NAHV v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1353

FEDERAL COURT OF AUSTRALIA

NAHV v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1353

NAHV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1473 of 2003

MADGWICK J
12 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1473 of 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	NAHV APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	12 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellant pay the respondent’s costs which I assess in the sum of $2,750.

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	N1473 of 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

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

JUDGE:	MADGWICK J
DATE:	12 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. The appellant is a citizen of Bangladesh.  He came to Australia in September 2000 and the following month lodged an application for a protection visa with the respondent’s department.  In December 2000, a delegate of the respondent refused to grant the visa sought and the appellant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of that decision.  The Tribunal gave its decision on 17 December 2002, affirming the decision of the delegate. 

2. The appellant sought judicial review and his application was heard by Raphael FM in the Federal Magistrates Court.  From that decision the appellant has appealed and the Acting Chief Justice has determined that it is appropriate that the appeal should be dealt with by a single judge. 

3. The appellant’s claim was that he feared persecution for reasons of religion and political opinion.  He claims to have been a religious teacher and to have preached to young people in his local village.  Apparently he counselled them not to be involved in crime and also to avoid politics.  He alleges that this angered people in his village and claims that he was attacked and beaten by members of the Awami League, one of the major political groups in Bangladesh.  These events occurred as long ago as 1986.  The appellant says that he fled Bangladesh and travelled to Abu Dhabi in the United Arab Emirates where he lived until coming to Australia fourteen years later.  He had, however, returned to Bangladesh for visits, three times during that period.  He had claimed to fear further harm from members of his village if he returned to Bangladesh.

4. The Tribunal Member apparently accepted that he had some problems but thought that they were confined to his home area and that it was reasonable to expect him to relocate within Bangladesh as he had been able to work and support himself in a trade outside that country.  The Tribunal Member accepted that there was a degree of ‘concern about the general security situation in Bangladesh’, however he did not accept that the appellant would be at any risk of harm for Convention specified reasons outside his own area.

5. The appellant was unrepresented before the court below, as he is here.  He suggested that the Tribunal had acted in bad faith, that it had not followed proper procedures and was affected by an error of law and jurisdictional error.  However, the affidavit in support of his application was, as Raphael FM said, ‘really no more than the statement of facts which the [appellant] had already put both to the delegate and to the Tribunal’.

6. In submissions to the learned Federal Magistrate, the appellant apparently referred to a problem with his daughter who he claimed was sick and in need of regular blood transfusions. As Raphael FM noted, that was not a matter germane to his consideration of the matter. The learned Federal Magistrate was satisfied that the Tribunal had not fallen into any jurisdictional error and that there were no grounds for review of the decision under s 39B of the Judiciary Act 1903 (Cth). His Honour accordingly dismissed the application with costs.

7. Before me the Notice of Appeal asserts that the court below:

   ‘Failed to [establish] that RRT Member made error of law, jurisdictional, lack of evidence and denial of natural justice [issue?].’

8. The appellant did not avail himself of the opportunity to file any written submissions.  In his oral submissions he claimed that in the last few days people had been to his home harassing his wife and threatening him and he claimed that if he was forced to go back to Bangladesh he would be killed.  On being advised of the necessity to address himself to relevant issues for the appeal, the appellant indicated that he had nothing to say.

9. The appeal is from the Magistrates Court to this Court, not from the Tribunal and in my opinion, his Honour was clearly right for the reasons that he gave. 

10. The appeal will be dismissed.

11. The appellant is to pay the respondent’s costs which I assess in the sum of $2,750.

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

Associate:

Dated:             24 November 2003

The appellant appeared in person.
Counsel for the Respondent:	Mr Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	12 November 2003
Date of Judgment:	12 November 2003