NAKO v Minister for Immigration - [2003] FMCA 544

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAKO v MINISTER FOR IMMIGRATION

[2003] FMCA 544

MIGRATION – Review of decision of Refugee Review Tribunal – where applicant did not attend hearing before Tribunal – where applicant failed to provide certain evidence – whether applicant could now provide such evidence – whether failure to provide such evidence to the Tribunal could cause the Tribunal to fall into jurisdictional error because it did not take the evidence into account.

Migration Act 1958 (Cth), ss.48(b), 426A
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules, P 21 r 21.02(2)(a)

Council of the City of Greater Wollongong v Cowan (1954) 93 CLR 435
Orr v Homes [1948] 76 CLR 632
Chopra v MIMA [1999] FCA 480
Pannasara v MIMA [2001] FCA 570
Ozberk v Minister for Immigration (1998) 79 FCR 249

Applicant:

NAKO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 885 of 2003

Delivered on:

18 November 2003

Delivered at:

Sydney

Hearing date:

18 November 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr I Archibald

Counsel for the Respondent:	Mr S Lloyd
Solicitors for the Respondent:	Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 885 of 2003

NAKO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is a Bangladesh citizen who arrived in Australia on 17 October 2000. On 10 November 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth). On 2 January 2001 a delegate of the Minister refused to grant a protection visa and on 25 January 2001 the applicant applied for review of that decision. On 17 October 2002 the Tribunal wrote to the applicant advising him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on this information alone.
The Tribunal offered the applicant the opportunity of a hearing on 20 November 2002. The applicant, who at that time was advised by a migration agent, sought a postponement of the hearing due to his psychological condition. That postponement was given and a second offer of hearing was made to the applicant. The adviser again notified the Tribunal that the applicant had instructed him that he did not have the psychological or physical fitness to attend a hearing and requested a further deferral until the applicant had consulted a psychiatrist.
The Tribunal responded to the second request by way of letter dated 2 January 2003 found at [CB 20]. The letter indicated that the Tribunal would only grant a further adjournment if the applicant was prevented by some medical condition from attending a hearing and giving evidence and there was a medical certificate which confirmed that. A further hearing was offered on 9 January 2003 but the applicant did not attend. The Tribunal then proceeded to make its decision upon the basis of the evidence which was then before it in accordance with its powers under s 426A of the Migration Act. The applicant claimed that he had a well founded fear of persecution for the convention reason of political opinion because he was an active member of the BNP, in particular in its student wing.
The information that was before the Tribunal indicated that the applicant had left Bangladesh and lived in Brunei for approximately ten years, during which time he returned to Bangladesh on occasions for a few days to see his family. The Tribunal took into account a detailed submission made by a migration agent on behalf of the applicant and found between [CB 43 and 50]. This submission dealt extensively with the current situation in Bangladesh and in particular the effect of a Government initiative known as "Operation Clean Heart". The submission attempted to convince the Tribunal that the applicant would be in danger from this operation if he returned.
The Tribunal in its decision stated that it was satisfied that the applicant was a Bangladeshi citizen who had lived in Brunei for some years but had visited Bangladesh every two years. The Tribunal indicated that it was satisfied that the applicant was an active BNP supporter but stated that:
“Given that he has been able to re-enter and leave Bangladesh it seems unlikely that false cases were issued against him. I note that the BNP are the senior party in the present Government. Whilst there is evidence that the Government has arrested many political activists, including BNP activists, it is not apparent why the applicant, who has not been active in Bangladeshi politics for a decade, would be at risk of arrest and harm should he return. It is not apparent, on the limited information available, why he would be at any greater risk of harm now than on his return from visits to Brunei.”
Today the applicant appears before me by counsel seeking to have an affidavit dated 6 November 2003 admitted and for me to consider his application for review, bearing in mind the information provided within that affidavit. The affidavit provides the type of information which would have been of relevance to the Tribunal in considering the applicant's claim for refugee status but that information was not before the Tribunal. Mr Archibald seeks to have it admitted as if it was additional evidence pressed upon an appeal court.
However, this court in dealing with matters under s.39B of the Judiciary Act 1903 (Cth) is not acting as an appellate court at all. It is acting as a court of review. It can only review decisions on the basis of the information that was before the Tribunal. The court does admit evidence on limited matters such as evidence to establish that a particular applicant would have acted in a particular manner had he or she been aware of certain facts upon which the Tribunal acted. This is the type of evidence required in order for the court to exercise its discretion to provide review where jurisdictional error has been found.
What is sought here is for the court to admit evidence and then to say that if the Tribunal had had that evidence before it, it might have given a different decision. Because it did not give that different decision it fell into jurisdictional error because it had not taken the material into account.
I do not believe that the authorities cited to me by Mr Archibald such as the Council of the City of Greater Wollongong v Cowan (1954) 93 CLR 435; Orr v Homes [1948] 76 CLR 632; Chopra v MIMA [1999] FCA 480 or Pannasara v MIMA [2001] FCA 570 really permit the court to make this type of finding. I would prefer to follow the decision of Marshall J in Ozberk v Minister for Immigration (1998) 79 FCR 249 at [254D] where his Honour declined to admit such evidence.
It seems to me that in the events that have occurred including his alleged psychiatric illness and the alleged failure of his migration agent the applicant would be best advised to seek the Minister's discretion under s 48B of the Migration Act to allow him to make further application so that the matters raised in his affidavit can be considered by a delegate and if necessary the Tribunal. It is not appropriate for me to pass any comment upon those matters.
In all the circumstances I dismiss this application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: