FEDERAL COURT OF AUSTRALIA

NAHR v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1295

NAHR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N934 OF 2003

BENNETT J

17 NOVEMBER 2003

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal is dismissed with costs.

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

REASONS FOR JUDGMENT

Background

1                     The appellant is a citizen of Bangladesh.  He arrived in Australia on 5 October 2000.  He arrived under his own passport (issued in Dubai on 13 May 1999).  His Australian visitor’s visa was issued in Dubai on 19 September 2000. 

2                     On 15 November 2000 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’) pursuant to the Migration Act 1958 (Cth) (‘the Act’).  A delegate of the respondent refused to grant him a protection visa on 3 January 2001.  The appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of that decision on 1 February 2001.

3                     On 17 October 2002, the Tribunal invited the appellant to attend a hearing on 18 November 2002.  On 11 November 2002, the appellant responded affirmatively to that invitation.  At 9.30 am on 18 November 2002, the appellant’s adviser rang the Tribunal to inform it that the appellant was sick and would not attend the hearing.  The following day, a medical certificate (with accompanying prescription) dated 19 November 2002 was faxed to the Tribunal.  The medical certificate stated that the appellant would be unwell for 3 days – between 17 and 19 November 2002.  The hearing was rescheduled for 20 November 2002 and the appellant’s adviser was notified by telephone and fax.  The Tribunal was advised that the appellant would attend.  The appellant failed to attend on 20 November 2002 and the hearing was again rescheduled for 25 November 2002.  The appellant’s adviser was notified by fax of the new hearing date and a copy of the hearing notification letter was also sent to the appellant by express post.  The appellant did not attend the hearing.  No reason was given to the Tribunal for the failure to attend.

4                     On 27 November 2002 the Tribunal affirmed the decision not to grant the appellant a protection visa.  The Tribunal’s decision was formally handed down on 19 December 2002. The appellant applied to the Federal Magistrates Court for a review of the Tribunal’s decision on 7 January 2003.

5                     When the matter came before Raphael FM on 24 July 2003, the appellant came before the Court unprepared and sought an adjournment.  That application for adjournment was refused, as the appellant had been informed in February of the date of the hearing and had also received the benefit of the Minister’s scheme for the provision of legal advice, receiving advice from a barrister on 30 June 2003.  On 24 July 2003, Raphael FM dismissed the application with costs.  On 6 August 2003, the appellant appealed to this Court.  Pursuant to a direction of the Chief Justice, the appeal was heard by a single judge under s 25(1A) of the Federal Court of Australia Act 1976 (Cth).

6                     When the matter came before me, the appellant was unrepresented but was assisted by an interpreter. There had been a direction made on 12 September 2003 that the appellant file an outline of submissions on or before five clear working days prior to the hearing date. No written submissions were received. When asked what he wished to say in support of his appeal, the appellant replied that his lawyer was on holiday in Canberra, that the lawyer was supposed to provide him with assistance and that he did not wish to say anything.  That lawyer, he said, was consulted ‘one or two months ago’; he also said that it was the same person who had assisted with the preparation of the notice of appeal that was filed on 6 August 2003. The appellant sought an adjournment of a week.  When asked for details of the lawyer, the appellant provided a business card of a migration agent.

7                     The appellant said that he was not proposing to have a lawyer or the migration agent represent him in Court if the adjournment were granted. 

8                     When asked a factual matter, as to why he still feared persecution after the change in government in Bangladesh and why he could not seek the protection of the present government, which was of the party in which he said he was active, the appellant’s reply was to the effect that he wanted one week to reply, after talking to his ‘lawyer’. 

9                     The application for an adjournment was opposed on the basis of the procedural history and the fact that the matter had been set down for hearing on 12 September 2003.  This was said to have been sufficient time for the appellant to have obtained advice, including advice from his ‘lawyer’ who, according to the appellant, was only on holidays the week in which this hearing took place.  In the circumstances, I proceeded with the hearing and directed the appellant to file written submissions within one week.  The appellant, when asked, did not raise any objection to that course. Written submissions were filed within that time.

Appellant’s grounds of appeal

10                  The appellant has set out grounds of appeal framed as follows:

‘1.        The Federal Magistrate Court of Australia FM Raphael in his          Honors judgment delivered on the 24 July 2003 failed to find error of law, procedural fairness, Jurisdictional error, Denial of Natural Justice and relief under section 39B of the Judiciary Act 1903

PARTICULARS: (Denial of Natural Justice and Procedural fairness by the RRT)

(a)       The Refugee Review Tribunal was acted on a bad faith in relation to the applicant’s claim. There has been a constructive failure of jurisdiction by the tribunal member’s decision, failed to address the correct legal question committed to him by not applying himself to all the issues he was required to consider in determining the matter before his.

(b)       There was a failure of the Refugee Review Tribunal member to exercise his jurisdiction in the decision, because he did not reach a state of satisfaction based upon a correct understanding of law on which he acts.

PARTICULARS: (Denial of Natural Justice and Procedural fairness by the DIMIA)

(a)       There has been a constructive failure of jurisdiction by the delegate of the Minister for Immigration and Multicultural Affairs decision on the 3 January 2001, failed to address the correct legal question committed to him by not applying himself to all the issues he was required to consider in determining the matter before him.

(b)       There was a failure of the Minister for Immigration and Multicultural Affairs agent to exercise his jurisdiction in the decision of 3 January 2001 because he did not reach a state of satisfaction based upon a correct understanding of law on which he acts.

(c)        The decision of the Immigration and Multicultural Affairs agent to exercise his jurisdiction in the decision of 10 August 2000 was made in breach of the rule of natural justice.’

Nature of appellant’s claim for refugee status

11                  The appellant set out his claims for refugee status in his initial application in a six page statutory declaration.  Apart from a copy of his passport and the statutory declaration, there were no supporting documents included with the application.  Further written submissions to the Tribunal were submitted by fax on the appellant’s behalf by his adviser on 18 November 2002.  Further material consisting of newspaper articles (in English and a foreign language) and country information was submitted to the Tribunal by the appellant’s adviser.

12                  The appellant initially claimed the following:

            (a)        In 1984, the appellant became actively involved with the Bangladesh Nationalist Party (‘BNP’).  He was promoted as the Thana organising secretary in the Golapganj Branch of the BNP.

(b)               He was a promising businessman and active political activist. Because of his involvement with local BNP politics, in January 1985, some local Awami supporters banned his political activities in the Gopalganj area and forced him to move from the area.  He left the area and started living in different hidden places in Sylhet.

(c)                In 1986, the appellant returned to his Golapganj and started his business and political activities again.  He joined various local welfare organisations and district politics and gained huge popularity in his party and in the whole Sylhet district.

(d)               On 4 August 1987, the student wing of the BNP (the Golapganj Chattradal) held their annual conference in Golapganj sadar.  He attended with his supporters.  A terrorist group of the student wing of the Awami League (the Golapganj Chattra League) attacked the conference and seriously wounded his supporters.

(e)                On 6 August 1987, the appellant organised a protest procession in Golapganj sadar against the attack.  This procession was attacked by extremist Awami and Jatiya supporters and there was a riot.  The appellant’s supporters were severely injured.

(f)                 On 7 August 1987, the appellant learnt that the police had filed a baseless case against him for organising a violent procession against the state.  Subsequently, Awami League supporters started to search for the appellant causing the appellant to close his business in December 1987 and leave Golapganj.

(g)                After 6 months, in May 1988, the appellant returned to Golapganj.

(h)                On 17 July 1988, the local chattra league supporters attacked the appellant, severely injuring him. They tried to pull out his eyes and cut tendons in both legs.  He was left unconscious on the road, and was admitted to a clinic for about one month.

(i)                  In September 1988, the local Awami League leaders issued a warrant order against him, resulting in his arrest by the police.  He was severely interrogated and tortured.  With the help of local representatives and a huge bribe, his father bailed him out.

(j)                 From 1988 to 1998, the appellant lived in different places in the country to avoid police harassment and Awami supporters.  They were so furious and angry about his politics that he was frightened for his life.

(k)               Because of this situation, the appellant left Bangladesh for the United Arab Emirates (‘UAE’) on 30 October 1999.  He worked in Dubai as a salesman.  He recently finished his contract with a UAE company.  Because there is no system of seeking political asylum in the UAE, he came to Australia.

13                  At the time of the appellant’s initial claims, the Awami League was in power in Bangladesh.

14                  In the additional submissions made to the Tribunal by his adviser on his behalf, the appellant’s initial claims were to a large extent repeated.  New submissions which addressed the situation following the change in government were outlined.  In summary, the appellant claimed:

(a)        the police and his opponents from the Awami League were still searching to kill him;

(b)        even though the BNP was now in power, the appellant was in political danger because of his association with the recently ousted President Prof. B Chowdhury, whose supporters were liable to be persecuted by the BNP;

(c)                his business was based at his home in Gulapgonj, Sylhet. This may have been stated as a basis for the submission that it would not be reasonable for him to relocate; 

(d)               In any event, he was not a permanent citizen of any country.

The law

15                  In order for the appellant to succeed, he must show that section 474 of the Act does not apply to the decision made by the Tribunal.  As stated by the Full Court of the Federal Court in Applicant NAOB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs  [2003] FCAFC 33 at [11], the effect of the High Court’s decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 (‘Plaintiff S157’) can be summarised as follows:

‘In summary, the High Court held that s 474 insofar as it rendered final and conclusive a privative clause decision and protected it from challenge, only did so in respect of “decisions made under…[the] Act”.  Thus, decisions which involve a failure to exercise jurisdiction or involve an excess of the jurisdiction conferred by the Act are not, as a matter of statutory construction, decisions made under the Act and are therefore not privative clause decisions protected by s 474.  Put shortly, s474 does not apply to decisions which involve jurisdictional error, and does not apply, in particular, to decisions which do not comply with the principles of natural justice’.

The decision of the Tribunal

16                  The Tribunal was satisfied that the appellant was a Bangladeshi citizen but was not otherwise satisfied that his claims were true.  It noted that he now claims to fear persecution from Awami League activists or the BNP government.  It also noted that the claims were not supported by evidence, evidence that the appellant would have been able to give yet had not, as he had not attended the hearing.  It also noted that the claims were not inherently likely as, for instance, he claimed to have been arrested and tortured before being released on bail and he had been able to avoid re-arrest for many years before leaving Bangladesh on his own passport.  It further found that, even if the claims were accepted, the appellant had been able to avoid further harm for many years prior to leaving for the UAE.  The Tribunal was not satisfied that there was any real chance that the appellant would be persecuted if he were to return to Bangladesh or that any fear of persecution that he may have is well founded.

the decision of the Federal Magistrate

17                  The appellant failed to particularise any of his grounds of review in the hearing before the Federal Magistrate.  Raphael FM noted that there was no indication before his Honour as to why the Tribunal was said to have made a jurisdictional error in the manner in which it came to its decision.  His Honour referred to the findings and reasons of the Tribunal and found that the Tribunal reached a conclusion of fact which it was entitled to reach on the material before it and consequently dismissed the application.

the appeal

Summary of the respondent’s argument

18                  Ms McNaughton, counsel for the respondent, submitted that the appellant has failed to indicate any specific error in the judgment of Raphael FM or the reasons of the Tribunal but relies instead on general claims of error of law involving a constructive failure of jurisdiction, failure to address the correct legal question, failure to exercise jurisdiction and denial of natural justice.  The respondent submits that no particulars have been given and no evidence has been cited to support these claims.  There has been no identification of the correct legal question or of any failure, constructive or otherwise.

19                  Counsel submitted that a claim of jurisdictional error cannot be sustained on any of the bases set out by the appellant:

(i)                        The appellant has failed to particularise what he alleges is the denial of procedural fairness.  If this ground is taken to be a reference to the Tribunal proceeding to hear the matter in the absence of the appellant, this ground has not been made out.  The Tribunal rescheduled the hearing twice following the initial illness of the appellant.  In the circumstances, the Tribunal was entitled to hear the matter in the absence of the appellant pursuant to s 426A of the Act: NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 558 per Hely J at [2].

(ii)                      the appellant has failed to particularise what he alleges is the constructive failure of jurisdiction or failure to exercise jurisdiction.

(iii)                     The appellant alleges that the Tribunal failed to address the correct legal question by not applying itself to all of the issues.  Again, there was no elaboration of this allegation.  The Tribunal’s findings of fact were based upon such evident as was before it.

(iv)                    In his allegation of a denial of natural justice, the appellant makes reference to a decision of ‘the Immigration and Multicultural Affairs agent’ of ‘10 August 2000’.  Given that the appellant first arrived in Australia in October 2000, it is clear that this date is incorrect and it is not immediately apparent what is being referred to. 

The appellant’s written submissions

20                  In his written submissions, the appellant stated that the ground of appeal was ‘that the decision was induced or affected by actual bias’.  The particulars, which are somewhat difficult to follow in the context of the ground of appeal, are that bias is demonstrated by the fact that the Tribunal did not accept that the appellant was persecuted because of his political opinion and made findings of fact in that regard.

21                  This ground, apparently based upon the now repealed s 476(1)(f) of the Act is no longer available as an independent ground of appeal and was not raised as such in the notice of appeal.  This leaves the ground of jurisdictional error.  The appellant asserts, in this regard, that the Tribunal did not act in good faith.  I will consider the allegation of actual bias in this context.

22                  The appellant raises a number of matters to support the allegation.  He says that the Tribunal did not accept his claim of persecution because of political opinion nor that his claims were ‘genuine and true’ and that the Tribunal noted inconsistencies in his written evidence. He submits that the Tribunal ‘got the facts wrong, took into account irrelevant matter, did not take certain matters into consideration’.  The mistakes referred to are all factual matters.  This, alone, amounts to merits review and is not available in this Court. 

23                  The appellant claims that the Tribunal  ‘did not make an honest attempt to come to the right decision, also the decision maker intentionally made a wrong decision, in other words acted in bad faith’.  The only matter referred to is said to be a comparison between the tape recording of the Tribunal proceedings and the decision, without any detail or particularisation.  The difficulty is that there was no hearing as the appellant failed to attend.  The appellant also claims that ‘the Tribunal also rejects my claim because my written evidence was inconsistent in relation to major issues’.  This is a mischaracterization of the Tribunal’s reasons; the Tribunal rejected his claims as they were not supported by evidence which the appellant himself could give, as he declined the opportunity to attend and give evidence.  The appellant also alleges that:

‘The Tribunal did not treat this matter as a s.424A issue as I brought the statutory declaration and I submitted in connection with the current protection visa application to the Tribunal to ensure that it was before the Tribunal.’

It is not clear to me, nor have any details or elaboration been provided by the appellant, as to what this means. As the appellant concedes, he was given an opportunity to place material before the Tribunal, which he did and which was obviously taken into account in the Tribunal’s decision, as matters therein were specifically referred to. Further, the appellant chose not to attend the hearing before the Tribunal. As Tamberlin J observed in WABY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1091 at [17], which was cited with approval by the Full Court in WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 283:

‘It is well settled that in reasoning to its conclusion there is no obligation on the …[Tribunal] … to accept submissions as credible and it does not have to set out or provide to an applicant, prior to the making of its decision, its reasoning process in reaching a conclusion in order to enable an applicant to make further submissions in relation to a proposed line of reasoning. 

In any event, section 424A does not apply to the statutory declaration the appellant submitted with his application by virtue of section 424A(3)(b).

24                  I can see no reason to conclude that the Tribunal’s decision was attended by bias or that it was made in bad faith. As von Doussa J noted in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]:

‘it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision … The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision.’

25                  The appellant submits that ‘the grounds and relief is very much similar with a recent High Court Judgment’, citing Muin v Refugee Review Tribunal (2002) 190 ALR 601 (‘Muin’), together with the catchwords for that case.  No reason is given as to why Muin should apply in the circumstances of this case.

26                  There has been no evidence or detail with respect to any document not before the Tribunal nor to any suggestion that the appellant was misled.  The appellant has not made out a case of failure to afford procedural fairness.  The assertion that ‘the RRT misunderstood the law’ was not supported by any detail, other than by reference to the obligation to observe the rules of natural justice, a denial of which would mean that the decision would not be a privative clause decision: Plaintiff S157.  No error in the Tribunal’s decision or in the judgment of Raphael FM is apparent to me.

27                  The respondent submits that the appellant has failed to show any bias, bad faith or denial of natural justice on the part of the Tribunal, or any error of law on the part of the Federal Magistrate and that the claim of jurisdictional error cannot be sustained.  I agree.

28                  The appeal should be dismissed with costs.

Associate:

Dated:              17 November 2003