FEDERAL COURT OF AUSTRALIA NAIA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 249 NAIA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 537 OF 2003 WHITLAM, MOORE & KIEFEL JJ 7 NOVEMBER 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 537 OF 2003 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NAIA APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGES: WHITLAM, MOORE & KIEFEL JJ DATE: 7 NOVEMBER 2003 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 On 5 November 2003 we dismissed, with costs, an appeal from a judgment of a single judge of this Court of 11 April 2003. These are our reasons. 2 The appellant is a citizen of Bangladesh. He arrived in Australia on 4 October 2000. On 20 October 2000 he applied to the Department of Immigration & Multicultural & Indigenous Affairs for a protection (class XA) visa. On 14 November 2000 a delegate of the Minister refused to grant him the visa. On 17 November 2000 the appellant applied to have the decision of the delegate reviewed by the Refugee Review Tribunal ('the Tribunal'). 3 On 21 November 2002 the Tribunal heard evidence from the appellant. It affirmed the decision of the delegate on 22 November 2002. The decision of the Tribunal was handed down on 18 December 2002. The appellant subsequently applied to the Federal Court for judicial review of the Tribunal's decision. The primary judge heard the application for review on 11 April 2003. Background 4 In summary, the appellant's claims are as follows. He was born in Munshigonj (about 30 km from Dhaka) in Bangladesh in December 1969, and has lived in Munshigonj for most of his life. He is a Moslem, and has had 10 years of education at Abdullahpur Multilateral High School. 5 The appellant's family was politically active, and in 1986 when he began his senior studies at Horaganga College he became involved in a student wing of the Bangladeshi Nationalist Party ('BNP') known as Jatiyabadi Chhatradal. He began to lead demonstrations in his area against the Bangladeshi government (led by President Ershad). As a result of his role in these demonstrations, the appellant was targeted by members of an opposing political party, who tried to kill him. Fearing for his life, he left Horaganga College and did not complete his senior studies. 6 The appellant began working in a business in 1987, and by his own account was reasonably successful. In 1989, the movement against President Ershad became stronger. The appellant took an active role in the movement, and in 1990 President Ershad resigned. That same year the appellant was elected as the general secretary of the Jatiyabadi Jubo Dal Tongibari Thana (the youth wing of the BNP). In 1991, Bangladesh held national parliamentary elections. The appellant campaigned for a BNP candidate, who won by defeating the local Awami League candidate. The BNP won government after forming a coalition with another party, the Jamaat-e-Islami. The appellant took part in a number of development works in his district. The political situation in Bangladesh soon deteriorated, and the BNP fell out with a number of its political allies. General unrest ensued. The appellant was active against one of the opposing parties, the Awami League. He made a number of speeches against the party. In 1995 the appellant was elected to an executive position in his district committee of the BNP. His work for the party subsequently expanded to a district level. 7 In the parliamentary elections of 1996, the appellant again worked for the local BNP candidate. The BNP candidate defeated his main rival (from the Awami League), however the BNP did not receive enough votes to form government. The Awami League became the new ruling party of Bangladesh. After the Awami League formed government, the appellant began to be the subject of sustained aggression and attacks by Awami League activists in his local region. In at least one incident, he was beaten severely. The police did nothing to prevent these attacks or prosecute those responsible. 8 In 1998 the appellant was elected as joint secretary of his regional BNP committee. On separate occasions in January and February, the appellant and other BNP followers were attacked by Awami League activists during political rallies. The January incident left him hospitalised for two weeks, while the February incident resulted in a number of false charges being brought against him by the police, who supported the Awami League activists. The appellant felt he could no longer remain in Mushingonj. He went into hiding in February 1999, and left Bangladesh in October 2000. He left his wife and family behind, and obtained a false passport from an agent in Dhaka. He used this passport to depart Bangladesh safely and enter Australia. The appellant claims that even though the BNP are now back in power in Bangladesh, there are people within the party who are against him, and the party is very different now to when he left. The decision of the Refugee Review Tribunal 9 Under a heading in its reasons entitled 'Findings and Reasons', the Tribunal assessed the appellant's claims using the evidence he had given (both orally and in written submissions) and independent country information on Bangladesh. It made a number of adverse findings concerning the appellant's claims and creditability. It found that he used a false passport to enter Australia not because he feared persecution, but because he wanted a passport containing an Australian visa. It found that there were a number of inconsistencies in the appellant's account of his assaults at the hands of his political opponents, and that he had not provided any evidence to support these claims, or the claims of the false charges against him. The Tribunal also expressed doubts about his time in hiding. In relation to the appellant's time in hiding, the Tribunal said: '[The appellant] has claimed that after 1 January 1999 he was in hiding. However, in regard to this claim, [the appellant]'s evidence is so confused and contradictory, that the Tribunal cannot be satisfied that [the appellant] has been truthful about this claim. For example: · [The appellant] initially gave evidence that he was on hiding for four months until about March or April 1999. · [The appellant] then modified this claim and stated that he was in hiding for seven or eight months [until August 1999]. · [The appellant] later made another modification stating that he was still in hiding in February 2000. Further [the appellant] initially gave evidence he was not involved in political activities after January 1999 and then he changed his evidence and stated that he was involved in a meeting in February 2000. He then made a further medication to his evidence stating that he was involved in political activities the whole time he was in hiding. In light of [the appellant]'s readiness to modify his claims in such a blatant manner, the Tribunal cannot be satisfied that [the appellant] has been truthful about how long he was "in hiding" or that he was "in hiding" at all.' The Tribunal generally noted its 'grave adverse credibility concerns' in relation to the appellant and a number of his claims. 10 The Tribunal did accept that the appellant was a citizen of Bangladesh, and that he was a member of the BNP. However, it found that the appellant was only a low-level organiser, and noted independent country information from Bangladesh stating that low-level organisers were very unlikely to be subject to harassment upon their return to Bangladesh. 11 After considering the evidence as a whole, the Tribunal determined that the appellant was not a person to whom Australia owed protection obligations. The decision at first instance 12 In his reasons, the primary judge identified the grounds on which the appellant relied in support of his application for review at [6]: '(i) the absence of consideration by the RRT of "the current situation prevailing in Bangladesh"; (ii) the ineffectiveness of s 474 of the Migration Act 1958 (Cth) "… to oust judicial review of an administrative decision"; (iii) the need for the RRT to take into account "the possibility that alleged past events occurred even though it finds that those events probably did not occur", and not to "foreclose reasonable speculation about the chances of the hypothetical future event occurring"; (iv) dictum of Von Doussa J in NAAV v Minister for Immigration and Multicultural Affairs (2000) FCAFC 228 at [675]; (v) the behaviour of the "current regime in Bangladesh"; (vi) the failure of the RRT to consider the merits of the case; and (vii) his continuing fear of persecution upon returning to Bangladesh.' 13 His Honour then set out the contentions of counsel for the Minister. Those submissions addressed the findings of the Tribunal in relation to each of the appellant's claims. His Honour noted that the appellant had not addressed any of those findings or identified any error by the Tribunal, and his Honour indicated that the findings made by the Tribunal were open to it on the evidence it had before it. 14 The appellant also claimed that the Tribunal had not considered his fear of Jamaat-e-Islami in relation to his ability to return to Bangladesh. Counsel for the Minister made a submission, which was accepted by the primary judge, that the Tribunal considered the question briefly and gave the appellant a number of opportunities to state any further concerns he may have in relation to the political situation in Bangladesh. His Honour determined that the Tribunal's findings in this regard were open to it on the evidence. 15 The primary judge concluded by dismissing the application. Issues in the appeal 16 The appellant filed a Notice of Appeal on 1 May 2003. What passes as grounds of appeal are as follows: '1. The Honourable trial judge failed to find that the Tribunal made errors in regards to the material facts of the case. 2. The Tribunal did not take any reasonable steps to finalise the applicant's case; rather the Tribunal made a decision on the basis of the preconceived ideas about the country's situation. As a result the applicant was deprived of attaining procedural fairness. The Tribunal did not make any bona fide attempts to accesses [sic] the true facts and circumstances that surrounded the claim. 3. The decision was taken by the Tribunal on the basis of various information in relation the country where from the applicant came, but the tribunal did not provide an opportunity to comment on materials, which the Tribunal relied on its decision. Thus the tribunal made an error in regards to procedural fairness. The Honourable trial judge did not take in into account errors and omissions by the Tribunal.' 17 During the hearing, the appellant furnished the Court with written submissions. They alleged matters not raised below indicating actual bias of the Tribunal. In relation to the first ground of appeal, the primary judge indicated that the findings made by the Tribunal were open to it on the evidence before it. It is not the role of this Court at first instance, or on appeal, to generally review findings of fact made by the Tribunal. 18 The second ground of appeal alleges a lack of bona fides on the part of the Tribunal. Counsel for the respondent referred the Court to the comments of a Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 at [21]: '…want of bona fides will only be made out in such circumstances where whim or fancy has consciously been preferred to considered judgment.' It is not evident to us from reading the decision of the Tribunal that there was a lack of bona fides nor that there was actual bias. 19 The third ground of appeal addresses the availability of general country information used by the Tribunal, on which the appellant says he did not have the opportunity to comment. This ground was not raised before the primary judge. The appellant has not established an evidentiary foundation to make good this allegation. 20 We are satisfied the primary judge was correct in reaching the conclusion he did, namely, that no ground for review has been made out. Accordingly, the appellant has failed to demonstrate any error on the part of the primary judge or the Tribunal and for this reason we concluded the appropriate order was to dismiss the appeal with costs. I certify that the preceding twenty- (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam, Moore & Kiefel . Associate: Dated: 7 November 2003 The appellant appeared in person. Counsel for the Respondent: M N Allars Solicitor for the Respondent: Clayton Utz Date of Hearing: 5 November 2003 Date of Judgment: 5 November 2003 Date of Reasons: 7 November 2003