NABF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 131 (5 February 2003)

Last Updated: 3 March 2003

FEDERAL COURT OF AUSTRALIA

NABF v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 131

MIGRATION - protection visa - judicial review - Minister's delegate refused to issue protection visa - decision affirmed by Refugee Review Tribunal - whether the Refugee Review Tribunal denied the applicant natural justice - whether the Refugee Review Tribunal acted in bad faith - whether the Refugee Review Tribunal followed the correct procedures according to the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) - whether the Refugee Review Tribunal committed an error of law.

Judiciary Act 1903 (Cth) - s 39B

Migration Act 1958 (Cth)

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 - considered

NABF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1008 OF 2002

HILL J

5 FEBRUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1008 OF 2003

BETWEEN:	NABF APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE OF ORDER:	5 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent Minister'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 1008 OF 2003

BETWEEN:	NABF APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	5 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant together with his wife, who was an applicant in the proceedings before the Refugee Review Tribunal, are citizens of Bangladesh. After arrival in Australia they applied for a protection (class XA) visa. Their application was refused and they applied to the Refugee Review Tribunal ("The Tribunal") for review of that decision.

2 It is a criterion for a grant of a protection visa that the applicant be a person of whom the Minister or, in the case of review to the Tribunal, the Tribunal is satisfied is a person to whom Australia has protection obligations under the Refugees Convention. I use the term "Refugees Convention" to mean the Convention relating to the Status of Refugees, done at Geneva on 28 July 1951, as affected by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967. Australia will have protection obligations if a person generally speaking is a "refugee" within the meaning of Article 1(A)(2) of the Refugees Convention.

3 It was the applicant's initial case that he had a well-founded fear of persecution for a convention reason because he was a member of the Bangladesh Nationalist Party ("BNP") and that he had been mercilessly targeted by the rival Awami League party ("AL"). By the time the Tribunal hearing took place, however, the BNP was in power and AL in opposition.

4 It was for this reason that the Tribunal formed the view, which was open to it, that the applicant did not have a well-founded fear of persecution. At the hearing the applicant made a different case, perhaps in the alternative. First he claimed that he had a fear of persecution because of false charges that he said had been filed against him by the AL. This claim was also rejected by the Tribunal, not only because the BNP was in power but also because it took the view that the courts could protect him against a false claim in Bangladesh.

5 The applicant also made what the Tribunal referred to as a set of new claims. He said that he was identified as a supporter of Bangladeshi independence. He claimed that there had been a split in the BNP between those who were for and those who were against independence. He said that the anti-independence group was in power and had secured the removal from office of Dr Chowdhury, the former President, because he was pro-independence and that the group was also moving against other BNP leaders who supported independence.

6 He also claimed that he faced harm from the Islamic Fundamentalist Party, which was against independence. That party had apparently participated in government with the BNP. The applicant said that he did not support religion in politics and for this reason he was target of the Islamic Fundamentalist Party. He referred to numerous articles before the Tribunal about the level of criminal and other violence in Bangladesh and claimed that this was brought about by the split between pro-independence and anti-independence groups.

7 The Tribunal in its reasons formed the view that these various claims to which I have referred lacked credibility. It referred to material in various country reports which it considered. It formed the view that there was no evidence to support the proposition that an "anti-independence push within the BNP might... threaten a person such as the applicant". So far as the Islamic Fundamentalist Party, it held "only 17 seats in parliament compared with the BNP's 199" seats. From material before it the Tribunal took the view that this party did not have great political sway in the country.

8 The Tribunal said it was not satisfied that the Islamic Fundamentalist Party would "drag the BNP down an anti-independence path, bringing harm to those who might stand in its way". It noted that there was no credible evidence that persons opposing religion in politics were targeted for persecution.

9 Accordingly, the Tribunal was of the view that the applicant would not lack protection from the BNP and Bangladeshi authorities were he to be threatened by the Islamic Fundamentalist Party. Ultimately, the Tribunal indicated that it was not satisfied that the applicant and his wife were people to whom Australia had protection obligations.

10 The applicant appeared before me with the assistance of an interpreter but without the assistance of legal representation.

11 The application in this court set out no grounds upon which this court might intervene. However, an affidavit which accompanied it referred to five matters.

12 The first matter was that the applicant would be in jeopardy if he were required to return to Bangladesh as the merits of his claim had been ignored by the Tribunal, which had not acted in good faith. That seems to me to be no more than a claim that the Tribunal should have reached a different conclusion. It does not suggest, nor do the reasons of the Tribunal suggest, any jurisdictional error of the kind which might cause the court to grant either mandamus or prohibition.

13 Secondly, the affidavit notes that the applicant was deprived of natural justice. While it is clear from the High Court's decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 that a denial of natural justice could constitute a ground of review by the court, there is nothing in the material before me that suggested that in any way that the applicant was denied natural justice.

14 The third matter relied upon is that the Tribunal failed to consider the applicant's claim in the light of the existing political situation in Bangladesh. However, a perusal of the Tribunal's reasons does not suggest that it did fail to consider the applicant's claim in the light of the existing political situation in Bangladesh.

15 The next matter relied upon is that the procedures required by the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) to be observed in connection with the making of a decision were not observed. The applicant did not, even if this were to constitute a ground of review, indicate what procedures were not observed. So far as I can see from a reading of the Tribunal's decision it carried out the task which the Migration Act 1958 (Cth) required it to carry out.

16 Finally, it is said that the decision involved an error of law either being the incorrect interpretation of the applicable law or an incorrect interpretation of the facts. Again, this is not particularised, but in any event I cannot see any such error in the Tribunal's decision. I have read the Tribunal's reasons with some care because I was aware that the applicant was not represented.

17 It is apparent that the applicant believes that the Tribunal should have reached a different decision on the facts as the applicant saw them. However, this court does not have jurisdiction to review the facts. Rather this court is bound by the factual findings of the Tribunal except in certain rare cases of which this is not one.

18 In the circumstances, the applicant has not made out any case of jurisdictional error such as would entitle this court to grant relief under s 39B of the Judiciary Act 1903 (Cth). The application must accordingly be dismissed. The Minister has asked me to make an order for costs. I will order that the applicant pay the Minister's costs of the application.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated: 28 February 2003

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	5 February 2003
Date of Judgment:	5 February 2003