NABP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 819

FEDERAL COURT OF AUSTRALIA

NABP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 819

NABP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 688 of 2003 LINDGREN J 1 AUGUST 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 688 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: NABP

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 1 AUGUST 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant 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 688 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: NABP

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 1 AUGUST 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant appeals from a decision of the Federal Magistrates Court ('FMC'). That decision was given on 19 May 2003. The FMC dismissed the present appellant's application for review of a decision of the Refugee Review Tribunal ('the Tribunal') given on 15 August 2002, and ordered the appellant to pay the respondent Minister's costs of the proceeding. The decision of the Tribunal was one affirming a decision of the delegate of the Minister not to grant the appellant a protection visa. 2 In this proceeding the appellant relies on an amended notice of appeal which sets out the grounds of appeal as follows: '1. The Federal Court of Australia [sic] FM Raphael in his Honour's judgment delivered on 19 May 2003 failed to find error of law, procedural fairness, jurisdictional error, denial of natural justice and relief under section 39B of the Judiciary Act 1903. PARTICULARS: (Denial of Natural Justice and Procedural Fairness by the RRT) (a) The Refugee Review Tribunal has acted in bad faith in relation to the applicant's claim. There has been a constructive failure of jurisdiction by the tribunal member's decision of 15 August 2002, failed to address the correct legal question committed to him by not applying himself to all the issues he was required to consider in determining the matter before him. (b) There was a failure of the Refugee Review Tribunal member to exercise his jurisdiction in the decision dated 15 August 2002 because he did not reach a state of satisfaction based upon a correct understanding of law on which he acts. PARTICULARS: (Denial of Natural Justice and Procedural Fairness by the DIMIA) (a) There has been a constructive failure of jurisdiction by the delegate of the Minister for Immigration and Multicultural Affairs decision on 17 July 2000, failed to address the correct legal question committed to him by not applying himself to all the issues he was required to consider in determining the matter before him. (b) There was a failure of the Minister for Immigration and Multicultural Affairs agent to exercise his jurisdiction in the decision of 17 July 2000 because he did not reach a state of satisfaction based jupon a correct understanding of law on which he acts. (c) The decision of the Immigration and Multicultural Affairs agent to exercise his jurisdiction in the decision of 17 July 2000 was made in breach of the rule of natural justice.' 3 The appellant was born in Bangladesh and is a citizen of that country. He arrived in Australia on 8 May 2000 on a Bangladeshi passport. Some two weeks later, on 26 May 2000, he applied for the Protection visa (866). 4 The appellant's claim was and is that he was subject to persecution for reasons of his political opinion, being a member of the Jatiya Party ('JP'). 5 The appellant claimed that he joined the JP in Gulshan Thana in 1998, when the JP was under the leadership of President Earshad. He claimed that in September 1999 he became the general secretary of the Gulshan Thana committee of the JP. He said that from that time he was targeted from factional JP activists led by the Communications Minister, Anowar Hossain Monju. In substance, his claim was that Monju, whom he had never met, was his political opponent, and that he was attacked several times by Monju's supporters. He said he was hospitalised and his family was harassed. 6 An important part of the appellant's case was that a fabricated case had been concocted against him of his being involved in trafficking in illegal weapons, the destruction of public property and agitating people against the Government. The reason why this assumes some importance is that he claimed that, in consequence, a warrant was issued for his arrest and the police were searching for him when he left Bangladesh. 7 In support of his claims he lodged with the Tribunal various documents purporting to be official documents evidencing the issue of the warrant and the fact that the police were searching for him. 8 The Tribunal, however, discounted these documents, relying on independent country information concerning the ease with which false documents can be obtained in Bangladesh. In addition, the Tribunal said that if the appellant had been the subject of a warrant and had been searched for by the police, he would not have been permitted to leave Bangladesh on an official Bangladeshi passport. 9 As noted earlier, the application for review of the Tribunal's decision was dismissed by the FMC. There were ten grounds of review on which the appellant relied before the FMC. In substance they invited the FMC to review the Tribunal's conclusions of fact. The Federal Magistrate gave reasons for rejecting each of the ten grounds. 10 This proceeding was commenced by a notice of appeal filed on 10 June 2003 and the first directions hearing was fixed for 9 July 2003. On that occasion the appellant did not appear. The proceeding was stood over to 16 July 2003. 11 In the afternoon of 9 July, however, the appellant telephoned the Court and was told of the new date and informed by a Court officer that he should be certain to attend next time, otherwise the Minister might ask that the proceeding be dismissed. 12 Notwithstanding this advice, on 16 July 2003 the appellant again did not appear. The proceeding was then stood over until the next morning, 17 July, at 9.30 am. At 11.30 am on 16 July, the appellant arrived at the Court. It was possible to retrieve the interpreter and for the Minister's solicitor to return to the Court. I fixed the matter for hearing on 29 July 2003 at 10.15 am. 13 On 29 July, the appellant contacted the Court and the solicitor for the Minister and furnished a medical certificate to the effect that the appellant was suffering an upper respiratory illness and was "unfit for work" on 29 and 30 July. The certificate does not specify what kind of work and does not refer to the question of fitness to attend court and his participation in a hearing. By consent, the fixture for 29 July was vacated and the proceeding was stood over until 2.15 pm on 30 July. The appellant again contacted the Court and requested a further adjournment because of ill health, and the fixture for 2.15 pm on 30 July was vacated in favour of today, when the appellant has appeared, unrepresented, but assisted by an interpreter. 14 On the hearing today, the appellant again said that he was sick and applied for an adjournment. I refused the application. It appeared to me that he was well able to understand what was put to him and to respond to questions that I asked him. In addition, of its nature the hearing was likely to be a short one. 15 In support of the grounds of appeal, the appellant says that if I were to listen to the tape of the hearing before the Tribunal, I would think that he had not been given a fair hearing because he had not been given an opportunity to put his case. 16 The first thing to be said about this submission is that it was a matter for the appellant to put before this Court evidence in the form of the tape if he wished to rely upon it. He has not done so. It is not for the Court to take the initiative of obtaining the tape. 17 Secondly, the appellant did not refer to this matter in his amended notice of appeal. 18 Thirdly, I have no confidence that the tape would reveal anything other than the fact that the Tribunal Member may, on occasions, have responded to things said by the appellant in a way which the appellant found unfavourable. Bad faith is a serious allegation to make and the appellant would have to show from the tape that there was an element of dishonesty in the approach of the Tribunal Member. No doubt it is a possibility that this may exist, but I would not adjourn the hearing today so that the tape could be obtained in order to permit a speculative investigation. 19 The second matter put this morning is that the Tribunal did not check all of the appellant's papers properly. This submission is related to the Tribunal's rejection of the purported arrest warrant and associated documents as fraudulently obtained. The appellant says that the Tribunal was not entitled to rely upon general country information demonstrating that false documents are easily obtained in Bangladesh. 20 The appellant submits that similar findings have been made by the Tribunal in other cases of Bangladeshis. This may be so, but it may be so for the simple reason that it is true of all of them that documents have been obtained fraudulently. The fact that the Tribunal has made similar findings in other cases concerning Bangladesh and has relied upon country information demonstrating that false 'official' documents are easily procurable in that country does not establish any of the grounds of review relied on by the appellant. 21 However one regards the application to the FMC (or the appeal from the FMC to this Court), what the appellant was inviting that Court (and is now inviting this Court) to do is to review the findings of fact of the Tribunal on the merits. That was not the province of the FMC and is not the province of this Court to do so, in the sense that neither that Court nor this one is entitled to substitute its view of the facts for the findings of the Tribunal. 22 The grounds of appeal are not made out and the appeal will be dismissed with costs. The Court orders: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.