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1 This is an appeal from a judgment of a Judge of this Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("Tribunal") handed down on 25 March 2003. The Tribunal affirmed the decision of a delegate of the respondent ("Minister") to refuse to grant the appellant a protection visa.

NAOK v Minister for Immigration & Multicultural & Indigenous Affairs [2003]

NAOK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 271 (26 November 2003)
Last Updated: 26 November 2003


FEDERAL COURT OF AUSTRALIA
NAOK v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 271


NAOK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 984 OF 2003

SACKVILLE, SELWAY & LANDER JJ

SYDNEY

26 NOVEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 984 OF 2003





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
NAOK

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
SACKVILLE, SELWAY & LANDER JJ


DATE OF ORDER:
26 NOVEMBER 2003


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's 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
N 984 OF 2003





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
NAOK

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
SACKVILLE, SELWAY & LANDER JJ


DATE:
26 NOVEMBER 2003


PLACE:
SYDNEY





REASONS FOR JUDGMENT
THE COURT

1 This is an appeal from a judgment of a Judge of this Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("Tribunal") handed down on 25 March 2003. The Tribunal affirmed the decision of a delegate of the respondent ("Minister") to refuse to grant the appellant a protection visa.

2 The appellant is a citizen of Bangladesh who arrived in Australia on 21 October 2000. On 3 September 2001, the appellant lodged an application for a protection visa. That application was refused by the delegate on 18 December 2001. As noted, the Tribunal subsequently affirmed the delegate's decision.

3 The appellant claimed that he had been a member of Jatiotabadi Chatradal, the student wing of the Bangladesh Nationalist Party ("BNP"). He said that he had been targeted by the Awami League ("AL"), who had threatened to kill him twice during the year 2000. It was for that reason that he had decided to leave Bangladesh. The appellant also claimed that he had been a victim of a fabricated criminal case. As the Tribunal noted, these claims were made in virtually the same words as statements of other applicants who had been represented by the same migration agent.

4 Two days before the Tribunal's hearing, the appellant filed a further submission, but this provided no additional specific information about his particular circumstances. Rather, it made assertions about the activities of AL in Bangladesh.

5 The Tribunal considered that the appellant's evidence had been unsatisfactory in a number of important respects. It did not consider that his evidence could be relied upon where it was implausible or inconsistent with independent information.

6 The Tribunal found that there was ample evidence that all the major parties in Bangladesh, in particular their student wings, had been involved in mutual violence over a number of years. It was not satisfied that the appellant was facing charges, false or otherwise, or that he was wanted by the authorities. Nonetheless, the Tribunal considered the situation should the appellant, contrary to its findings, face charges in Bangladesh because of his claimed activities on behalf of the BNP.

7 On this hypothesis, the Tribunal was not satisfied that any charges would have arisen for a Convention reason or would have amounted to persecution. The appellant would simply face prosecution in Bangladesh in the ordinary way for alleged criminal offences. This did not amount to persecution for the purposes of the Convention.

8 The Tribunal noted, further, that the BNP had triumphed in national elections in October 2001. It did not accept that a claimed BNP member would be targeted with impunity by local AL student wing supporters and yet be unable to have recourse to the authorities to resolve any "false charges" laid by political opponents. The appellant's submissions had taken little real account of the change in government in Bangladesh from AL to BNP in 2001.

9 Accordingly, the Tribunal was not satisfied that the appellant faced a real chance of harm or persecution in Bangladesh for a Convention reason.

10 The appellant's application for judicial review asserted that he had been "deprived to fully present my case to the Tribunal" and that the Tribunal "failed to act according to substantial justice and the merits of the case". A brief accompanying affidavit made some criticisms of the Tribunal's assessment of the evidence and accused it of failing to "perceive [the] burning realities" of the grim political conditions in Bangladesh.

11 The primary Judge characterised the submissions filed by the appellant, which had evidently been prepared by somebody else, as "quite unhelpful". His Honour asked the appellant if he could indicate any documents that might have been overlooked by the Tribunal, but the appellant declined to add to the written submissions.

12 In these circumstances, his Honour concluded, not surprisingly, that no jurisdictional error had been shown. Nor was his Honour able to discern any such error.

13 The notice of appeal, in common with many cases involving unrepresented appellants from Bangladesh and other countries, invokes the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601. It does not explain, however, how the circumstances of the present case involved any denial of procedural fairness by the Tribunal. Nor does the notice of appeal identify any error of law by the primary Judge or any other basis for concluding that the Tribunal's decision was affected by jurisdictional error.

14 When the appeal was called on for hearing, the appellant failed to appear. Mr Lloyd, counsel for the Minister, applied for the proceedings to be dismissed pursuant to Federal Court Rules, O 52 r 38A(1)(c), by reason of the appellant's non-appearance. In view of the appellant's non-appearance and the evident lack of merit in the appeal, we consider this to be the appropriate course.

15 Accordingly, the appeal must be dismissed, with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sackville, Selway & Lander.




Associate:

Dated: 26 November 2003

Counsel for the Appellant: The appellant did not appear.

Counsel for the Respondent:
Mr S Lloyd






Solicitor for the Respondent:
Sparke Helmore






Date of Hearing:
26 November 2003






Date of Judgment:
26 November 2003


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