NANM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1384

FEDERAL COURT OF AUSTRALIA

NANM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1384

NANM AND NANN OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N662 of 2002

MADGWICK J
30 OCTOBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N662 OF 2002

BETWEEN:	NANM AND NANN OF 2002 APPLICANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	30 OCTOBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.No person may have access to any page of the transcript where there is reference to the applicants’ names except by order of a judge.

2.The application be dismissed with 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	N662 OF 2002

BETWEEN:	NANM AND NANN OF 2002 APPLICANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	30 OCTOBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from trancript)

HIS HONOUR:

1. This is, as far as one can gather from the inadequate documents filed, an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision unfavourable to the applicants in respect of their claim for Protection (class AZ) Visas on account of their asserted status as refugees.

2. The applicants come from Bangladesh.  The male applicant, the husband (it is convenient to refer to him as the “applicant”), was apparently a businessman there.  He claimed that he had been subjected to persecutory acts of various kinds allegedly on account of his adherence to the Jatiya political party and because of the very active and outspoken role he had played on behalf of that party. 

3. In a nutshell, the Tribunal member disbelieved the applicant.  Despite the history and generality of inter-party political violence in Bangladesh, the Tribunal member found that, after the October 2001 elections in which the BNP party triumphed and formed government, the Jatiya Party poses no political threat to the BNP as the former has been reduced to holding merely a few seats.  There was, therefore, no motivation for BNP to target Jatiya Party members.  The Tribunal member accepted advice from Australia's Department of Foreign Affairs and Trade that the BNP does not now target Jatiya Party members.  The Member said:

   “Accordingly I find that the Applicant would not face harm at the hands of members or supporters of the BNP now or in the reasonably foreseeable future.”

4. Although this finding may show a degree of sanguinity about the future in Bangladesh which not everybody might be inclined to share, it is not legally objectionable on that account.  It is unnecessary to traverse the other matters concerning the motivation for an attack on the applicant's business, which itself is fairly well documented. 

5. The applicant raised before me two matters.  First, that the Tribunal Member said the in his reasons for decision:

   “At the Tribunal hearing both the Applicant and his wife appeared.

   The Applicant's wife said that her claim depended on her husband's case and she had no separate claims of her own.”

6. The applicant asserts that it is not the fact that his wife was present at the hearing as she had not been present and as such she could not have said what is attributed to her.  The documents supplied indicate that indeed the applicant's wife was not present.  However, the applicant was accompanied by a migration agent acting for both of the applicants and it may be that the migration agent said, on behalf of the wife, that her claim was dependent on the husband's case and that she had no separate claims of her own.  In any event, the fact is that the wife's claims are entirely dependent upon and derived from association with her husband's claims.  While the error is regrettable, it does not seem to me to bear a character that could call into legal question the Tribunal Member's decision. 

7. The second matter pointed to by the applicant concerns supposedly false criminal charges brought against him by supporters of the Awami League, a rival political party.  In discussing this, the Tribunal Member said:

   “Firstly, no claims were made in this regard when the Applicant applied for a protection visa.

   The claims were first made when a submission was made on 14 March 2002.

   I find that if these claims were genuine that the Applicant would have made them earlier.  He has had the same adviser from the period he first lodged the application.  If the claims were genuine he would have informed the adviser when that adviser was counselling him.”

8. The fact is that the applicant did mention in the statement which accompanied his original application the matter of a false charge.  He said that, after he reported the attack on his business to the local police:

   “they did not take any action against the Awami thugs ... when the matter became a very important issue [following publicity], they were threatened me to withdrew the case;  otherwise they would kill me.  A number of times they tried to kill me.  They also [filed] a false case against me.”

9. Counsel for the respondent points out that the Tribunal member might have been saying that there was no clear claim originally that the applicant feared future harm as a consequence of any false charge made against him.  That is a possible reading.  Nevertheless, one can understand the applicant's disquiet and I am more inclined myself to believe that the applicant's criticism of the Tribunal member in this regard is well founded.

10. However, this also, although more serious than the other matter concerning the non-attendance of the wife, appears to be a factual error that does not have a legal consequence, because the Tribunal member, having rejected the genuineness of the claims as not having been made earlier, further and alternatively went on to explain his conclusions that there were other and seemingly powerful reasons for considering that the claim was false.

11. Although it is a matter of impression and another view might possibly be open, the nature of that other material relied on by the Tribunal member seems to me to be such that the further and alternative reasons for rejecting the applicant's claim were sufficiently powerful in the Tribunal member's mind that it can safely be inferred that he would not have altered his view had he appreciated that there had actually been a mention of the false case claim, though without any elaboration, in the original claims made by the applicant.  In any case, the Tribunal Member later said:

    “I find that [the documents concerning the false charge] are fraudulent but in any event, since the Awami League now [no] longer is in government, I find that the Applicant could defend himself against these charges in a court which would not be influenced by the executive in this regard.”

12. The Member went on to express the general view that there was no real chance that the applicant would face harm and persecution for reasons of his political opinion and therefore any fears that he might hold in that regard "are not well founded".  That seems to me to be a further nail in the coffin of the false charge or charges claim made by the applicant.

13. In the result, although it appears the Tribunal member has made some factual errors, in the first instance the matter is trivial and patently of no significance and in the second, upon analysis it does not avail the applicant in a legal sense. The Court is not exercising a general appellate jurisdiction over the Tribunal which would permit it to intervene or re‑hear the matter on factual grounds. Quite apart from the operation of s 474 of the Migration Act1958 (Cth), legal error must be shown and here I think there is none. I need not therefore consider s 474 in this case.

14. The applicants’ application must be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            8 November 2002

Applicants appeared in person.
Counsel for the Respondent:	Mr R J Bromwich
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 October 2002
Date of Judgment:	30 October 2002