NANH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1285

FEDERAL COURT OF AUSTRALIA

NANH v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1285

Muin v Refugee Review Tribunal (2002) 190 ALR 601 R v Hickman; ex parte Fox & Clinton (1945) 70 CLR 598 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 NANH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N177 OF 2004 BENNETT J 17 SEPTEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N177 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NANH

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BENNETT J

DATE OF ORDER: 17 SEPTEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed with costs.

2. The appellant pay the respondent's costs of the appeal. 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 N177 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NANH

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BENNETT J

DATE: 17 SEPTEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 11 March 2003, the Refugee Review Tribunal ('the Tribunal') handed down a decision affirming the earlier decision of the delegate of the respondent ('the delegate') not to grant a Protection (Class XA) Visa to the appellant. The appellant is a national of Bangladesh who arrived in Australia on 24 December 2000 and applied for a protection visa on 9 January 2001. His application was rejected by the delegate on 8 March 2001. The appellant applied for a review of that decision by the Tribunal on 26 March 2001. 2 The appellant lodged written statements of his claim with the Department of Immigration and Multicultural and Indigenous Affairs and later with the Tribunal. These detailed a history of active membership of the Bangladesh Nationalist Party ('BNP') in his home district, conflict with local activists of the Awami League and Sarbaharas and false charges being laid against him by the authorities. His claims changed somewhat at the Tribunal hearing. For example, it emerged that the only enemies he was concerned with were the Sarbaharas and that there was only one case against him. 3 The Tribunal concluded that most or all of the appellant's claims were false but accepted some of them for the purposes of its decision. Even on that basis it did not accept that he had a well-founded fear of persecution for any convention reason. The Tribunal accepted that the appellant had been a member of the BNP but did not think that that, in itself, meant that he a well-founded fear of persecution. It accepted his claims as to which part of Bangladesh he had lived in and that this district was at the centre of Sarbahara activity. However, the fact that the appellant had remained in the district, even at times when he said he was in hiding, indicated that he did not in fact fear persecution in that region. The Tribunal accepted that there was one case pending against the appellant but found that, given his descriptions of activities that he had been involved in, it was reasonable to conclude that it was a genuine criminal prosecution rather than a false case. 4 Other aspects of the appellant's claims were rejected outright. His claim to have held elected office in the BNP was rejected. The Tribunal concluded that the appellant may well have held no elected position at all within the BNP or its student wing. It also concluded that even if he did hold an elected position, that he was not known beyond a very small area. His claim that he and his family feared harassment by the police was described as 'just not credible'. In the Tribunal's view, the most that could be said was that if the appellant returned to his home district, he would face some danger from Sarbaharas and he might be detained in relation to the charges against him. 5 The Tribunal observed that if the charges came to court in Bangladesh the appellant could expect justice from the higher levels of the judiciary and that his BNP connection might well assist him. Further, the Tribunal observed, his problems, if any, were confined to a particular district and he could live safely in other parts of Bangladesh. The Tribunal concluded that it was reasonable for the appellant to relocate given the adaptability he had demonstrated, for example, by living in other countries for several years. 6 Other factors reinforced the Tribunal's view that the appellant did not fear persecution in Bangladesh. The appellant obtained a passport without difficulty, but then did not leave the country for seven months. He left legally using his own passport, he did not seek protection as a refugee until several years later and he did not seek protection in the first country in which that would have been possible. For these reasons the Tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 ('the Convention'). 7 The case before the Federal Magistrate Raphael was based in large part on a complaint that the Tribunal ignored evidence and an allegation of actual bias on the part of the Tribunal. The latter allegation was noted by Raphael FM to be particularised in terms of an allegation that the Tribunal did not accept that the appellant was persecuted because of his political opinion. Referring to SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361, his Honour noted that there were no proper particulars or submissions to support an allegation of actual bias. 8 In response to an allegation that the Tribunal was obliged to make its own inquiries in respect of the appellant's case, his Honour observed that the Tribunal was under no such obligation or duty to make its own investigations. Raphael FM concluded that the Tribunal came to the opinion that the appellant was not a reliable witness and that it did not accept the threat to the appellant from the Sarbaharas. Both of these matters were factual matters for the Tribunal to determine. His Honour also found no basis for the suggestion that the finding was brought about as the result of bad faith.