NAFT v Minister for Immigration

FEDERAL COURT OF AUSTRALIA

NAFT v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCAFC 254

Migration Act 1958 (Cth)

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 referred to
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 referred to

NAFT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N549 OF 2003

SPENDER, HELY AND BENNETT JJ
6 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N549 OF 2003

BETWEEN:	NAFT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	SPENDER, HELY AND BENNETT JJ
DATE OF ORDER:	6 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal 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	N549 OF 2003

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

JUDGES:	SPENDER, HELY AND BENNETT JJ
DATE:	6 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BENNETT J:

1. The appellant arrived in Australia on a visa obtained in the United Arab Emirates on a Bangladeshi passport which suggests that he is a national of Bangladesh.  He claims, however, to be a stateless Bihari refugee who was born in and substantially grew up in Bangladesh.

2. It was accepted by the Refugee Review Tribunal (‘the Tribunal’) and the primary Judge that, if that were the case, he would be entitled to be considered for refugee status. However, the Tribunal considered that there was a material difference between Biharis who, in 1971, declined Bangladeshi citizenship seeking repatriation to Pakistan and those who accepted the then offer of Bangladeshi citizenship.  It concluded for the reasons it gave, which were entirely factual, that the appellant was not a stateless Bihari but ‘a fully-fledged citizen of Bangladesh’.  As this was the basis for the appellant's claim, it was unsuccessful before the Tribunal.

3. In the hearing of an application for judicial review of the Tribunal decision, the primary Judge took account of the submissions put to him and observed at [13], correctly in our view:

   ‘The applicant complains of factual findings and, as best as I can understand it, complains in effect that the Tribunal was actually or apparently biased against him.’

4. His Honour observed, at [15], that as far as he could tell from the material before him, the Tribunal had examined the appellant’s claims with some care and had come to conclusions which were open on the evidence before the Tribunal.  His Honour could see no indication that, in disbelieving the appellant the Tribunal was apparently biased against him in any way or that the Tribunal had any actual bias against him.

5. The submissions to this Court are essentially the same as those before the primary Judge.  Indeed the appellant resubmitted in this Court his written submissions made to the primary Judge.  He said that he…