NAFH v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 202

FEDERAL COURT OF AUSTRALIA

NAFH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 202

NAFH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 2503 OF 2003

TAMBERLIN J
SYDNEY
5 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N2503 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	NAFH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	5 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal be 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	N2503 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	NAFH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	5 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Barnes given on 5 December 2003 dismissing an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 11 November 2002, which affirmed a decision by a delegate of the Minister refusing to grant the appellant a protection visa.

   BACKGROUND FACTS

2. The appellant arrived in Australia on 30 July 1998, and applied for a protection visa on 4 April 2000.  In his application, he claimed that he was born in Bangladesh, that he was a Bengali, and that he had participated in a student movement, attending demonstrations and campaigning in elections in which the Bangladesh Nationalist Party (“the BNP”) won the majority and formed a government.  He claimed that he had friends murdered by the Awami League and that he was targeted by Awami League workers, who attempted to kill him on several occasions.

3. In later written submissions dated 3 September 2002, and at the Tribunal hearing, the appellant claimed that he was born in Burma as a descendant of the Rohingyas and moved to Bangladesh at a young age.  He claimed that he had been charged under the Bangladeshi Criminal Procedure Code in 1998, and that he had taken an active role in demonstrations against the treatment of the Rohingyas.

   THE RRT DECISION

4. The Tribunal did not find the appellant to be a credible or plausible witness in many respects.  However, it made important findings of fact that the appellant was not Rohingyan, and rejected his claims that he was targeted by the Awami League because of his involvement with the BNP.  The Tribunal found inconsistencies in the appellant’s evidence, and did not accept his explanation of the discrepancies in his claims.  It found that he had no documentary evidence to support his claim to be a Rohingyan.

5. The Tribunal rejected the appellant’s claim that he suffered discrimination in Bangladesh as a Rohingyan, noting the education that he had received in Bangladesh.  It did not accept that he had been involved in Rohingyan political activities, or that he had been charged under the Bangladeshi Criminal Procedure Code with murder. 

6. These are critical findings of fact.  They do not give rise to any questions of error of law.

   THE MAGISTRATE’S DECISION

7. At the hearing of the appellant’s review application, the Magistrate listened to the tape of the proceedings before the Tribunal, and found that there was nothing in the material on the tape to support the appellant's claim that there had been a breach of the procedural fairness in the hearing before the Tribunal.

   REASONING ON APPEAL

8. When the appeal came on for hearing before me the appellant referred to several matters that had been dealt with adequately, in my view, by the Tribunal and the Magistrate.

9. The first was that the Tribunal Member did not properly investigate whether the appellant was Rohingyan.  The appellant says that a request was made to the Tribunal member to investigate this matter.  The appellant says that he attempted to furnish some newspaper clippings to the Tribunal Member in support of his claim, and that she wrongly rejected this material.

10. The second was in relation to the tape of the proceedings before the Tribunal.  However, when I asked the appellant to specify any errors or matters which he particularly wished to refer to in the taped material, he was unable to specify in any precise manner any matter which could give rise to a ground for finding an error in the determination of the Tribunal Member.

11. Having considered the judgment of the Magistrate, I do not find that it contains any error of law.  There is nothing in the reasoning which leads me to believe that there was any important finding which could give rise to jurisdictional error.

12. Accordingly, I dismiss the appeal to this Court from the decision of the Magistrate with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            9 March 2004

The Appellant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	5 March 2004
Date of Judgment:	5 March 2004