do. Mr Wigney also points out that to the extent that the applicant is suggesting that the Tribunal made mistakes of fact, these are not available to ground review (See Abebe v The Commonwealth (1999) 197 CLR 510).

10. Finally, it is clear from such decisions as Kamal v Minister for Immigration [2002] FCA 818 that it is for the Tribunal to form its own view as to the credibility of the applicant and not for the court to conclude that the Tribunal's assessment of the applicant's claim should not have been made. Evaluative processes are for the Tribunal. In all these circumstances, I am unable to find that the Tribunal in this case have fallen into error such as to ground review under s.39B of the Judiciary Act 1903 (Cth).

11. I dismiss the application. I order that the applicant pay the respondent's costs, which I assess in the sum of $4250.00 pursuant to Part 21

rule 21.02(2)(a) of the Federal Magistrate's Court Act. I do this, notwithstanding the request by the applicant that he be relieved of costs in view of his impecuniosity. There has been nothing else put to me which would influence me to depart from the usual order in these matters.

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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