Nani v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1122

FEDERAL COURT OF AUSTRALIA

NANI v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1122

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s474

Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 referred to
Lie v Refugee Review Tribunal [2002] HCA 30 referred to
NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 applied

NANI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 651 OF 2002

GYLES J
SYDNEY
3 SEPTEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N651 OF 2002

BETWEEN:	NANI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	3 SEPTEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the costs of the respondent of the application.

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	N651 OF 2002

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

JUDGE:	GYLES J
DATE:	3 SEPTEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal made on 21 May last whereby the Tribunal affirmed the decision of the delegate of the respondent Minister not to grant a protection visa to the applicant. The details of the claim in the application were as follows:

   “1.The procedures that were required under the Migration Act 1958 to be observed in connection with the making of the decision were not observed;

   2.The Tribunal ignored the merits of the claim.

   3.The Tribunal did not take into consideration the real fear of persecution on religious and political grounds.

   4.        The tribunal made errors to decide the fate of the applicant’s claim.

   5.The Tribunal misjudged the applicant’s claim.

   6.The Tribunal considered irrelevant matters to decide the fate of this application.

   7.The Tribunal do not have any authorities to justify this decision.

   8.The Tribunal used its power in bad faith.

   9.The Tribunal failed to consider the current situation prevailing in Bangladesh.”

2. The applicant is unrepresented but did lodge some submissions dated 1 September 2002 which were received yesterday, which do not address the details of claim as such.

3. The applicant claims to be a citizen of Bangladesh and arrived in Australia on 20 June 1999.  This is a case governed by the new regime following last year’s amendments to the Migration Act 1958 (Cth) (“the Act”) and thus s 474 operates so far as this application is concerned.

4. The decision of the Tribunal turned upon its conclusion that the applicant had fabricated his claims and evidence in an attempt to enhance his protection visa application and that he was not a credible witness.  The Tribunal dealt with firstly with his claim of being an Ahmadi Muslim, secondly, with his claim to have been politically involved in different ways with the Jatio Party and the BNP, leading he says to risk of persecution, and thirdly with a matter which they described as the signatures on the applicant's passport and on a particular file.  The Tribunal explained why each of the first two matters was rejected as a basis for a protection visa and after confirming the finding that he was not a credible witness said:

   “I find he does not have a well-founded fear of persecution for reasons of a Convention ground.”

   It was therefore not satisfied that the applicant was a person to whom Australia had protection obligations.

5. The case which is advanced in the written submission is that of a breach of natural justice founded upon the decisions of the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 and Lie v Refugee Review Tribunal [2002] HCA 30. Section 474 was not part of the Act which governed those particular cases. It is submitted by counsel for the Minister that in any event, there is no explanation as to what information was relied upon and not put to the applicant and thus there is no credible basis upon which the argument could succeed. In my view I do not need to get involved in that because the recent decision of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 plainly establishes that a breach of natural justice of that character is not a basis upon which this Court can set aside a Tribunal decision.

6. Complaint is also made in the written submission as to the consideration by the Tribunal of what it saw as a correspondence between the handwriting of this applicant and the handwriting of a person on documents in another file and that there were other coincidences between his file and that file. It is said that such consideration was an error on the part of the Tribunal. Even if it were, and even if s 474 would permit such an attack, the Tribunal expressly made no finding in relation to the issue. That provides no foundation for an attack upon the Tribunal's decision. Counsel for the Minister has submitted that the decision of the Tribunal is a simple case of its assessment of credibility, that there is no flaw revealed in it in any sense and that it was perfectly appropriate that the Tribunal should explore any discrepancies which came to its attention. It seems to me that is correct. The Tribunal is inquisitorial in nature. In the end it placed no importance upon the particular matter of investigation concerning coincidences between the files.

7. It will be observed that in the details of the claim an issue was raised as to bad faith. That is not pursued further in the written submission. So far as the oral submissions today have been concerned the only thing that has been added is a claim that the Tribunal did not properly consider the case put before it. Nothing has been put forward by way of evidence, or indeed submission, which would indicate any objective basis upon which it could be said that the Tribunal lacked good faith in the way it approached its task. In those circumstances the mere assertion by an applicant of that claim with no objective material which can be pointed to is bound to fail. The only real head open to this applicant to argue that s 474 would not be a bar to all of the possible claims simply obtains no support on the facts of the case.

8. It seems to me that the application is hopeless and I have no alternative but to reject it.  I therefore dismiss the application.  I do not think there is anything that can be said in opposition to an order for costs.  The orders of the Court, therefore, are that the application is dismissed, and the applicant is to pay the costs of the respondent.

I certify that the preceding eight  (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            11 September 2002

Applicant appeared in person
Counsel for the Respondent:	V Hartstein
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	3 September 2002
Date of Judgment:	3 September 2002