NAGM v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 990

FEDERAL COURT OF AUSTRALIA

NAGM v Minister For Immigration & Multicultural & Indigenous Affairs
[2003] FCA 990

MIGRATION – no point of principle.

Migration Act 1958 (Cth)

NAGM V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NO. N 778 OF 2003

BEAUMONT J
18 SEPTEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 778 OF 2003

BETWEEN:	NAGM APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	18 SEPTEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        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	N 778 OF 2003

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

JUDGE:	BEAUMONT J
DATE:	18 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

1. This is an appeal from a judgement of Barnes FM given on 12 June 2003 dismissing the appellant’s application for review of a decision made by the Refugee Review Tribunal (“the RRT”) handed down on 11 December 2002.  The RRT had affirmed a decision of a delegate of the Minister on 16 February 2001 refusing the appellant’s protection visa application.

2. The appellant (who has appeared before the Court without representation but has, it appears, had the benefit of some professional assistance) is a 31 year old national of Bangladesh.  He legally entered Australia on 19 August 2000.  On 28 September 2000 he lodged an application for a protection visa.

3. The appellant claimed a well founded fear of persecution in Bangladesh on the basis of his atheism making him “subject to oppression by the mainstream Muslim community in Bangladesh”;  that is, in terms of the 1951 Refugee Convention, a claim, either on the grounds of religion or, as was put to the RRT, on the grounds of belonging to a “particular social group”.  The appellant claimed that during childhood his “mental fabric and observation led [him] to the path of atheism although [he] was not a non-believer”;  that at high school he joined a group of “progressive” thinkers and edited a controversial magazine which become banned at the instigation of “fundamentalists” who “targeted” him;  that, upon leaving high school and whilst he was at college, his parents made him leave home when they found out he did not follow Islamic rules in his personal life;  that this forced him to leave college and obtain employment, where he became an activist and formed an association which “blended with the concepts of atheism and the freedom of men and women”;  and this caused the “fundamentalists” to lodge several false cases against him, stage protest processions and to beat him up “mercilessly several times”, which forced him into hiding; and that the government and law enforcement agencies failed to assist him.

4. The appellant applied to the RRT for a review of the delegate’s decision in March 2001.  In October 2002 the RRT wrote to the appellant and informed him that it was not able to make a favourable decision on the material before it and invited him to attend a hearing on 14 November 2002.  However, the appellant did not respond to the invitation.  On 31 October 2002 the RRT contacted the appellant’s migration agent who indicated that he did not believe that the appellant would attend the hearing.  On the day of the hearing, the appellant’s migration agent contacted the RRT and confirmed that the appellant could not attend the hearing, but did not seek an adjournment, and gave no reasons why the appellant would not attend.  However, the agent faxed a three page written submission to the RRT just before the hearing was scheduled to commence.  In the submission the agent made a number of general assertions, for instance –

   ‘5.After the changeover of political power in October 2001 empowered the BNP led coalition along with a number of orthodox Muslim parties including the Jamat-e-Islami.  These fundamental political parties are determine[d] to implement draconian Sharia law like Afghanistan Taliban government in Bangladesh.  The fear of religious persecution of the applicant has increased significantly.  One of the Jamat-e leaders, who was also a war criminal named Maulana Delowar Hossain Saidi declared that Fatua would regulate the law.  In these circumstances if [the appellant] returns to Bangladesh he will face severe punishment due to strong adherence with atheism.

   6.The current situation in Bangladesh is deferent [sic] than the previous regime of the BNP.  After formation of the current government in collaboration with Jamat-e Islami, all minorities in Bangladesh became a main target of oppression irrespective of their political and religious values.  As a member of this group the applicant will face persecution upon returning to Bangladesh.  In fact the present situation in Bangladesh has turned into a situation of “a safe haven for Islamic jihadis-including Taliban and al Qaeda fighters fresh off the boat from Afghanistan” (Asia Time, 21 October 2002).

   7.The applicant was an atheist.  There are sixty-four districts in Bangladesh.  Most of the districts are affected by the Talebani oppression. ... ’

5. The RRT found that it could not be satisfied as to the appellant’s claims due to the lack of detail contained in the appellant’s visa application and inconsistencies in his claims.  The RRT found that, although the appellant claimed his family had rejected him, his application for a visa indicated that he was still in contact with family members by letter and telephone;  that, whilst the appellant claimed that he had been forced into hiding, his application disclosed that he lived at the same address and worked in the same position from 1990 to March 2000;  and that there was no explanation of his movements between March 2000 and August 2000 when he arrived in Australia;  nor why his passport and Australian visa had been issued in the United States.

6. In his written submissions to Barnes FM dated 2 June 2003 the appellant had claimed that the use of an interpreter in the RRT had involved a misinterpretation “of sufficient magnitude as to prevent the Applicant giving evidence or understanding what was said to her or in making herself understood”;  that the RRT had rejected his claims “because her oral evidence and written evidence was inconsistent in relation to major issues”;  and that the RRT had failed to “treat this matter as a s.424A issue as the Applicant brought the statutory declaration he submitted in connection with the current visa application to the hearing and showed it to the Tribunal to ensure it was before the Tribunal”. 

7. However, Barnes FM found that the Appellant did not attend the hearing, was not, of course, female and did not submit any statutory declaration. 

8. Barnes FM also rejected the further grounds advanced by the appellant, specifically,  that the RRT’s decision was affected by actual bias;  that the RRT had failed to take into account a relevant consideration or took into account an irrelevant consideration, no particulars of this claim being given;  or that his case was analogous to that in Muin v Refugee Review Tribunal (2002) 76 ALJR 966, as there was nothing in the material to suggest that the RRT failed to accord the appellant procedural fairness “either in the Muin sense or in any other way”.

9. Barnes FM considered that the RRT’s lack of satisfaction about the appellant’s claims was open on the material before it and accordingly its decision was a legally proper rejection of the appellant’s claims.

10. The appellant filed a Notice of Appeal to this Court on 1 July 2003 and has provided a written submission dated 10 September 2003.  Relevantly, the appellant’s grounds of appeal may be summarised as follows:

    (1)The RRT failed to accord the appellant procedural fairness, having particular regard to the principles in Muin.

    In my opinion, Barnes FM correctly rejected the appellant’s assertion that he was denied natural justice;  or that Muin had any application here.

    (2)The RRT had acted in bath faith.

    Again, Barnes FM correctly rejected this claim as having no substance.

    (3)(A contention not argued before Barnes FM.) The RRT failed to act in accordance s 420 of the Migration Act 1958 (“the Act”) as it “failed to consider the merits of the case”.

    Once more, Barnes FM would have had no alternative but to have rejected this unfounded assertion.  The appellant has not provided any particulars nor addressed the reasons for decision of Barnes FM. 

11. In his written submission, and at today’s hearing, the appellant essentially argued his grounds of appeal.

12. Since, in my view, Barnes FM correctly found no error of any kind, the possible operation of s 474 of the Act need not be considered.

13. Accordingly, the appeal will be dismissed, with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated:             24 September 2003

Solicitor for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Ms R Francois
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	18 December 2003
Date of Judgment:	18 December 2003