NAKD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 450

FEDERAL COURT OF AUSTRALIA

NAKD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 450 NAKD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N178 of 2003

MADGWICK J 29 APRIL 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N178 OF 2003

BETWEEN: NAKD

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE OF ORDER: 29 APRIL 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is to 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 N178 OF 2003

BETWEEN: NAKD

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK J

DATE: 29 APRIL 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 This is an application, purportedly made under s 39B of the Judiciary Act 1903 (Cth), for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 14 January 2003. That decision affirmed an earlier decision of a delegate of the respondent Minister to refuse the applicant's application for a protection visa. 2 The applicant arrived in Australia on 19 September 2000. He lodged his application for a protection visa on 12 October 2000. His claim, initially, was that he was a political refugee because he actively supported the Bangladesh National Party ("the BNP") and was liable to persecution at the hands of Awami League supporters. 3 At the time he made that application, the Awami League still held power nationally in Bangladesh, having been elected in 1996. The League had not held political office, according to the applicant, from 1975 and on gaining power, League members were intent on gaining revenge on their political opponents. 4 The applicant was born in 1962 and joined the BNP in the late 1980s or early 1990s and among other things had led demonstrations against the Awami League before its election in 1996. The Tribunal Member accepted that in June 2000 the applicant was a BNP supporter who "was beaten up by Awami League thugs". By the time the matter came for hearing before the Tribunal, the Awami League had lost office, the BNP having been elected in 2001 with a very substantial parliamentary majority. The Tribunal Member's reasons are notable for their brevity, but I infer that at the hearing the Tribunal Member naturally enough questioned the applicant as to why he would not now be safe given the change of government and further, in response to some such questioning, the applicant said, as the Tribunal Member recounted, that: "there are two factions within the BNP and he belongs to the losing faction." 5 A further part of the applicant's case before the Tribunal, was that he feared false conviction on charges of engaging in political violence, brought against him by, or at the behest of, Awami League supporters. He told the Tribunal that he believed that the BNP government would continue with those false charges and referred to the present BNP government as having been prepared to use the Army "against the people". 6 In one of the few passages that gives any inkling of the Tribunal Member's thought processes, the Member said: "The Applicant was asked how he managed to leave Bangladesh with serious charges outstanding against him. He says he escaped. He had help at the airport. He says that the charges were made against him in the early 2000s. His passport was issued the following month but this was a replacement passport only. He also had help in the passport office. He states that in Bangladesh a passport is issued unless you have been found guilty." 7 The Tribunal Member set out some material confirming that human rights are precarious and that: "Both major political parties and their activists often employed violence, causing deaths and numerous injuries…" And that: "lower level courts are more susceptible to pressure from the executive branch. There also is corruption within the legal process especially at lower levels."