S1060 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

Judgment (8 paragraphs)

[1]

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.

[2]

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 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. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

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Judgment (8 paragraphs)

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