NABG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 789 (5 June 2003)

Last Updated: 30 July 2003

FEDERAL COURT OF AUSTRALIA

NABG v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 789

MIGRATION - appeal from decision of Federal Magistrate - whether jurisdictional error on the part of the Refugee Review Tribunal - no error established - no question of principle

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth)

Federal Court of Australia Act 1976 (Cth) s 25(1)(a)

NABG v Minister for Immigration [2003] FMCA 78 affirmed

NABG & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N274 OF 2003

EMMETT J

5 JUNE 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N274 OF 2003

BETWEEN:	NABG FIRST APPELLANT NABH SECOND APPELLANT NABI THIRD APPELLANT NABJ FOURTH APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	5 JUNE 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the appeal be dismissed;

2. the appellants 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
NEW SOUTH WALES DISTRICT REGISTRY	N274 OF 2003

BETWEEN:	NABG FIRST APPELLANT NABH SECOND APPELLANT NABI THIRD APPELLANT NABJ FOURTH APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	5 JUNE 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The four appellants are citizens of Bangladesh. They arrived in Australia on 6 February 2000 and applied for protection visas under the Migration Act 1958 (Cth) (`the Act') on 25 February 2000. On 20 March 2000, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (`the Minister'), refused to grant their application and, on 12 April 2000, they applied to the Refugee Review Tribunal (`the Tribunal') for review of that decision. On 13 August 2002, the Tribunal affirmed the decision not to grant protection visas. The Tribunal published its reasons for that decision on 3 September 2002.

2 On 26 September 2002, the appellants applied to this court for orders under s 39B of the Judiciary Act 1903 (Cth) reviewing the decision of the Tribunal. A judge of the Court referred that application to the Federal Magistrates Court. On 19 February 2003, for reasons given on that day, Raphael FM ordered that the application be dismissed and that the applicants pay the Minister's costs: see NABG v Minister for Immigration [2003] FMCA 78. By notice of appeal filed on 10 March 2003, the appellants appealed from the whole of the judgment of Raphael FM to this Court. On 7 May 2003, the Chief Justice determined, pursuant to s 25(1)(a) of the Federal Court of Australia Act 1976 (Cth), that the appeal be heard and determined by a single judge.

3 Only the first appellant appeared in court today. He appeared, without objection, on behalf of the other appellants as well. He appeared in person with the assistance of an interpreter.

4 The grounds of review set out in the original application to this Court were stated as follows:

`The ... Tribunal has not attended any evidence in relation to the applicant's claims and thus its decision is influenced by sufficient doubts. The applicant provided a suitable vehicle and most of the grounds relied upon facts and documents, which the Tribunal did not consider. Thus the applicant rely on the following grounds:

(a) The ... Tribunal did not follow the proper procedure as required by the [Act]. Thus the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed (Moin, Lee's (sic) case).

(b) The [Tribunal] decision was affected by an "Error of Law" and "Jurisdictional Error".

(c) There was no evidence or other material to justify the making of the decision.'

5 The first appellant claimed that he was an active member of the Jatiya Party and that, as a result, he has been targeted by members of opposition political parties. The Jatiya Party was founded in 1985/1986 by the then President of Bangladesh, General Ershad. General Ershad and the Jatiya Party were driven from power in 1990 by a campaign involving the two major political parties, the Awami League and the Bangladesh National Party, together with smaller groups.

6 The Tribunal in its reasons accepted that the first appellant was a member of the Jatiya Party prior to his departure from Bangladesh, as he claimed. The Tribunal also accepted that he may have been the victim of isolated or random attacks by members of opposing political groups during demonstrations at some time in the past. While the Tribunal accepted that the first appellant may have been the victim of isolated or random attacks, it did not accept that he was targeted by members of the Awami League in late 1999. Nor did the Tribunal accept, as the first appellant claimed, that the first appellant was the subject of false cases brought against him by the Awami League. Further, the Tribunal did not accept the first appellant's claim that members of the Awami League threatened to kidnap his daughter because he refused to join their party.

7 The Tribunal found the evidence given by the first appellant at the hearing confused and unconvincing. The Tribunal was also not persuaded by certain documents that the first appellant provided regarding the case allegedly laid against him falsely. The Tribunal also had regard to country evidence suggesting that members of the Jatiya Party were not generally at risk of harm from members of the authorities or the Awami League in 1999. The Tribunal had regard to the evidence of the first appellant that he did not experience any problems because of his membership of the Jatiya Party between the time he returned to Bangladesh in 1993 and the time he was attacked after returning from Australia in September 1999.

8 The Tribunal also referred to the first appellant's claim that he had been attacked by members of the Bangladesh National Party prior to 1991 because of his membership of the Jatiya Party. The Tribunal concluded that, even if the claims regarding treatment before 1991 were taken at face value, the first appellant did not claim to have had problems with the Bangladesh National Party after returning home in 1993. For those reasons, the Tribunal concluded that the first appellant is not at risk of serious harm amounting to persecution from the current government of Bangladesh or its supporters because of his membership of the Jatiya Party.

9 No separate claims were made on behalf of the other appellants who are members of the first appellant's family. The first appellant claims that they too may be at risk of harm from his enemies. The Tribunal however, was not satisfied that any of them had a well founded fear of persecution for reasons of political opinion in Bangladesh. That was the only basis upon which the appellants claimed to be entitled to protection under the Refugees Convention, as defined in the Act.

10 The Magistrate, in his reasons, having read the papers before the Tribunal, concluded that there was sufficient evidence to justify the findings of the Tribunal concerning the first appellant's credibility. The Magistrate was unable to see any grounds under s 39B of the Judiciary Act that would permit him to review the decision of the Tribunal. His Honour did express some concern about the Tribunal's finding in relation to documents (at [11]). Nevertheless, his Honour did not consider that that concern was sufficient to indicate any error on the part of the Tribunal.

11 The grounds of the appeal as set out in the notice of appeal to this Court are as follows:

`2. The Single Judge of the Federal Magistrate Court ... failed to find error of law, Jurisdictional error, Procedural fairness and relief under section 39B of the Judiciary Act 1903.

3. The grounds and relief is very much similar with a recent High Court Judgment - Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 ... .

4. Recent High Court judgement: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 1 ... .

5. Recent Federal Court of Australia judgement: SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 ....'

12 Essentially, the ground relied on is that the Magistrate failed to find error of law, jurisdictional error and procedural unfairness. The other grounds do no more than recite references to recent decisions. The first appellant made no attempt on the hearing of the appeal to explain how those decision support his contention that there was error of law, jurisdictional error or procedural unfairness on the part of the Tribunal. No written submissions were filed pursuant to the direction that was given.

13 On the hearing of the appeal, the first appellant raised a matter that had not been the subject of submission to the Magistrate. He said that he complained of the decision of the Tribunal because the Tribunal had not followed the correct procedure. When asked about the failure to follow correct procedure, the first appellant said that the Tribunal did not take proper account of photographs that had been submitted by him to the Tribunal. He first said that the Tribunal did not look at the photographs, and then said that the Tribunal did not take the photographs into account.

14 The Minister did not dispute that photographs were shown to the Tribunal. Indeed, the Tribunal's reasons refer to the fact that the first appellant showed photographs of himself with leading members of the Jatiya Party. The Tribunal's reasons recorded that the first appellant said that the photographs were taken when that party was in power.

15 Thus, it is clear that the Tribunal did have regard to the photographs. In any event, the Tribunal accepted, as I have said, that the first appellant was a member of the Jatiya Party. The thrust of the first appellant's claim appears to be that the photographs demonstrate that he was associated with senior members of the Jatiya Party including the Vice-President of Bangladesh and other political leaders.

16 The Tribunal's reasons for rejecting the first appellant's claims, however, are not based on a conclusion that he was not associated at a high level with members of the Jatiya Party. The Tribunal concluded that, notwithstanding that the first appellant was a member of the Jatiya Party, he was not targeted by members of the Awami League in late 1999. The weight to be given to evidence such as the photographs in question was a matter for the Tribunal.

17 I have read the Tribunal's reasons. There is nothing in them to suggest that the Tribunal fell into error of law or committed some jurisdictional error. I do not consider that the matter of the photographs suggests any procedural unfairness on the part of the Tribunal.

18 I am not persuaded that there was any error on the part of the Tribunal. It follows that there was no error on the part of the Magistrate in dismissing the application. Accordingly, the appeal should be dismissed.

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

Associate:

Dated: 30 July 2003

Counsel for the Applicant:	The first appellant appeared in person with the assistance of an interpreter
Counsel for the Respondent:	M A Wigney
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	5 June 2003
Date of Judgment:	5 June 2003