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MIGRATION - Review of decision of RRT - where applicant alleges series of failures by Tribunal but fails to particularise them - where applicant raises authority in support of his claims but does not explain how it applies - where claim is really an attack upon the Tribunal's decision on its merits.

NABP v Minister for Immigration [2003] FMCA 217 (19 May 2003)

NABP v Minister for Immigration [2003] FMCA 217 (19 May 2003)
Last Updated: 5 June 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NABP v MINISTER FOR IMMIGRATION
[2003] FMCA 217



MIGRATION - Review of decision of RRT - where applicant alleges series of failures by Tribunal but fails to particularise them - where applicant raises authority in support of his claims but does not explain how it applies - where claim is really an attack upon the Tribunal's decision on its merits.



Migration Act 1958 (Cth)

Re:Minister for Immigration and Multicultural Affairs: Ex Parte Durairajasingham (1999) 168 ALR 407

MIMIA v Jia (2001) HCA 17

Abebe v The Commonwealth (1999) 162 ALR 1

Plaintiff S157/2002 v the Commonwealth (2003) HCA 2

SGDB v MIMIA (2003) SCA 74

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

Re: Minister for Immigration Ex Parte: Cassim (2000) 175 ALR 209

Hussain v Minister for Immigration [2001] FCA 1202

Antonio v Minister for Immigration (1999) FCA 21

Applicant:
NABP



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1047 of 2002



Delivered on:


19 May 2003



Delivered at:


Sydney



Hearing date:


19 May 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Counsel for the Respondent:


Ms M Allars



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs in the sum of $6,500.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1047 of 2002

NABP


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 May 2000. On 26 May 2000 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 17 July 2000 a delegate of the Minister refused to grant a protection visa and on 10 August 2000 the applicant applied for review of that decision.

2. The Refugee Review Tribunal interviewed the applicant and on 15 August 2002 made its decision to affirm the original decision of the delegate. That decision was handed down on 5 September 2002. The applicant has brought an application for judicial review to this court making the claims which I will set out later in these reasons. The applicant claims that in 1998 he joined the Jatiya Party in his home town of Gulshan Thana. He was impressed by the honesty and integrity of President Earshad. He rose to the rank of general secretary of the Gulshan Thana committee in 1999 at which time he claimed that he was targeted by a factional JP activist, Mr A.H. Monju.

3. The applicant claims that members of Mr Monju's faction attacked him on several occasions and severely injured him, leading him to be hospitalised. He claims that his family was harassed and pressured with the objective of getting him to quit his political activities. But he declined to do that. As a result of this, the Monju supporters lodged false and fabricated cases against him. These cases involved the processing of illegal weapons, the destruction of public property and agitating the people against the government. The applicant claimed that his life was in danger and he was forced to escape from Bangladesh.

4. Whilst these events were occurring, the applicant was working in a senior position in a travel agency. In that capacity he had travelled extensively in the region, going to India four times, to Indonesia twice and to Singapore about four times. He also went to Korea, Pakistan and Thailand. In the course of his interview with the Tribunal, the applicant advised the Tribunal that his position within the Gulshan Thana committee was to call meetings of the 25 person branch at the request of the party. He claims he worked there everyday except Friday and although he did not stand for Parliament, he had hoped to become a commissioner in his area had he remained in Bangladesh.

5. The Tribunal in its findings and reasons accepted the claims put forward by the applicant of association with the JP and his becoming general secretary of a Gulshan Thana branch in September 1999. It noted, however, that this was only eight months before his departure for Australia. The Tribunal did not accept the applicant was as heavily involved in the affairs of the JP as he purports. The Tribunal considered that the applicant was a low level conduit between party administration and the man in the street. The Tribunal came to the view the applicant could not have combined the type of political career he would have the Tribunal believe he had with his busy life as a senior executive in the travel industry.

6. The Tribunal at [CB 84] makes a number of points about the applicant's claims which draw into question his credibility. It did, however, accept that he had been involved in incidents in demonstrations and on one occasion may have been hit by a rubber bullet fired into the crowd. But the Tribunal also noted that the applicant did not claim to ever have been arrested, detained, harassed, harmed or mistreated on any other occasion. The essence of the applicant's claim was that if he returned to Bangladesh, he would be in danger from members of the Monju splinter group of the JP and that this was proved by the false charges that have been laid against him. He would be arrested if he returned under those warrants.

7. The Tribunal made conclusions as to the validity of the documentation which are found at [CB 85]. It states:

"At the hearing, the Tribunal informed the applicant that it has independent country information which indicated that documents like those he provided could be easily and cheaply bought in Bangladesh, including arrest warrants, and, having read to the applicant the thrust of CX17304, it asked the applicant to comment. In response, the applicant avoided the question of possible fraudulent documentation, but rather commented more generally about the lack of security in Bangladesh: mentioned the JP leader was not allowed to participate in the last election and claimed that whenever a major party is forming government in Bangladesh, they make promises to the JP but never keep these promises.

As to the content of this document itself, the Tribunal finds the disparate claimed charges made against the applicant are wide ranging and very serious and include "uttering illegal and objectionable slogans," "looting and collecting subscriptions," "attacking the police," "shooting at police," "using bombs (and Molotov) cocktails, " &q;
uot;torture of our (police) forces," "damaging shops, cars and office furniture," "arson and causing public injury." If, as is claimed, the applicant was wanted in relation to such serious charges made in January 2000, the Tribunal is satisfied the applicant would not have been able to leave Dakar Airport five months later without being questioned or possibly detained.

In view of this and the other Tribunal findings about the applicant's credibility, the Tribunal is again satisfied that these are false documents that have been provided with the objective of enhancing his claim for refugee status. Accordingly, the Tribunal is not satisfied that the applicant is wanted by the police in Bangladesh or has a well founded fear of serious harm amounting to persecution for a Convention reason if he returns to Bangladesh, either now or in the foreseeable future.

8. This matter first came before me some months ago. At that time, the applicant advised that he had not had an opportunity to obtain advice under the Minister's scheme. The matter was adjourned until today so that that advice could be obtained. I am informed by the applicant that he did, indeed, see the barrister assigned to him. The applicant produced by way of submission a document entitled, "Written Argument" dated 15 May 2003. I have to confess to a feeling of deja vu in respect of this document which contains a number of grounds for review which would be familiar to any judicial officer dealing with claims for asylum from persons formerly resident or citizens of countries within the sub continent. There are 10 grounds altogether, and I shall deal with each.

9. The first ground is that the Tribunal did not consider the applicant as a refugee despite many evidentiary proofs. I am quite satisfied that the Tribunal did take into account the material which was provided by the applicant in support of his application and in support of his alleged well founded fear of persecution for Convention reasons. The Tribunal came to a view different to that which the applicant would have wished. This, of course, is the Tribunal's responsibility "par excellence" (see Re: Minister for Immigration and Multicultural Affairs: Ex Parte Durairajasingham (1999) 168 ALR 407 per McHugh J).

10. The second ground is that the procedures that were required to be observed under the Migration Act 1958 (Cth) in connection with the making of the decision were not observed. There are no particulars of this ground. There is no indication in the material of any failure of the procedures required by Part 4 of the Act, and in the absence of any further information from the applicant, I am not prepared to make such a finding. The third ground is that the Tribunal ignored the merits of the claim. It did not take into account the verdict from the Bangladesh country report. There is considerable discussion of country reports between pages 80 and 83 of the court book and at page 86. In any event, as is clearly shown from the ground itself, this is a claim for merits review.

11. The fourth ground is that the Tribunal did not act in good faith in regards to my claims. Once again, no particulars are provided. In MIMIA v Jia (2001) HCA 17 Gleeson CJ and Gummow J at [69] and Kirby J at 127 all said that:

"The party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be "distinctly made and clearly proven."

Such an allegation cannot be made out by mere assertion without any particulars whatsoever.

12. The fifth submission is that the Tribunal misjudged the fate of the applicant's claim. Without more particulars, this appears to me to be yet another attack upon the merits of the Tribunal's decision which is not a matter that is susceptible to judicial review.

13. The sixth ground is that the Tribunal made a number of errors to decide the fate of the applicant's claim. The applicants were not (and still are not) represented by the solicitor. The wording of this claim indicates fairly convincingly that the whole document has been provided to the applicant as some form of template by a concerned well wisher. So far as the first sentence is concerned, it would again appear to be a merits review. To the extent that any factual errors may have been made by the Tribunal (and I cannot see that any have been made) such errors are not errors of jurisdiction. The fact that the applicant was not represented by a solicitor is unfortunate. One would only wish that all applicants in this court were represented. The fact is that they are not and it does not and should not have any effect upon the administration of justice in their cases.

14. The seventh submission is that the Tribunal's ignoring of relevant evidence and findings in the face of contradicting independent evidence indicates actual bias. I have already dealt with both the lack of particulars in previous allegations similar to this concerning the way in which the Tribunal dealt with its evidence and what is required in order to make out a ground of bias. Once again, no particulars have been provided other than a reference to the case of Abebe v The Commonwealth (1999) 162 ALR 1 at [113].

15. The eighth submission by the applicant is that he is a genuine refugee and that the authority has not considered his claims. The fact is that the authorities have considered his claims and have considered that he is not a genuine refugee. Any argument to the contrary is an argument as to the merits of the Tribunal's decision.

16. The ninth ground relates to the case known as Plaintiff S157/2002 v the Commonwealth (2003) HCA 2. It also refers to the case SGDB v MIMIA (2003) SCA 74. The submission states that these cases are relevant to the applicant's case. Unfortunately, it does not say how.

I accept that if I was able to find some form of jurisdictional error, particularly a jurisdictional error going to the provision to the applicant of natural justice by the Tribunal, S157 would be of assistance to him. However, I have not found such an error.

17. The final submission relates to the High Court judgment in Muin v Refugee Review Tribunal ; Lie v Refugee Review Tribunal [2002] HCA 30 which the applicant once again says is of assistance. No particulars of this assistance are provided, but it is fair to say that there has been no suggestion made to me that there was a failure to put any country information known to the Tribunal to the applicant for comment.

18. One of the matters which comes clearly through the applicant's oral submissions is that he believed that the Tribunal has a duty to make investigations of its own, particularly investigations of its own in Bangladesh relating to the documents. I am satisfied that any duty that the Tribunal may have had to make inquiries would not extend to the type of inquiries which the applicant appears to be suggesting (see Re: Minister for Immigration Ex Parte: Cassim (2000) 175 ALR 209 at 12 to 14).

19. The question of documentation from Bangladesh has been considered by the courts in Hussain v Minister for Immigration [2001] FCA 1202, Antonio v Minister for Immigration (1999) FCA 21, as well as a number of other cases. I have not found any case which suggests that it is the duty of the Tribunal to make detailed investigations within Bangladesh as to the genuineness or otherwise of particular documents.

20. In all the circumstances, I am unable to find any grounds upon which the applicant can support a claim that this particular decision should be the subject of judicial review. I dismiss the applicant's claim. I order that the applicant pay the respondent's costs, including the costs thrown away by the first hearing. I assess those costs in the sum of $6,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court rules.


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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