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MIGRATION - Application for review of decision of the Refugee Review Tribunal - no reviewable error identified.

NACD v Minister for Immigration [2002] FMCA 190 (30 August 2002)

NACD v Minister for Immigration [2002] FMCA 190 (30 August 2002)
Last Updated: 5 September 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NACD v MINISTER FOR IMMIGRATION
[2002] FMCA 190



MIGRATION - Application for review of decision of the Refugee Review Tribunal - no reviewable error identified.



Migration Act 1958 (Cth) s.474

Judiciary Act 1903 (Cth) s.39B

NAAG of 2002 v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 713

Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397

Craig v South Australia (1995) 184 CLR 163

Savvin v Minister for Immigration & Multicultural Affairs (1999) 166 ALR 348

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1

NAAV v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCAFC 228

Applicant:
NACD



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 428 of 2002



Delivered on:


30 August 2002



Delivered at:


Sydney



Hearing Date:


15 July 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Clayton Utz


ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $3,750.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 428 of 2002

NACD


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter was a resident of Bangladesh who claims to have been born on 3 June 1971 in Dhaka. He arrived in Australia on what he alleges to be a false passport containing a student visa in January 1999 and submitted an application for a protection visa Class AZ Sub Class 866 on 17 February 1999.

2. Consideration of the applicant's status have wound their way through the administrative and judicial appeal processes up to the High Court of Australia. The matter was referred back to the Refugee Review Tribunal constituted by Roslyn Smidt who on 18 December 2001 (handed down 17 January 2002) affirmed the decision not to grant the applicant a protection visa.

3. The applicant applied for review of the Tribunal's decision to the Federal Court of Australia. On 6 June 2002 Beaumont J transferred the matter to this court. The Federal Magistrates Court has jurisdiction to hear this matter by virtue of s.483A of the Migration Act 1958 (Cth).

4. The applicant claims he is aggrieved by the decision because:

"I am 30 years old. I were educated in Bangladesh. I travelled to Australia with a false passport to avoid persecution. I manage authority of Bangladesh to avoid harassment in airport and other concerned places from various documents which I have submitted to the RRT, it is clearly evidence that I am a genuine refugee from claiming a refugee status in Australia. My parents are non-Bengalis. I have a Pakistani background. I have no nationality. I am a genuine refugee because I have no state or country of nationality. I was attacked in the street by a group of five or six Bengali men when I was about 15 years old. They threatened me to leave Bangladesh and they tried to kill me, lucky I was escape."

5. The grounds of the applicant's application are:

"During my RRT interview the authority did not ask me relevant questions. Rather they raised unnecessary and irrelevant issues which I think not sufficient and also not important to review the DIMA decision on various stage. I provided a detailed submission and necessary supporting documents in describing my situation but the presiding member didn't consider those in establishing my refugee status.

The Tribunal's decision are not supported by the independent source of facts and evidence and thus I am seeking a review of the decision."

6. The matter came before the Registrar for directions on 28 February 2002 when, inter alia, the following directions were made:

i) The applicant file and serve any amended application and any evidence upon which he proposes to rely on or by 29 March 2002.

ii) The applicant serve an outline of submissions on or before five working days prior to the hearing date.

7. The applicant was offered legal assistance pursuant to the pilot scheme operating in the State of New South Wales. As at the date of the hearing no amended application or other documents were filed.

8. The applicant appeared before me unrepresented.

9. In the respondent's written submissions I am advised that this decision is one to which s.474 of the Migration Act applies. This is the privative clause which Allsop J described in NAAG of 2002 v MIMIA [2002] FCA 713 as widening the powers of the Tribunal so that:

"That widened authority means that the state, or lack, of satisfaction, however reached, with whatever attendance there may have been to what, absent s.474, may have been irrelevant considerations, or with whatever misunderstanding of the right question to answer, whether capricious, arbitrary or lacking a probative foundation or a rational connection with circumstances present, or fanciful, is within the lawful authority and jurisdiction of the decision maker to reach, so long as the decision was reached bona fide and in compliance with the other requirements laid down in R v Hickman; ex-parte Fox and Clinton (1945) 70 CLR 598."

10. The respondent sought that I follow the decisions represented by Turcan v MIMA [2002] FCA 397 in which Heerey J said:

"In my view, the correct approach is to first consider whether s.474 applies. If it does, the court need not, indeed should not, go any further."

11. The views of Heerey J were not universally accepted in the Federal Court. The position which I took at the time this case was heard was that, particularly in the case of an unrepresented litigant, I believed it was appropriate to consider from the papers whether or not any ground for the exercise of a review pursuant to s.39B of the Judiciary Act 1903 (Cth) might be available to the applicant before considering whether or not that ground was excluded by the privative clause.

12. The applicant submits that he is a stateless person. His statelessness comes about because his family moved from what was then known as West Pakistan to what was then known as East Pakistan some considerable time before Bangladesh obtained its independence in 1971/1972. He claims that his family are not Bihari in that they are not originally from the Bihari province of India. He says that he is unable to obtain residence in the country now known as Pakistan and as he is not a citizen of Bangladesh he has no status there.

13. The applicant states that his parents were killed in the troubles preceding Bangladeshi independence and that he was brought up by his grandfather who died five years later. Thereafter he appears to have lived with Mr Chowdhury, the manager of his grandfather's shop in Dhaka. He stopped his schooling because of taunts from other children about his Pakistani background. He alleges he was the subject of threats by Bangladeshi gangs on the ground of his ethnicity on an occasion when he was approximately fifteen years old and again shortly before he left for Australia. After the latter attack he informed Mr Chowdhury who said that he was being victimised because he was a stranded Pakistani and Mr Chowdhury recommended that he left the country. An arrangement was made with Mr Chowdhury whereby the applicant signed over to him any rights he had in his grandfather's shop and Mr Chowdhury provided him with a passport and visa.

14. The applicant expresses concern that the Tribunal came to the view that he was not a stranded Pakistani as opposed to a Bihari. In fact the Tribunal came to the view that he was in all probability a Bangladeshi. However, the Tribunal did give consideration to the claim that he was a stranded Pakistani and cited evidence to the effect that people of that description were generally not persons who claimed to be descendants of persons born in Pakistan. The Tribunal gave reasons for its conclusions which appear to be drawn from the evidence and I am not able to ascertain from the papers before me any indication that the Tribunal:

"Fell into an error of law which caused it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, make an erroneous finding or reach a mistaken conclusion." (Craig v South Australia (1995) 184 CLR 163 at 179).

15. The Tribunal came to the conclusion that even if the applicant was a Bihari or a stranded Pakistani who was not a Bihari then he was not a stateless person because in certain circumstances such people are able to return to Pakistan. The Tribunal also pointed out the ability of such persons, at least in 1971 to take out citizenship of Bangladesh.

16. The Tribunal came to a conclusion that the applicant did not have a genuine fear of persecution because it did not believe the claim of the attacks made on him by a criminal gang led by the Zihural Islam. The Tribunal explains the steps by which it came to this conclusion. The Tribunal also dismissed the applicant's claim that he was persecuted by being denied access to education or employment noting that he did attend school, although he voluntarily left and he was at all times employed in the shop managed by Mr Chowdhury.

17. Finally the Tribunal rightly pointed out that the claim made by the applicant that a stateless person was entitled to refugee status notwithstanding a lack of a well founded fear of persecution had been authoritatively discounted by the Full Bench of the Federal Court in Savvin v MIMA (1999) 166 ALR 348.

18. The powers of the court under s.39B of the Judiciary Act to review decisions are described lucidly and shortly by the learned authors of the Australian Administrative Law Service (Butterworths) at 1701:

"The courts are not, however, able to concern themselves with the merits of a decision. Their review powers are limited to the question whether the decision maker has acted fairly, within the allotted powers and according to law. In reviewing administrative action, the courts have used a number of descriptive headings which are convenient labels for indicating the basis on which they act. These are:

(i) Natural Justice/Procedural Fairness;

(ii) Acting Beyond Power;

(iii) Jurisdictional Error;

(iv) Error of Law;

(v) Fraud."

19. What the applicant is seeking that I do is to substitute my interpretation of the evidence which he has presented for that of the Tribunal. He is not pointing to a failure by the Tribunal to reach those decisions by virtue of a failing falling within one of the categories cited above. He has therefore not effectively invoked the s.39B powers that the court does have. Even if I was wrong in my analysis of the Tribunal's decision so that there was indeed a Craig (supra) or Yusuf (MIMA v Yusuf (2001) 180 ALR 1) error which would previously have been reviewable under s.39B, the decision in NAAV v MIMIA [2002] FCAFC has now made it clear that such a failure is no longer reviewable.

20. I dismiss the application. I order that the applicant pay the respondent's costs which I estimate pursuant to the Federal Magistrates Court Rules Part 21.02(2)(a) in the sum of $3,750.00.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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