NAKP v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1316

FEDERAL COURT OF AUSTRALIA

NAKP v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1316

NAKP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 912 of 2003

SACKVILLE J
SYDNEY
17 NOVEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 912 OF 2003

ON APPEAL FROM FEDERAL MAGISTRATES COURT

BETWEEN:	NAKP APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	17 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant 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	N 912 OF 2003

ON APPEAL FROM FEDERAL MAGISTRATES COURT

BETWEEN:	NAKP APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	17 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BACKGROUND

1. This is an appeal against a judgment of the Federal Magistrates Court dismissing an application for prerogative relief in relation to a decision made by the Refugee Review Tribunal (“RRT”).  The RRT, by a decision made on 19 February 2003, affirmed a decision of a delegate of the respondent (“the Minister”), made on 12 March 2001, not to grant the appellant a protection visa.

2. The appellant is a citizen of Bangladesh who arrived in Australia on 13 December 2000.  On 17 January 2001, he lodged an application for a protection visa, apparently with the assistance of a migration agent.  The appellant claimed that he had been a member of the Bangladesh Nationalist Party (“BNP”) and that he had been attacked by Awami League (“AL”) members.  The appellant also claimed that he had been falsely and maliciously charged with serious crimes, including the murder of an AL leader.  He had left Bangladesh because the police and AL members had been searching for him and he feared for his life. 

3. As noted, the delegate rejected the appellant’s application for a protection visa.  On 9 April 2001, the appellant sought review of the delegate’s decision.  The application for review was supported by a detailed typewritten letter signed by a different migration agent than the one who had assisted the appellant with his original application.

4. On 23 December 2002, the RRT advised the appellant that it was unable to make a decision in his favour on the material before it.  He was invited to attend a hearing on 19 February 2003.  Prior to that hearing, the migration agent forwarded a number of documents to the RRT which were said to support the appellant’s case.

5. The hearing took place as scheduled and continued for nearly five hours.  At the conclusion of the hearing, the RRT announced its decision and indicated that a copy of its reasons would be sent to the appellant within 14 days.  The reasons were in fact forwarded to the appellant on 24 February 2003.

   THE RRT’S REASONS

6. The RRT gave detailed reasons for affirming the delegate’s decision.

7. The RRT noted that the only claims made by the appellant or on his behalf had been made in January and April 2001 and at the hearing.  Documents that he had promised to provide in January and April 2001 had not arrived until the hearing itself.

8. According to the RRT, the “image” presented by the appellant of a persecuted political activist “collapsed very quickly” at the hearing.  The RRT concluded that key parts of the appellant’s claims had been exaggerated or fabricated, including evidence given at the hearing.  Moreover, the appellant had confirmed to the RRT the accuracy of his original claims notwithstanding that they were virtually identical to particulars of claims lodged weeks earlier by the same migration agent for other applicants.

9. The RRT said that it did not know whether the appellant had ever been a member of the BNP, but it was prepared to accept that he had been.  However, it pointed out that in the course of the hearing the appellant had materially changed his account of his involvement with the BNP.  He had also disavowed claims when it had suited him.

10. The RRT made the following findings:

    • Even if the appellant had held an elected position with the BNP (which the RRT doubted), that position had finished over two years earlier, when the appellant left Bangladesh.
    • On the basis of the appellant’s own claims and the country information, the RRT found that the appellant was “involved in the violent side of Bangladeshi student politics” which was not politics as generally understood “but simply thuggery and criminality”.
    • If there were any cases brought against the appellant in Bangladesh the charges were likely to be justified, not false.  If they were false, the appellant could demonstrate that in court in Bangladesh.
    • The RRT suspected that the documents produced by the appellant suggesting that he had been charged with murder were fabricated.  Whether they were or not, he had exaggerated the danger, particularly having regard to the fact that the case was before the High Court, which enjoyed a favourable reputation.
    • The appellant’s failure to remove himself from areas in which he was supposedly in danger showed that he did not in fact fear persecution in Bangladesh.
    • The appellant’s admission at the hearing that he had never been detained undercut the claims he had originally made through the first migration agent.
    • The most that the appellant could say about his situation was that if he returned to Dhaka or other towns where he had lived, he might face danger from old opponents or the police might want to speak to him about old cases.  But if he had to face charges they would concern violent criminal, rather than political, behaviour.  In any event, he would secure justice through the higher levels of the judiciary.
    • If the appellant did not wish to return to the areas of Bangladesh in which he had lived, there were many other parts of the country in which it would be reasonable to expect him to be able to secure his safety.

11. The RRT expressed its conclusions as follows:

    “I believe that if the applicant genuinely feared persecution when he left Bangladesh he would have done everything possible to obtain appropriate protection under the Convention at the earliest possible opportunity after departure, not only for his own peace of mind but also for the peace of mind of his family back in Bangladesh.

    In view of the applicant’s claims and the country information, I conclude that, if the applicant does have the enemies he has claimed in Bangladesh or does have to answer to the authorities in relation to the cases he has claimed, that is for reasons whose essential and significant motivation is not Convention-related.

    There are several significant differences between the claims made by or on behalf of the applicant before the hearing and the claims made by the applicant at the hearing.  When viewed against the country information, the cumulative impact of these differences and of certain other aspects of his claims and personal circumstances and behaviour mentioned above is such that I conclude that the applicant did not and does not have a genuine fear of persecution for a Convention reason and that he has no well-founded fear of persecution within the meaning of the Convention.  Accordingly, I am satisfied that he is not a refugee.”

    THE APPLICATION TO THE MAGISTRATES COURT

12. The learned magistrate observed that the appellant’s outline of submissions had “become familiar in cases involving persons seeking asylum from the subcontinent”, in that it claimed a denial of procedural fairness of the type that was found to have existed in Muin v Refugee Review Tribunal (2002) 190 ALR 601. His Honour pointed out that Muin was decided upon agreed facts and there had been no attempt by the appellant to establish similar facts in this case.

13. The magistrate rejected a contention that the RRT had demonstrated bias by giving its decision at the conclusion of a hearing lasting nearly five hours.  His Honour also noted that the appellant had made a number of complaints about factual matters, but that these were incapable of establishing jurisdictional error on the part of the RRT.

    THE APPEAL

14. The notice of appeal is framed in general terms and does not identify clearly any alleged error of law on the part of the Magistrate.  The appellant’s written submissions appear to raise three points:

    • it is asserted, without elaboration, that the RRT was actually biased against the appellant;
    • it is alleged that the case is “very…similar” to Muin v RRT but no explanation is given as to why this is so;
    • reference is made to the so-called Hickman principles (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598) and to Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24, but without any indication as to how those principles or cases might be relevant, except by way of an assertion that the appellant had been denied natural justice (presumably by the RRT).

15. It is clear enough that the RRT formed a distinctly unfavourable view of the appellant’s credibility.  The RRT also expressed one or two of its findings in strong terms, when somewhat more moderate language might well have sufficed.  But in my view the reasons of the RRT fall well short of demonstrating that it was committed to a conclusion already formed, or one that was incapable of alteration whatever argument or evidence might have been presented: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, at 531-532, per Gleeson CJ and Gummow J. Nor do the reasons indicate that a fair-minded observer might reasonably apprehend that the RRT did not bring a fair and unprejudiced mind to the matters before it: cf Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128, at 136, per Gleeson CJ, McHugh, Gummow and Hayne JJ. The RRT gave cogent reasons for making the findings it did. The fact that the RRT announced its decision at the conclusion of the hearing does not demonstrate or indicate actual bias or a reasonable apprehension of bias.

16. As Mr Lloyd, who appeared for the Minister, submitted, the submission founded on Muin v RRT simply lacks the necessary factual foundation.  Similarly, there appears to be no basis for the bare assertion in the appellant’s written submissions that he was denied natural justice by the RRT.  Insofar as there is a suggestion that the RRT erred in law, no specific error has been identified and none is apparent.

17. The appellant put his case to the RRT.  He was not believed on critical aspects of his claims.  The RRT made findings fatal to his claim to have a well-founded fear of persecution in Bangladesh for a Convention reason.  Nothing has been advanced to suggest that the learned Magistrate erred in concluding that the RRT did not commit a jurisdictional error and that the application for judicial review had to be dismissed.

    CONCLUSION

18. The appeal must be dismissed, with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:            19 November 2003

The appellant appeared for himself.

Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	17 November 2003
Date of Judgment:	17 November 2003