NAOX v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 776

FEDERAL COURT OF AUSTRALIA

NAOX v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 776

NAOX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 214 OF 2004

STONE J
15 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 214 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAOX APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	15 JUNE 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal 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	N 214 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	STONE J
DATE:	15 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate made on 6 February 2004, dismissing the appellant’s application for review of a decision of the Refugee Review Tribunal (‘Tribunal’) (NAOX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 55). The Tribunal had upheld the decision of a delegate of the respondent Minister not to grant a protection (class XA) visa to the appellant.

2. The appellant is a citizen of Bangladesh who arrived in Australia on 22 December 2000.  The appellant’s claim for a protection visa was based on political persecution; namely, his alleged membership of the Bangladeshi Freedom Party (‘FP’) and his subsequent persecution by members of the Awami League.  In its reasons for decision the Tribunal expressed ‘essential and critical concerns about the [appellant’s] reliability as a witness’ and it referred to his ‘utter and absolute lack of knowledge about significant and essential aspects of the Freedom Party’.  It was not satisfied that the appellant had ever been a member of that party or that he had ever been harmed as a result of his association with it. 

3. In this appeal the grounds on which the appellant seeks relief are, first, that the Federal Magistrate was biased and, second, that his Honour did not take into account the fact that the appellant had submitted documents to the Tribunal to which the Tribunal had attached no weight.  In particular, the appellant claims that the Tribunal should have considered country reports beyond those on which it relied, presumably the documents which he had presented to the Tribunal. 

4. From his submissions on this appeal, it appears that the claim of bias is based on the Federal Magistrate’s refusal to interfere with the Tribunal’s decision on the merits of the appellant’s claim.  The appellant has not pointed to anything in the decision of the Federal Magistrate that could even remotely indicate that his Honour was not able to bring ‘an impartial and unprejudiced mind’ to the resolution of the question; Trustees of Christian Brothers v Cardone (1995) 130 ALR 345 at 350. The claim of bias is based on a misunderstanding of the jurisdiction of the Federal Magistrates Court and cannot be upheld.

5. In relation to the second ground, that the Tribunal attached no weight to documents submitted by the appellant, the Tribunal was not satisfied as to the reliability of the documents produced by the appellant.  It commented that the independent evidence available showed that there was a very high level of document fraud in Bangladesh.  However, the Tribunal’s primary reason for rejecting the documents was the grave adverse finding that it made about the credibility of the appellant.  These findings led the Tribunal to conclude it could not rely on documents produced by the appellant.  This was an independent ground for rejecting the documents. 

6. In considering this claim the Federal Magistrate distinguished the decision in NARV v Minister for Immigration & Multicultural & Ethnic Affairs [2003] FCAFC 262 in which a majority of a Full Federal Court held that where an applicant has not been given an opportunity to respond to country information about document fraud, the applicant has been denied procedural fairness. His Honour pointed out that the Full Court was dealing expressly with document fraud which was significant to the Tribunal’s decision.  In this case his Honour held, in my view correctly, that the issue of document fraud was not significant.  His Honour stated that the Tribunal found ‘in the clearest possible terms’ that the claims were not credible based on its analysis of them.  His Honour continued at [10]: 

   ‘The only effect of the country information on document fraud was to confirm the view the [Tribunal] had already adopted.  In those circumstances … procedural fairness did not require that the applicant be given an opportunity to comment upon the country information.’ 

7. The appellant has not been able to point to any reviewable error in the decision of the Tribunal or the reasons of the Federal Magistrate.  Having carefully reviewed both decisions I am not able to identify any reviewable error.  For these reasons the appeal must be dismissed with costs. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:       

Dated:            22 June 2004

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	Ms J Jagot
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 June 2004
Date of Judgment:	15 June 2004