NAKD v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 450

FEDERAL COURT OF AUSTRALIA

NAKD v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 450

NAKD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N178 of 2003

MADGWICK J
29 APRIL 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N178 OF 2003

BETWEEN:	NAKD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	29 APRIL 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant 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	N178 OF 2003

BETWEEN:	NAKD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	29 APRIL 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. This is an application, purportedly made under s 39B of the Judiciary Act 1903 (Cth), for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 14 January 2003. That decision affirmed an earlier decision of a delegate of the respondent Minister to refuse the applicant’s application for a protection visa.

2. The applicant arrived in Australia on 19 September 2000.  He lodged his application for a protection visa on 12 October 2000.  His claim, initially, was that he was a political refugee because he actively supported the Bangladesh National Party (“the BNP”) and was liable to persecution at the hands of Awami League supporters. 

3. At the time he made that application, the Awami League still held power nationally in Bangladesh, having been elected in 1996.  The League had not held political office, according to the applicant, from 1975 and on gaining power, League members were intent on gaining revenge on their political opponents. 

4. The applicant was born in 1962 and joined the BNP in the late 1980s or early 1990s and among other things had led demonstrations against the Awami League before its election in 1996.  The Tribunal Member accepted that in June 2000 the applicant was a BNP supporter who “was beaten up by Awami League thugs”.  By the time the matter came for hearing before the Tribunal, the Awami League had lost office, the BNP having been elected in 2001 with a very substantial parliamentary majority.  The Tribunal Member’s reasons are notable for their brevity, but I infer that at the hearing the Tribunal Member naturally enough questioned the applicant as to why he would not now be safe given the change of government and further, in response to some such questioning, the applicant said, as the Tribunal Member recounted, that:

   “there are two factions within the BNP and he belongs to the losing faction.”

5. A further part of the applicant’s case before the Tribunal, was that he feared false conviction on charges of engaging in political violence, brought against him by, or at the behest of, Awami League supporters.  He told the Tribunal that he believed that the BNP government would continue with those false charges and referred to the present BNP government as having been prepared to use the Army “against the people”.

6. In one of the few passages that gives any inkling of the Tribunal Member’s thought processes, the Member said:

   “The Applicant was asked how he managed to leave Bangladesh with serious charges outstanding against him.  He says he escaped.  He had help at the airport.  He says that the charges were made against him in the early 2000s.  His passport was issued the following month but this was a replacement passport only.  He also had help in the passport office.  He states that in Bangladesh a passport is issued unless you have been found guilty.”

7. The Tribunal Member set out some material confirming that human rights are precarious and that:

   “Both major political parties and their activists often employed violence, causing deaths and numerous injuries…”

   And that:

   “lower level courts are more susceptible to pressure from the executive branch.  There also is corruption within the legal process especially at lower levels.”

8. The Tribunal also set out an Amnesty International press release dated 23 October 2002, which called upon the government of Bangladesh:

   “... to investigate immediately all allegations of deaths in custody and torture by the army and the police since a ‘crackdown’ on crime – known as ‘Operation Clean Heart’ – began on 17 October.”

9. That document appeared to support the proposition that the army had been involved in arresting civilians.  Amnesty International explained that part of the background to Operation Clean Heart was that it was:

   “... the government’s response to growing concern within Bangladesh and the international community about continued deterioration in law and order including a rise in criminal activity, murder, rape and acid throwing.  While Amnesty International acknowledges the government’s efforts to improve law and order, it urges the government to ensure that the army’s activities are conducted within the rule of law and with respect for human rights.
   …
   In the initial wave of army operations, many members and supporters of the ruling Bangladesh Nationalist Party were detained.  These included a number of BNP local leaders.  Members and supporters of the Awami League were also later detained.  Many senior party figures have gone into hiding.  Others are afraid of entering Awami League offices for fear of arrest.  The Awami League’s documentation centre has been raided by the army.  Documents and equipment were taken away.”

10. The Tribunal Member, it appears, was acutely conscious of his ability to find that particular factual assertions by an applicant are not made out, notwithstanding that there is no rebutting evidence available.  The Tribunal Member’s reasoning disposing of a claim for refugee status was contained in two paragraphs.

    “I am satisfied that the Applicant was a BNP [supporter] who was beaten up by Awami League thugs.  I am not satisfied that he was charged with serious offences in Bangladesh.  I note he was able to obtain a passport and leave Bangladesh.  I am not satisfied that he has any outstanding charges against him.  I am not satisfied that he is part of any losing faction of the BNP.

    I note that the government has arrested many political activists including a number of BNP members and local leaders.  I note that the Applicant has been out of the country during these incidents.  It is [not] apparent that the Applicant would be at risk of arrest and mistreatment.  I am not satisfied that there is any real chance that the Applicant would be persecuted if he were to return to Bangladesh.  I am not satisfied that any fear of persecution he may have is well founded.”

11. The applicant’s application to this Court canvassed factual matters that were otherwise framed at such a level of generality that they are quite unhelpful in identifying any relevant legal issue.  There was no accompanying affidavit.  In his written submissions the applicant, who is unrepresented, refers to a failure of interpretation before the Tribunal Member, but there is no evidence of this and nothing of the kind was said in the original application.  A case on that basis has not been made out.

12. The applicant’s submissions make reference to Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719, which refers to the necessity to engage in reasonable speculation about the chances of hypothetical future persecution occurring, even though past alleged events probably did not occur. However, it is well recognised that if findings are made that indicate that the Tribunal had no real doubt that events were not as an applicant said, it need not engage in the consideration of theoretical possibilities. The applicant otherwise refers, as far as any matter is relevant, to factual matters and to other cases that really lead nowhere.

13. The Tribunal Member’s reasons, as I have indicated, are somewhat unhelpful as a clear indication of his reasoning processes.  The Tribunal Member’s disbelief that the applicant ever faced any serious offences, by reason of his ability to flee the country, is understandable enough. 

14. However, it concerned me that the Tribunal Member, while accepting that the applicant was a BNP supporter who had been framed by Awami League adherents, may not have dealt with possible future persecution by Awami League supporters, even though the Awami League is no longer in government.

15. In this regard, as the respondent submits, the Amnesty International material suggests that the government, however heavy-handedly, was keen to put an end to privately-wreaked violence, including politically motivated violence. As to the latter, it may be inferred that it was keen to be even-handed, apparently cracking down on BNP members before turning its attention to Awami League members, but when it did come to them it attacked them with a will.

16. The government was elected for a term of five years and it would have been open to the Tribunal Member to take the view that 2006 was sufficiently far into the future as to put the prospect of harm at the hands of a resurgent Awami League outside the time frame of the reasonable future, in relation to which an assessment of refugee status ought to be made.  Within that period, there was ample material to suggest that the state would be able and willing to protect the applicant against any future violence at the hands of Awami League activists.

17. As to the question of the applicant’s claim that he would stand as an internal opponent of the ruling BNP faction and suffer harm therefrom, the Tribunal Member’s reasoning is, I am bound to say, very unsatisfactorily expressed.  In the first place, he disbelieved that the applicant was “part of any losing faction of the BNP”.  Nothing in the independent materials would compel such disbelief, nor does it appear that the Tribunal Member was so infected by disbelief of the applicant generally, because of his rejection of the applicant’s allegation that there were false charges outstanding against him, that this led to wholesale disbelief of everything the applicant said.  Why the Tribunal Member should have accepted that the applicant was assaulted by Awami League adherents but disbelieve that he was part of any losing faction of the BNP is simply unexplained.  Nevertheless, the case fails, perhaps not by very much, to fall into the category where disbelief of the applicant on that issue could be branded capricious and it follows that there is no jurisdictional failure on that account.

18. Thus, overall, it is little wonder that this application was brought, but despite the unsatisfactory aspects of the Tribunal Member’s reasons, the applicant has not been able to establish jurisdictional error such as would permit the Court to intervene and if there are any other apparent errors of law, s 474 of the Migration Act 1958 (Cth) operates to insulate the decision from interference by the Court. It follows that the application must fail.

19. The application is dismissed.  The applicant is to pay the respondent’s costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:
Dated:             13 May 2003

Applicant appeared in person.
Counsel for the Respondent:	Mr Beech-Jones
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	29 April 2003
Date of Judgment:	29 April 2003