NAJZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 83 (13 February 2004)

Last Updated: 13 February 2004

FEDERAL COURT OF AUSTRALIA

NAJZ v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 83

NAJZ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1794 OF 2003

MOORE J
SYDNEY
13 FEBRUARY 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1794 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAJZ 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	N 1794 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

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

REASONS FOR JUDGMENT

Introduction

1 This is an appeal from a judgment of Federal Magistrate Driver of 21 October 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 & 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, a citizen of Bangladesh, arrived in Australia on 24 November 2000. On 21 December 2000 he lodged an application for a protection visa. On 9 March 2001, a delegate of the Minister refused to grant him the visa. On 2 April 2001, the appellant lodged an application for a review of that decision by the Tribunal. On 3 February 2003, the Tribunal affirmed the decision of the Minister. On 27 February 2003, the appellant applied to the Federal Court for judicial review of that decision which was remitted to the Federal Magistrate’s Court. On 21 October 2003, the Federal Magistrate dismissed the appellant’s application for judicial review.

3 The essence of the appellant's claim for the protection visa was that he feared persecution in Bangladesh because of his involvement in various positions in the Bangladeshi National Party ("BNP"). He claimed that in 1996, when the Awami League gained power, he became the target of its members who harassed him. He was injured on two occasions, December 1998 and January 2000. He said that false charges were laid against him. Before the Tribunal, the appellant claimed that he was falsely accused of murdering a person in February 1999. He was tried in his absence and sentenced to life imprisonment. The appellant claimed that even though the BNP was today in power, there was such division within the party that if he went back to his country, the BNP could not protect him.

The Tribunal’s Decision

4 The Tribunal indicated it was prepared to accept the appellant was a member of the BNP. However it did not accept that he had ever held any position within the party. It did not accept the appellant’s claim that he left Bangladesh because he had been persecuted in his country. In relation to the claim that he had been charged over the events in February 1999, the Tribunal neither accepted that the event occurred nor that legal proceedings ensued. Moreover the Tribunal indicated that had he been charged as he claimed, he could avail himself of the protection of the legal system. The Tribunal concluded that the appellant did not have a well-founded fear of persecution and that even if he did, he would be able to relocate within Bangladesh on his return.

The Reasons of the Federal Magistrate

5 The Federal Magistrate heard the application on 21 October 2003. At the hearing, the applicant sought an adjournment on the basis that he had a pending appeal against his conviction in Bangladesh. The appellant said that the appeal would be heard in June 2004, and that at that point he would be able to gather more information relating to his conviction which would assist him in supporting his application for a protection visa. He added that if he were successful in his appeal, he would be able to go back to Bangladesh safely. The adjournment application was refused. The Federal Magistrate noted that the Tribunal’s decision was a privative clause decision and indicated that it was not apparent that the Tribunal had fallen into jurisdictional error. The Federal Magistrate dismissed the application.

Issues in the Appeal and its Disposition

6 In his Amended Notice of Appeal, dated 10 January 2004, the appellant alleged:

"1. The appellant appeals from the whole of judgment of the single Judge of the Federal Magistrate Court by the FM Driver given on 21 October 2003 at Sydney Registry. File No. SZ533 of 2003, publication name NAJZ.

GROUNDS

2. The Single judge of the Federal Magistrate Court in his Honors Judgment delivered on the 26 November 2003 failed to find error of law, Jurisdictional error Procedural fairness and relief under Section 39 B of the Judiciary Act 1903.

3. The grounds and relief is very much similar with a recent High Court Judgment- Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2000] HCA 30 (8 August 2002). (...)

4. The Honorable trial judge FM Driver erred in considering the real state of affairs of the applicant, the applicant feared harm. And also the present ruling government fail to protect civilians life, which is a worldwide concern today. Honorable Trial judge did not take it into consideration.

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

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

7. Recent High Court judgment: Plaintiff S 157/2002v Commonwealth of Australia [2003] HCA 1 (4 February 2003).

8. Recent Federal Court of Australia judgement: SGDB V Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 (14 February 2003).

9. I have court case against me the trial judge and Tribunal did not accept my genuine claims.

10.	I enclosed the documentary evidences a) Party letter b) Lawyer’s letter c) Certified copy of judgement of court case against me."

7 The appellant filed written submissions which, in addition to the matters which might be distilled from the notice of appeal, included an allegation of bias. To the extent that the appellant raised or repeated a submission that his circumstances demonstrate that the reasoning of the High Court in Muin v Refugee Review Tribunal & Ors; Lie v Refugee Review Tribunal & Ors [2002] HCA 30; (2002) 190 ALR 601 should result in the Tribunal's decision being set aside and the matter remitted to the Tribunal, the factual foundation for the submission has not been made out. Similarly no basis is made out for the allegation of bias.

8 The focus of the appellant’s oral submissions in this appeal (he was self represented) was that he now had in his possession documents which indicate the course of certain proceedings in Bangladesh which would fortify a conclusion that he had a well founded fear of persecution were he to return. Part of the complaint made in the oral submissions was that the Federal Magistrate had either overlooked or given insufficient weight to those documents. It is not apparent that the documents were admitted into evidence before the Federal Magistrate but, in any event, they are irrelevant in judicial review proceedings and had the appellant sought to tender them below, the Magistrate would have been correct in rejecting their tender. Because the documents are irrelevant I rejected their tender in this appeal.

9 I have read the decision of the Tribunal and the reasons for judgment of the Federal Magistrate. It is not apparent to me that the Federal Magistrate erred in concluding that no jurisdictional error attended the decision of the Tribunal. Accordingly the appeal should be dismissed with costs.

I certify that the preceding nine (9) 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:	G Kennett
Solicitor for the respondent:	Sparke Helmore
Date of Hearing:	4 February 2004
Date of Judgment:	13 February 2004