NABT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 359 (6 November 2002)

Last Updated: 21 March 2003

FEDERAL COURT OF AUSTRALIA

NABT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 359

NABT OF 2002 V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N368 of 2002

MADGWICK, EMMETT & CONTI JJ

6 NOVEMBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N368 of 2002

BETWEEN:	NABT OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK, EMMETT AND CONTI JJ
DATE OF ORDER:	6 NOVEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The applications for the proceedings to be adjourned are refused.

2. The appeal is dismissed with 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	N368 of 2002

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

JUDGE:	MADGWICK, EMMETT AND CONTI JJ
DATE:	6 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

MADGWICK J:

1 This is an appeal against a judgment of Hely J given on 11 April 2002. In the proceedings before the learned primary judge the appellant sought judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 11 December 2001 and handed down on 9 January 2002. By that decision, the Tribunal affirmed a decision of a delegate of the respondent Minister which had been made on 5 May 1999 which rejected the appellant's application for a protection visa. The appellant had arrived in Australia on 20 February 1999 and applied for such a visa on 17 March 1999.

2 The appellant is a citizen of Bangladesh. He claims that he is a former office-holder with the Jatio Party ("JP"). He claims he was involved with the JP since the 1980s and that after a time he was appointed Vice President of that party's local branch where he lived. His claim is that he was persecuted by "thugs" supporting a rival political party, the Awami League ("AL"). Among other things, he claims that he was attacked by such people on two occasions, once in 1990 and once in 1998. As the Tribunal Member put it:

"The applicant summed up his claims stating that if he returned home AL `goons' would kill him due to AL's control of the authorities. He cited the

issuing of `false charges' against him as evidence of the party's control of the police."

3 The appellant made disturbing claims, including that he had a son killed in a violent attack by thugs associated with the AL. The Tribunal Member comprehensively rejected the appellant's credibility. The Member accepted that the appellant had had the tragedy of losing a son, but did not accept "the overwhelming bulk of his substantive claims, let alone the claims as to how his son was killed by agents of the AL".

4 The Tribunal Member summarised the matter by saying:

"The Applicant's claims are found to be inconsistent, poorly supported, contradictory and vague."

5 Throughout the reasons and, in particular, under the heading "Findings and Reasons", the Tribunal Member referred to a number of specific instances which, in the view of the Tribunal Member, warranted that summary condemnation of the appellant's claims.

6 In any case, the Tribunal Member alternatively found that:

"Even taking the Applicant's claims to the extent possible at face value, the claimed attacks suffered by him are found to be isolated events. As to the `false charges', this evidently never led to any arrest or court case. The Tribunal is satisfied that the Bangladeshi courts would not be servants of the AL, let alone now that the AL is in opposition."

7 I take this passage to indicate that, in the first place, there is no real chance of future attacks upon him, and that in relation to false charges, he can, in fact, obtain the protection of the state of his nationality via its courts.

8 The learned primary Judge referred to the summary categorisation of the appellant's claims to which I have referred, and said:

"That was an assessment which the RRT was entitled to make. The RRT concluded that the applicant had invented his claims but had failed to consider important details in the course of his application. Those conclusions are based on an assessment of the applicant's credibility, which is a function committed to the RRT and not a function committed to this Court."

9 The appellant had lodged, for his Honour's consideration, a six page written submission. His Honour said that it:

"impermissibly invites this Court to engage in a merits review of the RRT's decision."

10 The learned primary Judge referred to the appellant's difficulties with English and lack of legal knowledge, and said:

"This is understandable and the Court endeavours to do all it reasonably can to overcome the disadvantages that a person in the [applicant's] position suffers from."

11 His Honour referred to the appellant repeating his claim about the death of his son and continued:

"The truth is, he says, that if he is returned to Bangladesh the Awami League will capture him and kill him. He claims he has no work in Australia and he is only here to save his life. On this basis, the applicant appealed to me to return his case to the RRT for consideration."

12 His Honour's reasons for decision appear to be the following. His Honour said:

"However, nothing that the applicant has written and nothing which he put to me comes anywhere near disclosing even an arguable case for relief under section 39B of the Judiciary Act 1903 (Cth) which, in the light of the Migration Act 1958 (Cth) as it now stands, is the source of this Court's jurisdiction.

Similarly, nothing which the applicant has written, and nothing that the applicant has put to me establishes an entitlement on the part of this Court to remit the matter to the RRT in the light of the privative clause contained in section 474(1) of the Migration Act. The law just does not allow me to do what the applicant seeks that I should do. In those circumstances, I have no choice but to make an order dismissing the application for an order of review."

13 In his notice of appeal, under the heading "Grounds" the appellant said:

"I am not satisfied with the judgment. I [have] established my case before the single Judge of the Federal Court. I am going to submit further grounds of my appeal shortly: I am making this application under the Judiciary Act."

14 No further grounds of appeal were ever lodged, nor were any written submissions.

15 The appellant filed a notice of motion on 22 October 2002 seeking that today's hearing be adjourned because he was fasting for Ramadan. The Court caused a letter to be sent to the appellant telling him that his application would be heard on the day fixed for hearing of the appeal, namely today. Today, the appellant has sought an adjournment because of claimed illness. The Court was not satisfied that the appellant's religious obligations to fast nor his claimed medical condition justified any adjournment of the proceedings.

16 The appellant was then invited to make submissions indicating the nature of the errors he asserted had been made by the learned primary Judge but he made no submission at all in response to this, apart from asking the Court what he could say. Indeed, at one point the appellant suggested that he acknowledged that the learned primary Judge had made no error.

17 Because of the disturbing nature of the appellant's claims I have, for myself, examined the reasons of the Tribunal and, like the learned primary Judge, I do not see that there is any case under the law for the Court to intervene. One gathers from the language of the learned primary Judge that he had examined the matter himself with some anxiety.

18 In my opinion Hely J was right for the reasons that he gave. It follows that the appeal should be dismissed and I would so order.

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

Associate:

Dated: 18 November 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N368 of 2002

BETWEEN:	NABT OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK, EMMETT AND CONTI JJ
DATE:	6 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

EMMETT J:

19 I agree. I have also considered the reasons of the Tribunal and have been unable to discern any error. The Tribunal's decision undoubtedly related to the subject matter of the Migration Act and was clearly capable of reference to the power given to the Tribunal under that Act. Accordingly, so long as the Tribunal's decision was a bona fide attempt to exercise power under the Act, s 474 of the Act precludes the Court from granting any relief in relation to the decision of the Tribunal. There is no suggestion of bad faith in the reasons of the Tribunal and no attempt has been made to establish bad faith by the appellant.

20 The conclusion reached by the primary Judge was that the Court, by reason of the operation of s 474, had no power to interfere with the decision of the Tribunal. His Honour was clearly correct in that conclusion and accordingly the appeal should be dismissed.

I certify that the preceding two (2) paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 18 November 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N368 OF 2002

BETWEEN:	NABT OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK, EMMETT AND CONTI JJ
DATE:	6 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(revised from transcript)

CONTI J:

21 I agree with the decisions and accompanying reasons of Madgwick and Emmett JJ.

I certify that the preceding paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 18 November 2002

Appellant appeared in person.
Counsel for the Respondent:	R Bromwich
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	6 November 2002
Date of Judgment:	6 November 2002