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MIGRATION - Review of decision of Refugee Review Tribunal - no jurisdictional error or denial of natural justice.

NACS v Minister for Immigration [2003] FMCA 158 (11 April 2003)

NACS v Minister for Immigration [2003] FMCA 158 (11 April 2003)
Last Updated: 27 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NACS v MINISTER FOR IMMIGRATION
[2003] FMCA 158



MIGRATION - Review of decision of Refugee Review Tribunal - no jurisdictional error or denial of natural justice.



Migration Act 1958 (Cth)

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 498

Re Minister; Ex parte Durairajasingham (2000) 168 ALR 467

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

W148/2000 v The Minister for Immigration & Multicultural & Indigenous Affairs (2001) 185 ALR 703

Abebe v The Commonwealth (1999) 197 CLR 510

Kioa v West (1985) 159 CLR 550

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

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 295

Craig v South Australia (1995) 184 CLR 163

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

Applicant:
NACS



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ1277 of 2002



Delivered on:


11 April 2003



Delivered at:


Sydney



Hearing Date:


11 April 2003



Judgment of:


Barnes FM


REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr T Reilly



Solicitors for the Respondent:


Sparke Helmore Solicitors



ORDERS

(1) That the application is dismissed.

(2) That the applicant pay the respondent's costs set in the amount of $4,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ1277 of 2002

NACS


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. These are ex tempore reasons for judgment in the matter of NACS and the Minister for Immigration and Multicultural and Indigenous Affairs. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 30 August 2002 and handed down on 24 September 2002 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.

2. The applicant applied for the visa on 21 January 2000. The delegate's decision refusing the visa was made on 4 February 2000. The applicant applied to the Tribunal for review on 25 February 2000. The Tribunal held a hearing on 15 August 2001.

3. The applicant claimed to fear persecution by reason of her political opinion and membership of a particular social group in Bangladesh. She claimed that she was a member of the student wing of the Bangladesh National Party, (the BNP) and that she had been assaulted by members of the rival Awami League in 1998 and 1999 and also that she had had false charges laid against her. She also claimed to fear persecution because of her work as a journalist or writer of articles and also as a woman in Bangladesh. She later claimed to also fear persecution from the BNP itself.

4. The Tribunal found that the applicant was not credible and that she had fabricated her claims. It gave detailed reasons for these findings. It was unable to accept that she was who she claimed to be, noting that no complete passport had ever been supplied by her to the Tribunal and that she had not submitted a photograph with her protection visa application. It did not accept that her claims were true. The Tribunal found her evidence to be inconsistent, general and vague. In particular, her evidence as to her political involvement was vague and general. She had been unable to provide details when questioned. The Tribunal concluded that the applicant's claims to have had a political role in the past were fabricated. Similarly when questioned about her alleged activities as a journalist, the applicant was unable to give any details. In particular, she provided no evidence of any publications under her name and she was not able to provide details of any other name under which she claimed to have written despite requests for such information. The Tribunal concluded that this claim was also fabricated.

5. The applicant claimed that she was at risk of harm from the Awami League because of her alleged political and journalistic activities. The Tribunal did not accept that she ever was a member of the BNP or the JCD as claimed or that she was involved in political activities or wrote articles or was a journalist in Bangladesh and accordingly it was unable to accept that she was harassed or subject to harm by Awami League members or supporters or that false changes were brought against her or that she was forced to leave Bangladesh for her safety.

6. Having found that her claims to be a member of the BNP or JCD were without credibility or veracity, the Tribunal was also unable to accept that the applicant could not now return to Bangladesh because she was on the pro-liberation side of the BNP and would be harassed or killed by her own party supporters. Similarly, as the Tribunal was not satisfied that she was a journalist or writer, it was not satisfied that she would be the subject of harm by Islamic fundamentalists.

7. The Tribunal also considered the applicant's more general claim of fear of persecution as a woman in Bangladesh. Such claims were discussed in questioning in the Tribunal hearing. Again the Tribunal found her claims had no veracity or credibility. It did, however, consider the arguments and submissions made by the applicant and her adviser as to the situation which allegedly would confront her should she return to Bangladesh as a woman. Such material was said to portray the situation in general. The Tribunal was not satisfied that, as the applicant did not face a situation of harm in Bangladesh for any other reason, she would face more than a remote chance of violence if she were to return to Bangladesh by reason only that she was female. Accordingly it was not satisfied that she had a well-founded fear of persecution for a Convention reason.

8. In written submissions adopted at the hearing of this application, the applicant raised a number of bases on which she said that the Tribunal erred. She claimed that the Tribunal `failed to articulate' her claim based on an involvement in politics and journalism and the writing of critical articles. She reiterated her claimed involvement. She also claimed that there was a denial of natural justice by the Tribunal because she was not given an opportunity to respond to the Tribunal failure to believe her and doubts about her identity.

9. She claimed that the Tribunal made an error of law in asserting that her case was vague, inconsistent and unconvincing without any basis and in failing to identify the real issue of her case in relation to her involvement with the pro liberation side of the BNP. She claimed that the Tribunal did not take into account current observations from independent organisations in relation to the situation in Bangladesh. She also claimed that the Tribunal did not take initiatives to find the reality of the current situation in Bangladesh and that women in Bangladesh were now `passing black days'. This was said to constitute a failure to make a bona fide attempt to exercise power.

10. Further, she claimed that the Tribunal failed to consider the merits of the case as required by s420(2)(b) of the Migration Act 1958 (Cth) and did not act in good faith because it negated her claims "without any authorities or valid reasons". Finally, she claimed that the Tribunal committed a jurisdictional error by ignoring a relevant consideration (that she is a single woman politically identified as a member of pro-liberation forces and a journalist), that the decision was not based on the evidence before it and that the Tribunal did not provide her with an opportunity to prepare and present her case.

The applicable law

11. Under section 483A of the Migration Act 1958 (Cth) this Court has the same jurisdiction as the Federal Court in relation to a matter arising under the Act. The Court has jurisdiction in relation to a privative clause decision made on a review made by the Tribunal as defined in section 474. In this case it is not necessary to determine the precise impact of the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 as, for the reasons that I shall give, it has not been established that there is any jurisdictional error or lack of procedural fairness. Nor has it been established that there has been any failure to meet any of the so called Hickman provisos applicable to privative clause decisions. (see R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 498)

12. In essence, the applicant was unsuccessful before the Tribunal because of the view the Tribunal took of the facts, in particular its strong finding that the applicant was not credible and that her claims were fabricated. The Tribunal gave reasons for its findings based on the material before it. Credibility findings are matters of fact for the Tribunal par excellence: Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 467 at [67]. So long as the Tribunal's credibility findings were open to it, no error is demonstrated in such conclusions. (Kopalapillai v The Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547 at 558-559, W148/00A v The Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 at [64] - [69].) In this case the Tribunal's findings were open to it on the material before it for the reasons it gives, in particular the applicant's inability to provide any detail of her claims when questioned and her conflicting claims.

13. I have considered whether on the material before me any of the specific claims of error suggested by the applicant are made out. I am not satisfied that any reviewable error is apparent. The Tribunal did `articulate' the applicant's claim in relation to convention based reasons. It considered her claims of fear of persecution by reason of her political opinion and membership of a particular social group of women in Bangladesh. It considered not only her claimed membership of political parties, but also her claim to fear persecution by reason of her work as a journalist and also as a woman. In so far as the applicant seeks merits review this is impermissible.

14. The applicant claimed that she was denied natural justice because she was not given an opportunity to deal with the Tribunal's doubts about her identity (and, it seems, on the basis that she was not given an opportunity to present her case). No lack of procedural fairness has been established on the material before me. There is no transcript of the Tribunal hearing to support this claim. It is not supported by the Tribunal reasons for decision. The Tribunal is not required to warn the applicant that she may not be believed. I refer in particular to the joint judgment of Gummow and Hayne JJ in Abebe v The Commonwealth (1999) 197 CLR 510 at [187] in which their Honours dismissed a similar claim that there was a want of procedural fairness in a Tribunal not putting to that applicant a suggestion that her story was untrue. As was pointed out by their Honours, the proceedings before the Tribunal are inquisitorial. The Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution of a convention reason. The Tribunal must then decide whether that claim is made out.

15. Furthermore it is apparent from the reasons for decision that the Tribunal on several occasions put to the applicant conflicting aspects or inadequate aspects of her claims. The Tribunal is not required to advise the applicant of its thought processes or to invite comment on such thought processes (see Kioa v West (1985) 159 CLR 550 at 587). As indicated by Mason J the applicant is entitled to support his (or her) application by such information and material as he (or she) thinks appropriate and cannot complain if the authorities reject the application because they do not accept without further notice to him (or her) what is put forward.

16. This is not a case (such as that canvassed in Kioa v West) where the Tribunal intended to reject the application by reference to some consideration personal to the applicant outside the question of her credibility or on the basis of information obtained from another source which had not been dealt with by the applicant in the application.

17. Nor has it been established that the Tribunal did not provide the applicant with an opportunity to prepare and present her case. The applicant had the opportunity and did make submissions to the Tribunal. She had the assistance of a migration agent and she was given and took the opportunity to attend a hearing and address the issues raised in her case. She provided an amended statement in the course of the Tribunal proceedings and indeed was granted an adjournment of the hearing at her request at one point. There is nothing in the material before me to support her claim that she was not provided with an opportunity to prepare and present her case. No lack of procedural fairness or denial of natural justice is apparent.

18. As to the claim that the Tribunal did not take into account independent country information, it is clear from the Tribunal reasons for decisions, that it did take into account the country situation in Bangladesh and consider country information. The particular information is referred to by the applicant in her written submission, is information that was published in October 2002, which was after the Tribunal decision was handed down (although it does relate to the events after the change of political power in 2001). Clearly there can be no criticism of the Tribunal for failing to refer to material from October 2002 when the decision was made in August 2002 and handed down in September 2002.

19. Similarly the claim that the Tribunal did not take initiatives to find the reality of the current situation in Bangladesh does not establish reviewable error. The applicant argues that this alleged failure constitutes a failure to make a bona fide attempt to exercise power. However the material before the Court does not establish that the Tribunal failed to make a honest attempt to deal with the subject matter before it or that there was any blatant disregard of statutory directions about a decision-making process laid down in the Act as is submitted by the applicant and discussed by von Doussa J in NAAV v MIMIA [2002] FCAFC 228. The Tribunal is not obliged to make inquiries in the manner suggested by the applicant.

20. The Tribunal did consider the merits of the applicant's case but it found her claims to be fabricated in relation to political involvement and journalism and correctly applied the test of well-founded fear in relation to her claims based on gender. Further, the Court cannot review the merits of the Tribunal's decision (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 295 at 272).

21. There is no error of law or jurisdictional error in merely making a wrong finding of fact in so far as this is suggested by the applicant. In any event there is no particular wrong finding of fact pointed to in this case, except in relation to what the applicant says as to the current position for women in Bangladesh. In that respect I am satisfied that the Tribunal took into account (and put to the applicant) information in relation to the situation of women in Bangladesh. The applicant's complaint in this respect amounts to a disagreement with the findings of fact which are a matter for the Tribunal. Contrary to her submission, the Tribunal did provide reasons for its decision. The Tribunal was plainly addressing the right question in considering whether the applicant had met the Convention definition of refugee. The complaints of the applicant in this respect may also be seen as concerning, at most, the weight given by the Tribunal to evidence before it. It has not been established that there was a failure to take into account a relevant consideration in a sense that constitutes a jurisdictional error (see Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1).

22. It was open to the Tribunal to find the applicant's evidence vague, general and inconsistent. It gives reasons for such findings. This does not reveal any jurisdictional error. The Tribunal did identify the applicant's claims based on being part of the pro-liberation side of the BNP but, as discussed, found her claims to be without credibility or veracity.

23. In Plaintiff S157 the High Court indicated that where there is a jurisdictional error or a decision is flawed for reasons of a failure to comply with the principles of natural justice it is not a privative clause decision. In light of my conclusion that it has not been established that there was any jurisdictional error, lack of procedural fairness or denial or natural justice, it is not necessary to consider whether any denial of procedural fairness constitutes a jurisdictional error. Nor, as I have indicated, am I satisfied that there was any failure by the Tribunal to make a bona fide attempt to exercise its power. There is nothing to suggest that any of the other Hickman provisos have not been satisfied. It follows that the applicant's claim for relief must be dismissed.

24. As the applicant has been wholly unsuccessful, it is appropriate that she meet the respondent's costs. She has addressed the court in relation to her financial position, but I will give the parties a further opportunity to make submissions.

NOT TRANSCRIBED

25. Bearing in mind the nature of this case and other similar cases,

I consider that an appropriate amount of costs is $4,000 and accordingly it is ordered:

(1) that the application is dismissed; and

(2) that the applicant pay the respondent's costs set in the amount of $4,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 11 April 2003.
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