NALJ v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 This is yet another legally hopeless application to the Court for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision of a delegate of the respondent Minister to deny the applicant a protection visa. 2 The applicant is a national of Bangladesh. He arrived in Australia on 11 September 2000 and applied for a protection visa as long ago as 25 September 2000. Over six months later on 19 April 2001 the delegate of the respondent Minister refused the application for the grant of a protection visa. On 1 May 2001 the applicant applied to the Tribunal and sought the review of that decision. The Tribunal invited the applicant to attend a hearing on 13 December 2002. The applicant appeared before the Tribunal and gave evidence. The Tribunal handed down its decision on the 19 February 2003. 3 The applicant's claim was that he was a leading member of the Bangladesh Nationalist Party ("BNP") in Dhaka, having been involved in student politics as a supporter of the BNP's youth wing up to 1994 and on conclusion of certain studies he later became an executive member of the party's committee for the Dhaka "Metropolitan City". He claimed to be the "General Secretary of his area". He claimed that on 10 June 2000, during a street demonstration by BNP members of whom he was one against the then Awami League government, an incident occurred involving the demonstrators and retaliating supporters of the Awami League. In the course of the demonstration a passerby was shot dead. The Awami League accused the applicant and others of responsibility for that death. The applicant said that a false murder charge was lodged with the police against him in relation to the incident. He then went into hiding with various relatives to avoid arrest. The police harassed his family for failing to disclose his whereabouts. He feared life imprisonment if arrested because he said that the police and judiciary were biased in favour of the Awami League government. He left for Australia on 9 September 2000. 4 The Tribunal Member during the hearing pointed out that in October 2001 the applicant's own party, the BNP had come to government with a substantial majority. As the Tribunal Member put it: 'The applicant responded by substantially changing his original claims. He said that should he return to Bangladesh, his situation would still be grave, because he had many enemies not only in the Awami League but also in the Jatiyo Party and in other factions of his own party, the BNP.' 5 The Tribunal Member observed that originally the applicant had only referred to his problems with the Awami League. The Tribunal Member specifically raised with the applicant the proposition that as there had been a change of government it seemed unlikely that the police and judiciary would continue to be biased against BNP members. The Tribunal then recorded the following response: 'The applicant replied that although he knew senior members of the BNP government who could help defend him, the question was for how long? Police protection was not guaranteed for life and eventually his enemies would kill him.' Further it appears: 'The applicant told the Tribunal that his involvement in politics had been a big mistake and that now he could go neither forward nor backwards if he returned to Bangladesh.' 6 The Tribunal Member accepted certain "country information" which suggested that: '… the Bangladesh judicial system remains relatively independent and the alleged case against the applicant for murder, should it proceed, would be considered on its legal merits. The Tribunal does not accept his claim that the police would support the bringing up of "false" charges against the applicant by the Awami League especially as his party is now in power.' 7 The Tribunal likewise did not accept that the applicant faced any real chance of persecution from members of his own party, referring to material which suggested that the present government in Bangladesh appeared to be following a policy of even handedness in relation to the political background of persons accused of breaches of the law. The Tribunal Member, for reasons given, took the view that Bangladesh police would not be biased against those who supported their present political masters and that: 'there is not a real chance that the applicant will suffer persecution for reason of his political views or for any other convention reason, now or in the reasonably foreseeable future, if he returns to Bangladesh. Consequently, his fear of persecution for a Convention reason is not well founded.' 8 The applicant's application appears to be lodged under s 39B of the Judiciary Act 1903 (Cth). The only matters of substance, or potential legal substance that one might discern from the application and written submissions seem to me to be an alleged deprivation of the opportunity fully to present his case to the Tribunal and that the Tribunal failed to act according to the substantial justice and the merits of the case. 9 No procedural unfairness is manifest from the material before me. If any error could be established on the part of the Tribunal Member it would not appear to be of such a kind that it would nullify the decision. 10 The written submissions, from memory, are remarkably similar to written submissions received by me and/or the Federal Magistrate's Court in a number of other cases concerning Bangladeshi nationals, which claim a history as a youth activist in a political party and the making of false charges against them by members of another party. The applicant said that his submissions were prepared by a "friend", whose name appears in the transcript, and who lives at Mascot. I have had a similar explanation in at least one other case. The submissions appear to be an incident of the old saying that a little knowledge is a dangerous thing. Reading his submissions with unwonted charity, the applicant accuses the decision maker of various matters which, if established, would go to the jurisdiction of the Tribunal. These include that the Tribunal acted in bad faith generally, that it got the facts wrong, that it took into account irrelevant matters and that it did not take certain relevant matters into consideration. Warming to the task, the submissions proceed to assert that the decision maker did not make an honest attempt to come to the right decision. Getting to full speed, the submissions assert also that the decision maker intentionally made a wrong decision: 'Having listened to the tape recording of the Tribunal proceedings and having read its decision, your lordship can say that the Tribunal acted in bad faith.' If the Tribunal Member did "get the facts wrong" so far as I can see he did not do so by misunderstanding the evidence in the applicant's case nor did he take into account any irrelevant material, or fail to take into account any relevant material that was before him.' 11 It is in the circumstances quite outrageous that anyone, whether or not a "friend", and whether through reasons that were altruistic or pecuniary, should assist an applicant without foundation to make such unwarranted assertions against the reputation and integrity of Tribunal Members. So to do abuses the processes of the Court and may well amount to contempt of court. The respondent is a representative of the elected government of this country. The friend, gratuitously or for reward, has aided and abetted this legally hopeless applicant. No doubt the respondent will cause the appropriate arm of government to consider protection of Tribunal Members, the courts and the public purse against such misplaced "assistance" by such friends. 12 The application must be dismissed. The applicant is to pay the respondent's costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.