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NAFW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCATrans 471 (19 November 2004)

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NAFW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCATrans 471 (19 November 2004)

Last Updated: 9 December 2004

[2004] HCATrans 471


IN THE HIGH COURT OF AUSTRALIA


Office of the Registry
Sydney No S493 of 2003

B e t w e e n -

NAFW

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 NOVEMBER 2004, AT 11.28 AM


Copyright in the High Court of Australia


NAFW appeared in person.

MR S.B. LLOYD: If the Court pleases, I appear for the respondent. (instructed by Clayton Utz)

McHUGH J: You are the interpreter, are you?

THE INTERPRETER: Yes.

McHUGH J: What is your name?

THE INTERPRETER: Mohammed Shah Islam.

McHUGH J: And you have already given an affirmation, have you, in this - - -

THE INTERPRETER: Yes, just previously I took it before.

McHUGH J: Very well. You will interpret what is said in this Court for the benefit of the applicant?

THE INTERPRETER: Yes.

McHUGH J: You have 20 minutes to emphasise any points that you want to emphasise. We have read all the papers, we have read the judgments below, we have read your written submissions. If there is anything further that you want to put to us, would you put it now. You have 20 minutes to do so.

NAFW (through interpreter): .....honourable Justice that I am not happy with the decision previously I have received from the different courts. That is why I am requesting again if you send it back to RRT for further consideration, then I will be happy.

McHUGH J: We can only take on the case if there is some point which would justify the grant of special leave. You have to show legal error on the part of the Full Court of the Federal Court before we would take this case on. What is it that you allege is a legal error on the part of the Full Court of the Federal Court?

NAFW (through interpreter): Your Honour, I am not exactly sure the legal error about the decision because I do not have enough knowledge about the legal system, but every court I have requested that if you could send it back to RRT with a different member, I think they can give some
different decision, whatever I can get. He has given decision in the.....in your country but he did not distinguish my case differently.

McHUGH J: We just cannot send the case back. You have to show some legal error on the part of the Full Court.

NAFW (through interpreter): In that case, your Honour, I do not have anything to say.

McHUGH J: Very well, thank you. Well, just sit down. We do not need to hear you, Mr Lloyd. I will give a short judgment in this matter. You can translate it to her as I go.

This is an application for special leave to appeal from a unanimous decision of the Full Court of the Federal Court, dismissing an appeal from a decision of Justice Wilcox, dismissing an application for judicial review of a decision of the Refugee Review Tribunal.

The applicant and her husband, who is not a party to this application, arrived in Australia in December 1999 and made their applications for protection visas in the same month. The applicant claims that she fears persecution as a journalist for two reasons. She claims she is a member or supporter of the Bangladeshi National Party, and that before that party came to power, she wrote articles critical of the then ruling Awami League. She also claims that she wrote articles about a feminist Bangladeshi author, Nasreen. The applicant claims these writings led to threats and acts of violence against her and her family by members of the Awami League and an Islamic fundamentalist party and false charges being laid against her.

The Tribunal rejected the applicant’s claims for two main reasons. First, the applicant was not believed about her writing regarding Nasreen, nor were her supporting documents, which she relied on, accepted by the Tribunal as genuine. Secondly, the Tribunal found that even if both the applicant’s claims were true, the country information indicated that she could seek protection from the Bangladeshi authorities and the Bangladeshi courts to vindicate her rights.

The applicant’s application for judicial review alleged bias on the part of the Tribunal and sought merits review. Justice Wilcox dismissed both grounds. In the Full Court of the Federal Court, and in this Court, in her application, the applicant has relied on a supposed similarity between her case and this Court’s decision in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966. It is obvious that somebody has prepared this claim on her behalf. She claimed that she had received a letter in identical terms to the one in the Muin appeal, and that the Tribunal had wrongly failed to have regard to the Part B documents in her case and to other materials, or had otherwise denied her procedural fairness.

The Full Court of the Federal Court noted that the applicant’s case did not raise a Muin issue because there was no evidence or indication that the Part B documents were not relied on. Indeed, a number of them were referred to in the Tribunal’s reasons. Nor did the Full Court of the Federal Court identify any other procedural irregularity or unfairness.

Justice Callinan and I have read the decisions and we can see no error in the reasons of the Tribunal or those of Justice Wilcox or of the Full Court of the Federal Court. The application raises no special leave question requiring intervention by this Court and an application has no prospects of success that would warrant a grant of special leave to appeal. There is no relevant similarity between this case and Muin’s Case, and there is no other denial of procedural fairness disclosed in the Tribunal’s reasons or its conduct.

Accordingly, the only order that the Court can make is that the application should be dismissed with costs.

AT 11.38 AM THE MATTER WAS CONCLUDED


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