FEDERAL COURT OF AUSTRALIA

NAOL v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 243

Judiciary Act 1903 (Cth) s 39B

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 followed

NAOL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No N 1031 of 2003

SPENDER, HELY, BENNETT JJ

SYDNEY

3 NOVEMBER 2003

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

SPENDER J:

1                     This is an appeal from a judgment of Jacobson J given on 30 July 2003 where his Honour dismissed an application under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) delivered on 25 March 2003, at the conclusion or an oral hearing held before it on that day.

2                     The decision of the Tribunal affirmed the decision of the delegate that had been made on 20 June 2001. 

3                     The appellant is a citizen of Bangladesh.  He arrived in Australia on 20 April 2001, and applied for a protection visa on 14 May 2001.  He claimed to be a refugee in that he had a well-founded fear of persecution on political grounds.  He claimed to be a member of the Bangladesh Freedom Party and that most of the senior members of it were in gaol and had been sentenced to death.  He claimed that he had attended a meeting on 14 April 2001 where a bomb had exploded and 9 people were killed and 30 injured.  His claim was that if he were to be returned to Bangladesh, he would be persecuted either by members of the police, or by members of a rival political party. 

4                     The Tribunal stated that it had considered his claims and the evidence he had advanced, but did not accept as true his claims of having been a member and supporter of the Freedom Party.  The Tribunal found that his claims were fabricated and that he was not a credible witness. 

5                     Particularly in the light of the appellant’s written submissions to this Court, it is relevant to note, as appears from page 111 of the Appeal Book, that the Tribunal gave reasons for its finding that the appellant was not a credible witness and in respect of documents which he had produced to the Tribunal, the Tribunal found that the two sets of documents produced by him related to matters not mentioned at all in his original visa application.  The Tribunal said:

‘I find that they are fabricated for the reasons as discussed with the applicant at hearing.’

6                     Those findings on credibility and the reasons for that finding pose very large hurdles for the appellant in this Court, as they did for him before the primary judge. 

7                     McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at para 67 said:

‘… a finding on credibility … is the function of the primary decision- maker par excellence.  If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed.  The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. 

In any event, the reason for the disbelief is apparent in this case from the use of the word, “implausible”.  The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged.’ 

8                     In the present case, though the Tribunal did not use the word “implausible”, it did give its reasons for finding that the appellant was not a credible witness.  This “sub-set” of reasons for that finding appears at page 13 and 14 of the Tribunals reasons:

“As is obvious from what transpired at the hearing the applicant knew virtually nothing about the Freedom Party other than the names of its prominent leaders. He did not know that it had a newspaper and did not know the name of its youth wing. He was unable to give other than vague answers in relation to Party candidates and activity in the June 1996 elections and had no idea of which districts it had contested other than being able to mention Dhamondi. He incorrectly stated that the successful candidate in his electoral district was Nazir Hossein an independent- in fact his electoral district of Dhaka 7 (Satrapur-Kotwali) was won by a BNP candidate named Sadeq Hossein (Virtual Bangaldesh, June 1996 Election results). He could not give any detail about what he did for the Party other than to give vague answers about informing people about the Party. He did not know who the wife of Colonel Rashid was or anything about her. He incorrectly referred to Colonel Rashid as Major Rashid. I have carefully considered the evidence given in this matter and the independent evidence and would have expected someone of the claimed association with and involvement in the Party as claimed by the applicant to have know of the matters I discussed with him, the fact that he knew virtually nothing of the Party, its personalities and of the June 1996 elections indicates to me that his claims of association with and membership of the Freedom Party are fabricated. I do not accept any of his claims as being true. I find that he was not a credible witness.

9                     The decision of the Tribunal was that the applicant did not have a well-founded fear of persecution for a Convention reason, and consequently, the appellant was not a person to whom Australia has protection obligations under the Convention or the protocol.

10                  Before the primary judge, the appellant sought an adjournment, which was refused.    The only ground argued before Jacobson J was that the Tribunal had not properly considered his application based primarily on the consideration that it had given its judgment straight away.  This allegation was regarded by the Jacobson J as an allegation of actual bias.  In respect of this claim, he found:

‘There is nothing to suggest that the RRT’s mind was closed.  The mere fact that the decision was given at the conclusion of the hearing cannot possibly give rise to such a finding.’

This complaint was repeated before us, but there is nothing to suggest that the conclusion of Jacobson J was in error. This ground must fail.

11                  That is sufficient to dispose of the present complaints by the appellant that there was a failure by the Tribunal to give the appellant an opportunity to make written submissions about the reasons for its decision.  The appellant appears to suggest that he should have had an opportunity to make written submissions about the reasons the Tribunal relied on in reaching its finding on credibility.  For the explanation contained in the observations of McHugh J referred to above, that claim is without foundation. 

12                  The three other grounds of appeal repeat what was argued before the primary judge:  first, there was a failure to give to the appellant a reasonable opportunity to address the Tribunal on the issues before it.  Secondly, that the proceedings before the Tribunal constituted a lack of procedural fairness accorded to the appellant in that he was denied a reasonable opportunity to answer evidence in the possession of the Tribunal.  Thirdly, that the Tribunal had not dealt substantially with his claim that he will face selective harassment as a member of a political group on his return to Bangladesh. 

13                  The primary judge rejected each of these grounds.  The second and third of them involve a misunderstanding of what, in fact, the Tribunal did.  The Tribunal essentially found against the applicant because it did not believe him, and it is not correct that the Tribunal did not deal with his claim.  It did, but it rejected it. 

14                  The Jacobson J concluded:

‘I am satisfied that this application is entirely without merit.’

15                  Of course, it would have been sufficient for the primary judge to find, as he did, that there was no legal error of a jurisdictional kind, or otherwise, in the decision of the Tribunal.  In my opinion, no error has been demonstrated in the reasons for judgment of the primary judge, and the appeal should be dismissed with costs.

HELY J:   I agree.

BENNETT J:  I agree.

SPENDER J:   The order of the court is that the appeal is dismissed with costs. 

Associate:

Dated:              3 November 2003