NAJB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1545

FEDERAL COURT OF AUSTRALIA

NAJB v Minister for Immigration and Multicultural And Indigenous Affairs [2003] FCA 1545

NAJB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 952/2003

TAMBERLIN J
12 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N952 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	NAJB APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	12 DECEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

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	N952 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

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

JUDGE:	TAMBERLIN J
DATE:	12 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Federal Magistrate Driver, delivered on 12 August 2003.  His Honour was considering an application to review a decision of the Refugee Review Tribunal, (“the RRT”), which was made on 9 December 2002, and delivered on 14 January 2003.

2. The appellant is a citizen of Bangladesh, who arrived in Australia on 25 March 2000.  On 1 February 2001, he lodged an application for a protection visa, which was refused by the Minister's delegate on 16 February 2001.  On 19 March 2001, the appellant applied to the RRT for review of that decision.  The RRT affirmed the delegate's decision not to grant the appellant a protection visa.

3. The appellant claims that he will be persecuted, on political grounds, if he is returned to Bangladesh.  He claims that he was a member of the Jatiya Party in Bangladesh and that he had been threatened with death and was falsely accused of a crime.  He appeared before the RRT on 3 December 2002 and gave evidence and made submissions in support of his application.

4. The RRT reasons for decision proceeded along the following lines: the RRT noted the appellant’s statement that he feared he would be killed or wrongly convicted of murder because he had been targeted by members of the Awami League, but did not accept this claim, because it did not find him to be a credible witness.

5. The RRT set out five grounds on the basis of which it considered that the appellant ought not to be believed in respect of his claims.  These were first, that the appellant’s claim that he had been falsely charged with murder was not mentioned in the written statement which he provided to the department.  Second, the finding that the appellant’s evidence at the hearing was vague and unconvincing.  An example of this was said to be that, despite the fact he is in contact with his family, and claims that a relative who is a lawyer provided him with advice, he knew nothing about the current status of the charges which were laid against him, or the fate of other people he claimed were charged with the same offences.  He was not able, in the view of the RRT, to adequately explain why his opponents, who had never harmed him in any way previously, would wish to kill him following May 1999, and would still wish to kill him now.

6. Third, the RRT noted that the conclusion that the appellant’s claimed political enemies wished to kill him, and would carry out the threat simply because he belonged to the Jatiya Party, did not sit well with information from sources other than the appellant (“country information”), which indicated that a member of the Jatiya Party was not generally at risk of serious harm.

7. The fourth reason that the RRT gave for doubting the credibility of the appellant was the fact that the current Government does not appear, from country information, to have a biased attitude, but rather has a neutral attitude, to the Jatiya Party.  Finally, the RRT considered that the appellant’s failure to apply for a protection visa until he had beeen in Australia for nine months was a strong indication that the appellant did not leave Bangladesh because he feared he would be killed or jailed if returned to that country.

8. It is evident from the RRT’s reasons for decision that the RRT considered these matters in a cumulative sense in reaching its conclusion as to credibility.   The RRT also took into account a finding that the arrest warrant that the appellant’s adviser provided was false, and specific reference was given to country information which indicates that arrest warrants are not generally available to the public and that false documents are readily available in Bangladesh.  In reaching this conclusion, the RRT placed particular emphasis on the findings as to the overall credibility.

9. In the Notice of Appeal as amended, a number of errors are alleged.  It is said that the RRT did not properly consider the appellant’s application because it misunderstood the appellant's claim, and that its reasons for decision did not reflect the true picture of the claim.  I was not taken to specific parts of the RRT’s reasons for decision, and on a fair reading of those reasons, it is not apparent that there is any misunderstanding of the appellant's claim.

10. It is also said that the RRT did not give the appellant an opportunity to comment on the country information that it relied on in its decision.  The appellant did not make any reference to any particular matters that would give rise to an obligation, on the part of the RRT, to give the appellant such an opportunity in the present case, and I am not satisfied that this has been made out.  It is claimed that the appellant was therefore deprived of natural justice.  There is nothing in the submissions, or the material pointed to, to indicate this. 

11. It is further said that section 474 of the Migration Act 1958 (Cth) is ineffective, due to recent decisions of the High Court, and that his Honour did not consider this. In my view, it is apparent from the Magistrate’s judgment that proper consideration was given to the applicable law. It is said that the appellant will face persecution if returned to his country of origin as there is a significant level of violation of human rights, and that his Honour did not consider this. However, the RRT in considering the matter, had regard in detail to country information, and the appellant has not specified, or referred to, any particular material which makes out this claim.

12. The finding of credibility is essentially one of fact, as is the finding in relation to the arrest warrant documents that has been referred to.  These documents were not ignored by the RRT because, in considering them, it took into account the circumstances in which the documents were provided and the contents of those documents, and made specific comments with reference to country information.

13. Accordingly, for the above reasons, I am not persuaded that the appellant has any entitlement to succeed on the appeal because no error of law has been pointed to.  He, in address, has simply asked me to reconsider the matter without raising or pointing to any material that would provide any proper basis for deciding that either the Magistrate’s judgment or the decision of the RRT were in error.  I am satisfied that this appeal should be dismissed and that the appellant should pay the costs of the respondent.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             23 January 2004

The Appellant appeared in person with the assistance of an interpreter.
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	12 December 2003
Date of Judgment:	12 December 2003