Applicant NABT v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 357

FEDERAL COURT OF AUSTRALIA

Applicant NABT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 357

APPLICANT NABT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 739 OF 2003

ALLSOP J
1 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 739 of 2003

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN:	APPLICANT NABT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	1 APRIL 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant 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 739 of 2003

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN:	APPLICANT NABT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	1 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate. On 24 July 2003 the Chief Justice made a direction pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that the appeal be heard and determined by a single Judge.

2. The orders of the Federal Magistrate were that the application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) under s 39B of the Judiciary Act 1903 (Cth) be dismissed. The notice of appeal contains no grounds that could be said to amount to jurisdictional error. All that is written is as follows:

   1.I am not satisfied with the decision made by the Federal Magistrate Court.

   2.The RRT decision was affected by “error of law” by not accepting my oral evidence and materials.

3. Against that background, it is first necessary to understand the appellant’s claims and the decision of the Tribunal.

4. The appellant is a citizen of Bangladesh and arrived in Australia on 22 May 2000.  Shortly thereafter, the appellant applied for a protection visa.  In documents that he lodged with his visa application the appellant claimed to have a well-founded fear of persecution in Bangladesh by reason of his association with Taslima Narseem and her publications, which he claimed to have sold.  Taslima Narseem is a well known Bangladeshi progressive feminist author.  The appellant claimed to have been attacked by religious fundamentalists, to have had a fatwa issued against him, to have had court cases filed against him and to have been arrested and tortured by the police.

5. On 6 July 2000, a delegate of the respondent Minister refused the appellant’s visa application.  On 2 August 2000, the appellant applied for review.

6. The appellant filed written submissions with the Tribunal and attended a hearing on 16 August 2002.  The hearing was adjourned to a later date on 22 August 2002 at which time the appellant gave further oral evidence. 

7. The reasons for the rejection of the claim for protection were essentially twofold.  First, the Tribunal did not accept most of the appellant’s evidence and claims about his “experiences and circumstances” in Bangladesh.  Having recounted the evidence of the appellant the Tribunal concluded:

   …The Applicant’s evidence was most unsatisfactory, not only in relation to differences between his previous statement and recent submission on the one hand and his evidence at hearing on the other, but also within his hearing testimony.  Much of this will be evident from the summary already provided, though this does not fully reflect the extent of the hesitancy and inconsistency evident throughout and the difficulty in obtaining satisfactory responses to questions, which often had to be repeated in order to secure an answer.

8. Secondly, the Tribunal concluded that it had difficulty accepting that the present BNP Government in Bangladesh or the authorities were committed to punishing every person who has in the past been associated with Taslima Narseem.  Relevant country information was referred to in this regard.  The Tribunal did not accept that a person who as a bookseller sold titles of Taslima Narseem in the course of his normal business up to 1992 (that is, before they were banned) would therefore now be targeted in Bangladesh.

9. The initiating process in the Federal Magistrates Court under s 39B of the Judiciary Act “specified” the following three grounds, none of which was adequately or appropriately particularised:

   (a)failure to follow procedures required to be followed by the Migration Act;

   (b)error of law and jurisdictional error; and

   (c)no evidence or other material to justify the decision.

10. No written submissions were filed by the appellant before the Federal Magistrate.  However, in oral submissions it would appear that the appellant advanced arguments that in substance amounted to allegations of actual and apprehended bias on behalf of the Tribunal.  The appellant contended that the Tribunal member was angry with him and asked him irrelevant questions and had not conducted the hearing properly.  At the request of the appellant and over the respondent’s objections the Federal Magistrate listened to the tapes.

11. Having listened to the tapes, the Federal Magistrate concluded that the material before the Court did not establish either actual or apprehended bias on the part of the decision maker or any denial of natural justice by the Tribunal.  The Federal Magistrate found that there had been no failure by the Tribunal to comply with its obligation under s 425 of the Act and that the appellant was given a fair hearing.

12. The Federal Magistrate also found that none of the appellant’s other complaints was made out.  The Federal Magistrate found that the Tribunal’s findings of facts, in particular, its adverse credibility findings, were open to it on the materials before it and not able to be subject to challenge.  The Federal Magistrate further found that there was no error of law apparent from the Tribunal’s reasons and that there had been no actionable failure to investigate the appellant’s case. 

13. No written submissions have been filed before me.  I was not assisted by any relevant oral submissions.  The inadequate form of the notice of appeal can be seen from what I have earlier set out.

14. I have read the Tribunal’s decision and the reasons of the Federal Magistrate.  I can find no error in either.

15. I have listened to the tape recordings of the hearings.  In the second tape of the first hearing day it became evident that the appellant objected to a line of questioning being undertaken by the Tribunal.  The appellant objected to what he saw as the repetition of the questions.  He said the same questions were being asked and asked aggressively.  A line of questions was being asked.  However, the Tribunal was making it plain to the appellant that there was a similarity in the questions because the Tribunal was attempting to understand what it perceived to be serious inconsistencies in the answers being given.  There was no rudeness or aggression at this point in the questioning.  The questioning was firm and precise.  The appellant, it would appear from the tape, was objecting to the searching nature of the examination.  Not only was the Tribunal within its rights so to question the appellant, it was its duty to do so given that it was required by the Migration Act 1958 to form a state of satisfaction one way or the other as to the appellant’s claims.  Towards the end of the first day matters became a little strained.  The appellant claimed that he was being made sick by the way the Tribunal was approaching its questioning.  The Tribunal indicated with some firmness that there was no evidence of any sickness.  It would be fair to say that by the end of the day the Tribunal member was becoming somewhat exacerbated with the appellant.  There was, however, no inappropriate conduct and when it became evident there was little point in further continuing on that day the Tribunal adjourned the matter to later a day in the month.

16. Having listened to the tapes, I am confident that there was a fair hearing and that all the Tribunal was doing was attempting to test what it thought to be an inconsistent history.

17. In all the circumstances, the appeal should be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop .

Associate:

Dated:               1 April 2004

The applicant was unrepresented.
Counsel for the Respondent:	Mr M Wigney
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	12 March 2004
Date of Judgment:	1 April 2004