FEDERAL COURT OF AUSTRALIA

NAHN v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 247

Migration Act 1958 (Cth) ss 426 and 427

NAHN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No N 711 of 2003

SPENDER, HELY, BENNETT JJ

SYDNEY

4 NOVEMBER 2003

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs, to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

SPENDER J:

1                     This is an appeal from a decision of Jacobson J given on 26 May 2003.  His Honour dismissed with costs an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 10 December 2002. The Tribunal affirmed a decision of a delegate of the Minister given on 29 September 2000 not to grant the applicant a protection visa.

2                     The appellant claimed to fear persecution for reason of his political opinion and/or religion in Bangladesh.  He claimed and continues to claim to be a follower of the feminist author Taslima Nasreen and told us that he is scared that he would be subject to persecution on that account should he be returned to Bangladesh.  He claimed before the Tribunal to have been appointed the local book distributor for Ms Nasreen in 1992 and her chief distributor for South Asian countries in 1996.

3                     In a statutory declaration accompanying his application for a protection visa he made claims in respect of events in November and December 1999; however, he acknowledges that his passport establishes that he was not in Bangladesh at the time of these claimed events.  This striking inconsistency was one of a number of the reasons the Tribunal found that the appellant was a completely unreliable witness.  The Tribunal concluded that the appellant had fabricated his claims in an effort to create a refugee profile.

4                     In the Tribunal’s reasons it noted that he knew little about the author or her books, and the Tribunal’s view was that his state of knowledge was inconsistent with his claims to have had a close association with her and to have distributed her books.  The Tribunal rejected the appellant’s claims saying:

‘I do not accept that he was an associate of Taslima Nasreen or that the distributed her books.  I do not accept that the applicant was physically assaulted, arrested, charged or otherwise harmed because of his claimed distribution of Taslina Nasreen's books or his support for her views.  I do not accept that he was rejected by his family for this reason.’

Then the Tribunal importantly said:

‘I note the applicant’s suggestion that I contact Taslina Nasreen to verify his claims.  However, on the basis of the significant problems with the applicant's own evidence, I am led to conclude that the applicant is a completely unreliable witness.  I do not consider it necessary to make any attempt to contact Taslima Nasreen in relation to the applicant’s claims.’

The Tribunal said:

‘Having rejected the applicant’s claims on the facts, I cannot be satisfied that he has a well founded fear of persecution for a Convention reason.’

5                     The only ground of appeal from the judgment of Jacobson J is:

‘The Tribunal’s ignoring of relevant evidence and its finding in the face of contradicting independent evidence constitutes jurisdictional error being a breach of procedural fairness.’

This is one of the grounds that the appellant argued before Jacobson J.  The appellant identified to Jacobson J that this ground focused on the failure to call Ms Nasreen or to contact her so as to corroborate his claims.

6                     Jacobson J referred to ss 426 and 427 of the Migration Act 1958 (Cth) (‘the Act’) and noted that, if the applicant had given notice under s 426(2) of the Act, the Tribunal would not have been bound to call Ms Nasreen.  It would have been bound to take the applicant’s wishes into account, but the Tribunal would not be required to obtain evidence from a person who had been named in a s 426(2) notice.  His Honour concluded that there was no breach of procedural fairness in the failure of the Tribunal to call Ms Nasreen to give evidence.

7                     This submission was repeated before us and is essentially the sole basis of the appellant’s complaint.  He could only succeed if there was a duty on the Tribunal in the circumstances of his case to make inquiry of Ms Nasreen.  Having regard to the other material to which the Tribunal referred in reaching its assessment as to the appellant’s reliability, in my opinion there was no such duty on the Tribunal, and the declining by the Tribunal to make any contact or attempt to contact Ms Nasreen did not constitute a breach of the rules of procedural fairness.

8                     The sole basis of complaint on this appeal therefore is not made out and the appeal should be dismissed with costs.

HELY J:   I agree.

BENNETT J:   I agree.

SPENDER J:   The appeal is dismissed. The appellant is to pay the respondent's costs of the appeal to be taxed if not agreed.

Associate:

Dated:              4 November 2003