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Federal Court of Australia |
Last Updated: 6 February 2004
FEDERAL COURT OF AUSTRALIA
NAUE v Minister
for Immigration & Multicultural & Indigenous Affairs
[2004]
FCA 63
NAUE
v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS
AFFAIRS
N896 OF 2003
BENNETT J
6 FEBRUARY
2004
SYDNEY
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NAUE
APPLICANT |
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AND:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS
THAT:
1. The application is dismissed
with
costs.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court
Rules.
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AND:
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REASONS FOR JUDGMENT
1 The applicant is a citizen of Bangladesh. On 4 September 2001 the applicant lodged an application for a protection (class XA) visa. On 14 June 2002 a delegate of the respondent refused to grant a protection visa. The applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review on 1 July 2002. The Tribunal held a hearing, attended by the applicant and a migration agent, on 6 May 2003. On 11 June 2003 the Tribunal affirmed the decision of the delegate to refuse the applicant a protection visa. The applicant makes an application to this Court for review of the decision of the Tribunal under s 39B of the Judiciary Act 1903 (Cth).
SUMMARY OF THE FACTS AS PUT BY THE APPLICANT
2 The applicant was born in Bangladesh and claims that his ‘political involvement with the Jatiya Party compelled me to leave the country’. He is a seaman and arrived in Australia, on 21 August 2001, by leaving his ship in Fremantle.
3 He says that he completed the Higher School Certificate in 1993 and was elected as joint secretary of the Pabna Sadar Thana Jatiya Party in 1995. This activity, he says, put him into conflict with both the Awami League and the BNP. In 1998 he was elected as an executive member of the Jatiya Party Pabna District Committee. On 11 December 1998, while returning home from a procession in the city, he was attacked with an axe by a group of Awami League activists and his right leg was injured. Subsequently, members of the Awami League became ‘more aggressive against me’ and he feared for his life. A number of ‘false cases’ were filed against him.
4 The applicant also relies on the current political situation and uncertainty in Bangladesh.
THE DECISION OF THE TRIBUNAL
5 The Tribunal noted the applicant’s history and considered a number of documents produced by the applicant in support of his claims, as well as submissions of the migration agent. That consideration is set out in some detail in the decision, as well as independent country information about politics in Bangladesh, the Jatiya Party and the present situation of the Jatiya Party in that country. The Tribunal also referred to independent evidence of document fraud in Bangladesh.
6 A number of matters as set out in the Tribunal’s decision are worth noting, in the light of the applicant’s grounds of appeal:
(a) The applicant gave oral evidence to the Tribunal, assisted by an interpreter and represented by a migration agent.
(b) The Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) wrote to the applicant on 3 April 2002 and put certain country information and other information contrary to the applicant’s claims to the applicant.
(c) The Tribunal referred to a number of documents produced by the applicant in support of his claims and commented on them. One such comment was directed to the generality of a purported letter from the Jatiya Party, the absence of any details of the applicant’s involvement with that party and the fact that the address on the letter had not become the address of the Department until after the date of the letter.
(d) In the decision, the Tribunal set out the matters put to the applicant, and as to which questions were asked. This included apparent inconsistencies. It also included examination of the documents produced by the applicant and discussion as to their genuineness. Country information concerning the role of the Jatiya Party and document fraud in Bangladesh was put to the applicant as were concerns of the Tribunal about the author and content of the letters.
(e) Submissions of the migration agent were primarily directed to the documents. It was put to him by the Tribunal that the documents appeared to indicate that the documents were not true and correct and that the country information indicated otherwise. It was also put to him that the words in the certificates provided no indication that further enquiries should be made into the ‘providence’ of some of the documents.
The
applicant did not suggest that any of these matters were incorrectly described
in the Tribunal’s reasons.
7 The Tribunal’s findings in respect of the applicant’s case were clearly stated and included:
• ‘70. Notwithstanding the applicant’s claims of political activism, his evidence in relation to most aspects of his claims was vague, generalised, lacked specific detail, and was inconsistent and unconvincing. I do not consider that the applicant was a reliable or credible witness...’
• ‘72. I am unable to accept that the applicant was the subject of persecution in Bangladesh as a result of his political activities. This is so because I am unable to accept that the applicant is, or ever was, a member of the [Jatiya Party]...’
• ‘75. The applicant produced documents in support of his claims. He insisted that the documents were all true and correct and that there (sic) genuineness should be checked. However, I do not accept the veracity and genuineness of the documents submitted by the applicant in support of his claims...’
• ‘76. In any case, the documents produced by the applicant were problematic, and did not disclose any detail of the applicant’s activities ... It was also observed by the Delegate that as the letter was dated 10 February and addressed in the way it was, its genuineness should be doubted because the Department had not yet moved to such an address on the date that the letter had purportedly been dated.’
• ‘78.... His evidence of the incident was general and vague, and did not accord with the purported documentary evidence.’
• ‘82. The evidence about the documents, taken together with the independent evidence on document fraud in Bangladesh, leads me to conclude that the documents are not genuine...’
• ‘83. In light of the applicant’s vague and generalised evidence, I am unable to accept that the applicant is, or ever was, an active member, office holder or leader in the [Jatiya Party]. I also find support for this finding in the country information which indicates that illegal immigration facilitators routinely advise clients to request political asylum as [Jatiya Party] members. As I am unable to accept that the applicant is, or ever was, a member of the [Jatiya Party] or the JCS, I am unable to accept that the applicant was harassed, subjected to harm, attacked or persecuted by BNP and AL members or supporters, that he was forced into hiding, that false cases were brought against him, that an arrest warrant was issued against him or that he was forced to escape from Bangladesh for his safety.’
• ‘84. As to the applicant’s claims that he cannot now return to Bangladesh because he will be oppressed, harassed and attacked by the BNP, AL and JI members or supporters, as I am unable to accept that the applicant ever was a member of the [Jatiya Party] or JCS, I am unable to accept that such claims have any credibility or veracity.’
• ‘85. In any case, I am of the view that the claims of persecution of the applicant fly in the face of the applicant’s travel history...’
• ‘86.... His explanation was inherently improbable that he used his occupation as a seaman to escape the adverse attention of his political rivals... I am unable to accept that these are the actions of a person who has a genuine fear of persecution in his own country.’
8 It is apparent that the applicant was unsuccessful because of the view that the Tribunal took of the facts, in particular its strong finding that the applicant was not credible and its rejection of all of his substantive claims.
THE APPLICATION FOR REVIEW
9 The applicant’s application for review to this Court contains the following grounds:
‘1. The Tribunal failed to identify the issues of the case particularly what was the fear of the applicant upon returning to his homeland.
2. The procedures that were required by law in accordance with section 430 of the Migration Act or regulation to be observed were not observed.
3. The Tribunal made a jurisdictional error considered being an error of law applied to this case.
4. The Tribunal used DFAT opinion in relation to country situation to decide this case, which was biased information in elation to determine the refugee status.
5. There is no material to justify the decision. The decision was an improper exercise of power conferred by Migration Act or the regulations;
6. The Tribunal assessed the applicant’s case just only as the member of the Jatiya Party but the Tribunal failed to consider the applicant as a member of a particular social group.
7. The Tribunal failed to accord the substantial justice to decide the fate of the applicant’s claim.’
10 The applicant does not provide any particulars of the grounds of his application. He does not properly particularise any error on the part of the Tribunal. The basis for the grounds set out in the application, to the extent that they go beyond matters of fact, are difficult to elucidate.
Procedural History
11 When the matter came before the Registrar for listing, the applicant said that he wished the matter transferred to a Federal Magistrate but gave no reason for that to occur. The matter was not transferred.
12 After the matter had progressed before me, the applicant said that he wanted another hearing before the Tribunal, differently constituted and then that he wanted the matter transferred to a Federal Magistrate. That latter course of action was opposed by counsel for the respondent. When asked for a reason for such a transfer, I was told by the applicant that it would be cheaper. As the matter had already been listed for hearing and in the absence of any evidence to support the application, I declined to make an order for transfer.
13 During the course of the hearing, I questioned the applicant about his written submissions. It was apparent that the applicant had not prepared them himself. Further, it was difficult to ascertain the grounds relied upon. The applicant then said he wished to put further submissions before the Court, with the benefit of legal advice. Accordingly, I gave the applicant the opportunity to provide further written submissions, which I received. The respondent was given the opportunity to reply to them; there was no such reply.
The Applicant’s Submissions
14 In his written outline of submissions, the applicant raises a number of matters. He asserts that the Tribunal did not follow proper procedure as required by the Migration Act 1958 (Cth) (‘the Act’) in that procedures required by the Act and the Migration Regulations were not observed. No such procedures were identified. The applicant referred to Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 (‘Muin’) in his written submissions but no attempt has been made to establish any of the facts from that case or, indeed, any other relevant facts to bring his case within the principles in Muin.
15 Some parts of the submissions simply repeated a broad assertion, such as: ‘The RRT decision was effected [sic] by an "Error of law" and "jurisdictional error’’. As such, no proper basis for such a finding is made out.
16 The allegation of denial of procedural fairness seems to involve an assertion that there has been a failure on the part of the Tribunal to consider certain documents. This, in turn, seemed to be based on the following:
• the evidence and the documents before the Tribunal were ‘not properly assessed’. The applicant stated that he wished an opportunity to have them reassessed.
• There were further documents that were in his possession and/or could be obtained from Bangladesh that he wished to place before the Tribunal. At first, the applicant seemed to suggest that he had tried to submit documents but that the Tribunal rejected them. However, he made it clear that this was not his complaint. He wished to have further documents placed before the Tribunal.
• He felt that the Tribunal had made up its mind before looking at the evidence.
17 There was some confusion in the applicant’s case on the question of documents before the Tribunal. He asserted that he wanted to produce more documents. The question arose whether this referred to documents that he had produced to the Tribunal, documents that he tried to produce to the Tribunal, documents that he now wished to produce to the Tribunal, documents that he wished to produce to this Court or documents that he wished to produce at the further hearing he desired before the Tribunal (differently constituted) or a Federal Magistrate.
18 The applicant stated that he had nothing new to add but that the documents that had been placed before the Tribunal had not been properly assessed and had not been ‘believed’. The applicant also said that he wanted his documentation to be investigated to establish their validity and that he was willing to pay for this to occur. The applicant also said that he did not have the chance to submit documents that he had with him in the Tribunal but it was by no means clear whether he chose not to submit them or whether his migration agent did not advise him to submit them or whether he was discouraged by the Tribunal from submitting them or whether his complaint was that the documents were not given sufficient weight. There was no evidence to support any assertion that the Tribunal in any way discouraged the submission of further documents or rejected such submission. The gravamen of the complaint, in the end, seems to be that he was able to submit the documents but that they were not ‘properly looked at’. I take that to mean that the applicant is saying that they were not given due weight.
19 He also said, in response to a question about his allegation of bad faith, that he now wished to add more evidence. No other particulars of this ground were given.
20 The applicant’s submissions can, it seems to me, be broadly stated:
1. the Tribunal failed to assess whether the applicant’s fears of being persecuted for being a member of a political party were well founded in the reasonably foreseeable future and thereby failed to accord him procedural fairness;
2. the Tribunal’s finding that he had no well founded fear of persecution in Bangladesh for a Convention reason was not open to the Tribunal;
3. the Tribunal did not provide the applicant with particulars of information about violence against the Jatiya Party that formed part of the Tribunal’s decision;
4. the Tribunal did not put to the applicant its doubts about the documents;
5. the applicant is in the same position as in Muin;
6. the Tribunal failed to refer to unspecified ‘evidence or any other material’ in relation to the protection available from the authorities in Bangladesh;
7. the Tribunal’s finding that the applicant does not have a well founded fear of persecution because of his political views is an error of law;
8. the Tribunal failed to collect the Part B documents from the Department file;
9. there was ‘procedural inefficiency’ in that the Tribunal did not refer to sufficient documents supplied by the applicant and ignored relevant evidence;
10. the Tribunal’s factual findings indicate actual bias;
11. the Tribunal did not believe the applicant;
12. the Tribunal failed to investigate the applicant’s claims.
THE DECISION
21 The Tribunal did not accept that the applicant was the subject of persecution in Bangladesh as a result of his political activities because the Tribunal did not accept that the applicant is, or ever was, a member of the Jatiya Party. Accordingly, there was, logically, no need for the Tribunal to look to the future of the Jatiya Party in Bangladesh or activities against members of that party. No other fears of the applicant were in evidence, nor was there a claim of persecution as a member of any other particular social group.
22 That factual finding was open to the Tribunal on the evidence before it and was based in large part on a finding that the applicant was not a reliable or credible witness. As the Tribunal was not satisfied that the applicant faced persecution for his political beliefs, there was no need for the Tribunal to examine whether he would be protected by the authorities from such persecution.
23 The Tribunal put to the applicant and his adviser its concerns about the applicant’s factual assertions and the documents produced by the applicant and gave the applicant the opportunity to respond to those concerns.
24 No particulars have been given of bias on the part of the Tribunal or in respect of the opinion of the Department of Foreign Affairs and Trade referred to in the Tribunal’s reasons and none is apparent. In the present case, unlike Muin, there is no evidence nor is it agreed that the applicant was in any way misled by any act or omission on the part of the Tribunal or that the applicant would have taken any particular steps if he had been in any way misled. Assumptions as to these matters cannot be made (NADR of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293; (2002) 124 FCR 465 (‘NADR’)).
25 The Tribunal has set out its findings and reasons in detail. The applicant has not specified any particular fact or document to which the Tribunal did not refer but, in any event, the Tribunal is not obliged in the abstract to search the Department file or all available country information or to refer in its reasons to each and every available fact and document, or every available fact and document about the Jatiya Party. The Tribunal found, as a fact that was open to it, that the applicant had not been a member of the Jatiya Party. It was membership of that party on which the applicant relied to establish a well founded fear of persecution.
26 As a result of the finding that the applicant had not been a member of the Jatiya Party, the submissions that I have numbered 1 and 3 in [20] above are not relevant. Similarly, if he was not a member of the Jatiya Party and did not thereby fear persecution, it is not relevant whether protection available (submission 6). That finding was open to the Tribunal (submission 2). As can be seen from the Tribunal’s reasons, it did put to the applicant its doubts about the documents (submission 4). There is no evidence or agreed fact that the applicant was in any way misled by the Tribunal (submissions 5 and 6). There was no further basis of the grounds set out in submission 7.
27 There was no evidence or other matter raised to establish the matters in submissions 7, 8, 10 and 12. The assertion that the Tribunal failed to collect the Part B documents from the Department, which suggests that more documents were available to the Tribunal, is negated by the fact that some of the country information referred to in Part B of the Delegate’s decision was expressly referred to in the Tribunal’s decision.
28 A number of matters raised in the present application were considered by the Full Court in NADR and the observations in that case are apposite. An allegation had been made in NADR of actual bias. There, as here, there was nothing in the Tribunal’s reasons and no evidence as to its conduct in the course of the hearing to suggest actual bias. Bad faith implies a lack of an honest or genuine attempt to undertake the task and involves a personal criticism of the Tribunal. There is simply no evidence of bad faith.
29 As in NADR, the fact that one of the Part B documents was actually considered by the Tribunal and referred to in its reasons for decision raises the possibility that the Tribunal did have recourse to those documents (NADR at 466 per Moore J). The mere fact that the Tribunal did not list the Part B documents in its reasons does not lead to the conclusion that it did not refer to them (NADR at 471 per Kiefel J with whom Spender J agreed). There was no error in failing to refer to each and every such piece of country information. The applicant has not established the failure alleged.
30 The matters in submissions 9 and 11 are matters for the Tribunal and do not found jurisdictional error.
31 From the reasons of the Tribunal and in the absence any basis for submission 12, the applicant has not established the matters in submission 12. The Tribunal was plainly addressing the correct question and the applicant’s complaint, at most, concerns the weight given by the Tribunal to the evidence before it.
32 It follows that the application is dismissed with costs.
Associate:
Dated: 6 February 2004
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The Applicant appeared in person
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Counsel for the Respondent:
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T Reilly
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Solicitor for the Respondent:
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Sparke Helmore
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Date of Hearing:
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21 November 2003
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Date of Judgment:
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6 February 2004
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