NAHR v Minister for Immigration and Multicultural and Indigenous Affairs

Case [2003] FCA 1295

FEDERAL COURT OF AUSTRALIA

NAHR v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1295

NAHR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N934 OF 2003

BENNETT J
17 NOVEMBER 2003
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N934 OF 2003

BETWEEN:

NAHR
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

BENNETT J

DATE OF ORDER:

17 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

N934 OF 2003

BETWEEN:

NAHR
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

BENNETT J

DATE:

17 NOVEMBER 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

BACKGROUND

  1. The appellant is a citizen of Bangladesh.  He arrived in Australia on 5 October 2000.  He arrived under his own passport (issued in Dubai on 13 May 1999).  His Australian visitor’s visa was issued in Dubai on 19 September 2000. 

  2. On 15 November 2000 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’) pursuant to the Migration Act1958 (Cth) (‘the Act’). A delegate of the respondent refused to grant him a protection visa on 3 January 2001. The appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of that decision on 1 February 2001.

  3. On 17 October 2002, the Tribunal invited the appellant to attend a hearing on 18 November 2002.  On 11 November 2002, the appellant responded affirmatively to that invitation.  At 9.30 am on 18 November 2002, the appellant’s adviser rang the Tribunal to inform it that the appellant was sick and would not attend the hearing.  The following day, a medical certificate (with accompanying prescription) dated 19 November 2002 was faxed to the Tribunal.  The medical certificate stated that the appellant would be unwell for 3 days – between 17 and 19 November 2002.  The hearing was rescheduled for 20 November 2002 and the appellant’s adviser was notified by telephone and fax.  The Tribunal was advised that the appellant would attend.  The appellant failed to attend on 20 November 2002 and the hearing was again rescheduled for 25 November 2002.  The appellant’s adviser was notified by fax of the new hearing date and a copy of the hearing notification letter was also sent to the appellant by express post.  The appellant did not attend the hearing.  No reason was given to the Tribunal for the failure to attend.

  4. On 27 November 2002 the Tribunal affirmed the decision not to grant the appellant a protection visa.  The Tribunal’s decision was formally handed down on 19 December 2002. The appellant applied to the Federal Magistrates Court for a review of the Tribunal’s decision on 7 January 2003.

  5. When the matter came before Raphael FM on 24 July 2003, the appellant…

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NAHR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1295
Case
[2003] FCA 1295
Decision Date

CaseChat Overview and Summary

The case between NAHR and the Minister for Immigration and Multicultural and Indigenous Affairs was heard in the Federal Court of Australia. NAHR, a Bangladeshi citizen, appealed against the Tribunal's decision which rejected his claims for refugee status, finding that he had not provided sufficient evidence to substantiate his claims of persecution by the Awami League activists or the BNP government in Bangladesh. The Tribunal also noted that the appellant had not attended the hearing, despite being given multiple opportunities, which further weakened his case. The Federal Magistrate upheld the Tribunal's decision, and NAHR appealed this dismissal.

The legal issues in this case centred on whether the Tribunal had made a jurisdictional error in its decision-making process, and whether the appellant had particularised any specific errors in the Federal Magistrate's judgment or the Tribunal's reasons. The appellant's counsel argued that the Tribunal had failed to exercise its jurisdiction properly, denied natural justice, and misapplied the law by not addressing the correct legal question. However, the respondent's counsel submitted that the appellant had not provided any particulars or evidence to support these claims and had not identified any specific legal errors.

The court examined the appellant's arguments and found them to be unsubstantiated. The Tribunal had rescheduled the hearing twice due to the appellant's illness, thus it was justified in proceeding without him. The court also noted that the appellant had not provided sufficient evidence to support his claims, and the Tribunal's findings were based on the available evidence. The court concluded that the appellant had not demonstrated any specific errors in the Tribunal's decision or the Federal Magistrate's judgment. Therefore, the appeal was dismissed, and the decision of the Federal Magistrate was upheld.

ORDERS:
1. The appeal is dismissed with costs.

Orders

Orders of the court

1. The appeal is dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BENNETT J
The Tribunal was satisfied that the appellant was a Bangladeshi citizen but was not otherwise satisfied that his claims were true. It noted that he now claims to fear persecution from Awami League activists or the BNP government. It also noted that the claims were not supported by evidence, evidence that the appellant would have been able to give yet had not, as he had not attended the hearing. It also noted that the claims were not inherently likely as, for instance, he claimed to have been arrested and tortured before being released on bail and he had been able to avoid re-arrest for many years before leaving Bangladesh on his own passport. It further found that, even if the claims were accepted, the appellant had been able to avoid further harm for many years prior to leaving for the UAE. The Tribunal was not satisfied that there was any real chance that the appellant would be persecuted if he were to return to Bangladesh or that any fear of persecution that he may have is well founded. THE DECISION OF THE FEDERAL MAGISTRATE The appellant failed to particularise any of his grounds of review in the hearing before the Federal Magistrate. Raphael FM noted that there was no indication before his Honour as to why the Tribunal was said to have made a jurisdictional error in the manner in which it came to its decision. His Honour referred to the findings and reasons of the Tribunal and found that the Tribunal reached a conclusion of fact which it was entitled to reach on the material before it and consequently dismissed the application. THE APPEALSummary of the respondent’s argument Ms McNaughton, counsel for the respondent, submitted that the appellant has failed to indicate any specific error in the judgment of Raphael FM or the reasons of the Tribunal but relies instead on general claims of error of law involving a constructive failure of jurisdiction, failure to address the correct legal question, failure to exercise jurisdiction and denial of natural justice. The respondent submits that no particulars have been given and no evidence has been cited to support these claims. There has been no identification of the correct legal question or of any failure, constructive or otherwise. Counsel submitted that a claim of jurisdictional error cannot be sustained on any of the bases set out by the appellant: (i)The appellant has failed to particularise what he alleges is the denial of procedural fairness. If this ground is taken to be a reference to the Tribunal proceeding to hear the matter in the absence of the appellant, this ground has not been made out. The Tribunal rescheduled the hearing twice following the initial illness of the appellant. In the circumstances, the Tribunal was entitled to hear the matter in the absence of the appellant pursuant to s 426A of the Act: NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 558 per Hely J at [2].(ii)the appellant has failed to particularise what he alleges is the constructive failure of jurisdiction or failure to exercise jurisdiction.(iii)The appellant alleges that the Tribunal failed to address the correct legal question by not applying itself to all of the issues. Again, there was no elaboration of this allegation. The Tribunal’s findings of fact were based upon such evident as was before it.(iv)In his allegation of a denial of natural justice, the appellant makes reference to a decision of ‘the Immigration and Multicultural Affairs agent’ of ‘10 August 2000’. Given that the appellant first arrived in Australia in October 2000, it is clear that this date is incorrect and it is not immediately apparent what is being referred to. The appellant’s written submissions

Ratio Decidendi

Legal Principle Established

Established by: BENNETT J

Full text does not contain this section.