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1 This is an appeal from a decision of a Judge of this Court given on 12 March 2002, dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") of 25 October 2001. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the appellant a protection visa under the Migration Act 1958 (Cth) ("the Act"). The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 ("the Convention").

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

NACC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 242 (14 August 2002)
Last Updated: 16 August 2002


FEDERAL COURT OF AUSTRALIA
NACC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 242


Migration Act 1958 (Cth) ss 430, 476, 474

APPLICANT NACC OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 252 OF 2002

SPENDER, MOORE & KIEFEL JJ

14 AUGUST 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 252 OF 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
NACC

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
SPENDER, MOORE & KIEFEL JJ


DATE OF ORDER:
14 AUGUST 2002


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's 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 252 OF 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
NACC

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
SPENDER, MOORE & KIEFEL JJ


DATE:
14 AUGUST 2002


PLACE:
SYDNEY





REASONS FOR JUDGMENT
1 This is an appeal from a decision of a Judge of this Court given on 12 March 2002, dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") of 25 October 2001. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the appellant a protection visa under the Migration Act 1958 (Cth) ("the Act"). The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 ("the Convention").

Background

2 The appellant, who is a citizen of Bangladesh, arrived in Australia on a visitor's visa on 20 September 1997. On 17 October 1997 he lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa. On 13 November 1997 a delegate of the Minister refused the grant of a protection visa, a decision which was affirmed by the Tribunal on 18 October 2000. An appeal to this Court on 30 March 2001 resulted in the matter being remitted to the Tribunal for re-hearing, which led to the Tribunal decision of 25 October 2001. The reasons for decision of the learned primary Judge set out the material facts. The following summary of the appellant's claims is largely taken from those, and the Tribunal's, reasons.

3 The appellant is a twenty-eight year old national of Bangladesh. He was born into a politically orientated family, becoming involved himself in student politics as a high school student in 1989, when he joined the Jatiota Badi Dal ("BNP"). He remained politically active throughout his school years, holding positions within the BNP at the college level.

4 In 1996 an election was held in which the Awami League party ("the League") won government. The League are strong opponents of the BNP, and the appellant started receiving threats from people linked to them. He also suffered attacks on his home and was falsely accused of committing crimes. In this climate of intimidation and fear he decided to move from his local area and began living in hiding. He returned, however, in early 1997 and resumed his political activities. In March 1997 he organised a protest against the terrorist activities of League supporters who subsequently attacked the appellant and his followers, injuring them. These attacks continued over the ensuing months, culminating in the appellant being implicated in crimes with which he was not involved. As he did not believe that the Bangladesh police force or special forces would be able to protect him from reprisals from the League, he decided to seek refuge in Australia.

5 The Tribunal considered the evidence provided by the appellant, both written and oral, as well as independent country evidence relating to Bangladesh. It did not accept the appellant was a member of the BNP or that the attacks by League supporters against him had occurred. It also did not accept that he was the subject of politically motivated false charges. The Tribunal did not view the documentation provided by the appellant as genuine. For these reasons the Tribunal affirmed the decision not to grant a protection visa.

Issues before the primary Judge

6 In the proceedings before the primary Judge, the appellant was legally represented. The grounds of review in the application were as follows:

"1. The Refugee Review Tribunal on his decision on 3 October 2001 made an error of law under section 476(1)(e) of the Migration Act.
2. The Tribunal in its decision failed in its written statement to set out the Tribunal's findings on a material question of fact as required by S 430(1)(c) the Migration Act 1958.

3. The Tribunal in making a finding of fact failed to refer to the evidence or any other material on which the reasons and finding of fact was made as required by s 430(1)(d) of the Migration Act.

4. There was no evidence or other material to justify the making of the Tribunal's decision which providing [sic] a ground for review under S 476(1)(g) of the Migration Act."

7 However it is apparent from the reasons of the primary Judge, the challenge to the Tribunal's decision turned on its treatment of a submission provided to the Tribunal on 3 October 2001. As the learned primary Judge noted in his reasons, this submission was furnished to the Tribunal as the last of several submissions made during the course of it dealing with the appellant's application. The submission of 3 October 2001 took the form of a short submission together with original documents. As his Honour recounted, the Tribunal dealt with this material by saying:

"I have read the additional materials. There is nothing in the adviser's submissions, the applicant's statement or the documents which adds to the applicant's case or necessitates any further enquiries into the applicant's case."

8 The contention before the primary Judge was that the Tribunal had erred in law in dealing with the submission forwarded on 3 October 2001. One matter covered in the submission, which his Honour characterised as "a new matter" was a claim that the appellant was suspected of involvement in a terrorist attack on a Mr Shameen Osman. It was contended by the appellant that the Tribunal should have enquired further into this matter. Of this contention the primary Judge said:

"The difficulty with the submissions of the applicant, that this new matter necessitated proper investigation, is that, though new in one sense it belongs to a class of fact which has as its foundation a premise that the applicant as a BNP member, had something to fear from political opponents. The wholesale rejection by the Tribunal of the evidence of the applicant dealing with his political associations entirely washes away that premise for this new material.

The Tribunal had already rejected the proposition or propositions that the applicant faced any form of political persecution by reason of connection with the BNP. From that kind of wholesale rejection there is an implicit rejection of the underpinning relevance of this new material. I do not think that anything in the statement required the Tribunal to go back and revise conclusions which it had reached after the attendance of the applicant before it and the giving of oral evidence on the number of occasions on which he gave it."

9 The other complaint made to the primary Judge about the Tribunal's treatment of the submission forwarded on 3 October 2001, was that the submission included original documents of which, to that point, the Tribunal had only had copies. As to this contention his Honour said:

"(T)he fact that these documents were not earlier provided as originals, but only as copies, had not been a foundational factor in the Tribunal finding them to be not genuine. Rather, that conclusion had arisen as an integrated finding being based on the view it took of the applicant and the view it took of the reliability of documentation coming from Bangladesh. Thus, when original typewritten documents were provided, as opposed to copies, there was no call for the Tribunal to deal with these documents in any different fashion."
10 It was submitted by counsel for the appellant to the primary Judge that the Tribunal should have done more to determine the authenticity of these original documents. His Honour, however, said:

"(I)t is not at all clear to me how ready authentication could have been made. The documents were typed originals. The evidence was that there was a ready availability of facilities in Bangladesh for people to create false original documents. As I have said earlier, the absence of the original, as opposed to the copy, documents was not central to the conclusions of the Tribunal. Secondly, it is not just a matter of document authentication. The view which the Tribunal expressed about the applicant's evidence was one which was based on a number of meetings and a considered assessment of the unsatisfactory nature, in the regards expressed in the reasons, of that evidence.

It is that integrated and entangled relationship between the view of the applicant's credit and the likelihood of the falsity of the documents which makes it impossible to argue, in my view, that the mere production of the original paper necessitated a wholesale withdrawal from, and reconsideration of, the reasons that the Tribunal otherwise expressed."

11 His Honour concluded by indicating that, in the absence of any jurisdictional error revealed by the conduct of the Tribunal, it was unnecessary for him to "express a view upon the effect of s 474 of the Act and the extent and content of the so-called `Hickman Principle'." He added:

"(I)n this case, at the very least, the three matters referred to by the respondent have been satisfied, that is the decision did not on its face exceed the authority conferred by statute, the decision was a bona fide attempt to exercise the power and the decision related to the relevant subject matter of the statute."


Issues in this appeal

12 The notice of appeal was filed on 2 April 2002. The appellant has not been legally represented in this appeal. The notice of appeal does not raise any discernible ground of appeal concerning any error on the part of the primary Judge and contains mainly argumentative propositions about the scope of s 474, including, on one view, an allegation of bias. There is, nonetheless, a repetition of the contention that the Tribunal had effectively ignored relevant evidence. However, it is not apparent to us that the Tribunal erred in the way the appellant apparently argues in this appeal, nor that the primary Judge erred in his consideration of the issues raised at first instance. The appeal should be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Moore & Kiefel .




Associate:

Dated: 16 August 2002

Counsel for the Applicant:
In person






Solicitor for the Applicant:







Counsel for the Respondent:
Mr J D Smith






Solicitor for the Respondent:
Blake Dawson Waldron






Date of Hearing:
14 August 2002






Date of Judgment:
14 August 2002


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