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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - whether applicant the subject of spousal abuse - whether applicant the subject of persecution in Bangladesh - credibility of the applicant - application dismissed.

NARP v Minister for Immigration [2002] FMCA 329 (22 November 2002)

NARP v Minister for Immigration [2002] FMCA 329 (22 November 2002)
Last Updated: 3 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NARP v MINISTER FOR IMMIGRATION
[2002] FMCA 329



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - whether applicant the subject of spousal abuse - whether applicant the subject of persecution in Bangladesh - credibility of the applicant - application dismissed.



Applicant:
NARP



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ872 of 2002



Delivered on:


22 November 2002



Delivered at:


Sydney



Hearing Date:


22 November 2002



Judgment of:


Driver FM



REPRESENTATION

The applicant appeared in person






Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Clayton Utz



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 $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ872 of 2002

NARP


Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This ex tempore judgment relates to an application filed on 12 August 2002 to review a decision of the Refugee Review Tribunal ("the RRT") handed down on 18 July 2002, in which the RRT affirmed a decision of the delegate not to grant the applicant a protection visa. The applicant came from Bangladesh to Australia in 1995. On 14 November 1996, the applicant lodged an application for a protection class AZ visa with the Department under the Migration Act 1958 (Cth) ("the Migration Act"). The delegate of the Minister refused to grant the protection visa and the applicant sought review of that decision by the RRT.

2. The initial application for a protection visa lodged by the applicant provided no grounds in support of the application, but subsequently the applicant provided a statement in which she asserted that she feared persecution as a woman in Bangladesh on account of the risk she perceived as a single woman who had divorced her husband in Bangladesh. The applicant asserted that she had been subject to threats and ill-treatment by her former husband and that if she returned to Bangladesh she would be liable to be physically abused and could not expect protection from authorities in Bangladesh.

3. The applicant has relatives in Australia. She has two sisters and a brother who are Australian permanent residents or citizens. Her brother provided statements in support of her visa application. The delegate who considered the protection visa application accepted as plausible the applicant's claim that she suffered abuse in her marriage and expressed sympathy. However, the delegate did not accept that the applicant had a well-founded fear of persecution should she return to Bangladesh. The delegate took into account, in particular, that the applicant had been divorced in 1993 and that there was little to support a proposition that she had suffered any harm since that time. In addition, the delegate saw no official nature to any threat of harm that may come to the applicant should she return to Bangladesh.

4. The RRT had the benefit of substantially more material than had been before the delegate. Significantly, in April 2002, a short time before the applicant's hearing before the RRT, the applicant provided a further statement in support of her application in which she asserted for the first time that there was a political connection to the conflict between her and her former husband. She asserted that she and her family were supporters of the Awami League, whereas her husband was a dedicated supporter of the BNP, thereby providing a political connection to the mistreatment that she asserts she has been subject to, and would continue to be subject to, if she returned to Bangladesh. The applicant's brother also provided evidence to the RRT in support of the application.

5. The decision of the RRT is essentially based upon the presiding member's assessment of the lack of credibility of the applicant. The applicant was questioned at length by the presiding member. Those questions and responses are dealt with in detail in the decision and reasons of the RRT (court book, page 291). The presiding member noted marked discrepancies in the statements made by the applicant on material facts, and also discrepancies between the evidence given by the applicant and that given by her brother. The presiding member found the applicant to be an unreliable witness and formed an adverse opinion on her credibility.

6. The presiding member was unwilling to accept that the applicant had ever been married and divorced. I have some doubt myself about that finding and note that it differs from the finding of the delegate of the Minister earlier. The applicant had provided what purports to be a certificate of divorce (court book, page 107). To my eye, that document has the look of authenticity about it. It is in the English language which was a matter of some surprise to the presiding member who indicated that one would have expected the document to be in Bengali. However, noting the history of Bangladesh, I would not regard it as colourable in itself for an official document to appear in English.

7. The presiding member also noted that the purported divorce certificate contained no date of marriage. I note that the instrument of divorce does contain a date of registration of a marriage deed, that date being 25 May 1990, which was the same date given by the applicant in her oral evidence to the RRT as her date of marriage. However, even if the presiding member was wrong to refuse to accept that the applicant had been married and divorced, there was an ample basis for the presiding member to draw adverse conclusions on the credibility of the applicant in relation to other matters.

8. It was open on the material before the RRT for the RRT to conclude that the applicant had not been subject to persecution since her divorce in 1993. The applicant initially did not claim any physical abuse since divorce and documents subsequently produced in an attempt to bolster a claim of physical mistreatment do not appear to be authentic. The claims made by the applicant for a political connection to abuse from her former husband bear all the hallmarks of a recent invention. It was, in my view, clearly open to the presiding member to conclude that the applicant had fabricated claims of physical mistreatment since divorce and a political connection with that alleged mistreatment in order to bolster her claim to a protection visa.

9. The application for review filed in the Federal Court on 12 October 2002 sets out six grounds of review. The first is that the procedures that were required under the Migration Act to be observed in connection with the making of the decision were not observed. Those procedures are not particularised in the application. It was also stated that the RRT ignored the merits of the claim and that it did not take into consideration the applicant's real state of affairs. It is asserted further that the RRT misjudged the fate of the applicant's claim. I take those to be invitations to this Court to review the merits of the RRT decision, which is not a course open to the Court to take.

10. The application further asserts that the RRT made a number of errors to decide the applicant's review. Apart from the possible error in relation to the question of whether the applicant was ever married or divorced, I see no such arguable errors. The application then asserts that the RRT did not provide an opportunity to the applicant to make comments on the decision of the RRT relied on. As such, the applicant was allegedly deprived of receiving natural justice. I do not understand that assertion as it is clear that the applicant was given an opportunity to appear before the RRT and make oral submissions and to comment upon potentially adverse conclusions that the RRT might make.

11. The application finally asserts that the RRT failed to consider the material facts of the claim and that the RRT's decision is not justifiable. On my assessment of the decision and reasons of the RRT, it is apparent that the RRT did consider the material facts of the claim.

12. An affidavit filed by the applicant on the same day as the application makes the same assertions as were made in the application, with the additional assertions that the RRT overlooked relevant documents and failed to consider the current situation which is prevailing in Bangladesh.

13. A large number of documents which appear to have been downloaded from the internet were presented to the RRT. Those documents go to the general situation prevailing in Bangladesh and were referred to briefly by the presiding member at paragraph 69 of the reasons for decision (court book, page 307). It is arguable that the situation in Bangladesh is one where women, as a class, are subject to various forms of discrimination, and that the potential exists for particular groups of women to suffer persecution, including persecution of an official character. However, the findings of the RRT on credibility mean that the applicant could not place herself in a class of persons liable to suffer persecution in Bangladesh. Accordingly, it was not necessary for the RRT to draw any firm conclusions on general issues about the risk of persecution of women in Bangladesh.

14. The applicant also has filed today, in court, written submissions in support of her application. In large part those submissions take issue with the merits of the RRT decision. As I have already observed, it is not open to this Court to review those merits. At paragraph 4, the applicant states that the Court should consider the bona fides of the RRT decision. However, there is nothing to suggest that the decision of the RRT was anything other than a bona fide attempt to exercise the decision making powers conferred on the RRT.

15. At paragraph 9 the applicant asserts that the RRT did not make its decision in good faith. I do not accept that the applicant has advanced anything to support that assertion. The applicant asserts that she has been deprived of natural justice. While that is a ground of review under the general law, I am not persuaded that the applicant has been able to demonstrate any breach of the requirements of natural justice or procedural fairness. It appears that the procedures required to be observed by the RRT were observed and that the applicant was provided with a fair hearing. The applicant has not advanced any proposition that some inviolable pre-condition on the exercise of power by the RRT has been breached. The RRT decision was clearly made under the Migration Act and related to the subject matter of that Act.

16. Accordingly, I find that no error of law has been committed by the RRT that would provide grounds for interfering with the decision of the RRT either under the general law or under the grounds of review remaining open to an applicant following the enactment of the privative clause in s.474 of the Migration Act. I will therefore dismiss the application.

17. On the subject of costs, Mr Smith has sought an order for costs and has submitted that an order in the sum of $4,000 would be appropriate. I agree that the Minister is entitled to an order for costs in his favour. I also agree, having regard to the amount of preparation required in this matter and the reasonable need for the Minister to engaged the services of counsel today, that an amount of $4,000 is reasonable.

18. I will therefore order that the applicant pay the respondent's costs of and incidental to the application which I fix in the sum of $4,000.

19. Subject to one matter, that concludes these proceedings. While it is not a material part of the proceedings, I do want to note that this is an unfortunate case and an emotional case for the applicant and such cases are always difficult to deal with. The applicant has a number of relatives in Australia and clearly has connections to Australia. In the circumstances I invite the Minister's Department to provide information to the applicant concerning what other forms of visa she may be able to apply for and information as to whether those other forms of visa may be applied for in Australia or whether they could only be applied for from Bangladesh.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 18 December 2002
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