NAFD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 269

FEDERAL COURT OF AUSTRALIA

NAFD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 269 NAFD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 579 OF 2003 SACKVILLE, SELWAY & LANDER JJ SYDNEY 26 NOVEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 579 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NAFD

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: SACKVILLE, SELWAY & LANDER JJ

DATE OF ORDER: 26 NOVEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the respondent. 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 579 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NAFD

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: SACKVILLE, SELWAY & LANDER JJ

DATE: 26 NOVEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT 1 This is an appeal from a judgment of a Judge of this Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("Tribunal") handed down on 11 November 2002. The Tribunal affirmed a decision of a delegate of the respondent ("Minister") refusing to grant the appellant a protection visa. 2 The appellant is a Bangladeshi citizen. He arrived in Australia on 23 October 2000, and on 13 November 2000 lodged an application for a protection visa. That application was refused by the delegate on 2 January 2001 and, as noted, the Tribunal subsequently affirmed that decision. 3 The appellant's claims were summarised by the primary Judge as follows: "The [appellant] was born in 1970 in the district of Sylhet in Bangladesh to a Muslim family with a strong adherence to Islamic rituals and culture. His family was very strict in their Islamic beliefs and his religious feelings entered 'into his roots'. He would always obey the commandments of Allah. In 1986 the [appellant] obtained his secondary School Certificate (SSC). When at school, he was involved in student politics under the banner of the Islamic Chatra Sibir, the student wing of Jamet-e-Islami, and served as a general secretary of the school Chatra Sibir committee. After completing his SSC, the [appellant] was involved in business under the guidance of his parents. The financial position of [the appellant's] family was 'good enough for living' and his family was categorised as 'wealthy middle class'. The [appellant's] family opposed the creation of Bangladesh. As a result, when Bangladesh gained independence, his family house was burnt several times and looted. He heard from the elders of his family that his father had been detained for a long time. As a result of what he heard, the [appellant] came to hate the Awami League and its 'dependent foreign policy on India'. In 1987 the [appellant] became an initial member of the Jamat-e-Islami under the leadership of Mr Hasmat Ullah. The [appellant] led demonstrations and campaigns against the then Ershad government to oust him from power. In 1989 the [appellant] was elected an executive member of the Jamet-e-Islami of the Kotowali thama (constituency) this being his first recognition as a leader in the local area. He became one of the leading activists of this party and had a 'great role' in the movement in 1990 which ousted president Ershad from power. His performance was outstanding and he earned fame as a leader of Jamet-e-Islami. In December 1990, the Nationalist Party (BNP) won a majority of seats in the parliament and formed government with the help of Jamat-e-Islami, but this coalition did not last long because the BNP government did not listen to Jamet-e-Islami's legitimate demands and ignored them as coalition partners. Many of their political leaders and activists were tortured and detained by the BNP government. Finally, two and a half years later, their party left the coalition and all parliament members resolved to oust Begum Zia from power. The [appellant] was then oppressed and targeted by BNP activists. In 1995 the [appellant] was elected as the executive member of the Jamet-e-Islami district committee. He led many demonstrations against the then BNP Government, demanding that a caretaker government be installed. These demonstrations led to the resignation of Begum Zia who was compelled to transfer power to a caretaker government. The [appellant] took part in disruptive processions and the destruction of public property. Around this time, false charges relating to civil disorder were laid against him. In 1996, during the election campaign, the [appellant] worked for the Jamet-e-Islami candidate. The Awami League's candidate won the elections and, subsequently, members of Jamet-e-Islami became the government's prime target. The [appellant] became the organising secretary of the Jamet-e-Islami Kotowali thama. During this time, the Awami government frequently arrested many Jamet-e-Islami political activists. The [appellant] was arrested twice. The first time he was detained for 16 days and he was detained again two months later. He was taken to court once but was then released on bail. His case did not proceed because the [appellant] paid a bribe to stop the matter going any further. In 1998 the [appellant] was elected as an executive member of the Jamat-e-Islami district committee and got involved with the organisation of various demonstrations against the Awami regime in which the police assaulted the demonstrators (backed by the Awami League). The [appellant] lived in Bangladesh for a further period of four years during which time he had not been the subject of any police attention. He was able to obtain a passport, and departed several times to Nepal and India. In October 2000 the [appellant] feared persecution and felt his life would not be safe in Bangladesh and thus had no other alternative but to leave the country. In 2001 elections were called in which the BNP, in coalition with Jamet-e-Islami, were elected. Today, Jamat-e-Islami is one of the governing parties in Bangladesh. However, the [appellant] feels he would not be safe if he returns to Bangladesh, because he has been 'delisted' by his party for having left his country." 4 We also adopt his Honour's summary of the Tribunal's reasons: "It accepted that the [appellant] has been a member of the Chatra Sibir, the youth wing of Jamet-e-Islami and that he had been an activist at the local level. The Tribunal accepted that the [appellant] had been involved with an opposition political grouping and was detained by the police having been physically abused. However, the Tribunal was not satisfied that there had been charges laid against him, given that on the [appellant's] own evidence, he had been detained by the police on two occasions but had then been released. The [appellant] had lived in Bangladesh for some five years before he left for Australia. Moreover, the [appellant] had been able to obtain a passport and depart Bangladesh several times (to Nepal, India and Australia) through immigration and security checks without the authorities detaining him, despite his claim that they were seeking him. In relation to the [appellant's] claims that he fears persecution and is afraid that his life would not be safe in Bangladesh, the Tribunal acknowledged that political violence continues in Bangladesh. However, the [appellant] had been absent from Bangladesh for some years, during which his political opponents lost the elections and the [appellant's] own party is now part of the coalition government. The Tribunal found that the [appellant's] claim that his own party would now turn on him for having left the country was unconvincing, and did not accept this to be the case. In the circumstances of the [appellant's] case, the Tribunal was not satisfied, based on the totality of the evidence before it, that there was a real chance the [appellant] would be harmed now or in the foreseeable future if he returned to Bangladesh. Overall, the Tribunal was not satisfied that the [appellant] had a well-founded fear of persecution for a Convention reason." 5 Before the primary Judge, the appellant, who represented himself, filed an amended application. The grounds of review were not easy to follow, but included claims that the Tribunal had been affected by actual bias and that the case was very similar to the recent High Court decision in Muin v Refugee Review Tribunal (2002) 190 ALR 601 and so involved a denial of procedural fairness. 6 His Honour observed that the appellant had not been able in any meaningful way to explain how the alleged errors were revealed by the Tribunal's decision or any other material before the Court. His Honour concluded that there was no evidence which might warrant a finding of actual bias. Nor had any factual basis been shown for suggesting that the circumstances of the case were analogous to the agreed facts upon which the High Court upheld the claim in Muin v RRT that the plaintiff had been denied procedural fairness. Accordingly, his Honour dismissed the application. 7 The appellant has filed written submissions in support of the appeal. These submissions repeat the claim that the Tribunal denied him procedural fairness and cite Muin v RRT. The appellant has not, however, pointed to any act or omission on the part of the Tribunal that could constitute a denial of procedural fairness. Nor has he identified how he might have been misled by anything done or not done by the Tribunal. In short, the primary Judge was correct to hold that the factual basis for the application of Muin is plainly wanting in the present case. 8 The appellant asserted in the written submissions that the Part B documents identified by the delegate were not provided to the Tribunal. There is, however, nothing to support this assertion. Nor is there anything to suggest that the Tribunal failed to take into account any of this material that may have been favourable to the appellant, even assuming that such a failure could constitute jurisdictional error. 9 The written submissions repeat the claim that the Tribunal acted in bad faith but fail to explain in what respect this was so. There is nothing to indicate that the Tribunal did anything other than consider properly the appellant's case on its merits. 10 At the hearing of the appeal, the appellant repeated some of the claims made to the Tribunal. Nothing he put to the Court is capable of suggesting jurisdictional error on the part of the Tribunal, nor that the primary Judge erred in reaching the conclusion he did. 11 The appeal must be dismissed, with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sackville, Selway & Lander.