NAOQ v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2003-06-26|Before: Bennett J

EX TEMPORE REASONS FOR JUDGMENT 1 This is an application seeking an order primarily that the applicant's claim be remitted to the Refugee Review Tribunal ('the Tribunal') for further consideration. The applicant has appeared in person before this Court, assisted by an interpreter. In the filed application the applicant identified a number of grounds of the application including '…an incorrect interpretation of the applicable law to the fact of the case, was found by the Refugee Review Tribunal'. The remaining grounds related to factual matters or are encompassed in the above ground.

background 2 In his application (and his application for review to the Tribunal), the applicant stated that he was born on 15 January 1960. In his written statement in support of his application ('the written statement'), the applicant gave his date of birth as 1 January 1965. Be that as it may, he arrived in Australia on 14 September 2000. On 12 October 2000, he lodged an application for a protection visa. 3 In the written statement, the applicant said that he became an active disciple of Mr Barkat Ullah Khan, a Guru who, he said, is a progressive thinker of Islam, after meeting him in 1985. According to the applicant, the Guru's teachings conflicted with the interests of fundamentalist Muslims in Bangladesh. The applicant claimed that his house was looted and burned in 1992, after which he and the Guru hid. After publishing the Guru's teachings, a number of cases were filed against him in 1996. He also claimed that he visited his home to see his children in 1998 when he was attacked and beaten by villagers after which he did not return home. He claims that he could not relocate in his country, that his life is in danger in Bangladesh where, if he returned, he would be persecuted by what he called 'fanatic Muslims in my locality'. 4 A delegate of the respondent refused the application for a protection visa on 12 January 2001. The applicant sought review of that decision but, by a decision handed down on 3 April 2003, the Tribunal affirmed the delegate's decision.

the tribunal decision 5 The applicant provided the Tribunal with evidence in support of his claim that he had a well founded fear of persecution on his return to Bangladesh on account of his religion. He also attended a hearing on 4 December 2002 and gave evidence to the Tribunal. The applicant claimed that the fundamentalists declared a jihad against the Guru and that the applicant was declared a Kaffir or outcast in 1992, after which he went into hiding. 6 It would also seem that the applicant travelled from Bangladesh to Germany and to India, returning to Bangladesh from Germany in 1994 and from India in 2000. 7 The Tribunal set out extracts from the United States State Department reports on Bangladesh as well as extracts from other material concerning human rights in Bangladesh but did not comment on that material. 8 The Tribunal acknowledged that it should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of the claims but that a decision maker is not required to accept uncritically any and all allegations made. The Tribunal found the applicant's evidence 'to be generally unconvincing' but said that it gave him the benefit of the doubt. On that basis, the Tribunal was satisfied that he was a follower of a Guru who sought to modernise Islam but was not satisfied as to other claims. The Tribunal observed: 'It seems improbable that he would have twice returned to Bangladesh if these claims were true'. However, even if these other claims were true, the Tribunal was satisfied that the applicant has avoided harm since 1992 apart from a single instance in 1998 and was satisfied that he would be able to continue to avoid harm in the future, noting that he has been able to live and travel in Bangladesh while there. 9 The Tribunal was not satisfied 'that there is any real chance that the applicant will be persecuted should he return to Bangladesh' nor 'that any fear of persecution that he has is well founded'. They were assessments the Tribunal was entitled to make. Thus, on both bases, the applicant's claim was held to be not well founded. Accordingly, the Tribunal found that the applicant does not satisfy the criteria set out in section 36(2) of the Migration Act 1958 (Cth) ('the Act') for a protection visa.

the appeal 10 As a result of the decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, it is accepted that, if an applicant can make good a contention that a Tribunal decision was subject to 'jurisdictional error', it follows that the decision is not a 'privative clause' decision within the meaning of the Act and this Court may grant the relief sought (see also SBBG v MIMIA [2003] FCAFC 121). 11 Unless the applicant can establish, or the court determines, that there is an error which amounts to a jurisdictional error, then section 474 of the Act applies and no relief may be granted. 12 In the present case, the applicant has not identified a jurisdictional error, apart from the grounds set out in the application. Those grounds were not particularised and no details of those grounds were given at hearing. Despite being asked whether there was any matter, other than factual matters, that he wished to put, the applicant did not say anything that goes to those grounds. 13 The applicant said that the only matter he put to the Court is that the Tribunal did not believe him. The applicant repeated his assertions that what he said to the Tribunal was true. The Tribunal affirmed the delegate's decision because it rejected the applicant's credibility. Assessment of the applicant's credibility is a function committed to the Tribunal and not a function committed to the Court: NABT v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 522. 14 The Tribunal also found, as a fact, that the applicant did not establish that he would be persecuted in Bangladesh or that such a fear, if it existed, was well founded. This was solely a question of fact for the decision maker Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407). 15 It follows that I must dismiss the application and I order the applicant to pay the respondent's costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

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