FEDERAL COURT OF AUSTRALIA

NATI v Minister for Immigration & Multicultural & Indigenous

Affairs [2003] FCA 573

MIGRATION – appeal from Federal Magistrate dismissing application for review of decision of Refugee Review Tribunal affirming decision of delegate to refuse protection visa – appellant not credible and claims contrived – findings open – no error established.

Re MIMIA; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J cited

W148/00A v MIMIA (2001) 185 ALR 703 at [64-69] per Tamberlin and R D Nicholson JJ cited

Chan v MIEA (1989) 169 CLR 379 at 428 per McHugh J cited

Abebe v Commonwealth (1999) 197 CLR 510 at [137] cited

MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272 cited

SCAS v MIMIA [2003] FCAFC 397 at [19] cited

SBBS v MIMIA (2002) 194 ALR 749 at [44] cited

Muin v The Refugee Review Tribunal (2002) 190 ALR 601 cited

NADR v MIMIA [2002] FCAFC 293 cited

S157/2002 v The Commonwealth of Australia, (2003) 195 ALR 24 cited

NATI OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 438 OF 2003

CONTI J

6 JUNE 2003

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant is to pay the respondent’s costs of and incidental to this appeal.

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

REASONS FOR JUDGMENT

(revised from Transcript)

HIS HONOUR:

1                     This is an appeal from Federal Magistrate Barnes dismissing an application for review of a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision of a delegate of the respondent to refuse to grant the appellant a protection visa. The appellant applied for the protection visa on 16 February 2000. The delegate's decision refusing the visa was made on 6 March 2000. The appellant applied to the Tribunal for review on 20 March 2000. The Tribunal held a hearing on 11 July 2002 and handed down its decision on 6 August 2002.

2                     The appellant claimed to fear persecution for reason of his political opinion in Bangladesh. He claimed to have been a prominent member of the student wing of the Bangladesh National Party (the BNP) and to have been assaulted and made the subject of false charges by members of the rival Awami League. Shortly before the Tribunal hearing he also claimed to have been assaulted by the Awami League or the police in Bangladesh on numerous occasions and to also fear harm from members of the BNP itself.

3                     The Tribunal found that the appellant was not a credible witness and had fabricated his claims. The Tribunal noted that the appellant had only applied for a protection visa in Australia after the cancellation of his student visa and found the appellant's claims made shortly before the hearing were fabrications to take into account the change of government in Bangladesh in 2001 whereby the BNP was elected to power. The Tribunal rejected the appellant's claims to fear the BNP on the basis of independent country information. The Tribunal also rejected the appellant's previous claims to fear the Awami League both on the basis that the appellant was not credible and on the basis of independent country information that the courts in Bangladesh were independent and that the appellant could access state protection in Bangladesh against the political violence he claimed to fear.

4                     It is apparent that the appellant was unsuccessful because of the view the Tribunal took of the facts, in particular a strong finding that the appellant was not credible and his claims contrived. Such findings are matters of fact for the Tribunal (Re MIMIA; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). So long as the Tribunal's credibility findings were open to it no error is demonstrated in such conclusions (W148/00A v MIMIA (2001) 185 ALR 703 at [64-69] per Tamberlin and R D Nicholson JJ).

5                     In my view, the Tribunal's findings were open for the reasons it gave, in particular the fact that the appellant only claimed a protection visa after the cancellation of his student visa, the changes in the appellant's claims over time and the existence of independent country information inconsistent with the appellant's claims. It is unlikely that a State party is expected to grant refugee status to an appellant whose account, although plausible and coherent, is inconsistent with the State's understanding of conditions in the applicant’s country of nationality (Chan v MIEA (1989) 169 CLR 379 at 428 per McHugh J). I observe that in this appeal however, the Tribunal did not find the appellant's claims to be plausible and coherent in any event.

6                     Before Federal Magistrate Barnes the appellant did not appear but made a written submission and the Court proceeded to determine the matter on its merits. Her Honour dealt comprehensively with the appellant's case noting that the Tribunal's findings were open to it. The appellant sought to review the Tribunal's findings of fact. However, there is no error of law in making a wrong finding of fact (Abebe v Commonwealth (1999) 197 CLR 510 at [137]) and the court cannot review the merits of the Tribunal's decision (MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272). Her Honour accordingly rejected these arguments and did so correctly.

7                     Her Honour also noted that there was no basis to suggest that the Tribunal had committed any jurisdictional error or that the Tribunal was biased. The suggestion of bias is a very serious allegation which should only be made when there are proper grounds for so doing (SCAS v MIMIA [2003] FCAFC 397 at [19]). The Tribunal's finding that the appellant was not credible was reasoned and open to it and provides no basis for a claim of bias (SBBS v MIMIA (2002) 194 ALR 749 at [44]). There is no error in her Honour's judgment.

8                     Moreover, the notice of appeal does not particularise any error in her Honour's judgment. The reliance in the notice of appeal and the decision in Muin v The Refugee Review Tribunal (2002) 190 ALR 601 is misplaced as there has been no attempt to establish that any documents referred to in the delegates decision were not before the Tribunal or that the appellant was misled in any way by the letter which is set out in the green book at pages 58-59 and 64-65. The factual basis for the application in Muin accordingly does not exist (NADR v MIMIA [2002] FCAFC 293).

9                     As there is no arguable jurisdictional error in the Tribunal's decision it is strictly unnecessary to discuss the effect of plaintiff S157/2002 v The Commonwealth of Australia, (2003) 195 ALR 24. The Tribunal was plainly addressing the right question and the appellant's complaints can at most concern the weight given to the evidence before it.

10                  The appellant has sought an adjournment for several weeks to enable him to bring his legal adviser with him to address the court on the grounds set out in the notice of appeal which that adviser had prepared for him. This application was made at the conclusion of the appellant’s address. The grounds set out in the notice of appeal are misconceived, and do not postulate any viable error in the reasons for judgment of the Federal Magistrate. In any event, the basis for the adjourned application was in the circumstances without merit.

11                  In the result, the appeal is dismissed and I order the appellant to pay the respondent's costs of and incidental to this appeal.

Associate:

Dated:              10 June 2003