FEDERAL COURT OF AUSTRALIA

Applicant S227/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 983

APPLICANT S227/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL AND DINOO KELLEGHAN MEMBER OF THE REFUGEE REVIEW TRIBUNAL

NSD 1003 OF 2003

COWDROY J

2 AUGUST 2006

SYDNEY

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the first respondent’s costs in the amount of $2,200.

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

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

HISTORY OF PROCEEDINGS

1                     These proceedings, which seek an order nisi, have been remitted to this Court by the High Court of Australia. They relate to a decision by the Refugee Review Tribunal on 26 June 2000 to refuse the applicant’s application for a protection visa. No evidence has been adduced relating to the history of the current proceedings since the decision of the Tribunal. However, the submissions of the first respondent have provided an outline from which the following facts are drawn.

2                     Subsequent to the decision of the Tribunal, the applicant joined representative proceedings in the High Court of Australia, known as the Lie class action (see Muin v Refugee Review Tribunal and Ors (S36 of 1999) (2002) 190 ALR 601). On 27 May 2003 the applicant commenced the current proceedings in the High Court of Australia, pursuant to orders made in the Lie class action, seeking orders of mandamus and certiorari and injunctive relief.

BACKGROUND

3                     The applicant is a citizen of Bangladesh who arrived in Australia on 16 March 1996. He applied for and then withdrew an application for protection visa under the Migration Act 1958 (Cth) in 1996. On 16 February 1999 he lodged another application for a protection visa. On 15 March 1999 a delegate of the first respondent refused the application and on 8 April 1999 the applicant applied to the Tribunal for a review of that decision.

4                     The applicant claimed that he became a member of the Sharbahara Party in 1988, which party, the applicant told this Court, had an ideology which was similar to communism in that it sought the equality of all people. Before the Tribunal, the applicant said that he worked for such a party because it helped the underprivileged. He claimed that as a result of his involvement in the party, he had been beaten up by members of the Awami League in 1989. He told the Tribunal that the police had been looking for him and to avoid capture he moved around frequently. He said his life had been under ‘constant threat’ since 1992-1993, when some Sharbahara party members defected to other parties, and in 1994 he fled Bangladesh to Saudi Arabia where he lived with relatives who supported him. He claimed that his enemies had tracked him down to Saudi Arabia so he came to Australia to seek permanent protection. He says that false charges of murder have been laid against him, and he will be arrested or killed if he returns to Bangladesh.

5                     The Tribunal was not satisfied that the applicant’s claims were credible on several grounds. Firstly the Tribunal considered that the applicant’s unfamiliarity with the ideology, history and structure of the Sharbahara party was inconsistent with his claimed active involvement in the party for five years. Further, the Tribunal considered that his claims to have been in hiding were inconsistent with the description of his activities during the period preceding his departure from Bangladesh, which included regularly visiting large numbers of poor people, attending classes and working in a restaurant. The Tribunal also considered it implausible that he had been traced by his political enemies to Saudi Arabia, especially in view of the vague account given by the applicant in relation to this part of his claim.

6                     The Tribunal concluded:

‘For all of the above reasons I am not satisfied that the applicant’s claims of being persecuted as a Sharbahara are credible. I am of the opinion that he left Bangladesh simply to take up a job in Saudi Arabia rather than fleeing his home for fear of persecution, and that when that job ended he came to Australia in search of more work. His decision – whether or not on advice from his then migration adviser – to withdraw an initial application for a protection visa in 1996 and pursue other kinds of work and residential visas does not make me satisfied that he has a well-founded fear of persecution in Bangladesh. In all, I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason in Bangladesh.’

APPLICANT’s Challenges to the tribunal decision

7                     The grounds relied upon in the applicant’s order nisi are as follows:

‘a) the third respondent did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed.

b) the third respondent’s decision was affected by an “error of law” and “Jurisdictional error” and lack of procedural fairness.

c) there was no evidence or other material to justify in making of the decision.

d) the applicant was denied natural justice in being denied a reasonable opportunity to be heard on his application before the first respondent.

e) there has been a constructive failure of jurisdiction by the first respondent’s agent A Wallace as in the decision of 15 March 1999, failed to address the correct legal question committed to him by not applying himself to all of those issues he was required to consider in determining the matter before him.

f) there was a failure of the first respondent’s agent to exercise his jurisdiction in the decision of 15 March 1999 because he did not reach a state of satisfaction bases [sic] upon a correct understanding of the law on which he acts.

g) the decision of the first respondent’s agent of 15 March 1999 was made in breach of rules of natural justice.’

8                     I note that grounds d) to g) are challenges to the decision of the delegate of the first respondent, rather than the decision of the Tribunal. The Tribunal’s decision is a merits review which wholly replaces the decision of the delegate. The decision of the delegate is not a relevant basis for challenge in this Court and the grounds which seek to challenge the delegate’s decision are misconceived. Accordingly it serves no purposes to consider these grounds and the Court will not do so.

9                     In support of the application the applicant submits that the Tribunal breached the rules of natural justice because it:

‘failed to internalise the circumstantial grounds of the review application and in weighing both the subjective and objective claims of the review application and in reviewing the huge supporting facts and documents, and as such has breached s 426(2), s 426(3), s 427(4) and s 440(2)(b) of the [Migration] Act.’

10                  The applicant also submits that the Tribunal relied overwhelmingly on a report of the Department of Foreign Affairs and Trade (DFAT) which was prepared by the Australian High Commission, Dhaka. No further details of the report are provided. It is alleged that the Tribunal was prejudiced by the DFAT report and that the Tribunal was not neutral, which I take to be an allegation of bias levelled against the Tribunal member.

11                  The applicant also claims that the circumstances of his case are identical to the circumstances considered by the High Court in the decision of Muin. The High Court in those proceedings determined that the Tribunal had failed to afford procedural fairness to the applicant.

12                  The applicant’s written submissions further allege that the Tribunal breached ss 424(1) and (2), 424A(b) (which I take to mean s 424A(1)(b)), 430(1)(c) and (d), 439(5)(e), and 440(1)(c) and (2)(b).

13                  The applicant has also claimed that the Tribunal ignored relevant evidence and made findings ‘in the face of contradicting independent evidence’.

Findings

14                  The applicant has made allegations of breaches of several sections of the Migration Act. Section 424(1) relates to the power of the Tribunal to obtain further information which it considers relevant, and requires the Tribunal to have regard to that information. There is no evidence before me which suggests that the Tribunal sought additional information which it then disregarded in contravention of s 424(1), and accordingly no breach under this section is apparent. Section 424(2) does not impose any duty upon the Tribunal, but merely empowers the Tribunal to invite a person to give additional information. Accordingly, it is not possible for the Tribunal to breach this section.

15                  Section 424A(1)(b) requires the Tribunal to ensure, as far as reasonably practicable, that the applicant understands why information given to the person by the Tribunal under s 424A(1)(a) is relevant to the review. The applicant has provided no particulars of any information which he says was not explained sufficiently by the Tribunal, nor shown that any information was in fact provided under s 424A(1)(a). In the absence of such evidence, the Court cannot be satisfied that it is arguable that a breach of s 424A(1)(b) has occurred.

16                  Section 426(2) relates to the power of the applicant to request the Tribunal to call a witness. There is no evidence that the applicant sought to call a witness before the Tribunal. In any event, s 426(3) indicates that the Tribunal need not accede to the request, although it must have regard to the applicant’s wishes. In the absence of evidence that the applicant requested that the Tribunal call a witness, there is no basis on which it could be argued that s 426 has been breached.

17                  Section 427(4) prohibits the Tribunal from summoning a witness from outside Australia. There is no evidence that the Tribunal summoned a witness from outside Australia. Accordingly, there is no basis on which there could be a breach of s 427(4).

18                  Section 430(1)(c) and (d) require the Tribunal to set out its findings on the material questions of fact and to refer to the evidence upon which its findings are based. The applicant has not identified any deficiency in the Tribunal’s reasons in this respect. Since the applicant is unrepresented, I have read the reasons and consider that there has been no breach of s 430(1)(c) or (d).

19                  Section 439(5)(e) prohibits a Tribunal member or officer, or interpreter, from being required to divulge information concerning an applicant to a tribunal, parliament or other authority except where necessary to carry out its functions under the Migration Act. This is not a duty upon the Tribunal, but rather a prohibition on other bodies from requiring production of information from the Tribunal, and accordingly the Tribunal cannot be in breach of this section. In any event, there is no evidence that information was required to be produced contrary to this provision.

20                  Section 440(1)(c) relates to the power of the Tribunal to issue a written direction indicating that the contents of any document produced to the Tribunal should not be disclosed. Section 440(2)(b) provides that a written direction does not prevent a person from communicating any information he or she has knowledge of independently of Tribunal proceedings. There is no evidence relating to any written direction that documents should not be disclosed, or evidence of any disclosure of any information from a document before the Tribunal. Accordingly, there is no arguable basis on which the applicant’s claim on this ground could succeed.

21                  The applicant has also made allegations that the Tribunal was biased in making its decision. The claim for bias has not been particularised, but is made on the basis that the Tribunal relied overwhelmingly on a report by DFAT. That report has not been fully identified or produced, but no DFAT report was referred to in the decision of the Tribunal. In SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749, the Full Court made it clear that allegations of bias are serious and should be clearly alleged and proved (see at [43]). The allegations in the present case are vague and unsupported by any evidence, and in my opinion, do not disclose a genuine claim. In any event, reliance upon a report by DFAT could not itself be the basis of a bias allegation.

22                  The applicant has further alleged that the circumstances of his case are identical to those considered by the High Court in Muin. In Muin, the applicant had been misled into thinking that information which had been before the delegate was before the Tribunal when it made its decision, when in fact this was not the case. In the present case the applicant has not identified any evidence which was before the delegate but was not supplied to the Tribunal. Accordingly there could be no factual basis for finding that procedural fairness was denied on the grounds established in Muin.

23                  In respect of the allegation that the Tribunal ignored relevant information and made its findings in the face of contradictory independent evidence, no particulars have been provided and it is impossible to discern the error which is alleged to have been made. In the absence of any details or evidence in support of this ground, it does not provide an arguable basis for challenging the Tribunal’s decision.

24                  In his application for order nisi, the applicant was required to demonstrate that he had an arguable case that the Tribunal has gone beyond its jurisdiction: see Re Australian Nursing Federation; Ex parte State of Victoria and Anor (M10 of 1993) (1993) 112 ALR 177 at 183 per McHugh J. For the reasons above, I consider that the applicant has not demonstrated that he has an arguable case on any of the grounds raised in his application. Accordingly, the application must be dismissed with costs.

Associate:

Dated: 2 August 2006