NAJP v MIMIA

[2003] HCATrans 466

[2003] HCATrans 466

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S496 of 2002

B e t w e e n -

NAJP OF 2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 2003, AT 12.09 PM

Copyright in the High Court of Australia

NAJP OF 2002 appeared in person.

MR A. MARKUS:   If the Court pleases, I appear as solicitor for the respondent.  (instructed by Australian Government Solicitor)

MOHAMMED SHAH ISLAM, affirmed as interpreter:

McHUGH J:   I am afraid, because of the legislation, I can only call you by your initials or “applicant”.  So, Mr Applicant, will you proceed with your argument.

NAJP OF 2002 (through interpreter):   Your Honour, I am a political asylum seeker.  I have applied as an asylum seeker under the Human Convention and…..protocols.  I have lodged my application as a refugee under the Human Convention.  After refusing from DIMIA, I applied to the RRT to…..  The honourable RRT member did not consider my all claims and without considering everything, he gave me the…..decision.  I applied to the Federal Court and the Full Federal Court as per the rule.

My first claim is that by taking decision the RRT member did not follow the Migration Act 1958. I think the Federal Court has…..that same thing and that is why I believe that and I think that I should grant the leave to appeal and take an independent hearing. As I am passing financial hardship, that is why I could not…..a barrister. I believe that if I have financial ability, then I could recruit an experienced barrister and I could win the case. If I was granted the appeal and that then I obtain some money from my friends, from my sister from overseas, and with that money I try to lodge that case in this Court, then I will be able to…..the case for the Full Bench.

The main consideration about my appeal is:  one, it is a denial of natural justice; two, procedural fairness; three, during my hearing in the RRT, the RRT member did not bring my full file.  I believe that my case is very similar to the Muin Case.  I tried my best in the RRT to tell all of my claims.  I had three or four witness to come to the hearing to give oral evidence.  During the hearing one of the witness was present, the other was absent for personal problems.  I requested the honourable member to take evidence from the other witnesses but, because the member did not give…..to bring other witnesses, I think that the hearing is incomplete.  That is the reason that the application has been refused from the RRT.  I believe that if the RRT member would take evidence from the other witnesses, then the decision would be in favour of me.

In this regard I want to refer to Plaintiff S157/2002 as an example that there has been a denial of natural justice.  For the natural justice of my case I would request your Honour to –for the sake of my case, I would request your Honour to hear my audiotape.  I believe that your Honour would reach conclusion after hearing the tape.  Again, my application should be reviewed by other member and in that case I think I will get the natural justice.

Former Prime Minister of Bangladesh and protected by Australian law and an asylum seeker who got protection in Australia, Mr….., is a leader of my party, named Jatiya Party.  After he got protection in Australia, when he went back to Bangladesh he was arrested in the airport.  About this incident, when I told the RRT member, the RRT member assured me that he will take into consideration about this fact but in the tape this part is no more, this tape of this part.  I think if my application is reviewed by another member, I will get the natural justice.

I am not a lawyer.  That is why I cannot tell any paragraph or any reference on the law.  I need an experienced barrister to clarify all the matters about law.  I am earnestly requesting this honourable Court to grant my leave to appeal.  I want to recruit a barrister after I arrange the money for him.  And last, I am requesting earnestly to your Honour that after considering all of my claims, please give an order so that I can get the natural justice.

At present in Bangladesh there is evidence…..about political persecution and…..rights.  I am requesting your Honour to consider the materials which is in the…..Bangladesh to consider those and give me…..after considering those.  I am nearly…..and it is impossible for me to go back in Bangladesh at this…..

A friend of mine who is a student of the law has helped me to write a submission, which I have submitted yesterday.  The heading is “Applicant’s Amended Submissions”.  Can I submit this paper which is from the audiotape from the RRT where I found some error.  This one I have translated and can I submit it?

McHUGH J:   Hand it up.

NAJP OF 2002 (through interpreter):   If you need this one, I do not have any copy of this tape.  I have the only copy of that one.  I may get another one if you need that one.

McHUGH J:   Yes, I will have a look at it.  Yes, carry on.

NAJP OF 2002 (through interpreter):   Another thing, that I visited a barrister where I spent about $1,100.  He asked me for much more money to come to the Court.  That money, $1,100, actually I borrowed from some of my relatives and friends as he asked more and I do not have that much money to afford him to come to the Court.  That is why I did not bring a barrister, I come myself.  Your Honour, so far I do not have anything to say.

McHUGH J:   Thank you.  The Court need not hear you, Mr Markus.

MR MARKUS:   Thank you, your Honour.

McHUGH J:   This is an application for special leave to appeal.  The draft notice of appeal at page 45 of the book says it is an application for “special leave to appeal from the whole of the judgment of Federal Court Justice Driver FM given on” 29 September 2002.  However, the order under review is not the order of Federal Magistrate Driver, but of Justice Sackville of the Federal Court.

The applicant claimed that he was a refugee for the purpose of the Convention, claiming that he could not be returned to Bangladesh because he feared persecution and that his claim was well founded.  A delegate of the Minister rejected his claim.  The decision was reviewed by the Refugee Review Tribunal.  The principal finding of the Tribunal was:

I did not find [the applicant] to be a credible witness.  He claims that he fled Bangladesh because he feared persecution because of his political opinion.  However, he failed to apply for a protection visa until 3 years after arriving in Australia and then withdraw his application before it was finalised.  I consider these actions a very strong indication that he did not have a genuine fear of persecution in Bangladesh at that time.

The Tribunal went on to say that, after considering all the relevant evidence, it was not satisfied that the applicant was an active member of the Jatiya Party in Bangladesh, as he claimed, nor that he had fled Bangladesh because he feared persecution as a result of his membership of the party.

The applicant then took proceedings for review of the Tribunal’s decision before the Federal Magistrates Court and the matter was heard by Federal Magistrate Driver who found that the Tribunal had not made any significant legal error in affirming the delegate’s refusal to grant the protection visa.  The applicant then applied to the Federal Court by way of appeal and the matter came before Justice Sackville.  His Honour said – and it is set out at page 40 of the book:

In essence, the appellant failed before the RRT because the substance of his factual account was not accepted. Driver FM held that there was no ground for impugning the RRT’s decision, even independently of the protective operation of s 474(1) of the Migration Act.  Nothing has been put on the appeal, nor does anything appear from the judgment, to suggest that the learned Magistrate erred.

The sole ground of appeal sought to be raised in the present application is set out at page 45 of the book, namely that:

The Refugee Review Tribunal did not follow the proper procedure as required by the Migration Act 1958 in arriving its decision dated 08/04/2002 in deciding my protection visa review application. Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed.

It is apparent from what is put in support of the application that the applicant seeks to raise the sort of grounds that were involved in the decision of this Court in Muin v Refugee Review Tribunal & Ors (2002) 76 ALJR 966. However, the questions that were raised in Muin have no possible application to a case such as the present because the Tribunal’s reason for refusing his application for review was that his claims had no substance because of his lack of credibility.  Unlike Muin, the case did not turn on the question of country information material.

Today the applicant has sought to expand to some extent on those grounds by referring to matters such as rules of natural justice and procedural fairness.  He has also handed up a document claiming that there were errors of transcription by the Tribunal.  None of these matters were raised before Justice Sackville in the Federal Court, nor do they seem to have any ground warranting the grant of leave; nor does the case, given the findings of the Tribunal, have any prospects of success.  Accordingly, special leave to appeal is refused with costs.

AT 12.34 PM THE MATTER WAS CONCLUDED