FEDERAL COURT OF AUSTRALIA

NAOC v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1424

APPLICANT NAOC OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 681 OF 2002

HILL J

23 OCTOBER 2002

SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed.
2. the applicant pay the respondent Minister’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 who arrived in Australia on 12 August 1999.  Shortly thereafter he applied for a protection (class AZ) visa.  His application was refused by a delegate of the respondent Minister on 10 November 1999.  Accordingly on 24 November 1999 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) to review that decision.

2                     It was essential to the case of the applicant before the Tribunal that the Tribunal be satisfied that the applicant was a person to whom Australia owed protection obligations under the provisions of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as modified by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967 (compendiously referred to as “the Convention”).  Australia will generally speaking have protection obligations to a person who is a refugee as defined in Article 1(A)(2) of the Convention.  That article provides that a person will be a refugee who:

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

3                     The delegate to the Minister in the written Protection Visa decision record which was forwarded to the Tribunal noted that he had as evidence before him a collection of 10 documents or classes of document.   These documents are referred to hereafter as the Part B documents.  In addition to the departmental file the documents were in essence, country material dating from 1994 until 1998, together with the UNHCR Handbook on Procedures and Criteria for determining refugee status.

4                     On 3 April 2002 the Tribunal wrote to the applicant advising him that it had looked at all the material relating to his application and indicating that on that material alone it was not prepared to make a favourable decision.  The Tribunal invited the applicant to attend a hearing before it and offered him the opportunity to provide any new documents or written arguments that he would care to make.  It seems that the applicant responded to that invitation indicating he wished to appear at the hearing.

5                     However, later on 30 May 2002 the applicant advised the Tribunal that he was sick and would not be attending.  He sought an adjournment, the person with whom he spoke advised the applicant that he should present a doctor's certificate in support of the application to adjourn the hearing.  In fact, the applicant did not do so.  Nor did he attend the Tribunal hearing. 

6                     It was the case of the applicant that he had a well-founded fear of persecution of a kind referred to in the definition refugee in the Convention.  He claimed to have been a prominent Jatiya party member and student leader at Jogannath University while studying there for a Diploma of Business Studies.  In summary he claimed to have been attacked and suffered assaults and ultimately to have been charged with murder in what inferentially was a political action.  He submitted in support of his application two letters, one purporting to be from a Mr Shajahan, the Secretary-General of the Jatiya Party dated 4 November 2001 and the other said to have been from a lawyer in Bangladesh dated 27 August 2001.

7                     These documents were part of the file which was the first bundle of documents referred to as the Part B documents.  After setting out the applicant's claims the Tribunal noted that it had considered "the following independent information."  There then followed in the Tribunal giving its reasons a number of pages referring to country information, including at least excerpts from two or perhaps three of the Part B documents.

8                     Also set out in the Tribunal's reasons were extracts from documents not being part of the Part B documents.  Ultimately the Tribunal noted that there were a number of discrepancies in the material which had been forwarded by the applicant to the Tribunal which had he attended a hearing would have been the subject of discussion with the Tribunal member.  The Tribunal noted, however, that as the applicant had not attended the hearing, these various matters of discrepancy remained unanswered.  The Tribunal said in those circumstances it would not be satisfied that any of the applicant's claims were true.  In the result it was not satisfied that the applicant had a well-founded fear of persecution.

9                     The applicant was unrepresented before me although he had the assistance of an interpreter.  He had filed with the court a seven page submission which he said had been prepared by a friend.  The submission which obviously in some initial form had been prepared by a lawyer, in essence sought to rely upon the decision of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30.  The submission argued that the applicant's case was the same as Muin's case.  The essence of the claim was said to be that the applicant had been denied procedural fairness because he believed that the Part B documents had not been read by the Tribunal.  It is said that had they been read he would have been invited to comment upon them although the submission turns only upon the suggestion that the Tribunal may not have read the material.  It is inferred that the material was not or may not have been sent to the Tribunal.

10                  The submission proceeds to argue that the provisions of s 474 of the Migration Act 1958 (Cth) do not operate to preclude this Court from having jurisdiction to deal with the applicant's submissions, on the basis that denial of procedural fairness is not precluded from being considered by this court under s 39B of the Judiciary Act 1903 (Cth) by virtue of the privative clause provisions of s 474.

11                  It would seem likely that the submissions prepared on behalf of the applicant were adapted from the submissions advanced to the court in NADR of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 but whether or not that is the case the submissions made by the applicant in NADR were rejected by the full Court of this Court and, with respect, correctly. 

12                  As was pointed out by counsel for the Minister and indeed as pointed out by the full Court in NADR it is necessary for an applicant seeking to argue a denial of procedural fairness that there be a sub-stratum of facts to support the submission. 

13                  It will be recalled that in Muin there was an agreed statement of facts although some of the facts necessary might be thought to be missing in that case.  In Muin it was said by the applicant that he had been misled into believing that the Tribunal had read some of the information which had been in the Part B documents.  He said that he had relied upon the assurance in the Tribunal's letter to him sent before the hearing to the effect that it had read all the material relating to his application, that indeed it had done so. 

14                  Having regard to an agreed statement of facts the majority of members of the High Court held that Mr Muin had been misled into thinking that he did not need to put information before the Tribunal and that it would not have been necessary for him to provide that information if the Tribunal itself had reference to it.  There was an issue on which various members of the Court differed as to whether an inference should be drawn that the Tribunal Member had not read the Part B documents.

15                  Justice Gaudron inferred from the reference to only three of the documents in the Tribunal's reasons that it did not have regard to the other documents.  The Chief Justice on the other hand was of the view that he would not likely infer that the Tribunal had lied in saying that it had read all the documents. Justice Hayne with whom Justices Gummow and Kirby agreed appears to have considered the assertion that the Tribunal may not have been aware of what was in the Part B documents as sufficient to found the factual conclusion that there had been a breach of procedural fairness.  Justice Callinan inferred that the documents were not looked at because they had not been sent to the Tribunal. 

16                  What is important and it appears in the judgments in Muin itself is that in that case there was a factual sub-stratum firstly that the Tribunal had not read the documents whether or not they had been sent to it and, secondly, that the applicant had relied upon an assurance by the Tribunal that it had read the documents and, accordingly, had not put further material before the Tribunal.

17                  In the present case, and the same is true of the circumstances in NADR, the only evidence there is about whether the Tribunal had read the material stems from the fact that it referred only to two or perhaps three of the documents in question in addition to the material that was in the applicant's file. Although on the one hand there is at page 60 of the Court Book a statement by the Tribunal that indicates it had read all the material submitted by the applicant there is also in the Tribunal's reasons at page 62 a statement by the Tribunal that it had considered independent information which the Tribunal then set out.  The statement may perhaps be read as suggesting that this was the only country information the Tribunal had read.

18                  Whatever may be taken from what is said in the Tribunal's reasons, one thing is however clear.  There is neither evidence before me that any of the material said not to have been read had any bearing in support of the applicant's case and critically there is no evidence before me that suggests in any way that the applicant was misled in the way the applicant was agreed to have been misled in Muin.  The present case is in the same situation as in NADR which is summarised by Justice Keifel, with whose judgment Justices Spender and Moore agreed, at [25]:

“At a factual level the present case differ substantially from Muin.  It is not agreed that the documents were not physically provided to the Tribunal.  It is not agreed that the appellant was misled by the letter, or that he would have taken any particular steps had he been told, if it was the case, that the Tribunal had not been provided with them.  It was submitted that the Part B documents can be seen to relate to the appellant's case.  So much can be expected.  Beyond that the appellant sought to utilise the findings of fact in Muin to make out his case.  Needless to say, that is not a course which is open.  Each case must be considered on its own facts.”

19                  For the reasons which led the full court in NADR to a conclusion that the applicant had not shown that a breach of procedural fairness had occurred I am of the view in the present case that the applicant has not made out the case which he sought to advance.  It is accordingly, therefore, not strictly necessary for me to consider whether, having regard to the provisions of 474 of the Act, the Court has jurisdiction to entertain an application under s 39B of the Judiciary Act 1903  (Cth) based on the submission that there was a lack of procedural fairness.

20                  However, that question was considered also by the full Court in NADR although it must be said that in one sense the decision in NADR turned more on the merits of the case that the provisions of s 474.  However, the full Court at [29] of its reasons considered the provisions of s 474(1) and the decisions of the full court of this court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, where a majority of the Court at least was of the view that the effect of s 474(1) was to exclude from the possibility of judicial review a case where there had been a breach of the rules of procedural fairness.

21                  It follows in my view that the present case, like NADR, should be dismissed and that in accordance with the usual order the applicant should pay the Minister's costs of the application.  I so order.

Associate:

Dated:              20 October 2002