NAIO v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1383

FEDERAL COURT OF AUSTRALIA

NAIO v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1383

NAIO v MINISTER FOR IMMIGRATION & MULTICULTURAL &
INDIGENOUS AFFAIRS

N 1304 OF 2003

LINDGREN J
25 NOVEMBER 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1304 OF 2003

AN APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAIO APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	25 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

3.Orders 1 and 2 not be entered until 10 December 2003.

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 1304 OF 2003

AN APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	LINDGREN J
DATE:	25 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of Bangladesh.  He arrived in Australia on 27 November 2000.  On 28 December 2000 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 16 February 2001 a delegate of the respondent (respectively, ‘the Delegate’ and ‘the Minister’) refused to grant a protection visa. 

2. On 7 March 2001 the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the Delegate’s decision.  On 6 December 2002, the Tribunal decided to affirm the Delegate’s decision.

3. The appellant applied to the Federal Magistrates Court of Australia for relief in respect of the Tribunal’s decision, apparently under s 39B of the Judiciary Act 1903 (Cth). On 15 August 2003 that Court dismissed the application and ordered the appellant to pay the Minister’s costs, which were assessed at $4,250 ([2003] FMCA 360). It is from that judgement that the appellant now appeals to this Court.

4. The grounds of appeal relied on are set out in an amended notice of appeal filed on 24 September 2003 as follows (the appellant is unrepresented and I have not corrected the form of his statement of grounds):

   ‘1.A number of errors were occurred by the Tribunal, which was not considered by the Honourable judge.

   2.The Tribunal misunderstood the applicant’s claim and the decision by the Tribunal was not reflected the true picture of the claim.  Honourable judge did not consider this.

   3.The Tribunal did not provide the applicant’s an opportunity to comment on the information, which the Tribunal relied on its decision.  Where the applicant was deprived of receiving natural justice, Honourable judge also did not consider this.

   4.S474 of the Migration Act is ineffective as per the recent two decision of the High Court of Australia.  Honourable trial judge did not consider this in favour of the applicant.

   5.The applicant will face persecution if he returns to his country of origin as there is a significant level of violation human rights, this was not considered by honourable judge.’

5. On the hearing this morning, the appellant has handed up a document headed ‘Applicant’s Written Argument’ in support of his appeal.  The terms of this document are in many respects identical to the terms of the grounds on which, according to the reasons for judgement of the learned Federal Magistrate, the appellant relied on before his Honour.

6. Although invited to attend an oral hearing before the Tribunal, the appellant did not avail himself of that opportunity.  Indeed, the migration agent who was assisting him responded to the invitation by writing to the Tribunal on 5 December 2002 as follows:

   ‘I act for Mr [name].  The applicant has instructed me to inform the Tribunal that he will not appear at the hearing today.  He wishes to receive the decision on the basis of documents containing [sic – contained] in the file.’

7. The Tribunal Member reviewed the papers and noted that the appellant claimed to have been a member of the Jatiya Party in Bangladesh since 1986, when that Party’s leader, Ershad, was the President of the country.  The appellant asserted that his Party was forced from power in 1990 following a campaign by opposition parties, including the Awami League and the Bangladesh National Party (‘BNP’).  The BNP came to power following elections in February 1991.  The appellant said that in 1992 he was elected to the executive of a branch of his Party.  He claimed to have been arrested and detained a number of times while the BNP was in power.

8. The Awami League came to power following elections in June 1996 with the support of the Jatiya party, but that alliance was short lived.  The Awarmi League soon began to oppress its political opponents.  The appellant alleged that his house was looted on 20 July 1996, his brother was abused, and threats were made against him.  He alleged that local members of the Awarmi League had tried to kill him on several occasions.  He alleged that on 29 January 1997 he was severely beaten when returning home from a bazaar and that as a result he was hospitalised for two weeks.  He asserted that a number of protests were held following that event, but that the police failed to take action against the Awami League. 

9. Another claim was that ‘several false’ cases were commenced against the appellant.  He said he went to Dubai for a few months but since the situation in Bangladesh had not changed by the time of his return to that country, he decided to leave.  He alleged that since his arrival in Australia, his wife and children back in Bangladesh have been under pressure from the police and local Awami League thugs.  He alleged that they are in danger and that he would be killed if he were to return home. 

10. The presiding Member had several documents before him, to which she referred.  These included a submission in writing from the appellant's adviser; a statement by the appellant's mother; a statement from a neighbour of the appellant in Bangladesh; an undated letter from the Jatiya Party; another undated letter from that Party, a translation of an order sheet from the Court of Additional District Magistrate, Sylhet; a letter dated 28 November 2002 from a lawyer; and several newspaper articles.

11. On 31 October 2002 the Tribunal advised the appellant that it had examined all the information relating to his application but was not prepared to make a favourable decision on that information alone, and, accordingly, the Tribunal invited him to attend a hearing, informing him that if he did not do so, a decision could be made without further notice.  As already noted, through his adviser the appellant informed the Tribunal that he did not wish to attend a hearing.

1. In summary, the Tribunal's reason for not being satisfied that the appellant was a refugee was that his claims raised a number of questions which, in the absence of any oral evidence from the appellant, gave rise to doubt as to the credibility of the claims.  The following four paragraphs are all the paragraphs in the ‘Findings and Reasons’ section of the Tribunal’s reasons for decision:

   ‘The mere fact that an applicant claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed.  The applicant must satisfy the Tribunal that all of the statutory elements are made out.  A decision-maker is not required to make the applicant’s case for him, nor to accept uncritically any assertions he makes.  The relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish their veracity and significance.

   [The appellant] has provided some information regarding his alleged reasons for fearing persecution in Bangladesh, but many questions remain unanswered.  He claims that local Awami League members wish to seriously kill him because of his association with the Jatiya Party, but it is unclear why they would want to take such extreme measures against him.  While I am aware that violence between political parties is not uncommon in Bangladesh, it is not my understanding that members of the Jatiya Party are generally at risk of serious harm from members of the Awami League or any other political party.  Furthermore, the Awami league lost power last year and [the appellant] has not explained why he would be unable to obtain protection from the current government, if not in his local area then elsewhere in Bangladesh.

   [The appellant]  also claims that he faces false charges which were laid against him for political reasons, but has not explained exactly what these charges are and what steps he has taken to defend himself against them.  It is my understanding that while there are some problems in the lower courts in Bangladesh, the higher courts act in an independent manner, which suggests that [the appellant]  would get a fair hearing if he confronted his accusers in a court of law.  It is also my understanding that people facing such charges are frequently granted anticipatory bail and are not held in prison while their case is determined.  It is also unclear how [the appellant]  was able to obtain a passport in his own name and travel to and from Bangladesh, apparently without problems during a time that the police were actively seeking to arrest him.

   If [the appellant]  had attended the hearing it would have been possible to investigate these issues more fully.  However, on the evidence currently before me, I am not satisfied that he has a well-founded fear of persecution for reasons of political opinion or any other reason contained in the Convention.’

2. Before the Federal Magistrates Court of Australia, the appellant provided a written argument identifying 12 grounds of complaint about the Tribunal’s reasons for decision.  In substance, the complaints were generalised complaints about the decision on the merits, lack of good faith, ignoring of evidence and bias.  The Federal Magistrate dealt with all twelve grounds in a manner which I find unexceptionable.

3. A particular matter mentioned was that the appellant had not attended the Tribunal hearing because he was "badly sick".  However, as the Federal Magistrate observed, the letter from the appellant's migration agent did not mention sickness, and no medical certificate was provided either to the Tribunal or to the Federal Magistrates Court. 

4. The Federal Magistrate gave the appellant the opportunity to address him on any further matters which he might wish to raise to provide a ground of review under s 39B of the Judiciary Act 1903 (Cth), but the appellant remained silent.

5. This morning I have given the appellant the opportunity to elaborate orally on his written submission, but he said he did not wish to do so. 

6. The determination of the appellant’s claim on its merits was a matter for the Tribunal and is not a matter for the Federal Magistrates Court or for this Court.

7. The appellant has not demonstrated jurisdictional error by the Tribunal or any error in the reasons for judgement of the learned Federal Magistrate.  Accordingly, the appeal must be dismissed.

8. The Court file reveals that the appellant was to receive advice from a barrister appointed under the Court’s pilot Migration Advice Scheme.  This scheme does not involve representation on a hearing but advice as to prospects.  On being questioned by me, the appellant stated that he had not received legal advice.  With the consent of the Minister I will to order that the order of dismissal and the costs order not be entered for 14 days during which time the position can be clarified and that the appellant will be able to receive legal advice.

9. The Court orders that:

   1.The appeal be dismissed.

   2.        The appellant pay the respondent's costs of the appeal.

   3.        Orders 1 and 2 not be entered until 10 December 2003.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:  28 November 2003

The appellant appeared in person
with the assistance of an interpreter

Counsel for the respondent:	J Smith
Solicitor for the respondent:	Blake Dawson Waldron
Date of Hearing:	25 November 2003
Date of Judgment:	25 November 2003