NAKB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1015

FEDERAL COURT OF AUSTRALIA

NAKB v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1015

NAKB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1125 of 2003

MADGWICK J
18 SEPTEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1125 OF 2003

ON APPEAL FROM A DECISION OF THE
FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAKB APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	18 SEPTEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed. 

2.        The appellant is to pay the respondent’s 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	N1125 OF 2003

ON APPEAL FROM A DECISION OF THE
FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	MADGWICK J
DATE:	18 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1. This is an appeal from a decision of Baumann FM given on 1 August 2003.  The learned Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) adverse to the appellant.

2. The appellant’s Notice of Appeal listed two grounds of appeal:

   ‘1.The decision by the Tribunal a decision which occurred jurisdictional error;

   2.The Tribunal failed to consider its mandatory obligation in accordance with the section 424A of the Migration Act 1958 (Cth).’

3. The first of these grounds, leaving aside its technical incomprehensibility, is so unspecific as to amount to nothing.  The second is suggestive of some failure by the Tribunal to give the appellant particulars of information about the appellant or some other particular person which might be a reason or part of a reason for affirming the decision of the delegate of the respondent Minister that was under review by the Tribunal.  However, the appellant offered no explanation of that either orally or in his written argument (which he alleges was prepared by his brother in Dhaka).

4. The appellant comes from Dhaka in Bangladesh.  He claimed to fear persecution for reasons of political opinion.  He claimed that he was a student activist in the Bangladesh Nationalist Party and that he feared persecution by way of frank violence and the laying of false criminal charges against him by members or agents of the rival political party, the Awami League.

5. The Tribunal Member, for reasons transparently and, I may say, elegantly expressed, comprehensively disbelieved that the appellant was at any risk either of violence or of the laying of false charges in Bangladesh and, further, found that there was no reason why the appellant, coming from a wealthy family, could not relocate within his country of origin if indeed he might be in any danger in Dhaka.

6. The decision of the learned Federal Magistrate was given in relation to an amended application that claimed that the Tribunal’s decision “was infected by jurisdictional error”, and as Baumann FM put it, relied upon particulars that the Tribunal had not complied with s 424A of the Act.  The information not provided was said to include certain “country information” or “independent information” of a general nature and not specifically about the appellant.

7. Someone, presumably other than the appellant’s brother, had drawn the appellant’s attention to the decision of Gray J in VEAJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 678. In that case, his Honour said that, if it had been “intended to exclude all general country information from the scheme of s 424A, the legislature would only have been required to say so expressly, or to omit any reference at all”, and took the view that general country information central to the Tribunal’s decision making process should be given to an appellant, together with an explanation as to why that information was thought relevant to the review of the delegate’s decision with an invitation to comment on it.  Counsel for the respondent Minister persuaded the learned Federal Magistrate that that view was at best a mere dictum and not part of the ratio decidendi of the case concerned, was at odds with at least one other single judge decision and was contrary to some decisions of the Full Court.  The learned Federal Magistrate was persuaded of the correctness of those propositions and declined to follow the approach of Gray J.  In the view I take it is not necessary for me to pass upon the correctness of Gray J’s decision.

8. As far as I can make out, the s 424A argument has not been persisted with in the appeal from the learned Federal Magistrate’s judgment.  Indeed no error by the learned Federal Magistrate has been suggested in the written submissions.

9. The arguments seriatim put to me involve factual complaints about the Tribunal’s findings, which do not indicate any error of law, let alone jurisdictional error, and a number of generalised assertions, such as that the procedures required by the Act and the making of the decision were not observed;  that the Tribunal did not act in good faith; that the Tribunal so ignored relevant evidence and so contradicted independent evidence as to indicate actual bias; that the Tribunal “did not maintain procedural fairness”; and that the judgment in “Muin v Refugee Review Tribunal & Lie v Refugee Review Tribunal” in the High Court was “very relevant of my RRT decision”. 

10. Some of these are serious charges to lay against an administrative tribunal and, of course, they should not have been laid without some basis for them, which appears to be starkly absent.  Others are so general that the only possible way that any sense could be made of the complaint, let alone its justification be considered, would be if the Court were to assume the role of advocate for the appellant and minutely examine every page of the materials before the Court with an eye extremely attuned to error and with a view to dredging up some argument.  There is nothing on a plain reading of the material in the Court book that was before the learned Federal Magistrate, including the reasons for decision of the Tribunal, or the reasons for decision of the learned Federal Magistrate, which occasions to me the slightest concern, and I do not propose to undergo any transformation into an unpaid advocate for the appellant.  There are cases in which a degree of unease on a simple reading of the materials can cause a judge to become inquisitive, even exceptionally inquisitive, in the interests of an appellant, but this is a long way from being such a case. 

11. The appeal is dismissed.  The appellant is to pay the respondent’s costs. 

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

Associate:

Dated:             24 September 2003

The appellant appeared in person.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	18 September 2003
Date of Judgment:	18 September 2003