NACU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 42 (29 January 2003)

Last Updated: 12 February 2003

FEDERAL COURT OF AUSTRALIA

NACU v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 42

NACU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N1109 of 2002

WILCOX J

29 JANUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1109 of 2002

BETWEEN:	NACU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	29 JANUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the costs of the respondent, Minister for Immigration and Multicultural and Indigenous Affairs.

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	N1109 of 2002

BETWEEN:	NACU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	29 JANUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1 This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs. The delegate had refused the applicant's application for a protection visa.

2 The applicant is a citizen of Bangladesh. He claimed to be a refugee within the meaning of the Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees on the basis that he had a well founded fear of being persecuted for reasons of political opinion.

3 The applicant gave evidence before the Tribunal of his political activity in Bangladesh. He claimed this commenced in 1987 when he was only 15 years of age. The applicant detailed various political activities and incidents that, he stated, occurred by reason of his political activities.

4 The applicant left Bangladesh in 1995 to go to Saipan where he remained for some five years. In 2000 he returned briefly to Bangladesh before coming to Australia. Shortly after arriving in Australia the applicant lodged an application for a protection visa.

5 A key matter in the claim made by the applicant to the Tribunal was that he had been tried in absentia, after his departure from Bangladesh for Saipan, and sentenced to five years' imprisonment.

6 The Tribunal accepted parts of the evidence given by the applicant. In particular, the Tribunal accepted that he may have commenced political activity at the age of about 15 years.

7 The Tribunal also accepted that the applicant may have been involved in political activities, although at a low level, between 1987 and the time of his departure for Saipan. However, after referring to political developments in Bangladesh and to "country information", the Tribunal concluded that none of the applicant's political activities put him at real risk of persecution if he returned to Bangladesh.

8 The Tribunal dealt, at some length, with the applicant's claim to have been sentenced to five years' imprisonment at a trial held in his absence. However, the Tribunal did not accept this claim. The Tribunal set out detailed reasons for that position.

9 When the hearing was called on today, the applicant appeared on his own behalf, with the assistance of an interpreter. He asked me to review the Tribunal's decision, to set it aside and order a further hearing by the Tribunal. When I asked the applicant to indicate the ground upon which he claimed this order was appropriate, he said that, if he returned to Bangladesh, the police would be looking for him in order to enforce the five year court sentence. I pointed out to the applicant that the Tribunal had refused to accept that he had been sentenced to five years gaol. I further pointed out that this was a finding of fact and was not subject to review in this Court.

10 When I asked the applicant whether there was any other point that he wished to make, he said there was nothing.

11 I think it is apparent there is no basis for this Court to grant relief to the applicant. It is not necessary or appropriate for me to express any view about the correctness of the Tribunal's finding in relation to the alleged five year gaol sentence. The reason for that is that the Migration Act 1958 gives to the Tribunal the task of finding the facts, not to the Court. It is not open to me to go over the facts and form an opinion that might be at variance with the opinion of the Tribunal and, on that basis, to set aside the Tribunal's decision. As no other matter has been raised, I have no alternative other than to dismiss the application.

12 The order that I make is that the application be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated: 11 February 2003

The Applicant appeared in person.
Counsel for the Respondent:	Mr D Jordan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 January 2003