FEDERAL COURT OF AUSTRALIA NABU v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1580 NABU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1281 OF 2002 LINDGREN J 12 DECEMBER 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1281 OF 2002 BETWEEN: NABU APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE OF ORDER: 12 DECEMBER 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's 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 1281 OF 2002 BETWEEN: NABU APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: LINDGREN J DATE: 12 DECEMBER 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 23 August 2002 the Refugee Review Tribunal ("the Tribunal") affirmed a decision of a delegate of the respondent ("the Minister") not to grant the applicant a protection visa. That decision was handed down on 11 September 2002. On 3 October 2002 the applicant filed an application in this Court in proceeding N 1047 of 2002 seeking review of the Tribunal's decision. The applicant filed that application himself and stated his address on it as being 1/5 Toxteth Road, Glebe NSW 2037. 2 In that application the applicant stated the grounds of review as being that the Tribunal had not followed certain procedures required by the Migration Act 1958 (Cth) ("the Act"), that the Tribunal's decision was affected by an "error of law" and "jurisdictional error", and that there was no evidence or other material to justify the making of the decision. The application was supported by an affidavit of the applicant sworn 2 October 2002, which, in substance, stated facts directed to showing that the applicant had a good case on the merits. 3 The return date on the application was 23 October 2002. On that occasion the applicant did not appear. Wilcox J dismissed the application with costs and ordered that any application to rescind the order of dismissal was to be made by notice of motion supported by an affidavit explaining the applicant's absence on 23 October 2002, and demonstrating the existence of an arguable case. There are no written reasons of his Honour. It is clear that the power of dismissal was available under either O 10 r 8(1)(b) or O 32 r 2(1)(c) of the Federal Court Rules (the application, being in standard form, gave notice that on 23 October 2002 the application might be "heard" or a direction might be given for the further conduct of the proceeding). 4 On 5 November 2002 the applicant filed a notice of motion seeking an order setting aside Wilcox J's orders of 23 October 2002. That notice of motion was supported by an affidavit of the applicant sworn 4 November 2002. In the affidavit he said that he had not been aware of the hearing date of 23 October 2002, had been "severely sick" at that time, and had not been able to "communicate with the rest of the world for some weeks". He stated in his affidavit that although he had provided his telephone number "to the authority", neither this Court nor "the government solicitor" made any attempt to call him. The affidavit did not purport to demonstrate "the existence of an arguable case" as required by the order of his Honour. 5 The motion was returnable before Wilcox J on 20 November 2002. The applicant appeared unrepresented but aided by an interpreter. His Honour dismissed the motion with costs. There are no written reasons of his Honour. There has been some cross-examination of the applicant today as to what transpired on that occasion. The applicant agreed in cross-examination today that his Honour asked him what was his complaint in relation to the decision of the Tribunal. The applicant said that he replied that he needed more time to work out the answer to that question. 6 On 3 December 2002 the applicant filed the application which commenced this present proceeding. By that application the applicant seeks an extension of time in which to file and serve a notice of appeal from the judgment of Wilcox J given on 23 October 2002 in proceeding N 1047 of 2002. The application is supported by an affidavit of the applicant sworn 3 December 2002. In the form of draft notice of appeal attached to the applicant's affidavit, the appeal is said to be from both of his Honour's judgments of 23 October 2002 and 20 November 2002 in proceeding N 1047 of 2002. 7 Today, again, the applicant is unrepresented, but is aided by an interpreter. Both the order of 23 October 2002 and that of 20 November 2002 are interlocutory and I treat the present application as an application for leave to appeal. Today the applicant produced to the Court a "tax invoice" from "The Sydney Private Hospital" demonstrating that he was admitted to hospital on 27 November 2002 for a "right myringoplasty". There is no medical report but the applicant has stated from the Bar table that he had an operation on his ear and is to have further treatment for it in the future. However, he was able to hear and respond to all that was said to him in the course of the hearing today. Initially he sought an adjournment of the hearing but then agreed to its going ahead. I would not have granted an adjournment. I would not have accepted that due to ill health or a disability, the applicant was unable to participate fully in today's hearing. 8 In his affidavit of 3 December 2002 supporting his present application, the applicant states that he wrongly stated his address in his application filed on 5 October 2002 in proceeding N 1047 of 2002 as 1/5 Toxteth Road, Glebe. He said that this was a typographical mistake and that his correct address was, and is, 5/1 Toxteth Road, Glebe. In the course of cross-examination, however, the applicant acknowledged having received a letter written to him by Blake Dawson Waldron, the solicitors for the Minister, addressed to him at 1/5 Toxteth Road, Glebe advising him that his case was to be before the Court on 23 October 2002 at 9.30am and that it was important that he be at the Court at that time. As well, in cross-examination he acknowledged having known, on the basis of the application form itself, that his application was returnable on 23 October 2002. Finally, in cross-examination he said that on 23 October 2002 he had attended at a doctor's surgery in Ashfield and had asked a friend to telephone the Court to advise the Court that he could not attend the hearing that day, but that the friend had failed to do so. The applicant agreed he had not mentioned this to Wilcox J on the hearing on 20 November 2002, although his Honour had asked him on that occasion why he had not attended on 23 October 2002. 9 I have no doubt that the applicant knew throughout that his application in proceeding N 1047 of 2002 was to be before the Court on 23 October 2002. 10 It seems to me that what is of greatest importance for today's purposes is that the applicant has not been able to point to any aspect of the Tribunal's reasons for decision which would support an appeal. A Full Court should not be troubled with an appeal in this case because, on the evidence before me, an appeal would certainly fail. 11 After examining in some detail the claims and evidence relied on by the applicant, as well as country information relating to Bangladesh, the Tribunal stated its "Findings and Reasons" as follows: "At the hearing, the applicant acknowledged that the Awami League government which was in office when he departed and from whom he had feared harm, had now been replaced in government by his own party, the BNP. At the hearing, the applicant claimed that if he now returns to Bangladesh he will still suffer harm from that faction of the BNP, which had been instrumental in forcing president Chowdhury to resign. He further claims that he is still being pursued for the 'false case' lodged against him. The Tribunal is prepared to accept that the applicant is a BNP party member and that he was an activist at the local level. The Tribunal has considered the applicant's claim that he was being pursued by the authorities ever since 1996 when a false case had been lodged against him. In the light of the fact that he had remained in Bangladesh for a further four years, and was able, in January 2000, to procure a passport in his own name from the authorities, the Tribunal does not accept that such a false case was ever lodged against him as he claims. In making the finding that the authorities were not pursuing him, the Tribunal has considered his evidence that the authorities could not find him because he was hiding in the city. However the Tribunal finds that this contradicts his claim that he met on a weekly basis with Mr Chowdhury in his village and finds the applicant fabricated this evidence of having been in hiding in the city. The Tribunal further does not accept that he would have had his father procure his passport, as he claims, or that he was able to gain it through bribery, since he would, if he had really been being pursued by the authorities, not procured such a passport at all, since he actually used a false passport to leave Bangladesh. The Tribunal finds that his use of a false passport to depart the country was because this passport had a valid visa for NZ and was not because he was being sought by the authorities. In the light of these findings, the Tribunal cannot be satisfied as to the veracity of any of his claims with regard to any BNP-Awami League violence that he may have been involved in, or suffered from, prior to his departure from Bangladesh. The Tribunal further does not accept his claim that, as a member of just one rural BNP constituency, he had any significant relationship to Mr Chowdhury. Indeed, the applicant claims in his own evidence that he is merely 'small fry'. In the light of the independent evidence, which the Tribunal accepts, that Mr Chowdhury has been deposed through conflict at the highest levels of the party, and in the absence of any independent evidence that this has resulted in any threat of harm to people associated with Mr Chowdhury, particularly 'small fry' such as the applicant, the Tribunal finds as fanciful his claim that he might be in any harm from members of his own party should he return to Bangladesh. In the circumstances of the applicant's case, the Tribunal is not satisfied by the totality of the evidence before it, that there is a real chance the applicant would be harmed if he returned to Bangladesh. Overall, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason." 12 Plainly, the Tribunal's decision adverse to the applicant was based squarely on its analysis of the facts, and its assessment of him as a witness. 13 In any event, the "privative clause" found in s 474 of the Act would be determinative against the success of any appeal. 14 In my opinion, Wilcox J's discretion was properly exercised on 23 October 2002 and again on 20 November 2002, and a case for the granting of leave to appeal is not made out. For the above reasons, the application should be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 20 December 2002 The Applicant appeared in person Solicitor for the Respondent: Ms S Hanstein of Blake Dawson Waldron Date of Hearing: 12 December 2002 Date of Judgment: 12 December 2002