Nada v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 611

FEDERAL COURT OF AUSTRALIA

NADA v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 611

NADA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N520 of 2003

MADGWICK J
23 MAY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N520 OF 2003

BETWEEN:	NADA APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	23 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be 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	N520 OF 2003

BETWEEN:	NADA APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	23 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. This is an appeal from a judgment given by Raphael FM on 10 April 2003 ([2003] FMCA 148) challenging a decision made by the Refugee Review Tribunal (“the Tribunal”) to affirm a decision of a delegate of the respondent Minister refusing to grant a protection visa to the appellant. The learned Federal Magistrate was dealing with an application originally made to this Court, which had been remitted to the Federal Magistrates Court by a judge of this Court.

2. On a very charitable reading of his submissions, the unrepresented appellant might be thought to have raised the following issues about the Tribunal’s decision:  that the Tribunal had been wrong not to attend “to any favourable evidence in relation to the applicant’s claims”; that the Tribunal had manifested actual bias in relying upon “the generalised facts and findings of DIMA [DIMA no doubt refers to the respondent’s department.]”, and that the Tribunal had wholly or constructively failed to investigate the appellant’s claims.

3. The appellant’s application contained a good deal of legal argument and, although the appellant says he is a well educated person from Bangladesh, I doubt that his abilities would have been equal to producing that legal argument without some aid.  The accompanying affidavit, among other material which does not add to what I have said, suggested that the Tribunal had overlooked relevant facts and claims made by the appellant.  The Tribunal, in fact, dealt with the appellant’s claims as originally made to the respondent's department and as supplemented in a lengthy written submission and statement put before the Tribunal.  The appellant had the assistance of a migration agent before the Tribunal.

4. The appellant claimed refugee status on two grounds.  The first was that he, as a Muslim, had married a Christian woman and that religiously intolerant persons – who may fairly be called Islamists, to designate what are often called fundamentalist Muslims – would cause him and/or his wife serious harm.

5. The second basis of his claim was that as a member of the Jatiya Party (“JP”) he was at risk from that party's political enemies.  Among other things, the appellant said that he was physically attacked by political opponents in January 2000; that he was sought by the Bangladesh authorities because of false charges laid against him in 1992 and again in April 2000 and that his opponents would make political capital and cause him serious trouble because of his mixed faith marriage. 

6. The Tribunal Member evidently accepted that the appellant had indeed married a Christian woman but in the light of evidence to which I shall refer, was satisfied that the couple could live safely in Dhaka, the capital of Bangladesh, as others in mixed marriages do.  Somewhat less satisfactorily, the Tribunal Member said he had no evidence before him that “the mere fact that he is in a mixed faith marriage would provide capital for his political enemies”.  The Tribunal, overall, was not satisfied that if the appellant returned to Bangladesh he would have a well-founded fear of persecution for religious reasons.  The Tribunal Member looked to country reports on Bangladesh emanating from the US State Department and to detailed material from Australia’s Department of Foreign Affairs and Trade (“DFAT”).  The latter commendable for the thoroughness with which the officer or officers who prepared the information took their task, inquiring keenly and widely about the problem.

7. The Tribunal Member compared that favourable material with somewhat different material from the Canadian Immigration and Refugee Board Documentation Centre and acted on the Australian information upon the basis that:

   ‘…the adverse Canadian evidence refers to a “possibility” of harm for members of mixed couples in particular class settings.  However, the Tribunal's test is a ‘real chance’ of persecution for the particular circumstances of the applicant's case.  In the light of the totality of the evidence before it, the Tribunal finds that there is not a real chance that such harm will befall the applicant.  The Tribunal finds, in the light of the independent evidence with regard to the generally tolerant situation in Dhaka, and the absence of reports of inter-faith violence there, that the applicant's claim that his engagement/wedding party was attacked by religious extremists to be a fabrication made to strengthen his claims.

   In the light of this evidence, the Tribunal is satisfied that the applicant and his wife can live safely in Dhaka where the independent evidence [indicates] others in mixed marriages do so safely.’

8. In a couple of cases recently, in discussions with counsel, I have pointed to the possibility, in some cases, of trouble if the Tribunal should uncritically rely upon DFAT assessments, in circumstances where a reasonable person might hold a reasonable suspicion that unconsciously DFAT officers might have been influenced by a desire excessively to serve the perceived political interests of the government of the day in a very narrow assessment being taken of refugee claims.  However, this is manifestly not such a case. 

9. If the matter depended upon the view that the Tribunal had no evidence before it that his mixed faith marriage would provide capital for his political enemies, it would be easy enough to say that that was wrong as a matter of law.  There was ample evidence from which an inference might be drawn that political enemies who would not stop short of violence, in a political context which includes a significant presence of Islamist prejudice, would not refrain from making political capital by suggesting that an opponent who would marry a Christian is not a true believer in Islam.  However, as will be seen, in my opinion the matter does not depend on that.

10. The Tribunal dealt with the claim of political persecution by accepting that the appellant was a supporter of the JP and had held local offices in the party.  However, the Tribunal Member found his claim to be quite far fetched because the JP is one of the parties in the coalition which forms the government presently in office in Bangladesh.  Despite searching for it, the Tribunal Member found no information that any of the JP “factions”, that is to say the main JP and some offshoots of it, “…are presently being harassed or threatened by the current government or its supporters”.  Further, “Given the fact that the Awami League has lost government ... the Tribunal finds the applicant can call on the authorities to protect him from any such harm”.

11. The Tribunal Member dealt with the claims of past serious harm as follows. 

    ‘The Tribunal also considers the applicant’s claims that he was detained in 1992 and again in 2000 to be fabrications designed to advance his claims, a fabrication that his lawyer has been party to writing the letter submitted to the Tribunal (or that the letter, like the police and court documentation relating to events in 1992, are themselves fabricated documents).  In making this finding, the Tribunal has had regard to the independent evidence ... which the Tribunal accepts, that fabricated documents are very commonly procured in Bangladesh.  In making this finding, the Tribunal further finds as inconceivable that should he have been sought for some eight years on very serious charges but that he was not found by the authorities although during this time, he was issued with a passport (which was subsequently revalidated), that he departed and re-entered the country three times to travel in India in 1998 and that he was again detained by the authorities in April 2000 and that he again departed the country to come to Australia.  Moreover throughout this period he was in stable employment at the one address.’

12. The learned Federal Magistrate said this at [14]:

    ‘If I have any criticism at all of the tribunal it is about its very firm findings concerning the fabrication of the documents ... These documents have all the appearance of genuine documents.  They have multiple seals, they have certificates of comparison with the originals and they have the look of a genuine document.  To say the particular documents are fabricated because the country information indicates that some documents are fabricated, even when the tribunal has other concerns about the charges that are allegedly contained in those documents, does, to my mind, seem to be pushing the tribunal's fact finding ability to its limit.’

13. If that were all the Tribunal Member had found, I would agree with the learned Federal Magistrate's criticism and indeed might have been inclined to go further myself.  But that is not all that the Tribunal Member found.  The Tribunal Member, persuasively one might think, found that, for reasons having nothing to do with fabricated documents, the appellant’s whole story as to not being arrested and being sought for eight years on very serious charges, was “inconceivable”.  Once he had taken that view, the logical conclusion was that there never was any charge of the kind alleged.  If there never were any such charges, documents purporting to assert that there were such charges were, one way or another, clearly false documents. 

14. I see no legal error and no jurisdictional error in the Tribunal Member having so proceeded.  Moreover, I think that the learned Federal Magistrate was right to take the view that even on his view of the matter there was no jurisdictional error. 

15. To return to the point about there being no evidence that political capital would be made by his political opponents on account of the appellant’s mixed faith marriage, the matter arises in the context of the claim that this was one of the reasons why he feared persecution for reasons of political opinion.  The main reason the Tribunal Member rejected that entire claim, however, was that he reasoned and argued that the appellant’s political party’s star is in the ascendant, and there is no reason why the appellant could not have the protection of the State against any threat or fear of such persecution.  In that context one can, I think, say with assurance that, had the Tribunal Member viewed the evidence as raising the prospect that his political opponents might make such capital, it would nevertheless not amount to serious harm since, in Dhaka, mixed marriages do not attract, on the Tribunal’s findings, serious harm.  Alternatively any feared harm would be part of political harassment against which he would be protected, because his party is one of those which form government.

16. The written argument of the appellant suggested actual bias and bad faith on the part of the Tribunal.  In particular, it was said:

    ‘The decision maker did not make an honest attempt to come to the right decision.’

    Also, the appellant suggested that the decision maker intentionally made a wrong decision and that:

    ‘Having listened to the tape recording of the tribunal proceedings [which were never put in evidence] and having read its decision, [the Court] can say that the tribunal acted in bad faith.’

17. In fairness to the Tribunal Member, it should be said quite firmly that there is no basis whatsoever in the material before me which could come close to justifying this appalling attack on a person who, quite clearly, went about his task conscientiously.

18. I was informed that the appellant had the assistance of a “friend” in preparation of his submission.  That friend might do well to have legal advice about his legal liability for encouraging people to abuse outrageously their absolute privilege in court proceedings, by fomenting such offensive and unfounded submissions. 

19. There was no appellable error in the learned Federal Magistrate’s decision and the appeal will be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            18 June 2003

Appellant appeared in person.
Counsel for the Respondent:	Ms Roberts
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	23 May 2003
Date of Judgment:	23 May 2003