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MIGRATION – no issue of principle

NAXD v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

NAXD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 243 (31 August 2004)
Last Updated: 31 August 2004

FEDERAL COURT OF AUSTRALIA


NAXD v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 243



MIGRATION – no issue of principle
































NAXD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 303 OF 2004

NORTH, DOWSETT &CONTI JJ
31 AUGUST 2004
SYDNEY



IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 303 OF 2004


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


BETWEEN: NAXD
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: NORTH, DOWSETT & CONTI JJ
DATE OF ORDER: 31 AUGUST 2004
WHERE MADE: SYDNEY


THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant 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 N 303 OF 2004


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


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


JUDGES: NORTH, DOWSETT & CONTI JJ
DATE: 31 AUGUST 2004
PLACE: SYDNEY


REASONS FOR JUDGMENT


THE COURT:

1 This is an appeal from the orders and reasons for judgment of Madgwick J made and given on 23 February 2004 and 10 March 2004 respectively, whereby his Honour dismissed the appellant’s application purportedly brought pursuant to s 39B of the Judiciary Act 1903 (Cth) for review of the decision of the Refugee Review Tribunal (‘the RRT’) made on 11 September 2003. The RRT decision had affirmed the decision of the Minister for Immigration and Multicultural and Indigenous Affair’s delegate made on 7 August 2002 not to grant the appellant a protection visa.

2 The background facts and circumstances bearing upon the current appeal may be conveniently extracted from paragraphs [2] – [4] of the primary judge’s reasons:

‘The applicant is a national of Bangladesh who is an adherent of the Hindu religion. He arrived in Australia on 12 May 2002 and within a few days lodged an application for a protection visa. His application was refused and he sought a review of that decision by the Tribunal. The applicant was represented before the Tribunal first by a Mr Zahirul Hoq Mollah, said by the applicant to be a Muslim, and later by another migration agent Jhoti Bharati Consultancy, apparently having a Hindu principal. When the applicant attended the hearing before the Tribunal on 25 June 2003 he was afforded the services of an interpreter. He says he is an engineer. He claims to have three post-secondary qualifications including a degree in ‘social science’.

The applicant arrived in Australia on a Bangladeshi passport issued in his own name in Dhaka on 25 November 1997. He had previously travelled to India for a short period in March 2002. He came to Australia, apparently, in circumstances which involved someone sponsoring him. His visa was issued in Dhaka in his own name on 9 May 2002.

His claim was that he had been involved in politics as a supporter and member of the Awami League and feared persecution at the hands of the rival Bangladesh National Party (‘BNP’) and Islamist persons who, like the BNP, are opposed to the Awami League which, among other things, professes secularism. He also claimed to fear persecution as a member of a club supporting Taslima Nasrin. Ms Nasrin is a feminist author and social reformer who has earned the wrath of Islamists and other less extreme but traditionalist Muslims, to the point that she has been sentenced in absentia, to a prison sentence and has been the subject of a religious fatwa which apparently authorises the faithful to do her harm. She is herself a Muslim.’

3 The notice of appeal filed 9 March 2004, under the heading ‘Grounds’, reads merely as follows:

‘The Honorable Judge failed to follow necessary laws applicable to me.’


The notice of appeal plainly does not raise in terms any available or meaningful ground of appeal, nor does it otherwise satisfy the requirements of Order 52 rule 13(2)(b) of the Federal Court Rules 1976 (Cth), which require an appellant to state ‘briefly, but specifically the grounds relied upon in support of the appeal’.

4 The Tribunal made a number of findings, and for ease of reference thereto, we reproduce the submissions of counsel for the respondent which succinctly summarise those findings:

‘a) It accepted that the appellant was a Bangladeshi Hindu, from an upper middle class educated family. It found that he had the benefit of a full education and sound work record. It considered that he lived a stable and prosperous life in Bangladesh.

b) It accepted country information to the effect that Bangladesh provides adequate state protection in relation to the appellant’s religious beliefs and political opinion.

c) It accepted that the appellant departed Bangladesh legally in March 2002 (to India) and again in May 2002 (to Australia). It found that the Bangladesh authorities did not treat him, in relation to these travels, as a fugitive or criminal.

d) The Tribunal found that the appellant, in his movements, did not behave like a person who saw himself as being on the run from authorities.

e) The Tribunal rejected the appellant’s claim that he was subject to a false charge, based on:

i) his ease of travel movements;
ii) his inconsistent evidence about where he was when alerted about the charges;

iii) the inability of the police to find him notwithstanding that he mostly lived at one house and worked at one job for the relevant period; and

iv) the documents tendered were unreliable given their suspicious provenance, internal incongruities and inconsistencies.

f) The Tribunal rejected the appellant’s claim he was wanted by the authorities.

g) The Tribunal did not accept the appellant’s evidence in relation to his fear of persecution as being "reliable, detailed or consistent". It noted that the country information provided by the appellant did not support any well-founded fear of persecution by him (noting that the violence therein documented related to localised conflicts or very transient backlashes.

h) Given its adverse credibility findings on a variety of matters, the Tribunal did not accept that the appellant was even a member of the Awami League.

i) The Tribunal was not satisfied that the appellant faced a real chance of Convention-related persecution in Bangladesh.’

5 In essence, Madgwick J found that the RRT had not ‘failed to observe any procedure that was required by the [Migration Act 1958 (Cth)] or regulations, far less failed to observe any such procedure which might have involved jurisdictional error.’ His Honour concluded as follows:

‘The applicant’s complaints otherwise concern the facts. I see no legal error in the Tribunal Member having come to the factual conclusions that he did and it is a matter, I may say, in which I feel no unease about those conclusions, whether any such unease might have had a legal consequence or not.’

6 The appellant provided a written submission bearing date 20 August 2004, consisting of seven paragraphs. Rather than attempt to summarise the thrust thereof, the convenient course is to reproduce below the text of those seven paragraphs (without correction of spelling errors):

‘1. I accepted my ignorance and understanding of Australian Immigration system and misrepresentation by Mr Mollah before the RRT and I emphasized my religion as main problem and political orientation as secondary problem. But unfortunately RRT did not accept my account to prioritize the basic problem I faced in Bangladesh rather he did stick to my secondary problem which was decorated in wrong order. Failed to decorate in order doesn’t undermine seriousness of my problems. During the time of interview, as far my part is concern; however I tried to give a full account of my suffering of religious persecution as a member of minority community but it was appeared to me that the RRT failed to understand my endeavour.

2. Instead of my stress to draw attention repeatedly, the RRT did not consider my oral account about my sufferings due to my religious belief in Bangladesh and ignored that completely which reflects that the RRT did not exercise the procedures of Act that I am entitled to.

3. I informed the court that the RRT failed to consider total picture of documents on which they relied upon, rather picked up certain portions which fit their cause to make the decision against me.

4. I mentioned the RRT that I presented my problems and full account to my agent and I am always agreed with that even before RRT I agreed so, but my agent presented my case on his way which I could not dictate. I went to the said agent for professional help and I presumed whatever the agent was doing was right. It was not my obvious feeling to check for correction. I emphasized it to the RRT and the Court also. I do not agree with the commend made by the honourable Court: "the applicant chose to say that the migration agent had done no more than reproduce what the applicant had told him." I mentioned before the honourable court that I did not say that to the RRT. I always told the RRT that I mentioned all my sufferings to my agent, but I did not have any control the way my agent reproduced that before the RRT.

5. I do not agree with the comment made by the Court" "and concluded that no reliance could be placed on the applicant’s story, except insofar as it indicated that he had lived a stably and prosperously [life] in Bangladesh until he came here." In my account I mentioned that I had to move around to save my life but used same address for a considerable time as a base. It is easily understandable that a person on run from some tyrants can not move with all his belongings and register a new address everyday. And regarding my prosperous living, all I tried to mention that due to my qualifications and technical ability I managed to earn a decent living over there and of course here as well. Moreover there was considerable amount of extended support from my family wealth. Therefore it is indicated that account was misinterpreted by the authority.

6. I am not agreed with the comment: "the tribunal has used inauthentic country information in making its decision". I do not understand where I mentioned the word "inauthentic country information". I do mention, and it is my concern as well, the authority did not use the full account of country information they relied upon to make a decision.

7. I raised the concern that the Tribunal Member was biased and prejudiced as:

(a) I did raise the issue of my migration agent’s decoration not in order according to my priority, but the issue was never considered.


(b) I addressed to consider the full account of country information they relied upon to make their decision but it was only quoted the part of the report which is in general term fit to make a negative decision. Other part of the report was not properly addressed.


(c) Other reports of country information which I enclosed for addressing were not considered.


(d) Some part of my account was misinterpreted.’


7 Attached to those submissions was a vast bundle of documentary material in the nature of Bangladesh country information, to which material counsel for the Minister understandably objected. Nevertheless the Court took the expedient view that it would receive the material. Having perused the content thereof, it became readily apparent that the appellant was attempting to place before the Full Court country information either not provided to the RRT below, or else obtained by the RRT, without drawing any distinction specifically to purportedly relevant segments of that bulk of material, and was further attempting to require the Full Court to review country information relating to Bangladesh, by way of re-hearing, and to make its findings in respect thereof in order, and to resolve the appeal at least partly on such material. That was a course clearly outside the purview of the sole ground of appeal, and fell well short of any legitimate course which the Full Court should undertake on the appeal.

8 Specifically as to each of the purported submissions of the appellant set out in full above, the same did not constitute any available basis for challenge to the reasons for judgment of the primary judge. Moreover the appellant adopted instead the stance it was open to him to conduct before the Full Court what amounted to an oral rehearing of his case for refugee status, albeit in largely unspecific terms, and to do so notwithstanding the findings made by the RRT, including the inferences drawn from material placed before the RRT, and notwithstanding his failure to demonstrate to the primary judge below any viable basis for review of the RRT’s decision.

9 In our opinion, the RRT did not fail to consider the appellant’s religious claims, despite his protestations on the appeal to the contrary. The RRT found that those claims were lacking in reliability, detail and consistency, and that in any event, state protection was available to him relevantly to the subject of his complaints. It may be readily inferred from its reasons that the RRT afforded the appellant the opportunity to explain and expand upon his claims to refugee status. The circumstance that all reports he provided to the RRT were not specifically addressed by the RRT in its reasons does not mean that they were considered, or that in the circumstances, they were of such a nature and content as to legitimately require consideration.

10 As to the appellant’s passing attack on the quality of the interpretation of his evidence proffered to the RRT, the same lacks an evidentiary basis, and should not be permitted to be raised for the first time on appeal to the Full Court, particularly because the Minister may well have been able to answer the same by evidence if raised before the RRT (or for that matter before the Minister’s delegate in the first place). In addition, it should be added that the appellant’s allegations of bias on the part of the RRT do not appear to have been particularised in any way that might substantiate a viable ground of appeal.

11 We agree with the reasons of the primary judge and his conclusion that the RRT committed no jurisdictional error. The inevitable consequence is that the appeal from the primary judge must be dismissed with costs.


I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.



Associate:

Dated: 31 August 2004



The Appellant appeared in person




Counsel for the Respondent: SB Lloyd



Solicitor for the Respondent: Australian Government Solicitor



Date of Hearing: 20 August 2004



Date of Judgment: 31 August 2004
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