NAJO v Minister for Immigration - [2003] FMCA 385

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAJO v MINISTER FOR IMMIGRATION

[2003] FMCA 385

MIGRATION – Review of RRT decision – application for a protection visa – where the applicant claims to have a well-founded fear of persecution for reasons of political association – where the Tribunal member made negative remarks about the credibility of the applicant’s evidence throughout the whole decision – whether unjudicial conduct by the Tribunal member constituted a reviewable error – whether the Tribunal was biased.

Migration Act 1958 (Cth), ss.430, 474
Judiciary Act 1903 (Cth), s.39B

SBBS v Minister for Immigration [2002] FCAFC 361
SDAA v Minister for Immigration [2002] FMCA 184
H v Minister for Immigration (2000) 63 ALD 43
Minister for Immigration v SBAN [2002] FCAFC 431

Dranichnikov v Minister for Immigration [2003] HCA
Minister for Immigration v Anthonypillai [2001] FCA 274

Applicant:

NAJO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 471 of 2003

Delivered on:

11 September 2003

Delivered at:

Sydney

Hearing date:

4 September 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr J Young

Counsel for the Respondent:

Mr R Bromwich

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 471 of 2003

NAJO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is a national of Bangladesh who arrived in Australia on 7 August 1999. On 17 September 1999 he lodged an application for a Protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 8 November 1999 a delegate of the Minister refused to grant a protection visa and on 25 February 2000 the applicant sough review of that decision by the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal on 21 May 2002. The Tribunal made its decision on

18 December 2002 and handed it down on 22 January 2003.
Under the heading “Claims and Evidence” the Tribunal notes that the applicant claims a fear of persecution in Bangladesh for the Convention related reason of political opinion. The Tribunal goes on to note that the applicant claimed he was a member of the student wing of the Jamat-e-Islami (JI) having been elected general secretary of the local branch of the party at a young age and was a leading activist. Because of this association with that political party in which he motivated members to oppose the Awami League, the Awami League was “adamant to kill” him.
The situation regarding the other claims of the applicant is one which goes to the heart of his application for review. At [CB 155] there is reference to a claim that he was injured in a skirmish and that he appeared in a photograph in a newspaper tabled at the RRT hearing. The applicant also claimed that Awami League workers brought false charges against him and in respect of this claim submitted letters written to him in English from friends, family and his lawyer indicating that the police were still looking for him and that cases had been commenced against him [CB 156]. The documentation referred to is found between [CB 70 and 75] and also between [CB 48 and 54]. The Tribunal also had before it the papers that were before the delegate including the application made by the applicant which sets out his claims for seeking asylum between [CB 20 and 22].
The Tribunal decision does not follow the form that is frequently followed in these matters where the Tribunal sets out without comment the evidence elicited from the applicant at the hearing. It does not set out, as is common in these matters, the substance of the debate between the Tribunal and the applicant so that when the Tribunal comes to its reasons for decision a logical pattern can be ascertained. In this decision information is very much mixed with comment eg:
“The applicant’s evidence at the RRT hearing about the structure of his party was vague and not what one would reasonably expect to be the understanding of one of its office holders. For example, he was vague as to the process by which individuals are selected for the position he himself claims to have occupied. In his evidence, all progress within the party is the product of beneficent superiors recognising hard work; in his evidence, there is no need for competition, rivalry, elections, ballots, currying of flavour, Islamic credentials or even numbers crunching, but merely hard work duly rewarded. This picture, although very appealing struck the Tribunal as a kind of dreamland, utterly unrepresentative of the dynamics within political parties. The Applicant was also vague as to how the position of general secretary became vacated in any event.” [CB 155].
At [CB 156] still in the “Claims and Evidence” section of the decision the Tribunal says:
“The Applicant claimed that AL workers brought false charges against him. Addressing this claim, he has submitted letters written to him in English purportedly from friends and family saying that police are still looking for him. The Applicant’s position is that the AL was using its influence whilst in government to witch-hunt political enemies by manipulating police and the courts. By definition, this scheme would have to have come undone as soon as the AL lost government. However, according to the Applicant, in vague and illogical evidence, he is still in danger of going to jail even though the government knows of the AL’s past methods of disarming political foes…
The Applicant gave vague, illogical and outlandish evidence as to how he became aware of so-called charges against him. He also claimed, quite implausibly, that he remained at large for two years after a warrant for his arrest was issued in 1997, and yet he claims to have lived at the same address all that time.” [CB 157]
In its findings and reasons at [CB 158] the Tribunal says:
“In the applicant’s evidence, the same source was responsible for the manipulation of judicial means of neutralising him and for taking extrajudicial action to wipe him out. The problem for the Tribunal is not just that the AL was unsuccessful on both grounds but that it hatched two such different kinds of effort to get rid of him in the first place, and still failed to get anywhere, notwithstanding the power he claims the AL had at its disposal. Adding this concern to the one about the police all over Bangladesh still working for the opposition today the Tribunal dismisses the Applicant’s claims as ill-formulated ambits.
The Tribunal dismisses as products of self-serving fabrication all the letters and documents purporting to support the Applicant’s claims about being hunted by the authorities.”
The applicant argues that the Tribunal decision:
(a)was affected by actual bias
(b)was a failure to exercise jurisdiction
(c)was a failure by the Tribunal to review the decision
(d)was a failure by the Tribunal to comply with its obligations under s.430 of the Migration Act 1958 such that it can be said that there is jurisdictional error.
The applicant argued that the decision does not indicate that the Tribunal has considered the claims and evidence but that it has just made conclusions about the generality of things said by the applicant and used them to make findings. He argues that the Tribunal should have set out the evidence which the applicant put forward to establish his claim of a well-founded fear of persecution for a Convention reason and compared that evidence with the country information available to it and indicated which evidence it preferred and why. He argues that a Tribunal cannot exercise its jurisdiction to review the delegate’s decision and the applicant’s claims unless it considers them. The reasons for decision indicate that the Tribunal has just dismissed the claims and everything which the applicant said without indicating what the claims were or what he did say.
The applicant accepted that failure to comply with s.430 is not itself a jurisdictional error but it is important in what it discloses. In this case it discloses that the Tribunal did not perform its task at all or if it did it was clear that it performed it with a closed mind.
Whilst the question of bona fides has recently been considered in a number of cases the propositions which emerge from them are expressed succinctly in SBBS v Minister for Immigration [2002] FCAFC 361 at [43-48]:
“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. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial; see SBAU at [27] citing SBAP v Refugee Review Tribunal [2002] FCA 590 per Heerey J at [49] and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 805 per Hely J at [25].
44 The fifth proposition is that the circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review; SBAU at [28] citing SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 per Mansfield J at [35] and SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J.
45 Sixth, mere error or irrationality does not of itself demonstrate lack of good faith; SBAU at [29]. Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism; see NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24] per Allsop J quoted with approval in NAAV at [107] by Black CJ.
46 Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness; SBAU at [31].
47 Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task; SBAU at [32].
48 Ninth, it is not necessary to demonstrate that the decision-maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power; SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1377 ("SCAZ").”
The nature of the comments revealed in the instant case could fall within any of the three quotations set out below:
In SDAA v Minister for Immigration [2002] FMCA 184 I said:
“…the strong language used by the RRT , although indicative of a lack of sympathy, could not itself constitute a lack of bona fides.”
In H v Minister for Immigration (2000) 63 ALD 43 Hely J said at [12]:
“It is probably a fair comment to say that the transcript reveals that the presiding member exhibited a degree of scepticism and impatience with the story which was being told to him. At some points in the transcript, the presiding member indicated that he did not find what was being put to him by the applicant in the least bit convincing and he believed that the applicant was lying….
It would have been better if some of the statements made by the member had been left unsaid. But I am not satisfied that the member came to the hearing with his mind made up such that he was not open to persuasion.”
And in Minister for Immigration v SBAN [2002] FCAFC 431 at [8] Heerey and Kiefel JJ said:
“Illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith. Such defects can be equally applicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker’s duty.”
It is very difficult to establish a closed mind from the face of the record. In the few cases where there has been such a finding, additional evidence in the form of the transcript or tape of the interview has been utilised. In this case the applicant accepted that nothing in the transcript would add to his claims. The real complaint about the remarks made by the Tribunal is not so much their phraseology but the fact that the reader of the decision is given little help in understanding what it was that was said by the applicant that elicited those remarks or criticisms. This is done sometimes, but not with the thoroughness or precision that one has come to expect from decisions of this Tribunal. For example the dismissal of the documentary evidence in one line as products of self serving fabrication is not even supported by the evidence usually provided that in Bangladesh such documents are easily obtainable. However, I would be reluctant to say that either this or any of the other remarks taken singly or cumulatively indicate that degree of personal fault on the part of the decision-maker that the cases indicate is necessary.
I am equally not satisfied that the Tribunal has made a jurisdictional error by failing to review the decision of the delegate. In order to do that the Tribunal must consider the claims made by the applicant to hold his fear of persecution and determine whether that fear, if it exists at all, is well founded and for a Convention reason. If the Tribunal asks itself the wrong question in relation to its examination of the case, for example by asking whether the applicant was or was not a member of one particular social group when the applicant claimed to be a member of another, (see Dranichnikov v Minister for Immigration [2003] HCA 26) then it will have committed a jurisdictional error. It will have committed a jurisdictional error if it does not consider a claim at all.

I do not think this is what happened here.
The Tribunal’s decision makes it clear that it understood what the applicant’s claim was. It is also clear that the Tribunal understood the constituents of a well-founded fear. The Tribunal accepted that the applicant was making a claim on the basis of the Convention reason of political opinion. The Tribunal clearly indicated who the applicant said he feared and the evidence which he gave to indicate that the persecution he had already suffered was serious.
The applicant does not allege that the Tribunal failed to take into consideration anything which he gave evidence to the Tribunal about. He argues that the Tribunal came to conclusions about his evidence which are unjustified on the face of the document because the evidence is not discussed.
In Minister for Immigration v Anthonypillai [2001] FCA 274 the Full Bench at [79] sought to indicate the type of error which would constitute a failure to review. It said:
“It is often dangerous to seek to elucidate a principle by the use of examples, particularly when they are far removed from the facts before the Court. However, were the Tribunal to misconceive the nature of its statutory obligation, as for example by mistakenly believing that it was engaged in appellate review of the Minister's decision (rather than a rehearing de novo), it would be difficult to avoid the conclusion that it had failed to "review" the decision, in accordance with the requirements of the Act. Similarly, were the Tribunal to address the wrong question, rather than the question properly before it, there would be a constructive failure to exercise jurisdiction. Again, speaking hypothetically, were the Tribunal merely to pay lip service to its task, as for example by determining an application without reading the material filed before it, it would be difficult to conclude that it had "considered" the application.”
I am satisfied that in this case the Tribunal did consider the application. I am also satisfied that it did consider the evidence and it did indicate the reasons for its findings in those areas of particular importance.

It did indicate why it was sceptical of the applicant’s claim that he was a leader of JI [CB 158]. In the end this is the crucial finding. If the applicant was not as an important member of JI as he said he was then he is unlikely to have been targeted by the Awami League. If he was not being targeted by the Awami League he had no genuine fear of persecution. The Tribunal also noted that the Awami League was no longer in power in Bangladesh and this too would lessen the prospects of the applicant being persecuted if he returned to his country. These are the important matters. They form the basis of the decision. The fact that the Tribunal did not deal as well as it had probably done in previous cases and its colleagues do in most cases is regrettable, but not, in the end, determinative. All litigants like to know why they have not been able to convince the Court or Tribunal of their case. No litigant wishes to have evidence dismissed out of hand without comment. These things might constitute valid grounds for appeal if the proceedings were judicial. But they are not.
For these reasons I am unable to find ground for review under s.39B of the Judiciary Act 1903. To the extent that the Tribunal may have committed any errors in the manner in which it came to or articulated its decision they are errors within jurisdiction and are therefore covered by s.474 of the Migration Act. I dismiss the application and I order that the applicant pay the respondent’s costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 11 September 2003