NANV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 3 (11 February 2004)

Last Updated: 11 February 2004

FEDERAL COURT OF AUSTRALIA

NANV v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 3

MIGRATION – appeal – no error disclosed



















NANV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 811 OF 2003












HILL, MARSHALL AND FINKELSTEIN JJ
11 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 811 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

BETWEEN:	NANV APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	HILL, MARSHALL AND FINKELSTEIN JJ
DATE OF ORDER:	11 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 811 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE COURT

BETWEEN:	NANV APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	HILL, MARSHALL AND FINKELSTEIN JJ
DATE:	11 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT

1 This is an appeal from a judgment of Madgwick J, dismissing an application by the appellant for judicial review of a decision of the Refugee Review Tribunal ("the RRT").

2 The appellant is a citizen of Bangladesh. He entered Australia on 3 June 1998. On 14 July 1998, he lodged an application for a protection visa, claiming to be a citizen of India. A delegate of the respondent rejected that application. It resulted in a judgment of the Court dismissing an application for judicial review of a decision of the RRT adverse to the appellant. The judgment was delivered on 26 April 2001.

3 As his earlier application was considered to be a nullity, the appellant lodged a further application for a protection visa on 3 July 2001. On 22 April 2002, a delegate of the respondent rejected that application. The appellant then applied to the RRT to review that decision. On 4 March 2003, the RRT affirmed the decision of the delegate not to grant the appellant a protection visa.

4 Before the RRT, the appellant claimed that he feared persecution if returned to Bangladesh on account of his religion (Hindu) and his political opinion as an Awami League activist and member of the Bangladesh Hindu Buddhist Christian Unity Council, a human rights lobby.

5 The RRT accepted that the appellant is a Bangladeshi national and that he is a Hindu. It accepted, further, that in 1996 he was involved in trying to support a local Hindu girl and was attacked as a consequence. Additionally, it found that Hindus in Bangladesh have suffered increased harassment and harm from fundamentalist Muslims, but that the attacks are usually on prominent Hindus or are random in nature.

6 The RRT found that it would be reasonable for the appellant to relocate to Dhaka to avoid harm. It found that he would not be individually targeted in "the large urban conglomerate of Dhaka", particularly given his six-year absence from Bangladesh.

7 On the topic of political opinion, the RRT considered that given the appellant’s lack of "any level of prominence" in the Awami League, there was no real chance that he would suffer persecution at the hands of the Bangladeshi government or its supporters, especially upon relocation to Dhaka.

8 At [10] and [11] of his reasons for judgment, Madgwick J said:

"The applicant who speaks no English and is not legally qualified, relied on written submissions which, evidently, a lawyer of some capacity prepared for him. The submission was put that he had sought refugee status on three bases; namely religion, political opinion and membership of a social group. It is said that the Tribunal failed to consider and failed to assess his claim to be entitled to refugee status on the basis of his membership of the particular social groups, to which the applicant’s evidence and submissions made reference. The conceivable social groups were Hindu people, Hindu activists, supporters of the Chatra League and members or supporters of the Bangladesh Hindu Buddhist Christian Unity Council ("BHBCUC"), a human rights lobby.

It is true that the Tribunal Member did not analyse his membership of any of these groups in terms of whether it was a "particular social group", but in the course of considering claims to persecution on account of political opinion and on account of religion, he decisively negatived every integer of the claim that might have been put in relation to each such social group. In my opinion the Tribunal Member did not fail to address the way in which the applicant’s case might be put or understood, even if poorly articulated."

9 We agree, with respect, with his Honour’s response to the submission that the RRT failed to assess the appellant’s claims by reference to the particular social group criteria. We agree that each aspect of those claims was rejected by the RRT. No issue was taken by counsel for the appellant on the appeal concerning the correctness of his Honour’s reasons in that respect.

10 On the appeal, counsel for the appellant contended that the RRT erred in finding that the appellant could relocate to Dhaka. Issue was taken with the finding by the RRT that the appellant was an educated person with entrepreneurial skills appropriate to an urban environment. Issue was also taken with the finding that only prominent Hindus are likely to be targeted in Bangladesh. These matters are each findings of fact that were open to the RRT on the material before it.

11 In our opinion there was material before the RRT to support the disputed findings. On the later aspect, as Madgwick J observed, material from the appellant’s adviser recognised that ordinary Hindus who were not prominent are unlikely to be attacked.

12 We would dismiss the appeal with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill, Marshall and Finkelstein.

Associate:

Dated: 11 February 2004

Counsel for the Appellant:	Mr I Archibald
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 November 2003
Date of Judgment:	11 February 2004