NAGM v Minister for Immigration
[2003] FMCA 276
•12 June 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAGM v MINISTER FOR IMMIGRATION | [2003] FMCA 276 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether bias, lack of good faith, denial of natural justice or jurisdictional error – application dismissed. |
Migration Act 1958
Judiciary Act 1903
Muin v Refugee Review Tribunal [2002] HCA 30
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30
R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 498
| Applicant: | NAGM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ215 of 2003 |
| Delivered on: | 12 June 2003 |
| Delivered at: | Sydney |
| Hearing Date: | 12 June 2003 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms R. Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
That the application is dismissed;
That the applicant pay the respondent's costs set in the amount of $3500 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ215 of 2003
| NAGM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
These are ex tempore reasons for judgment in relation to an application seeking review of a decision made by the Refugee Review Tribunal (the Tribunal) on 15 November 2002 and handed down on 11 December 2002 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.
The applicant is a national of Bangladesh who arrived in Australia on 19 August 2000. On 28 September 2000 he lodged an application for a protection (Class XA) visa. He claimed to have a well-founded fear of persecution in Bangladesh on the basis of his atheism. This was put on the ground of religion and on the ground that he was a member of a particular social group.
The applicant made a number of claims relating to the development of his beliefs during childhood. He claimed to have joined a group of progressive thinkers and to have edited a controversial magazine which he said was banned at the instigation of fundamentalists who targeted him. He claimed that his parents made him leave home when they found out that he did not follow Islamic rules in his personal life. This forced him to leave college. He obtained work in the garment industry. He became an activist and claimed to have formed an association blending the concepts of atheism and the freedom of men and women. He asserted that the fundamentalists lodged false cases against him, held protests about his views and beat him up on several occasions which forced him into hiding. He also claimed that the government and law enforcement agencies in Bangladesh did not assist him.
The application was refused by a delegate of the respondent on
16 February 2001. On 8 March 2001 the applicant applied to the Tribunal for a review of the delegate's decision. On 14 October 2002 the Tribunal wrote to the applicant and informed him that it was not able to make a favourable decision on the material before it. He was invited to attend a hearing scheduled for 14 November 2002. According to the Tribunal's reasons for decision the applicant did not respond to the hearing invitation.
On 31 October 2002 the Tribunal contacted the applicant's migration agent who indicated that he did not think that the applicant would attend the hearing. On the day of the hearing the applicant's adviser told the Tribunal that the applicant would not be attending the hearing. No reasons were given and no adjournment was sought. The migration agent faxed a further written submission to the Tribunal on that day in relation to the facts of the case and the law to be applied.
The Tribunal decision
The Tribunal found that, in view of the lack of detail in the protection visa application, it could not be satisfied as to the applicant's claims to be an atheist, to be perceived to be an atheist, to be targeted by fundamentalists, that false charges were lodged against him, that he was physically assaulted, that protests were held against his views or that his family rejected him.
The Tribunal referred to several factors in particular. Although the applicant claimed that his family rejected him, his protection visa application indicated that he was still in contact with family members by letter and telephone. There was no explanation for this. Further, while the applicant claimed that he was forced into hiding, his application disclosed that he had lived at the same address and worked in the same position from 1990 until March 2000. There was no explanation of his movements from March 2000 until August 2000 when he arrived in Australia. Nor was there an explanation for how his passport and Australian visa came to be issued in the United States.
In these circumstances the Tribunal found that it could not be satisfied that the applicant was persecuted for a Convention reason in the past or that there was a real chance that he would be persecuted for a Convention reason in the reasonably foreseeable future. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.
The Application
The applicant filed an application in the Federal Court on 23 December 2002. The matter was subsequently transferred to this court. While this application relies on grounds of review which are no longer available (being based on the now repealed s.476 of the Migration Act 1958, as the applicant is self-represented I have considered whether the material before me reveals any reviewable error.
The applicant claims that the decision was induced or affected by actual bias demonstrated in the findings in several respects. It is appropriate to make some preliminary observations and findings in relation to the grounds relied on in the applicant’s written submission. First, he claimed that the Tribunal did not accept his claim to be a refugee and was not satisfied he had a well-founded fear of prosecution. Secondly it was alleged that the Tribunal refused to accept that a misunderstanding by the interpreter.
“was of subsequent magnitude as to prevent the applicant giving evidence or understanding what was said to her (sic) or in making herself (sic) understood”.
Finally it was claimed that the Tribunal rejected the claim.
“because her (sic) oral and written evidence was inconsistent in relation to major issues.”
The applicant is male. I am satisfied on the basis of the Tribunal reasons for decision and the Tribunal hearing information form that the applicant did not attend any Tribunal hearing. In the course of these proceedings I asked the applicant about the inconsistency between these claims and the evidence that he had not attended a Tribunal hearing. At first he referred to being at work and then indicated that he did not recollect whether he had attended a Tribunal hearing. There is no evidence before me as to any misinterpretation in any aspect of the Tribunal proceedings in this case. I am not satisfied that there is any substance in the claims based on alleged inadequacies in interpretation. Further, contrary to the applicant’s submission, no oral evidence was given by him and there is no finding of inconsistency between oral and written evidence in the Tribunal reasons.
The applicant also claimed that the Tribunal erred in failing to treat the claimed inconsistency between oral and written evidence as a s.424A issue. He submitted that he “brought the statutory declaration he submitted in connection with the current protection visa application to the hearing and showed it to the Tribunal to ensure that it was before the Tribunal”. There is no evidence of any such statutory declaration being before the Tribunal. Nor did the applicant attend a Tribunal hearing. Finally the applicant claimed actual bias was shown in the fact that “despite numerous opportunities to mention my fear of brutally (sic) assault” the Tribunal did not accept the claims as genuine and true. There is no basis for these claims in so far as they suggest that bias or some other error was apparent in the conduct of a tribunal hearing. There was no hearing. Nor were there inconsistencies in written and oral evidence. Apart from such unfounded allegations, in essence the applicant claims bias on the basis of the Tribunal’s rejection of his claims.
The applicant also submitted that there was some analogy with the decision of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30 in relation to a failure to give relevant documents to the Tribunal. There were no particulars provided of this claim. It was also claimed that the decision-maker acted in bad faith on the basis that the Tribunal got the facts wrong, took into account irrelevant matters, did not take certain matters into consideration and did not make an honest attempt to come to the right decision, or intentionally made a wrong decision acting in bad faith. Again no particulars were provided.
It was further submitted:
Having listened to the tape recording of the tribunal proceedings and having read its decision your Lordship (sic) can say that the Tribunal acted in bad faith.
As indicated, I am not satisfied on the evidence before me that there was a tribunal hearing. No recording of any tribunal proceedings or transcript has been submitted to the court and there is no basis for this claim. Finally, it appears that the applicant is alleging that there was a denial of procedural fairness, although no basis for this claim is contained in the written submissions. As the applicant is self-represented I have considered whether the material before the Court reveals any reviewable error.
The relevant law
This is an application under section 39B of the Judiciary Act 1903 . Section 474 of the Migration Act restricts review of “privative clause decisions”. The effect of this section has been considered by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1. A decision made by the Tribunal that involves a jurisdictional error being a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act, (including a denial of natural justice) is not a decision made under the Migration Act and hence is not a privative clause decision and is reviewable notwithstanding section 474. In light of my conclusions in relation to this matter it is not necessary for me to consider what errors amount to jurisdictional error.
An allegation of actual bias is a serious allegation not easily established. In light of what I have said about the applicant's failure to attend a Tribunal hearing, the basis for his claim of actual bias (and indeed for the claim of a lack of bona fides or lack of procedural fairness) reduces to a disagreement with the findings by the Tribunal. Such an allegation seeks impermissible merits review. No bias, actual or apprehended is apparent on the material before the Court. Bias is not established by the Tribunal conclusion that the applicant failed to provide sufficient relevant details to satisfy the Tribunal that the statutory elements of his claim were established. The Tribunal gave reasons for its findings which were open to it on the material before it. Accordingly, such findings constitute a legally proper rejection of the applicant's claim (Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547).
There is nothing in the material before me to suggest that in any way the proceedings or the reasons of the tribunal involved a denial of procedural fairness either in the Muin sense or in any other way.
Nor is there anything in the material before me to suggest that the decision maker took into account irrelevant matters or did not take into account relevant considerations or make an honest attempt to come to the right decision as alleged by the applicant. No jurisdictional error as considered by the High Court in the decision of the Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 is apparent. The Tribunal made its findings on the basis of the inadequacy of the evidence before it. It stated and applied the law correctly. The findings it made were open to it on the material before it. No error is apparent.
As there is no jurisdictional error or denial of natural justice the decision is a privative clause decision. It has been established that any of the three so called Hickman (see R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 498) provisos are not met. In particular it has not been established nor is it apparent that the decision is not a bona fide attempt by the tribunal to exercise its power. Accordingly, the application must be dismissed.
The respondent seeks that the applicant pay costs. The applicant in oral submissions indicated that he was poor and indigent and the sought the sympathy of the Court. However, he has been wholly unsuccessful in these proceedings and it is appropriate that he meets the respondent’s costs. It is the practice of this court to fix the costs in accordance with the provisions of the Federal Magistrates Court rules. In light of the issues raised in this case and similar matters I consider that an appropriate amount for costs is $3500.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 12 June 2003
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