NALS and NALT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 81 (13 February 2004)

Last Updated: 13 February 2004

FEDERAL COURT OF AUSTRALIA

NALS and NALT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 81

NALS & NALT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1535 OF 2003

MOORE J
13 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1535 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NALS & NALT APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	13 FEBRUARY 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	N 1535 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NALS & NALT APPELLANTS
	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	13 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant is a citizen of Bangladesh and arrived in Australia on a visitor’s visa on 20 March 2001. On 24 April 2001 the appellant applied for a protection visa. His wife was included in that application making no separate claims of her own to be a refugee. A delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refused the visa on 17 May 2001. The appellant applied to the Refugee Review Tribunal ("the Tribunal") on 10 June 2001 for review of that decision. The Tribunal conducted a hearing on 20 January 2003. The delegate’s decision was affirmed by the Tribunal on 25 February 2003. An application for review of that decision was heard and dismissed by the Federal Magistrates Court on 29 September 2003. It is from that decision that the appellant now appeals to this Court.

Background Facts

2 Generally the appellant's account of his circumstances was as follows. He is a Bangladeshi Muslim who belonged to the Jamaat-e-Islami party of Bangladesh. He holds a Bachelor of Arts degree from Dhaka University and a Masters in English. While in Bangladesh he ran a successful business which involved him travelling to countries such as Japan, Malaysia, Singapore and China. As a university student he was the vice president of the Islamic Chatra Sibir (a student wing of this party). Before coming to Australia he had been an organising secretary of Mirpur Thana (the second largest unit of the local government) since 1995. Since leaving university he had maintained an active involvement with the party and was elected as an executive member of the city committee of the party.

3 For the five years before the appellant came to Australia the appellant claimed that the Awami League government, then in power, was responsible for the persecution of Jamaat-e-Islami members and supporters. He claimed they achieved this through their police forces, secret service agents and hired hoodlums, and attempting to manipulate the judiciary for the same purpose. The appellant claimed he was falsely charged with anti-government activity and sedition against the state resulting in fear and sleeplessness.

4 He claimed secret service agents took his younger brother away for interrogation and then beat him for refusing to answer questions. Following this, his brother and family went into hiding for fear of further persecution. After the appellant’s departure from Bangladesh, the lives of the members of his family’s became quite normal, although employment opportunities were limited outside Dhaka. The appellant claimed that in September 2000 and later that year secret service agents attacked and ransacked his house and office, taking documents without permission. His father-in-law then advised him to leave Dhaka and go into hiding, arranging for the appellant to stay with distant relatives in Uttara. He claimed he had to go into hiding to avoid being arrested and to avoid ‘the wrath’ of loyal government supporters and hooligans. As a result of his political opinions and beliefs he claimed to have lost his family and that his business was left in ruin. His mother moved to a small town outside Dhaka.

5 While in Bangladesh, the appellant took part in political rallies and gave speeches at public meetings. He claimed to have been an active member of his party, cultivating discontent with the Awami League amongst the common people. As a result, he claimed to have suffered pain and to have faced persecution ‘by the ruling party’. He also claimed that he was homeless before leaving the country because his relatives and friends would not give him a place to live because they feared the persecution his presence would bring.

6 In his written submission accompanying his application for a protection visa he claimed his ‘life was in great danger’, that he would have been killed, tortured or sent to prison had he not escaped, that he was ‘beaten mercilessly’ by the law enforcing authority as well as the ‘Awami hoodlums’ ‘[a] number of times’ and that the authorities did not protect him at all. Before the Tribunal he explained that he had been taken into police custody two or three times while he was a student, once for seven days, and six or seven times during his later political activities.

The Tribunal’s Decision

7 Before the Tribunal the appellant addressed the changed situation in Bangladesh. Since arriving in Australia, the Awami League had been removed from power and replaced by a coalition of which the Jamaat-e-Islami party formed part. The appellant claimed this vindicated his position that the Awami League had always considered Jamaat-e-Islami a formidable force and had subjected them to persecution.

8 The Tribunal accepted the appellant’s claims concerning his religion and political beliefs. It also accepted that he had been subjected to action by the authorities such as arrest and interrogation and that his premises were searched but it effectively rejected the suggestion that the appellant had suffered violence at the hands of the authorities. The Tribunal did not dispute that political life in Bangladesh was marked by violence. However, the Tribunal was not satisfied that the appellant was sufficiently prominent in Jamaat-e-Islami to have been subjected to severe harm or mistreatment or to have been a significant target for authorities.

9 The Tribunal did note that the BNP coalition may have resisted efforts by the Jamaat-e-Islami to develop increased support. However, it was not satisfied that if the appellant propounded his pro-Islamic position on return that he would experience harm serious enough to amount to persecution. As a result the Tribunal found that the appellant had not made good his claim for a protection visa.

The Federal Magistrate’s Decision

10 In his reasons for judgment, the Federal Magistrate indicated he was unable to identify any error of law involving an incorrect interpretation of the law. Nor did he find that the Tribunal had failed to take into account relevant considerations. His Honour was satisfied that the facts and information concerning the current situation in Bangladesh had been put to the appellant. The Federal Magistrate accepted the Minister's submission that the Tribunal’s decision was based on findings and inferences of fact that were supported by probative material before the Tribunal.

Grounds of Appeal and its Disposition

11 The appellant lists only one ground of appeal which is set out below although the appellant also lists ‘particulars’:

The Federal Magistrate Court of Australia FM RAPHAEL in his Honors (sic) Judgment delivered on the 29 September 2003 failed to find error of law, procedural fairness, Jurisdictional error, Denial of Natural Justice and relief under Section 39 B of the Judiciary Act 1903.

12 The listed particulars relate to the decisions of the Tribunal and the delegate. The appellant alleges that the Tribunal acted in bad faith. He alleges that there was a constructive failure on the part of the Tribunal to exercise jurisdiction because its decision was not based upon a correct understanding of law. Further, he alleges that the Tribunal failed to address the correct legal question by not applying itself to all the issues it was required to consider in determining the matter.

13 No written submissions were filed by the appellant notwithstanding a direction that he file them. At the hearing (he was unrepresented) he explained that he had not filed written submissions because he had been told he was not able to tender further evidence in the appeal. He explained that the further evidence was newspaper clippings concerning circumstances in Bangladesh. He indicated that he wished to raise again the grounds (seven in total as described by the Federal Magistrate based on the submissions of counsel for the Minister) that had been raised before the Federal Magistrate.

14 I have read the reasons for decision of the Tribunal and the reasons for judgment of the Federal Magistrate. It appears to me that the Federal Magistrate was correct in concluding that in relation to the various matters raised by the appellant, no ground of jurisdictional error was established. It follows that the Federal Magistrate did not err in dismissing the appellant's application. Accordingly this appeal should be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 13 February 2004

The appellant appeared in person.
Counsel for the Respondent:	S McNaughton
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	6 February 2004
Date of Judgment:	13 February 2004