NAXD v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 218

FEDERAL COURT OF AUSTRALIA

NAXD v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 218

NAXD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1698 of 2003

MADGWICK J
23 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1698 of 2003

BETWEEN:	NAXD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	23 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant is to pay the respondent’s costs, which I assess in the amount of $4,500.

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	N1698 of 2003

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

JUDGE:	MADGWICK J
DATE:	23 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. This is an application purportedly brought under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) (‘the Act’) which seeks judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) given on 11 September 2003 affirming a decision of the respondent’s delegate to refuse the applicant a protection visa.

2. The applicant is a national of Bangladesh who is an adherent of the Hindu religion.  He arrived in Australia on 12 May 2002 and within a few days lodged an application for a protection visa.  His application was refused and he sought a review of that decision by the Tribunal.  The applicant was represented before the Tribunal first by a Mr Zahirul Hoq Mollah, said by the applicant to be a Muslim, and later by another migration agent Jhoti Bharati Consultancy, apparently having a Hindu principal.  When the applicant attended the hearing before the Tribunal on 25 June 2003 he was afforded the services of an interpreter.  He says he is an engineer.  He claims to have three post-secondary qualifications including a degree in ‘social science’. 

3. The applicant arrived in Australia on a Bangladeshi passport issued in his own name in Dhaka on 25 November 1997.  He had previously travelled to India for a short period in March 2002.  He came to Australia, apparently, in circumstances which involved someone sponsoring him.  His visa was issued in Dhaka in his own name on 9 May 2002. 

4. His claim was that he had been involved in politics as a supporter and member of the Awami League and feared persecution at the hands of the rival Bangladesh National Party (‘BNP’) and Islamist persons who, like the BNP, are opposed to the Awami League which, among other things, professes secularism.  He also claimed to fear persecution as a member of a club supporting Taslima Nasrin.  Ms Nasrin is a feminist author and social reformer who has earned the wrath of Islamists and other less extreme but traditionalist Muslims, to the point that she has been sentenced in absentia, to a prison sentence and has been the subject of a religious fatwa which apparently authorises the faithful to do her harm.  She is herself a Muslim. 

5. No claim was originally made by the applicant, as I understand it, to fear persecution on religious grounds because of his adherence to the Hindu faith.  However, such a claim was made to the Tribunal Member, who went on to consider it.  The Tribunal Member disbelieved the applicant on almost all material scores and gave long and detailed reasons for such disbelief.

6. The grounds of the applicant’s application to the Court suggest that there was no evidence or other material to justify the making of the Tribunal’s decision, that the Tribunal did not ‘exercise the procedures’ required to be observed by the Act or regulations made under it in connection with the making of the decision, that the Tribunal decision was not made, ‘on authentic information’ and that the Tribunal had used inauthentic country information in making its decision. In his written submissions the applicant, who was unrepresented before the Court, referred entirely to factual matters and concluded with a short allegation that the Tribunal had failed to consider his case by ‘being biased and prejudiced’.

7. It is to be borne in mind that the applicant has chosen, apparently otherwise than for want of funds, not to be legally represented.  That is his absolute right but he may, as is usually the case in such circumstances, have precluded the best light being cast on his case by that course of action.  Nevertheless, and with that qualification, it has to be said that there is no substance whatever in any of the legal criticisms that might be deduced or imagined, so far as I can imagine them, from the applicant’s written submissions and short oral submissions.

8. The Tribunal Member approached his task, if I may say so, with considerable care and skill and appears to me to have had a clear and open-minded view of the task before him.  He noted that some of the applicant’s material derived from ‘boilerplate’ text employed by the applicant’s first migration agent in a number of other cases, but he allowed for the possibility that, as that agent was prima facie a fraud who should not be a migration agent, he may stupidly and corruptly have misrepresented the applicant’s position.  Thus, in fairness to the applicant, the Tribunal Member thought that the proper approach was to consider what emanated from the applicant without the dubious benefit of his involvement with that agent, except insofar as the applicant chose to adopt any of the material produced and advanced on his behalf by that agent.  Notwithstanding that the Tribunal Member pointed out his reservations about the material emanating from that agent and why, the applicant chose to say that the migration agent had done no more than reproduce what the applicant had told him.

9. The Tribunal Member, with great care, dissected the applicant’s claims, compared claims made by him at different times, compared the claims with independent country information (as to which the Tribunal Member apparently approached his task with due caution) and concluded that no reliance could be placed on the applicant’s story, except insofar as it indicated that he had lived stably and prosperously in Bangladesh until he came here.

10. As far as I can see the Tribunal Member provided compelling justifications for his conclusions.  As I approached his reasons for decision I initially had concerns that the Member may not have raised with the applicant the matters that concerned him, but from the closing pages of the reasons it is quite clear that he did and no complaint is made of any denial of an opportunity to be heard or of any other procedural unfairness, apart from a bare assertion that the Tribunal Member was biased and prejudiced.  There is no justification whatsoever for those serious allegations and they should never have been made.

11. There is no substance in the complaint that there was no evidence or other material to justify the making of the decision.  The Tribunal Member gave chapter and verse for the material and considerations upon which he relied in coming to his final views and as far as I can determine, did not overlook any material adverse to the conclusions to which he came.

12. Absent some specific suggestion from the applicant, of which there was none, I cannot see that the Tribunal failed to observe any procedure that was required by the Act or regulations, far less failed to observe any such procedure which might have involved jurisdictional error.

13. The applicant’s complaints otherwise concern the facts.  I see no legal error in the Tribunal Member having come to the factual conclusions that he did and it is a matter, I may say, in which I feel no unease about those conclusions, whether any such unease might have had a legal consequence or not.

14. For these reasons the application will be dismissed.

15. The applicant is ordered to pay the respondent’s costs, which I assess in the sum of $4,500.

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

Associate:

Dated:             10 March 2004

The applicant appeared in person.
Counsel for the Respondent:	Ms McNaughton
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 February 2004
Date of Judgment:	23 February 2004