Applicant S1865 of 2003 v Minister for Immigration and Multicultural Affairs

[2006] FCA 1603

FEDERAL COURT OF AUSTRALIA

Applicant S1865 of 2003 v Minister for Immigration & Multicultural Affairs

[2006] FCA 1603

APPLICANT S1865 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 983 OF 2006

CONTI J
23 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 983 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

APPLICANT S1865 OF 2003
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	CONTI J
DATE OF ORDER:	23 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 983 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

APPLICANT S1865 OF 2003
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	CONTI J
DATE:	23 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the judgment of Federal Magistrate Driver delivered on 2 May 2006, which dismissed an application for judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’) made as long ago as 21 April 1999.  The Tribunal had affirmed the decision of a delegate of the Minister to refuse the grant of a protection visa to the appellant, which decision was made on 23 December 1998. 

2. The appellant arrived in Australia on 18 August 1996.  It is acknowledged by the Minister that he made an application for a protection visa on 26 September 1996, but it appears that the application was withdrawn on 17 February 1997.  Subsequently he made a further application on 20 November 1998 for a protection visa, to which the present proceedings relate, and which, as above outlined, was refused by a delegate of the Minister on 23 December 1998.  On 5 January 1999, the appellant sought review of that decision from the Tribunal, which as I have indicated already was dismissed on 21 April 1999.

3. The appellant is a citizen of Bangladesh.  Before the Tribunal the appellant claimed to fear persecution by the Awami League upon the basis that he was a member of, and played an organisational role in, the activities of the Bangladesh Nationalist Party (‘BNP’).  He further claimed that he undertook a prominent role within the Boy Scout movement in Bangladesh, which had made him useful to the BNP.  He also claimed that his house was ransacked following Parliamentary elections in 1996, and that he was subjected to false charges which had been laid against him in Bangladesh.  Furthermore, he testified that he had attended meetings of anti-Awami League political groups in Australia since his arrival here.

4. The Tribunal found that the appellant was not a credible witness and was not satisfied there was any basis for a well-founded fear of persecution at the time of the decision or in the reasonably foreseeable future. The Tribunal identified five matters which in its view supported that conclusion and which are summarised below.  First, the appellant failed to make any protection claims until his detention in Australia in 1998, yet he had previously lodged an application for a protection visa in 1996 that was later withdrawn.  Secondly, the appellant had in its view a minimal profile in Bangladesh as a political figure.  Thirdly, the appellant had formed a close association with the head of Bangabondhu Parishad in Australia, which supported conversely the political aims and philosophies of the Awami League.  Fourthly, there was a lack of evidence of his involvement with the BNP when that evidence would have been readily available if it had ever existed.  Finally, the Tribunal considered the nature of the letters and documents submitted by the appellant to the Tribunal to be fraudulent.  In that regard it was pointed out that the so-called First Information Report (FIR), which the appellant claimed had led to the issuance of an arrest warrant, bore a date subsequent to his having left Bangladesh, and thus was inconsistent with the appellant’s claim to have been on a so-called ‘black list’ before he left Bangladesh.

5. I should record that the appellant had previously sustained the dismissal by Cooper J in this Court on 4 August 1999 of an earlier application for review of the Tribunal decision of 21 April 1999 due to non-appearance on his part in this Court; moreover a subsequent application for reinstatement of that earlier legal process was refused by Lehane J on 11 February 2000.  The appellant had been subsequently involved in a substantial class action before the High Court arising out of those earlier proceedings, and ultimately that involvement was brought to an end by the refusal by Emmett J on 20 February 2004 of the appellant’s application for an order nisi which had been remitted by the High Court to this Court.

6. Before Driver FM in relation to the current series of legal processes pursued by the appellant, the appellant claimed that the Tribunal erred in law in making its original decision of 21 April 1999, and further that the Tribunal exceeded or ‘constructively failed’ to exercise its jurisdiction and had also failed to accord to the appellant procedural fairness.

7. The Federal Magistrate observed that the appellant’s earlier Federal Court proceedings provided no barrier to the current proceedings for review before his Honour, since the same were conducted under a different legislative regime, but that the appellant had been unable to advance persuasively any case for denial of procedural unfairness at that earlier stage.

8. The Federal Magistrate next considered the appellant’s grounds for review in light of the original Tribunal decision and accepted the respondent Minister’s submissions advanced in response thereto.  The Federal Magistrate thus found the Tribunal’s decision to be free from jurisdictional error and procedural unfairness. His Honour found therefore that ‘[i]n the absence of supportive evidence, the assertion of procedural unfairness cannot succeed’, and further that having regard to the evidence before his Honour, it was clear ‘that the presiding member did discuss with the applicant his credibility concerns, including the applicant’s apparently inconsistent conduct in his various visa applications’. His Honour further found that the Tribunal had duly discharged its review obligations, and that in particular, the Tribunal did raise with the appellant the information in question, and in so doing did place the appellant on notice that such information reflected adversely on his credibility.  Moreover the Tribunal had caused adverse country information to be provided to the appellant for comment in the course of the Tribunal proceedings. 

9. The notice of appeal filed by the appellant on 22 May 2006 asserted that the Tribunal ‘constructively failed to exercise its jurisdiction’ by not indicating to the appellant that the Tribunal was ‘drawing a negative inference from the documents’, and by not providing the appellant with an opportunity to respond to that negative inference.  The notice of appeal further asserted that the Tribunal acted in excess of its jurisdiction, there being contended no evidence to support the finding that the document submitted by the appellant was fraudulent; yet further again the notice of appeal asserted that the Tribunal failed to ‘notify the [appellant] about the adverse information which it received from the third source’.

10. The appellant’s written submissions, filed on the 31 October 2006, supplemented the notice of appeal by raising the following three principal contentions. First, the appellant submitted that jurisdictional error arose out of the Tribunal’s finding, appearing at pages 129 to 130 of the Court Book, that the appellant’s testimonial account was not credible due to ‘…his failure to make any claims from 1996 until his detention in 1998’. In the context of that submission, the appellant submitted that ‘[i]n fact [his] whole claim was about the membership with the BNP’, that he ‘expressly claimed that [he] was persecuted in Bangladesh because of [his] membership with the BNP’, and that the ‘Tribunal misinterpreted or misread [his] claim’.

11. Whilst that submission by the appellant was not clearly formulated, it did involve the contention, as the Minister asserted, that the appellant had claimed in his first visa application that he was a member of the BNP, and therefore according to the appellant, it was not open to the Tribunal to find that he failed to make any such claim from 1996 until after his detention in 1998.  It is not readily apparent that the appellant established jurisdictional error on the footing of those contentions. 

12. The Minister submitted in any event that such a claim on the appellant’s part must fail for two reasons. The first reason was the absence of evidence before this Court to establish that the appellant had made claim to being a BNP member in his first protection visa application.  A copy of the appellant’s 1996 protection visa application, which the appellant so it would seem eventually withdrew, was not provided to the Court in any event.  It may also be observed in that regard that the Tribunal found, at page 130 of the Court Book, that ‘[t]he applicant first made application for a protection visa about a month after arriving in Australia [and]…[h]e withdrew that application shortly afterwards without providing any account of his claims at that time’. The second reason put forward by the Minister was that even if such a claim did exist within the scope of the appellant’s first protection visa application, the Tribunal’s finding adverse to him would have constituted no more than an error of fact, and would not have amounted to jurisdictional error.  In relation to that proposition, the Minister referred to  NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [53], where a Full Court (comprising Black CJ, French and Selway JJ) observed (so far as is material) as follows:

    ‘It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision […] An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:

    Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
    Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 [75 ALJR 542] at [35] per McHugh J.’

13. There is force in that submission of the Minister and I am persuaded that the Tribunal has not committed any jurisdictional error in relation to its finding that the appellant failed to ‘make any claims from 1996 until his detention in 1998’.

14. The second submission put forward by the appellant in his written submissions relates to the Tribunal’s finding that the FIR document adduced by the appellant in support of his claims was ‘fraudulent and has been provided for the sole purpose of enhancing the [appellant’s] claims’. The appellant contended that such finding was made ‘without any investigation about the authenticity of [the appellant’s] documents’ and that, consequently, the Tribunal ‘acted in excess of its jurisdiction’.  However the Tribunal relied in making that finding upon what it described as ‘compelling independent evidence from DFAT and the US State Department’ and I accept the Minister’s submission that it was open to the Tribunal to make that finding based on the independent country information to which the Tribunal adverted. 

15. The appellant’s third submission involved the contention that it was not open to the Tribunal to find that the appellant was not a credible witness. The Tribunal set out the reasons for its findings on credibility in detail, which appear on pages 129 to 135 of the Court Book, and those reasons were open to the Tribunal to reach on the material placed before it and to which it duly adverted.

16. I am unable to distil any sufficient or adequate basis for sustaining the present appeal, whether from error in the reasons for judgment of the Federal Magistrates Court, or of the reasons for decision of the Tribunal upon which his Honour asserted reliance. 

17. The grounds of appeal advanced by the appellant were not made out and the appeal must be dismissed, and the appellant ordered to pay the first respondent’s costs of the appeal. 

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:        23 November 2006

Appellant appeared in person
Solicitor for the Respondent:	Ms Sharon Hanstein: Australian Government Solicitor
Date of Hearing:	6 November 2006
Date of Judgment:	23 November 2006