NAIB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1594

FEDERAL COURT OF AUSTRALIA

NAIB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1594

NAIB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N1034 OF 2003

HILL J

16 DECEMBER 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1034 OF 2003

BETWEEN:	NAIB APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	16 DECEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent Minister's costs of the appeal as agreed or, if not agreed, as taxed.

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	N1034 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAIB APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	16 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from the decision of a Federal Magistrate who rejected his application for judicial review of a decision of the Refugee Review Tribunal.  The Tribunal had affirmed the decision of the respondent Minister not to grant to the appellant a protection (class XA) visa.  Before the Tribunal the appellant made a number of claims which are summarised briefly in the Tribunal's reasons under the heading “Refugee Claims”.  I do not repeat them here.

2. The Tribunal was satisfied that the appellant was a citizen of Bangladesh and also that he may have been a member of the BNP as he claimed to be.  However, the Tribunal did not accept the appellant's substantial claims, particularly claims that he had been arrested in 1998, claims that he had been arrested in 1999, claims that he had been in hiding and generally that anything adverse had happened to him in the years 1998 and 1999.  The Tribunal rejected the appellant's claims because it found them and the evidence he gave to be implausible and contradictory.  Indeed the Tribunal said that it could not be satisfied that the appellant had been truthful either in the claims he made or the evidence he gave.

3. It was for these reasons that the Tribunal concluded that it was not satisfied that the appellant was a person to whom Australia had protection obligations under the provisions of the Convention relating to the Status of Refugees, done at Geneva on 28 July 1951, as affected by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967 that being a criterion of the grant to him of a protection visa.

4. The appellant then appealed to the Federal Magistrates Court.  It appears from the decision of the learned Federal Magistrate that the appellant filed with the Court an affidavit setting out at length the reasons why the appellant said he had a well founded fear of persecution.  However, as the proceedings before the Federal Magistrate were in the nature of an application for judicial review the affidavit had, as the learned Federal Magistrate observed, no relevance to the proceedings before him.  The learned Federal Magistrate concluded that there was no ground of review to be found in the Tribunal's reasons.

5. Before me the appellant was unrepresented although he had the benefit of an interpreter.  The appellant emphasised that the proceedings involved for him a question of life and death.  He said that the Tribunal had really not given proper attention to his case having regard to the serious consequences to him.  I pointed out to the appellant that the proceedings before me were an appeal from the decision of the Federal Magistrate and that it was necessary to show that the Federal Magistrate had erred in his decision.  The appellant was unable to indicate any error of law on the part of the Federal Magistrate.  This is not surprising given that the appellant is not a lawyer and I understand the difficulty that faces him.

6. It is for this reason that I have carefully read the decision of the Tribunal as well as the decision of the Federal Magistrate.  The Tribunal's decision was decided solely on the basis of the appellant's credit.  Put simply the Tribunal did not believe what he said.  There is no error to be ascertained in the Tribunal's reasons.  Likewise, there is no error to be found in the reasons of the learned Federal Magistrate.  Ultimately the appellant wished to engage in merits review and not judicial review. This Court, however, has no jurisdiction to undertake that nor did the learned Federal Magistrate have such a jurisdiction. 

7. In the circumstances the appeal must be dismissed. I order the appellant to pay the respondent Minister's costs of the appeal as agreed or, if not agreed as taxed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:            16 December 2003

Counsel for the Applicant:	The appellant appeared in person.
Counsel for the Respondent:	GR Kennett
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	16 December 2003
Date of Judgment:	16 December 2003