Applicant 370 of 2002 v Minister for Immigration - [2004] FMCA 581

FEDERAL MAGISTRATES COURT OF AUSTRALIA

APPLICANT 370 of 2002 v MINISTER FOR IMMIGRATION & ORS

[2004] FMCA 581

MIGRATION – Application to review decision of Refugee Review Tribunal – remittal of application for order nisi in High Court by Federal Court – determination of entitlement to writs on merits – documentary fraud in Bangladesh – whether failure to comply with s.424A Migration Act 1958 – whether lack of procedural fairness – no jurisdictional error.

Applicant S422 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 89
Applicants S61 of 2002 in the Refugee Review Tribunal [2004] FCAFC 150
Muin v Refugee Review Tribunal (2002) 190 ALR 601
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 293
NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262
VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32
SZASY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 440
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC241

Applicant:

APPLICANT 370 of 2002

Respondents:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and PRINCIPAL MEMBER OF REFUGEE REVIEW TRIBUNAL and DR RON WITTON, MEMBER OF REFUGEE REVIEW TRIBUNAL

File No:

SZ2938 of 2003

Delivered on:

7 September 2004

Delivered at:

Sydney

Hearing date:

7 September 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Australian Government Solicitors

ORDERS

That the application for injunctions and for writs of mandamus and certiorari is dismissed.
That the Applicant pay the Respondent’s costs set in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ2938 of 2003

APPLICANT 370 of 2002

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and PRINCIPAL MEMBER OF REFUGEE REVIEW TRIBUNAL and DR RON WITTON, MEMBER OF REFUGEE REVIEW TRIBUNAL

Respondents

REASONS FOR JUDGMENT

(Revised from transcript)

This matter was commenced in the High Court on 18 October 2002 and remitted to the Federal Court by Gaudron J on 6 February 2003 and thence to this court on 24 October 2003. The applicant sought orders nisi in respect of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 2 October 2001 affirming a decision of a delegate of the first respondent to refuse to grant the applicant a protection visa.
A procedural issue is raised by the manner in which the matter was commenced. The applicant sought an order nisi for constitutional writs in the High Court. The respondent contended that the application should be treated not simply as an application for orders nisi only but should be dealt with as an application for final orders. It was submitted that pursuant to Order 51A Rule 5 of the Federal Court Rules, the application should be treated as one for constitutional writs on a final basis (see Applicant S422 of 2002 v MIMIA [2004] FCAFC 89). It was not suggested that the time limits under the High Court Rules (Order 55 Rules 17 and 30) were applicable (see Applicant S422 at [29]).
The Federal Magistrates Court Rules are silent in relation to remittal of applications for an order nisi. Hence pursuant to Rule 1.05(2) it is appropriate to apply Federal Court Rule Order 51A Rule 5. In Applicants S61 of 2002 in the Refugee Review Tribunal [2004] FCAFC 150, Branson J suggested at [24]:
“even where an application for an order nisi has been made but not determined, the ‘matter’ pending in the High Court, within s44 of the Judiciary Act, is in my view, not simply the application for an order nisi. The relevant ‘justiciable controversy’ is, or at the least includes, the prosecutor’s entitlement to the writ for which he or she has applied.”
Both the applicant and the first respondent are before the Court. The second and third respondents filed a notice of appearance in the Federal Court submitting to any order of the Court save as to costs. Order 51A Rule 5 of the Federal Court Rules effectively authorises the Court to hear and determine the application for the writs sought by the applicant (Applicants S61 at [26] – [29]) and, as Branson J stated in Applicants S61 at [29] ‘the power to grant the relief sought necessarily includes the power to dismiss the claim for relief’. Accordingly I consider it appropriate to proceed to consider the matter as a question of the applicant’s entitlement to the writs for which he has applied and deal with the merits of the application by entertaining, on an inter partes basis, the applicant’s application for the writs sought by him.
For the reasons which I give below I am satisfied that the application for the writs of certiorari and mandamus and for injunctions should be dismissed.
The background to this matter is that the applicant, who is a citizen of Bangladesh, came to Australia on 22 March 1998. He applied for a protection visa on 5 May 1998. The application was refused. He sought review by the Tribunal and the Tribunal held a hearing on 28 August 2001.
The applicant claimed to fear persecution by reason of his political opinion in Bangladesh. He claimed, in short to have been a leading member of the Bangladesh National Party (the BNP) and as a result to have been attacked and made the subject of false charges of murder by members of the rival Awami League. Such charges were said to have occurred in 1996. The applicant submitted supporting documentary evidence to the Tribunal. The applicant claimed to have been in hiding after these events until leaving Bangladesh for Saudi Arabia in 1997.
The Tribunal accepted that the applicant was a local active BNP supporter and even played a local active role in the party. However, it rejected his claim to fear arrest on false charges of having been involved in the killing of an Awami League activist in June 1996 for a number of reasons. First it had regard to independent evidence which it accepted, that documents were very commonly fraudulently obtained in Bangladesh and that warrants, such as those the applicant presented, were not generally available to the public.
Moreover, even if the police and court documents were true, the Tribunal found no evidence beyond the applicant's assertions and letters of support that the charges were politically motivated as they related to a criminal attack on individuals, theft of goods, and the death of someone involved in a criminal act. The Tribunal was not satisfied that if the charges were real the applicant could have evaded capture by the authorities for the considerable time he remained in Bangladesh before departing for Saudi Arabia, having regard to the nature of the offence.
The Tribunal rejected the applicant’s claim that he was being sought by the police as contended. It found the applicant's explanations in relation to this claim and what he claimed had occurred to another defendant to be unconvincing and found the applicant's replies to questioning evasive. In light of its reasons for not accepting that the charges were laid and were politically motivated as claimed the Tribunal found that the letters supporting the applicant's claim were fraudulently fabricated or procured. However it went on to say that even if the charges had been made, there was evidence from independent information (discussed in the course of the hearing) that the higher levels of the judiciary display a significant degree of independence. It found that if the charges were genuine the applicant could properly defend himself from the charges in the court. It was not however satisfied that the applicant was facing charges that had been falsely laid as a means of politically harassing him.
The Tribunal was not satisfied that the applicant was of interest to the Awami League or the Bangladeshi authorities at the time that he left Bangladesh. It found that having regard to the length of time the applicant had been absent from Bangladesh and independent country information concerning Bangladesh politics, any fears he had of persecution in Bangladesh in the future were not well founded. It considered that if the applicant chose to become involved in political activities if he returned to Bangladesh he could be politically active and express his political opinion without putting himself at risk of serious harm. It was not satisfied that he had a well founded fear of persecution for a Convention reason.
In the draft order nisi filed in the High Court the applicant raised four grounds for review of the Tribunal decision. He filed written submissions which raised these and slightly different claims. The first ground was that the Tribunal member did not follow the proper procedures as required by the Migration Act 1958. The ground refers to decisions in Moin (sic) and Lee (sic) which I take to be references to the decision in Muin v Refugee Review Tribunal (2002) 190 ALR 601. That this is so is apparent from the applicant's written submissions. However, the applicant has not proved facts analogous to those agreed in Muin. The factual matrix for such a claim has not been established (NADR v MIMIA [2002] FCA 293). There are no agreed facts and the applicant has not established that the Tribunal did not consider the Part B information before the delegate or that he was misled into thinking that the Tribunal had considered such relevant information and what steps he would have taken if he had been told that this was not the case. The claim on the Muin basis is not made out.
In his written submission the applicant also complains that the Tribunal relied on later country information and that such information was not put to him. He claimed generally that the Tribunal was in breach of section 418(3) of the Migration Act and section 424A(1). Section 418(3) does not assist the applicant. It imposes an obligation on the Secretary of the respondent. Putting to one side for the moment the question of documents relating to documentary fraud and dealing with the other general country information, such information is within the section 424A(3)(a) exception to the obligation in section 424A(1). No breach of that section is established in that respect.
Insofar as there is an associated claim in relation to such general country information based on procedural fairness, the factual basis for such a claim is not established. The applicant has not established that he was not aware of and did not have the opportunity to comment on critical issues in the course of the hearing or thereafter. Indeed, the Tribunal reasons for decision (the only evidence before the court as to the conduct of the hearing) indicate that critical issues were raised with the applicant and also that his advisers were given the opportunity to and did make submissions to the Tribunal. No lack of procedural fairness is established in relation to the Tribunal treatment of general country information.
The applicant makes a specific claim in relation to the Tribunal treatment of country information in relation to documentary fraud in Bangladesh. The applicant had, as I indicated, provided documents, such as letters and copies of first information reports and charge sheets to the Tribunal in support of his claim that he had been subject to false charges by members of the Awami League. The applicant contended that the Tribunal did not make any reference to any specific report during the hearing or in any correspondence with the applicant in relation to the document fraud in his case. It was contended that there was a failure to comply with section 424A of the Act and a failure to accord procedural fairness.
It is the case that there does not appear to be any letter under section 424A of the Act in relation to this information. Section 424A(1) obliges the Tribunal to give an applicant particulars of any information that it considers would be the reason or part of the reason for affirming the decision under review. There is authority of the Full Court of the Federal Court in NARV v MIMIA [2003] FCAFC 262 to the effect that information in relation to documentary fraud in Bangladesh is not within the section 424A(3) exception as it is not just about a class of persons. On the authority of NARV there is, strictly speaking, a breach of section 424A(2) which requires that a person must be told of such information by one of the methods specified under section 441A (which involve giving a document to a person) and in accordance with section 424B.
However, it is apparent from the Tribunal reasons for decision that the existence of independent evidence indicating that it is very easy to procure forged documents such as police and court documents in Bangladesh was put to the applicant during the hearing and that the applicant had the opportunity to comment and did so. Hence, according to the Tribunal the gravamen of the country information was put to the applicant for comment. On this basis it has not been established that there was any lack of procedural fairness. The applicant did not dispute that the Tribunal correctly recorded what occurred in the hearing. There is no transcript of the hearing before the court. Procedural fairness does not require that the actual report relied on be put to or provided to an applicant.
In those circumstances, consistent with the Full Court authority in NARV v MIMIA [2003] FCAFC 102 and the recent decision in NAOA v MIMIA [2004] FCAFC 241, the non-compliance with section 424A(2) in circumstances where there was no unfairness or failure to accord procedural fairness does not amount to a failure to exercise jurisdiction or to the Tribunal exceeding jurisdiction. The failure to comply with the section is not jurisdictional. In any event, any breach of section 424A would be at best a technical breach in relation to which it would be appropriate to decline relief. (See VDAU v MIMIA [2004] FCAFC 32 and SZASY v MIMIA [2004] FMCA 440).
The second ground relied upon in the draft order nisi was that the decision was affected by an error of law, jurisdictional error and lack of procedural fairness. There are no particulars in relation to this claim in the draft order nisi. In written submissions the applicant claimed that the Tribunal ignored relevant evidence and made findings in the face of contradictory independent evidence and that this constituted a lack of procedural fairness and a jurisdictional error. No particular evidence is referred to the written submissions and such claim is not established. The submissions also contain extracts from High Court cases in relation to the definition of refugee in the Refugee Convention. It is contended that the Tribunal failed to understand the applicable law and hence made an error of law. However the manner in which the Tribunal is said to have made such an error is not clarified by the applicant and no such error of law is apparent on the material before the Court.
Nor can it be said that there was no evidence or other material to justify the making of the decision as contended. Effectively the applicant takes issue with the merits of the Tribunal decision but merits review is not available. MIEA v Wu Shan Liang (1996) 185 CLR 259 272. It is apparent however that the applicant was unsuccessful because of the view the Tribunal took of the facts, in particular its rejection of the applicant's claims to have been the subject of false charges and its conclusion that his fears of future persecution in Bangladesh were not well founded. The Tribunal findings were open to it for the reasons it gives, including the country information to which it referred. No error of law or jurisdictional error or lack of procedural fairness is apparent on the material before the court.
In oral submissions the applicant contended that the Tribunal erred in dismissing his documentation as fraudulent without making further inquiries. However this is not a case in which the Tribunal undertook or was under an obligation to make further inquiries. It is not disputed that it raised its concerns with the applicant in this regard in the course of the Tribunal hearing and the applicant had an opportunity to respond or to provide further information.
Finally, the applicant claimed that he was denied natural justice in being denied a reasonable opportunity to be heard on his application. There is nothing in the material before me to support such a claim. The applicant was invited to and attended the hearing and had an opportunity both himself and through his migration agent, to make submissions. Having considered all of the applicant's claims and also the material before me it has not been established that there is any jurisdictional error. There is no basis for the relief sought by the applicant. In those circumstances, given that the court's power to grant the relief sought by the applicant includes the power to dismiss the claim for that relief, (Applicants S61 at [29]) I dismiss the application for injunctions, certiorari and mandamus on a final basis.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. The respondent seeks that he pay the costs of the proceedings. There is nothing in the circumstances of this case to justify departure from the usual rule that the costs should follow the event. The applicant raises his impecuniosity. That is not a reason for not awarding costs, although it may be a matter taken into account by the respondent in determining whether and how to recover its costs. In light of the nature of this and other similar matters I consider that the amount of $4,000.00 sought by the respondent is appropriate.

RECORDED : NOT TRANSCRIBED

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 9 September 2004.