NACX of 2002 v MIMIA & Ors

[2004] HCATrans 473

[2004] HCATrans 473

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S582 of 2003

B e t w e e n -

NACX OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

NACW OF 2002

Second Respondent

NACY OF 2002

Third Respondent

NACZ OF 2002

Fourth Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 NOVEMBER 2004, AT 12.01 PM

Copyright in the High Court of Australia

__________________

NACX OF 2002 appeared in person. 

MR J.D. SMITH:   I appear for the first respondent.  (instructed by Sparke Helmore)

McHUGH J:   Yes, you are again interpreting?

THE INTERPRETER:   Yes, your Honour.

NACX:   I will take help from the interpreter if I need it.

McHUGH J:   Yes, thank you.  I have a certificate from the Deputy Registrar in which she certifies that she has been informed by the second, third and fourth respondents, NACW of 2002, NACY of 2002 and NACZ of 2002, that the second, third and fourth respondents submit to the order of the Court save as to costs.  Now, would you proceed with your submissions.  You have 20 minutes to emphasise any points that you wish to make.  The Court has read the application book and the submissions in it and if there is anything you want to emphasise, this is your opportunity.

NACX:   Thank you, your Honour.  In the beginning I make an apology if I make any mistakes because I am not a lawyer or solicitor.  I make any mistakes and I may not speak as per language of the law.  I will just speak generally to you.  My humble submission in this matter that RRT has decided my whole case without – you know, we have made a complaint, investigation, RRT requested to the Australian High Commission in Bangladesh and the Australian Commission team member who investigated the matter behave corruptly with the people there and asked for the bribe and this was informed to the RRT and an investigation was going on.  Before

finalisation of the investigation, the decision was given by RRT.  This is in page 16, application book, 25 to 30 paragraph. 

At the same time, I was given gaol for three years by Magistrates Court in Bangladesh and RRT…..was genuine but they found it from report from the member of that corrupt team that it is genuine but genuine can be obtained by corruption.  Also another thing I bringing it to your attention that the Full Federal Court in their judgment, they upheld my wife’s case and my daughter’s there and separated me from them and dismissed my one and without giving any direction what will be my status in Australia should I be separated from my family alone.  I am having to leave the country and my wife…..so I make an appeal and submission here at least give me a chance to until the finalisation of my wife’s and family case so that I can be legally here.  I do not know whether it is a part of the High Court or not.

McHUGH J:   No, there is nothing we can do, I am afraid.

NACX:   And at the same time you can see in the application book page 35 that my solicitor applied to the DIMA, my wife applied to the DIMA to include me in the same file application.  Only I came to know, because everything was doing all together, during the Federal Court judgment I only came to know I am not in her file.  I do not know how this happened because in 6 August 1999 the letter was sent to DIMA, my wife sent it through the lawyer, “Please include my husband in my application”. 

At the same time, in RRT report, if you see that page 23, paragraphs 5 to 10, many of the investigation, I belong to a party named Jatiya League but the investigation was conducted as Jatiya Party.  There is another Jatiya Party in Bangladesh and I have no link with that party, so the investigation people…..has no link with the Jatiya Party.  You can see also at page 23, 35 to 40.  So wrongly it was investigated.  I am a member of Jatiya League, but they investigate whether I am a member of Jatiya Party or not.  I have never been a central committee member of Jatiya Party and they ask one of the BNP current government leader that whether I have an involvement in the central committee of Jatiya Party or not.  Definitely they said, no, they never had me as a central committee member of the Jatiya Party, but I am not with the Jatiya Party.  So that is all, your Honour.  I do not want to speak…..to you.  Thank you.

McHUGH J:   Thank you.  The Court need not hear you, Mr Smith. 

The applicant, who is a citizen of Bangladesh, claimed membership of a number of organisations critical of the government and the leader of Bangladesh, including the Gono Forum and the Jatiya League.  The Tribunal did not accept that the applicant was at any risk of persecution even if he had been a member of any of these organisations, one of which, the Jatiya League, it held had probably ceased to exist, in any event.  Furthermore, the Tribunal formed the view that the applicant had arranged to have charges filed against him in order to make a case of persecution as a basis for a claim for protection in Australia. 

The only submission advanced to the primary judge was that the applicant was denied procedural fairness by the Tribunal failing to give him an opportunity to comment on relevant information it had in its possession.  In the Full Federal Court, the matter was put somewhat differently.  It was said that the Tribunal prematurely decided his application.  The applicant submitted that this was so because the investigation of an allegation that he had made of bribery had not been concluded.  For the reasons given by the Full Court, however, the submission was without foundation. 

The applicant has not shown any error of any kind on the part of the Full Court of the Federal Court which would justify the grant of special leave.  The application must be dismissed with costs. 

The Court will now adjourn to 9.30 am in Sydney on Tuesday, 30 November. 

AT 12.09 PM THE MATTER WAS CONCLUDED