FEDERAL COURT OF AUSTRALIA

NADF of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1068

NADF of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs

N 1632 of 2001

ALLSOP J

26 AUGUST 2002

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for an adjournment be dismissed.

2.                  The application be dismissed.

3.                  The applicant 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

Application for Adjournment

1                     The applicant complains about a decision of the Refugee Review Tribunal (the Tribunal) made on 13 November 2001. 

2                     The date of that decision is important not only for the resolution of the substance of the matter but also for the adjournment application with which I am now dealing.  In 2001 the Commonwealth Parliament passed legislation, taking effect on 2 October 2001, radically altering the grounds for review under the Migration Act 1958 (Cth) (the Act) which applicants in matters of this kind can rely upon in challenging decisions of the Tribunal, amongst other tribunals. 

3                     Previously there had been a limited list of grounds for review under s 476 of the Act.  The denial of natural justice had been removed explicitly as a ground for review; Wednesbury unreasonableness, as it was called, and other grounds of review were either eliminated or narrowed.  Parliament was able to do this in relation to the Federal Court because the Federal Court's jurisdiction is statutory and capable of being controlled by Acts of the Commonwealth Parliament.  This led to a disconformity or difference in the jurisdiction of the High Court and the jurisdiction of this Court.  The jurisdiction of the High Court is constitutional in that s 75(v) of the Constitution enshrines the ability to challenge decisions of officers of the Commonwealth by mandamus and prohibition.

4                     The purpose of explaining this is that from October 2001, the jurisdiction of the High Court and the jurisdiction of this Court were brought into line by allowing parties to bring proceedings under s 39B of the Judiciary Act 1903 (Cth)in this Court.  However, what the Parliament did was to enact s 474 of the Act, being a provision referred to as a privative clause.  The general effect of sections of Acts of Parliament such as this is set out in the various reasons of the Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228.  While there was a difference of view in some respects in those judgments in respect of the different complaints in the matters before them, the general approach to clauses or provisions of the Act such as s 474 were basically common.

5                     Section 474 does not limit the jurisdiction of this Court, but rather widens the authority of the decision maker.  It widens it by, in effect, saying - as long as the decision-maker approaches the matter bona fide, that is honestly and in good faith, and as long as the matter is reasonably referrable to the power apparently being exercised, the decision will be authorised by Parliament.  Difficult questions can arise about statutory construction and the like as to whether a particular decision is one covered by the privative clause.

6                     Here, there is no doubt as a matter of statutory construction that the decision of the Tribunal was a purported exercise of the power of review under s 412 and following of the Act, in dealing with a decision under ss 36 and 65 of the Act for a protection visa.

7                     Thus, the only basis for review will be whether the Tribunal reached its decision in a bona fide way, dealing with the matter reasonably referrable to the power, and as a matter of statutory construction, whether there was the breach of what is sometimes called an inviolable limitation or fundamental limitation left in place by the privative clause.  I have allowed the applicant effectively to amend his claim.  I did this by admitting into evidence a letter of 26 August 2002 which, from its face, was plainly drafted for him, as he said, by a friend or colleague who must have had some training or at least some legal background or some familiarity with legal matters.

8                     The original application was discursive and disclosed no ground of review either under the previous regime or under the privative clause regime.  It dealt with factual matters and a complaint as to the substance of the result – what is sometimes called merits review, which under not only the previous regime and the current regime, but also standard administrative law is not a basis for this Court to review an administrator's decision.

9                     The letter of 26 August 2002 provides as follows: 

This purports to be an Application pursuant to s 39B of the Judiciary Act 1903 (Cth) which seeks to challenge a decision of the Refugee Review Tribunal (‘the tribunal’), handed down on 6 December 2001, to refuse the applications for a protections visa pursuant to the Migration Act 1958 (Cth) (the Act).  I am a citizen of Bangladesh.

I came to Australia on 12 January 1999 and applied for a Refugee and Humanitarian Visa which was refused on 15 March 1999 and I applied to the Tribunal to review that decision.

The grounds of the application for the Federal court as follows:

1)            The tribunal did not consider the Applicant as a refugee despite many evidentiary proofs.

2)            The procedures that were required to be observed under the Migration Act 1958 in connection with the making of the decision were not observed.

3)            The tribunal ignored the merits of the claim.  It did not take into consideration the verdict from Bangladesh country report.

4)            The tribunal did not act in good faith in regards to my claims.

5)            The tribunal misjudged fate of the applicant’s claim.

6)            The tribunal made a number of errors to decide the fate of the applicant’s claim.  The applicants were not (& still are not) represented by thesolicitor.

7)            The Tribunal’s ignoring of relevant evidence and its finding in the face of contradicting independent evidence which indicates actual bias constitute jurisdictional error being a breach of procedural fairness which is an essential condition of the exercise of the decision making power and attracts s.39B Judiciary Act 1903 as per Gaudron J in Abebe v Commonwealth (1999) 162 ALR 1 at 33 paragraph [113].  Thus, subject to the operation of discretionary factors, breach of those rules is a jurisdictional error which will ground prerogative relief.

8)            I am a genuine refugee under the UN Convention and sub-class 866 of the Migration Act 1958, but the authority has not considered my claims and I have been refused to remain in Australia permanently.  The RRT has failed to investigate my claims, specifically the grounds of persecution, in Bangladesh.  Therefore, the tribunal’s decision was affected by actual bias constituting judicial error.

9)            The very recent High Court of Australia Judgement “Muin v Refugee Review Tribunal & Lie v Refugee Review Tribunal.  The Judgement is very relevant of my RRT decision of my protection visa application.

…

10                  The letter set out at [9] above complains about nine matters.  The matters raised are phrased, at least in part, with an eye to the change of the law last year.  However, in significant part, there is also a claim about the merits of the decision, that it is in effect wrong having failed to deal adequately with material put before the Tribunal.

11                  Importantly, however, there is a claim of actual bias, as I read it, and a claim of denial of natural justice.  On the authority of the Full Court decisions referred to collectively as NAAV, supra, the denial of natural justice ground does not amount to the identification of a breach of a fundamental or inviolable provision or question of law not covered by the privative clause, that is, s 474 of the Act.  In particular this was dealt with by a primary judge in NAAV, supra, the appeal from whose decision was dismissed by the Full Court.

12                  However, the question of a denial of natural justice and the question of actual bias do amount to a substantive aspect of any complaint of the kind which is made in point 4 of the letter which is set out at [9] above.  That is that the Tribunal did not act in good faith.  If there has been a denial of natural justice and it is said that the Tribunal was biased, those matters would or could inform any assessment as to whether or not the Tribunal acted in good faith.

13                  Good faith is a serious matter.  That is, to allege that the Tribunal lacked good faith is a serious matter because it alleges in effect that the Tribunal failed to act honestly in dealing with the matter or alternatively, in a way attracting personal criticism, the Tribunal did not in effect deliberately intend to approach the claim with the seriousness that it required.

14                  The applicant's matter came on for hearing before me in March 2002.  At that time he made the substantive complaints, some of which were repeated today, that he was not able to communicate adequately with the Tribunal in such a way that he had in effect been denied a fair hearing by the Tribunal.  Those matters being raised, I indicated that it was appropriate for me to listen to the tape recordings and read the transcript of the Tribunal hearing.  No party demurred from that course.  These were later supplied to me.  I listened to the tape recording and read the transcript.  Having done so, the matter was re-listed for hearing.  On the re-listing of the matter today the applicant indicated that he wished to give me the letter of 26 August 2002, which he did, and he now wishes to obtain the assistance of a lawyer and for this he needs an adjournment.

15                  Some relevant facts about this application for an adjournment were contained in material the applicant provided from the bar table.  I allowed him to speak from the bar table but I will treat what he said as able to be acted on since the solicitor for the respondent indicated that if I did so, he did not wish to cross-examine the applicant.

16                  It is clear that the applicant has had legal advice on the terms of the Tribunal's decision.  This was provided in February 2002.  The first day of the hearing took place on 15 March 2002.  The applicant has indicated that he was not happy with the advice of the legal representative.  No one appeared for him in March.  The matter was left part heard for longer than I would have liked and that was a matter for me.  However, what it did do was give the applicant further time to approach a lawyer if he wished to do so.  He indicated to me that he has spoken to an acquaintance or friend in England who will provide or seek to provide money for the obtaining of a lawyer once it is clear how much that will cost. 

17                  If I thought, on the basis of the terms of the Tribunal’s decision, the transcript, the tape and what the applicant has said to me, that there was the possibility of a ground of review encompassed within s 39B of the Judiciary Act in the light of the existence of the privative clause, I would, subject to an order for costs, have granted the adjournment.  However, the basis of the review being what it is and the authority of the decision maker being widened as it has been by s 474, for the reasons I am about to express in slightly more detail, I do not see how it can be successfully argued that the decision of this decision maker was vitiated by some error left available and authorised to ground review by the terms of s 474 of the Act.

18                  In those circumstances, in the light of the delay but also primarily in the light of the lack of any apparent basis for review, I think that it would be futile to adjourn this matter and it would simply place both parties at a further burden for costs which ought not be expended.  These reasons for refusing the adjournment must be read with the reasons which I am about to give in relation to the application as amended. 

19                  For those reasons I dismiss the application for an adjournment and I will now deal with the substantive application.

The Substantive Application

20                  The application before me was filed on 19 December 2001 seeking “review” of the decision of the Tribunal which as I said was handed down on 13 November 2001.  The consequences, for review of the decision, of the date of the Tribunal have already been referred to. 

21                  A little further background is necessary.  The applicant is a national of Bangladesh.  He claimed to have travelled to Australia on a passport issued in a name other than his own. 

22                  On 21 March 2000 the applicant attended a hearing before the Tribunal.  Unfortunately the Tribunal member later resigned on 31 January 2001 without making a decision in respect of the applicant.  I should add that prior to 21 March 2000 a delegate of the Minister had refused the applicant's application for a protection visa.  On 13 August 2001 another Tribunal member convened a hearing in respect of the review of the delegate's decision.  It is the decision by that secondly constituted Tribunal in respect of which the applicant now complains. 

23                  I have dealt with the grounds for review available to the applicant in my reasons for refusing the adjournment application, above.  I need not repeat those here. 

24                  The applicant appeared before the first Tribunal member assisted by an interpreter.  The second hearing was conducted without an interpreter.  It is this fact which forms the foundation of a number of particular complaints which the applicant makes about the decision. 

25                  However, before dealing with that matter, I should say something as to the terms of the decision.  The applicant's claims and evidence are set out on pages 5 to 9 of the Tribunal’s reasons.  Briefly summarised, the applicant claimed fear of persecution in Bangladesh for Convention related reasons of “political opinion”.  He claimed to have been born into a wealthy and influential farming family and he claimed to have joined the student wing of the Bangladesh National Party (BNP).  He claimed to have been an enemy of the rival political group, the Awami League (AL).  The applicant claimed to have become joint secretary of the local branch of the BNP in the early 1990s and he claimed to have been injured by AL supporters in 1996 whereupon the claimed to have moved to Dahka to avoid persecution.

26                  The Tribunal found that after a recent election in October 2001 in which the BNP once again came to power, the applicant had changed the thrust of his claims.  The Tribunal found that in the course of doing this, to use words used by the Tribunal, the applicant appeared to confuse, muddle and weaken his overall position.  The Tribunal referred to the claim of the applicant that there had been a murder of a close relative of his.  The killing was alleged to have happened on 10 September 2001, allegedly in the course of the last mentioned election campaign.  The Tribunal said that it attempted to ascertain how the killing of his relative affected the applicant.  The Tribunal recorded that in reply the applicant reiterated that when a member of the family is killed the rest of the family feels the matter irrespective of politics.  The Tribunal recounted that the applicant provided no evidence at any time of ever having suffered anything worse than the alleged assault in 1996. 

27                  The Tribunal also dealt with how the applicant had left Bangladesh, in particular the assertion by the applicant that he was someone other than the person named in the passport upon which he travelled.  In its findings the Tribunal said that it was not satisfied that the applicant was someone other than the person named in the passport.  The Tribunal said that the so-called identity documents appearing in the applicant's file were all highly suspicious and that this suspicion was confirmed by independent evidence about documentation from Bangladesh.  It concluded that the applicant's claims as belonging to a family to which he claimed to belong were fabrications.  However, although having found that, the Tribunal then proceeded to deal with the matter on the basis that the applicant was in fact a member or supporter of the BNP and that the Tribunal would make findings on the applicant's claims at face value presuming that he was who he said he was.  On that basis the Tribunal could find nothing in his story as to what had happened to him up to January 1999 when he came to Australia to support his position that he was in any way in need of protection. 

28                  As I said earlier in dealing with the amendment application, the original application was both discursive and lacking any focus upon what might be said to be a ground of review under s 39B of the Judiciary Act bearing in mind the terms of s 474 of the Act.

29                  As I said earlier, when this matter came on for hearing the applicant made a number of allegations concerning the conduct of the hearing before the Tribunal.  The following is the gist of the complaints which the applicant made on the last occasion and today about the Tribunal hearing.  The applicant complained that he did not have an interpreter at the second hearing.  He said that he was satisfied with his first hearing and said that he did not think he needed one.  The applicant complained about the conduct of the interview, that is the second interview, and hearing by the secondly constituted Tribunal.  He complained about the non-acceptance of documentation which he placed before the Tribunal.  The applicant said these documents were genuine.  He complained of a general inability to communicate to the second Tribunal without an interpreter.  The applicant also complained today that in effect the Tribunal really did not deal with his earlier material and concentrated upon the present day current events as at October/November 2001.  The applicant also complained today that what had been raised in the first hearing was not raised in the second hearing and he said that he could not answer the second Tribunal member properly because of his rapidity of speech.  He also indicated today that he may well have not understood significant parts of questions which might have led to apparently clear answers, which in fact were answers to questions which he had misunderstood.  As I said earlier, in the light of the kinds of complaints which were made in March 2002 which I have outlined above, I thought it appropriate to adjourn the hearing to listen to the tape and check the transcript. 

30                  Before coming to the matter of the second hearing, I should say that apart from the conduct of the second hearing until today, no matter was raised by the applicant which could found any proposition that the Tribunal had failed to deal with the applicant's claims bona fide.  That was before the letter of 26 August 2002, set out at [9] above, which among other things appears to allege bias and a denial of natural justice of the kind dealt with by the High Court in Muin v Refugee Review Tribunal [2002] HCA 30 recently.

31                  I have read the transcript and listened to the tape recording of the hearing.  I have marked them both as exhibits.  The question of language arose at a number of points at the hearing.  First, at the beginning of the hearing the Tribunal Member noted that they were proceeding without an interpreter.  He said to the applicant:

If there is anything I say or the way I say it or my information, or cadences or anything like that which causes you not to understand  something, please don't be shy to mention that or clarify that.  Okay?

32                  To this the applicant answered “sure”.

33                  During the hearing the applicant explained that in the time that he had been in Australia since January 1999, he had taught himself the English that he had. 

34                  On a number of occasions the Tribunal stopped and asked the applicant to repeat himself more slowly, or in more measured terms. 

35                  It is fair to say that there appeared to be a certain degree of difficulty in comprehension.  However when this apparently occurred, the Tribunal sought clarification or repetition.

36                  The precise detail of the retaining or non-retaining of an interpreter for this second hearing is not before me.  The applicant said today that one in effect was not arranged. There does not seem to be any clear basis to criticise the behaviour of the respondent or the Tribunal for not having an interpreter present.  Indeed the Tribunal member could have clearly taken it that the applicant himself had not wanted to have the hearing proceed with an interpreter.  I say this because the following exchange occurred towards the end of the hearing.  The applicant said to the Tribunal member: 

My question is sir, my English probably what I am speaking now, this  one I learned totally in Australia because I am living here two years and a half.  On that regard I learn English on my way.  That why last Tribunal time I have interpreter.  But I had agreed I would like to tell my own way today.  And I don't know you understood me or not...

37                  To this, the Tribunal member indicated that he had understood the applicant and that he (the Tribunal member) had a lot of experience in dealing with people attempting to communicate using English as a second language.  At no time did the applicant at the hearing say to the Tribunal member that he was having such difficulty understanding the member that he felt it necessary to have an interpreter present.

38                  As I said earlier, the Tribunal at the beginning of the hearing had indicated that if there was any difficulty in understanding him to say so.  The applicant, who has appeared before me in March 2002 and today, is, if I may say so with respect to him, a person well able to enunciate a complaint about the proceedings before him even if he was having difficulty understanding anything.  That comment is not said in any way critically of him, rather he has a degree of confidence and presence which would indicate that if he were not understanding the Tribunal member he would in all likelihood have expressed himself thus.

39                  However, the degree to which he was in fact having difficulty before the Tribunal is not ultimately the issue relevant before me.  In the light of s 474 of the Act I must ask myself the following questions:  Did this Tribunal member approach this hearing bona fide?  The point of that test is that if he did not, there really has not been a hearing.  If it were apparent to me on the tape and transcript that this Tribunal member must have appreciated that the language difficulties were such as to make the hearing necessarily flawed or unfair, then I would have no hesitation whatsoever in branding the hearing as one lacking bona fides.

40                  However, from reading the transcript and listening to the tape of the hearing I conclude that, whilst there was some difficulty in linguistic exchange, the Tribunal provided, and was entitled to think that it had provided, a full opportunity for the applicant to give his evidence in answer to the questions asked, and that there was no unfairness nor any apparent unfairness to the applicant in the way in which the hearing was conducted.  It cannot be said, in my view, that there was no hearing or that the Tribunal did not act bona fide in conducting the hearing. 

41                 Listening to the tape and reading the transcript I am firmly of the view that there can be no basis whatsoever for any conclusion that the Tribunal failed to approach the matter bona fide.

42                  It may in fact be the case that there was a degree of lack of comprehension by the applicant, however, the matter proceeded without an interpreter in a manner which this Tribunal member could reasonably believe was at the request of the applicant and in a manner in which it was legitimate for the Tribunal to think that, though linguistic difficulties were present, the applicant had understood the questions which he had been asked and had answered them as best he could.  There is certainly no evidence before me that contrary to his requests or demands an interpreter was not provided for him.  Indeed the evidence and submissions would tend to indicate to the contrary. The other matters raised by the applicant are fundamentally factual in nature.  He submitted documents and they were not accepted.  He gave evidence which was not accepted.  These are factual matters within the province of the Tribunal and not for this Court on judicial review to interfere with.  Judicial review is not a re-hearing of the facts, it is fundamentally a review to ascertain whether or not a tribunal properly assumed and completed its jurisdictional tasks fairly and using appropriate procedure.

43                  It was also said that it was not clear what documents the Tribunal took into account and that the Tribunal should have made inquiries and verified documents before completing its deliberations.  To the extent that the first of those matters is a complaint about the adequacy of the reasons of the Tribunal, I reject it.  The Tribunal is not obliged to list every documentary or other piece of evidence and deal with it.  Its reasons are adequate as a set of reasons.  As to the second of those matters, there is no matter raised which could conceivably lead to a successful ground of review that the Tribunal refused to exercise a power of investigation.

44                  The difficulty with the applicant's application before me is that the factual material which he put forward was rejected by the Tribunal.  My decision to dismiss his application is not a result of my having investigated the facts and concluded that the Tribunal was correct in not accepting his evidence; that is not my function.  This Court is not a factual appeal.  As I said earlier the primary complaint is as to the quality of the second hearing.  With the benefit of hindsight it may have been wiser to have an interpreter present at the second hearing, however, for the reasons I have indicated I am of the view that the hearing which took place was not vitiated by the lack of an interpreter nor could it be said that the Tribunal member should have so appreciated the true position that he should have understood that there really was not a hearing proceeding in front of him.  In these circumstances I do not think it can be said that the Tribunal made its decision lacking bona fides or that the decision was not a decision under the Act to which s 474 applies. 

45                  In these circumstances I have no alternative but to dismiss the application and order that the applicant pay the respondent's costs.  The orders of the court are:

1.  The application be dismissed.

2.  The applicant pay the respondent's costs.

Associate:

Dated:              5 September 2002