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

[2002] FCA 1114

FEDERAL COURT OF AUSTRALIA

NAJQ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1114

NAJQ OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 483 of 2002

BRANSON J
3 SEPTEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 483 of 2002

BETWEEN:	NAJQ OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	3 SEPTEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the respondent.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 483 of 2002

BETWEEN:	NAJQ OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	3 SEPTEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks judicial review pursuant to s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) of a decision of the Refugee Review Tribunal handed down on 9 May 2002. The Tribunal affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa.

2. The applicant, who is a citizen of Bangladesh, claimed to have been active in politics in his home country.  At the time of his application for a protection visa the Awami League was in power in Bangladesh.  The applicant claimed that he had joined the Jatio Party, been active in its work and become joint secretary of a party branch.  He further claimed that at one time he was attacked by the Awami League and by Bangladesh Nationalist Party (“BNP”) workers in various ways but that subsequently he had become very close to the BNP leaders and donated a lot of money to that party.  He asserted, in effect, that his life was not safe in Bangladesh because of an Awami League conspiracy.

3. In the election held in October 2001 the BNP took power in Bangladesh.

4. Before the Tribunal, when the applicant’s earlier statement that he had developed a good relationship with the BNP was drawn to his attention, the applicant said that he had only given money to the BNP because of its policies of extortion and that he had no choice.  He also told the Tribunal that since the BNP had control of Bangladesh it was like the Taliban in Afghanistan. 

5. The Tribunal found that the applicant had not suffered any serious harm during the period of BNP rule from 1991 to 1996.  It concluded that he did not face a real chance of persecution at the hand of the BNP if he were to return to Bangladesh now or in the reasonably foreseeable future.  It also concluded that the applicant could defend himself in the courts of Bangladesh against any residual false charges laid against him by the Awami League.  The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”). 

6. The application to this Court purports to raise the following grounds of review:

   “1.The procedures that were required under the Migration Act 1958 to be observed in connection with the making of the decision were not observed;

   2.        The Tribunal ignored the material facts of the claim.

   3.The Tribunal did not take into consideration present Talaban influence on the BNP.

   4.The Tribunal has not considered the evidentiary proof of the applicant’s claim without proper reasoning.

   5.The Tribunal deprived the applicant of receiving natural justice.

   6.The Tribunal made a number of errors in deciding the merits of the case.”

7. The applicant has received legal advice with respect to his application to the Court under the pilot Migration Advice Scheme.  The applicant did not exercise the liberty given to him to file and serve an amended application.  Before this Court the applicant submitted only that he feared to return to Bangladesh. 

8. The decision of the Tribunal is a privative clause decision within the meaning of s 474(2) of the Migration Act 1958 (Cth) (“the Act”). As the recent decision of the Full Court of this Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 288 makes clear, a privative clause decision will be valid if the exercise of the decision maker’s power was not in breach of an inviolable limitation or restraint on that power and if the three conditions identified by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616 are satisfied. Those conditions are:

   (a)the decision maker is required to have made a “bona fide attempt to exercise its power”;

   (b)the decision “relates to the subject matter of the legislation”; and

   (c)the decision is reasonably capable of reference to the power given to the decision‑maker.

9. No question arises in this case of any allegedly inviolable limitation or restraint on the power of the Tribunal. 

10. No basis been identified upon which it could be said that the Tribunal did not make a bona fide attempt to exercise its power, that the decision of the Tribunal does not relate to the subject matter of the Act or that the decision of the Tribunal is not reasonably capable of reference to the power given by the Act to the Tribunal.

11. Section 474(1) of the Act requires, in these circumstances, that the application be dismissed. The application is dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             9 September 2002

Counsel for the Applicant:	the applicant appeared in person
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	3 September 2002
Date of Judgment:	3 September 2002