ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The Refugee Review Tribunal be joined as the second respondent to the appeal.

2.                  The appeal be dismissed.

3.                  The appellant pay the respondent’s costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Edmonds J:

Joinder of the Refugee Review Tribunal

1                     One matter which seems to have been overlooked during the interlocutory phase of these proceedings is the failure of the appellant to join the Refugee Review Tribunal (‘the Tribunal’) as a respondent to the appeal.  I therefore propose to order that the Tribunal be joined as the second respondent to this appeal.

Background

2                     The appellant is a national of Bangladesh, who arrived in Australia on 3 November 1999 and applied for a protection (class XA) visa on 6 December 1999.   His application was rejected by a delegate of the Minister on 30 December 1999, and on 24 January 2000 he applied for review of that decision by the Tribunal.

3                     The Tribunal handed down a decision, affirming the decision of the delegate, on 14 November 2002.  However, that decision was set aside by this Court on 29 April 2003, apparently by consent.

The Decision under Review

4                     The Tribunal, differently constituted, reconsidered the matter and held a further hearing.  It handed down a new decision, again affirming the decision of the delegate, on 28 October 2003.  This is the decision which is the subject of the present proceedings.

5                     Briefly, the appellant claimed that he had been an active member of the Bangladesh Nationalist Party (‘BNP’) and its student wing.  In his initial protection visa application, he claimed that this had brought him into conflict with activists of the rival Awami League (which was then in government) and he feared persecution from them.  By the time of the second Tribunal hearing, there had been elections in Bangladesh and the BNP had won government as the main party in a coalition.  When reminded of this, the appellant expressed concern about one of the BNP’s coalition partners, the Jamat-e-Islami, and about the violent political environment in Bangladesh generally.

6                     The Tribunal expressed some doubts about whether the appellant had come to Australia because of a genuine fear of persecution but did not express a firm conclusion on this issue.

7                     Having heard the appellant’s evidence, the Tribunal did not accept that he held strong views in favour of the BNP or held significant political positions.  It did not think he had experienced harm as a result of his political views in the past or acquired a political profile which would put him in any danger.  Accordingly, the Tribunal found that one incident in which the appellant had been attacked (which the Tribunal accepted had occurred) was a random incident and not an instance of systematic and discriminatory conduct.  The Tribunal did not accept the appellant’s account of other attacks on him.

8                     These findings led the Tribunal to the conclusion that the appellant was not likely to engage in any political activity on return to Bangladesh.  The Tribunal also observed that, if he did become involved in politics, he would be able to do so in ways which avoided serious harm.

9                     A further reason for regarding the appellant’s claimed fear of harm as not well-founded was that the BNP (to which he claimed to belong) was now the dominant party in the governing coalition.  Citing country information, the Tribunal concluded that the ‘pro-Jamat fundamentalist minority’ did not pose a credible threat to BNP supporters.

10                  The Tribunal also expressed the view that ‘adequate state protection’ was available to the appellant.

The Proceedings Below

11                  The Federal Magistrates Court (Driver FM) considered the three grounds of review contained in the appellant’s amended application.  In doing so, the court adopted, as relevant background, a number of the paragraphs contained in the Minister’s written submissions as well as all the paragraphs in those written submissions dealing with the grounds of review.  Ultimately, the court found that there was no jurisdictional error in the decision of the Tribunal and that as the decision was, therefore, a privative clause decision, the application had to be dismissed.

The Appeal

12                  The appellant’s amended notice of appeal raises four grounds:

Ground 1:

The Tribunal breached s 424A of the Migration Act 1958 (Cth) in finding that the appellant did not have a genuine fear of persecution at the time he came to Australia.

13                  With respect, I do not think the Tribunal made any such finding.  Relevantly, what the Tribunal said was:

‘The Tribunal notes that the applicant sought a further student visa some two weeks after arriving in Australia, to enable him to work while in Australia as a student.  The Tribunal has examined his application for this visa and considers it inconsistent with his claim to have feared persecution and to have come to Australia for that reason: if he had genuinely held such a fear, he could have applied for protection under the Convention at that time.’

14                  It seems to me that the Tribunal stopped short of finding that the appellant did not have a genuine fear of persecution at the time he came to Australia, however, even if the foregoing extract does constitute such a finding, I agree with the Federal Magistrate that it was not the reason, or part of the reason, for the decision.

15                  If the Tribunal had gone on to affirm the decision of the delegate on the ground that the appellant did not genuinely fear persecution, it would be clear that the existence and content of the student visa application was ‘information’ which the Tribunal was obliged to raise with the appellant pursuant to s 424A(1) of the Migration Act.

16                  However, the Tribunal did not do so.  As the court held, the Tribunal based its conclusion not on the absence of a genuine fear, but on an assessment that any such fear was not well-founded (because, contrary to his claims, the appellant had no substantial political profile).  So much is apparent from what the Federal Magistrate said:

‘Even if the information was material in some way to the outcome of the [Tribunal] review I accept [counsel’s] submission that the decision of the [Tribunal] is independently and wholly supported by the factual finding at the bottom of page 113 and the top of page 114 of the court book to which I would add the factual finding in the third full paragraph on page 113.’

17                  The particular passage from the reasons of the Tribunal referred to by the Federal Magistrate reads:

‘On the basis of the discussion with the applicant at hearing, the Tribunal is not persuaded that the applicant has consistently held strong views in support of the Bangladesh National Party and does not accept that he held significant political positions.  The Tribunal considers it plausible that in the mid-1990s he was general secretary of the student union at his college and later sports secretary of a branch of the party, but does not consider that these would amount to high profile positions putting the applicant in danger on return to Bangladesh.  The Tribunal finds that he has not experienced harm as a result of political opinion at a level amounting to Convention persecution as discussed on page 3 above, or that he faces a real chance of experiencing such harm in Bangladesh now or in the reasonably-foreseeable future.’

Ground 2:

Driver FM erred in finding that ‘the decision of the [Tribunal] is independently and wholly supported by the factual finding at the bottom of page 113 and the top of page 114 in the court book …’ by reason that:

(a)               The Tribunal’s finding that the appellant did not have a genuine fear of persecution damaged the appellant’s credibility.

(b)               One reason the Tribunal made the factual findings at the bottom of page 113 and the top of page 114 was because of the appellant’s poor credibility.

(c)                ‘Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points …’: NAFF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62 at [81].

Hence, the Tribunal’s findings at the bottom of page 113 and the top of page 114 were not independent.

18                  Even if these findings do involve a rejection of the appellant’s evidence, they were based on the quality of that evidence and not upon any a priori view about the appellant’s general credibility as a witness.  The Tribunal did not express any such view, although it noted that the credibility of his claim to fear persecution was called in to question by various matters, not only his application for a further student visa some two weeks after arriving in Australia to enable him to work while in Australia as a student, but also by:

·                    The sequence set out by the appellant in his protection visa application and his testimony at hearing suggesting that he came to Australia with only limited study plans.

·                    The claim he made prior to his first Tribunal hearing to have entered Australia under a false identity; this claim was found not credible by the Tribunal following that hearing and did not appear to have been further pursued by the appellant.

·                    His claim to have been prevented for health reasons from attending the hearing first scheduled for him was not supported by the doctor who issued him with a medical certificate.

19                  Further, the Tribunal’s decision had two other distinct bases which were independent of any assessment of the appellant’s credibility.  One was the conclusion that adequate state protection was available to the appellant.  The other was that as a BNP activist (if he was one) he would not be exposed to any substantial risk of harm from the Jamat-e-Islami and its supporters (whom he now claimed to fear).

20                  For these reasons, the ‘information’ concerning the student visa application was not ‘part of the reason’ for affirming the delegate’s decision and therefore did not engage the obligations in s 424A(1): SZCJH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1660at [23].  Alternatively, the existence of these independent bases for the decision means that a grant of relief would lack utility: cf. SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [232], [233].

Ground 3:

The Tribunal fell into jurisdictional error by finding that ‘adequate state protection is available to the applicant.’  There was no country information to support this finding: cf. A v MIMA (1999) 53 ALD 545 at [42].

21                  Like the Federal Magistrate, I see little, if any, support in the references to country information that preceded this finding.  But also like the Federal Magistrate, in my view, the finding was probably unnecessary and is surplusage in the light of the unequivocal finding that the appellant did not face a real chance of suffering persecution in Bangladesh then or in the reasonably foreseeable future.  It follows, in my view, that even if the finding were affected by some error of a legal kind, the error would not go to jurisdiction.

Ground 4:

The Tribunal did not reject the appellant’s claim that he may engage in political activity on return to Bangladesh.  However, the Tribunal found that if ‘he were to become active in Bangladesh politics on return to Bangladesh he would be able to do so in ways which avoided serious harm’.  The Tribunal, in making this finding, impermissibly expected some modification of political behaviour on the part of the appellant in contravention of the principle stated in S 395/2002 v MIMIA (2003) 216 CLR 473.  On this basis, the Tribunal fell into jurisdictional error.  Driver FM found that there was no jurisdictional error on this point.

22                  The Tribunal did not fall into error of the kind identified in Appellant S 395/2002.  The Tribunal in that case relied on an assessment that the appellant would act ‘discreetly’ and failed to consider whether he would do so as a result of threat of persecution.  Here, the Tribunal reached a clear view that the appellant did not have strong political commitments and had not been politically active in the past.  That view (which was the basis for the assessment that he would not be politically active in the future) excluded any possibility that he was being forced to curtail his political activities out of a fear of persecution.

23                  The Tribunal’s further comment that the appellant could become involved in politics without exposing himself to serious harm was counter-factual (given the conclusion that preceded it) and probably also unnecessary to the Tribunal’s reasoning.  In any event, it represented no more than a conclusion that exposure to violence was a necessary concomitant of political involvement in Bangladesh.  It did not involve the imposition of any ‘expectation’ on the appellant.

24                  In dealing with this particular issue below, the Federal Magistrate, correctly in my view, observed:

‘The question in my mind was whether that statement indicated that the Tribunal impermissibly expected some modification of political behaviour on the part of the applicant.  [Counsel] was able to persuade me that the statement, when read in context, in particular with the immediately following paragraph, is no more than an assessment that the applicant would not in the future behave differently than he had in the past and would not thereby be at risk.’

Conclusion

25                  The appeal must be dismissed with costs.

Associate:

Dated:              22 March 2006