NAPF v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 929

FEDERAL COURT OF AUSTRALIA

NAPF v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 929

NAPF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N474 of 2004

MADGWICK J
1 JULY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N474 of 2004

BETWEEN:	NAPF APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	1 JULY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed. 

2.The orders of the learned Federal Magistrate are confirmed. 

3.The appellant is to pay the costs of the appeal assessed in the sum of $2,500.

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	N474 of 2004

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

JUDGE:	MADGWICK J
DATE:	1 JULY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. This is an appeal from a decision of Barnes FM dismissing an application for a review of a decision of the Refugee Review Tribunal (‘the Tribunal’) which was adverse to the appellant.  The appellant’s case before the Tribunal was that he feared persecution for reasons of his political opinion and/or membership of a particular social group in Bangladesh.  He received what appeared to have been quite favourable factual findings from the Tribunal.

2. The Tribunal accepted that in January 1990 the applicant became involved in a loose association of some nine friends in his village, which had a population of some 4,500.  They met irregularly, were not in any way formally registered as a group (political, religious, social or otherwise) and had no formal shared constitution, mandate or meeting place.  The group styled themselves the Sarajdikhan Humanitarian Organisation.  Their aims were to increase respect for women and children by stopping child marriages and polygamy.  They also wanted to encourage women to vote in elections, believing that many did not and that, in their stead, other people voted fraudulently, concealing their identities behind the ubiquitous veil.

3. The Tribunal further accepted that the group were warned, after a community consultative process, by the chairman of a large and powerful social group not to continue their efforts or to leave the area.  The Tribunal also accepted that there was an altercation in which the appellant was hit and one of his friends broke the leg of one of their fundamentalist Muslim assailants whereupon the friend was then killed in the ensuing melee.

4. It appears that the appellant left Bangladesh in May 1990 with a passport issued in his own name without any difficulty.  The appellant did not return to Bangladesh for some eleven years, having worked mainly in the Middle East during that time and only went back there, so he says, to visit his family and colleagues in secret.  He had no difficulty according to the Tribunal either entering or leaving Bangladesh in mid 2001 nor did he claim to have experienced any difficulty in the ten days or so that he spent there.

5. The Tribunal, as I read its reasons, had three bases for rejecting the appellant’s claims.  The first was:

   ‘The Tribunal has not been able to satisfy itself that the treatment he received was serious harm amounting to persecution or that this was for a Convention reason.’

6. The second was:

   ‘Nor has the Tribunal been able to satisfy itself that some 13 years later, when it appears that most of his friends have remained in the same village without difficulty for this period, there is a real chance that the applicant would experience serious harm amounting to persecution for a Convention reason if he returned to Bangladesh, either now or in the foreseeable future.’

7. The third reason was that, because of the appellant’s degree of education and facility with languages together with his ability to have obtained gainful employment in the Middle East for sixteen years except for six months up to May 1990, a period during which the subject organisation operated, he would not have any difficulties in living elsewhere in Bangladesh nor was there any claim that the difficulties he experienced operated other than at the local village level.

8. With all due respect and despite the lack of ability of the appellant to articulate a legal case, the finding that the treatment he received was not serious harm is very arguable as was the finding that that treatment was not for a Convention reason.  Likewise, it appears that the Tribunal appears not to have appreciated that it should consider what would happen if the appellant went back to the Bangladeshi village concerned and continued peacefully to advocate the political reforms which it was his Convention-protected right to do.  However, these matters need not be pursued because there was no question that the quite independent finding that the appellant would be safe elsewhere in Bangladesh and could readily and reasonably relocate, was legally open to the Tribunal.  Thus, the ultimate finding of the Tribunal cannot be legally impugned.

9. For these reasons, the conclusion of the learned Federal Magistrate that there was no jurisdictional error by the Tribunal which should sound in relief of the nature of any of the constitutional writs should not be disturbed.

10. The appeal is dismissed.  The orders of the learned Federal Magistrate are confirmed. 

11. The appellant is to pay the costs of the appeal assessed in the sum of $2,500.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            15 July 2004

The applicant appeared in person.
Counsel for the Respondent:	Mr Reilly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	1 July 2004
Date of Judgment:	1 July 2004