Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Review of decision of the Refugee Review Tribunal affirming decision not to grant a protection visa - Bangladesh citizen claiming political persecution - issue regarding credibility of applicant - decision of Refugee Review Tribunal affirmed.

VCAC v Minister for Immigration [2002] FMCA 242 (28 November 2002)

VCAC v Minister for Immigration [2002] FMCA 242 (28 November 2002)
Last Updated: 4 December 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VCAC v MINISTER FOR IMMIGRATION
[2002] FMCA 242



MIGRATION - Review of decision of the Refugee Review Tribunal affirming decision not to grant a protection visa - Bangladesh citizen claiming political persecution - issue regarding credibility of applicant - decision of Refugee Review Tribunal affirmed.

Migration Act 1958, ss.36(2), 464(I), 474, 474(1), 477(1), 483A

Judiciary Act 1903, s.39B(1)

VABN of 2001 and Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 294

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 228

Hickman ex parte, Fox v Clinton (1945) 70 CLR 598

Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547

Emiantos v Minister for Immigration and Multicultural and Indigenous Affairs (1997) 48 ALDV 635



Applicant:
VCAC



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


MZ 387 of 2002



Delivered on:


28 November 2002



Delivered at:


Melbourne



Hearing Date:


2 October 2002



Judgment of:


Bryant CFM



REPRESENTATION

Counsel for the Applicant:


In person



Solicitors for the Applicant:


In person



Counsel for the Respondent:


Mr J Gray



Solicitors for the Respondent:


Australian Government Solicitor

Level 21, 200 Queen Street

Melbourne Vic 3000



ORDERS

(1) That the Applications be dismissed.

(2) That the Applicant pay the Respondent's costs to be taxed in default of agreement and in any event such costs are not to exceed the sum of $3,500.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


MZ 387 of 2002

VCAC


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction

1. The Applicant is a citizen of Bangladesh. He arrived in Australia on 11 June 1999 on a temporary Business Visa. He lodged an Application for a protection ( Class AZ) Visa on 2 September 1999.

2. The Applicant's eligibility for the grant of this visa is conditional upon satisfaction of the Applicant meeting the criteria described in section 36(2) of the Migration Act 1958 (Cth) ("The Act") and the further criteria in Part 866 of Schedule 2 to the Migration Regulations 1994, namely whether the Minister was satisfied that the Applicant was a person to whom Australia had protection obligations under the Refugee Convention.

3. On 29 December 1999 a delegate to the Minister refused the application for a protection Visa and the Applicant applied to the Refugee Review Tribunal (RRT) on 19 January 2002. The RRT handed down its decision on 22 February 2002 affirming the decision not to grant a protection visa.

The Tribunal's decision

4. In the Applicant's statement to the tribunal, the Applicant asserted that he joined the Bangladesh National Party (BNP) in Faridpur in 1987. He asserted that in April or May 1987 a group of people attacked him near the BNP office. The police who were called also attacked the BNP members, one of whom was killed and others were arrested, detained and tortured by the police. The Applicant asserts that he was hospitalised as a result of the injuries and remained in hospital for almost two months during which time the police forced him to sign a false statement. Following his release from hospital the police arrested him and detained him at a central jail in Faridpur. He was convicted and sentenced to two and a half years imprisonment. He asserted that after another court hearing in September 1987 his parents borrowed money from a relative to bribe a court official so that he could be released on bail. He then resigned his membership of the BNP.

5. In August 1989 he asserts that he was forcibly taken to the BNP office in Faridpur and accused by the Chairman of stopping people from joining BNP and beaten and threatened. The police were called and he was accused of attempting to kill the chairman. He asserts that the police arrested, detained and tortured him and charged him with killing "some people" and he was imprisoned for 15-16 months. Finally, his parents succeeded in obtaining agreement of the chairman of BNP to obtain his release from prison on condition that he never return to Faridpur and the police were paid a substantial bribe. After his release from imprisonment he went to live in Dhaka with his relatives.

6. Her asserts that he remained with relatives in Dhaka from December 1990 but did not attend his court case and a warrant was issued for his arrest. He asserts that the police approached him in Dhaka with a warrant, his uncle paid a bribe so he could avoid arrest, but he was warned that he was wanted by police throughout Bangladesh. He obtained a passport and arranged to leave Bangladesh to work in Saudi Arabia. He said he paid a bribe at the airport so that he could leave Bangladesh without being intercepted by the Bangladeshi authorities.

7. In 1998 he returned to Bangladesh and was arrested at Dhaka airport. He asserts that he paid a bribe and was released and then paid another bribe to leave Bangladesh and returned to Saudi Arabia. When he returned to Saudi Arabia the company for whom he was working in Saudi Arabia sent him to Dubai to work in May 1999, and it was in Dubai that he applied for a visa which enabled him to enter Australia.

8. The RRT did not accept that the Applicant joined the BNP or participated in political activities in support of the BNP, that he was attacked because of his political support of BNP, that he was arrested, imprisoned, charged, prosecuted or mistreated by the Bangladeshi authorities in 1987, 1989 or at any other time, that there was a warrant for his arrest, that he was featured in an article in a newspaper because there was a warrant for his arrest, that he was arrested upon returning to Bangladesh in July 1998, nor that he had to pay a bribe to leave Bangladesh in October 1988.

9. Accordingly, the RRT found the Applicant did not have a genuine fear of being persecuted by political opponents or the Bangladeshi authorities for reasons of political opinion. It was concluded that he did not have a well founded fear of being persecuted in Bangladesh for a convention reason. Thus, the RRT was not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugee Convention as amended by the Refugees protocol and did not satisfy the criterion set out in section 36(2) of the Act for a protection visa.

10. In rejecting the evidence of the Applicant, the RRT relied upon a number of inconsistencies between the oral answers given by the Applicant, and his written statement. The RRT questioned him about his knowledge of the BNP and it's political history and found that his answers were "vague and unconvincing" and he provided scant evidence of his political activities in support of the BNP.

11. The Applicant gave inconsistent evidence about when he stopped his activities in support of the BNP and his evidence about his prison terms was vague and inconsistent. At the hearing he said he thought his first imprisonment was in about 1987 and his term of imprisonment was for about 2 months. He said he was released between 1987 and 1989 and that he had spent six months in prison after being convicted. In relation to his second term of imprisonment he said that he was imprisoned for 4 or 5 months. When the RRT pointed out to him that had given evidence in his written statement that he had been imprisoned for 16 months on that occasion he said he did not remember.

12. The RRT also found that he gave inconsistent and unconvincing evidence about when the police approached him at Dhaka and gave him a warrant for his arrest. At the hearing he said it was in 1989 but in his written statement he said it was in 1990 and could not give a credible explanation for the inconsistencies. The RRT also found that his evidence that he was targeted by the Bangladeshi authorities was unconvincing and far fetched. He claimed to have lived in Dhaka from December 1990 until he left for Saudi Arabia some 2 � years later. Apart from reference to a payment of a bribe on one occasion, he did not claim to have been approached by the authorities nor to be in hiding. When queried about this his answers were vague and he said that he moved from place to place to avoid detection. The RRT did not accept that he would have remained in Dhaka for 2 � years had he genuinely feared being persecuted by the Bangledeshi authorities nor did it accept hat he would have provided such vague evidence in relation to hiding from the authorities for about 2� years if he had in fact been hiding from them for that period.

13. The RRT did not accept his account of his arrest upon returning to Bangladesh in July 1998 and found it far fetched. The RRT did not accept that he would have returned to Bangladesh if there had been an outstanding warrant for his arrest and his glib references to the payment of bribes to enter and leave Bangladesh were inherently unconvincing. As a result the RRT rejected his evidence and found that he had not satisfied the criteria under section 36(2) of the Act.

The application

14. The Application filed by the Applicant sought a review of the decision of the RRT. A statement by the Applicant was attached to the Application but no grounds were identified. The Applicant did not expressly invoke the jurisdiction of the Court conferred by section 39B(1) of the Judiciary Act which is the sole source of jurisdiction in this court to review the decision of the tribunal since 2 October 2001 [see Migration Act Section 477(1)].

15. Counsel for the Respondent however, did not take any point as to the competency of the Application and referred me to the decision of the Full Court of the Federal Court in VABN of 2001 and Minister for Immigration and Multicultural and Indigenous Affairs (2002 FCAFC 294) (18 September 2002). In VABN of 2001 and Minister for Immigration and Multicural and Indigenous Affairs the Full Court held that whether an Application invokes the jurisdiction of the Court conferred by section 39(B)(1) of the Judiciary Act is a matter of substance and not form. They said in Paragraph 14:

"in this case the initiating process, although not framed in terms of a writ of mandamus or prohibition or an injunction, sought relief of a kind that is available only under Section 39(B)(1) of the Judiciary Act. Moreover, the application clearly identified the decision challenged by the appellant. That decision could only be challenged in this Court pursuant to. Section 39(B)(1) of the Judiciary Act. In these circumstances, the jurisdiction of the Court was properly invoked and, the primary judge had jurisdiction to consider the appellants challenge to the Tribunal's decision."

The law

16. The jurisdiction of the Federal Magistrates Court is invoked by section 483A of the Migration Act. The jurisdiction which the Court exercises is subject to section 474 of the Act.

17. In NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 228, von Doussa J (with whom on this point Black CJ and Beaumont J agreed) said at [635] that the Migration Act contained a hierarchy in the provisions of the Act and that, s.464(I) is, in the case of the privative clause decisions, to be the leading provision with the consequence that apparently inconsistent provisions of the Act are to be construed as subject to the restrictions in section 474(1).

18. Consequently, the effect of section 474(1) is to expand the jurisdiction of the relevant decision makers, including the tribunal, so that the decisions which are affected by irregularities that would in the absence of section 474(1) amount to jurisdictional error are validated.

19. However, the words of s.474 have effect subject to the exceptions set out in the judgment of Dixon J. in Hickman ex parte, Fox v Clinton (1945) 70 CLR 598. The so-called "Hickman conditions" require that the decision be a bona fide attempt to exercise the power which the Migration Act reposes in the decision maker; relates to the subject matter of the Migration Act; and is reasonably capable of reference to the power given to the body.

20. In addition, it follows from the decision in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs that the decision will not be protected from judicial review if it contravenes what is variously described as an "inviolable limitation", "jurisdictional factor" or "structural element" found in the legislation.

Conclusion

21. In this case there can be no doubt that the decision relates to the subject matter of the Migration Act and it is capable of reference to the power. There is no indication of contravention of an inviolable condition, and given the existence of grounds for finding inconsistencies in the evidence of the Applicant which formed the basis for the credibility findings of the RRT, it could not be said that there was any basis for a submission that the RRT had not made a bona fide attempt to exercise the power which the Migration Act reposes in the RRT.

22. The credibility of the applicant was a question of fact for the RRT which was not in error when assessing inconsistencies between the various versions of the applicants story given by him both in writing and orally (Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547 and Emiantos v Minister for Immigration and Multicultural and Indigenous Affairs (1997) 48 ALDV 635.

23. Accordingly, the appeal must be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Mardi Jarvis

Date:
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia