Applicant S240/2003 v Minister for Immigration and Multicultural Affairs

[2006] FCA 982

FEDERAL COURT OF AUSTRALIA

Applicant S240/2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 982

APPLICANT S240/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL and MEMBER OF THE REFUGEE REVIEW TRIBUNAL

NSD 1025 OF 2003

COWDROY J
2 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1025 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S240/2003
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
Second Respondent

MEMBER OF THE REFUGEE REVIEW TRIBUNAL
Third Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	2 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

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

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 1025 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S240/2003
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
Second Respondent

MEMBER OF THE REFUGEE REVIEW TRIBUNAL
Third Respondent

JUDGE:	COWDROY J
DATE:	2 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, a national of Bangladesh, challenges the decision of the Refugee Review Tribunal which determined that he was not entitled to a protection visa.  That decision was given on 27 October 1995 and affirmed the decision of the delegate of the first respondent made on 25 May 1993. 

2. No evidence was provided to the Court of the history of these proceedings following the decision of the Tribunal, however the submissions of the first respondent have outlined the history. I have drawn the following facts from the first respondent’s submissions.

3. The present proceedings were commenced by the applicant on 29 May 2003 in the High Court of Australia pursuant to orders of Gaudron J made on 25 November 2002 in the Lie class action (see Muin v Refugee Review Tribunal and Ors (S36 of 1999) (2002) 190 ALR 601). The applicant now seeks an order nisi in relation to the Tribunal decision, and seeks ultimate orders in the nature of mandamus and certiorari and an injunction to restrain the first respondent from acting upon the decision of the Tribunal.

4. The grounds relied upon for relief are stated in the draft order nisi filed by the applicant 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 in the decision of 25 May 1993, 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 25 May 1993 because he did not reach a state of satisfaction bases upon a correct understanding of the law on which he acts.

   g)the decision of the first respondent’s agent of 25 May 1993 was made in breach of rules of natural justice.’

THE TRIBUNAL’S DECISION

1. The applicant entered Australia on 22 January 1992 and was granted a temporary entry permit valid until 13 January 1994.  He remained in Australia thereafter and became an illegal entrant within the meaning of the Migration Act 1958 (Cth), but because he had an entry permit application which had not been finally determined as at 1 September 1994, the applicant is deemed to have been granted a bridging visa, pursuant to reg 10 of the Migration Reform (Transitional Provisions) Regulations (Cth).

2. The applicant claimed that he had been an active member of Jatiya Party (‘JP’) in his local district.  He stated that he had joined the JP in 1984 and that, as a party member, he participated in demonstrations and processions to win support for the party.  He claimed that he was afraid to return to Bangladesh because there were many charges against him brought by his rivals in both the Awami League (‘AL’) and the Bangladesh Nationalist Party (‘BNP’).  He claimed the police had come to his home on three occasions but he had already left for Dhaka to evade them.  He also claimed that his family had advised him not to return to Bangladesh until they told him it was safe to do so because opposition parties would torture and kill him. He said that over the past three or four years both the AL and BNP had attacked his home and damaged his belongings and that false charges had been brought against him at the behest of the AL and the BNP.

3. The applicant also relied upon a second ground for claiming asylum. The applicant said that he came to Australia because he had obtained a position as a domestic helper and cook to the Bangladesh High Commission in Canberra. He claimed that in 1992 he had been involved in a dispute with the then High Commissioner for Bangladesh in Australia, Major-General Abdul Mannaf. He claimed that he was not paid the agreed salary and that he left the employ of the High Commission following the disagreement.  He claimed that he had been informed by the High Commissioner not to tell anyone the details of the dispute and said that he was afraid that the High Commissioner, who was a powerful man, could have him killed or punished if he returned to Bangladesh.

4. The Tribunal did not accept that the applicant had been an active member of the JP since 1984. The Tribunal also considered the applicant’s answers to questions about the party were vague and general. The Tribunal was not satisfied that documents provided by the applicant to support his claim were authentic. It observed several discrepancies and then held:

   ‘Taken together, these discrepancies indicate strongly to the Tribunal that the documents relating to the arrest and charges against the Applicant are not authentic.  Therefore the Tribunal is not prepared to accept them as evidence supporting the claims of the Applicant that he would be arrested and punished by the court in Habiganj if he returns to Bangladesh.’

5. In relation to the claimed threat from the former High Commissioner, the Tribunal noted that the applicant produced no evidence of any threats, and that he had had no further contact with the High Commissioner since he left his job. In any event, the Tribunal found that the claim did not fall within the ambit of the Convention definition of persecution.

6. The Tribunal concluded:

   ‘The Tribunal has come to the conclusion that the Applicant has not demonstrated that he faces a real chance of persecution if he returns to Bangladesh.  The claims he has put forward about difficulties he would face from the government, if he returns, do not stand up to close scrutiny.  The Tribunal does not accept the claims of the Applicant that he had such an active involvement in the JP that he would face serious harm from political opponents if he goes back to Bangladesh.  Accordingly the Tribunal concludes that the Applicant does not have a “well-founded” fear of persecution for a Convention reason.  Therefore he is not someone who the Tribunal considers to be a refugee.’

APPLICANT’S SUBMISSIONS

1. In his written submissions the applicant claims that the Tribunal 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’. The applicant claims that the Tribunal accordingly breached ss 426(2) and (3), 427(4) and 440(2)(b) of the Migration Act.

2. It is also submitted that the Tribunal ‘overwhelmingly depended on DFAT report, which was prepared by Australian High Commission, Dhaka.  Either prejudiced by the DFAT report or without weighing the supporting documents the RRT member had taken his decision on the matter earlier.  Thus, the review applicant was suspicious about the neutrality of the Member.’ I take this to be a submission that the Tribunal was biased.

3. The applicant also says that the Tribunal ignored information he provided to the Tribunal, or did not refer to it in its decision, in breach of s 430(1)(c) and (d) of the Migration Act.

4. The applicant claims that the circumstances of his case are identical to the circumstances which were considered by the High Court in Muin, in which case the majority found that the Tribunal had failed to afford procedural fairness to the applicant.

5. The applicant’s submissions then reiterate the claims relied upon in his application for a protection visa and says that his fears are genuine. The applicant also makes criticisms of the legality of the decision by the delegate of the first respondent. However since the Tribunal decision supersedes the delegate’s decision, these claims, and those referred to in pars d), e), f) and g) of the draft order nisi, are not relevant and it is unnecessary to consider them further.

FINDINGS

1. In Re Australian Nursing Federation; Ex parte State of Victoria and Anor (M10 of 1993) (1993) 112 ALR 177 at 183, McHugh J said:

   ‘To obtain an order nisi for a writ of prohibition or certiorari, a party must show that he or she has an arguable case that the tribunal to whose proceedings the writ is directed has gone beyond its jurisdiction.’

2. The applicant has made allegations that numerous sections of the Migration Act have been breached. Those sections relate to the conduct of the hearing before the Tribunal. Section 426 refers to the entitlement of an applicant to request the Tribunal to call witnesses; s 427(4) prohibits the Tribunal from summoning witnesses who are not in Australia; s 430(1)(c) and (d) require the Tribunal’s decision to contain findings on any material questions of fact and to refer to evidence or material on which the findings of fact were based; s 440(2)(b) refers to the power of the Tribunal to prevent disclosure of evidence or information or documents relating to its review; s 477 refers to time limits on applications for judicial review of Tribunal decisions. The applicant also referred to various paragraphs of s 476 of the Migration Act which do not appear to exist.

3. The applicant has provided no evidence to support his claims of breaches on any of these grounds. The only evidence before the Court is the decision of the Tribunal and the decision of the delegate which preceded it. I have read the decision of the Tribunal. Its reasons set out findings on material questions of fact, and refer to the evidence on which those findings are based as required by s 430(1)(c) and (d). There is no evidence before me that the applicant requested the Tribunal to summon a witness as referred to in s 426, or, if he did so, that the Tribunal did not comply with this request. Nor is there any evidence that the Tribunal sought to summon a witness in breach of s 427. The claims with respect to s 440(2)(b) and s 477 are clearly misconceived, as those sections do not relate to duties imposed upon the Tribunal.

4. As with the breaches of the Act which have been alleged, the appellant has not provided any evidence to support his claim that the Tribunal was biased. The principles relating to bias were considered by the Full Court in SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [42]-[48]. Those principles included the following (at [43]):

   ‘First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved.’

5. The basis on which the bias claim is made, namely that the Tribunal relied overwhelmingly on the Department of Foreign Affairs and Trade (DFAT) report, appears to be contrary to the facts. The Tribunal did not refer to any DFAT report in its reasons, but rather relied upon material from a variety of sources, including information provided by the applicant. For these reasons I reject the applicant’s claim that the Tribunal was biased.

6. The applicant claims that his case is identical to Muin. The principles in Muin related to a specific situation in which the Tribunal had not been supplied with information favourable to the applicant’s case which had been before the delegate. The applicant in Muin had been misled by a letter sent by the Tribunal. He thought that all information provided to the delegate had been supplied to the Tribunal, when in fact it had not been. As a consequence, he had not drawn the Tribunal’s attention to information favourable to his case and was therefore denied procedural fairness.

7. In the present case the applicant has not identified any information which he says was before the delegate but not before the Tribunal. It is impossible to uphold a claim on the basis of the principles in Muin when no information has been identified. Accordingly in relation to the claim that the principles in Muin apply to the applicant’s case, I reject this ground.

8. It follows from the above that I do not consider that an arguable case has been made out by the applicant. Accordingly, the application for order nisi is dismissed with costs in the sum of $2,200.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:       2 August 2006

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the First Respondent:	Mr A Markus (solicitor)
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	24 July 2006
Date of Judgment:	2 August 2006