NACJ v Minister for Immigration and Multicultural Affairs

[2002] FCA 418

FEDERAL COURT OF AUSTRALIA

NACJ v Minister for Immigration & Multicultural Affairs
[2002] FCA 418

APPLICANT NACJ OF 2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1558 of 2001

LINDGREN J
3 APRIL 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1558 OF 2001

BETWEEN:	APPLICANT NACJ OF 2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	3 APRIL 2002
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 1558 OF 2001

BETWEEN:	APPLICANT NACJ OF 2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	3 APRIL 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This proceeding is fixed for hearing today.  The applicant having been called outside the courtroom does not appear.  On 28 February 2002, the applicant appeared before me when the proceeding was fixed for hearing today.  Also on 28 February 2002, he filed a notice of change of address for service.  I am satisfied that, although he is unrepresented in the proceeding, the applicant knew that the proceeding was fixed for final hearing today.  I propose to deal with the matter as requested by the Minister for Immigration & Multicultural Affairs (“the Minister”) through counsel who appears for him.  I propose to dismiss the application pursuant to Order 32 paragraph 2(1)(c) of the Federal Court Rules on account of the absence of the applicant.

2. Having read the papers, I do not think there is any injustice in my taking this course.  The applicant, a citizen of Bangladesh, arrived in Australia on 25 December 1998 and on 30 December 1998 applied for a protection visa.  In his application he said he had left Bangladesh because of his “involvement with Bangladesh Nationalist Party”.  In a statement accompanying his application he stated:

   “My life is not safe in Bangladesh.  A number of politically motivated cases as well as political enmities with my rival political parties would make my life simply a hell.  There is a high likelihood of being killed by my political rivals.  I have a real fear of persecution on returning home.”

3. The statement lodged by the applicant made a number of specific claims.

4. On 24 February 1999, a delegate of the Minister concluded that the applicant did not meet the criterion for the granting of a protection visa and therefore refused the grant of one.

5. On 17 March 1999, the applicant lodged an application for review with the Refugee Review Tribunal (“the Tribunal”). 

6. On or about 29 June 2000, the applicant’s adviser forwarded various documents to the Tribunal in support of the applicant’s case and the applicant attended a hearing before the Tribunal on 26 October 2000.  The member who presided on that occasion ceased to be a member of the Tribunal before giving a decision on the application for review.  There was a further hearing before the Tribunal differently constituted on 25 October 2001, when the applicant gave evidence and was questioned by the presiding member. 

7. The same day, 25 October 2001, a decision was given affirming the delegate’s decision not to grant a protection visa.

8. On 26 November 2001, the applicant lodged his application with this Court for review of that decision.  I set out below the substance of his application:

   “I am seeking a review of the Refugee Review Tribunal under section (error of law) of the Migration Act. I strongly believe that the tribunal failed to internalize the circumstantial grounds of my review application and in weighing both the subjective and objective claims of my application and in reviewing the hugs [sic] supporting facts and documents under concerned section of the Act.

   Particulars: 

   1.I am a 31 years old Bangladeshi and I were educated in Bangladesh.  I travelled to Australia with a valid passport issued in Dhaka on 04 November 1998 to avoid political persecution.  I managed authority of Bangladesh to avoid harassment in Airport and other concerned places.  From various documents, which I have submitted to the RRT, it is clearly evident that I am a genuine Refugee applicant for claiming a Refugee status in Australia.

   2.I was an active worker of Bangladesh Nationalist Party (BNP) and served the party since 1987.  Because of my political success, the central leaders and promoted/elected hailed me to various executive posts.  During my political involvement I was arrested several times and beaten by the Awami League supporters and Police.

   3.I worked very hard to build a strong organisation in the college.  Due to my ceaseless work I was elected as the senior vice-president of the college committee.  Since then I became the target of Awami League and they harassed me on several occasions.  Even they attacked on my life and severely injured me.  They are also terrorist group.

   4.My political opponents already filed several malicious and politically motivated cases against me and if I return to my country.  They will kill me.

   5.During my RRT interviews.  The authority did not ask me relevant questions.  Rather they raised unnecessary and irrelevant issues.  Which I think not sufficient and also not important to review the DIMA decision.

   6.In various stages. I provided a detail submission and necessary supporting documents in describing my above situation. But the presiding Member did not consider those in establishing my refugee status. Tribunal's decisions are not supported by the independent source of facts and evidences and thus I am seeking a review of the decision of the Tribunal under section 476(1)(a)(e)(f)(g), section 476(3)(d)(e), section 476(4)(b) of the Migration Act.”

9. On 6 December 2001, the Minister lodged a notice of objection to competency which, in the circumstances, I do not propose to discuss. 

10. The Tribunal did not accept many of the claims made by the applicant and gave reasons for not doing so.  In fact the Tribunal described the applicant as a “grossly unreliable witness”.  The Tribunal declared itself not satisfied that the applicant faced a real chance of Convention-related persecution in Bangladesh.

11. No ground of review suggests itself.  There is no injustice in my dismissing the application on account of the non-appearance of the applicant.

12. I note that the Tribunal’s decision was given on 25 October 2001, and that the Minister contends that in these circumstances s 474 of the Migration Act 1958 (Cth) would have deprived the Court of jurisdiction in any event.

1. In the result the Court orders that:

   1.        The application be dismissed.

   2.The applicant pay the respondent’s costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:  10 April 2002

The applicant did not appear.

Counsel for the Respondent:	Mr M A Wigney
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	3 April 2002
Date of Judgment:	3 April 2002