NALK v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCA 82 (13 February 2004)

Last Updated: 13 February 2004

FEDERAL COURT OF AUSTRALIA

NALK v Minister For Immigration & Multicultural & Indigenous Affairs

[2004] FCA 82

NALK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1461 of 2003

MOORE J
SYDNEY
13 FEBRUARY 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1461 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NALK APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & 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	N1461 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NALK APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

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

REASONS FOR JUDGMENT

1 This is an appeal from a judgment of Federal Magistrate Driver of 4 September 2003, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to refuse to grant the appellant a protection visa under the Migration Act 1958 (Cth) (the "Act").

Background

2 The appellant is a national of Bangladesh. He arrived in Australia on 17 October 1999. On 24 November 1999 the appellant applied for a protection visa. On 28 February 2000 a delegate of the Minister refused to grant the protection visa. On 16 March 2000, the appellant applied to the Federal Court for a review of that decision. The application was remitted to the Federal Magistrates Court.

3 The appellant claimed a well-founded fear of persecution in Bangladesh on the basis of his political beliefs and activities. His account of his experiences in Bangladesh was as follows. In 1995, he joined the Bangladesh National Party ("BNP") where he became the organising secretary of the Dhanmondi BNP branch. Part of his job was to lead demonstrations, organise party meetings and make speeches. The appellant became a prominent political activist. During the 1996 election campaign, members of the Awami League party (the rival party) began to attack him and harass his family. The situation worsened after the Awami League won the 1996 election. In 1998, Awami League activists attacked his house with the intention to kill him but were unsuccessful as he was not at home at the time. In May 1999, the appellant was leading a peaceful demonstration when he was attacked and injured by Awami League activists. His attackers laid false charges against him of destroying public property, being engaged in anti-state activities and setting fire to the local Awami League’s office. The police issued several warrants of arrest against the appellant for the above charges. The appellant believed his life was in danger and that he needed to escape Bangladesh. His family helped him to obtain, through an agent, a visitor’s visa for Australia.

The Tribunal’s Decision

4 The Tribunal indicated it had the Departmental file relating to the appellant, which included the protection visa application and the Department’s decision record. The appellant gave oral evidence in two hearings. The first hearing was on 16 July 2002 the second on 7 January 2003.

5 At the first hearing, the appellant presented a certificate from a doctor who was a consulting psychologist and pain management specialist, stating that the appellant suffered from "Generalised Anxiety Disorder" and, as a result, was unable to answer questions for at least two or three months while undergoing treatment. He indicated the appellant suffered from anxiety, nervousness, insomnia, irritability, panic disorders and phobia. The doctor also said the appellant was incapacitated and unable to answer questions for at least two or three months. The Tribunal decided to proceed with the hearing though it noted in its reasons that "the [appellant] presented as being traumatised and uncomprehending of the hearing proceedings". It appears the Tribunal conducted those proceedings by means of discussion with the appellant's adviser and not the appellant.

6 At the second hearing in January 2003 the appellant did attend and spoke in support of his claims. The Tribunal had earlier rejected (8 November 2002) a submission made by the appellant's adviser supported by a letter from the doctor which the Tribunal understood suggested the appellant could not function for between a few months and two years. At the hearing in January 2003, the appellant furnished various documents in support of the claims he made to the Minister. They included a letter from the BNP president of the branch stating the appellant was an active member of the party. It also said the appellant was facing various false politically motivated charges and that he was not safe in Bangladesh. The documents also included various police and court records concerning a case in which the appellant was named as the culprit in a riot. The office of a local Awami League was burnt. One constable was injured in the riot. The appellant furnished to the Tribunal warrants for his arrest issued by the Chief Metropolitan Magistrate, Dhaka. The appellant also furnished newspaper articles about high levels of crime in Bangladesh, bombings, arrest of suspected criminals, accusations by the opposition of human rights violations by the government and foreign media investigations into suspected activities by Al Qaeda in Bangladesh.

7 The appellant claimed, as part of his account of events in Bangladesh, that at some stage, Awami League thugs tried to force his father to surrender ownership of a cinema he owned, by keeping his family captive in the cinema. The police intervened and ended the attack, saving them. The appellant claimed he was afraid to go back to Bangladesh because, as a member of the BNP, he would have to re-enter the political arena and either join the extremists or fight them and would be harmed or, at the least, would be at risk of harm.

8 The Tribunal accepted the appellant had been a BNP branch organiser. It also accepted the appellant had been subjected to threats and attacks in which he was injured. The Tribunal acknowledged that fabricated false charges were a common tactic used by rival political activists in Bangladesh and that the appellant was facing charges that were fabricated for political ends. However, the Tribunal considered that the independent evidence before it indicated that victims of such incidents had various means of protecting themselves against those tactics as authorities were well aware of the problem and were determined to stop them. The Bangladeshi Public Safety Act allowed charges to be brought against those instigating false charges. The Bangladeshi Courts were independent which enabled them to provide protection for those falsely charged even if an activist of the governing party persisted in filing false charges. The Tribunal noted that in January 2001, a Parliamentary committee report found that 99 per cent of the 69,010 people arrested by governments of the day since 1974 on false charges under the Special Powers Act, were released as the courts found the grounds for detention were weak and vague. The Tribunal concluded that the appellant could rely on the courts in relation to any false charges laid against him.

9 The Tribunal indicated it had doubts about the appellant’s claim that if he returned to Bangladesh, he would be forced to re-enter the political arena engaging in violence alongside extremists from fundamentalists groups or other parties. The Tribunal indicated it had no independent evidence supporting a claim that political activists could not withdraw from politics. It had information that it was possible to be active in politics without being involved in activities with a risk of harm. It was satisfied that if the appellant was harassed by activist to join them in political violence, he could obtain protection from the Bangladeshi authorities. The Tribunal was satisfied that the government had demonstrated its intolerance of political violence.

10 The Tribunal said it had considered the evidence as a whole and was not satisfied that the appellant satisfied the criterion set out in s 36(2) of the Act for a protection visa and therefore, the appellant was not a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Tribunal affirmed the decision of the Minister not to grant the appellant a protection visa.

The Reasons of the Federal Magistrate

11 The Federal Magistrate dismissed the application for judicial review. The following are the seven points concerning the Tribunal’s decision raised in the proceeding before the Federal Magistrate and the way his Honour addressed them:

• The Tribunal did not allow the appellant enough time to recover completely from the sickness he was suffering. His Honour approached the matter on the basis that the appellant had not furnished him with any evidence establishing he was incapacitated at the time of the hearing.

• The Tribunal did not properly consider the political situation in Bangladesh, given that the appellant said he was definitely going to be prosecuted upon arrival because the cases against him were still pending. His Honour did not view this as raising an issue of substance.

• The Tribunal did not afford the appellant natural justice as it did not give him the opportunity to explain fully his personal circumstances. His Honour concluded the Tribunal did give the appellant every opportunity to put his case.

• The Tribunal did not have regard to the fact that members of his own party were still facing persecution which established that the authorities in his country had failed to protect them. His Honour indicated this was a matter of fact about which the appellant gave evidence to the Tribunal and the Tribunal had made its findings. His Honour indicated it was not for the Court to interfere with findings on questions of fact.

• The Tribunal went ahead with the hearing and did not give the appellant sufficient time to recover from his depression. Accordingly the Tribunal denied him procedural fairness. The Federal Magistrate viewed this point as substantially the same as the first and lacked merit.

• The Tribunal based its decision on general information from media reports which were inaccurate. His Honour said that it was well established that the Tribunal had the ability to use country information and the appellant’s claims were an attack on the country information and on the evidence used by the Tribunal. Review of these matters was not for the Court.

• The Tribunal did not accept the appellant’s submissions that there is no guarantee of his personal safety if he returned to Bangladesh. His Honour indicated that the function of the Court is restricted to a consideration of the methods by which the Tribunal reached its conclusions and not to substitute its views of the situation in Bangladesh.

Issues in the Appeal and its Disposition

12 The notice of appeal in this Court was filed on 23 September 2003. The grounds were as follows:

1. A number of errors were occurred by the Tribunal, which was not considered by the Honourable judge.

2. The Tribunal misunderstood the applicant’s claim and the decision by the Tribunal was not reflected the true picture of the claim. Honourable judge did not consider this.

3. The Tribunal did not provide the applicant’s an opportunity to comment on the information, which the tribunal relied on its decision. Where the applicant was deprived of receiving natural justice, Honourable judge also did not consider this.

4. S474 of the Migration Act is ineffective as per the recent two decision of the High Court of Australia. Honourable trial judge did not consider this in favour of the applicant.

5. The applicant will face persecution if he returns to his country of origin as there is a significant level of violation human rights, this was not considered by honourable judge.

13 Before the hearing, the appellant filed a five page written submission which, as it happens, was in identical terms (save for different dates and numbers) as a written submission filed in a case I had heard the day before concerning another national of Bangladesh. Whatever its origins, it does not raise any issue of substance in this appeal, as far as I can understand the submission. In addition, the appellant furnished a written submission which raised again the failure of the Tribunal to adjourn the hearing having regard to his psychological condition, the approach of the Tribunal to the country information and it having ignored his personal circumstances. The appellant also repeated his factual assertion that he will be forced to join the BNP on his return and will be killed by political rivals or, if he did not join the BNP, political associates would kill him. In oral submissions he canvassed many of the issues 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 is not apparent to me that the Tribunal ignored the appellant's account of his personal circumstances or gave undue weight to country information. It was open to the Tribunal to form the view it did about whether the appellant was able to present his case and it was also open to the Federal Magistrate to deal with this issue in the way he did having regard to the fact that no further evidence was led concerning the appellant's medical condition. It is not apparent to me that the Federal Magistrate erred in dismissing the application for judicial review. 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:	R Bromwich
Solicitor for the respondent:	Clayton Utz
Date of Hearing:	5 February 2004
Date of Judgment:	13 February 2004