NADX v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 289

FEDERAL COURT OF AUSTRALIA

NADX v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 289

NADX v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1188 OF 2002

MADGWICK J
18 MARCH 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1188 OF 2002

BETWEEN:	NADX APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	18 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed with 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	N1188 OF 2003

BETWEEN:	NADX APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	18 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 24 September 2002.

2. The applicant arrived in Australia on 3 July 1998 from Bangladesh where he is a citizen.  He arrived using a Bangladesh passport issued in his own name in May 1998 and worked at the Bangladesh High Commission in Canberra as a chef for about two years.  When he lost that job he applied for a protection visa, claiming refugee status.

3. His claim is a complicated story, the essence of which is that because he assisted a woman to escape from a “trafficking gang”, that is to say criminals selling women into prostitution, those criminals are now pursuing him and have indeed induced corrupt police to lay charges alleging trafficking in women against the applicant himself.  He says that he is likely to suffer great harm if he returns to Bangladesh, his country of nationality.

4. The hub of the Tribunal Member’s reasoning was as follows:

   “The Tribunal found the applicant’s claims to be implausible and does not believe them.  The Tribunal does not believe that the applicant’s actions would have unleashed the level of criminal and police attention he claims.  Moreover, if indeed he was sought by the police in the manner he claims, then the Tribunal believes that he would have been unable to gain a passport, depart the country and work in the Bangladesh High Commission as he claims.  The Tribunal finds his claim that he was helped to gain a passport by a friend, that the airport did not have links to police records, and that the High Commission would not have carried out criminal checks to be unbelievable.”

   The Tribunal Member went on to say:

   “However, even if the above were true, the Tribunal finds that there is no Convention nexus between the harm feared and the Convention.  The Tribunal finds that the argument of the adviser, that it is a form of persecution resulting from political opinion, [is not] sustainable.  The Tribunal accepts that there may well be political links between criminals and police in Bangladesh.  However, this does not make political opinion the essential and significant motivation for the persecution feared.”

   The reference to “essential and significant motivation” is a reference to the requirements of s 91(R)(1)(a) of the Migration Act.

5. The Tribunal Member concerned accordingly affirmed the decision of a delegate of the respondent Minister not to grant a protection visa. On 11 November 2002 the applicant made an application for review of the Tribunal’s decision under s 39B of the Judiciary Act 1903 (Cth) and O 54 of the Federal Court Rules. That Order refers to and prescribes the manner of making applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

6. As details of his application to this court, the applicant indicated:

   “The Refugee Review Tribunal has not attended any evidence in relation to the applicant’s claims and thus its decision is influenced by sufficient doubts.  The applicant provided a suitable vehicle and most of the grounds relied upon facts and documents, which the Tribunal did not consider.  Therefore, the applicant relies on the following grounds:

   (a)The Refugee Review Tribunal did not follow the proper procedure as required by the Migration Act 1958.  Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed. ([Muin & Lie’s] case.)

   (b)The RRT decision was effected by an ‘Error of law’ and ‘Jurisdictional error’.

   (c)There was no evidence or other material to justify in making of the decision.”

7. As to the inadequacy of its expression, the application continued a tradition set by the submissions made to the Tribunal on his behalf.  Indeed these reached new heights.  Among other things his solicitor and, I gather, migration agent said:

   “Although the circumstances described by [the applicant] did not arise because of his race, religion, nationality or political opinion, he has an enormous amount of fear for Convention based persecution in Bangladesh.”

8. The Tribunal Member’s disbelief of the applicant evinces no jurisdictional error.  In the circumstances, neither does his additional and inessential conclusion that reasons of political opinion, presumably including imputed political opinion, were not involved.  No other jurisdictional error is apparent to me.

9. The application will 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:             1 April 2003

The applicant appeared in person.
Counsel for the Respondent:	Mr Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	18 March 2003
Date of Judgment:	18 March 2003