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1 The appellant is a citizen of Bangladesh who arrived in Australia on 16 October 2001. On 8 November 2001, he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") under the Migration Act 1958 (Cth) ("the Act"). On 20 February 2002, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the delegate") refused to grant a protection visa, and on 18 March 2002, the appellant applied for review of that decision to the Refugee Review Tribunal ("the RRT"). The RRT, on 22 May 2002, affirmed the decision not to grant a protection visa, whereupon an application for review was made to this Court.

NATK v Minister for Immigration and Multicultural and Indigenous Affairs [2

NATK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 18 (9 February 2004)
Last Updated: 18 February 2004

FEDERAL COURT OF AUSTRALIA


NATK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 18


























NATK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N1600 of 2003






BEAUMONT, LINDGREN AND TAMBERLIN JJ
9 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1600 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: NATK
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: BEAUMONT, LINDGREN AND TAMBERLIN JJ
DATE OF ORDER: 9 FEBRUARY 2004
WHERE MADE: SYDNEY


THE COURT ORDERS THAT:

The appeal be dismissed with 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 N1600 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


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


JUDGES: BEAUMONT, LINDGREN AND TAMBERLIN JJ
DATE: 9 FEBRUARY 2004
PLACE: SYDNEY


REASONS FOR JUDGMENT

THE COURT:

1 The appellant is a citizen of Bangladesh who arrived in Australia on 16 October 2001. On 8 November 2001, he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") under the Migration Act 1958 (Cth) ("the Act"). On 20 February 2002, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the delegate") refused to grant a protection visa, and on 18 March 2002, the appellant applied for review of that decision to the Refugee Review Tribunal ("the RRT"). The RRT, on 22 May 2002, affirmed the decision not to grant a protection visa, whereupon an application for review was made to this Court.

2 The primary judge dismissed the application for review, after pointing out that the grounds were devoid of specificity and were, in effect, assertions of an error of law amounting to jurisdictional error in finding that the appellant did not have a genuine fear of persecution, and that there had been an incorrect application of law. In the absence of any particularisation of the grounds, his Honour was not persuaded that there was any error on the part of the RRT. Therefore, since the decision of the RRT was a privative clause decision under s 474(1) of the Act, his Honour held that judicial review should be refused.

3 The Notice of Appeal filed by the appellant on 27 October 2003 states that the ground of appeal is that the Federal Court erred in not taking into consideration the appellant�s well-founded fear of the persecution that he would face on return to Bangladesh due to his political beliefs. It is also said that the decision had not afforded the appellant procedural fairness. No particulars were given.

RRT DECISION

4 The appellant claims to fear persecution from supporters of the Bangladesh National Party ("BNP"), a political party, which he said had threatened him with harm because of his membership of the Awami League and his associated political activities. This was said to be because he was particularly effective in increasing public support for the Awami League. He claimed that, despite his residence in the United Arab Emirates between 1997 and 2001, he would continue to be at risk of harm from BNP supporters if he returned to live in Bangladesh. He claimed that State authorities would not provide protection.

5 The RRT accepted that the appellant was a supporter of the Awami League and that he was involved in it while at school and when he started college. It did not accept that he had an active role in organising demonstrations, protests and meetings between 1992 and 1997, although he may have taken part in them. This is because his evidence as to his party activities was generalised and lacked sufficient detail. The RRT reasons refer to the lack of detailed knowledge, by the appellant, of the structure and organisation of the Awami League and the fact that he was not able to discuss party policy in any depth. The RRT took the view that a committed activist who was successful in increasing public support for the Awami League would have a more detailed knowledge of the organisation. Regard was also paid to the age of the appellant at that time, namely sixteen years of age. The RRT did not accept that the appellant was known to be very successful in increasing public support. It did not accept that the BNP targeted the appellant for harm for these reasons. It formed the view that the appellant did not have a high profile and was not prominent in the Awami League. These findings raise doubts as to the credibility of the appellant�s evidence in significant respects.

6 The RRT accepted that during one of the gatherings the appellant attended in 1997, he may have been attacked and injured, as he said. But it considered that such incidents have been a common feature of politics in Bangladesh between supporters of major political parties. The RRT observed that the appellant was not able to give a coherent or satisfactory reason as to why BNP supporters attacked him in 1997. It was satisfied that if the appellant had been attacked and injured, such an incident arose from the appellant�s participation in a gathering which became violent. It was not satisfied that the harm caused to the appellant arose out of any discriminatory conduct towards him.

7 The RRT took into account country information, which is information from sources other than the appellant, that violence and criminality are pervasive aspects of political activity in Bangladesh, particularly amongst student groups. However, it was not satisfied that the essential and significant reason for the harm that the appellant suffered in 1997 was his membership of the Awami League, or his political opinion.

8 The RRT also relied on the fact that the appellant had lived and worked in Dubai for approximately four years until he returned to Pakistan for a short visit in 2001. It accepted that the appellant was not at risk of any harm from BNP supporters in Dubai.

9 The RRT did not accept the claim that the appellant was threatened by BNP supporters when he returned to Bangladesh.

10 Furthermore, the RRT considered that if the appellant returned to Bangladesh, the chances of his being persecuted for reasons of political affiliation would be remote. It based this finding on country information that the Awami League operates as a legal political party, and has a large following throughout Bangladesh. The conclusion of the RRT was that there was no evidence to indicate that membership or support of the Awami League would result in risk of persecution by the BNP Government. The RRT was satisfied that citizens of Bangladesh are able to be involved in politics and express their political views without being victims of violence.

DECISION OF THE PRIMARY JUDGE

11 After reviewing the decision of the RRT, and considering the lack of specificity or particularisation of the grounds of the application, the primary judge dismissed it. His Honour rejected the suggestion that there had been procedural unfairness because certain country information had not been raised with the appellant. He referred to the fact that, on 15 January 2002, a Ministerial delegate had written to the appellant pointing to relevant country information, to which the appellant�s adviser had made a response on 18 February 2002.

12 At the appeal hearing, the appellant said that if he was given time, he would get further evidence. He said that he was not seeking an adjournment of the appeal, but rather wanted an opportunity to have a second hearing before the RRT, at which, apparently, he would lead that further evidence. He gave no particulars regarding the nature or extent of that evidence, or the reason why it was not possible for him to have adduced such evidence at the hearing before the RRT.

REASONING ON APPEAL

13 In so far as the Notice of Appeal expresses a belief that the Federal Court has not taken into consideration the appellant�s well-founded fear of persecution, no error of law is alleged or suggested. There is simply an assertion that the Federal Court ought to have found that the RRT was wrong on the merits. This is not a proper basis for appeal. There is also the allegation that the RRT did not afford the appellant procedural fairness. No particulars are given for this ground.

14 It should be noted that in the application for judicial review, the appellant raised, as a basis for appeal, that the RRT had failed to put adverse country information to him so that he would have an opportunity to submit his explanation, and provide material in reply, to the material that the RRT referred to in its reasons. As the primary judge noted, on 15 January 2002, a Ministerial delegate wrote to the appellant specifying relevant country information regarding the position of citizens within Bangladesh, and advising the appellant that he was entitled to respond to this information, as it could be taken into account in determining his application. The appellant�s adviser sent detailed submissions on 18 February 2002, addressing the issues raised in the delegate�s letter. In the absence of any specified particulars from the appellant in relation to this aspect of the appeal, we consider that the appellant had sufficient opportunity to respond to adverse country information which had been expressly foreshadowed. He was on notice as to the nature of the country information which would be used in relation to his application. We therefore find that there is no substance in this ground of appeal.

15 As noted above, the only matter raised at the appeal was in the nature of a request by the appellant to be given the opportunity to adduce further evidence. In our view, this does not amount to a significant basis to provide a ground of appeal.

16 Accordingly, we consider that no ground has been made out for finding any error in the reasons of the RRT, or of the learned trial judge, in the present case.

17 The appeal should therefore be dismissed with costs.









I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, Lindgren and Tamberlin.



Associate:

Dated: 18 February 2004



The Appellant appeared in person with the assistance of an interpreter.




Counsel for the Respondent: T. Reilly



Solicitor for the Respondent: Sparke Helmore



Date of Hearing: 9 February 2004



Date of Judgment: 9 February 2004
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