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

[2002] FCA 1452

FEDERAL COURT OF AUSTRALIA

NAJP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1452

NAJP OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1058 OF 2002

SACKVILLE J
SYDNEY
25 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1058 OF 2002

ON APPEAL FROM A MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAJP of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	25 NOVEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be 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 1058 OF 2002

ON APPEAL FROM A MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NAJP of 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	25 NOVEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate.  On 19 September 2002, Driver FM dismissed an application brought by the appellant to review a decision of the Refugee Review Tribunal (“RRT”) handed down on or about 2 May 2002.  The RRT affirmed a decision of a delegate of the respondent (“the Minister”), made on 16 November 1999, not to grant the appellant a protection visa. 

2. The appellant arrived in Australia on 9 October 1990 on a temporary visa valid for three weeks.  He applied for that protection visa on 2 August 1999 (his initial application for a protection visa, made in January 1994, was subsequently withdrawn).  The application to review the delegate’s decision was filed in the RRT on 27 November 1999.  The RRT therefore took nearly two and a half years to dispose of the application for review of the delegate’s decision. 

3. The application for judicial review of the RRT’s decision was initially filed by the appellant in this Court on 27 May 2002, but was transferred to the Federal Magistrates Court by order of Stone J on 15 July 2002. The Magistrates Court was thus exercising the jurisdiction conferred on that Court by s 483A of the Migration Act 1958 (Cth) (“Migration Act”) which confers on the Magistrates Court the same jurisdiction as the Federal Court has in relation to a matter arising under the Migration Act. The Federal Court’s jurisdiction includes that conferred by s 39B(1) of the Judiciary Act 1903 (Cth).

4. The appeal to this Court is brought pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”). The Chief Justice has made a direction pursuant to s 25(1A) of the Federal Court Act that it is appropriate for a single Judge to exercise the appellate jurisdiction of the Court in respect of the appeal.

   BACKGROUND

5. The appellant is a citizen of Bangladesh born on 13 January 1966.  In a written statement that was before the RRT, he claimed to have completed both secondary school and a commerce degree at a Government college.  The RRT also noted that, prior to leaving Bangladesh in 1990, the appellant had worked as a photographer and a cook.

6. The appellant’s principal claim before the RRT was that he had a well-founded fear of persecution in Bangladesh by reason of his political opinions.  These political opinions were said to be attributed to him by reason of his long association with, and leadership role within, Bangladesh’s Jatiya Party.  In support of this claim, the appellant provided the RRT with correspondence between himself and certain Jatiya Party leaders.

7. According to the RRT, the Jatiya Party is one of Bangladesh’s larger political parties.  It formed government in Bangladesh during the late 1980s under the leadership of General Ershad.  More recently, the Jatiya Party’s primary political rivals in Bangladesh have been the BNP (which formed the current government) and the Awami League.  The appellant claimed that his membership of the Jatiya Party commenced when he was in secondary school and continued even after his arrival in Australia.

8. The appellant’s ostensible role with the Jatiya Party was as a photographer.  In that capacity he was required to photograph party functions.  However, the appellant claimed that, apart from his official duties, he was required to take pictures of events being held by the Jatiya Party’s political opponents.  Furthermore, in his capacity as a Jatiya Party leader, he claimed to be involved in the recruitment of members from other political parties.  These activities were said to support his claim to have achieved some notoriety as an active member of the Jatiya Party in Bangladesh.

9. The appellant claimed before the RRT that his reputation as an active member of the Jatiya Party meant that he would be exposed to persecution if compelled to return to Bangladesh.  He referred the RRT to certain newspaper and periodical articles which were said to support a finding that former Jatiya Party members were routinely persecuted by its political opponents.  Such persecution was claimed to consist of wrongful imprisonment and fabricated charges.  Additionally, the appellant relied on oral evidence given by his nephew to the RRT concerning a trip the latter made to Bangladesh in April 1998.  According to the nephew, a group of 20 or 30 armed men came to the place where he was staying and made clear their threats to kill the appellant if he returned to Bangladesh.

   THE RRT’S FINDINGS AND REASONS

10. The RRT rejected the factual basis for the appellant’s claim to fear political persecution in Bangladesh.  It stated its findings follows:

    “I did not find [the appellant] to be a credible witness.  He claims that he fled Bangladesh because he feared persecution because of his political opinion.  However, he failed to apply for a protection visa until 3 years after arriving in Australian and then withdraw [sic] his application before it was finalised.  I consider these actions a very strong indications that he did not have a genuine fear of persecution in Bangladesh at that time.  Furthermore, as he agreed at the hearing, the political party to which he claims to have belonged was in power at the time he left the country.  This casts further doubt on the claim that he fled to avoid persecution for reasons of political opinion.  And the letters which he provided to support his claim that he belonged to the Jatiya Party contain information which is at odds with the information which he himself provided, which indicates that they are not genuine documents.  After considering all of the relevant evidence, I am not satisfied that [the appellant] was an active member of the Jatiya Party in Bangladesh, nor that he fled Bangladesh because he feared persecution as a result of his membership of the party.”

11. The RRT went on to note an alternative finding, which it expressed as follows:

    “even if I accept [the appellant’s claims] regarding his membership of the Jatiya Party in Bangladesh and later in Australia, I do not accept that this places him at risk of serious harm amounting to persecution if he returns to Bangladesh.  There is nothing in the evidence before me which suggests that members of the Jatiya Party generally have been at risk of serious harm in Bangladesh because of their merely because of their peaceful and legitimate involvement with the party at any time since 1990.  In these circumstances, I do not accept that 30 armed men made threats against him in 1998 when his nephew was visiting the country.”

    THE APPLICATION FOR JUDICIAL REVIEW

12. The application for judicial review occupied two hearing days, on 5 and 19 September 2002.  Although the appellant’s request for an adjournment on the first day was refused, in the light of his oral submissions the matter was stood over for two weeks to enable a second day to be set aside for the case.  Driver FM delivered an ex tempore judgment at the conclusion of the second day of the hearing.  The reasons for judgment were subsequently published on 9 October 2002.

13. Driver FM identified the grounds of review of the RRT’s decision, which emerged from the application and supporting documentation, as follows:

    “(1) the RRT did not consider the [appellant] as a refugee despite many evidentiary proofs;
    (2) the procedures that were required to be observed under the Migration Act in connection with the making of the decision were not observed;
    (3) the RRT ignored the merits of the claim and it did not take into consideration material from the Bangladesh country report;
    (4) The RRT did not act in good faith as regard to the [appellant]'s claims;
    (5) the RRT misjudged the fate of the [appellant]'s claim;
    (6) the RRT made a number of errors to decide the fate of the [appellant]'s claim noting that the [appellant] is not and was not represented by a solicitor;
    (7) the RRT ignored relevant evidence and made its finding in the face of contradicting independent evidence which indicates actual bias constituting jurisdictional error and being a breach of procedural fairness.”

14. It appears that the appellant also raised a number of other grounds of review in oral submissions to Driver FM.  These seem largely to have amounted to criticisms of the factual findings made by the RRT, particularly in relation to the position of the Jatiya Party members in Bangladesh in 2001 and 2002.  However, the appellant also apparently asserted that:

    ·     the RRT did not have available to it the documents supporting the appellant’s initial claim for a protection visa;

    ·     the interpreter provided for the hearing before the RRT “asked him misleading questions and misunderstood answers”; and

    ·     the sound recording of the hearing before the RRT had been interfered with so that information which the appellant considered important to his claims was deleted.

15. Driver FM assessed all claims made by the appellant by reference to the decision of this Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. He set out the following seven grounds of review that were stated by French J (at [535]) in NAAV v Minister to be available to an applicant seeking to review a privative clause decision:

    “(1) the decision exceeds the constitutional limits upon legislative power imposed by the Commonwealth Constitution;
    (2) the decision was not made in good faith;
    (3) the decision was not reasonably capable of reference to the power under which it was made;
    (4) the decision was not made by reference to the subject matter, scope and objects of the Migration Act;
    (5) the decision was made in breach of an express statutory limit or condition upon a power which, as a matter of construction, notwithstanding s.474, must be observed for the effective exercise of the power;
    (6) the decision is made in breach of a limit or condition on a power which, notwithstanding s.474, is implied from the statute or imposed by the common law, and which must be observed for the effective exercise of the power; and
    (7) the decision was made in breach of the requirements of procedural fairness (also known as natural justice) when the circumstances are such that, notwithstanding s.474, procedural fairness is a necessary condition for the valid making of the decision.”

16. Driver FM considered that in view of the reasoning of the majority in NAAV v Minister, grounds (1)-(5) identified by French J were available notwithstanding s 474(1) of the Migration Act, although the extent to which ground (5) was available depended upon the analysis of Black CJ, who formed one member of the majority. Driver FM thought that ground (6) was to be treated with “some caution”, while ground (7) had clearly been rejected by the majority. He went on to say that not every legal error would amount to a breach of an express limit or condition on a power, although he did not find it necessary to identify precisely the kind of legal error that would suffice. He did suggest, however, that a “significant legal error” on the face of the RRT decision might vitiate the decision notwithstanding s 474(1) of the Migration Act.

17. The Magistrate considered that the RRT had not fallen into any “significant legal error”.  He said this:

    “23. The application for a protection visa, which was the subject of the proceedings before the RRT, was made some nine years after the [appellant] arrived in Australia. That fact, of itself, apparently raised some scepticism in the mind of the presiding member. It is apparent from the finding and reasons of the RRT, at pages 6 and 7 (court book, pp. 69-70), that the claims made by the [appellant] were not believed by the presiding member. The presiding member did not accept that the [appellant] had been the victim of persecution in Bangladesh and found that he was not at risk of persecution should he return to Bangladesh.

    24. The presiding member specifically rejected evidence provided by the [appellant]'s nephew concerning alleged threats to kill the [appellant] which the nephew had allegedly overheard when visiting Bangladesh in 1998. The presiding member also found that certain documents presented by the [appellant] in support of his claims were not genuine. I see nothing sinister in the adverse conclusions drawn by the presiding member about the credibility of the [appellant], his documents and the evidence of his nephew. It is both appropriate and necessary for the RRT to make findings on issues of credit. The RRT does not have to uncritically accept allegations made to it.

    25. The presiding member did not have before her the documents relating to the original protection visa application made by the [appellant], although the [appellant] was able to provide some material. I do not think that anything turns on that because the documents which were necessary for the RRT to have before it were the documents which related to the current protection visa application.

    26. I find that on the material put before the RRT the presiding member was entitled to draw adverse conclusions. The decision and reasons of the RRT do not contain anything suggestive of bias or otherwise indicating a lack of good faith. Neither do the decision and reasons contain anything indicating on their face that the presiding member fell into any significant legal error in arriving at the degree of satisfaction necessary to support a refusal of the protection visa sought by the [appellant].

    …

    33. There is nothing else in the matters put before me by the [appellant] that would lead me to interfere with the decision of the RRT in the face of the privative clause. The findings made by the RRT concerning the political situation in Bangladesh were reasonably open to it. The RRT was entitled, on the material before it, to reject the assertions made by the [appellant] concerning the alleged persecution of him and his family. The presiding member correctly applied the Refugee Convention as modified by the Migration Act. The RRT, in coming to its decision, did not breach any essential requirement of the Migration Act. The RRT acted in good faith. The decision of the RRT was a bona fide attempt at exercising the powers conferred on it.”

18. Driver FM also rejected the appellant’s oral submissions that the hearing before the RRT was tainted by difficulties with the interpreter and that important parts of the sound recording had been deleted.  He said this:

    “29. I also reject the [appellant]'s contention that he was unable to present his case effectively to the RRT because of interpretation difficulties. It appears to me from that recording that the interpreter provided was interpreting effectively. However, I also note that relatively early in the proceedings before the RRT the [appellant] requested permission to present his arguments in English. For a significant portion of the proceedings before the RRT the [appellant] appeared to present his submissions to the RRT and answer questions put by the RRT clearly and effectively in English.

    30. I formed the view from that that the [appellant] has a good command of the English language. He did revert to reliance upon the Bengali interpreter during the latter part of the proceedings before the RRT when complex and possibly difficult questions were put to him by the presiding member. It is noteworthy that by that stage the presiding member had indicated scepticism about the truthfulness of the matters alleged by the [appellant].

    31. There is nothing in the sound recording of the proceedings before the RRT that indicates to me that the presiding member was biased. The presiding member chose to conduct the proceedings informally but there was nothing wrong in that. The RRT is not a court and it is appropriate that proceedings be conducted informally. It is apparent from the sound recording that the presiding member became sceptical about the [appellant]'s claims at a relatively early stage of the proceedings. She made that scepticism clear to the [appellant] and invited him to put material before her to overcome that scepticism. In order to establish actual bias the [appellant] must satisfy me that the presiding member displayed some animosity to him or dealt with the proceedings with a closed mind.”

19. Driver FM accordingly dismissed the application for judicial review.

    THE APPEAL

20. The notice of appeal filed in this Court does not specify any ground upon which it is said that Driver FM may have erred in law.  It states that submissions in support of the appeal will be provided shortly. 

21. At a directions hearing held on 30 October 2002, the appellant was directed to file and serve written submissions in support of the appeal by 18 November 2002.  The appellant did not file any written submissions in accordance with the directions, or indeed at all.

22. When the appeal was called on for hearing, the appellant requested an adjournment.  I declined to grant an adjournment, for reasons that I have given in a separate judgment.  The appellant thereupon declined my invitation to make submissions in support of his appeal.  He maintained this approach, notwithstanding that I advised him that, in the absence of any grounds of appeal or arguments in support of the appeal, it was very unlikely that the appeal could succeed.

23. The position, therefore, is that the appellant has not identified any grounds of appeal, nor put any submissions in support of his appeal.

24. In these circumstances, it is enough for me to say that I can discern no error in the approach taken by Driver FM. It may be that, as Mr Markus, who appeared on behalf of the Minister, observed, that the learned Magistrate’s approach to the construction of s 474(1) of the Migration Act is somewhat generous to the appellant.  Nothing turns on this, as there is no basis for concluding that Driver FM erred in holding that the RRT had not made “any significant legal error” in affirming the delegate’s refusal to grant a protection visa.

25. In essence, the appellant failed before the RRT because the substance of his factual account was not accepted. Driver FM held that there was no ground for impugning the RRT’s decision, even independently of the protective operation of s 474(1) of the Migration Act.  Nothing has been put on the appeal, nor does anything appear from the judgment, to suggest that the learned Magistrate erred.

26. The appeal must be dismissed.  The appellant must pay the Minister’s costs.

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

Associate:       

Dated:            25 November 2002

The appellant was self represented.

Solicitor for the Respondent:	Mr A Markus appeared for the Australian Government Solicitor
Date of Hearing:	25 November 2002
Date of Judgment:	25 November 2002