NAHT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

Case [2002] FCA 1049

FEDERAL COURT OF AUSTRALIA

NAHT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1049

MIGRATION – application for review of decision of Refugee Review Tribunal – whether s 474(1) operated to protect the decision.

Migration Act 1958 (Cth)
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 applied
NAAG of 2002 v MIMIA [2002] FCA 713 cited

NAHT OF 2002 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NO. N 401 OF 2002

BEAUMONT J
22 AUGUST 2002
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N401 OF 2002

BETWEEN:

NAHT OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

BEAUMONT

DATE OF ORDER:

22 AUGUST 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

  1. The application 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

N401 OF 2002

BETWEEN:

NAHT OF 2002
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

BEAUMONT

DATE:

22 AUGUST 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION

  1. This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 March 2002, whereby the Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The application therefore falls within the “privative clause” regime of s 474 of the Migration Act 1958 (Cth) (“the Act”).

  2. The application for an order of review, filed on 3 May 2002, sets out the “details of claim” as follows:

    “1.The procedures that were required under the Migration Act 1958 to be observed in connection with the making of the decision were not observed;

    2.The Tribunal ignored the merits of the claim.

    3.The Tribunal did not take into consideration real picture of the Bangladeshi politics.

    4.The Tribunal made errors to decide the fate of the applicant’s claim.

    5.The Tribunal misjudged the fate of the applicant’s claim.

    6.The Tribunal have not considered the evidentiary proof of the applicant’s claim.

    7.The Tribunal used authorities to decide the case are biased and influenced by the Bangladeshi government.”

  3. The applicant’s affidavit, sworn 3 May 2002, which accompanied the application, states:

    “1.The member of the Tribunal took a number of irrelevant matters into consideration.

    2.I was deprived of receiving natural justice.

    3.The Tribunal made errors in deciding the fate of my claim.

    4.The Tribunal’s assertion in regard to politics in Bangladesh is not accurate.

    5.I am not satisfied by the decision of the Tribunal.

    6.The Tribunal did not consider me as a refugee in accordance with the United Nations Convention 1951 as amended 1967 protocol related to the status of refugees.

    7.The authorities which were used to justify the decision are biased and…

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NAHT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1049
Case
[2002] FCA 1049
Decision Date

CaseChat Overview and Summary

In the case of NAHT of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, the applicant, a citizen of Bangladesh, contested the refusal of his application for a protection visa by the Tribunal. The applicant had arrived in Australia in 1999 and had applied for a protection visa shortly thereafter. His application was denied by a delegate of the Minister, prompting a subsequent review by the Tribunal, which upheld the delegate's decision. The applicant sought judicial review of the Tribunal's decision, arguing that it was flawed on several grounds, including the Tribunal's consideration of irrelevant matters, denial of natural justice, errors in decision-making, and inaccuracies regarding the political situation in Bangladesh.

The primary legal issues the court had to address were whether the Tribunal had correctly applied the law in reviewing the applicant's claim for a protection visa and whether the Tribunal's decision was based on proper consideration of the evidence and applicable law. Specifically, the court had to determine whether the Tribunal had erred in its assessment of the applicant's political involvement, the likelihood of persecution upon return to Bangladesh, and the credibility of the applicant's claims of past persecution and fabricated charges.

The court found that the Tribunal had appropriately exercised its discretion and correctly applied the law in reaching its decision. The Tribunal had adequately considered the applicant's claims and the relevant evidence, including the political context in Bangladesh and the applicant's past activities. The court upheld the Tribunal's finding that the applicant was not a committed party member and that the allegations of fabricated charges were not credible. The court also noted that the Tribunal's conclusions were supported by the available independent country information, which indicated that the political situation in Bangladesh did not necessarily pose a risk of persecution to the applicant. Therefore, the court dismissed the application for judicial review.

The final order of the court was that the application be dismissed, with costs. This outcome affirmed the Tribunal's decision and rejected the applicant's claims of error and unfairness in the review process.

Orders

Orders of the court

1. The application be dismissed, with costs.

Background

Background to the litigation

The applicant’s affidavit, sworn 3 May 2002, which accompanied the application, states:“1.The member of the Tribunal took a number of irrelevant matters into consideration.2.I was deprived of receiving natural justice.3.The Tribunal made errors in deciding the fate of my claim.4.The Tribunal’s assertion in regard to politics in Bangladesh is not accurate.5.I am not satisfied by the decision of the Tribunal.6.The Tribunal did not consider me as a refugee in accordance with the United Nations Convention 1951 as amended 1967 protocol related to the status of refugees.7.The authorities which were used to justify the decision are biased and influenced by Bangladeshi authorities.”BACKGROUND The applicant in this matter is a citizen of Bangladesh. He arrived in Australia on 18 August 1999 and applied for a protection visa on 23 September 1999. His application was refused by a delegate of the Minister on 26 October 1999 and the applicant lodged an application for review with the Tribunal 16 November 1999. The applicant holds a passport which was issued in 1991 and, since that time, he has visited Hong Kong for a week in October 1991, and India on three consecutive occasions in 1994 and 1996. The applicant was issued with a visitors’ visa for Australia on 10 August 1999. In a written statement, submitted by the applicant with his protection visa application, the applicant made the following claims. The applicant claimed that he was born in Bangladesh, in Chittagong, on 21 December 1969. He claimed that he completed 12 years of education in Dhaka and that his parents and three siblings still live in Balgladesh. The applicant claimed that his father was a Union Chairman during the British period and that he was involved in politics. He claimed that when he grew up and started college, he also became involved in politics. The applicant claimed that, after the war of independence in 1971, members of his family were frequently tortured at the hands of the Awami League and their agents. He claimed that the houses of his family members were burnt and looted by members of the local Awami League. The applicant claimed that in 1986 he was admitted to Jagonnath College. He claimed that in 1988 he joined Jatiya Party politics at the Sabuj Bagh Thana. He claimed that after the 1991 parliamentary elections, when the Bangladesh Nationalist Party (BNP) came to power, he led a number of demonstrations against the BNP regime, as leader of the Jatiya Party. The applicant claimed that in June 1996, while returning home, a group of Awami League hooligans attacked him. He claimed that they hit and injured him and stripped him at knife point. The applicant also claimed that in June 1997, at 11 pm one night while passing through the University grounds, a number of Awami thugs shouted out the applicant’s name and attacked and hit him from behind with hockey sticks and other weapons. He claimed that a finger on his left hand was broken in the incident. The applicant further claimed that the same thugs continued to threaten him over the telephone.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BEAUMONT J
At the hearing, the applicant produced a new passport which had been issued through the Bangladesh High Commission in Canberra, as a result of the applicant’s passport being stolen. The Tribunal member put to the applicant that this indicated that the applicant was not a person of adverse interest to the authorities. The applicant’s adviser replied that, from his experience, the reissue of a passport was a routine matter, and that a replacement passport would be issued, even if there were charges pending.THE TRIBUNAL’S DECISION The Tribunal characterised the applicant’s claim as, in essence, that he feared harm amounting to persecution in Bangladesh, because of antagonism towards him from Awami League and BNP members’ attitudes to his party, the Jatiya Party. In relation to the applicant’s political profile, the Tribunal found that it was not satisfied that he was the committed Party member that he claimed he was. In coming to this conclusion, the Tribunal member noted that, although he had only left Bangladesh in about August 1999, he was not aware of significant changes which had occurred in the Party since that time. The Tribunal member also noted that, if the applicant had chosen to, he had the means available to him to keep abreast of the political situation in relation to the Jatiya Party in Bangladesh through the Bangladeshi media in New South Wales. As a result, although the Tribunal accepted that the applicant was a member of the Jatiya Party, it did not accept that the applicant would have any significant commitment to the Party, or hold any position of significance, leading to persecution, were he to return to Bangladesh. The Tribunal accepted the independent country information which indicated that the BNP was neutral in its feelings towards the Jatiya Party. The Tribunal also found that, given that the applicant did not know which of the three factions of the Jatiya Party he would join were he to return to Bangladesh, there was no basis on which to speculate whether or not he would be at risk of harm from either the BNP or the Awami League for reasons of membership a political party that he may, or may not, elect to join. In relation to the applicant’s claim of false charges having been laid against him, the Tribunal found that these claims were fabricated, as it did not accept that the authorities would fail to act on a serious matter such as throwing explosives at a meeting of the Awami League, who were in power at the relevant time. In any event, the Tribunal found that the applicant had experienced no further consequences of such alleged charges in 1999 and that, were he to do so upon return, he could defend himself against such charges through normal court procedure, as the independent country information before the Tribunal indicated that Bangladesh has an independent judiciary and court system. Having considered the evidence as a whole, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution if he returned to Bangladesh.APPLICANT’S SUBMISSIONS ON HIS APPLICATION FOR JUDICIAL REVIEW

Ratio Decidendi

Legal Principle Established

Established by: BEAUMONT J

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