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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - whether the RRT acted in good faith - whether the RRT was biased - whether the RRT committed jurisdictional errors - no reviewable error found.

NARG v Minister for Immigration [2003] FMCA 49 (24 February 2003)

NARG v Minister for Immigration [2003] FMCA 49 (24 February 2003)
Last Updated: 17 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NARG v MINISTER FOR IMMIGRATION
[2003] FMCA 49



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - whether the RRT acted in good faith - whether the RRT was biased - whether the RRT committed jurisdictional errors - no reviewable error found.



Applicant:
NARG



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ828 of 2002



Delivered on:


24 February 2003



Delivered at:


Sydney



Hearing date:


24 February 2003



Judgment of:


Driver FM



REPRESENTATION

Applicant appeared in person

Counsel for the Respondent:


Mr G Kennett



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed at $3,500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ828 of 2002

NARG


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") handed down on 17 July 2002. The RRT affirmed a decision of a delegate of the Minister not to grant to the applicant a protection visa. The application to review that decision was filed in the Federal Court on 12 August 2002 with a supporting affidavit and has been transferred to this Court. The applicant proceeded today on that application and affidavit, as well as on written submissions filed on 20 February 2003 and his oral submissions today. The applicant represented himself and expressed concern to me that he did not have access to a lawyer in order to assist him.

2. The applicant sought further time so that he could obtain legal assistance. He also expressed concern that he did not have the opportunity to see the respondent's written submissions prior to hearing, although they had been filed on 20 February 2003. I ruled that the applicant has had sufficient time to obtain legal representation prior to the hearing, but I did adjourn proceedings for approximately 30 minutes to allow the applicant to read the respondent's written submissions with the assistance of the interpreter. I appreciate that the applicant, as a self represented litigant, has faced difficulty in these proceedings. I have sought to take into account that difficulty in coming to a decision.

3. The general background facts are set out in paragraphs 1 to 4 of the respondent's witness submissions. I adopt that statement of background facts for the purposes of this judgment. Briefly, the applicant is a Bangladeshi national who sought a protection visa on the basis of asserted political persecution. The applicant claimed that he would suffer persecution from the Awami League in Bangladesh as a member of the Freedom Party. He submitted that he came to Australia on a false passport in order to escape that persecution. He submitted letters to the RRT purporting to come from Freedom Party members to support his claims.

4. The RRT made adverse findings in relation to these claims. Specifically, the RRT rejected the claim that the applicant had travelled on an assumed identity and found that he had travelled on his own passport. The RRT also rejected the claim that the applicant was a member of the Freedom Party. Further, the RRT found that even if the applicant was a Freedom Party activist, his fear of persecution was not well founded because only a few senior leaders of the Freedom Party were at risk and then only pursuant to the ordinary criminal law. The RRT also found that even if the applicant had suffered harm for a political reason, effective state protection was available.

5. In his application and written submissions, the applicant asserts that the RRT failed to observe procedures required to be observed under the Migration Act 1958 (Cth) ("the Migration Act"). The applicant asserts that the RRT ignored the merits of his claim and that the hearing before the RRT was procedurally unfair. The applicant asserts that the RRT rejected documents he presented without investigation. The applicant asserts that the RRT did not act in good faith and that it was biased. In his oral submissions, the applicant took issue with factual findings made by the RRT. In particular, the applicant disputes the finding that his passport was genuine. The applicant claims that he can prove that it is a fake passport.

6. The applicant also claims that he RRT presiding member was too quick to decide that the letters from the Freedom Party that he advanced were false. The applicant told me that he thinks that the RRT prejudged the outcome of his application. Those submissions go to the proposition that the RRT was biased and did not act in good faith. They may also go to a submission that there was a constructive failure on the part of the RRT to exercise its jurisdiction. The applicant is entitled to make those submissions, especially in the light of the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2. It is clear as a result of that decision that the applicant is able to advance arguments pointing to asserted errors of law by the RRT going to jurisdiction. While the applicant is entitled to put these arguments, it is another thing to satisfy the Court that they are made out.

7. The decision and reasons for the RRT decision (court book, page 89) do not contain in them anything indicating bias. It is a fact that the applicant is from Bangladesh, that he was claiming persecution based on political activity and that he relied on documents to support his claim. Such claims by persons from Bangladesh are very common.

8. Because such claims are very common, it is understandable that a presiding member might be suspicious before any claims are elaborated upon. I do not have a transcript of the proceedings before the RRT so I do not know whether any such suspicion was manifested. On its face, the decision and reasons of the presiding member indicates that whatever initial suspicion the member may have had, the claims advanced by the applicant were considered before being rejected. I am not satisfied that a claim of bad faith or bias has been made out.

9. Nor am I satisfied that there has been a constructive failure to exercise jurisdiction. Once again, the presiding member considered the applicant's claims before rejecting those claims. The RRT made adverse findings of fact and adverse findings on credibility. The applicant takes issue with the conclusions reached by the RRT but, as has been pointed out to him, it is not the function of the Court to consider the merits of the RRT decision.

10. In addition, there is no substance to the claim that procedures required by law were not observed. The applicant was invited to attend a hearing before the RRT and did so. It does not appear that the RRT took into account anything unknown to the applicant other than country information.

11. I am also satisfied that the proceedings before the RRT were fair. The applicant was given a hearing of approximately two hours. The presiding member raised with the applicant specifically the issue of the validity of his passport. The presiding member also raised with the applicant the issue of his Freedom Party membership and activities.

12. It is not apparent whether the presiding member raised with the applicant, prior to reaching a decision, the question of the validity of the letters from the Freedom Party that he relied on. However, it seems to me that the applicant did not suffer any disadvantage from that failure, if it occurred, because the presiding member went on to consider what the applicant's position would be if he were a Freedom Party member who was active in politics. The presiding member found that any genuine fear that the applicant might hold was not well founded on the basis of country information. That conclusion was reasonably open to the presiding member on the basis of the information available.

13. I am satisfied that the decision of the RRT was a bona fide attempt to exercise its powers. The decision clearly related to the subject matter of the legislation and was an exercise of the powers conferred upon the RRT. I am not satisfied that any error of law going to jurisdiction has been established.

14. Accordingly, I will dismiss the application.

15. Mr Kennett has sought an order for costs in the sum of $4,000, taking into account the amount of preparation involved and the length of the hearing. The applicant has resisted an order for costs on account of his financial circumstances. The Minister has been wholly successful in the application. I am satisfied that he is entitled to an order for costs. The applicant's financial circumstances is a matter that the Minister can take into account in deciding whether or not to collect the costs.

16. As to the amount of costs, I am satisfied that it was reasonable and proper for the Minister to be represented by counsel today. In addition, what I would describe as the usual amount of preparation was required for these proceedings. Somewhat longer than usual was required for the oral hearing. That was in part due to the need to give the applicant time to read the respondent's witness submissions which it seems were sent to the wrong address. Assuming that to be the case, that is not the applicant's fault. In all the circumstances, in my view, an order for costs in the sum of $3,500 would be appropriate. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 11 March 2003
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