FEDERAL COURT OF AUSTRALIA

NADR v Minister for Immigration & Multicultural Affairs [2002] FCA 361

NADR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1683 OF 2001

EMMETT J

SYDNEY

20 MARCH 2002

THE COURT ORDERS THAT:

1.         the application be dismissed; and

2.         the applicant to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Bangladesh.  He arrived in Australia on 12 February 1999 and on 24 February 1999 he lodged an application under the Migration Act 1958 (Cth) (“the Act”) for a protection (class AZ) visa with the Department of Immigration & Multicultural Affairs.  On 15 March 1999, a delegate of the respondent, the Minister for Immigration & Multicultural Affairs (“the Minister”), refused to grant a protection visa.  On 14 April 1999, the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of the decision of the delegate.

2                     On 6 November 2001, the Tribunal affirmed the decision not to grant a protection visa.  By application filed on 28 December 2001, the applicant sought an order of review of the decision of the Tribunal by the Federal Court.  The decision of the Tribunal is a privative clause decision within the meaning of s 474 of the Act.  That is to say, it is a decision of administrative character made under the Act. Accordingly, pursuant to s 474(1), the decision:

“(a)     is final and conclusive; and

  (b)     must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

  (c)      is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

3                     By his amended application, the applicant claims relief under s 39B of the Judiciary Act 1903 (Cth)and contends that s 474 does not preclude the grant of relief.  A provision such as s 474 is not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate.  Such a provision is interpreted as meaning that no decision which is in fact given by the body concerned is to be invalidated on the ground that it had not conformed to the requirements governing its proceedings, or the exercise of its authority, or has not confined its acts within the limits laid down by the instrument, or provision giving it authority subject to certain pre-requisites. Those pre-requisites are that the decision is a bona fide attempt to exercise power, that it relates to the subject matter of the grant of power and that it is reasonably capable of reference to the power given to the decision-maker - see R v Hickman, Fox v Clinton 70 CLR 598 at 615. 

4                     The applicant, in the only ground of the amended application maintained, contends that the failure by the Tribunal to consider fully the independent evidence in relation to the protection available to the applicant from the authorities should he return to Bangladesh indicates that the Tribunal adopted a closed mind to the independent evidence, such that the decision is affected by actual bias.  For the purposes of dealing with this contention, I will assume that a decision affected by actual bias could not be characterised as a bona fide attempt to exercise power in making the decision.  It is therefore necessary to consider the findings made by the Tribunal and the attack mounted against those findings on behalf of the applicant. 

5                     The applicant claimed that, from the mid-1980s to the mid-1990s, he had been active in the Chatra Shabir, the junior wing of the fundamentalist Islamic party in Bangladesh, the Jama’at-e-Islami.  He had been a vice president of the Chatra Shabir branch of his university college although he said that he had given up that senior position in 1991.  He claimed he had organised and attended many demonstrations and party meetings and that, because of those activities, he had fallen foul of other parties. 

6                     The Tribunal accepted that the applicant had been an activist in Chatra Shabir.  It accepted that, for a few years, he had held a leading post in the university branch set up by that organisation and that he had given up that position in 1991 and that for the remaining three years of his time in Bangladesh he had remained active in the Chatra Shabir.  The Tribunal also accepted a claim that he had a false charge filed against him.  However, the Tribunal was not satisfied that the applicant would face persecution in Bangladesh over such a charge or over the expression of his political views if he returned to Bangladesh.

7                     The Tribunal found that Jama’at-e-Islami is a legal political party that is operated freely under both the Bangladesh National Party (“BNP”) and the Awami League governments.  The Tribunal considered there was no evidence to support the claim that that party or its junior wing, the Chatra Shabir, had been muzzled, or stifled, or repressed.  Rather the Tribunal accepted independent evidence that showed that the organisation does not fear the Awami League, but has resorted to continual gun battles and to murdering Awami League leaders, even while the Awami League is in government.

8                     The Tribunal considered that the independent evidence before it supported the conclusion that the Chatra Shabir is an organisation engaging regularly in a high level of violence.  The Tribunal did not accept the applicant's claim that it is a non-violent organisation.  The Tribunal accepted that, if the applicant had stood falsely accused by political rivals of involvement in the murders of several police officers in 1994, he was being harassed over his politics.  However, the Tribunal was not satisfied that the applicant lacked protection or that he was left vulnerable to persecution in such a situation.  The fact that the applicant had been freed by an order of a court indicated to the Tribunal that the courts were not inclined to bend to a false charge and act harshly against him. 

9                     The Tribunal found it highly implausible that police and the courts would have allowed the applicant to be set free, as he asserted, if they had any substantial suspicion that he was guilty of the killings of several police officers.  The Tribunal considered that the authorities had either realised that the charge against him was false and were therefore treating him with sympathy and working to protect him against harm or were of the opinion that he had only minimal possible involvement in the killings and were therefore treating him with leniency.

10                  The Tribunal was not satisfied, from the applicant's own evidence concerning his release on bail, that he was in a dire position and facing a real chance of persecution.  The Tribunal was not convinced by independent evidence concerning the Bangladeshi authorities’ attitude to politically motivated false charges that the applicant lacked protection in Bangladesh over the threat of false charges. 

11                  The Tribunal accepted that the laying of false charges by rival political activists is a common tactic in Bangladesh.   However, the Tribunal considered that the independent evidence before it indicated that the victims of such incidence have protection.  The Tribunal referred specifically to the Public Safety Act, which allows for charges to be brought against instigating false charges.  The Tribunal considered that that showed that the Bangladesh Government was well aware of the problem and was determined to stop it.  The Tribunal also cited independent evidence, which it considered showed that the courts which are independent could be relied upon to provide protection for those falsely charged.

12                  The Tribunal recognised the applicant’s submission that the lower courts are not always reliable in acting against false charges.  However, the Tribunal observed that the fact that the applicant was set free on bail does not indicate that he was refused justice by the courts.  The Public Safety Act stipulates that appeals from lower court judgments have to come before the High Court within three weeks.  The Tribunal considered that that was important because, on occasion, judges of lower courts could be corrupt or vulnerable to pressure from the executive.  However, the Tribunal cited independent evidence to the effect that it was recognised that the high levels of the judiciary display a significant degree of independence and often rule against the government in criminal, civil, and even politically controversial cases.  The Tribunal considered that independent evidence showed that people in the applicant’s position can rely on the courts and on the authorities in regard to any false charges laid against him. 

13                  The Tribunal accepted that the applicant might face police or a court action pending from his 1994 charge upon his return to Bangladesh.  However, for the reasons given by the Tribunal, based on the independent evidence to which reference was made, the Tribunal was not satisfied that he would face persecution over that matter.  The Tribunal was not satisfied, given the applicant’s non-office bearer status in his last three years in Bangladesh, his absence from the country and its politics from 1994 to 2001 and the political changes that have taken place during his absence, that he would be regarded as having a profile distinct enough to draw adverse attention from activists of parties other than Jama’at/Chatra Shibir.

14                  The applicant took issue with two findings by the Tribunal to the effect that the applicant could find protection from harm over his political views from the authorities in Bangladesh and that he has the protection of the authorities and the courts in relation to false charges laid against him.  The essence of the contention was that the independent evidence demonstrated that all is not well in Bangladesh and that there are risks for the applicant.  The complaint is that the Tribunal has not looked at the independent evidence in a fair and impartial way and that, had it done so, it would have reached a different conclusion in relation to those two findings.

15                  The applicant contended that there are parts of the independent evidence that the Tribunal ignored and that its treatment of the independent evidence indicated that it turned a blind eye to part of it.  There is nothing in the Tribunal’s reasons, and there is no evidence as to the conduct of the Tribunal in the course of any hearing, to suggest actual bias on the part of the Tribunal.  Rather the applicant limited his contentions to the proposition that an examination of all of the independent evidence indicates that a right thinking decision-maker would have come to a different conclusion and that, from that proposition, an inference can be drawn that the Tribunal was affected by actual bias.

16                  A finding of actual bias is a grave and exceptional matter.  The accusation of such bias must be firmly established.  It cannot be sufficient to establish actual bias to invite a court to find that it would have come to a different decision from the decision-maker.  Even factual error or faulty reasoning, notwithstanding that the factual error might be serious or the reasoning might be totally illogical, is not of itself sufficient to lead to a finding of actual bias (see Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at paragraph [32]).

17                  The independent evidence to which reference is made by the Tribunal indicates that circumstances are not ideal in Bangladesh.  However, the Tribunal referred to a number of independent documents in justifying its conclusion that the applicant could find protection from the authorities and the courts.  For example, a United States State Department Report on Human Rights Practices in Bangladesh, reported that the higher levels of the judiciary display a significant degree of independence and often rule against the government in criminal, civil and even politically controversial cases.

18                  In a Reuters Report dated 30 January 2001 a former Prime Minister was reported as stating publicly that she was determined to ensure the rule of law and had instructed police not to misuse certain laws but to act neutrally and with honesty in the interest of the masses, not for any particular quarter.

19                  The Tribunal referred to a BBC News Report of 22 August 2001 referring to the fact that large numbers of the Awami League were being targeted by police at a time when the Awami League was still in power.  The Tribunal concluded from that report that, in general, the forces of law and order can enforce the anti-crime laws according to their stated non-discriminatory purpose.

20                  My consideration of the documents to which the Tribunal refers indicates that they are capable of supporting the Tribunal’s conclusions.  Accordingly there could not be any suggestion of bias on the part of the Tribunal in reaching those conclusions.  Even if minds could differ as to the interpretation of the independent material and the Tribunal had reached one conclusion rather than another, that of itself clearly would not amount to bias.

21                  If there was simply no material of any substance at all before the Tribunal from which conclusions could have been drawn and that there was reliable material to the contrary, it may be possible to draw some inference concerning bias on the part of the Tribunal.  However, that is simply not so in this case.

22                  I am not persuaded that there is any material before me to suggest actual bias on the part of the Tribunal.  There is nothing before me to lead me to conclude that the decision of the Tribunal was otherwise than a bona fide attempt to exercise its power.  The decision clearly relates to the subject matter of the Migration Act and it is clearly referable to the decision making power given to the Tribunal.  Whether or not any error is demonstrated on the part of the Tribunal, s 474 renders its decision final and conclusive.  In my opinion the application should be dismissed.

Associate:

Dated:              20 March 2002