NAKO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1213

FEDERAL COURT OF AUSTRALIA

NAKO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1213 NAKO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N2264 OF 2003 EMMETT J 26 MARCH 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N2264 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAKO

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 26 MARCH 2004

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 N2264 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAKO

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 26 MARCH 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant, who is a citizen of Bangladesh, arrived in Australia on 17 October 2000. On 10 November 2000 he lodged an application for a Protection Class XA Visa under the Migration Act 1958 (Cth) ('the Act'). On 2 January 2001 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused to grant a protection visa and, on 25 January 2001, the appellant applied for review of that decision. On 13 January 2003 the Refugee Review Tribunal ('the Tribunal') affirmed the decision not to grant a protection visa. 2 By application filed on 10 March 2003 the appellant sought relief in respect of the decision of the Tribunal. That matter was remitted to the Federal Magistrates Court. On 18 November 2003 Federal Magistrate Raphael ordered that the application be dismissed and that the appellant pay the respondent's costs in the sum of $4250. The appellant now appeals to this Court from the orders of the Federal Magistrates Court. Pursuant to a direction given by the Chief Justice, the matter is to be heard by a single judge of this Court. 3 In his original application to the Court, the appellant claimed relief on the following grounds: 'i. The Tribunal erred in law amounting to jurisdictional error in determining that the applicant does not have any profile that place him into fear of adverse action on his return back to the country of residence and does not meet the criterion set out in s.36(2) of Act for a Protection Visa;

ii. The Tribunal erred in its decision to affirm the first Respondent's decision without giving him the chance to defend himself at the interview;

iii. The Tribunal erred in taking into consideration the threat to life or liberty, significant harassment the Applicant… will experience on return back to his country of residence;

iv. Exceeded its jurisdiction in making its decision to affirm the First Respondent's decision;

v. Constructively failed to exercise its jurisdiction in arriving its decision;

vi. The applicant… entitled for a Protection Visa, which he has applied.' No further particulars of those grounds were contained in the application. The application was supported by an affidavit in accordance with the Rules. The affidavit, however, simply contained assertions of grounds and no relevant evidence. The grounds specified in the affidavit were as follows: '(a) The Tribunal erred in law amounting to jurisdictional error in finding that the Applicant… does not have well-founded fear of persecution that will place his life in jeopardy on his return back to his country of residence and does not meet the criterion set out in the Act of a Protection Visa;

(b) The Tribunal erred in its decision to affirm the First Respondent's decision without giving him the chance to defend himself at the interview;

(c) Exceeded its jurisdiction in making its decision to affirm the First Respondent's decision;

(d) Constructively failed to exercise its jurisdiction in arriving its decision;

(e) The applicant… entitled to a Protection Visa, which he has applied and

(f) The applicant… has a well-founded fear of persecution in the country of origin i.e. Bangladesh.' 4 Those grounds more or less coincide with the grounds specified in the application, but not entirely. They are also devoid of particulars. The Tribunal, in its reasons, records that the appellant was advised that the Tribunal had considered all the material before it in relation to his application but was unable to make a favourable decision on that information alone. The appellant was invited to attend a hearing and give evidence in support of his claims. The appellant's advisers submitted a letter from the appellant's doctor stating that he was being treated for a depressive illness and giving the opinion that the appellant was unfit to attend an interview. 5 A second offer of hearing was made to the appellant. The adviser again notified the Tribunal that the appellant had instructed him that he did not have the psychological or physical fitness to attend the hearing and requesting a deferral until the appellant had consulted a psychiatrist. The appellant was advised that an adjournment on medical grounds would be made only when there was evidence which identified the appellant's condition and explained how that condition prevented him from attending a hearing and giving evidence. No such evidence was produced and the appellant did not attend the hearing fixed by the Tribunal. 6 In its reasons the Tribunal also noted that in his original application, the appellant stated that he was a Bangladeshi national, born in 1969. He claimed to have fled Bangladesh because of his involvement with the Bangladesh Nationalist Party ('the BNP'). The appellant stated that he had been a student activist from 1984 until he graduated in 1989. Following graduation, he joined the BNP in his area and became an organising secretary. Jatiya Party activists beat him and false cases were lodged against him. He claimed he had to leave the country. He went to Brunei and lived there for a decade. Every two years he returned to Bangladesh for a few days and he met family members in Dhaka. 7 The Tribunal was satisfied that the appellant is a Bangladeshi citizen and that he has lived in Brunei for some years but has visited Bangladesh every two years. The appellant originally claimed to fear persecution at the hands of the Awami League government because of his support for the BNP and its student wing during the 1980s. He claimed that he had been caught up in violent clashes between various political groups and that false cases had been issued against him. The Tribunal was satisfied that the appellant was an active BNP supporter, however, given that he has been able to re-enter and leave Bangladesh, the Tribunal considered it unlikely that false cases had been issued against him. 8 The Tribunal noted that the BNP is the senior party in the present government in Bangladesh. While there is evidence that the government has arrested many political activists, including BNP activists, the Tribunal considered that it was not apparent why the appellant, who has not been active in Bangladeshi politics for a decade, would be at risk of arrest and harm should he return. It was not apparent to the Tribunal, on the limited information available, why the appellant would be at any greater risk of harm now than on his return visits from Brunei. The Tribunal was not satisfied, therefore, that there was any real chance that the appellant would be persecuted if he were to return to Bangladesh. The Tribunal was not satisfied that any fear of persecution he may have was well founded. 9 On the hearing of the application before the Federal Magistrates Court the appellant was represented by counsel. The Magistrate recorded in his reasons that counsel for the appellant sought leave to read an affidavit sworn on 6 November 2003. The affidavit provided the type of information that could have been of relevance to the Tribunal in considering the appellant's claim for refugee status, however, that information was not before the Tribunal. Counsel for the appellant sought to have the evidence admitted as if it were additional evidence pressed upon an appellate court. 10 His Honour observed that the Federal Magistrates Court, in dealing with an application for constitutional writ relief under s 39B of the Judiciary Act 1903 (Cth), is not acting as an appellate court. It is acting as a court of review and can only review decisions on the basis of the information that was before the Tribunal. The Court does admit evidence on limited matters, such as evidence to establish that a particular applicant would have acted in a particular manner had he or she been aware of certain facts upon which the Tribunal acted. 11 The Magistrate characterised the application that was made as being one to admit evidence and then say that if the Tribunal had had that evidence before it, it might have given a different decision. The Magistrate considered that such a course was not open to the Court. The Magistrate made the following observation: 'It seems to me that in the events that have occurred including his alleged psychiatric illness and the alleged failure of his migration agent the applicant would be best advised to seek the Minister's discretion under s 49B of the Migration Act to allow him to make further application so that the matters raised in his affidavit can be considered by a delegate and if necessary the Tribunal. It is not appropriate for me to pass any comment upon those matters.' 12 In a Notice of Appeal to this Court the appellant set out grounds as follows: '2. The Federal Magistrate erred in law not to find the lack of procedure fairness in the proceedings in the Refugee Review Tribunal ("the Tribunal"), in that the Tribunal did not give the Appellant… a reasonable opportunity to respond to the independent evidence in the possession of the Tribunal…

3. The Federal Magistrate erred in not finding that the Tribunal erred in law… in finding the appellant do not have genuine fear of persecution for a convention reason…

4. The Federal Magistrate erred in not finding that the Tribunal… continued an erroneous approach to the [appellant's] claims and failed to address [his] mind to the material questions arising out of [the] material;

5. The Federal Magistrate erred in not finding that the Tribunal… had not dealt with, or not dealt in any substantive way with, a key component of the appellant's claim, that being the outstanding charge he is facing in Bangladesh…

6. The Federal Magistrate erred in not finding that the Tribunal made findings which were not available to it on the evidence in relation to [various matters].

7. The Federal Magistrate erred in not finding that the Tribunal fell into legal error… by asserting in effect that the appellant did not and [does] not have a genuine fear of persecution for a convention reason…

8. The Federal Magistrate erred in not finding that the Tribunal fell into error by asserting… that if the appellant returned to Bangladesh he need not be involved in politics.' 13 It is apparent that some parts of those grounds were borrowed from another proceeding since they do not seem to have any bearing on the claims made by the appellant in his application for a protection visa. No further particulars of the grounds are furnished. It is of significance that there is no ground relating to the matter which appeared to have been advanced on the appellant's behalf before the Magistrate that evidence of matters that could have been adduced was rejected by the Magistrate. 14 The appellant provided written submissions in support of his appeal. The substance of the submissions is as follows: 'The [Tribunal] decided my application without interviewing me. As a result I did not get a chance to [defend] my claim and the [Tribunal] ignored me as [a] credible witness. I believe the decision lacks procedural fairness.

I provided a detail [sic] submissions and necessary supporting documents in describing my above situation but the presiding member did not consider those in establishing my refugee status…

1. This submission is made in support of the grounds of jurisdictional error, denial of procedural fairness and the effect of [privative] clause...

(a) …the [Tribunal] and Federal Magistrate have failed to appreciate that his conclusion… will lead to a decision that effects [sic] human lives… and [the] decision should not… be influenced by the personal consideration that the applicant may be an "undeserving case".

(b) …the [Tribunal] member had taken isolated incidents and facts out of context… and he failed to take into account the cumulative effect of my experience.

(c) The [Tribunal] Member and Federal Magistrate have also failed to appreciate that a refugee applicant like myself… may still feel apprehensive vis-a-vis any authority even Australian authority

(d) The [Tribunal] Member failed to make proper attempts… to clarify the alleged inconsistencies and to resolve any contradictions in a further hearing or granting an opportunity to me to give the explanation…

2. …the [Tribunal] failed to discharge the imperative duties or to observe inviolable limitations or restraints… …

4. …the decision made by the Tribunal… was not a bona fide attempt to act in the course of the Tribunal's authority. …

6. …

a. The Tribunal… failed to correctly recognise that I could be singled out and targeted because of my political profile which increased my likelihood of persecution by my political opponents…

b. The Tribunal… failed to take into consideration the false politically motivated case against me that has put my life at risk…

c. The Tribunal member continued to ignore the material in support of the applicant's claims [and] therefore the Tribunal's set decision was not based on all the material before it…

d. The [Tribunal] has failed to consider me as an activist of BNP in spite of providing numerous evidences in this regard... activists like me always experience fear of persecution that the Tribunal has failed to take into consideration.' 15 Once again, the submissions lack particularity and, in some respects, appear to be derived from submissions made in a case that has nothing to do with the appellant's case. Part of the submissions constitute an invitation to the Court to re-examine the merits of the claims. The submissions also take up the question of denial of procedural fairness because the Tribunal did not interview the appellant. No evidence has been proffered as to the circumstances that led to the failure to respond to the Tribunal's invitation to provide medical evidence of incapacity to attend and give evidence. 16 While there are assertions in the submission which, if supported by relevant material, may constitute jurisdictional error, in the absence of anything further I am unable to conclude that the appellant has demonstrated any error on the part of the learned Magistrate in reaching the decision that he reached. I am not persuaded that there was any error on the part of the Magistrate nor, indeed, am I persuaded that any error on the part of the Tribunal has been demonstrated. It follows, in my view, that the appeal should be dismissed.

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

Associate: Dated: 15 September 2004

The appellant appeared in person.

Counsel for the Respondent: Mr T Reilly

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 26 March 2004

Date of Judgment: 26 March 2004