NAFU v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1327

FEDERAL COURT OF AUSTRALIA

NAFU v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1327

MIGRATION – Application to set aside previous judgment dismissing application for review of decision of Refugee Review Tribunal (“Tribunal”) – applicant citizen of Bangladesh – claims not accepted by Tribunal - no error of principle or law – whether previous judgment should be set aside

NAFU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N309 OF 2002

TAMBERLIN J
SYDNEY
18 OCTOBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N309 OF 2002

BETWEEN:	NAFU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	18 OCTOBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The Notice of Motion filed by the applicant on 3 October 2002 be dismissed.

2.The order as to costs made in the previous judgment in this matter on 20 September 2002 be revoked.

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	N309 OF 2002

BETWEEN:	NAFU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	18 OCTOBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application pursuant to O 35 r 7 of the Federal Court Rules (“FCR”) to set aside a judgment dismissing an application for review for want of appearance of the applicant on 20 September 2002.  The applicant, who is a citizen of Bangladesh, arrived in Australia on 15 August 1999 and applied for and was refused, both by the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) and the Refugee Review Tribunal (“the Tribunal”), a protection visa on the basis that he was not a refugee within the definition in Article 1(A) of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”).

2. After the matter came on for hearing before the Tribunal, it found that it would not accept the primary claims made by the applicant because the assertions were considered by the Tribunal member to be inconsistent with the evidence and country information available to the Tribunal.  It seems to me that the only matters in question which were decided by the Tribunal and which are of relevance to the proceedings today are matters of fact and degree and do not involve any question of principle.

3. The applicant was unable to point to any line of argument to support the suggestion that there might be any reviewable error in the decision of the Tribunal.  The Tribunal did not believe the applicant on a number of matters because it did not accept that he was of interest to the Bangladesh authorities for a Convention reason at the relevant times, nor did it accept that he has a fear that he may be persecuted if forced to return to Bangladesh.

4. In addition, the Tribunal member, although pointing to what she considered unsatisfactory aspects of the judicial system in Bangladesh, took the view that at the higher levels, the courts in Bangladesh operated in a fair and independent manner.  On examining the decision of the Tribunal with some care, I am unable to see any reviewable error and none has been indicated to me in any of the submissions made by the applicant.  Accordingly, I can see no reason to set aside the order which has been previously made in this matter relating to the dismissal of the application.  I do not grant the application to set aside the order for dismissal which has been made.

5. The applicant has sworn an affidavit explaining that he was unable to attend the Court on the previous occasion because of sickness.  I accept what has been said in the light of the fact that there has been no suggestion that anything said in this affidavit as to his state of health was not true or correct and I decline to make any order as to costs of this application.  In view of the explanation, I also revoke the order as to costs which was made at the earlier proceedings.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            19 December 2002

The Applicant appeared in person.
Solicitor-Advocate for the Respondent:	S Goodman
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	18 October 2002
Date of Judgment:	18 October 2002