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

[2002] FCAFC 408

FEDERAL COURT OF AUSTRALIA

NAIQ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 408

MIGRATION – citizen of Bangladesh – appeal from decision of primary judge dismissing an application for an order of review pursuant to s 39B Judiciary Act 1903 (Cth) – findings by Refugee Review Tribunal as to credibility of appellant sought to be impeached – whether appellant deprived of opportunity to present his case fully to Tribunal – applicability of Muin v Refugee Review Tribunal  (2002) 76 ALJR 966

Judiciary Act 1903 (Cth), s 39B

Muin v Refugee Review Tribunal (2002) 76 ALJR 966, distinguished

APPLICANT NAIQ OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No N 991 of 2002

SPENDER, RYAN, WHITLAM JJ
SYDNEY
4 DECEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 991  OF 2002

BETWEEN:	APPLICANT NAIQ OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	SPENDER, RYAN, WHITLAM JJ
DATE OF ORDER:	4 DECEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs of the appeal, to be taxed if not agreed.

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 991  OF 2002

BETWEEN:	APPLICANT NAIQ OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	SPENDER, RYAN, WHITLAM JJ
DATE:	4 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by Branson J ([2002] FCA 1075) on 23 August 2002, the reasons for which were pronounced on 3 September 2002. Her Honour dismissed an application for an order of review pursuant to s 39B of the Judiciary Act 1903 (Cth) (“the Act”) relating to a decision of the Refugee Review Tribunal (“the Tribunal”).

2. On 24 April 2002 the Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the appellant a protection visa.  The appellant is a citizen of Bangladesh who arrived in Australia on 1 July 1999 on a student visa.  It is common ground that on 27 March 2001 his student visa was cancelled.  The appellant quite determinedly asserted before us that the Tribunal was in error when it said that his student visa had been cancelled because he had breached the work limits attached to that visa.  He says that his student visa was cancelled because he did not comply with the course requirements on which it was based and the Tribunal was in error in finding that the cancellation was due to a breach of the work limits.

3. The Tribunal had before it a letter from the solicitor who then was acting for the present appellant in which the solicitor said that the cancellation was on the basis that he had apparently breached the work limitation condition attaching to his visa.  This statement, the appellant says, is wrong, but it may be that it was that letter on which the Tribunal relied in its conclusion about the cancellation of the student visa.

4. The appellant was placed in immigration detention on the cancellation of his student visa, and he apparently remained in detention for more than a month.  On 5 April 2001 he applied for a protection visa on the ground that he feared persecution in Bangladesh by reason of his homosexuality.  On 23 April 2001 the delegate of the Minister refused to grant a protection visa, and on 26 April 2001 the appellant applied for review of that decision to the Tribunal.

5. Before us, the appellant repeated many of the criticisms which had been made by him before Branson J.  Essentially, his submissions to us focused on what he said were errors of fact which the Tribunal made, and a criticism of the reasoning that the Tribunal adopted.  Amongst other submissions the appellant said:

   “I can’t understand why the Tribunal did not believe me.”

6. As that complaint makes clear, the Tribunal made a finding of credibility against the appellant.  Its critical finding was that he had no fear of persecution in Bangladesh.  This finding was made on the basis that he had returned to Bangladesh in 2001, as well as on the fact that he had been in Australia for some time before lodging an application for a protection visa, which he did only when his student visa was cancelled and he was placed in immigration detention.  The Tribunal found that, although it doubted that the appellant was in fact a homosexual, even if he were, he would not face persecution in Bangladesh. 

7. The submissions made to us really focused on criticisms of the decision by the Tribunal, not the primary judge.  Before the primary judge the Tribunal’s decision was attacked on three grounds: first, its finding that the appellant’s visa was cancelled on the grounds that he had breached his work limits; secondly, that he had been deprived of the chance to present his case fully to the Tribunal; and thirdly, that the circumstances of his case were the same as considered by the High Court in Muin v Refugee Review Tribunal (2002) 76 ALJR 966.

8. Her Honour dealt with each of those grounds and found, in relation to the first ground, that, even if the accuracy of the Tribunal’s recitation of the background to the application were open to question, it would not constitute a ground for relief under s 39B of the Act. We ought to make it plain to the appellant that, on the assumption that what he told us as to the reason for the cancellation of his student visa is correct, that error that the Tribunal had made concerning the reason for the cancellation does not constitute a ground for relief and does not assist him in his present appeal. The question of the reason for the cancellation of the appellant’s visa was not decisive in any way of the decision of the Tribunal; there was some evidence to support it and the finding was not, therefore, indicative of any bias or other lack of good faith. A finding of fact, even if it be erroneous, does not provide a ground upon which the decision of the Tribunal may be overturned.

9. Although the appellant is critical of his earlier legal representation, there was no basis, on the material before the primary judge, to support the submission that he had been deprived of the chance to present his case fully to the Tribunal.  While, amongst other things, the appellant says that he was unable to bring his partner as a witness to the Tribunal, there is nothing in the material before the primary judge to suggest that he had not been able to put his case fully to the Tribunal.  He had legal representation at the Tribunal hearing, he provided detailed submissions to the Tribunal both before and after the Tribunal hearing, and in the solicitor’s final submissions there was no complaint that the appellant had not been able to present his case fully to the Tribunal.  There is nothing to suggest that the appellant was not aware of the issues that were decisive of the application for review or that he was not given the opportunity to address those issues in writing and orally. 

10. On the third ground her Honour found that the appellant was given the opportunity which the High Court held had been denied the appellant in Muin’s case, and the opportunity was taken by the furnishing of written submissions by the solicitors then acting for the appellant. There was no suggestion that the appellant was misled in any other way such as to give rise to a ground for review for relief under s 39B of the Act.

11. The appellant’s submissions to the Court focused on matters which are not helpful in demonstrating error in the primary judge’s reasons.  The notice of appeal says that the appellant had established his argument before what we take to be the primary judge.  It said that he would submit other grounds as soon as possible but those other grounds have not been supplied, and the submissions made orally to the Court focus on criticisms of factual findings by the Tribunal and dissatisfaction with its findings on credibility.

12. No proper ground of appeal has been identified in the notice of appeal, or otherwise.  Nonetheless, we have considered the reasons for judgment of the primary judge and there is no appealable error shown in those reasons.  Consequently, the appeal must be dismissed.  The appellant should pay the costs of the respondent, to be taxed if not agreed. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Ryan and Whitlam.

Associate:

Dated:             11 December 2002

The appellant appeared on his own behalf
Counsel for the Respondent:	Mr J. Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	4 December 2002
Date of Judgment:	4 December 2002