Arefin v Minister for Immigration & Multicultural Affairs

[2001] FCA 1097

FEDERAL COURT OF AUSTRALIA

Arefin v Minister for Immigration & Multicultural Affairs [2001] FCA 1097

Migration Act 1958

ABU REZA MOHAMMED NURUL AREFIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 306 OF 2001

HEEREY, EMMETT & ALLSOP JJ
7 AUGUST 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 306 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ABU REZA MOHAMMED NURUL AREFIN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	HEEREY, EMMETT & ALLSOP JJ
DATE OF ORDER:	7 AUGUST 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The appellant pay the respondent’s costs.

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	N 306 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ABU REZA MOHAMMED NURUL AREFIN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	HEEREY, EMMETT & ALLSOP JJ
DATE:	7 AUGUST 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HEEREY J:

1. The appellant appeals from a decision of a judge of this Court who refused an application for a review under Pt 8 of the Migration Act 1958 (Cth) (the Act) of a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision of a delegate of the Minister to refuse the appellant a protection visa.

2. The appellant claimed to fear persecution in Bangladesh arising from his work as a liberal journalist publishing numerous articles and writings criticising the policies and activities of Islamic fundamentalists.  He also claimed to have been a founding member of the Nirmal Committee which was established to bring to trial members of Jamaat-e Islam, the fundamentalist Islamic party in Bangladesh who were believed by the Committee to have committed war crimes during 1971 war of independence.

3. In support of his claims the appellant submitted a large volume of his publications and other documentation such as photographs of himself with high profile Bangladeshi liberals.  He identified a course of harassment and persecution over several years which he claimed to have suffered in Bangladesh at the hands of Islamic fundamentalists in retaliation for his public criticisms of their activities, for example:

   1.In January 1992 he was followed by two motor bikes and the riders fired shots and threw bombs at him. 

   2.In June 1993 his six year old daughter was kidnapped.  He received a telephone call from a man who offered to return his daughter if he ceased his publications.  He agreed and his daughter was returned the next day. 

   3.In September 1993 fundamentalists fired shots and threw hand grenades into the offices of the newspaper where he worked.

   4.In June 1995 a bomb was thrown into his car critically injuring his driver. 

   5.In October 1995 a shot was fired at his car, breaking the rear windshield.

4. The appellant claimed that he had been unable to obtain protection from the authorities in Bangladesh because of the political influence wielded by the Islamic fundamentalists.  It was also asserted that he had received harassment in Australia from Bangladeshi Islamic fundamentalists in retaliation for his publications in Australian newspapers.  The harassment included anonymous letters and telephone calls.

5. The Tribunal conducted a hearing in May 1999 and then arranged for inquiries to be made in Bangladesh by the Department of Foreign Affairs and Trade  (DFAT) in relation to the appellant’s claims.  The results of DFAT’s investigations were forwarded to the appellant.  He responded to the DFAT inquiries with further written submissions and initial material and gave further evidence at a second hearing in July 2000.  In support of its decision the Tribunal gave very substantial reasons extending over about 30 pages.  In addition to a substantial volume of material provided by the appellant, the Tribunal’s decision was based upon a comprehensive analysis of a large body of country information.

6. The Tribunal accepted that the appellant worked as a journalist and that he had published articles and a book espousing anti-fundamentalist views.  The Tribunal also accepted that he was associated with leading members of the Nirmal Committee and may have been injured when the offices of his newspaper were bombed in 1993.  However, the Tribunal was not satisfied that this resulted in the appellant having a well founded fear of persecution in Bangladesh.  In essence, this conclusion was founded upon the following findings:

   1.The appellant was not an entirely credible witness and had exaggerated his importance as a political figure and the extent of the harassment he had received;

   2.It was clear from the country information that the height of Islamic fundamentalist violence against journalists and progressives was from 1992 until 1994.  Since then the level of such violence had declined markedly.  Moreover the Awami League, which was the most secular of Bangladesh’s major political parties, was elected to government in 1996 and neither supported nor condoned religious extremists and extremism or violence;

   3.Information from DFAT and a variety of other sources indicated that there were many liberal and secular journalists who continued to express their views without facing serious problems and that the Nirmal Committee continued to exist without serious problems effecting its members and supporters;

   4.In any event, the evidence indicated that people who had been threatened by fundamentalists could obtain protection from the authorities.  Although there was only a remote chance that the appellant would need protection, it would be available to him if required.

7. The case of the appellant before the primary judge proceeded on a quite different basis from that which was advanced before us.  The appellant sought leave to amend his grounds of appeal by abandoning those that were agitated before the primary judge and replacing them with the following:

   “GROUND 1

   1.His Honour erred in failing to find that the Tribunal's decision was beyond jurisdiction, section 476(1)(b).  Particulars:

   1.1His Honour should have held that in the exceptional circumstances of the case, the Tribunal was under a duty to inquire further into the origins of the information contained within the DFAT cable dated 16 July, 1999 at Appeal Book 3-79;

   1.2His Honour should have held that the Tribunal was under a duty to consider the appellant's request that the Tribunal exercise its power under section 429A to call evidence from Mr Ahmed, editor of Ajkor Kargoj or was under a duty to call Mr Ahmed and/or the same in relation to senior reporter, Mr Hassain.

   GROUND 2

   2.His Honour erred in failing to find that the Tribunal erred in law, 476(1)(e).  Particulars:

   2.1His Honour should have found that the Tribunal failed to correctly interpret the law and failing to consider whether the appellant faced a real chance of persecution in the foreseeable future.

   GROUND 3

   3.His Honour erred in failing to find that the Tribunal acted beyond jurisdiction in section 476(1)(b).  Particulars:

   3.1His Honour should have found that the Tribunal failed to take into account the relevant consideration, namely that the appellant faced a real chance of persecution in the foreseeable future.”

8. In support of his application for amendment, counsel for the appellant argued that no prejudice would be suffered to the respondent if the amendment were granted and also that the law in relation to review of decisions of the Tribunal had been clarified and widened by the recent decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.

9. As a number of Full Courts have said, it is important that appeals to Full Courts of this Court be treated as appeals and not simply as an opportunity to have a second run in which arguments not advanced before the primary judge are raised.  In the way the appellant’s argument was put, I have some doubt whether the decision of the High Court in Yusuf really has a great deal of bearing on the matter.  More fundamentally, however, I think that leave should not be granted to the appellant because after a full argument I have reached a firm conclusion that the grounds sought to be raised in the proposed amended grounds of appeal are without merit.

10. Turning to ground 1, it is necessary to say a little more about the DFAT cable.  That was in some respects highly critical of the appellant.  It asserted that he was not, as he claimed, a prominent journalist and it raised some serious allegations against him including an allegation of embezzlement of funds from the paper where he worked.  The contents of the cable were disclosed by the Tribunal to the appellant and at his request the Tribunal communicated again with the Australian High Commission in Bangladesh who simply affirmed their earlier report.

11. The short answer to the complaint on this score is that a reading of the Tribunal’s reasons makes it clear that it did not rely on, or indeed accept, the personal criticisms of the appellant made in the DFAT report.  Insofar as the Tribunal placed any reliance on the DFAT report it only did so when it was confirmed by other evidence.  This is illustrated by the following passage:

    “With regard to Mr Arefin’s protection visa application the DFAT advice addresses two relevant issues;  Mr Arefin’s political involvement and profile in Bangladesh and the problems which they caused him and the likelihood that those who opposed fundamentalism would face persecution in Bangladesh today.  With regard to the former, I have not accepted the advice given by the High Commission.  As noted above, while I believe that Mr Arefin has exaggerated his claims to some extent, I accept that he was a relatively well-known journalist and author in Bangladesh;  that he was associated with the Nirmal Committee and that he was harassed by fundamentalists as a result.  With regard to the treatment of people with his views and background in Bangladesh today the advice provided by the Australian High Commission in Dhaka is in keeping with earlier advice which they have provided and other information which I have read on the current situation in Bangladesh and I see no reason to ignore it.”

12. A similar passage occurs when the Tribunal is discussing the decline in the level of fundamentalist activity after 1994 and the accession to power in 1996 of the Awami League which the Tribunal said neither supports nor condones religious extremism or violence.  The Tribunal then said:

    “Advice from DFAT states that there are many liberal secular journalists who continue to express their views without facing serious problems and that the Nirmal Committee continues to exist and members and supporters can generally express their views without facing serious problems.  This view is confirmed by information in the other sources consulted.  See above.”

13. So I do not see how it could be said that there was any failure of a duty to make further inquiries in the circumstances having regard to the use with which the Tribunal made of the DFAT cable. In any event it may be doubted that there is any such duty as asserted. Section 426 of the Migration Act 1958 (“the Act”) provides that:

    “(1)In the notice under section 425A,the Tribunal must notify the applicant:

    (a)that he or she is invited to appear before the Tribunal to give evidence; and

    (b)       of the effect of subsection (2) of this section.”

    Subsection (2) provides:

    “The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.”

    Subsection (3) provides:

    “If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.”

14. In light of the overall structure of the Act, which provides for review by the Tribunal and subsequent review by the Court, with specification of detailed procedures and strict time limits, it is understandable that s 426, insofar as it creates any duty, which in itself may be doubted, limits the time under which an applicant may call upon that exercise of that duty. That time limit was not complied with in the present case.

15. Turning to ground 2, it is of course fundamental to the assessment of a claim for refugee status that the decision maker has to assess prospectively the risk of persecution of the applicant if he or she is returned to his country of nationality.  There is no reason to infer a failure on the Tribunal to engage in this necessary exercise.  There was a substantial conflict in the material as to the situation in Bangladesh now and since the mid-1990s with respect to Islamic fundamentalist activity.  The Tribunal reached a firm conclusion, as already mentioned, that the situation had changed for the better.  For example, in referring to a letter of 11 May 1999 from the editor of the appellant’s paper which asserted, amongst other things, that fundamentalists and superstitious groups are becoming more and more powerful in Bangladesh, the Tribunal said:

    “This is seriously at odds with other information before me regarding the situation in Bangladesh in recent years which indicates that there has been a lessening of fundamentalist influence and violence and does not support the view that fundamentalists have been engaged in a campaign to eliminate liberal or progressive people nor that many such people have fled Bangladesh nor that those who remain live in fear.”

16. This finding of fact by the Tribunal cannot be challenged on review to this Court.  Moreover, the case that was presented by the appellant to the Tribunal did not, as far as we were informed raise any suggestion that matters in Bangladesh were likely to change or, for example, that there was a cyclical pattern of politics in Bangladesh which might be expected to result in parties sympathetic to fundamentalists gaining power and altering the situation found to presently exist by the Tribunal.  So, in my view ground 2 is not made out.  Ground 3 fails for the same reason. 

17. In my opinion the appeal should be dismissed.

    EMMETT J:

18. I agree with my brother Heerey that the application for leave to amend the grounds of appeal should be refused.  Amending the grounds of appeal, of course, would not of itself have been sufficient.  It would also have been necessary to amend the application to this Court for an order of review.  I would assume, however, that that was implicit in the application made for leave to rely on additional grounds in the appeal.

19. One of the principal bases for the application for leave to amend was the intervening decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) HCA 30. In Yusuf’s case the High Court referred to the principle that, if an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material, or at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it.  Jurisdictional error can thus be seen to embrace a number of different kinds of error.  The circumstances of a particular case may permit more than one characterisation of the error identified, for example as the decision-maker both asking the wrong question and ignoring relevant material.

20. What is important however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. Thus if an error of those types is made, the decision-maker did not have authority to make the decision that was made. he or she did not have the jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law, or to make a decision otherwise in accordance with the law (see paragraph [82] Yusuf’s case.  It is those principles that found both of the proposed new grounds. 

21. It is significant, in my opinion, that the original application to this Court specified the following grounds without particulars:

    “1.that procedures required by the Act and regulations in making the decision were not observed;

    2.that the decision was not authorised by the Act and regulation;

    3.that the decision was induced or affected by fraud and actual bias;

    4.that there was no evidence to justify the making of the decision.”

22. Thus, at least in the initial application, there was foreshadowed an intention to rely on s 476(1)(c) of the Migration Act, namely that the decision was not authorised by the Act or the regulations. That ground is clearly closely related to s 476(1)(b), as appears from the observations in Yusuf’s case to which I have just referred.

23. The original application however was amended by abandoning reliance on any ground other than the ground contained in s 476(1)(a).  The amended application relied on the following ground only:

    “The Refugee Review Tribunal, in its decision of 6 September 2000 failed to observe the procedure required in section 431(c) and (d) of the Migration Act (1958), the Act thus providing grounds for review under section 476(1)(a) of the Act.”

24. That ground of course is demonstrated by Yusuf’s case not to be available.  Hence the desire to rely on s 476(1)(b) in relation to proposed grounds 1 and 3.  Proposed new ground 2 is a variant of ground 3 in that the particulars are the same.  It seems to me that the procedural history I have recounted indicates a consideration of the possible application of at least s 476(c) and a conscious decision to abandon reliance upon that provision.  That seems to me to carry with it an acceptance that s 476(1)(b) would not apply.  The grounds that are proposed to be advanced would equally have been, if they were available, within paragraphs (b) or (c).

25. In any event, for the reasons that my brother Heerey has given, I agree also that even if leave were granted, the appeal would be doomed to failure. I will shortly state my reasons in addition to adopting those that fell from my brother Heerey. There is no duty to inquire imposed on the Tribunal by the Act. It may be that in some circumstances, if material were adduced before the Tribunal in circumstances such that its reliability was very much called into question, there could arise a duty to examine the reliability of that material further.

26. However for the reasons that my brother Heerey has given, there was no reliance placed on the DFAT cable insofar as it related to the personal attack on the applicant.  Even if there is such a duty, it certainly did not arise in the present case.  The effect of the applicant’s submission was that to consider a request to exercise power to call evidence from overseas witnesses would arise if there was a clearly expressed wish that a particular witness be called to give evidence.  If that were the appropriate principle, s 476(3) would be quite otiose.

27. It is clear, in my view, that those provisions of the Act limit the circumstances in which there is any obligation of the Tribunal to give consideration to the calling of witnesses at the request of an applicant. Proposed new grounds 2 and 3 rely on an assertion that the Tribunal failed to consider that aspect of the appellant’s claim that relates to the underlying possibility of fundamentalist ascendancy and thus failed to consider whether the appellant faces a real chance of persecution in the foreseeable future.

1. The Tribunal began its reasons by observing, albeit perhaps in a standard form, that, under Australian law, to succeed in an application for a protection visa, an applicant must be afraid to return to their country of nationality and there must also be a real chance that they will face serious harm or discrimination or an abuse of their fundamental human rights in that country within the reasonably foreseeable future.  As my brother Heerey pointed out, there simply was no issue raised before the Tribunal such as would call for an inquiry as to the likely future events in Bangladesh.  There was no claim made by the applicant concerning the underlying possibility of fundamentalist ascendancy in Bangladesh such as might give rise to a change in the future.  In those circumstances, there was no duty on the Tribunal to have regard to such a possibility. 

2. I agree that the application for leave to amend should be refused.  It follows, since there are no other grounds relied on by the appellant, that the appeal should be dismissed with costs.

   ALLSOP J:

3. I agree with the proposed orders, both as identified by the learned presiding judge and Emmett J and I agree with the reasons given by each. The only matter that I would wish to add is this and it relates to ground one. Even if it could be argued that s 426 applied - which I do not think it does - I see no basis for inferring that the Tribunal did not have regard to the question of calling the evidence. The reasons of the Tribunal are structured in a way to remove any reliance upon the parts of the DFAT cable which were the subject of the clearest and strongest opposition by the appellant and thus to avoid the need to deal with the conflict between the DFAT cable and the letter of Mr Ahmed, the editor of the newspaper and the proposed witness and also the evidence of Mr Hossain, a journalist from the newspaper and also another proposed witness.

4. In those circumstances and in that light, it is consistent with the reasons that the Tribunal took the view that it was quite unnecessary to deal with this conflict and so call these witnesses. 

5. The real complaint appears to me to be as to the weight given in the reasons, residually, to the DFAT cable, in circumstances where it was said - and said to the Tribunal - that the DFAT position had been brought about by a biased attitude of the person informing or constructing the cable.  In those circumstances, the complaint is that the fact finding has gone wrong by the reliance on unreliable material.

6. That is, if it be anything, a problem with the weight given to material and quintessentially fact finding and not the subject of review under Part 8 of the Act.

7. I otherwise agree with the reasons of the learned presiding judge and Emmett J and I agree with their proposed orders.

   HEEREY J

8. The order of that Court is that the appeal will be dismissed with costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey, Emmett and Allsop.

Associate:

Dated:             7 August 2001

Counsel for the Appellant:	C Jackson
Solicitor for the Appellant:	Mofazzal Kazzi
Counsel for the Respondent:	D Jordan
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	7 August 2001
Date of Judgment:	7 August 2001