Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Review of decision of the Refugee Review Tribunal - application for a protection visa - whether the Tribunal followed proper procedures - whether the Tribunal's decision was affected by other jurisdictional error - where Tribunal's decision based upon applicant's credibility - whether applicant should have been allowed time to produce documents when the review process took two years.

NABS v Minister for Immigration [2003] FMCA 92 (4 March 2003)

NABS v Minister for Immigration [2003] FMCA 92 (4 March 2003)
Last Updated: 28 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NABS v MINISTER FOR IMMIGRATION
[2003] FMCA 92



MIGRATION - Review of decision of the Refugee Review Tribunal - application for a protection visa - whether the Tribunal followed proper procedures - whether the Tribunal's decision was affected by other jurisdictional error - where Tribunal's decision based upon applicant's credibility - whether applicant should have been allowed time to produce documents when the review process took two years.



Migration Act 1958 (Cth), s.48B

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 68 ALD 257

Re Minister for Immigration; Ex parte `A' [2002] 185 ALR 489

Applicant:
NABS



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1078 of 2002



Delivered on:


4 March 2003



Delivered at:


Sydney



Hearing date:


4 March 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Self Represented



Counsel for the Respondent:


Mr R Bromwich



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 Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1078 of 2002

NABS


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter claims to be a citizen of Bangladesh. He claims to have arrived in Australia on either 22 or 23 October 1999. On 4 January 2000 he lodged an application for a protection (Class XA) visa. On 3 March 2000 a delegate of the Minister refused to grant him a protection visa and on 15 March 2000 the applicant applied for a review of that decision from the Refugee Review Tribunal. The Tribunal considered the matter. It interviewed the applicant and made its decision on 22 August 2002. The decision was handed down on 11 September 2002. On 4 October 2002 the applicant appealed to the Federal Court seeking a review of the decision of the Tribunal which had upheld the original decision of the delegate.

2. I do not think it is necessary for me to go into the facts of this matter in any great detail. Suffice to say that the applicant claims that he was a political activist in the interest of the Bangladesh Nationalist Party (BNP). At a later stage he claimed that he was a union official, but also in the interests of the BNP. He claimed that he spent considerable time in hiding because of threats being made to him and that he feared for his life if he returned to Bangladesh.

3. The applicant produced no documentation in support of any of his claims. Indeed, he did not even produce any documentation in support of the name which he gave and there was some debate between himself and the Tribunal as to the name under which he arrived in Australia, his passport now having vanished.

4. The first paragraph of the Tribunal's findings and reasons which I quote below give the flavour of the Tribunal's decision:

"I am not satisfied that the applicant is a witness of truth, and I have reached the view that his claims of having come here on a false passport about which he allegedly knew nothing, of lacking a passport and any other means of identification, and of knowing very little English, are a pretence aimed at distancing the Tribunal from knowledge of his actual history. At the hearing the applicant was evasive with his answers, changed evidence to suit his purposes and generally did not impress the Tribunal as a source of credible information. It was certainly clear from his demeanour that he understood English far more clearly than he affected to, although he continued to use the interpreter provided."

The basis of the Tribunal's decision was that it did not believe that the applicant had a well-founded fear of persecution for a Convention reason in Bangladesh and therefore Australia did not owe to him any protection obligations.

5. The applicant filed on his own behalf an application with the Federal Court. It sets out three grounds upon which he believes that the Tribunal erred in law and was susceptible to review. These grounds are as follows:

"(a) The Refugee Review Tribunal did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed. [Moin, Lee's [sic] case].

(b) The RRT decision was affected by an "error of law" and "jurisdictional error."

(c) There was no evidence or other material to justify in making of the decision."

The applicant filed an affidavit in support of his application but this only went to the facts of his claim for protection.

6. On 24 October 2002, the applicant attended a directions hearing before the Registrar where standard orders requiring an amended application and the filing of submissions were made. Those orders were not complied with. The matter was referred to the Federal Magistrates Court by order of Allsop J on or about 30 October 2002.

7. When I asked the applicant to inform me why he believed the Tribunal had fallen into error, he told me that the Tribunal had made a mistake in finding the fact that he had security in Bangladesh. He said there was no law and order in Bangladesh and that every day people were killed for political reasons. The applicant reminded me that he was the general secretary of the Union of the Philips Company and had been in that position between 1973 to 1995. He said that because he could not be defeated democratically the opposition conspired to kill him. He repeated that he had no security in Bangladesh and he wished me to consider this fact and give him protection. He told me that his children and family were in hiding and that if he was sent back and he was killed, his family and children would be helpless.

8. These remarks by the applicant did not address the legality of the Tribunal's decision. I must therefore turn to the application itself and consideration of the court book to see whether any of the grounds stated therein can be made out. None of the grounds were particularised.

9. The first point that the applicant raised appears to have been based upon the High Court decision of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 68 ALD 257. Those cases were decided on their particular agreed facts. No facts were agreed in this case. The Full Bench of the Federal Court had made it clear in a number of decisions that it is necessary for an applicant who wishes to raise what can be described as a `Muin' argument must prove the necessary facts. These decisions have been supported by his Honour Kirby J in the High Court in Re Minister for Immigration; Ex parte `A' [2002] 185 ALR 489. In the absence of even a skerrick of proof, I am not prepared to make any findings of the type required by the applicant in this case.

10. I would also note that this was not a case in which findings of fact based upon country material was in any way material. The applicant failed because he was not believed.

11. The second ground raised by the applicant can be dealt with in the same manner. In the absence of any details as to what the error of law or jurisdictional error may have been I can only look at the reasons.

I find that there is nothing in those reasons which raises a suspicion that the Tribunal erred in law or committed some jurisdictional error. The Tribunal's task is to assess the credibility of an applicant, this it did, it found against him. The existence of such finding is not in itself a cause for review.

12. The final matter raised by the applicant was that there was no evidence or other material to justify the making of the decision. The Tribunal has explained in detail from [CB 76-81] the reasons why it did not accept the applicant's story. To my mind there was a basis for the conclusions which the Tribunal reached and the evidence which it used is clearly identified.

13. In reply the applicant informed me that he had asked for time to enable himself to produce documents in support of his claims. The transcript will show that he referred to the Federal Court in this regard. He may also have been referring to the Tribunal. I would merely point out that in respect to the Tribunal, the applicant had two years from the time of the rejection of his application by the delegate until the hearing before the Tribunal but he produced no documents in that time. In regard to the court the matter was set down in October 2002 and not heard until March 2003. I accept that any documentation that the applicant might have produced to me today would not have been able to affect my decision. However, if it had been produced and had appeared credible it might have formed the basis of an application to the Minister under s.48B of the Migration Act 1958 (Cth).

14. In all these circumstances I must dismiss this application. I do so.

I order that the applicant pay the respondent's costs which I assess in the sum of $4,250.00 pursuant to Part 21, rule 21.02(2)(a) of the Federal Magistrates Court Rules.


I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia