WAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 265 (22 August 2002)

Last Updated: 28 August 2002

FEDERAL COURT OF AUSTRALIA

WAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 265

Jess v Scott (1986) 12 FCR 187 followed

WAGM OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W128 of 2002

MARSHALL, WEINBERG and JACOBSON JJ

PERTH

22 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W128 of 2002

BETWEEN:	WAGM OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MARSHALL, WEINBERG and JACOBSON JJ
DATE OF ORDER:	22 AUGUST 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal be dismissed.

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
WESTERN AUSTRALIA DISTRICT REGISTRY	W128 of 2002

BETWEEN:	WAGM OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	MARSHALL, WEINBERG and JACOBSON JJ
DATE:	22 AUGUST 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT

1 On 9 April 2002, French J dismissed an application by the appellant for judicial review of a decision of the Refugee Review Tribunal ("the RRT"). The notice of appeal was filed on 1 May 2002, one day out of time. The appellant filed an application for leave to extend the time allowed to file and serve a notice of appeal.

2 Pursuant to O 52 r 15 of the rules of Court, the Court may "for special reasons" give leave to file and serve a notice of appeal out of time. The notice of appeal was filed only one day late because the appellant was ill during the 21 day time period allowed. Accordingly, we consider that a sufficient basis has been established to extend time: see Jess v Scott (1986) 12 FCR 187 at 195. We note that, although the respondent did not consent, the grant of such leave was not opposed.

3 The application before the primary judge was filed on 16 August 2001. It was dealt with in accordance with the provisions of the Migration Act 1958 (Cth) ("the Act") which applied prior to the amendments to the Act which took effect on 2 October 2001; see Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ("the 2001 Act"). Accordingly, this appeal does not raise for consideration the effect of the "privative clause" provisions inserted into the Act by the 2001 Act.

Factual background

4 The appellant is a citizen of Bangladesh. He entered Australia on 1 July 2000. On 23 May 2001 he lodged an application for a protection visa. The basis of his claim was that he feared persecution if returned to Bangladesh on account of his political activities. Put shortly the appellant contended that:

* he was a member of a student wing of the Bangladesh Nationalist Party ("the BNP");

* he actively participated in party activities as an ordinary member between 1992 and 1996;

* in 1996 he was elected as a member of the District Committee of the BNP;

* persecution of BNP members commenced in 1996 when the Awami League came into power; from that time, the local police, who were in collusion with the Awami League, began arresting party members.

* his house was ransacked by a political opponent, who threatened his life;

* police were looking for him after a clash between members of rival political groups;

* in 1998 he was arrested and detained for 10 to 12 days during which time he was interrogated and beaten by the police;

* on release he was forced into hiding by political opponents who hounded and threatened him;

* he was accused, wrongly, of the murder of a political opponent;

* he then received further death threats, from followers of the political opponent and, he therefore left Bangladesh;

* his "political involvements" were well known and his political opponents were still searching for him.

5 On 7 June 2001 the appellant's application for a protection visa was refused by a delegate of the respondent. An application for a review of that decision was made to the RRT. On 14 August 2001, the RRT affirmed the decision of the delegate not to grant a protection visa to the appellant.

The RRT decision

6 The RRT considered that significant aspects of the appellant's evidence were internally inconsistent and implausible. It did not accept the appellant as a credible witness. Although the RRT accepted that the appellant was a supporter of the student wing of the BNP, it did not accept that he remained politically active after he ceased to be a student. Nor did it accept that the appellant had a clash with a political opponent from the Awami League or that there were outstanding politically motivated charges against him. The RRT found that the appellant fabricated those claims.

7 The RRT referred to the appellant's first interview with officers of the respondent's department. At that time, when asked why he had left Bangladesh, he focused upon problems with employment and said that he had only been involved in political activities as a student. The RRT considered that it was implausible that, when asked why he had left Bangladesh, the appellant focused upon problems with employment if in truth he feared persecution in relation to far more serious matters. The RRT also considered that it was implausible that the appellant would say that he had been involved in political activity only when he was a student if in truth he had continued to be involved and actually feared persecution for this reason.

8 Although the RRT accepted that the appellant demonstrated some knowledge of the BNP, it found that the appellant's knowledge was limited. He said that there had been only one election during 1996 but independent evidence disclosed that there had been two. The RRT considered that if the appellant had been actively involved in political activities after he had finished his education, as he claimed, he would have known that fact.

9 The appellant claimed that the police wanted to arrest him as a result of an incident which allegedly occurred on 5 November 1999. However, the RRT noted that the appellant did not leave Bangladesh until May 2000. The RRT considered that if the authorities wanted to arrest him, they had ample time to do so during the six months period prior to his departure from the country. It referred to evidence given by the appellant that the police were not able to find him because he was in hiding. However, the RRT found that the appellant had fabricated this claim because it was inconsistent with evidence given at the beginning of the hearing that he had lived with his family until he left Bangladesh. The RRT referred to other inconsistent evidence in respect of the appellant's claim that he had been in hiding.

10 The RRT did not accept that the appellant was of any interest to the Awami League or the Bangladeshi authorities at the time when he left Bangladesh. Nor did it accept that he was of any current interest to those bodies. The RRT noted that the appellant had provided documents which purported to corroborate his claims. However, the RRT accepted independent evidence that there was "a high level of document fraud in Bangladesh". Accordingly, the RRT did not place any weight on those documents.

11 The RRT found that there was nothing in the evidence before it to suggest that the appellant had a well-founded fear of persecution arising out of political activities which he undertook as a student. The RRT was of the view that the chance that the appellant would become involved in political activities after he returned to Bangladesh was remote. It referred to independent evidence that the BNP was the largest opposition party in Bangladesh with 116 members in the National Parliament. The RRT accepted that there was a culture of violence in Bangladesh but found that there was no evidence that BNP members were vulnerable to attack by the Awami League or by anyone else.

12 The RRT was of the view that the appellant could openly participate in political activities and express his political opinions without subjecting himself to violence.

13 Accordingly, the RRT was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Refugee Convention.

The reasoning of the primary judge

14 His Honour observed that the appellant was unable to obtain pro bono legal representation and that, he made oral submissions on his own behalf. The primary judge noted that, for the most part, those submissions dealt with the factual merits of the RRT's decision and did not disclose any basis for impugning it.

15 The primary judge noted that the appellant said that he had made oral submissions to the RRT that about 200 people had been killed at a violent demonstration in which the appellant claimed to have participated. His Honour assumed that this was a reference to the demonstration of 5 November 1999. His Honour also noted that the appellant said that he had informed the RRT that about 35 people were killed by the police at the demonstration. The appellant contended that the RRT had made no reference in its reasons to any killings by the police. However, the primary judge noted that there appeared to be a reference to the number of people killed in the RRT's reasons. His Honour dismissed the appellant's submissions in the following passage of his judgment:

"I am not satisfied however that any reviewable error has been disclosed in this respect. Having regard to the view which the Tribunal formed of the applicant's credibility, the fact that it did not refer to the police would not have made any difference to the outcome. In any event, the Tribunal is not required to refer to all evidence adduced before it."

16 The primary judge referred to submissions made by the appellant to documents which he said he had provided to the RRT during the hearing. The documents were said to contain evidence of proceedings which were pending against him in Bangladesh. His Honour noted that the documents did not appear in the materials before the Court.

17 The primary judge referred in his judgment to the documents relied upon by the appellant. His Honour noted that the documents were English translations of what appeared to be court documents including a warrant for the appellant's arrest dated 1 July 2001, a record of proceedings in Bangladesh incorporating an outline of the prosecution case against the appellant arising from the demonstration which took place on 5 November 1999.

18 The primary judge's rejection of the appellant's submissions on this point were brief. His Honour said at [30] that:

"The Tribunal, it will be recalled, referred to the prevalence of document fraud in Bangladesh. It noted the documents provided by the applicant, but placed no weight on them as evidence of the truth of the applicant's claims. There is no ground for review available arising out of the Tribunal's treatment of the documents tendered at the hearing by the applicant."

19 His Honour therefore concluded that the appellant had not made out a ground of review available under s476 of the Act. He dismissed the application with costs.

Issues on appeal

20 The appellant was again unrepresented before us on appeal. He does not appear to have been assisted by a legal representative in preparing his grounds of appeal. His only stated grounds were that he would be arrested if he returned to Bangladesh and that he would be convicted and punished. The notice of appeal stated that the police were looking for him and that the Awami League people would kill him. The notice stated that the appellant had no security in Bangladesh because he has been falsely accused of murder because he was a member of the student wing of the BNP and had organised a local committee. The notice stated that the appellant had a document but did not identify it. The only reference to it in the grounds was as follows:

"I have document (to federal court) have this."

21 In his oral submissions the appellant addressed these grounds. However, he merely canvassed factual findings made by the RRT and did not refer to any error of law in the RRT's reasons or any error in his Honour's judgment.

22 In our view, there was no error in the conclusion reached by the primary judge that the appellant had not made out a ground of review. Indeed, we agree with the conclusion which he reached and the reasons given by him.

Disposition

23 For the foregoing reasons, it is our view that the appeal should be dismissed, with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall, Weinberg and Jacobson.

Associate:

Dated: 22 August 2002

	The appellant appeared in person
Counsel for the Respondent:	Mr A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 August 2002
Date of Judgment:	22 August 2002