FEDERAL COURT OF AUSTRALIA

NAGO v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1302

MIGRATION – judicial review – jurisdictional error – where important element of appellant’s claim was not addressed by tribunal – where this failure constitutes denial of natural justice.

Migration Act 1958 (Cth)

Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 followed

NAGO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 903 OF 2003

BEAUMONT ACJ

14 NOVEMBER 2003

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The order of the Federal Magistrates Court be set aside;  in lieu thereof, order that the decision of the Refugee Review Tribunal be set aside;  and that the matter be remitted to the Tribunal for further consideration in accordance with law.

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

REASONS FOR JUDGMENT

Beaumont ACJ:

Introduction

1                     This is an appeal, by a citizen of Bangladesh who arrived in Australia on 19 November 1999, from a judgment of the Federal Magistrates Court (Driver FM) which dismissed an application by the present appellant for judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) affirming the Minister’s decision not to grant the appellant, and his wife (as a family member), protection visas.

2                     In order to understand the RRT’s reasons, it will be necessary to refer to the several claims made by the appellant, as follows:

The appellant’s claims to the Department

3                     In his written application to the Department dated 19 December 1999, forwarded under cover of his migration agent’s letter dated 21 December 1999, the appellant made these claims:

·                    He was born on 2 June 1968.

·                    His father, who worked in the government’s income tax division, had ‘participated’ in the war of liberation in 1971.

·                    After completing his Secondary School Certificate in 1984, the appellant was admitted into the Government Intermediate College.  He completed degrees in Commerce (Bachelor 1988;  Masters 1993) at Dhaka University.  He joined an international airline in 1994 as a sales executive.

·                    In 1989, along with some friends, the appellant joined the Freedom Party.  A ‘political movement was passing on against’ President Ershad.  He ‘participated in the movement and entered in the political activities’.  On 6 December 1990, President Ershad resigned.

·                    In 1991, he ‘was elected as the vice president of the Tejgaon Thana the Freedom Party’.  In February 1991, a national election was held and the Bangladesh Nationalist Party (‘BNP’) won the majority of seats and formed a government in coalition with Jamat-e-Islami.

·                    From about 1993 opposition to the government lead to a period of ‘chaos’.  Eventually the government resigned and power was transferred to a ‘caretaker’ government.

·                    In 1995, the appellant was ‘elected as the executive member of the Dhaka City Unit of the Freedom Party’.  In June 1996, the Awami League won a national election, forming a government with the Jatiyo Party.  Four ‘central leaders’ of the Freedom Party were arrested in connection with the ‘Mujib murder in [the] 1975 coup.  Due to this murder case a number of leaders flew away from the country to save their lives.’

·                    This murder case started against all the central leaders of the Freedom Party and the Awami League aimed to destroy it.  As such ‘they took destructive attempts against all the workers and leaders’.  The appellant was a leading activist of the party and organized various gatherings and demonstrations against the government’s frequent harassment.  As a result he claims he was victimized by ‘Awami men’.  They started to harass him by ‘all means’.

·                    The appellant’s politicalopponents filed a number of ‘false cases’ against him.  On 15 August 1999 they ransacked his house.  They were ‘haunting [sic] [him] but when they could not find [him] they beat one of [his] brothers who was an innocent person’.  He managed to escape and ‘started hiding for [his] life’.  Due to a number of ‘false cases’ police started searching for him at his residence with a view to arresting him.

·                    The appellant claims he was attacked by ‘Awami men’ several times.  His situation was ‘out of control’.  The authorities in Bangladesh did not protect him and it was very risky for him to stay.  He decided to leave the country ‘to secure his life’.

·                    The appellant obtained a visa to come to Australia.  He ‘managed Airport Authority to leave the country’.  He claims that if he returns home he will be persecuted.  He was compelled to leave the country ‘due to [his] involvement in the Freedom Party.’

The appellant’s submission to the RRT by one of his migration agents

4                     By letter to the RRT dated 27 May 2002, one of the appellant’s migration agents made submissions to the following, inter alia, effect:

·                    The Freedom Party is a legal political party but it was subject to oppression by the then ruling party, the Awami League, because a few members of the party were blamed for the August 1975 coup against Sheikh Mujib, ‘who held the highest rank of the party.  The whole nation was benefited by this coup and ended the rule of Sheik Mujib’.  As such the members and core activists of the party were targeted by the ‘Awami men’.  The Freedom Party was also a threat to the Awami League, ‘as its policy and ideology are against the Awami League’.

·                    Evidence exists of ‘extreme tortures’ against the opponent leaders and activists, as recorded by the US Department of State Country Report on Bangladesh for 1998.

·                    The independent international reports about Bangladesh disclose that violence and often killings and persecution are the regular features of the political process of Bangladesh.

·                    Although the judiciary at higher level displays a reasonable degree of independence, the lower levels of judiciary are conversely very corrupt, mismanaged, politically influenced and highly ineffective.  The police who are not neutral carry out the investigation of criminal cases.  The people consider the police as their ‘worst enemies’.  So the ‘ordinary and politically victimized persons do not get any justice from the lower levels of the judiciary and from the police’.  Many ‘false cases’ are lodged against them under the directive of the different sister organizations of the ruling party.  The appellant’s cases were directed by some Awami members to undermine his political image.

·                    After the changeover of the political power from the Awami League to the BNP, along with Orthodox fundamentalist parties, through a parliamentary election on 1 October 2001, the ‘fear against the appellant ha[s] not shifted at all’.  The two-thirds majority of the BNP-led alliance has given them ‘absolute power’.  As a result the present government ‘does not bear the co-operative attitude towards the Freedom Party’.  Many ‘rein terrors’ from the Awami League has joined the BNP all over the country and ‘it bears also threat to the members and activists of the Freedom Party’.

Submission to the RRT by another migration agent

q                   On the same day (27 May 2002) another migration agent, also retained by the appellant, made submissions to the RRT to similar effect, but including the following claim:

‘Being a member of Freedom Party, our client still believes that his leaders restored democracy in Bangladesh through a military coup in August 1975.  In this coup, the then Prime Minister, Sheikh Mujibar Rahman, was killed as members of his household fired on solders [sic] who had come to arrest him.  The soldiers returned the fire and Sheikh Mujibar Rahman died.  [Theappellant] joined the party many years after this coup.  In the above situation, it is certain that, Sheikh Hasina, daughter of Mujib, would seek vengeance for the death of her father and would stop at nothing to destroy all leaders of the Freedom Party. [The appellant’s] family had been constantly harassed and subjected to terrifying night raids by police who come and search the house on the flimsiest of pretexts while Hasina was in power.’

The RRT’s reasons

5                     In its reasons, the RRT said:

‘The Applicants claim that they fear that they will be persecuted should they return to Bangladesh.  Such persecution would occur because of the Applicant husband’s political activities.  He had been a local official for the Freedom Party.

The Applicant husband states that he fears that he will be arrested should he return to Bangladesh as there are false charges outstanding against him.

The Applicant husband was asked [how] he was able to leave on his own passport if he had charges.  He responded that he had paid police officers at the airport.

He states that even though the charges are false he may not be acquitted as the party in power can manipulate the police and the court to determine these cases.  The United States State Department states that the police are corrupt and cannot be trusted.

The Applicant husband was asked why the current government would want to harm him.  He responded that they would harm him because when he was active politically he campaigned against both the Awami League and the BNP.

It was put to the Applicant husband that there did not seem to be any evidence of attempts to harm Freedom Party activists, apart from those arrested years ago.

The Applicant states that he has been told that many Freedom Party members have been killed or disappeared from all over the country.  It was put to the Applicant that the Tribunal could find no evidence to support this.  The Applicant husband repeated that he had been told this.

The Applicant husband states that those people who were against him are still coming around to his house searching for him.  They do this because they have a great desire to harm him.

It was put to the Applicant husband that he was able to leave on his own passport casting doubt on his facing charges, there was no evidence of present persecution of Freedom party members, the Awami League which had sought to harm Freedom Party activists was no longer in power, and there was no record of previous BNP governments persecuting Freedom Party activists.’  (Emphasis added.)

6                     The RRT went on to say:

‘The Freedom Party is a conservative, Islamic group.  It has never been a mainstream party nor has it had a strong popular base.  Party activities occurred primarily in Dhaka. ...

Freedom Party members did not face particular problems prior to June 1996 when the Awami League led Sheikh Hasina, the daughter of Sheikh Mujibar Rahman, came to power. ...  In the latter half of 1996 20 leaders of the Freedom Party were charged with involvement in the 1975 killing of Sheikh Mujibar Rahman and his family.  Six were detained in Bangladesh, the remaining 14 were tried in absentia.  Fifteen of those accused were convicted and sentenced to death in 1998.  Three persons were acquitted.  These decisions were upheld by the High Court in April 2001. ...

The Freedom Party fielded a number of candidates in the June 1996 election, but did not win any seats.  The Freedom Party was not banned when the Awami League came to power, but reports indicate that it virtually ceased to operate after the arrest of the party leaders.  Many former activists joined the BNP.  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. ...

The BNP won a huge majority in the general election held in October 2001 (the BNP won 198 and together with its allies won between 216-220 seats;  the Awami League won only 62.  ... ’

7                     The RRT noted:

‘An Immigration & Refugee Board of Canada report in February 2002, reporting on the prosecution of former military officers who were indicted, tried, convicted and sentenced to death for their involvement in the 1975 assassination of a former Awami League Prime Minister referred to a Bangalore Deccan Hearld [sic] article dated 25 October 2001 which stated:

“...  it was taken for granted that those convicted of involvement in the assassination of the former prime minister would be released if the BNP came to power.”

The Report also referred to a media article in The Hindu dated 26 December 2001 which commented that “old organisations patronised by the coup plotters of 1975 have begun to re-emerge, and have demanded ‘the release of all convicted officials from jail’” ... .’

8                     The RRT then expressed the following conclusions:

‘The Applicant husband is a former Freedom Party activist.  The Applicants genuinely fear that for that reason they will be persecuted if they return to Bangladesh.

The Applicant claims that he will be arrested on return to Bangladesh as false charges have been laid against him.  He claims that the party in power is able to manipulate the courts and police and so can use these false charges to persecute him.

I note that there is evidence that the lower courts in Bangladesh can be manipulated in this way.  There is also evidence of long pre-trial detention, and police torture and mistreatment of detainees.

I also note [the] Applicant husband was able to leave on his own passport, which casts doubt on his claim to be facing charges.  There was no evidence of present persecution of Freedom [P]arty members by the government or others.  The Awami League which had sought to harm Freedom Party activists was no longer in power, and there was no record of previous BNP governments persecuting Freedom Party activists.

I am not satisfied that there is a real chance that the present government of Bangladesh will use any false charges to persecute the Applicants.

I am not satisfied that there is any real chance that the Applicants will be persecuted should they return to Bangladesh.  I am not satisfied that their fear of persecution is well founded.’

The appellant’s claim for judicial review

9                     In his application, dated 19 December 2002, the appellant claimed that the decision of the RRT was invalid because the RRT did not follow procedures required by the Migration Act 1958 (Cth) (‘the Act’);  secondly, that the RRT decision was affected by an error of law and jurisdictional error;  thirdly, that there was no evidence or other material to justify the making of the decision;  fourthly, that the RRT member made the decision in bad faith;  and finally, that there was a constructive failure of the exercise of jurisdiction by the presiding member.

10                  In support of this application, the appellant swore before one of his migration agents an affidavit on 19 December 2002 which included the following:

‘4.        I joined Bangladesh Freedom Party in 1989.  Our former Prime Minister, Sheikh Hasina, is Sheikh Mujib’s eldest daughter who came in power after two decades in 1996.  She and her party had waited to take revenge against her father’s killers since 1975.  After forming government, she engaged her all power and left no stone untouched during her regime to destroy our party from the soil of Bangladesh.  During last few years, staging a circuit’s drama in the name of judicial inquiry, she put all of our central leaders into jail illegally and influenced lower and high court judges to take political decision in the court.  I became cautious about my political activities when Awami League formed the Government in 1996.  However, the local Awami League terrorists did not forget me.  They started harassing me in different ways.

5.                  I faced Awami Terrorists namely, Hanna, Liakath, Kala Chunnu, Monjur, Ara, Moti, Selim, Hiru in Dhaka, Nash and Shah Alam in Chittagonj, Jafar Sarker, Adil, Nobab in Dinajpur, Dulal, Shameem and Anis in Savar, Japtu, Babu, Mrinal, Birendra in Rangpur, Osman, Asraf, Kala Jahanjir in Rajahahi, Hasan and Niru in Bariasl.  They all are terrorists and belonged to Bangladesh Awami League.  I realized that I was the main target and thus I started living in hidden places.  These terrorists were waiting for me to seek vengeance for the death of their so-called father of nation and that they would stop at nothing to destroy my party and its leaders.  Last few years, they attacked several of our party leaders and supporters like me openly in various places of the country with bomb and other sharp weapons.  They also destroyed and burnt some of our supporter’s residences and blocked their business through the country.

6.                  Throughout the year[s] 2000-2002, these terrorists continued their threats again[st] me that they would kill me if I would continue my involvement with the Freedom Party.  They also threatened that they would involve me with various false cases.  In these circumstances, I was bound to leave my house and take shelter in another hidden place.

7.         I strongly believe that for me it is never possible to return to Bangladesh.  Even to imagine returning to Bangladesh would be suicidal for me.’

Driver FM’S reasons

11                  In his reasons, Driver FM said:

‘10.      ...  The main issue for consideration in my mind is whether the RRT considered properly or at all that part of the applicant’s claims that related to his fear of persecution at the hands of individual Awami League activists.  That fear is dealt with in some detail in paragraphs 5 and 6 of the applicant’s affidavit.  Mr Jordan [for the Minister] objected to that affidavit on the basis that it could not be evidence in these proceedings.  If the factual allegations are new, they are not relevant.  If the factual allegations are the same as those that were made to the RRT, then the court book provides better evidence. 

11.       I regard the affidavit as relevant to these proceedings only as an aid in identifying the protection visa claims made by the applicant to the RRT.  I am satisfied that the claims made by the applicant in paragraphs 5 and 6 of his affidavit formed part of his claims to a protection visa, albeit in summary form.  The relevant claim appears at paragraph 11 of the applicant’s statement (court book, page 38). 

12.       At the RRT hearing, the applicant chose to concentrate on his fear of arrest on false charges laid by the Bangladesh government.  Nevertheless, it is clear that the applicant had not abandoned his claim of a fear of persecution at the hands of Awami activists acting as individuals.  ... .’

12                  Driver FM then expressed his conclusions as follows:

‘14.      ... The question of whether the RRT overlooked a relevant consideration is, in my view, a borderline one.  The claim has not been dealt with explicitly.  However, on a careful reading, I have concluded that the presiding member has dealt with the claim.  First, the presiding member accepted that both applicants had a genuine fear of persecution.  I take this to mean that the presiding member accepted that the principal applicant had faced problems with Awami League activists in the past.  

15.       Secondly, the presiding member placed great importance on the change in the political environment in Bangladesh following the election of the BNP government.  The presiding member noted that the Awami League which had sought to harm Freedom Party activists was no longer in power. I take this to mean that the presiding member concluded that Awami League activists no longer had a power base from which they could pursue persecution of Freedom Party activists. 

16.       The presiding member concluded that he was not satisfied that there is any real chance that the applicants will be persecuted should they return to Bangladesh.  I take this to be a conclusion that whatever problems the principal applicant may have experienced previously because of his political activities would not recur.  In the circumstances, it was not necessary to consider explicitly the availability of effective state protection.’

CONCLUSIONS on the present appeal

13                  The appellant represented himself on the appeal, relying on both his written and oral submissions.  I have considered these.  They seek, in essence, to repeat his submissions to Driver FM.

14                  With respect to what Driver FM describes (at [10]) as ‘[t]he main issue’, I agree, for the reasons given by Driver FM (at [14] – [16]) that this raises a factual controversy but, of itself, no jurisdictional error on the part of the RRT so far as the issues described in [14] – [16] went, specifically the reliance by the RRT on ‘country information’.  No basis for judicial review exists in this respect.

15                  However, it will be recalled that the RRT also relied on the circumstance that, because the appellant left on his passport, this cast doubt on his claim that several false cases remained outstanding. 

16                  To this, the appellant claimed that he had bribed officials to allow him to leave.  However, the RRT did not examine this claim, and, in my opinion, it should have done so.  Failure to do so meant that an important element of the appellant’s claim was not addressed and he was accordingly denied natural justice (see Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 (at [27]).  There being this jurisdictional error, the appeal should be allowed.

Orders

17                  I make these orders:

1.         Appeal allowed.

2.         Set aside the order of the Federal Magistrates Court;  in lieu thereof, order that the decision of the Refugee Review Tribunal be set aside;  and that the matter be remitted to the Tribunal for further consideration in accordance with law.

Associate:

Dated:              14 November 2003