Case: S142/2003 v Minister for Immigration &amp; Anor [2008] FMCA 969
Outcome: cited
proceeding is an appeal from orders of the Federal Magistrates Court of Australia ( Applicant S142/2003 v Minister for Immigration &amp; Anor [2008] FMCA 969) dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 2 November 2007 and published on 6 November 2007. By that decision, the Tribunal affirmed the decision of the delegate of the first respondent to refuse the grant of a protection visa to the appellant, a national of Bangladesh. The appellant contends by his notice of appeal that his Honour, Federal Magistrate Cameron, erred in a way reflecting jurisdictional error by incorrectly "interpreting" the applicable law and incorrectly "applying" the relevant law to the facts of the case. Secondly, the Tribunal failed, it is said, to comply with s 424A(1)(a) of the Migration Act 1958 (Cth) ("the Migration Act ") by relying on information not put to the appellant and not discussed with the appellant, in reaching its decision. Thirdly, the Tribunal failed, it is said, to comply with s 424A(1)(b) of the Migration Act by failing to give the appellant particulars of "the derivation of adverse evidence which might affect a consideration of whether the information is reliable". Fourthly, it is said that the Tribunal failed to give the appellant any opportunity to contest or comment upon independent country information relied upon by the Tribunal in reaching its decision. These grounds of appeal, however, fail to identify the particular information said to have been relied upon by the Tribunal and not put to the appellant. The appellant was self-represented before this Court with the assistance of an interpreter. The appellant has some understanding of English. He says that he can speak, read and write English although poorly. He speaks, reads and writes the Bengali language. Although these reasons are formulated for the benefit of all parties, the explanation of the basis for the Court's decision is set out with the appellant particularly in mind as the appellant is not represented by legal advisers and an interpreter will be called upon to explain to the appellant the reasons for the decision. I will seek to set out the reasons as plainly as possible. The appellant contends that the decision of the Tribunal is unfair as he has now been in Australia for 10 years. The appellant says he holds a genuine fear of harm should he return to Bangladesh. He says he seeks "a fresh look at his case" by this Court. He says that the first decision of the Tribunal made on 9 October 2001 was set aside and thus his claims were shown to be genuine whereas the second Tribunal failed to examine and consider his claims of involvement in Bangladesh with a political party and claims of harassment of him in Bangladesh by opponents of that political party. To the extent that the appellant is seeking to say that the Tribunal failed to consider his claims of a well-founded fear of persecution based upon his involvement with a political party in Bangladesh through which he gave expression to his political opinions, or that the Tribunal failed to examine evidence of his involvement in the affairs of that political party which he says is the factual foundation for his well-founded fear of persecution (see ss 5(1) , 36 (2), 65 (1) of the Migration Act and Articles 1 and 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ), the appellant is contending that the Tribunal failed to discharge its statutory duty of review conferred upon it by the Migration Act (see ss 411 and 414 of the Migration Act ).