NAPW v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1754

FEDERAL COURT OF AUSTRALIA

NAPW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1754

NAPW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N806 OF 2004

EMMETT J
29 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N806 OF 2004

BETWEEN:	NAPW APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	29 JUNE 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

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

3.        Orders 1 and 2 be stayed until 23 July 2004.

4.Leave be granted to the appellant to file and serve on or before 7 July 2004, an affidavit as to the circumstances in which he became aware of the date of the directions hearing of 4 June 2004 and of the date of hearing of this appeal together with submissions as to:

a.the reasons why leave ought to be granted to amend the original application to include ground 3 of the notice of appeal;

b.        the substance of that ground; and

c.        whether Orders 1 and 2 should be rescinded.

5.Leave be granted to the respondent to file and serve on or before 14 July 2004 any submissions in response.

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	N806 OF 2004

BETWEEN:	NAPW APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	29 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant claims to be a citizen of Bangladesh.  He arrived in Australia on 18 November 2000 and, on 11 December 2000, he lodged an application for a Protection Class XA Visa under the Migration Act 1958 (Cth). On 28 February 2001 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) refused to grant a protection visa and, on 15 March 2001, the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision. On 4 April 2003 the Tribunal affirmed the decision not to grant a protection visa.

2. On 19 May 2003 the appellant filed an application under the Judiciary Act 1903 (Cth) for relief in this court in respect of the Tribunal’s decision, that decision having been handed down on 24 April 2003. The proceeding was remitted to the Federal Magistrates Court and, on 3 May 2004, Federal Magistrate Barnes ordered at the application be dismissed and that the appellant pay the Minister’s costs in the sum of $4,500.

3. On 18 May 2004 the appellant filed a notice of appeal to this Court from the orders of Federal Magistrate Barnes.  In the notice of appeal a note appears stating that the papers in the appeal were to be settled on Friday, 13 August 2004 at 9.30 am.  However, attached to the notice of appeal was a separate notice drawing attention to the fact that a directions hearing in the appeal would be held at 9.30 am on 4 June 2004.  When the matter came before me for directions on that day there was no appearance for the appellant.

4. I therefore gave directions for the preparation of the appeal for hearing.  I ordered that the relevant documents filed in the court below be taken as the Appeal Book; that the date for settlement of the Appeal Book be vacated; and the matter be listed for hearing at 10.15 am on 22 June 2004.  I also made directions concerning the filing and serving of written submissions.  When the matter came before me on 22 June 2004, there was no appearance for the appellant.  It was then ascertained that the appellant had not, in fact, been notified of the date for the hearing of the appeal as a consequence of some oversight.  I therefore provisionally listed the matter for hearing today, having vacated the hearing on 22 June 2004. The provisional nature of the fixture depended upon being able to communicate with the appellant. 

5. When the appeal was called on for hearing this morning the appellant indicated that he had not noticed the attachment to the notice of appeal drawing his attention to the directions hearing on 4 June 2004, and believed that he was not required to attend until 13 August 2004.  He asserted that it was only yesterday that he became aware of the appeal today.  He said that he did not become aware before then because he had moved his residence, and it was also when he received a telephone call that he thought to collect mail from his stated address for service.  There is no evidence before me to support those assertions.  However, the appellant appears without any legal representation and tells the Court that he does not understand English and has been assisted by an interpreter.

6. Having considered the reasons of the Tribunal and of the Federal Magistrate, there is no error apparent to me, either in the decision of the Tribunal or of the Federal Magistrate.  The grounds of appeal to this Court do not disclose a basis upon which the Magistrate should have interfered with the decision of the Tribunal or on which this Court should interfere with the decision of the Magistrate.  The grounds of the notice of appeal may be summarised as follows:

   1.The Tribunal fell into jurisdictional error in its finding that the appellant’s evidence was not true and the Federal Magistrates Court erred in not recognising that jurisdictional error.

   2.The Tribunal fell into jurisdictional error in finding that there was no real chance that the appellant would be persecuted by Muslims, and the Federal Magistrates Court erred in not recognising that error.

   3.The Tribunal failed to make findings in relation to the appellant’s claims in his original application, that he led a number of demonstrations against the government and that a number of times police raided his house with the aim of arresting him.  The Tribunal fell into jurisdictional error and the Federal Magistrates Court erred in not recognising that error.

7. In its reasons, the Tribunal observed that it was not satisfied that the appellant’s evidence regarding his claim to have been attacked in August 1998 was true.  The Tribunal was satisfied that the appellant was in India at the time he claims to have been attacked, and the Tribunal was not satisfied that someone else used his passport to go to India, as he claimed.  The Tribunal was satisfied that the assertion was a fabrication to explain away the problem with his claim.  The Tribunal considered that the appellant’s actions in thus attempting to mislead the Tribunal cast considerable doubts on his credibility.  The Tribunal found the appellant's evidence to be ‘generally unconvincing’. 

8. The Tribunal was satisfied that the appellant is a Bangladeshi national and that he is a Hindu.  He claimed that he was unwilling to return to Bangladesh as he feared he would be killed by ‘Awami League thugs’ or arrested and imprisoned by the government.  He claimed that the ‘Awami League thugs’ would want to harm him as they fear that he and his family might persuade many Hindus to support the Jatiya Party rather than the Awami League.  The Tribunal considered that, even if the appellant and his family are Jatiya Party supporters, it was not satisfied that the Awami League had any interest in harming him, or that the authorities would be unable or unwilling to protect him.

9. The Tribunal considered that it was significant that the appellant was able to leave Bangladesh on his own passport, which would indicate that the police had no immediate interest in arresting or detaining him.  The Tribunal accepted independent evidence that Hindus in Bangladesh have been suffering increasing harassment and harm from Fundamentalist Muslims, and that the new government has lessened the general level of religious tolerance that had prevailed in Bangladesh.  The Tribunal had regard to the fact that there are many millions of Hindus in Bangladesh and that, while some Muslims may want them gone, there did not seem to be evidence that Hindus generally are at risk of persecution.

10. In her reasons for dismissing the application, Federal Magistrate Barnes dealt with each of the grounds set out in the original application to this Court.  I do not consider that any error is demonstrated in her Honour's treatment of those grounds.  Her Honour deals extensively with those grounds in her reasons.  The grounds set out in the notice of appeal are grounds of complaint concerning the decision of the Tribunal, rather than the decision of the Federal Magistrate.

11. The Minister opposes leave being granted to the appellant to raise the ground now sought to be argued, but has filed written submissions as to the merits of the ground.  In his statement in support of the application for a protection visa, the appellant said, in the second last paragraph:

    ‘A number of times police raided my house aiming to arrest me.  Police forces affronted my father and other members of my family.  My situation compelled me to leave the country.  As a minority Hindu man I could not receive co-operation from any corner.  I left my very good business in Bangladesh.  I also left my children and wife there.’

12. The assertions in the first two sentences of that paragraph do not appear to have been taken up subsequently before the Tribunal.  The Minister accepts that those assertions were not expressly dealt with by the Tribunal but says that, while the events of the past may be relevant to the existence of a well-founded fear of persecution, they are not determinative of it.  The Minister contends that, according to the Tribunal, circumstances in Bangladesh had changed considerably since the time at which the appellant claimed to have led demonstrations and been sought after by the police.

13. The Tribunal observed that BNP-led government would not pursue false charges against the appellant laid by the Awami League government and, as I have said, the Tribunal concluded that the police had no immediate interest in arresting and detaining the appellant.  The Tribunal found that the Awami League had no interest in harming him, and that the authorities would be able and willing to protect him.  The Minister contends that it was not material to the Tribunal’s decision whether or not the appellant had been involved in demonstrations and had been sought by the police under a previous regime.  The Tribunal addressed the correct issue, and its failure to set out findings in respect of the two sentences to which I have referred does not reveal that it either misunderstood its task or did not properly fulfil it. 

14. There does not appear to be any substance in the new ground raised in the notice of appeal.  I am not disposed to grant leave to amend the original application to enable that issue to be raised at this stage.  It follows that the appeal should be dismissed with costs.  However, I am mindful of the assertions made by the appellant concerning his lack of knowledge of the hearing date.  I consider, therefore, that it is appropriate to order that any dismissal be stayed for a relatively short period of time to enable the appellant to file, if he is so advised, an affidavit indicating the circumstances in which he became aware of the hearing date and attaching written submissions demonstrating a basis upon which he should be given leave to amend the original application and demonstrating that there is some substance in the ground sought to be raised.

15. If after the Minister has responded, if she is so advised, I will consider, on the papers, whether it is appropriate to fix a further hearing and to consider rescission of any order for dismissal, and to consider rescission of any order for dismissal.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            19 January 2005

The Applicant appeared in person
Counsel for the Respondent:	J.D. Smith
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	29 June 2004
Date of Judgment:	29 June 2004