FEDERAL COURT OF AUSTRALIA

NAGT v Minister For Immigration & Multicultural & Indigenous Affairs [2002] FCA 815

MIGRATION – application for review of decision of Refugee Review Tribunal – applicant a citizen of Bangladesh who claimed to fear persecution on the grounds of political opinion if returned to Bangladesh – whether Refugee Review Tribunal failed to exercise jurisdiction – privative clause decision – whether Refugee Review Tribunal made a bona fide attempt to exercise its powers

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 414

Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 cited

Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802 cited

NAAG of 2002 v Minister For Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 followed

NADO of 2002 v Minister For Immigration & Multicultural & Indigenous Affairs [2002] FCA 797 followed

SBAP v Refugee Review Tribunal [2002] FCA 590 applied

NAGT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 341 OF 2002

HELY J

28 JUNE 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed with 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 25 July 1999.  On 20 August 1999 he lodged an application for a protection visa.  He claimed that he was at risk of persecution in Bangladesh because of his active membership of the Bangladesh Freedom Party (“the Freedom Party”).  Documents were placed before the Refugee Review Tribunal (“the RRT”) which stated that the applicant had been the president of his local branch of the party, and vice-president of the district branch of the party.

2                     The RRT noted that Bangladesh is a parliamentary democracy in which a large number of political parties operate legally and openly, and freedom of expression is generally respected.  Political competition is vigorous and violence is common, particularly on university campuses and during demonstrations.  Country information before the RRT stated that much of the violence which surrounds politics in Bangladesh is more criminal than political in nature, revolving around gangs of armed thugs involved in retaliation attacks and personal vendettas, rather than political suppression of one group by another or suppression of opposition parties by the government.  The higher levels of the judiciary display a significant degree of independence and often rule against the government, although lower judicial officers fall under the executive, and are reluctant to challenge government decisions.

3                     The Bangladesh Freedom Party is a legal political party which was formed in August 1987 by retired military officers who had been involved in the 1975 military coup which overthrew the Awami League government led by Sheikh Mujibar Rahman, the first President of Bangladesh.  Sheikh Mujibar Rahman and his family were assassinated during the coup.  The coup leaders were ousted shortly afterwards in another coup when the Bangladesh National Party (“the BNP”) assumed power.

4                     In June 1996 the Awami League again came to power.  Twenty leaders of the Freedom Party were charged with crimes arising out of the 1975 coup, and fifteen of those accused were sentenced to death.  The Freedom Party was not barred when the Awami League came to power, but according to available reports, the Freedom Party virtually ceased to operate after the arrest of the party leaders.  The RRT said at RD 121:

“The evidence suggests that some Freedom Party members not suspected of involvement in the 1975 coup faced harassment from the authorities and members of other political parties, but not that there was a widespread campaign targeting past and present members of the party.”

5                     The applicant told the RRT that he had not had any serious problems because of his Freedom Party membership prior to the election of the Awami League government in June 1996.  However, the applicant claimed that he became very fearful after the Awami League came to power in 1996.  He claimed that the Awami League began recruiting hooligans to punish members and sympathisers of the Freedom Party.  He said that members of the Awami League threatened to kill him if he did not pay them and that he was the subject of three false charges, two relating to vandalism and one to murder.  The applicant told the RRT that the first charges were laid in January 1999 and related to the possession of arms and disturbing public order.  After learning of these charges a relative who belonged to the Awami League helped him to leave the country.  He travelled to Australia on 10 March 1999.  While he was in Australia he was charged with murder in Bangladesh, but he did not find out about this until he returned to Bangladesh on 25 March 1999.  In June 1999 more charges were filed against him and he decided to leave the country again.  He provided the RRT with a translation of a document purporting to be a first information sheet which stated that he was accused of assaulting and attempting to kill another man on 3 June 1999.

6                     There was a change of government in Bangladesh in October 2001, after the applicant had left the country.  The BNP came to power with a large majority.  The RRT noted that the BNP had good relations with the Freedom Party when it was previously in power, and the RRT’s understanding was that the BNP had no interest in pursuing or harming members of the Freedom Party because of their political opinion.

7                     The RRT dealt with the specific claims made by the applicant in the following passage:

“I found the evidence given by [the applicant] about his involvement in politics and the problems which he faced as a result vague and unconvincing.  I doubt that he was a Freedom Party activist and I do not accept that he faces false charges for attempted murder or anything else in Bangladesh because of his political opinion.  However, it is not necessary to make a firm finding on these matters as, even if I accept his claims at face value, I do not accept that he has a well-founded fear of persecution in Bangladesh because of his political opinion.”

8                     The RRT said that it was not necessary to make findings on these matters because:

·                    since the applicant had left Bangladesh, the BNP had come to power with a large majority.  The BNP has had good relations with the Freedom Party and there was nothing to suggest that the current government had any interest in harming Freedom Party members because of their political opinions; and

·                    the higher courts in Bangladesh were fair and independent and would deal appropriately with any charges which had been laid against the applicant.  He would not be wrongly convicted or imprisoned because of his political opinion.

9                     The RRT’s decision is unsatisfactory inasmuch as it does not directly address the applicant’s claims.  The expression of a “doubt” that the applicant was a Freedom Party activist does not amount to a rejection of the applicant’s claim that he was, nor does it come to grips with documents which, if taken at face value, apparently support the applicant’s contentions in this respect.  Whilst the RRT asserts that it does not accept that the applicant faces charges for attempted murder or “anything else in Bangladesh because of his political opinion”, it simultaneously asserts that it is not necessary to make “a firm finding” on these matters, and in any event, if charges are pending against the applicant they will be dealt with fairly and appropriately by the Bangladeshi courts and that he will not be wrongly convicted or imprisoned because of his political opinion.

10                  There is no examination in the RRT’s reasons of the frequency with which elections are held in Bangladesh or of the likelihood of the Awami League being returned to power or otherwise assuming power.  In the RRT’s view, the fact that the BNP gained power in October 2001 and that the BNP has had good relations with the Freedom Party in the past, made it unnecessary for the RRT to decide whether or not it accepted the applicant’s claims as to his past treatment at the hands of the Awami League.

11                  The applicant appeared before me without the benefit of legal representation, but with the assistance of an interpreter.  He sought an adjournment of two months so that he could get some financial assistance from his brother who lives in London as he wants to engage a lawyer, and “to prove through my lawyer I’m a real refugee”.  I refused that adjournment upon the grounds that the matter had been fixed for hearing on 23 May 2002, and upon the basis that the issue before me was not a merits determination of the applicant’s claim to refugee status, but the much narrower question of whether the applicant had demonstrated an entitlement to relief under s 39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”).

12                  Neither the form of application, nor the affidavit of the applicant filed in support of it, discloses any ground on which the operation of s 39B might conceivably be enlivened.  The applicant filed a written submission on 21 June 2002.  That document is some five pages in length (excluding attachments) and has been placed with the papers, hence I will not attempt to summarise its contents.  I should, however, record that the submission challenges the RRT’s finding that the return of the BNP to government in October 2001 leads to the conclusion that the applicant does not have a well-founded fear of persecution in Bangladesh because of his political opinion.

13                  Given the applicant’s lack of representation, and lack of familiarity with the legal situation in which he finds himself, I felt that it was incumbent upon me to raise with counsel for the Minister what appeared to me to be the unsatisfactory way in which the RRT dealt with the present application, and to consider whether that might provide the basis for intervention by the Court under s 39B of the Judiciary Act.  On reflection, I do not think that it does.  A fair reading of the RRT’s decision does not lead to the conclusion that it failed to exercise the jurisdiction conferred upon it by s 414 of the Migration Act 1958 (Cth) (“the Migration Act”).  This is not a case like Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 where the RRT failed to consider the substantial claims made by the applicant; see also Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802.  Rather, the RRT has assumed the truth of the applicant’s claims, but has nonetheless come to the conclusion that it is not satisfied that the applicant has a well-founded fear of persecution in Bangladesh because of his political opinion, having regard to the change in government, the attitude of the government to persons in the position of the applicant and because the higher courts in Bangladesh act fairly and independently.  This was a matter committed to the decision of the RRT, and it was entitled, if it considered it appropriate, to proceed upon the basis which it did.  Thus, I am not satisfied that it was guilty of a jurisdictional error such as would enliven the operation of s 39B of the Judiciary Act, apart altogether from the impact of the privative clause.

14                  When account is taken of the privative clause, the applicant’s position becomes all the more untenable.  The decisions of Allsop J in NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 and Gyles J in NADO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 797 are the most recent decisions given at first instance as to the validity and operation of s 474.  A Full Court of five judges has been assembled to decide appeals which involve this issue, and judgment has been reserved.  In my opinion, it is appropriate in the meantime that I should follow the decisions of Gyles J and Allsop J as they are directly in point and were reached after a review of other first instance decisions which tended in a different direction.

15                  That means that for all practical purposes, a decision to refuse to grant a protection visa will not be amenable to review under s 39B of the Judiciary Act unless the decision was not made in a bona fide attempt to exercise the powers of review under ss 414 and 415 of the Migration Act.

16                  As Gyles J observed in NADO (supra), the requirement of good faith is directed to the attempted exercise of the relevant jurisdiction, rather than to the manner of the exercise of that jurisdiction.  It is evident on the face of the decision in the present case that the RRT was attempting to exercise the jurisdiction conferred upon it by the Migration Act.  It addressed the question which was committed to its determination, and gave its reasons for its finding upon that question.  In SBAP v Refugee Review Tribunal [2002] FCA 590 Heerey J said at par [49]:

“Good faith or what I think is the same thing, the absence of bad faith, is not a term of art.  In the context of administrative decision-making bad faith is a serious matter involving personal fault on the part of the decision-maker going beyond the errors of fact or law which are inevitable in any such process.  As such, it is an allegation not to be lightly made and must be clearly alleged and proved: Ayan v Minister for Immigration & Multicultural Affairs [2002] FCA 470 at [8].  The ways in which bad faith can occur are infinite and no comprehensive definition is possible.  Nevertheless it can be said that the presence or absence of honesty will often be crucial.  So also will be a purpose to achieve some end (perhaps even one not in itself reprehensible) which is not an end for which the statutory power was conferred.  The principles which the common law has developed in relation to malice in the law of defamation, while by no means an exact analogy, may provide some helpful concepts: see for example Horrocks v Lowe  [1975] AC 135 at 149-153.”

17                  In the present case, there is no warrant for a conclusion that the RRT was doing anything other than honestly attempting to reach a decision on the matter committed to its determination.  Hence, the practical effect of the privative clause is to immunise its decision from challenge under s 39B.

18                  The application should be dismissed with costs.

Associate:

Dated:              28 June 2002