FEDERAL COURT OF AUSTRALIA

S1060 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 196

MIGRATION – no point of principle

S1060 of 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1748 OF 2004

MOORE J

17 FEBRUARY 2005

SYDNEY

THE COURT ORDERS THAT:

1.      The application for an extension of time be dismissed.

2.      The applicant pay the respondent's costs.

3.      Costs be fixed in the sum of $650.

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

REASONS FOR JUDGMENT

(Ex Tempore – Revised)

1                     This is an application for an extension of time in which to appeal against a judgment of a Federal Magistrate of 3 November 2004 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 7 December 1998.

2                     The applicant is a national of Bangladesh.  He arrived in Australia on 9 August 1996.  He lodged an application for a protection visa on 9 October 1996.  A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused that application on 29 April 1997.  The applicant applied to the Tribunal for review of that decision on 21 May 1997.  The Tribunal affirmed the decision to refuse to grant the applicant a protection visa on 7 December 1998.  The applicant applied to the Federal Magistrates Court on 19 May 2004 for review of the Tribunal decision and filed an amended application on 12 October 2004.  The Federal Magistrate dismissed the application on 3 November 2004.  Order 52 rule 15 of the Federal Court Rules provides that a notice of appeal shall be filed and served within 21 days after the date when the judgment appealed from was pronounced.

3                     On 25 November 2004 the applicant filed in this Court an application for an extension of time to file and serve a notice of appeal and a supporting affidavit.  In his affidavit he explained that he believed he was required to lodge his appeal only after receipt of the reasons for judgment which he received on or around 22 November 2004.  He was unaware he was required to lodge the notice of appeal within 21 days of the date of the judgment.

Background

4                     The following are claims and evidence that were before the Tribunal.  The applicant arrived in Australia on 9 August 1996 via Singapore, staying there a few days, before coming to Australia.  He had what appeared to be a residency permit permitting him to work in Singapore.  He arrived in Australia on a passport issued in the name of "A" in Dhaka on 1 June 1995.  In his protection visa application he says his name is "B".  He maintains "B" his true name.

5                     The applicant claimed to have been a member of the Bangladesh National Party (BNP) since 1988 and to have come into conflict with members of the Awami League.  He claimed to fear persecution, arrest and detention from people associated with the Awami League government if he were to return.  He claimed to fear this because his political views opposing government and his support of Taslima Nasreem.  He claimed his close personal connection with the BNP makes him particularly vulnerable at the hands of the present administration.

6                     His problems began when the interim government took over the running of Bangladesh prior to the June 1996 elections.  During this time he was involved in "clashes" during demonstrations.  On one occasion, on 12 June 1996, he was involved in a "procession" that passed in front of the Awami League office and they were attacked by Awami League members and there was fighting.  He had no further problems until after the elections when the police came to his house with a warrant for his arrest alleging he and other BNP demonstrators had attacked the Awami League members with hockey sticks and other weapons.  These charges were false.  No one in the demonstration had been armed.  He was not at home when the police came but his father was told the applicant should report to the police on his return.  Afraid of being arrested and detained, the applicant stayed away from his house until he could leave the country. 

7                     He also claimed to have opposed fundamentalism and supported Taslima Nasreem in 1994.  He claimed to have read "Shame" by Ms Nasreem and that it was about freedom for women in Bangladesh.  He claimed to have supported Ms Nasreem in various ways, once organising a seminar in 1995 for her attended by people who supported freedom in Bangladesh.  He claimed she had left Bangladesh at the end of 1995.  The applicant feared his support for her would cause conflict with people who wanted to take revenge against him in Bangladesh.

The Tribunal's decision

8                     The Tribunal expressed doubts about the claim that the applicant entered Australia on a false passport, pointing to the fact that the passport was issued in 1995, before his claimed political problems and the alleged police interest in him.  However, the Tribunal said that even if it were to accept that his passport was fraudulently obtained, it was not satisfied that he left Bangladesh because he was being sought by the authorities for political reasons, nor that he would be at risk of persecution from Bangladeshi authorities or his political opponents because of his political opinion.

9                     The Tribunal doubted the applicant's credibility because his evidence regarding the subject of Ms Nasreem's book and the date of her departure were inaccurate.  It concluded he had never read her book as he had claimed and that he had fabricated his claim to have supported her to enhance his chances of obtaining refugee status.  Other evidence that caused the Tribunal to doubt his credibility included his failure to mention charges allegedly laid against him before leaving Bangladesh until 18 months after he had lodged his protection visa application.

10                  The Tribunal noted that it was only at the hearing that the applicant made certain claims.  First, the claim regarding his father being shown the warrant for his arrest, which was meant to have prompted him to leave the country.  On this count, the Tribunal was not satisfied that a warrant was issued for his arrest before he left Bangladesh.  Secondly, the claim that he had been sentenced to four years jail following a trial in September 1996.  The Tribunal did not accept that he would have failed to mention this earlier if it were true.

11                  The Tribunal found it difficult to accept the applicant would have waited one year before obtaining police and court documents and the supporting newspaper article if his claims were true.  It added that, according to a Department of Immigration and Multicultural and Indigenous Affairs cable, fraudulent court documents can be easily obtained in Bangladesh.  It also referred to a profile on Bangladesh issued by the United States Department of State Bureau of Democracy, Human Rights and Labour regarding false "documented" claims of outstanding warrants, and the phenomenon of altered or counterfeit newspaper articles.  It was not satisfied that supporting letters from the BNP were genuine.

12                  The Tribunal observed that violence was a feature of political life in Bangladesh and the BNP were amongst those involved in violence.  It found that taking a demonstration past the Awami League office, "was clearly a provocative act likely to result in violence".  The Tribunal concluded that even if it did accept the applicant was wanted by authorities in relation to the 1996 demonstration, the likely consequences would not constitute serious harm amounting to persecution.  Further, even accepting the applicant was an official of his local branch of the BNP the Tribunal did not consider that this gave rise to a well-founded fear of persecution for reasons of political opinion.

The judgment of the Federal Magistrate

13                  The Federal Magistrate found the applicant's claim that the Tribunal had not properly applied the test for refugee status could not be made out.  The applicant claimed the Tribunal had failed to comply with s 424A(1) of the Migration Act 1958 (Cth) by not giving the applicant particulars of country information on which it relied.  However, s 424A had not commenced when the Tribunal made its decision.  In relation to his claim to have been denied procedural fairness in not being given an opportunity to comment on the Tribunal's acceptance of country information about document fraud in Bangladesh, the Court noted there was no transcript or other evidence of the hearing allowing the Court to draw such an inference.  The applicant also claimed that the Tribunal made a decision with a closed mind.  The Tribunal found there was no failure by the Tribunal to exercise its jurisdiction, nor any lack of procedural fairness.

The application and its disposition

14                  In his draft notice of appeal the applicant claims that the Federal Magistrate erred in not finding that the Tribunal failed to take into consideration, or consider "properly", a number of the applicant's claims.  These were that the applicant feared persecution due to his association with the BNP, that the applicant had been in hiding in Bangladesh "after the conviction on a false charge due to his fear of persecution" and that the applicant had been influenced by the threat of harm to obtain a false passport.

15                  The applicant also claimed that the Federal Magistrate had erred in not finding that the Tribunal had failed to consider the factual matrix relating to the issue of an arrest warrant and his subsequent conviction on false charges or that the Tribunal did not disclose adverse country information used against the applicant.

16                  The applicant also made the serious claim that the Tribunal lacked impartiality and that the Federal Magistrate erred in not finding so.  The applicant claims the Federal Magistrate erred in rejecting the proposition that there had been a denial of procedural fairness or that the Tribunal decision was attended by jurisdictional error.

17                  I have read the reasons for judgment of the Federal Magistrate.  I have invited the applicant to identify arguable errors of the Federal Magistrate which might suggest the appeal has some prospects of success.  None were identified.  None were apparent to me.  Even though the delay in filing was not great leave should be refused because there are no real prospects of success in the appeal.

18                  I order that the application for an extension of time be dismissed and the applicant pay the Minister's costs fixed in the sum of $650.

Associate:

Dated:              9 March 2005