NANL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 277

FEDERAL COURT OF AUSTRALIA

NANL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 277 NANL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 2362 of 2003 SACKVILLE J SYDNEY 18 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N2362 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: NANL

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 18 MARCH 2004

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 N2362 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: NANL

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 18 MARCH 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

the appeal 1 This is an appeal from the Federal Magistrates Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("RRT"). By its decision handed down on 17 March 2003, the RRT affirmed a decision of a delegate of the respondent ("Minister") not to grant a protection visa to the appellant. 2 The Chief Justice has made a direction that the appeal should be heard and determined by a single Judge of the Court: s 25(1A) Federal Court of Australia Act 1976 (Cth).

the protection claims 3 The appellant is a citizen of Bangladesh, born in Chittagong in 1976. He arrived in Australia on 12 July 2001 and on 25 July 2001 lodged an application for a protection visa. 4 The appellant claimed that he had a fear of persecution in Bangladesh for reasons of political opinion, arising from his role as a political activist supporting the Bangladesh Nationalist Party ("BNP"). The appellant claimed that his active involvement in student politics on behalf of the BNP had brought him to the attention of the Awami League ("AL") government and their activists. He said that if he were to return to Bangladesh, his life would be in danger. 5 The claims made by the appellant included the following: * He joined the student wing of the BNP in 1990 (when he was aged 14). Subsequently he was elected to a variety of positions within the student wing of the BNP, culminating in his election in 1998 as the General Secretary of the Islamia Degree College Branch of Jatiyotabadi Chattra Dal ("JCD"), the BNP student organisation. * At about that time, the appellant organised and participated in a demonstration with other BNP members. In consequence, he was arrested and detained for three days. * On 20 February 2000, the appellant was attacked and beaten mercilessly by AL activists when he was on his way home from a meeting. He was rendered unconscious and taken to hospital, where he remained for one month. After receiving death threats from his attackers, he moved to Raozan, said to be a stronghold of the BNP located in another region of the Chittagong district. * In Raozan, he received shelter from an influential leader of the BNP. This leader, however, decided to act against the party and threatened to kill the appellant unless he joined in the about-face. In consequence of the appellant's refusal to co-operate, this person arranged for his "pet thugs" to attack the appellant and attempt to kill him. Once again, the appellant was severely beaten and was compelled to leave Raozan. * In order to escape political attacks, the appellant obtained a position as assistant cook on an Iranian vessel. He joined the ship on 4 January 2001 and deserted the ship upon its arrival in Adelaide on 12 July 2001. 6 On 10 October 2001, a delegate of the Minister wrote to the appellant. The letter pointed out that in the recent national elections, the BNP had won a comfortable majority of seats and would soon form Bangladesh's new government. The letter also indicated that the political scene in Bangladesh, according to independent country information, was "volatile and inter-party rivalry leading to violence [was] a pervasive feature". The letter said that most of this violence was attributable to criminal elements and was often personally based, rather than political. The letter invited the appellant's comments. 7 The appellant's adviser responded by a letter dated 7 November 2001. This enclosed translations of newspaper articles and other documents, including medical certificates, said to support the appellant's case. A document purporting to be a translation of a certificate from an office-bearer of the BNP stated that the appellant had suffered severe torture and had even been sentenced to gaol "in false cases". A document purporting to be from a court suggested that the appellant was subject to arrest under the Special Powers Act as a "member of arms cader [sic] group". 8 Subsequently, the appellant made further claims. These included the following: * A letter of 24 January 2003, prepared by the appellant's agent, asserted that the appellant feared persecution because of his "political profile as a leader of Awami League". This was the first time the appellant claimed to have feared persecution because of what was described as the "atrocities of BNP government and their thugs". * The appellant submitted a video cassette said to show a meeting organised by his political opponents (from the Chattra League) and a meeting of his supporters (said to be activists of the JCD). * The appellant relied on a letter purporting to be from a Bangladeshi advocate stating that he faced life in imprisonment if convicted under the Special Powers Act. His agent stated in a letter of 13 March 2003 that he could actually face capital punishment. 9 The appellant made additional or amended claims while giving evidence to the RRT on 17 March 2003. These included the following: * The appellant now said that there was only one false case against him. That was in relation to the April 1998 arrest, when he had been detained for three days and subsequently released on bail. * In response to the RRT's suggestion that he had lived at only two addresses in the decade before he left Bangladesh, the appellant claimed for the first time that he had tried to relocate in Rajshahi, outside the Chittagong district, but did not stay there long. This was the first reference he had made to Rajshahi. * The claim that he had been an AL activist had been made without his knowledge.