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

[2002] FCA 1246

FEDERAL COURT OF AUSTRALIA

NAHV OF 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1246

APPLICANT NAHV OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 405 OF 2002

HILL J
8 OCTOBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 405 OF 2002

BETWEEN:	APPLICANT NAHV OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	8 OCTOBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

(i)        the application be dismissed.

(ii)       the applicant pay the respondent’s 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 405 OF 2002

BETWEEN:	APPLICANT NAHV OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	8 OCTOBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) under s 39B of the Judiciary Act 1903 (Cth) made relevant to matters of judicial review of Tribunal decision by virtue of the provisions of the Migration Act 1958 (Cth). The Tribunal's decision is a privative clause decision within the meaning of s 474(2) of that Act.

2. Subject to some questions both of interpretation and of constitutional validity the Tribunal's decision is final and binding.  Hence subject to the exceptions discussed in the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 the decision is not the subject of review by this Court. It is not suggested that any of those exceptions have application in the present case.

3. However, even if the court did have jurisdiction to review the decision it would be necessary that the applicant show grounds for the relief referred to in s 39B of the Judiciary Act.

4. The applicant is a citizen of Bangladesh who arrived in Australia on 22 May 2000.  Shortly after arrival he applied for a protection (class XA) visa.  That application was refused and the applicant sought review of that decision from the Tribunal.  In general terms it can be said that it is a condition of the grant of such a visa that the applicant be a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as modified by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967 (herein referred to as “the Convention”).

5. Article 1A(2) of the convention defines a refugee to be a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

6. It was the applicant's case that he was an Ahmadi Muslim and that he had a well-founded fear of persecution in Bangladesh for reasons related to that religion.  Indeed he claimed that he was a priest of that religion and that he had converted to it in 1986.  He claimed to have been attacked at a mosque where he had given a talk in December 1988, that he had been attacked at a bus station in 1992 and that he had been attacked by fanatics, injured and hospitalised in 1999 and in circumstances where the police had effectively sat by and allowed this to happen.

7. He further claimed that his house had been attacked in June 1999 and his wife threatened while he was not at that time at home.  If the applicant's claims had been accepted it would have been open to the Tribunal to find that he had a well-founded fear of persecution on religious grounds.  However, the applicant's claim was not accepted by the Tribunal which in essence said that apart from believing the applicant as to his name it did not believe at all the evidence the applicant gave.

8. Particularly the Tribunal did not believe that the applicant had converted to become an Ahmadi Muslim or that he was a priest of that religion.  The Tribunal's reasons indicate why it did not believe the applicant.  In part the Tribunal was influenced by the fact that the applicant appeared to have very little understanding at all of the religion he claimed to profess.  The Tribunal also took into account a letter it had received which indicated that the applicant had been lying and in particular that the applicant's evidence concerning a visit to Calcutta where he said that he had spent some weeks with his wife who was sick was in fact false.

9. The applicant's case was not assisted both by the fact that he appeared unable to indicate details of his wife's medical condition and that he was not recognised in Australia as an Ahmadi Muslim able to pray in a mosque here because he lacked the necessary certificate of association with that religion. 

10. Matters of credit are matters for the Tribunal and not for this Court.  A finding that an applicant is not telling the truth might be a finding which an applicant finds wrong but it involves at least in the present circumstances no legal error on the part of the Tribunal.

11. Because the applicant was not represented I have carefully read the Tribunal's reasons and there is nothing in them which discloses any error of a kind which would found relief under s 39B of the Judiciary Act.  In the circumstances I will dismiss the application and order the applicant to pay the respondent's costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:            20 November 2002

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	8 October 2002
Date of Judgment:	8 October 2002