NBAC v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 364

FEDERAL COURT OF AUSTRALIA

NBAC v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 364

Migration Act1958 (Cth) s 426A, 441G, 474, 477
Judiciary Act 1903 (Cth) s 39B

NBAC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 60 OF 2004

HELY J
26 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 60 OF 2004

BETWEEN:	NBAC APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	26 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for review 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 60 OF 2004

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

JUDGE:	HELY J
DATE:	26 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh who entered Australia on 25 January 2001 on a student visa.  He returned to Bangladesh on 22 August 2001 and came back to Australia on 26 September 2001.  He has remained in Australia ever since. 

2. Notice of an Intention to Cancel the student visa for non-compliance with its conditions was given to the applicant on 24 February 2003.  On 11 March 2003 the applicant lodged an application for a protection visa.  His primary claim to refugee status is based on his asserted conversion from Islam to Christianity, an act which he performed in order to ‘maintain his relationship’ with his fiancée [Relevant Documents p 1].  He asserts that his conversion will result in persecution at the hands of Muslim fundamentalists should he return to Bangladesh.

3. On 15 April 2003 the application was refused by the Minister’s Delegate.  The applicant applied to the Refugee Review Tribunal (‘the RRT’) for a review of that decision.  The form of application included at page 45 and following of the Relevant Documents gave the applicant’s address for service as that of his adviser, a Migration Agent. 

4. On 7 July 2003 the RRT wrote to the applicant at the address nominated in the application for review, advising the applicant that the RRT was unable to make a decision in his favour on the papers,  and inviting him to attend a hearing before the RRT on 19 August 2003.  That letter was also sent to the applicant’s adviser at the address nominated in the application for review.  The letter which was sent to the applicant was returned ‘left address’.  On 11 July 2003 a Tribunal officer telephoned the applicant's adviser to confirm that the nominated address was the applicant’s residential address.

5. The Tribunal officer has prepared a file note of that conversation which includes the following [Relevant Documents p 53]:

   ‘According to the adviser the address is the same for RRT and the adviser.  He told me that he also sent a letter to the applicant about the hearing.  I asked the adviser to contact the Tribunal as soon as he would have any information.’

6. There is no evidence of any further contact between the applicant and/or his adviser on the one hand, and the Tribunal or its officers, on the other. Neither the applicant nor his adviser attended at the time and place scheduled for the hearing. Pursuant to s 426A of the Migration Act1958 (Cth) (‘the Act’), the RRT decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

7. In a decision made on 22 August 2003 and handed down on 18 September 2003, the RRT affirmed the decision not to grant a protection visa to the applicant.  The Tribunal’s reasons for that decision include the following [Relevant Documents p 62]:

   ‘The applicant claims to fear persecution for religious reasons.  He claims to be engaged to a Christian woman.  He claims he converted to Christianity to marry this woman.  He claims he will suffer harm at the hands of Muslim fundamentalists because of this conversion.  His claims are lacking in detail.  He has not said when it was he converted and what happened to him in Bangladesh as a consequence before he left the country.  He has not explained what happened when he returned to Bangladesh in August/September 2001.  He has not explained why it was that he waited more than two years after his initial arrival in Australia before applying for protection.  This delay does not on the face of it seem to be consistent with the actions one might reasonably expect of a person fearing persecution upon their arrival in the country to which they had fled.  I have not had the opportunity for an oral hearing to explore the detail of these matters with the applicant.  I also have some credibility concerns arising from the timing of his application for protection in view of the fact that it was made after the notice of intention to cancel his student visa.  In these circumstances I cannot be satisfied that he has a well founded fear of persecution for religious or any other Convention related reason.’

8. A letter was sent to the applicant and to his adviser bearing the date 18 September 2003 advising of this decision. On 20 January 2004 an application was made to this Court under s 39B of the Judiciary Act 1903 (Cth) for judicial review of the RRT’s decision. That application was made well outside the times fixed by s 477 of the Act, as the RRT’s decision is one which falls within the statutory description of ‘privative clause decision’ in s 474 unless the applicant establishes that the decision was vitiated by jurisdictional error.

9. An amended application for review was filed in the Court on 13 February 2004.  The only ground on which review is sought in the amended application is:

   ‘I was very ill on the day of my interview.’

10. There is no evidence that the applicant or anyone else on his behalf contacted the RRT to advise that the applicant was ill and unable to attend the hearing on 19 August 2003. Correspondence with the applicant and his adviser was conducted in accordance with s 441G of the Act. In addition, it is implicit in the ground of review upon which the applicant has relied that the applicant knew of the date fixed for the hearing before the RRT as he gave illness as his only excuse for not attending.

11. The RRT acted in accordance with the provisions of the Act and the applicant had been informed by the RRT that it proposed to proceed in the way in which it did. There was no unfairness in the manner in which the RRT conducted the review and the applicant has not established any jurisdictional error on the part of the RRT. After I refused the applicant’s request for adjournment of the proceedings I asked him what submissions he wished to put in support of his application for review. The only response which he made was:

    ‘Nothing.’

12. The application for review is therefore dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:            30 March 2004

The applicant appeared in person
Counsel for the Respondent:	J Jagot
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 March 2004
Date of Judgment:	26 March 2004