NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208

FEDERAL COURT OF AUSTRALIA

NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 Migration Act 1958 (Cth) s 426A Muin v Refugee Review Tribunal (2002) 190 ALR 601 referred to NADR of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 465 applied NAST v Minister for Immigration & Multicultural & Indigenous Affair [2004] FCA 86 affirmed NAST AND ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 235 OF 2004 BEAUMONT, MERKEL & HELY JJ 13 AUGUST 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 235 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NAST

FIRST APPELLANT

NASU

SECOND APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BEAUMONT, MERKEL & HELY JJ

DATE OF ORDER: 13 AUGUST 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal 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 235 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: NAST

FIRST APPELLANT

NASU

SECOND APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BEAUMONT, MERKEL & HELY JJ

DATE: 13 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a decision of a judge of the Court dismissing an application for review of a decision of the Refugee Review Tribunal ('the RRT') which affirmed a decision of the Minister's delegate refusing the appellants' application for protection visas (NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 86). The first appellant is the mother of the second appellant, who is an infant and was born in Australia. The second appellant's application for a protection visa was dependent on the success of the first appellant's application. 2 The first appellant is a citizen of Bangladesh who came to Australia on a visitor's visa. She claimed that she had a well-founded fear of persecution by reason of abuse by her husband and his family in Bangladesh. 3 By a letter dated 6 March 2003 the RRT informed the first appellant that it had considered the material before it in relation to her application for a protection visa, but was unable to make a decision in the first appellant's favour on the basis of that information alone. Accordingly, the appellant was invited to a hearing before the RRT to be held on 7 May 2003. The first appellant did not attend this hearing. Pursuant to s 426A of the Migration Act 1958 (Cth) ('the Act') the RRT decided to make its decision on the review without taking any further action to enable the appellants to appear before it. That was a course which the RRT was entitled to adopt. 4 In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing. The primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters. 5 In its reasons for decision, the RRT said that in view of the first appellant's failure to attend the hearing, the RRT was unable to satisfy itself that the first appellant had a genuine subjective fear of persecution or that she had experienced any particular mistreatment or harm (let alone who inflicted the harm or for what reason or whether it amounted to persecution for a Convention reason). As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason on return to Bangladesh, it was bound to affirm the decision of the Minister's delegate to refuse to grant to the first appellant a protection visa. 6 The first appellant did not file an outline of submissions in accordance with the directions given by Moore J on 5 May 2004. The first appellant appeared in person on the hearing of the appeal with the assistance of an interpreter. She did not present any oral submissions in support of the appeal. 7 The first appellant's Notice of Appeal does not disclose any intelligible ground of appeal from the decision of the primary judge. Reference is made in the Notice of Appeal to the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601, but as the appellant made no attempt before the primary judge to establish any facts analogous to those agreed in Muin it cannot assist her: NADR of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 465. 8 The Notice of Appeal also refers to an alleged failure on the part of the primary judge to consider 'the real state of affairs' of the first appellant and the failure on the part of the government of Bangladesh 'to protect civilians life'. This ground of appeal misconceives the role of the primary judge. As his Honour pointed out, correctly, it was for the RRT to make findings of fact. The role of the Court is confined to ensuring that the Tribunal has approached the matter lawfully. 9 The appeal should be dismissed. The first appellant should pay the respondent's costs of the appeal. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.