NAOJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 815

FEDERAL COURT OF AUSTRALIA

NAOJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 815 APPLICANT NAOJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 496 OF 2003 SACKVILLE J SYDNEY 29 JULY 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 496 OF 2003

BETWEEN: APPLICANT NAOJ

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 29 JULY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 496 OF 2003

BETWEEN: APPLICANT NAOJ

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 29 JULY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant seeks relief under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal ("RRT") handed down on 27 March 2003. The RRT affirmed a decision of a delegate of the respondent ("the Minister") not to grant the applicant a protection visa. 2 The applicant is a citizen of Bangladesh, now aged about 26. He arrived in Australia on 22 March 2001 on a passport issued in Bangkok, Thailand, on 19 May 2000. His Australian visa was issued on 22 February 2001 and entitled him to remain in this country for three months. 3 On 3 May 2001, the applicant lodged an application for a protection visa. That application was refused by the delegate on 17 May 2001. 4 According to the applicant, he has lived at two different addresses in Feni, Bangladesh. He has twelve years of education and has worked as an executive for a company in Bangkok between August 1999 and March 2001. 5 In his application for a protection visa the applicant claimed that: * he had been a Jatiya Party activist since 1995 and had become a member of the Executive Committee and, later, the Publication Secretary of the Executive Committee of Jatiya Chattra Samaj, Feni College Branch, from 1997 until 1998; * he had organised the anti-Awami League movement in his area during the 1996 election campaign and, to this end, organised meetings and delivered lectures in many areas; * his political profile brought him to the attention of the authorities in Feni; * he had been a victim of members of the Awami League, in particular a politician who took revenge on him by severely beating him on one occasion and warning him that he would be killed; * he had been kidnapped in 1998 by the politician's agent and warned to leave Feni; * the politician also lodged a false case against him and caused his house to be attacked and the applicant himself to be placed under constant surveillance; * he had decided to leave Bangladesh and travel to Thailand to save his life, but that his refugee application in that country had been rejected; and * the Bangladeshi police had been looking for him and had attempted to arrest him a few times at his home. 6 The RRT noted that the substance of the applicant's claim was that if he returned to Bangladesh he would be persecuted by people associated with the former Awami League Member of Parliament. The RRT accepted that the applicant had joined the Jatiya Party when he had been at college and had been involved in party activities. However, having regard to the applicant's limited knowledge of the party and its processes, the RRT found that he had been involved with the Jatiya Party only at a very low level. Nonetheless, the RRT accepted that the applicant had been beaten on one occasion by supporters of the former local Member of Parliament. 7 The RRT was not satisfied that the applicant had a genuine subjective fear of persecution either in Bangladesh generally, or in Feni in particular. The RRT noted that the applicant had been in Thailand between August 1999 and March 2001. During this period he had returned to Bangladesh on a number of occasions, most recently shortly before he came to Australia (but after his Australian visa had already been issued). The RRT considered that if the applicant had genuinely feared being harmed in Bangladesh he would not have returned there from Thailand on several occasions. The RRT did not consider that the applicant's explanation, that he wanted to visit his family, adequately explained his willingness to return not only to his country of nationality, but also to the locality where he claimed to fear persecution. 8 Since the applicant was prepared to return to Feni, the RRT did not accept that the supporters of the former Member of Parliament had kidnapped him, continued to threaten him or attacked his house. Had these events occurred, the RRT considered that the applicant would not have been prepared to return to Feni. It found that the applicant had fabricated these claims in an attempt to support his application for a protection visa. 9 The RRT also found that if the Bangladeshi authorities had had any interest in arresting the applicant, they had ample opportunity to do so either before his original departure for Bangladesh or on any of the occasions on which he had returned to that country. The RRT was of the view that the applicant was no longer of any adverse interest to the supporters of the former Awami League Member of Parliament, and was also of no interest to the Bangladeshi authorities. 10 The applicant told the RRT that he had occasionally attended Jatiya Party meetings since coming to Australia, but had not done so for a period of some seven months. The RRT found that the chance that the applicant would again be involved in Jatiya Party activities once he returned to Bangladesh was remote. The independent evidence suggested that it was possible to be involved in political activities in Bangladesh without being a victim of perpetrators of violence. Moreover, the person whom the applicant claimed to fear was no longer in power and the Awami League was no longer in government. There was no evidence that Jatiya Party members or supporters were at risk of persecution in Bangladesh. Accordingly, the RRT was not satisfied that the applicant had a well-founded fear of persecution for reasons of political opinion. 11 In view of this conclusion, the RRT noted that it was not obliged to consider the issue of internal relocation. However, the RRT found that if the applicant wished to avoid people he claimed to fear in Feni, it would be reasonable for him to move to an area away from that city. He had two brothers who lived in Dhaka and he had experienced working in a large city. Given the very large population in Bangladesh, the chances that supporters of a former politician in Feni would even know that the applicant was in Dhaka was, according to the RRT, remote. Accordingly, if the applicant did not wish to return to Feni, it was reasonable for him to relocate to Dhaka. 12 The applicant appeared unrepresented in this Court. The grounds of his application are as follows: (i) the RRT committed jurisdictional error in finding that the applicant did not have a genuine fear of persecution for a Convention reason; (ii) the RRT's findings were not formed by a correct application of the applicable law; (iii) the RRT had no jurisdiction to make its decision because its "reasonable satisfaction" was not arrived at in accordance with the requirements of the Migration Act 1958 (Cth); (iv) the RRT exceeded its jurisdiction in making the decision to affirm the delegate's decision; (v) the RRT's decision was affected by bias; (vi) the RRT failed to perform the duty imposed on it by the Migration Act, s 425(1) to decide the applicant's case on the material put to it; (vii) the RRT's decision was not a bona fide attempt to act within its authority. 13 In his oral submissions, the applicant made no reference to any of these grounds. The issues he raised in his oral submissions, with one exception, were limited to a complaint about the outcome of the application to the RRT. Nothing that he said in those oral submissions went beyond a complaint that the RRT had not accepted his factual claims. 14 The second matter that applicant raised in his oral submissions was that the RRT had asked him irrelevant questions. The applicant did not identify what those irrelevant questions were, nor did he indicate in what way they may have been inappropriate to ask. There is nothing in the material before me to indicate that the RRT did ask irrelevant questions. Even if it did, that of itself is not a basis for imputing jurisdictional error to the RRT. 15 So far as the grounds set out in the applicant's application are concerned, it may be accepted that, following the decision of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24, s 474(1) of the Migration Act does not protect a decision of the RRT which involves a failure to exercise jurisdiction or an excess of jurisdiction. Thus the Court can grant relief under s 39B(1) of the Judiciary Act in a case where the RRT's decision is infected by jurisdictional error. 16 The applicant has not, however, established that the RRT's decision is affected by jurisdictional error. The decision was based on an assessment of the applicant's claims taking account of his evidence, the objective circumstances and the country information available to the RRT. The finding that the applicant did not have a subjective fear of persecution in Bangladesh was fatal to his claim that he had a well-founded fear of persecution in that country. There was material, particularly the evidence concerning the applicant's trips to Bangladesh before he came to Australia, that supported the RRT's finding. I cannot discern any jurisdictional error in the RRT's reasoning. 17 There is no basis for concluding that the RRT's decision was affected by actual bias or a reasonable apprehension of bias. There is nothing to indicate that the RRT was committed to a conclusion already formed that was incapable of alteration whatever argument or evidence might have been presented: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, at 531-532, per Gleeson CJ and Gummow J. Nor is there anything to indicate that a fair-minded observer might reasonably apprehend that the decision-maker did not bring a fair and unprejudiced mind to the matters before the RRT: cf Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128, at 136, per Gleeson CJ, McHugh, Gummow and Hayne JJ. The RRT gave cogent reasons for not accepting the substance of the applicant's claims. 18 The basis of the applicant's contention that the RRT failed to comply with s 425 of the Migration Act is not clear. Section 425 requires the RRT to invite the applicant to appear before it to give evidence and present arguments relating to the issues in relation to the decision under review. On 4 February 2003, the RRT notified the applicant that it was unable to make a decision in his favour on the material before it and extended an invitation to him to appear at a hearing of the RRT to give oral evidence and present argument. The hearing in fact took place on 4 March 2003 and the applicant appeared at that hearing and gave evidence and made submissions. Prior to the RRT extending the invitation to the applicant, a migration agent on his behalf made written submissions to the RRT. In these circumstances, no breach of s 425 of the Migration Act has been established. 19 It follows from what has been said that there is also no basis for the applicant's claim that the RRT had not exercised its jurisdiction in good faith. There is nothing to suggest that the RRT showed a lack of honesty or genuineness in reaching its decision: see Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142, at [21]. 20 In my opinion, there is no basis in any of the other matters that are referred to in the application filed in this Court. Accordingly the application must be dismissed, with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE.