Nabi v Minister for Immigration & Multicultural Affairs [2000] FCA 839 (5 June 2000)

Last Updated: 29 June 2000

FEDERAL COURT OF AUSTRALIA

Nabi v Minister for Immigration & Multicultural Affairs [2000] FCA 839

MD NUR NABI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 98 OF 2000

MANSFIELD J

5 JUNE 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 98 OF 2000

BETWEEN:	MD NUR NABI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE OF ORDER:	5 JUNE 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay to the respondent costs of the application to be taxed.

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 98 OF 2000

BETWEEN:	MD NUR NABI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	5 JUNE 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for a review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 11 January 2000. The Tribunal affirmed a decision of a delegate of the respondent refusing to grant the applicant a protection visa under the Migration Act 1958 (Cth) ("the Act"). The Court, in hearing the application for review, is restricted to the grounds of review available under s 476(1) of the Act. In the present circumstances where the applicant has appeared in person with the assistance of an interpreter, I have endeavoured with some care to identify what it is that the applicant seeks to argue on this application.

2 Before referring to the grounds of review as I perceive them, it is necessary to note a little of the background. The applicant is a citizen of Bangladesh. He is aged forty-one. He is married with two sons, but his family is still in Bangladesh. He left school in 1973 and worked thereafter as a cook in the merchant navy. He lived in Bangladesh until 1996, except for a period of about two years between 1991 and 1993 when he lived in Saudia Arabia. He left Bangladesh on 23 October 1996 and arrived in Australia on a seaman's visa on 7 January 1997. He applied for a protection visa under the Act on 30 June 1997.

3 The Tribunal recorded the general nature of his claims. He joined the Jatiotabadi Dal Party in his local area in December 1978. That party was opposed to or opposed by the Awami League. As the Tribunal found, sometimes that opposition was violent and uncontrolled. In 1982, following a military coup, he was detained for about one week in April 1982. After that, he was arrested and beaten on several occasions during the 1980s. In 1990, following the election, the Bangladesh National Party ("the BNP") came to power. That was the party with which he was associated. During the period of its government, the Awami League was the opposition party, and sometimes it provided a violent opposition. The applicant claimed to have been attacked by the Awami League and severely injured on 29 April 1994 because of his activities on behalf of the BNP.

4 In the 1996 elections, the Awami League came to power. The applicant claimed then that, shortly after the election, his house was looted and he and his family were threatened. He also claimed that, on 15 August 1996, his house was again looted by members of the Awami League and his family threatened. He said that the gang of members of the Awami League were then looking for him to kill him, but he was not at home. The applicant then escaped from Bangladesh by working on a ship. He eventually found his way to Australia.

5 The applicant fears that he will be killed by members of the Awami League if he returns to Bangladesh. He claims to have had a significant profile in the BNP during the period of its government, sufficient to make him a target for the Awami League members. He also claims that members of his family have been harassed by the Awami League as recently as 1999.

6 The Tribunal's reasons are set out in a conventional manner, containing reference to the applicant's claims and to the evidence, the general background evidence concerning Bangladesh, and then the section headed, "Reasons for Decision".

7 In its Reasons for Decision, the Tribunal referred to the applicant's claims and made findings about them. Its conclusion appears in the following passage:

"After considering all of the evidence I accept that Mr Nabi may have been a member of the BNP but I'm not satisfied that he has held the position of Assistant Secretary of his local branch in recent years. I accept that he may have been involved in violent clashes between the Awami League and the BNP during the 1996 election campaign.

However, I do not accept that he was singled out as a target by the local MP or his supporters nor that he is known throughout Bangladesh because of his political activities nor that his family have been harassed since his departure, nor that his home was attacked in June 1999. As discussed above the BNP is a legal political party with a large following and many seats in parliament. The evidence does not suggest that members of the party are generally at risk of harm from the current government or its supporters because of their BNP membership. In these circumstances I am not satisfied that Mr Nabi has a well-founded fear of persecution because of his political opinion in Bangladesh."

8 That conclusion was reached for reasons which the Tribunal had expressed immediately before that conclusion, including its view that the applicant was not an entirely credible witness and had fabricated some of his claims in support of his application.

9 The application for review to the Court identified three grounds.

10 The first ground of review was that the Tribunal should have given the applicant the opportunity to comment upon any evidence that had been considered by the Tribunal. That ground was prepared by the applicant with the assistance of a migration agent. He was unable on the hearing to explain what it meant. In the particular circumstances, I do not see any merit in that ground of review. As best I can understand it, it is a complaint that the Tribunal failed to accord natural justice to the applicant. However, s 476(1)(a) of the Act precludes the Court from reviewing a decision of the Tribunal on that ground. In so far as the applicant might be invoking s 476(1)(a) of the Act, the applicant has not indicated any procedure which the Tribunal was obliged to follow in the making of the decision which it did not follow. In particular, having regard to the Tribunal's reasoning, and to the fact that it interviewed the applicant on 1 November 1999, it has not been shown that the Tribunal failed to comply with s 424A(1) of the Act. The Tribunal's reasons show that it raised with the applicant a series of issues which it regarded as significant, or possibly significant, to the applicant's claims and sought his comments upon them. No other matter was specifically identified as a matter upon which he should have been given the opportunity to comment. I note the qualification upon the obligation by reason of s 424A(3) of the Act. It limits the sort of information which the Tribunal must put to a visa applicant. But, in any event, it has now been shown that the Tribunal failed to put to the applicant information which falls within s 424A(3). To the extent that the applicant's complaint is of some general form of unfairness on the part of the Tribunal, the High Court in Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 and in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; [1999] 162 ALR 577 has made it plain that the Tribunal, in carrying out its functions in accordance with s 420 of the Act, is not subject to the Court exercising the ground of review available under s 476(1)(a).

11 The second and third grounds of review also invoke s 476(1)(a) of the Act and s 476(1)(g) of the Act.

12 Upon my questioning of the applicant, in an endeavour to understand his complaint from the very generally expressed grounds in his application, the applicant was again not able to identify any particular matters which would constitute a procedure required by the Act to be observed, or which would constitute particular facts not found so as to bring his claim for review within those provisions.

13 The applicant did, however, in submissions make two general complaints of injustice which I should consider in relation to those provisions. The first was that the Tribunal had failed to give any weight to a written statement submitted in Bengali to the Tribunal following its first hearing on 15 July 1999. The applicant submitted that that statement corrected a number of mistakes in the earlier statement which he had provided in support of his application for the visa. The second was that, at the interview which the Tribunal conducted on 1 November 1999, due to difficulties of interpretation, what he had said to the Tribunal had not been accurately reported to it. I will consider each of those matters in turn.

14 In my judgment the first complaint made by the applicant does not give rise to a ground of review available under the Act. It is clear that the Tribunal did have regard to the statement submitted in Bengali. It said as much in its reasons, including that that statement was translated to it and that it had compared that statement as translated with the earlier statement of the applicant. The applicant joined issue with the Tribunal's description of that statement as being substantially the same as his earlier submission, but that is a matter of judgment for the Tribunal. Furthermore, I do not think that the complaint as to the way in which the Tribunal interpreted or understood that statement involves an error to which s 476(1)(a) can be attached. It is the Tribunal's function to consider the material before it and to reach a decision. In doing so it is obliged to follow the procedures set out in Div 4 of Pt 7 of the Act. The way in which it considered that statement does not demonstrate any failure on its part in that regard.

15 Nor do I consider that the complaint of the applicant brings the matter within s 476(1)(g) of the Act. In the decision in Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 ("Curragh") at 220 - 221 the Chief Justice explained the nature of the onus upon a person relying upon a provision such as s 476(1)(g) of the Act, as it is explained in subs (4)(b) of the Act. That decision concerned the analogous provisions in ss 5(1)(g) and 5(3)(b) of the Administrative Decisions (Judicial Review) Act (1977) (Cth), but those observations are commonly applied to consideration of ss 476(1)(g) and (4)(b) of the Act. There is no basis identified in submissions which could establish that there was no evidence or other material to justify the making of the decision by the Tribunal arising from its consideration of the statement submitted in Bengali.

16 The second general submission made by the applicant concerned the interview on 1 November 1999. In so far as that interview appears to have been significant to the Tribunal, it is set out in its reasons. It is not otherwise in the material before the Court. There were three parts of the Tribunal's recording of that interview and its reasons with which the applicant took issue. The first was its noting that the applicant had said that as he was the secretary of his branch of the BNP, he led the procession whenever he was asked. The applicant put in submissions that he had said on that topic that "Whenever there was a need I went there". The second matter concerned a letter which the applicant had procured and submitted to the Tribunal from a President of a branch of the BNP, which referred to the applicant having been arrested on 1 April 1982 and then receiving bail. It said "Now he is convicted". The applicant was asked what that meant and is recorded as saying that he had written to the BNP asking for a letter to give to the Tribunal and this was their response. It is not necessary to refer to the full text of what he is recorded as saying. He told me: "Maybe I did not understand the question properly".

17 The third passage is that where the Tribunal records the applicant as saying that in 1996 he paid bribes to obtain a visa and left Bangladesh. He told me that he did not say that, and he did not heed a visa to leave Bangladesh as he was a seaman. He said the bribe was for speeding up the process for leaving the country.

18 Having regard to those matters, I do not consider that the applicant has demonstrated that the Tribunal failed to comply with a procedure with which it was obliged to comply in connection with the making of the decision. As I have noted, those procedures are generally set out in Div 4 of Pt 7 of the Act. At the interview on 1 November 1999, the Tribunal noted that the applicant did not have any significant problem hearing the interpreter. That may or may not have been accurate in fact, but it is the perception of the Tribunal at the time. Its understanding of the state of affairs which existed at that time has not been shown to have been in error. Indeed, given the minor respects in which the applicant now joins issue with what the Tribunal recorded of that discussion, it seems that the Tribunal did apprehend with reasonable understanding what the applicant was then saying. Any unspecified interpretation difficulties experienced at that time, if they existed, do not lead to the conclusion that the Tribunal did not give the applicant the opportunity to appear to give evidence as required by ss 425 and 425A of the Act.

19 I am also not satisfied that the ground of review under s 476(1)(g) has been made out. It is necessary for the applicant in the circumstances to show that the decision was based on the existence of a particular fact or facts, and that that fact or facts did not exist. Those matters are explained in Curragh. In respect of none of the three matters which the applicant has identified am I satisfied that it was a particular fact as that term is explained in Curragh, because none of those facts was critical to the making of the decision. In addition, the onus is upon the applicant to show that the particular fact or facts did not exist. He has not shown that to be the case. In relation to the first of the three matters he identified, I do not think the difference of expression to which the applicant refers, indicates that the fact as found by the Tribunal did not exist. It may be no more than a paraphrase by the Tribunal, reflecting in general terms, what the applicant was then saying. In respect of the second matter, which involves the way the applicant responded to an observation in the letter to which I have referred, the applicant did not ultimately submit that the Tribunal had inaccurately recorded what he said, but rather that he may have misunderstood the question and therefore given an unsatisfactory answer. In relation to the third matter, without the benefit of the transcript or recording of that hearing, I am prepared to assume in the applicant's favour that he did not say that he paid bribes to obtain a visa. However, as I have indicated, I do not think that that finding of the Tribunal about what the applicant said was a critical fact in the making of the decision: see Curragh.

20 At the conclusion of his submissions the applicant indicated that he was really complaining that the Tribunal had a wrong understanding of the nature of his case from the beginning, so that its process of considering his claim for review did not proceed. I think that discloses that, in reality, the applicant's application for review was a complaint about the merits of the Tribunal's decision. It is not within the power of the Court to review decisions of the Tribunal on the merits. The Court's powers are those set out in s 476 of the Act.

21 For those reasons, I do not think that the applicant has made out any of his grounds of review. In my judgment this application must be dismissed. There is no particular reason why the normal order as to costs should not flow. I order that the applicant pay to the respondent costs of the application to be taxed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 22 June 2000

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr J Smith
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 June 2000
Date of Judgment:	5 June 2000