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MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant has a well-founded fear of persecution - where the Tribunal made findings on credibility - where the genuineness of documents is an issue - whether there is a duty to inquire - where applicant alleged errors of fact.

NADQ v Minister for Immigration [2003] FMCA 184 (9 May 2003)

NADQ v Minister for Immigration [2003] FMCA 184 (9 May 2003)
Last Updated: 23 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NADQ v MINISTER FOR IMMIGRATION
[2003] FMCA 184



MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant has a well-founded fear of persecution - where the Tribunal made findings on credibility - where the genuineness of documents is an issue - whether there is a duty to inquire - where applicant alleged errors of fact.



Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407

Re Minister for Immigration; Ex parte Cassim (2000) 175 ALR 209

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Waterford v The Commonwealth (1987) 163 CL 54

Applicant:
NADQ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1380 of 2002



Delivered on:


9 May 2003



Delivered at:


Sydney



Hearing date:


9 May 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Self Represented



Counsel for the Respondent:


Mr R J Bromwich



Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs in the sum of $4,250.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1380 of 2002

NADQ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is Bihari from Bangladesh. He arrived in Australia on

17 September 2000. On 24 October 2000, he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 13 February 2001, a delegate of the Minister refused to grant him a protection visa and on 7 March 2001 he applied for review of that decision from the Refugee Review Tribunal. The Tribunal interviewed the applicant on 18 September 2002. It came to its decision on 19 September 2002 and handed it down on 15 October. The applicant was represented by an immigration agent at the hearing. The applicant now seeks a review from this court by way of an application filed in the Federal Court on

8 November 2002.

2. The application filed by the applicant was in a form which would be familiar to most judicial officers considering these matters where the applicant is originally from the sub-continent. It lacks a certain amount of specificity but on 5 May 2003, the applicant filed some more detailed submissions contained in a four-page document dated 2 May 2003. Those submissions are well written in English and have been addressed by the respondent. I will take it that those submissions form the best case that can be put forward by the applicant. The applicant arrived in Australia on a passport issued in Bonn, most of the pages of which are reproduced in the court book between [CB 26-29]. The applicant claimed that he no longer has this passport having lost it on the way to a meeting. He claims that the passport was purchased and that therefore it is not evidence that he is a person who holds Bangladeshi citizenship.

3. The applicant's claims to have a well-founded fear of persecution for the convention reason of his belonging to the social class of the Biharis. He states that he was involved in the Stranded Pakistani's General Repatriation Committee for whom he led many demonstrations protesting against the government's intention to eliminate the Biharis community. He claims he was threatened by local thugs, that he was arrested on a number of occasions and was tortured in custody and that a number of false cases were lodged against him. He claimed that on one occasion, whilst defending a woman in the refugee camp in which he lived, he was set upon by non-Bihari persons and was stabbed in the back.

4. At [CB 108] the Tribunal says:

"I accept that the applicant is a Bihari. I further accept that the applicant lived in a refugee camp in Dakar. The applicant indicates that he is stateless. I accept that this is the case. However, whether I assess the applicant's claims against Bangladesh as a country of nationality or a country of former habitual residence, the test to be applied is the same.

The applicant claims that he faces persecution because he is a Bihari. The independent evidence before me indicates the conditions in Bihari refugee camps in Bangladesh are very poor. However, there is nothing in the evidence before me which indicates that Biharis face treatment amounting to persecution in Bangladesh whether they are living in or outside refugee camps."

5. The findings of the Tribunal are summarised at [CB 110-111] in the following form:

"In summary, I accept that the applicant is stateless and that Bangladesh is his place of former habitual residence. I accept that he is a Bihari and was residing in a refugee camp. I am not satisfied that the applicant has faced persecution for this reason in the past, or that there is a real chance he would face persecution for this reason in the future. The independent evidence, which I accept, is that the applicant is not obliged to live in a refugee camp, and it is open to him to apply for Bangladeshi citizenship, which will give him the same rights accorded to Bangladeshi citizens of Bengali descent. I accept that the applicant was attacked on one occasion because he intervened in a particular incident. However, I am not satisfied that this amounted to persecution for a convention reason or that it gives rise to a well founded fear of persecution for a convention reason. I am not satisfied that the applicant has been arrested and assaulted in custody in the past. I am not satisfied that he is wanted by the police. I am of the view that the applicant fabricated the later claims in an attempt to enhance his refugee status."

6. In respect of these findings, the applicant makes nine submissions. The first submission relates to the finding that the claim he was wanted by the police on outstanding charges was fabricated. The applicant argues there was no evidence that he acted dishonestly in making this claim.

7. It seems to me that the finding reached by the Tribunal and the method by which it came to its conclusion was very similar to the finding of "utter implausibility" made by the Tribunal in the case considered by the High Court under the title Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407 in which His Honour McHugh J made the now much quoted observation that:

"This was essentially a finding as to whether the prosecutor could be believed in his claim that a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible"."

8. The second submission relates to the finding of the Tribunal that it did not accept the genuineness of the police and court documents that were submitted to it.

9. What the Tribunal actually says in respect of the document is that

"Overall I am unable to place any weight on the documents provided by the applicant as evidence of the credibility of his claim."

This is not a case where the Tribunal has speedily come to a conclusion that because country information indicates that there is a high level of document fraud in Bangladesh therefore these documents must be fraudulent. The Tribunal has assessed all of the evidence put forward by the applicant which includes not only court documents and police statements but other documents. It has made observations and with the benefit of the country information concerning document fraud, has made the finding which I have quoted above.

10. I am satisfied that the Tribunal was entitled to make such a finding from the evidence before it and in the manner in which the Tribunal has made it. I am also satisfied that any duty that a Tribunal may have 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]-[14]).

11. The third matter referred to in the applicant's submissions relates to the finding by the Tribunal that Biharis in Bangladesh are able to take out Bangladeshi citizenship. A first reading of the Tribunal's decision which uses the words

"it is open to him to apply for Bangladeshi citizenship, which will give him the same rights accorded to Bangladeshi citizens of Bengali descent."

might indicate to the reader that the Tribunal is of the view that such an application was of an automatic nature. However, a reading of the country information which is found at [CB 173-174] and [CB 157] would indicate that whilst Biharis are still able to apply for citizenship of Bangladesh, they receive no priority treatment and are dealt with in the same way as any other non national. The whole of the sentence used by the Tribunal at [CB 110] indicates to me that the Tribunal considered the obtaining of citizenship more simple than it would appear in fact. But I am satisfied that any such error made by the Tribunal was an error of fact and not an error of law. In Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [137] the High Court made it clear that there was no error of law in making a wrong finding of fact, the legal concept for which Waterford v The Commonwealth (1987) 163 CL 54 at [77] is authority. And even if there was an error of law in the coming to this conclusion, it would not be an error of law which is material.

12. The gravamen of this decision is that the Biharis in general are not persons who have a well-founded fear of persecution for convention reasons. Whilst their treatment in Bangladesh is discriminatory, the Tribunal has come to the conclusion that this is not evidence of persecution. That is the real reason why this claim has failed.

13. The fourth ground of objection made in the applicant's submissions also appears to deal with the failure of the Tribunal to make it's own enquiries, although in this case it is interlocked with the Tribunal's failure to believe the applicant that the police were looking for him. Once again, this is an argument against the Tribunal's fact-finding responsibilities which is not properly made in this court.

14. In submission five the applicant says that the Tribunal did not consider whether this was an exceptional case. He suggests that the Tribunal has treated this, his application, as some sort of template case. He says:

" Many people simply come here for shelter and do not tell the truth. They use false papers. Even though the Tribunal sees this, it is not so in my case. The Tribunal should not treat all cases the same."

15. My reading of the decision of the Tribunal would not support a suggestion that the matter has been dealt with in a template manner. The Tribunal's decision gives every indication that all the matters raised by the applicant have been considered and reasons given for why the Tribunal has disagreed with the applicant or not found his claims to be convincing. The balance of the submissions relate to factual matters such as the knifing incident; the inability of the police to find the applicant; the circumstances in which he was attacked for defending a Bihari woman and the loss of his passport. Whilst it is understandable that the applicant is concerned that the evidence he put to the Tribunal on these matters was not accepted, there is nothing put forward by him which would allow this court to overturn the decision on the basis that such facts were wrongly found.

16. Although I have not found that the Tribunal's findings of fact are in any way open to criticism, it is worth reminding the applicant of the views expressed by His Honour, Kirby J. In Re Minister for Immigration; Ex parte Holland (2001) HCA 76 where at [35] His Honour said:

" If, as I am inclined to think, there may have been an error of fact and of the valuation of the evidence by the Tribunal, it was one made within the Tribunal's jurisdiction. The law allows tribunals to make such errors, subject to any procedures of appeal that exist, none of which are relevant in this court. In the present state of law, the Constitution only permits this court to intervene if the applicant shows that the Tribunal made an error of juris-diction as, for example, by misunderstanding or misexercising its jurisdiction or exercising it in a biased and unfair way."

17. None of those errors is made out. After consideration of the applicant's submissions and with the helpful assistance of Mr Bromwich and his detailed written submissions, I am unable to find that there are any grounds for review of this decision. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250.00 in accordance with Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.


I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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