NAFD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 362

FEDERAL COURT OF AUSTRALIA

NAFD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 362 NAFD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1294 of 2002

MOORE J SYDNEY 24 APRIL 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1294 OF 2002

BETWEEN: NAFD

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 24 APRIL 2003

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 1294 OF 2002

BETWEEN: NAFD

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MOORE J

DATE: 24 APRIL 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT Introduction 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 16 October 2002, which affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refusing to grant the applicant a Protection Visa (Class XA) under the Migration Act 1958 (Cth) ("the Act"). An applicant for a protection (Class XA) visa is entitled to be considered against the criteria for each of its subclasses: 785 (Temporary Protection) and 866 (Protection). The criterion for the grant of such a visa is, subject to sudb AL of Div 3 of the Act, that the applicant is a person to whom Australia has protection obligations, under the Refugees Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol relating to the Status of Refugees of 31 January 1967 ("the Convention"). The Facts 2 The applicant is a citizen of Bangladesh. He arrived in Australia on 23 October 2000. On 13 November 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 2 January 2001 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant a protection visa and on 25 January 2001 the applicant applied to the Refugee Review Tribunal for a review of that decision. 3 The following is a summary of the applicant's account of his circumstances drawn from the reasons for decision of the Tribunal. The applicant 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 applicant 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 Jamat-e-Islami, and served as a general secretary of the school Chatra Sibir committee. After completing his SSC, the applicant was involved in business under the guidance of his parents. The financial position of applicant's family was "good enough for living" and his family was categorised as "wealthy middle class". 4 The applicant'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 applicant came to hate the Awami League and its "dependent foreign policy on India". In 1987 the applicant became an initial member of the Jamat-e-Islami under the leadership of Mr Hasmat Ullah. The applicant led demonstrations and campaigns against the then Ershad government to oust him from power. In 1989 the applicant was elected an executive member of the Jamat-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 Jamat-e-Islami. 5 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 Jamat-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 applicant was then oppressed and targeted by BNP activists. 6 In 1995 the applicant was elected as the executive member of the Jamat-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 applicant 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 applicant worked for the Jamat-e-Islami candidate. The Awami League's candidate won the elections and, subsequently, members of Jamat-e-Islami became the government's prime target. 7 The applicant became the organising secretary of the Jamat-e-Islami Kotowali thama. During this time, the Awami government frequently arrested many Jamat-e-Islami political activists. The applicant 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 applicant paid a bribe to stop the matter going any further. In 1998 the applicant 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). 8 The applicant 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 applicant feared persecution and felt his life would not be safe in Bangladesh and thus had no other alternative but to leave the country. 9 In 2001 elections were called in which the BNP, in coalition with Jamat-e-Islami, were elected. Today, Jamat-e-Islami is one of the governing parties in Bangladesh. However, the applicant feels he would not be safe if he returns to Bangladesh, because he has been "delisted" by his party for having left his country.