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MIGRATION - Review of RRT decision - application for protection visa - well-founded fear of persecution for reasons of political association - credibility of applicant's evidence - whether the Tribunal's decision was made in a bona fide manner.

PROCEDURAL FAIRNESS - Whether the Tribunal considered all the relevant information and did not take into account irrelevant information.

NATC v Minister for Immigration [2003] FMCA 22 (31 January 2003)

NATC v Minister for Immigration [2003] FMCA 22 (31 January 2003)
Last Updated: 10 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NATC v MINISTER FOR IMMIGRATION
[2003] FMCA 22



MIGRATION - Review of RRT decision - application for protection visa - well-founded fear of persecution for reasons of political association - credibility of applicant's evidence - whether the Tribunal's decision was made in a bona fide manner.

PROCEDURAL FAIRNESS - Whether the Tribunal considered all the relevant information and did not take into account irrelevant information.



Migration Act 1958 (Cth), ss.426A, 474

Judiciary Act 1903 (Cth), s.39B

R v Hickman; Ex parte Fox v Clinton (1945) 70 CLR 598

NAAV v Minister for Immigration (2002) 193 ALR 449

Muin v Refugee Review TribunaL; Lie v Refugee Review Tribunal [2002] HCA 30

Applicant:
NATC



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 923 of 2002



Delivered on:


31 January 2003



Delivered at:


Sydney



Hearing date:


31 January 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Self-represented



Counsel for the Respondent:


Mr G Kennett



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4250 in accordance with Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.



FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 923 of 2002

NATC


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 8 November 1999. On 29 November 1999 he lodged an application for a Protection (Class XA) Visa with the Department of Immigration, Multicultural & Indigenous Affairs. On 19 January 2000 a delegate of the Minister refused to grant him a protection visa. On

15 February 2000 the applicant applied for review of that decision. The review was conducted by the Refugee Review Tribunal who, on 17 May 2002 wrote to the applicant advising that it had considered all of the papers relating to his application but was unable to make a favourable decision on that information alone.

2. The Tribunal invited the applicant to give evidence and present arguments at a hearing on Thursday, 11 July 2002, this invitation was accepted but the applicant did not attend the hearing. Although the applicant now tells me he was sick at the time, he did not so inform the Tribunal. The Tribunal proceeded to consider the matter pursuant to its powers under s.426A of the Migration Act 1958 (Cth) (`the Migration Act').

3. The applicant's alleged well-founded fear of persecution for convention reasons arose out of his membership of the Freedom Party which, he had joined in the 1980's. He alleged that in 1995 he had been elected to a very high position in the Freedom Party branch in the district in which he lived. The applicant submitted that in the 1996 elections, which had been won by the Awami League, that party had blamed the work of the Freedom Party activists for the seat in the applicant's local area being won by the BNP.

4. The applicant felt unsafe and believed he was likely to be targeted by the Awami League, so he left Bangladesh and flew to Singapore. He remained in Singapore until 1999 when he returned to Bangladesh because of his father's illness. The applicant submitted that when the Awami League heard that he had returned home they had tried to kill him, so he went into hiding and then finally fled the country going first to Thailand and then to Australia.

5. The concerns which the Tribunal expressed about the statement of the applicant arose out of the discrepancy between what he had submitted and what the documents which were contained within his submission revealed, for example, at [CB 81] the Tribunal says:

"The applicant's claims of persecution date from the campaign for the June 1996 election as he states that it was because of his allegedly tireless work in that campaign that he had seriously drawn on him the wrath of activists of the Awami League in succeeding years. I cannot, however, be satisfied that he had been active in that campaign as his evidence in his protection visa application states that he had been in Singapore from January 1996 for three years. Since I cannot be satisfied that had been active in the 1996 campaign, I'm not satisfied that he had ever been harmed and threatened, as he claims to have been, in succeeding years by the Awami League.

Also, in his statement of claims the applicant states that after an attack in June 1999 he had fled to Singapore for safety for some years. This is inconsistent with his claims of having been in Singapore for some years until 1999, not from 1999. The claim of having fled to Singapore after the June 1999 attack is in turn inconsistent with his claim of having returned from Singapore to Bangladesh in May 1999."

However, it would appear that the most telling inconsistency arose around the fact that although the applicant claimed that his fear of persecution arose out of what occurred to him after he had returned to Dacca in 1999, that he had applied for his Australian (and incidentally also, a New Zealand) visa whilst in Singapore. The Tribunal came to the conclusion that:

"This indicates that he had made plans for coming to Australia well before any alleged attack on him in June 1999 and suggested his reason for coming to Australia were unconnected with a fear of persecution."

6. The application, which was lodged firstly in the Federal Court and now transferred to this court, refers to the Tribunal's "heavy dependence in their handling of the issues based on the generalised facts and findings of DIMIA." This attack on the Tribunal's use of country information is repeated in the applicant's affidavit and in some written submissions, which were prepared on his behalf and provided to the court. The written submissions constitute the argument which the applicant would have made if he had appeared before the Tribunal about the political situation in Bangladesh and in particular, the applicant's concern about the impartiality of the legal system. In essence, the submission is no more than the provision of further evidence or argument.

7. In the penultimate paragraph on page 5 of the applicant's submissions he states:

"Without the oral hearing of protection visa application making decision is bared by the policy and not fair for the natural justice. And also, the member made decision of my review application without any inquiry and investigation."

It is possible that this submission could be read as a submission going to the bona fides of the decision-maker. This is the one available ground given to the applicant following the imposition into the Migration Act of s.474 and the decision of the Full Bench of the Full Court in NAAV v Minister for Immigration (2002) 193 ALR 449. When I say the one available ground I do so in the context of this particular application, which makes no criticism which would involve the court considering the other exceptions to the Hickman principles found in R v Hickman; Ex parte Fox v Clinton (1945) 70 CLR 598.

8. I am satisfied that the Tribunal had the power and properly invoked it under s.426A of the Migration Act to hold a hearing in the absence of the applicant. No corroborative evidence of the illness which he claims to have suffered from was provided either to the Tribunal or to this court. By proceeding in the manner in which it did, the Tribunal has not to my mind, indicated any failure to enter upon its task other than in a bona fide manner. The applicant does in his application make reference to s.39B of the Judiciary Act 1903 (Cth), he also mentions Muin v Refugee Review TribunaL; Lie v Refugee Review Tribunal [2002] HCA 30, two recent High Court cases which were decided on the law prior to s.474 being inserted into the Migration Act. Although the applicant states that these cases are relevant he does not say how.

9. The Tribunal did not ignore the current situation in Bangladesh, at

[CB 83] it details the country information which it relied upon to come to the view which had expressed at the bottom of that page that the new BNP government would continue to extend a hand of friendship and support to the Freedom Party, as it had done in the past. To the extent that this conclusion is debateable, it is debateable in the Tribunal, it is not debateable in this court. It is not within the power of this court to substitute its views about the political situation in Bangladesh for those of the Tribunal. I found no indication that the Tribunal asked itself the wrong questions, relied on irrelevant information or did not take into account relevant information. The applicant has not in his submissions to me articulated any other way in which he says s.39B review would be available, even if s.474 was found to be constitutionally invalid.

10. I dismiss this application and I order that the applicant pay the respondent's costs which I assess in the sum of $4250 in accordance with Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

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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