NANH v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1285

FEDERAL COURT OF AUSTRALIA

NANH v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1285

Muin v Refugee Review Tribunal (2002) 190 ALR 601
R v Hickman; ex parte Fox & Clinton (1945) 70 CLR 598
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277

NANH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N177 OF 2004

BENNETT J
17 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N177 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NANH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	17 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed with costs.

2.The appellant pay the respondent’s costs of the appeal.

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	N177 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	BENNETT J
DATE:	17 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 11 March 2003, the Refugee Review Tribunal (‘the Tribunal’) handed down a decision affirming the earlier decision of the delegate of the respondent (‘the delegate’) not to grant a Protection (Class XA) Visa to the appellant.  The appellant is a national of Bangladesh who arrived in Australia on 24 December 2000 and applied for a protection visa on 9 January 2001.  His application was rejected by the delegate on 8 March 2001.  The appellant applied for a review of that decision by the Tribunal on 26 March 2001. 

2. The appellant lodged written statements of his claim with the Department of Immigration and Multicultural and Indigenous Affairs and later with the Tribunal.  These detailed a history of active membership of the Bangladesh Nationalist Party (‘BNP’) in his home district, conflict with local activists of the Awami League and Sarbaharas and false charges being laid against him by the authorities.  His claims changed somewhat at the Tribunal hearing.  For example, it emerged that the only enemies he was concerned with were the Sarbaharas and that there was only one case against him.

3. The Tribunal concluded that most or all of the appellant's claims were false but accepted some of them for the purposes of its decision.  Even on that basis it did not accept that he had a well-founded fear of persecution for any convention reason.  The Tribunal accepted that the appellant had been a member of the BNP but did not think that that, in itself, meant that he a well-founded fear of persecution.  It accepted his claims as to which part of Bangladesh he had lived in and that this district was at the centre of Sarbahara activity. However, the fact that the appellant had remained in the district, even at times when he said he was in hiding, indicated that he did not in fact fear persecution in that region.       The Tribunal accepted that there was one case pending against the appellant but found that, given his descriptions of activities that he had been involved in, it was reasonable to conclude that it was a genuine criminal prosecution rather than a false case. 

4. Other aspects of the appellant's claims were rejected outright. His claim to have held elected office in the BNP was rejected.  The Tribunal concluded that the appellant may well have held no elected position at all within the BNP or its student wing.  It also concluded that even if he did hold an elected position, that he was not known beyond a very small area.  His claim that he and his family feared harassment by the police was described as ‘just not credible’.  In the Tribunal's view, the most that could be said was that if the appellant returned to his home district, he would face some danger from Sarbaharas and he might be detained in relation to the charges against him.

5. The Tribunal observed that if the charges came to court in Bangladesh the appellant could expect justice from the higher levels of the judiciary and that his BNP connection might well assist him.  Further, the Tribunal observed, his problems, if any, were confined to a particular district and he could live safely in other parts of Bangladesh.  The Tribunal concluded that it was reasonable for the appellant to relocate given the adaptability he had demonstrated, for example, by living in other countries for several years.

6. Other factors reinforced the Tribunal's view that the appellant did not fear persecution in Bangladesh.  The appellant obtained a passport without difficulty, but then did not leave the country for seven months.  He left legally using his own passport, he did not seek protection as a refugee until several years later and he did not seek protection in the first country in which that would have been possible.  For these reasons the Tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (‘the Convention’).

7. The case before the Federal Magistrate Raphael was based in large part on a complaint that the Tribunal ignored evidence and an allegation of actual bias on the part of the Tribunal.  The latter allegation was noted by Raphael FM to be particularised in terms of an allegation that the Tribunal did not accept that the appellant was persecuted because of his political opinion.  Referring to SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361, his Honour noted that there were no proper particulars or submissions to support an allegation of actual bias.

8. In response to an allegation that the Tribunal was obliged to make its own inquiries in respect of the appellant's case, his Honour observed that the Tribunal was under no such obligation or duty to make its own investigations.  Raphael FM concluded that the Tribunal came to the opinion that the appellant was not a reliable witness and that it did not accept the threat to the appellant from the Sarbaharas. Both of these matters were factual matters for the Tribunal to determine.  His Honour also found no basis for the suggestion that the finding was brought about as the result of bad faith.

   THE AMENDED NOTICE OF APPEAL

9. The amended notice of appeal as filed by the appellant appears to allege the following errors by Federal Magistrate Raphael:

   (1)      Failing to acknowledge that the appellant was unable to address legal        arguments because of lack of knowledge of "legal terms";

   (2)Failing to hold that the Tribunal erred by failing to conduct              

   investigations;

   (3)Failing to consider that the Tribunal had confessed its lack of        knowledge about Bangladesh;

   (4) Failing to consider that the Tribunal had made false statements and solely depended on country information instead of making assessments on ‘my claims and evidences’;

   (5)Failing to agree that the Tribunal's ‘relocation assistance theory’ was  

   ‘wrong and pure speculation’.

   Ground one, the appellant was not legally trained or represented

10. Raphael FM made specific reference to the appellant's lack of legal knowledge and was obviously aware of the difficult situation that the appellant was in.  However, his Honour did not err by proceeding to hear and deal with the arguments that the appellant raised. I note his Honour's reference to the extensive written submissions that were filed before him.

    Ground two, the Tribunal's power to investigate

11. The reasoning of the Full Court in WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 confirms the correctness of the view taken by the Federal Magistrate. There are no circumstances in which a decision by the Tribunal not to use its investigation powers is, in itself, an error capable of leading to relief in this court. The Tribunal is under no legal obligation to make enquiries, nor to consider whether it should exercise the power to make enquiries.

    Ground three, the Tribunal's lack of knowledge

12. There is no evidence of the concession said to have been made by the Tribunal member and the issue was not raised in the proceedings below.  In any event, an imperfect factual understanding by a decision maker is not a ground of review. 

    Ground four, false statements and country information

13. The Tribunal was entitled to rely on such evidence as it considered reliable.  The Tribunal’s reasons indicate that it attended to and analysed the appellant's claims.  The basis for the Tribunal's decision was the appellant's own story; that is, nature of the claims made by the appellant himself, although its rejection of those claims depended in part on background information of which the Tribunal was aware. There was no suggestion apparent before Raphael FM that the Tribunal had made "false statements" to the appellant in the sense of misleading him about what it proposed to consider or how it intended to deal with his case.  There is simply no evidence to support that allegation.  If the substance of the point is simply that the Tribunal's reasons contain incorrect statements of fact, that does not provide a ground of review.

    Ground five, relocation

14. It appears that no attack on the Tribunal's conclusion in relation to relocation was made in the proceedings before the Federal Magistrate.  In any event, the contention which the appellant now seeks to make is apparently that the Tribunal was simply wrong on the facts.  At the hearing before me, the appellant expanded on that ground by referring to facts which he said he put to the Tribunal.  That does not provide a basis on which this court could set aside the Tribunal's decision.

    THE APPELLANT'S WRITTEN SUBMISSIONS. 

15. The appellant's written submissions covered some ten typewritten pages and were, the appellant said, written by a friend.  They cover matters that are not apparently contested in the amended notice of appeal.  The appellant appeared before me at the hearing in person assisted by an interpreter.  I asked him whether he could link the written submissions to the amended notice of appeal and he replied that he could not.  I will deal with the matters raised in the written submissions in any event.  The written submissions seem to raise the following issues, in summary:

    (a)       Whether the Tribunal addressed the claim that the appellant had a progressive political opinion for which he would be persecuted in Bangladesh

16. This aspect of the written submissions seems to refer to a claim on the part of the appellant to be a member of the Communist Party or the Sharbohara Party.  That was identified by the appellant as a mistake in the written submissions in that he said he was not a member of either of those parties but claimed to be a member of the BNP.  It is clear that the Tribunal did address the appellant's claim in relation to his membership of the BNP.

    (b)      Whether the Tribunal erred in finding that law enforcement agencies in Bangladesh provided adequate protection

17. In that regard, again, the written submissions seem to be alleging inadequate protection of Sharbohara Party members.  The appellant clarified at the hearing that this was a mistake in the written submissions and that he was not again claiming to be a member of the Sharbohara Party.  I have referred to the context in which the Tribunal made reference to the adequacy of protection available to the appellant.  As the Tribunal had found that he was not in need of protection because of its findings in respect of his membership of the BNP, the comment about the adequacy of protection did not provide a necessary basis for the Tribunal’s decision.  So much is apparent from reading that part of the Tribunal's decision in context.

    (c)       Whether the Tribunal failed to follow proper procedure and whether the appellant's case was identical with the facts in Muin v Refugee Review Tribunal (2002) 190 ALR 601 (‘Muin’)

18. Reference is made in the written submissions to a letter that formed part of the reasons of Hayne J.  However, Muin proceeded upon the basis of agreed facts.  There is no evidence in the present case as to any effect that the letter would have had on the appellant or what he would have done in respect of that letter.  There is no factual basis here for any application of Muin.

    (d)      That the Tribunal did not believe the appellant

19. That is clearly a matter of fact for the Tribunal.

    (e)       That the Tribunal failed to investigate the appellant's claims

20. No specific matter was particularised in relation to this ground and it is clear to me from a reading of the Tribunal’s decision that the Tribunal did address the appellant's claim that he fears persecution on the basis of his political activities.

    (f)       Whether the Tribunal failed to consider all of the facts and evidence provided by the appellant

21. I asked the appellant whether he could point to any facts or evidence that formed the basis of that allegation.  The appellant referred to the fact that he could not call witnesses before the Tribunal to support his claims. When pressed, however, he said that this claim was asserted in the written submissions but that he did not know anything specific about it.

    (g)       The fact that the Tribunal based its findings on country information

22. The basis of the Tribunal's finding was an assessment of the appellant's own claims and credibility.  In any event, nothing has been said as to why the Tribunal was in error in referring to country information.

    (h)      An allegation of actual bias because the Tribunal ignored relevant evidence and made findings in the face of contradicting independent evidence

23. No particulars or evidence were provided in support of that allegation, no evidentiary matters were raised by the appellant, nothing was put forward to support the allegation of bias and no bias is apparent.

    (i)        Whether the Tribunal failed to consider the appellant's claim to be a genuine refugee, specifically ‘the grounds of persecution, being a woman in Bangladesh’

24. The appellant informed me at the hearing that this was an error and that the grounds of persecution should have referred to the fact that he was a politician in Bangladesh.  Nothing further was said in support of that ground.  It is clear that the Tribunal did consider the appellant's claim to fear persecution on the grounds of being a politician.

    (j)       Whether the Tribunal failed to consider future socio-political changes that might occur in Bangladesh 

25. Mr Kennett, for the respondent, submitted that there may be some cases where such an issue might arise but that it was not the case here.  In the instant case there was no reason why the Tribunal should have looked to any future developments in Bangladesh where the Tribunal had found, as a matter of fact, that the appellant did not fear any persecution.

    (k)      Whether the Tribunal failed to provide particulars to the appellant of independent country information which formed part of the reasons, namely that the persecution against political activists had subsided 

26. Such a finding on the part of the Tribunal was not identified by the appellant and I could not find it in the Tribunal's reasons.

    (l)       The relevance of a jurisdictional error – analysis of R v Hickman; ex parte Fox & Clinton (1945) 70 CLR 598

27. The questions raised by those authorities have largely been resolved.  It is not in dispute in the present case that this court has jurisdiction in respect of decisions of the Tribunal that are infected with jurisdictional error.

28. As to additional matters raised in the submissions that I have not dealt with above, in my opinion, the Tribunal clearly did address the appellant’s claim of persecution by reason of the appellant's alleged political opinion.  Any comment as to whether or not there was adequate protection for the appellant from law enforcement agencies did not form a basis for the Tribunal's conclusion.  Findings of fact are a matter for the Tribunal.  It is not obliged to refer in its reasons to each and every fact raised or submitted by the appellant.  The Tribunal is obliged to consider the appellant's claim and it did so.  There is no particularisation of any relevant matter that the Tribunal failed to consider.

    CONSIDERATION

29. It is apparent from the Tribunal's reasons that it considered the appellant's written claims and relevant country information, and attended to what the appellant said at the hearing.  It is also apparent that the Tribunal did not regard the appellant’s evidence as truthful and was not inclined to believe anything he said.  However, it proceeded on the basis that core elements of what he claimed at the hearing were true. Even then, the most that the appellant feared was some difficulty in a particular part of Bangladesh. 

30. No error can be seen in the Tribunal's conclusion that the appellant did not fear persecution in the Convention sense.  No error has been demonstrated on the part of the Federal Magistrate.  It follows that the appeal should be dismissed.

31. The order of the court is that the appeal is dismissed with costs.  I order that the appellant pay the respondent's costs of the appeal.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:            7 October 2004

The Appellant appeared in person
Counsel for the Respondent:	G  Kennett
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	16 September 2004
Date of Judgment:	16 September 2004