FEDERAL COURT OF AUSTRALIA

NAHM v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 307

NAHM V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N846 OF 2003

BENNETT J

18 FEBRUARY 2004

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal is dismissed with costs.

2.                  The costs do not include those for the directions hearing of 11 November 2003.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Barnes FM in relation to an application for review of decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 17 December 2002, affirming a decision of a delegate of the respondent not to grant a protection visa to the appellant.  Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice has determined that the appeal should be heard by a single judge.

2                     The appellant was born in Bangladesh in 1973.  The appellant's background has been summarised by Barnes FM at [2] of her Honour’s reasons for judgment:

‘The applicant is a national of Bangladesh who arrived in Australia on 22 September 2000.  He applied for a protection visa on 4 October 2000.  His application was rejected by a delegate of the Minister on 18 January 2001.  He applied for a review of that decision by the Tribunal on 10 February 2001.  The Applicant claimed that he was a prominent activist for the Bangladesh Nationalist Party (BNP) and feared that if he returned to Bangladesh he would be persecuted by the Awami League government.  By the time of the Tribunal hearing the BNP was in power in Bangladesh.  When this was put to him by the Tribunal the applicant responded that the BNP had changed and that real power was exercised by the Jamaat-e-Islami Party (which was in coalition with the BNP) and the Army, which would seek to harm him.’

3                     Before the Tribunal, the appellant claimed that he was an activist with the Bangladesh National Party (‘the BNP’) but a part of that party which is not in government.  As such, he claimed that he will be targeted by the army which is searching for people who have held positions with the BNP such as the one he held, local secretary. The appellant claimed that his brother had been killed, his wife had been threatened and that warrants have been issued against him.  These matters were cited in the Tribunal's reasons. 

4                     The appellant produced to the Tribunal a series of photographs which he claimed showed him at various political meetings and events.  The Tribunal was satisfied that the photographs had been altered after being taken and that the appellant knew that they were not genuine. The Tribunal was satisfied that the submission ‘of a series of doctored photographs’ was a deliberate attempt on the part of the appellant to mislead the Tribunal.  The attitude of the Tribunal as to the effect of the photographs on the appellant's credibility was put to him and the appellant given the opportunity to consult with his adviser.  The appellant maintained the genuineness of the photographs.

5                     The Tribunal made the following finding:

‘Unfortunately the Applicant’s actions in attempting to mislead the Tribunal and his deliberately false and untrue evidence have cast such grave doubts on his credibility as to prevent the Tribunal from being satisfied as [to] the truth of any of his claims which are not supported by other and more reliable evidence ... I am not satisfied as to the truth of any other claims made by the Applicant.’

6                     The Tribunal then continued and stated that, although there was some evidence that some local BNP leaders have been harmed, it was not satisfied that there was any reliable evidence that the appellant was a local BNP leader or that he is at any risk of harm.  Having considered the evidence as a whole, the Tribunal was not satisfied that the appellant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (‘the Convention’).

7                     Federal Magistrate Barnes considered in detail the various written and oral submissions of the appellant.  The appellant claimed that the Tribunal did not consider his claims and ignored the merits of his claim.  Her Honour noted that the Tribunal's reasons turned on the findings in relation to credibility which, Her Honour determined, were open to it on the material before it.  Her Honour observed that the appellant sought to reargue the merits of the case before the Tribunal and concluded, correctly, that there was no reviewable error with respect to such findings.

8                     Her Honour further characterised the Tribunal's reasons (at [13] and [15]) as follows:

‘13.     The rejection of the applicant’s claims about his own role meant that the Tribunal decision did not turn on an analysis or understanding of the current position in Bangladesh.  The Tribunal did not rely on the change of government, although as is clear from page 79 of the court book that it was aware of and referred to such factors.  It concluded that if the applicant was involved in political activity in Bangladesh, there was insufficient reliable evidence on which to conclude that such activity would place him at any risk of persecution in the future.  This conclusion was based on the fact that the Tribunal was not satisfied as to the truth of any of the applicant’s claims, which were not supported by evidence apart from the photographs which the Tribunal regarded as doctored.  The Tribunal did note that the party that he claimed to support was now in power (albeit in coalition) and that there was some evidence that some local BNP leaders had been harmed.  However, the Tribunal was not satisfied that there was any reliable evidence that the applicant was a local BNP leader or that he was at any risk of harm.  No reviewable error is apparent in the Tribunal’s consideration of the applicant’s claims. 

…

15.       As indicated, the Tribunal decision turned on its findings in relation to credibility.  The applicant's argument that the Tribunal failed to take into account the Bangladeshi country report does not establish any error on the Tribunal's part.  It is apparent that the Tribunal left open the possibility that if the applicant were a BNP activist there would be a real issue as to whether or not he would have a well founded fear of persecution based on the material before the Tribunal (being the independent country information referred to in the Tribunal reasons).’ 

This led her Honour on to conclude (at [22]) that the Tribunal’s decision did not turn on the present situation in Bangladesh, as it did not accept the appellant's claims. 

9                     As I read the Tribunal decision, it cannot be said that country information was the reason or was part of the reason for the Tribunal's decision. That country information was, relevantly, in respect of political activity in Bangladesh and those engaged in political activity.  The Tribunal was not satisfied as to the truth of the appellant's claim that he was engaged in such activity. Accordingly, the country report and the departmental information referred to in the Tribunal's reasons were not necessary to the Tribunal's decision (compare NARV v Minister for Immigration and  Multicultural and Indigenous Affairs [2003] FCAFC 262).  Therefore, this ground fails. It could not be said that the documentation referred to in the Tribunal's decision affected the conclusion that the appellant was not involved in political activity in Bangladesh (NATP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 98 and Applicant NAHV of 2002 v  Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 102). As a result, s 424A of the Migration Act 1958 (Cth) (‘the Act’) has no application. 

10                  In any event, the information was just about a class of persons and the appellant was found not to have been a member of that class.  As her Honour concluded, there was otherwise no obligation to give the appellant notice of general country information (SBBS v  Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749).

11                  Her Honour found that Muin v Refugee Review Tribunal (2002) 190 ALR 601 was not applicable to the appellant as the appellant failed to establish the factual matrix on which that case turned. 

12                  Her Honour dismissed the grounds based on an alleged failure to observe procedures under the Act as not particularised and not apparent and the allegations of bad faith and actual bias as lacking any support.  Her Honour was correct in so doing (NADR v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 465).

13                  Having considered in some detail the material before her and the appellant's claims, Barnes FM was not satisfied that any jurisdictional error or lack of procedural fairness had been established.  Her Honour found that the appellant had been given a reasonable opportunity to present his case and that the Tribunal had considered his claims and made findings, including credibility findings, that were open to it on the material before it.

the appeal

14                  The amended notice of appeal, filed by the appellant on 25 August 2003, raises the following grounds:

‘1.        A number of errors were occurred by the Tribunal, which was not considered by the Honorable Federal Magistrate.

2.         The Tribunal misunderstood the applicant’s claim and the decision by the Tribunal was not reflected the true picture of the claim.  Honorable Federal Magistrate did not consider this.

3.         The tribunal did not provide the applicants an opportunity to comment on the information, which the Tribunal relied on it’s decision.  Where the applicant was deprived of receiving natural justice, Honourable Federal Magistrate also did not consider this.

4.         s474 of the Migration Act is ineffective as per the recent two decision of the High Court of Australia.  Honorable trial judge did not consider this favor of the applicant.

5.         The applicant will face persecution if he returns to his country of Origin, as there is a significant level of violation human rights, this was not considered by Honorable judge.’

the appellant’s submissions

15                  The appellant provided written submissions in support of his appeal.  He also made oral submissions at the hearing.  The oral submissions were directed to complaints about the factual findings of the Tribunal as to the genuineness of the photographs.  These findings are not reviewable.  In the written submission, the appellant raised a number of factual matters relating to the findings of the Tribunal about the photographs and the lack of acceptance of the appellant's evidence.  Complaints about the factual findings open to the Tribunal cannot amount to jurisdictional error.

16                  The appellant also said: ‘Probably the tribunal did not even read the statutory declaration.’  No basis for this assertion was given.  The Tribunal decision refers in some detail to the appellant's history.  There is no indication that the Tribunal failed to read the appellant's evidence and it was a matter for the Tribunal to accept or reject that evidence.  There was no obligation to refer to it specifically in the decision (Minister for Immigration and Multicultural Indigenous Affairs v Applicant S194 of 2002 [2003] FCAFC 273).

17                  The complaint that there were contradictions in the Tribunal decision has not been particularised or established.  In any event, that does not found jurisdictional error (SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749).

18                  The appellant also asserts that the Tribunal decision was completely based on country reports and that his application was rejected on the basis of ‘country back ground’.  A reading of the decision makes it clear that this was not the case. 

Ground One

19                  This ground provides no particulars and does not establish any error.  At the hearing the appellant did not add any matters to particularise this ground.  

Ground Two

20                  This ground provides no particulars.  The Federal Magistrate dealt with an assertion by the appellant that the Tribunal did not consider his claims and ignored the merits of his claim.  Her Honour considered that this was not the case.  I agree.  I can see no indication in the Tribunal's decision that it misunderstood the appellant's claim or that it did not reflect the true picture of his claim.  Nothing has been put by the appellant to indicate the basis of this allegation.

Ground Three

21                  Counsel for the respondent sought to tender the photographs referred to in the Tribunal's reasons, in circumstances where there was a finding of fact made by the Tribunal that the photos were doctored. Counsel for the respondent did not wish to draw my attention to any matter in the photographs.   I was informed that the photographs were tendered before Barnes FM. They were not referred to in the Federal Magistrate’s decision. 

22                  One of the photographs was reproduced in the appeal book. The appeal book was prepared by consent and at least one of the photos was considered relevant. I accepted the tender of the photos, for the sake of completeness, on the basis that it was part of the material before the Tribunal.  I did not accept the tender on the basis that is was evidence before me.

23                  It is apparent that the Tribunal gave the appellant ample opportunity to deal with its concerns about the photographs.  As to the documentation referred to, I have dealt with this above.  There was no denial of natural justice and no jurisdictional error.

Ground Four

24                  Again, no particulars were provided or explanation given of this ground.  At the hearing, the appellant was asked to identify the recent two decisions of the High Court of Australia referred to and was unable to do so.  If this ground is simply to assert the relevance of Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 (‘Plaintiff S157’) that case was applied by the Federal Magistrate.  As pointed out by counsel for the respondent, the appellant needs to establish jurisdictional error, which he has not done.

Ground Five

25                  This raises a factual assertion that was a matter for the Tribunal.  In any event, it contradicts the factual findings of the Tribunal which were open to it on the material before it.  Otherwise, it seems to assert general persecution not for a Convention reason.

original notice of appeal

26                  In the original notice of appeal, filed on 16 July 2003, the appellant referred to the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601.  That decision is of no assistance to the appellant because the factual basis for the High Court's decision is not present in this case.

27                  The original notice of appeal also referred to a decision of Mansfield J in SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 (‘SGDB’).  In that case Mansfield J allowed an appeal against a decision of a Federal Magistrate which had been delivered before the decision of the High Court in Plaintiff S157.  In the light of the High Court's interpretation of the privative clause in Plaintiff S157, his Honour found that the Federal Magistrate had erred by taking too narrow a view of what could constitute jurisdictional error and remitted the proceedings for redetermination in the Federal Magistrates Court.  The criticism directed to the decision of the Tribunal in SGDB cannot be made of the Tribunal's decision in the present case.

conclusion

28                  In the absence of further particulars or submissions on behalf of the appellant, I am of the view that the Tribunal's decision was open on the evidence and discloses no jurisdictional error. The decision turned on adverse credibility findings, which were open to the Tribunal on rational grounds. 

29                  The Tribunal's decision was carefully scrutinised by Barnes FM.  Her Honour's detailed reasons are sound and disclose no basis for appeal.  Her Honour was correct in her analysis that, in effect, the appellant's submissions sought to traverse the merits of the Tribunal's decision.

30                  The appellant has failed to articulate jurisdictional error by the Tribunal and has failed to identify any appellable error on the part of the Federal Magistrate.  It follows that the appeal should be dismissed with costs but those costs do not include those for the directions hearing of 11 November 2003 for which the wrong appellant was notified.

Associate:

Dated:              23 March 2004