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1 One thing is clear about the Refugee Review Tribunal's reasons and that is that such as they are, they are far from satisfactory. At the commencement of the passage in the Tribunal's reasons headed "Findings and Reasons" the Tribunal makes the following comments:

‘When determining whether an applicant is entitled to protection in Australia the Tribunal must first making findings of facts on the claims he or she has made. This may involve an assessment of the credibility of the applicant.

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

NAKD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 321 (27 November 2003)
Last Updated: 10 February 2004

FEDERAL COURT OF AUSTRALIA


NAKD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 321



MIGRATION – appeal – no error disclosed





Migration Act 1958 (Cth)

























NAKD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 596 OF 2003



HILL, MARSHALL AND FINKELSTEIN JJ
27 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 596 OF 2003


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: NAKD
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: HILL, MARSHALL AND FINKELSTEIN JJ
DATE OF ORDER: 27 NOVEMBER 2003
WHERE MADE: SYDNEY


THE COURT ORDERS THAT:


1. The appeal be dismissed.
2. No order as to 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 596 OF 2003


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


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


JUDGES: HILL, MARSHALL AND FINKELSTEIN JJ
DATE: 27 NOVEMBER 2003
PLACE: SYDNEY


REASONS FOR JUDGMENT

HILL J:

1 One thing is clear about the Refugee Review Tribunal's reasons and that is that such as they are, they are far from satisfactory. At the commencement of the passage in the Tribunal's reasons headed "Findings and Reasons" the Tribunal makes the following comments:

‘When determining whether an applicant is entitled to protection in Australia the Tribunal must first making findings of facts on the claims he or she has made. This may involve an assessment of the credibility of the applicant.

When assessing credibility, the Tribunal must be sensitive to the difficulties often faced by asylum seekers and should give the benefit of the doubt to those who are generally credible, but unable to substantiate all of their claims.

However, a decision maker is not required to accept uncritically any and all allegations made by an applicant, nor is it necessary to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, nor to accept claims which are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality ...’ (references omitted).

2 This comment, with or without minor variation, appears in virtually every Reasons for Decision of the Tribunal however constituted. As a statement of principle it is unexceptionable. The difficulty in the present case is whether the statement of principle, although expressed, was really observed. As the joint judgment of Marshall and Finkelstein JJ makes clear, the Tribunal accepted that part of the applicant's claim in which he asserted that he had been beaten up by Awami League thugs. It rejected, without indicating why, that part of the claim made at the same time that he had been charged with serious offences in Bangladesh by the BNP party. We do not know what the details of that claim were because we do not have access to the transcript of the proceedings before the Tribunal.

3 It seems that between the making of these two claims and the Tribunal hearing the government changed in Bangladesh. The Awami League came into power.

4 So far as it is possible to discern, the case put before the Tribunal seems to be that the appellant was part of a faction supporting the BNP party but not the faction that ultimately obtained control. It may be described as the losing faction. The appellant from the bar table indicated that the President had belonged to that faction but had ultimately been removed from power, presumably by the other faction of the BNP party. It is not clear precisely how the appellant put the case to the Tribunal.

5 Certainly the Tribunal member rejected the suggestion that the appellant was part of the losing faction of the BNP. As the learned Primary Judge observed in his decision there was nothing in the material before the Tribunal that compelled the conclusion that the appellant was not part of the losing faction, nor is there anything on the face of the appeal papers that would suggest any ground for disbelieving the matter that a false charge had been laid against him. This is particularly so when it is realised that the Tribunal accepted that the appellant had been beaten up.

6 The Migration Act 1958 (Cth) contemplates that when there has been an application lodged with the Refugee Review Tribunal that Tribunal will conduct a real review. That is to say, the Act contemplates that the Tribunal will consider all matters placed before it and make findings of fact and draw conclusions directed to the issue which it is required to decide, namely whether it is satisfied that the applicant before it is a person to whom Australia has protection obligations. Merely to go through the motions of a review claiming not to accept evidence of the appellant may not in a particular case constitute a review at all. Particularly it should be emphasised that evidence given by an applicant is evidence. There is no legal requirement that evidence given by an applicant can not be accepted unless corroborated. It is true that the Tribunal will not be required to accept that evidence uncritically. The Tribunal is not required to accept what an applicant says. But it is also true that the Tribunal is not required to reject evidence uncritically.

7 It will be difficult, as the present case shows, for an appellant to demonstrate that what the Tribunal has done is not consistent with its obligation to conduct a review. Uncritical rejection of evidence may be one way that can be demonstrated. Although I do not think that the present case is one that demonstrates that the Tribunal has not conducted a review it comes perilously close to that. The appellant is entitled to ask and be able to ascertain from the Tribunal’s reasons why he lost before the Tribunal. For my part I would have difficulty in answering that question from a study of the Tribunal’s reasons.

8 However, as I have indicated I do not think that the present case is one where there has been jurisdictional error and accordingly I agree with Marshall and Finkelstein JJ that the appeal must be dismissed.

9 I am of the view, and for the reasons I have given, that the Tribunal's decision is so unsatisfactory that the present is not a case where it would be appropriate to require an unsuccessful appellant, albeit having lost at first instance before a Judge of this Court, to pay the costs of the appeal. I would accordingly order that there be no order as to costs.


I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.



Associate:


Dated: 9 February 2004





IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 596 OF 2003


ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA


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


JUDGES: HILL, MARSHALL AND FINKELSTEIN JJ
DATE: 27 NOVEMBER 2003
PLACE: SYDNEY




REASONS FOR JUDGMENT

MARSHALL AND FINKELSTEIN JJ

1 This is an appeal from a judgment of Madgwick J dismissing the appellant’s application for review of a decision of the Refugee Review Tribunal ("the RRT"). The RRT had affirmed a decision of a delegate of the respondent that the appellant was not a Convention refugee and thus not to be granted a protection visa.

2 The appellant is a citizen of Bangladesh. He entered Australia on 19 September 2000. On 12 October 2000 he lodged an application for a protection visa. The appellant claimed that if he were required to return to Bangladesh he feared persecution on account of his political opinion, which was antagonistic to the ruling Awami League and its violent supporters. He claimed that false charges of carrying explosives had been laid against him by Awami League supporters.

3 By the time the application for review came before the RRT the Awami League had been replaced by the BNP as the ruling party in Bangladesh. The appellant claimed that he still faced persecution under the new government as it would continue with the charges because he belonged to the less powerful of the two factions of the BNP.

4 The RRT accepted the appellant’s evidence that he was a BNP supporter who had been beaten by Awami League thugs. It was not, however, satisfied that the appellant had been charged with serious offences in Bangladesh or had outstanding charges against him when he left that country. Moreover, the RRT found that it was not satisfied that the appellant was part of any "losing faction of the BNP".

5 The RRT’s reasons for rejecting the appellant’s evidence can certainly be described as brief. It is as well to set out in full what the RRT said:

"I am satisfied that the [appellant] was a BNP [supporter] who was beaten up by Awami League thugs. I am not satisfied that he was charged with serious offences in Bangladesh. I note he was able to obtain a passport and leave Bangladesh. I am not satisfied that he has any outstanding charges against him. I am not satisfied that he is part of any losing faction of the BNP.

I note that the government has arrested many political activists including a number of BNP members and local leaders. I note that the [appellant] has been out of the country during these incidents. It is [not] apparent that the [appellant] would be at risk of arrest and mistreatment. I am not satisfied that there is any real chance that the [appellant] would be persecuted if he were to return to Bangladesh. I am not satisfied that any fear of persecution he may have is well founded."

6 The manner in which the RRT despatched the appellant’s evidence troubled the trial judge. He pointed out, quite correctly in our opinion, that there was nothing in the independent material which rendered implausible the appellant’s evidence. He also pointed out, again correctly, that it did not appear from the reasons that the RRT member regarded the appellant as a person who was generally an unreliable witness. As the trial judge said, the RRT left "simply unexplained" in its reasons why the appellant was disbelieved.

7 This is a most unsatisfactory situation. It is simply not good enough for the RRT to dismiss a claim for refugee status in this cursory manner. Not only is an applicant for refugee status entitled to know why his claim is not accepted, he is also entitled to be given proper reasons so that he can see whether there has been legal error.

8 In the end, however, the question in each individual case is not whether the RRT performed its functions as it was required to do, but whether in arriving at its decision it erred in law. We can find no such error. It is evident that the appellant’s claim was rejected because he was not in all respects regarded as a reliable witness in his own cause. That was a conclusion which the RRT was entitled to reach. It is unfortunate that it did not explain itself in clear terms.

9 Be that as it may, in our opinion the appeal should be dismissed. We agree with what Hill J has said on the question of costs.


I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall and Finkelstein.



Associate:


Dated: 9 February 2004



The appellant appeared for himself.




Counsel for the Respondent: Mr Robert Beech-Jones



Solicitor for the Respondent: Clayton Utz



Date of Hearing: 27 November 2003



Date of Judgment: 27 November 2003
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