NACW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1455

FEDERAL COURT OF AUSTRALIA

NACW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1455

APPLICANT NACW OF 2002 & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 143 OF 2002

STONE J
19 NOVEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 143 OF 2002

BETWEEN:

APPLICANT NACW OF 2002
FIRST APPLICANT

APPLICANT NACX OF 2002
SECOND APPLICANT

APPLICANT NACY OF 2002
THIRD APPLICANT

APPLICANT NACZ OF 2002
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

STONE J

DATE OF ORDER:

19 NOVEMBER 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicants 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 143 OF 2002

BETWEEN:

APPLICANT NACW OF 2002
FIRST APPLICANT

APPLICANT NACX OF 2002
SECOND APPLICANT

APPLICANT NACY OF 2002
THIRD APPLICANT

APPLICANT NACZ OF 2002
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	STONE J
DATE:	19 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The four applicants in this proceeding are citizens of Bangladesh.  Two of the applicants are husband and wife.  The other two applicants are their children.  Applications for protection visas under the Migration Act 1958 (Cth) (“Act”) have been made by, or on behalf of, each applicant. For this reason, and pursuant to s 91X the Act, the Court is prevented from publishing their names. While it is not my preferred course, for the purposes of this judgment, and because individual applications were made by the husband and wife, each applicant will be referred to by the pseudonym allocated to them by the Court.

2. The wife, applicant NACW, and her two children (applicants NACY and NACZ) arrived in Australia on 9 February 1996 and lodged applications for protection visas on 8 March 1996.  As the two children did not have individual claims to refugee status their claims for protection visas depend on the outcome of their parents’ claim.  The husband, applicant NACX, arrived in Australia on 11 May 1997 and lodged his protection visa application on 16 June 1997.  Both applicants NACW and NACX claim to have a well-founded fear of persecution if they return to Bangladesh because of their political opinions.  A delegate of the respondent refused their applications for protection visas on 20 October 1997.  The Refugee Review Tribunal (“the Tribunal”) affirmed that decision on 7 February 2002.

   THE APPLICANTS’ CLAIMS

   NACX

3. Applicant NACX claimed that while in Bangladesh he had been involved at a high level in a political party called the Bangladesh Jatiya League which he had joined in 1988.  The Jatiya League supported the Bangladesh National Party government, which was in power between 1991 and 1996.  Applicant NACX claimed to have led political rallies in Bangladesh against the Awami League during an election crisis in 1996.  When the Awami League won power later that year they began a campaign of harassing, torturing, imprisoning and killing opponents.  Applicant NACX claimed to have come to Australia in 1996 to avoid a similar fate. 

4. Believing the situation in Bangladesh had improved, applicant NACX returned to Bangladesh in March 1997.  He claimed that shortly after his return his house was raided, he was assaulted, his life was threatened and he was told to stop his political activities.  Members of the Jatiya League allegedly protested his detention.  In April 1997, applicant NACX claimed he was seriously injured by members of the Awami League when leaving a Jatiya League meeting and that the incident received media attention.  He complained to police about the incident but they refused to register his complaint or to pursue it.  He further claimed that false charges for alleged violent activities at a demonstration were lodged against him.  Applicant NACX claimed a family member who worked at the airport helped him to leave the country by paying a bribe.

5. In December 1997, some 6 months after the decision of the respondent’s delegate, applicant NACX wrote to the Tribunal and claimed that the Awami League had laid charges against him and certain other people and that a warrant had been issued for his arrest because of a book of political poems he had helped publish.  These poems were said to be critical of the first leader of Bangladesh and his daughter, who was the Awami League leader and Prime Minister of Bangladesh from June 1996 to October 2001.  Applicant NACX claimed that, when he was attacked in April 1997, he was preparing to publish a second edition of the book.  These claims were first made in his statement of 28 November 1997, in which he said that he had only recently learnt of the charges and that he feared persecution because of them.  Further evidence was provided to the Tribunal between May 1998 and January 2000 in relation to applicant NACX’s alleged involvement in the publication of a second book which was critical of the government and which resulted in a prison sentence being imposed on him for defamation.

   NACW

6. Applicant NACW claimed that she had been a leading advocate for women’s rights with the Awami League until its division in 1992 when she joined a splinter group named Gono Forum.  In a statutory declaration supporting her application for a protection visa, declared on 23 October 1996, applicant NACW claimed to have been detained and beaten by the police numerous times because of her political activities.  She also claimed to have played a leading role in Gono Forum party between late 1995 and early 1996 in what she described as “non-cooperation movement” against the Bangladesh National Party government.  She further claimed that a fundamentalist had attacked her home and filed false charges against her, which led to the police raiding her house and further harassment. 

7. In her application for a protection visa applicant NACW identified the Bangladesh National Party government, its supporters and state authorities, as the bodies from whom she feared harm or mistreatment if she returned to Bangladesh.  In her statutory declaration she claimed to fear returning to Bangladesh because she feared reprisals from Muslim fundamentalists.  She also claimed that, based on her previous experience, the Bangladeshi police would be unable or unwilling to help her against such fundamentalists. 

   THE TRIBUNAL’S DECISION
   NACX

8. The Tribunal did not accept that applicant NACX had a well-founded fear of persecution at the hands of the Awami League government because he was a leading member of the Jatiya League.  The Tribunal found that the evidence did not support applicant NACX’s claim that the Awami League had began harassing, torturing or killing its opponents when it came to power in 1996 nor did it support claims that members of opposition groups were targeted in the manner claimed.  The Tribunal found that applicant NACX’s claims about police raids were implausible.  The Tribunal did not accept that applicant NACX was particularly active in politics at the relevant time and did not, therefore, accept his claims based on his participation in the Jatiya League. 

9. The Tribunal noted that applicant NACX provided no evidence to support his claims from the higher ranks of the Jatiya League, which still existed at the time of the Tribunal hearing.  Two members of the Bangladesh National Party identified by applicant NACX as being able to support his claims regarding his political activities and problems were unable to do so.  The Tribunal also considered the fact that applicant NACX’s wife (applicant NACW) knew so little about her husband’s political activities was “a strong indication that he was not deeply involved in politics.”The Tribunal found that written evidence said to confirm applicant NACX’s membership of the Jatiya League was fraudulent.  This finding was based on additional material before the Tribunal which was inconsistent with the alleged authenticity of the evidence. 

10. The Tribunal also expressed the view that applicant NACX, and others involved in the writing and publishing of the books referred to in [5] above, had “arranged to have charges filed against themselves … and that they directly or indirectly influenced the outcome of the case in order to manufacture a claim for protection in Australia.”  The Tribunal’s findings were based on a variety of evidence, including evidence that it was not difficult to arrange a false conviction, that claim of the widespread publication of the books was inconsistent with investigations conducted on behalf of the Tribunal, that evidence provided in support of the claim was found to be fraudulent, and the fact that applicant NACX had not defended himself, which would have most likely have resulted in the matter not proceeding to trial. 

11. The Tribunal did not believe the authorities in Bangladesh would, therefore, be actively seeking applicant NACX, or that any action would be taken if he were to return to Bangladesh.  The Tribunal went on to note that even if it was wrong, the claims in relation to the books did not lead to a well-founded fear for a Convention reason.  In coming to this conclusion the Tribunal referred to evidence that the higher levels of the judiciary in Bangladesh “display a significant degree of independence and often rule against the Government in criminal, civil, and even politically controversial cases”.  The Tribunal also noted that there had been a recent change in government in Bangladesh.  It did not believe that the new Bangladesh National Party government would be interested in pursuing applicant NACX as the books in question had criticised the Awami League.

    NACW

12. The Tribunal did not accept that applicant NACW had a well-founded fear of persecution for reasons of her political opinion or for any other Convention reason.  The Tribunal based its finding largely on applicant NACW’s credibility.  The Tribunal noted that applicant NACW’s claims in respect of membership of the Gono Forum were only made when the Awami League came to power (which was in June of 1996).  The Tribunal noted that her evidence about the history of that party “was confused and at odds with other information” before it.  This confusion could not, in the view of the Tribunal, be attributed to the passage of time.  The Tribunal was of the view that applicant NACW “changed her evidence after the Awami League came to power because she realised that her alleged membership of the ruling party in Bangladesh would lessen her chances of gaining a protection visa.”

13. While accepting that she was involved in a number of women’s groups in Bangladesh, the Tribunal did not accept that applicant NACW had suffered treatment amounting to persecution because of her membership of those groups.  The Tribunal noted that the evidence before it indicated that women’s groups in the region where applicant NACW lived did not have more than a remote chance of being attacked, or seriously harmed, by fundamentalists.  The Tribunal also found that the applicant NACW’s evidence about her activities as a supporter of women’s causes, and the problems alleged to stem from her participation in these causes, was confused, inconsistent and unconvincing.

14. The Tribunal noted that it “was only after the [Bangladesh National Party] lost power that [applicant NACW] claimed that her main fear was that she would be harmed by fundamentalists” and that this claim was not included in her initial application for a protection visa. The Tribunal also noted that applicant NACW’s evidence in respect of false charges was inconsistent. The Tribunal concluded that, at most, applicant NACW would have faced trivial harassment at the hands of fundamentalists which did not amount to persecution for the purposes of s 91R of the Act. Nor did the Tribunal accept that applicant NACW would be at risk of persecution because of her involvement in the women’s movement if she were returned to Bangladesh.

    NACY & NACZ

15. The Tribunal noted that no individual claims were made on behalf of the children of NACX and NACW.  Their applications therefore depended on the outcome of their parents’ applications.  As their parents did not satisfy the criteria for a protection visa, it followed that the children could not be granted visas.

    JURISDICTION OF COURT

16. Since the amendments to the Act pursuant to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) the grounds of review available to applicants seeking a review of a Tribunal’s decision in matters such as this is very limited. This is because the Tribunal’s decision is a privative clause decision within the meaning of s 474 of the Act. The Court’s jurisdiction to review the decision of the Tribunal is limited to that conferred by s 39B of the Judiciary Act 1903 (Cth) (“Judiciary Act”).

17. This matter was heard before the decision of the five-member Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 (“NAAV”) was handed down. That decision established that the effect of s 474(1) of the Act is to expand the jurisdiction of relevant decision makers, including the Tribunal, so that a decision affected by irregularities that would amount to jurisdictional error, in the absence of s 474(1), will be within power subject to satisfying the so-called Hickman conditions (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598); NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 at [24].

18. The Hickman conditions require that a Tribunal’s decision be a bona fide attempt to exercise the power that the Act reposes in the decision maker, be related to the subject matter of the Act, and be reasonably capable of reference to the power. A decision will not be protected from jurisdictional review if it contravenes what is variously described as an “inviolable” condition, “jurisdictional factor” or “structural elements” found in the legislation; per Black CJ at [12], per von Doussa J at [619] (with whom Beaumont J agreed). It follows, and this fact is also clear from the majority in NAAV, that procedural fairness is not available as a ground of review; per von Doussa J at [648] (with whom Beaumont J and Black CJ agreed). 

    APPLICATION FOR REVIEW

19. The application for a review of the Tribunal’s decision was filed on 27 February 2002.  In substance, the only relevant grounds of review set out in that application are that the Tribunal erred by:

    1.failing to follow (unspecified) procedures; and

    2.not acting in good faith.

    The written submissions filed by the applicants about a week before the hearing also raise additional grounds, namely:

    1.the Tribunal breached the rules of procedural fairness;

    2.s 474 of the Act is invalid; and

    3.the Tribunal erred in applying s 91R and s 91S of the Act.

20. In written submissions the respondent objected to the applicants raising these additional grounds at such a late stage. I upheld the respondent’s objection in relation to the challenge to the validity of s 474. In any event, I note that all five judges in NAAV accepted the constitutionality of s 474. It is clear from the Tribunal’s reasons that no issue arises in respect of the application of s 91R and s 91S of the Act and the applicants did not press this ground.

21. To the extent that the additional ground in relation to procedural fairness falls within a broad interpretation of the terms of the original application and raise issues within the jurisdiction of the Court under s 39B of the Judiciary Act, Mr Kennett, counsel for the respondent, did not press his objection and I allowed this additional ground. However this cannot assist the applicants since, as indicated in [18] above, the decision of the majority in NAAV held that a failure to accord procedural fairness will not per se provide a ground of relief in relation to a privative clause decision.  It may be that in some cases that such a failure will indicate that the Tribunal has not complied with one of the Hickman conditions, in particular the requirement that the Tribunal’s decision be a bona fide attempt to exercise its powers.  The facts of this matter do not, in my opinion, show that the Tribunal’s decision was not bona fide. 

22. Applicant NACX made submissions on behalf of his family at the hearing of this matter.  Although unrepresented in this proceeding, it is obvious from the written submissions, and was freely admitted at the hearing, that legal assistance was provided at some stage in formulating the submissions.  While the written submissions were signed only by applicant NACW, and may be construed as referring only to her claims, they also touch on matters concerning her husband’s claims before the Tribunal.  I have therefore considered the written submissions on the basis that they are made on behalf of both applicant NACW and applicant NACX.

23. From the Tribunal’s reasons, and the papers before the Court, it is apparent that there were two hearings before the Tribunal, the first being held on 9 March 2000, and the second on 26 November 2001.  The applicants were advised of the second hearing in a letter addressed to applicant NACX dated 3 October 2001. The Tribunal outlined its doubts concerning aspects of his claim and invited him to attend a hearing on 19 November 2001 “to discuss these and any other outstanding matters relating to your case.”  The hearing was subsequently postponed to 26 November 2001 because of applicant NACW’s medical condition.  Despite this applicant NACX subsequently advised the Tribunal that applicant NACW was not able to attend the hearing on 26 November 2001. He provided a medical certificate that stated she would be fit for interview on 27 November 2001.  The certificate went on to note that, as a result of her medication, she “may continue to have a degree of forgetfulness and poor concentration”.  It is not clear whether applicant NACW attended the second hearing.

24. Applicant NACW claims that the Tribunal did not provide her with an opportunity for a second hearing and that this deprived her of natural justice.  However there is nothing in the reasons of the Tribunal or in the material before me that supports this claim.  Much less does it suggest that the Tribunal’s exercise of its power was other than in good faith. The Tribunal’s letter of 3 October 2001 advising the applicants of that hearing indicates that the purpose of the hearing was to resolve the Tribunal’s doubt about aspects of applicant NACX’s claim. From the Tribunal’s reasons, and additional material included in the papers before the Court, it appears that the time between the first and second hearing was used to investigate the claims made by applicant NACX.  In its reasons, the Tribunal only refers to the second hearing when discussing further information it has obtained with applicant NACX.  There is nothing in those reasons to indicate that the second hearing was in any way concerned with the claims of applicant NACW. The Tribunal’s discussion of her claims focuses on statements made prior to the first hearing.  There is reference to her evidence given at “the hearing” and no reference to a “second hearing”.  In contrast, when discussing applicant NACX’s evidence the Tribunal distinguishes between what was discussed at the first and second hearings. I am not satisfied that any issue relevant to applicant NACW’s claim was discussed at the second hearing and therefore I do not accept that there was any breach of natural justice in the second hearing proceeding in her absence or any absence of good faith.  

25. It is not necessary to consider other claims made by the applicants in their written submissions in relation to an alleged denial of procedural fairness by the Tribunal not giving them the opportunity to comment on information on which it relied.  Even if such claims could be made out they would not amount to non-compliance with the Hickman conditions sufficient to entitle this Court to grant relief.

1. For these reasons the applications must be dismissed with costs.

I certify that the twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:            19 November 2002

Counsel for the Applicants:	The applicants appeared in person
Counsel for the Respondent:	G Kennett
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	12 June 2002
Date of Judgment:	19 November 2002