NADY v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate in the matter of NADY v MIMIA [2003] FMCA 246. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal which affirmed a decision of a delegate of the Minister to refuse to grant the appellant a protection visa. 2 The appellant applied for the visa on 16 July 1999. The delegate's decision was made on 23 September 1999. The appellant applied to the RRT for review on 14 October 1999. The RRT held a hearing on 22 March 2002 and handed down its decision on 17 October 2002. 3 In his application to the RRT the appellant claimed to have a well-founded fear of persecution in Bangladesh because of his membership of a particular social group. He claimed to be a homosexual and to have been seen or overheard having sex with his boyfriend in 1994 and 1997 in Bangladesh. He claimed to have been assaulted in 1998 by religious fundamentalists in Bangladesh because of his homosexuality. He also claimed that he continued to practise as a homosexual in Sydney after his arrival here in June 1999. He also claimed that he possessed photographs which proved that he was having a homosexual affair with an officer of the Immigration Department in Canberra. The appellant claimed that he would suffer persecution from religious fundamentalists in Bangladesh if he returned to that country. 4 The RRT found that the evidence given by the appellant at the hearing led the RRT member to conclude that he was not a truthful or credible witness. In particular the RRT noted that the appellant's two significant claims of his activities in Bangladesh occurred in unusual circumstances. The RRT regarded the appellant's claims to have been seen or overheard having sex in Bangladesh as implausible. 5 The RRT referred to the appellant's evidence of his claimed homosexual activity in Australia but noted that the descriptions of the venues which the appellant claimed to have attended were not accurate. The RRT considered that although the appellant had looked at the venues he had done so only for the purpose of being able to tell the RRT that he had attended those places. 6 The RRT referred to the evidence of the sexual affair which the appellant said that he was having with the departmental officer. The RRT observed that despite being requested to give details, he did not do so. Nor did he provide the photographs which he said he had available to corroborate the claim. The RRT said that it had carefully considered the evidence and did not accept it as true. The RRT considered that the evidence had been fabricated and concocted in an effort to influence the RRT in its decision. 7 The RRT summarised its views by stating that overall it found the appellant was not a credible witness. It did not accept his claims of being homosexual as true and considered that he had manufactured this claim and that he had manufactured his evidence. 8 The RRT went on to say that even if it did accept that the appellant was homosexual (which it did not), independent country information did not support his claims to have a well founded fear of persecution in Bangladesh. 9 The RRT referred in particular to country information which supported that finding. The RRT noted that there had been no convictions or charges relating to homosexuality in Bangladesh and that homosexuality is not illegal under Bangladeshi law, although the RRT noted that it may offend the immorality clause of the Bangladeshi Constitution. 10 The RRT went on to say that even if it would have accepted that the appellant was homosexual, it would find that whilst there is a level of discrimination in Bangladesh, it is not of such a degree as would be considered to be persecution as under the Convention or section 91R of the Migration Act. 11 On the application for review, the learned Federal Magistrate set out the background and findings made by the RRT. The Federal Magistrate stated at paragraph [6] that in the application, the appellant raised what amounted to four grounds of review. She stated that as the appellant was self represented on the application, she considered all of the grounds raised before her. 12 The first ground appeared to be an allegation that there was a failure on the part of the RRT to attend to or take into account evidence in relation to the appellant's claims. The appellant said that there was no basis to doubt his account of the events. The Magistrate found that this ground was not established because the appellant was not believed by the RRT. The Magistrate observed that the RRT was not under an obligation to obtain rebuttal evidence in relation to claims made by an appellant. She pointed out that the RRT decision turned on its assessment of credibility of the appellant and that assessment of credibility is a function of the RRT par excellence; see Re Minister for Immigration and Multicultural Affairs Ex Parte Durairajasingham (2001) 68 ALR 407 at paragraph [67]. 13 The Magistrate stated that the second and main ground of review pursued on the application was that the RRT failed to follow proper procedures. The appellant relied on the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601. 14 The learned Federal Magistrate observed at paragraph [9] that Muin is authority for the proposition stated by Keifel J in the Full Court Decision in NADR v MIMIA [2002] FCAFC 293 at paragraph [24] that there is a want of procedural fairness where an applicant is misled into thinking that the Tribunal has considered relevant information which was not in fact placed before the RRT. 15 However, here the Magistrate noted that there was no evidence before the Federal Magistrates Court that the RRT had not considered the Part B material. Nor was there evidence to establish that any such information that was not considered was relevant at the time of the decision. Moreover, there was no evidence that the appellant would have brought any such information to the RRT's attention had he been aware that the RRT had not considered particular relevant information. 16 In short, the effect of what the Magistrate said about the reliance upon the decision in Muin was that there was no evidence to support the findings consistent with those made by the High Court. 17 The third ground raised by the appellant before the Magistrate was that he took issue with the findings of fact made by the RRT. The Magistrate stated at paragraph [11] that this was a matter for the RRT and did not demonstrate any jurisdictional error or denial of procedural fairness. 18 The fourth ground before the Magistrate was that the RRT decision was affected by error of law and jurisdictional error. The Magistrate stated that no particulars of those claims were provided. She said that she had considered the RRT's decision and no such error was apparent on the face of the RRT's reasons or on the material before the Federal Magistrates Court. 19 The notice of appeal was in very general terms and did not identify any error in the reasons of the Federal Magistrate. 20 The appellant appeared before me in person today. He again relied on the decision of the High Court in Muin. His only other submissions were to take issue with the findings of fact made by the RRT. 21 Mr Reilly who appeared for the Minister pointed out that Muin was a case which was decided on agreed facts. No such facts were agreed in the present case and the Magistrate found that the appellant had not proved the facts necessary to support the finding which he sought. 22 It is clear that the appellant did not attempt to establish that the Part B documents were not before the RRT. 23 As Mr Reilly pointed out at least two of the items of country information from part of the Part B documents were in fact referred to by the RRT in its decision. 24 In my view the Federal Magistrate was clearly correct in rejecting the submission that the application was on all fours with the decision of the High Court in Muin. 25 It is also plain that no error has been demonstrated on the other three findings made by the Federal Magistrate in dismissing the application for review. 26 Accordingly, the order I propose to make is that the appeal is dismissed. The ordinary order that I would make is that costs follow the event and therefore as the losing party the appellant must pay the costs of the appeal. Thus the orders of the court will be that the appeal is dismissed with costs. I certify that the preceding twenty six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson .