Nabs v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 368

FEDERAL COURT OF AUSTRALIA

NABS v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 368

NABS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N322 of 2003

MADGWICK J
2 MAY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N322 OF 2003

BETWEEN:	NABS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	2 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to 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	N322 OF 2003

BETWEEN:	NABS APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	2 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

Introduction

1. This is an appeal from a decision of Raphael FM given on 4 March 2003.  His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) from which the appellant had unsuccessfully sought review by the Tribunal of the decision of a delegate of the respondent Minister to refuse the appellant a protection visa.

2. The appellant was accepted to be a citizen of Bangladesh.  He entered Australia on or about 22 October 1999 using a false passport.  On 4 January 2000 he lodged an application for a protection (class XA) visa.  The appellant claimed to fear persecution in his country of nationality for reasons of political opinion arising from his membership of the Bangladesh Nationalist Party (“the BNP”). 

3. In his application for review to the Tribunal, for which the appellant employed a new and different migration agent, the appellant’s representative added a new claim that his fear of persecution arose from past persecution on account of his alleged activities as a leader of a trade union affiliated with the BNP.

4. The Tribunal disbelieved the appellant root and branch.  The Tribunal Member relied for his disbelief of the appellant on the implausibility of various of the appellant’s explanations and assertions, including as to why he had no identity papers at all; inconsistent claims made at the hearing, and the appellant’s delay of two and a half months in lodging the application for a protection visa.  As an alternative basis of rejecting his claims, the Tribunal accepted that certain “country information” indicated that the appellant would not face a real chance of persecution by reason of the matters he had referred to.  Among other things, the Tribunal Member pointed out that the BNP is now in government.  The Tribunal Member further accepted that Bangladesh has an independent judiciary and the new government has passed legislation to protect its citizens from political violence. 

5. Raphael FM pointed out that a suggestion in the appellant’s application for judicial review that the appellant was affected by the decisions in the High Court in Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal (2002) 190 ALR 601 was unsupported by any proof of the necessary facts to sustain such a claim. There was no other particular of claimed error of law or jurisdictional error. The appellant’s third ground for judicial review was that there was no evidence or other material to justify the Tribunal’s decision. The last proposition is manifestly unfounded.

6. Raphael FM followed the course of asking the appellant to tell him why he believed that the Tribunal had fallen into error, whereupon the appellant addressed him on the facts.  As Raphael FM pointed out, what the appellant said did not address the legalities of the Tribunal’s decision.  The appellant being unrepresented, Raphael FM said:

   “I must therefore turn to the application itself and consideration of the court book to see whether any of the grounds stated therein can be made out.”

   His Honour concluded that:

   “I find that there is nothing in [the Tribunal’s] reasons which raises a suspicion that the Tribunal erred in law or committed some jurisdictional error.  The Tribunal’s task is to assess the credibility of an applicant, this it did, it found against him.  The existence of such finding is not in itself a cause for review.”

7. Before me the appellant was again legally unrepresented and he frankly indicated that, not understanding legal matters, he could not raise any.  The addressed the court as to allegedly factual matters. 

8. A person who genuinely fears persecution in his own country and asserts entitlement to refugee status brings to the court a matter of potential importance as great as any that this court deals with.  Accordingly, like Raphael FM, I have, as best I can, looked through the materials to see whether there might be any argument that a lawyer could put on behalf of the appellant.  I have found none.  Some of the Tribunal Member’s findings might be regarded as somewhat robust but that is not true of others and the findings that were undoubtedly well open to the Tribunal Member were both ample to justify the rejection of his application and not such as to be infected by any possible error in what I have called the more robust findings.  Nothing in the fact-finding process suggests jurisdictional error and, without jurisdictional error, the appellant must have failed before Raphael FM, as he did.

9. It follows that the appeal should be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             2 May 2003

Applicant appeared in person.
Counsel for the Respondent:	Ms Francois
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	16 April 2003
Date of Judgment:	2 May 2003