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1 The appellant is a citizen of Bangladesh who arrived in Australia on 17 January 1998. On 2 February 1998 he applied for a protection visa. He claimed to have a well-founded fear of persecution in Bangladesh for reasons of political opinion within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Refugee Convention"). A delegate of the respondent refused the application on 11 March 1998 and the appellant applied to the Refugee Review Tribunal (`the Tribunal') for review of the delegate's decision on 1 April 1998.

NACL v Minister For Immigration & Multicultural & Indigenous Affairs [2002]

NACL v Minister For Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 389 (26 November 2002)
Last Updated: 28 November 2002


FEDERAL COURT OF AUSTRALIA
NACL v Minister For Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 389


NACL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 453 of 2002

BRANSON, FINN & DOWNES JJ

26 NOVEMBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 453 of 2002



ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA




BETWEEN:
NACL

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
BRANSON, FINN & DOWNES JJ


DATE OF ORDER:
26 NOVEMBER 2002


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. the appeal be dismissed; and

2. the appellant pay the costs of the respondent.

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 453 of 2002



ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA




BETWEEN:
NACL

APPELLANT


AND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
BRANSON, FINN & DOWNES JJ


DATE:
26 NOVEMBER 2002


PLACE:
SYDNEY





REASONS FOR JUDGMENT
INTRODUCTION

1 The appellant is a citizen of Bangladesh who arrived in Australia on 17 January 1998. On 2 February 1998 he applied for a protection visa. He claimed to have a well-founded fear of persecution in Bangladesh for reasons of political opinion within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Refugee Convention"). A delegate of the respondent refused the application on 11 March 1998 and the appellant applied to the Refugee Review Tribunal (`the Tribunal') for review of the delegate's decision on 1 April 1998.

2 The appellant gave oral evidence before the Tribunal on 22 March 2000. Unfortunately, the Tribunal member who heard the appellant's submissions resigned from the Tribunal before determining the appellant's application. The appellant then gave evidence before a differently constituted Tribunal on 9 October 2001. On 18 October 2001 the Tribunal affirmed the decision of the delegate of the respondent to refuse to grant a protection visa.

3 The appellant applied for review of the Tribunal's decision. On 1 May 2002 the primary judge dismissed the application. The appellant now appeals against the primary judge's decision.

BACKGROUND

4 The appellant claims that he fears persecution by the Awami League in Bangladesh due to his membership of the Bangladesh Nationalist Party (BNP). He made various claims before the Tribunal, as respectively constituted on the two occasions when he gave oral evidence, including that he had been attacked, arrested on false charges and that his home had been looted and burned. In its decision, the Tribunal described the appellant's evidence as `confused, vague, implausible and internally inconsistent'. It noted significant differences between the oral and written submissions made before the Tribunal on the two occasions that the appellant gave evidence. It also took the view that the appellant avoided directly answering some questions. The Tribunal concluded that the evidence of the appellant was not reliable.

5 The Tribunal found that the appellant was not active in the BNP and that the chance that he would be politically active if returned to Bangladesh was remote. It noted that the BNP had won a landslide victory in the parliamentary elections held in Bangladesh in October 2001. While recognising that political violence was one manifestation of a general culture of violence in Bangladesh, it was satisfied that the appellant could actively support the BNP, a legal political party, without becoming involved in violence. The Tribunal noted that the appellant had not claimed that he was involved in violence in the past and it found that the chance that he would become involved in violence in the future was remote. The Tribunal was satisfied that even if the appellant openly supported the BNP in Bangladesh he would not have a well-founded fear of persecution for a Refugee Convention reason.

6 The Tribunal concluded that a claim by the appellant that his family was involved in a dispute with the Awami League concerning land owned by his father was untrue. In any event, the Tribunal concluded that the claim so made did not invoke the Refugee Convention.

THE PRIMARY JUDGE

7 Before the primary judge the appellant made two specific points in support of his claim for relief. First, he sought additional time to obtain documents from Bangladesh. The primary judge noted that the appellant had had a very long time to gather material to support his case and that his legal representative had not asked the Tribunal to grant the appellant further time. His Honour concluded that there was no denial of procedural fairness to the appellant by the Tribunal in this regard.

8 Secondly, the appellant argued that the Tribunal took an unfavourable view of his credit by reason of similar findings it had previously made in relation to the other Bangladeshi applicants. The primary judge also rejected this contention, finding that the Tribunal's finding on the appellant's credibility was based on the evidence before it, including the appellant's own evidence. His Honour dismissed the application.

NOTICE OF APPEAL

9 The notice of appeal was filed by the appellant himself. It appears to be a pastiche from other documents. It is barely comprehensible and fails in any regard to address the reasons for judgment of the primary judge. We have, nonetheless, carefully considered the reasons for judgment of the primary judge in the light of the reasons for decision of the Tribunal.

CONSIDERATION

10 Nothing said by the appellant, who appeared without legal representation but with the assistance of an interpreter, has raised any doubt as to the correctness of the decision of the primary judge. We have ourselves been unable to identify any error in the approach or the conclusion of the primary judge. His Honour determined the application before him without reference to s 474 of the Act. We agree with his Honour that, even absent the privative clause, the appellant's claim for judicial review of the Tribunal's decision was bound to fail. The privative clause merely made that outcome more certain.

11 The appeal will 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 Court.




Associate:

Dated: 28 November 2002

Counsel for the Appellant:
The appellant appeared in person






Counsel for the Respondent:
Mr J D Smith






Solicitor for the Respondent:
Blake Dawson Waldron






Date of Hearing:
26 November 2002






Date of Judgment:
26 November 2002


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