NAIH v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1234

FEDERAL COURT OF AUSTRALIA

NAIH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1234

Migration Act 1958 (Cth) s 36(2)

NAIH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 863 OF 2003

TAMBERLIN J
SYDNEY
22 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 863 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAIH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	22 OCTOBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The appellant pay the respondent’s costs of this appeal.

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 863 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	TAMBERLIN J
DATE:	22 OCTOBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Barnes FM of 3 July 2003 ([2003] FMCA 308) in relation to an application by the appellant, a citizen of Bangladesh, who arrived in Australia on 31 August 2000.

2. No written submissions have been filed by the appellant in support of the Notice of Appeal, despite orders to that effect.  When the matter came on for hearing today, the appellant indicated that he wished to have an adjournment of the proceedings to enable him to obtain further documents and to make submissions.  In my view, having regard to the history of the matter, the appellant has had ample time within which to prepare the case for hearing today.

3. The Notice of Appeal raises two grounds as a basis for the appeal from the decision of the Magistrate.  The first ground is that the Magistrate failed to consider that the Refugee Review Tribunal (“the RRT”) erred in not taking into account the threat to life or liberty, [or] significant harassment, that the appellant would experience on return to his country of residence.

4. The second ground raised in the Notice of Appeal is that the Magistrate should have found that the RRT erred in law and fell into jurisdictional error in determining that the appellant did not have any profile in Bangladesh, and is not a person to whom Australia has a protection obligation under the Refugee Convention, and does not satisfy the criterion set out in s 36(2) of the Migration Act 1958 (Cth) (“the Act”), for a protection visa.

   5           In relation to the first ground, and as submitted for the respondent, it is apparent from the decision of the Magistrate that the Magistrate took into account the submission that the RRT had erred in taking into consideration the threat to life or liberty, and the prospects of significant harassment, if the applicant were returned.

5. Paragraph 16 of Magistrate’s Reason for Judgment specifically records the submission that the RRT erred in not taking into consideration the threat upon return.  Accordingly, in my view, there is no substance in this ground of challenge.

6. The second ground of challenge relates to the finding regarding the appellant’s profile, and it is said, in relation to this, that the Magistrate erred in the finding which he made in respect of it.  Paragraph 13 of the Magistrate's reasons expressly refers to the submission, and records that the applicant claimed that the RRT made a jurisdictional error in finding that he did not have a high profile in Bangladesh.

7. The question of whether or not the appellant had a high profile in Bangladesh is a question of fact and does not raise any principle of law.  Therefore, any error in relation to the making of such a finding could not provide any proper basis for the appeal in the present case.

8. The learned Magistrate concluded that it was open to the RRT to reach its findings as to the appellant's credibility on the material before it.  This is a reference to the strong findings made by the RRT, which are adverse to the credibility of the appellant in the present case.  The conclusion of the RRT, expressed in the RRT’s reasons for decision, are that the appellant's explanations were weak and were not accepted.  The events outlined by the RRT, which were the subject of discussion in the RRT’s findings and reasons, were central elements to the appellant's claim, and the appellant did not appear to have a clear memory as to significant personal events.

9. The ultimate finding on credibility was that overall, the inconsistencies and disparities in the appellant’s evidence were such that the evidence could not be accepted.  The appellant was rejected as a credible witness in general terms, and specifically, his claims made in submissions or in oral evidence were not accepted.

10. There were two principal matters referred to in the RRT decision under the heading “Findings and Reasons”, and these were analysed in some detail.  Alternatively, and independently, the RRT found that even if the decision-maker was prepared to accept the appellant's claims, there was strong evidence that documentation from Bangladesh was often tainted by document fraud. 

11. In relation to this specific case, the decision-maker was satisfied that there was independent evidence that the Court documents provided by the appellant were probably fake, and that this was supported to some extent by the appellant's inconsistent evidence in relation to the documents, together with his agreement that documents are faked in Bangladesh, and that he himself caused his own passport document to be faked.  Having regard to these matters, the RRT found that the appellant did not have a well-founded fear of persecution.

12. Accordingly, having read and considered the submissions concerning the reasons for decision of the RRT, and also of the Magistrate, which is the subject of the present appeal, I am not persuaded that any error of law has been demonstrated, nor am I satisfied that any useful purpose could be served by seeking production of documents which were not before the Magistrate in the present case.

13. Accordingly, my conclusion is that this appeal should be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             12 November 2003

The Appellant appeared in person, with the assistance of an interpreter.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 October 2003
Date of Judgment:	22 October 2003