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1 This is an appeal from a decision, made by a judge of this Court on 26 November 2002, to dismiss the appellant's application for review of a decision of the Refugee Review Tribunal made on 21 June 2002 but not "handed down" until 16 July 2002. The Tribunal affirmed a decision of a delegate of the respondent, made on 17 January 2000, not to grant a protection visa to the appellant.

Applicant NARO v Minister for Immigration & Multicultural & Indigenous Affa

Applicant NARO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 101 (21 May 2003)
Last Updated: 27 May 2003


FEDERAL COURT OF AUSTRALIA
Applicant NARO v Minister for Immigration & Multicultural

& Indigenous Affairs [2003] FCAFC 101


APPLICANT NARO v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

N1349 of 2002

CARR, KIEFEL & ALLSOP JJ

21 MAY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N1349 OF 2002




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
APPLICANT NARO

Appellant


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent


JUDGES:
CARR, KIEFEL & ALLSOP JJ


DATE OF ORDER:
21 MAY 2003


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
N1349 OF 2002




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
APPLICANT NARO

Appellant


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent




JUDGES:
CARR, KIEFEL & ALLSOP JJ


DATE:
21 MAY 2003


PLACE:
SYDNEY





REASONS FOR JUDGMENT
INTRODUCTION

1 This is an appeal from a decision, made by a judge of this Court on 26 November 2002, to dismiss the appellant's application for review of a decision of the Refugee Review Tribunal made on 21 June 2002 but not "handed down" until 16 July 2002. The Tribunal affirmed a decision of a delegate of the respondent, made on 17 January 2000, not to grant a protection visa to the appellant.

FACTUAL AND PROCEDURAL BACKGROUND

2 The appellant, now aged 34 and a citizen of Bangladesh, arrived in Australia on a visitor visa on 27 November 1999. On 10 January 2000 she lodged an application for a protection visa. The appellant's claims to refugee status can be summarised as follows:

* She had been a political activist as a schoolgirl before she was even 14 years of age. At one school she had been elected General Secretary of the student wing (known as "the JCD") of the Bangladesh Nationalist Party ("the BNP") and had been "in full swing" politically after 1984, becoming head of the JCD at another college. Her teachers and her father (a headmaster of a high school) had been appreciative of her political work, although she had failed to sit for her HSC examination due to her political activities.

* The appellant had become a teacher and had been widely respected and very widely known in her area, an area known as Narayangonj, for her activities on behalf of the BNP. She had worked hard for the Party during the 1991 and 1996 election campaigns. In that part of her written statement which referred to the 1996 election, the appellant gave the name of the Awami League candidate who became the parliamentary member for her constituency. At the hearing before the Tribunal she named the BNP candidate for whom she had worked in the 1996 election campaign. She re-stated those names at different times during the hearing. The Tribunal put to her that the name given in her written statement for the Awami League candidate in 1996 had differed from the name given to the Tribunal at the hearing. The Tribunal, in its reasons, noted that the appellant appeared to be a little nonplussed by this, but had replied by saying that the person whom she had named was nevertheless a political force in the area and had won a local government seat in 1996.

* At the 1996 election, so the appellant claimed, many of the leading BNP activists had left Narayangonj to save their lives. The Tribunal put to the appellant that the result of the 2001 election, in which the BNP took all five seats in Narayangonj, indicated that the BNP had built up a big force in the area since 1996, rather than having evaporated. The appellant gave no substantive reply to this.

* The BNP was now full of Taliban operatives who had previously been in the Awami League. If she returned to Bangladesh BNP contacts would ask her to join them, but she could not do so as the Party, so she claimed, had changed.

* She could not return to Bangladesh as she feared violence at the hands of Awami League thugs. She had led demonstrations supporting general strikes and had been threatened with harm for doing this by Awami League activists. They had ganged up on her on one occasion on a street, had demanded that she give up politics and had used profane language. The thugs had run away when "thousands" of her students had come to her aid. The attack had been ordered by the Awami League local leader.

* At the Tribunal hearing the appellant added new claims to the effect that her sari had been half pulled off by the attackers (and in fact had been torn to pieces) and that she had almost been raped.

* Violence against women was a big threat in Bangladesh because the Jama'at Islami Party was part of the governing coalition and practised violence against women. Its influence was so great that she had had to take a big risk to go out and work as a teacher.

THE TRIBUNAL'S DECISION

3 The Tribunal did not believe the appellant's claims and made several findings against her credibility. It rejected the appellant's claims to have been a political activist from such an early age. It also rejected the appellant's later claims of BNP activism. Its reasons included the fact that the appellant had attributed different names to the victorious candidate in the 1996 elections in her Narayangonj constituency in which she claimed to have been campaigning for the rival side. The Tribunal noted that the name which the appellant gave for the BNP candidate in that election for whom, so she claimed, she had worked so hard, did not correspond with any of the names of the BNP candidates who stood for Narayangonj seats in 1996. The Tribunal gave other cogent reasons for rejecting the appellant's claims to have been politically active, including the fact that the appellant did not know about the 2001 election results in which the BNP came to power. The Tribunal relied on independent country information to reject the appellant's claims that the BNP had changed dramatically. It concluded, in relation to this part of the appellant's claims with the following finding:

"In the light of all of the above, I am not satisfied that the applicant was an activist for the BNP. I am thus not satisfied that she had a political profile that would cause her to be targeted by political rivals in the future, or that she had suffered harm in the past in relation to political work, or that she would face harm in relation to the BNP's policies."
4 The Tribunal then referred to the current political situation in Bangladesh and, in particular, the fact that the BNP was now in power having secured an overwhelming majority in the October 2001 election. It said that even if the Tribunal were to accept that the appellant was a member of the BNP, there was no credible basis for her to fear persecution in the expression of her political views in Bangladesh. As to the appellant's claim to fear violence as a woman, or as an alleged political activist, by reason of the presence of the Jama'at Islami Party in the ruling coalition, the Tribunal noted the minor role which that party played in the coalition and the policy of the BNP. It concluded in these terms:

"In summary, I find there to be a lack of credibility in the applicant's claim of being a political activist, and a lack of credibility in her claims of being harmed. I find that even if she were a BNP supporter she is free to express her political opinion. I am not satisfied that the composition or outlook of the ruling coalition would cause her to face persecution or that Jama'at Islami is a threat to her."
THE APPLICATION AT FIRST INSTANCE

5 In summary, the appellant's application was based on the following contentions:

(a) procedures that were required to be observed were not observed;

(b) the Tribunal breached the rules of procedural fairness by failing to give her an opportunity to comment on information upon which it relied;

(c) the Tribunal made its decision "without any authorities" and "misjudged the fate of the applicant's claim";

(d) the Tribunal failed to articulate the material facts of the case;

(e) the Tribunal "failed to consider" the current situation in Bangladesh and changes in the BNP's policies.

THE DECISION AT FIRST INSTANCE

6 In an ex tempore judgment the learned primary judge set out some of the factual background, the grounds of application, the appellant's supporting affidavit and also summarised the Tribunal's decision. His Honour then said this:

"For the reasons articulated by counsel for the Minister in her written submissions there is no substance whatsoever in any of these grounds and, if there were, s 474 of the Migration Act 1958 (Cth) would not be overcome."
7 His Honour dismissed the application with costs.

THE APPEAL

8 The notice of appeal sets out two grounds. They were in the following terms:

"1. The Honorable trial judge erred in considering the real state of affairs of the applicant, the applicant feared harm from the fundamental forces, which have influenced the applicant's party, the BNP. As a result the country has lost its moderate Islamic Characters. Every day civilians are being oppressed and killed by army under the current regime, which is a worldwide concern today. Honorable Trial judge did not take it into consideration. (sic)
2. The Honorable Judge did not provide the details of the respondent's submission. On that basis Honorable judge considered it an unsubstantiated claim. In fact, the Tribunal did not consider the applicant's claim in light of the prevailing situation where every day leaders and activists of the BNP are killed on the name of operation clean heart. It is well designed by the fundamental forces in the Party. As such the applicant will face persecution upon returning to Bangladesh. This was an error by the Tribunal which was also not considered by the Honorable Judge (sic)."

OUR REASONING IN THE APPEAL

9 The appellant was not legally represented at the hearing of the appeal. She made short oral submissions to the effect that she did not agree with the decision at first instance, that it was unsafe for her as an unmarried woman to return to Bangladesh and that she wished to stay in Australia.

10 We were provided with a copy of the respondent's written submissions to the primary judge which, as mentioned above, his Honour accepted.

11 The primary thrust of those submissions was that, on the application of the principles explained by the majority judgments in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228, there was no basis upon which the Tribunal's decision might be reviewed.

12 However, the submissions also dealt with each of the grounds of review raised by the appellant in her application.

13 We have read those submissions. In our view, his Honour did not err in agreeing with them in respect of alleged error of the Tribunal. We do not think that there is any need to refer in detail to the submissions. In short, they were to the effect that there was no substance to the appellant's claims that prescribed procedures had not been followed, that she had been denied procedural fairness or that the Tribunal had otherwise erred in its assessment of the appellant's claims in the manner contended for in her application to the Court.

14 From reading the Tribunal's reasons (and the documents referred to in them) we have concluded that all of the appellant's claims were duly considered. The Tribunal put to the appellant matters which were of concern to it and gave her opportunities to respond. The Tribunal, for what we consider to be quite cogent reasons, disbelieved the appellant. It then considered the appellant's claims on the basis that it might have misjudged her. On the basis of a careful and lucid analysis of the former and current political circumstances in Bangladesh, the Tribunal reached its conclusion that the appellant did not have a well-founded fear of persecution in Bangladesh.

15 In our view there is no substance in the appeal. In essence, the appellant seeks to argue matters of fact going to the merits of her claims based on the present political situation in Bangladesh. Of course, such matters cannot be the subject of review in this Court whether at first instance or on appeal. Nothing raised by the appellant or disclosed by the papers suggests that the Tribunal may have fallen into any jurisdictional error of the type referred to in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2.

16 We will dismiss the appeal with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.




Associate:

Dated: 21 May 2003

The Appellant appeared for herself







Counsel for the Respondent:
Mr G R Kennett






Solicitor for the Respondent:
Messrs Clayton Utz






Date of Hearing:
21 May 2003






Date of Judgment:
21 May 2003


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