NAMW & Ors v Minister for Immigration
[2004] FMCA 36
•5 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAMW & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 36 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming political persecution in Bangladesh – procedural fairness – the RRT breached s.424A of the Migration Act and the general law by failing to disclose adverse country information to the principal applicant – the RRT constructively failed to exercise its jurisdiction by failing to consider whether the principal applicant would be detained pending the hearing of a false charge and if so, whether that detention constituted persecution. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 475, 477
Baig v Minister for Immigration [2002] FCA 380
Kioa v West (1985) 159 CLR 550
NARV v Minister for Immigration (2003) 203 ALR 494
VEAJ v Minister for Immigration [2003] FCA 678
| First Applicant: Second Applicant: | NAMW NAMX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1230 of 2003 |
| Delivered on: | 5 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 29 January 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicants appeared in person
| Counsel for the Respondent: | Miss R M Henderson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Court declares that the decisions of the Refugee Review Tribunal made on 30 November 2001 and handed down on 20 December 2001 in relation to each of the applicants are invalid and of no effect.
A writ of certiorari issue, quashing the decisions of the Refugee Review Tribunal.
A writ of mandamus issue, requiring the Refugee Review Tribunal to redetermine the matter according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ1230 of 2003
| NAMW, NAMX, NAMY |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 30 November 2001 and handed down on 20 December 2001. That decision related to applicants NAMW and NAMX. A separate RRT decision was made on 30 November 2001 and handed down 20 December 2001 in relation to applicant NAMY. Applicants NAMW and NAMX are a husband and wife from Bangladesh and NAMY is their child. The separate decision in respect of applicant NAMY is entirely dependent upon the findings in the principal decision concerning applicant NAMW and NAMX. Indeed, all relevant claims were made by the applicant husband NAMW and the other two applicants made their claims through him. Applicant NAMY has taken no part in these proceedings, which have dealt with the RRT decision in relation to the claims of applicant NAMW. No litigation guardian has been appointed for applicant NAMY but, in the circumstances of this matter, I have decided that such an appointment is unnecessary.
The background facts and circumstances relating to this matter are accurately set out in paragraphs 1 through to 9 of written submissions filed by the respondent Minister on 29 January 2004. I adopt those paragraphs for the purposes of this judgment:
Applicants NAMW and NAMX are a married couple, Bangladeshi citizens (court book, page 15), who entered Australia on visitors' visas on 15 August 1999 (court book, pages 31 and 35). Applicant NAMY is their son, who was born in Australia on 4 December 1999 (court book, page 88).
On 27 September 1999 applicants NAMW and NAMX lodged applications for protection visas (court book, pages 14 and 26). NAMW included with his application a statement in which he described the party political activities of his family and himself in Bangladesh, and the consequences of those activities (court book, page 36).
A separate application for a protection visa in respect of NAMY, the child of NAMW and NAMX, was lodged on 28 April 2000 (court book, page 64).
In their applications for protection visas, neither NAMX nor NAMY have made any claims additional to or separate from those made by applicant NAMW.
On 26 October 1999 a delegate of the Minister refused the applications by NAMW and NAMX (court book, page 44). NAMY's application was refused by a delegate of the Minister on 9 January 2001 (court book, page 91).
On 12 November 1999 NAMW and NAMX lodged an application for review in the Refugee Review Tribunal (court book, page 52). An RRT application for NAMY was lodged on 6 February 2001 (court book, page 98).
On 20 December 2001 the RRT handed down a decision affirming the delegate's decision in respect of NAMW and NAMX (court book, page 122), together with a separate decision in respect of NAMY affirming the delegate's decision in his case (court book, page 135).
The RRT’s Reasons for Decision (court book, page 122) include the following findings regarding applicant NAMW:
·NAMW's parents and members of his family were killed in the course of the 1971 war of independence in Bangladesh (court book, page 127.5);
·NAMW has a tertiary education, has been employed, holds "much property", has had an active political career and has enjoyed freedom of travel, and therefore "does not present as one who has suffered significant hardship or discrimination" (court book, page 127.7);
·Although NAMW was joint secretary of a village branch of the Bangladesh National Party ("BNP"), in the RRT’s view, he was not "regarded as being a significant political player" by virtue of that role (court book, page 128.1);
·NAMW was beaten up by thugs belonging to the Awami League, but this amounted to "being attacked or hurt in melees once or twice in a sporadic manner", and not to being the target of sustained violence by political enemies. The RRT concluded in relation to this aspect of the matter that NAMW had "fabricated claims to exaggerate the harm that he might have suffered" (court book, pages 128.3 - 128.7)
·NAMW would not be denied protection in relation to his party political activities in Bangladesh, particularly because the BNP, his party, has been in power since October 2001 (court book, page 128.8) and the party has taken a firm line against attempts to instigate political violence (court book, pages 129.3 - 129.8);
·NAMW's claim that he has had a false charge laid against him by political opponents was doubtful, but even if it were true, legal remedies are available to NAMW to deal with that charge (court book, pages 130.5 - 131.7).
On 2 April 2003 the three applicants lodged an application under the s.39B of the Judiciary Act 1903 (Cth) and s.475 of the Migration Act 1958 (Cth) (“the Migration Act”).
The matter proceeded on the basis of the application filed on 2 April 2003. The respondent filed a notice of objection to competency on 19 December 2003, in reliance upon s.477 of the Migration Act. The application was not filed within the time prescribed in that section for the filing of applications. At the hearing on 29 January 2004, however, it was agreed that the question of non compliance with the time limit should be determined by reference to whether the decision under review is a privative clause decision. The resolution of that issue required a hearing of the application. In the circumstances, the notice of objection to competency was not pressed.
The applicants had filed a document on 7 January 2004 headed “Applicants’ Argument for Competency”. The submissions in that document go to the substance of the application for review. Accordingly, I agreed to treat the document as written submissions in support of the application generally. Supplementary written submissions by the Minister were filed in court on 29 January 2004 in response to those written submissions by the applicants.
The application asserts jurisdictional error on six grounds but no particulars are provided. An additional four grounds are set out on the second page of the application. Again, no particulars are provided. The written submissions filed by the applicants are not helpful as they appear to have been prepared by someone with an inadequate knowledge of the relevant legal issues. The submissions refer to sections of the Migration Act which are either not relevant or have been repealed. I gave the opportunity to the applicants at the hearing to make oral submissions in support of their application, but they were unable to expand upon their written submissions in any coherent way. I accept generally the respondent’s submissions and supplementary submissions in relation to the application and the applicants’ written submissions. However, noting that the applicants are not legally trained or legally represented and that they had asserted procedural unfairness and breach of statutory procedures by the RRT, at the hearing I identified two issues upon which I would hear argument. The first of those is whether the RRT breached s.424A(1) of the Migration Act in failing to disclose to the applicants country information identified on page 128 of the court book which formed part of the reasons for decision of the RRT. I agreed to consider whether alternatively, that non disclosure constitutes a breach of procedural fairness under the general law. The second issue is whether the RRT constructively failed to exercise its jurisdiction in respect of its obligation to consider the applicant husband’s claim that he would be persecuted in Bangladesh by reason of being subjected to a false charge. I gave the applicants and the respondent time to file and serve written submissions on these two issues.
Further submissions
The applicants filed written submissions on 11 February 2004. These were unhelpful. The submissions are a collection of asserted facts that may be of some help in resolving the applicants’ claims to protection visas but they are not of assistance to me in resolving the legal issues that I identified at the hearing. Whoever wrote the submissions did not understand those issues. The submissions allege bad faith (which is in this case nonsense) and persist in referring to the now repealed s.476 of the Migration Act. The submissions also assert a breach of natural justice (procedural fairness) but not in relation to the issue that I identified at the hearing. The issue that is raised in the submissions is simply an issue of merits review.
The respondent submits as follows:
At the hearing of this matter on 29 January 2003 leave was given to both parties to file and serve additional submissions on two matters:
Whether the RRT’s decision is affected by jurisdictional error having regard either to s.424A or common law procedural fairness;
Whether the RRT fulfilled its jurisdictional obligation to consider completely the claims of persecution made in respect of false charges.
Section 424A(1), procedural fairness
The RRT in the present case accepted the applicant's claims that he joined the BNP and prior to his departure from Bangladesh was joint secretary of his local village branch. It also accepted that he "might have been beaten up by thugs belonging to the AL" (court book, page 128.2).
The RRT next cited "country information" which indicated that political violence is mainly experienced by activists who take part in "mafia-like, criminal vendetta-type activities" (court book, page 128.3). That consideration involved the use of information that is "just about a class of persons" within the terms of s.424A(3).
The RRT then evaluated the applicant personally, and concluded that he "presents as a sober gentleman and I am not satisfied that he would have been active in those wings of his party which are bent on violence and thus interact with rival parties on a physical rather than cerebral level." (court book, page 128).
The reasoning of the RRT in this case is clearly distinguishable from that in NARV[1], where country information regarding the prevalence of fraudulent documentation was used, without any disclosure to the applicant, as a basis for determining that his particular documentation was fraudulent. In this matter, the RRT relied solely on its own judgment of the applicant's demeanour when it determined that he was not a person who would engage in "Mafia-like, criminal vendetta-type activities" and therefore be exposed to the violent consequences of such activity.
Thus, whether one considers the RRT’s reasoning from the viewpoint of either the RRT’s obligations under s.424A, or - if, in this case, s.424A is not an exhaustive statement of the natural justice obligations which arise in relation to country material - the common law concepts of procedural fairness, it is evident that the RRT’s conclusion regarding the applicant's likely conduct and likely risk of harm was not affected by a jurisdictional error arising out of a denial of procedural fairness.
Further, it must be noted that the RRT gave primacy to the issue of the availability of protection against any harm which the applicant might encounter. It determined at court book, page 128.8 that the applicant would not be denied protection.
In the course of submissions during the hearing of this matter on 29 January 2004 reference was made to the possibility that the RRT imposed on the applicant a requirement that he refrain from certain overt types of political activity in order to avoid harm. The respondent has endeavoured to obtain transcript of the RRT proceedings in order to bring before the Court full details of the applicant's evidence before the RRT. It emerged, unfortunately, that the tape of the RRT proceedings in the respondent's custody is defective. Nonetheless, the respondent submits that the applicant's statement at court book, page 36, particularly at page 37, indicates that the applicant's actual political role is as a branch secretary of a village BNP branch, a role consistent with the RRT’s evaluation of his probity. The applicant made no claim that he had been required to refrain from engaging in his chosen form of political activity in order to avoid harm, and the RRT imposed no requirement on him that he do so.
False charges
The RRT in this matter expressed doubts about the applicant's claim that false charges had been laid against him (court book, page 130.4). However, the RRT proceeded to consider whether protection was available to the applicant against such charges. After citing relevant country material the RRT determined that the applicant can rely on the courts and the authorities in regard to such charges (court book, page 131.7).
The further submissions lodged by the applicant assert that the measures adopted by the Bangladeshi government to afford protection to persons against whom false charges are laid are ineffective because the lower courts are, he claims, heavily influenced by the ruling political party leaders. (It should be noted that the ruling party is the applicant's own party, the BNP). The Tribunal in the present case took that matter into account. It noted, after consideration of the country material, that "on occasion" judges of lower courts could be corrupt or vulnerable to executive pressure - however, it expressly held that there is a significant degree of independence in the higher levels of the judiciary and that the applicant is a person who can rely on the courts. The RRT did not fail to give full consideration this aspect of the applicant's claims.
[1] NARV v Minister for Immigration (2003) 203 ALR 494
Reasoning
The country information
On page 7 of his reasons (court book, page 128) the presiding member states:
I am prepared to accept that the applicant might have been beaten up by thugs belonging to the AL since political violence, like all violence in Dhaka, is of a high level. However, such violence, according to DFAT and American authorities, is mainly experienced by those activists who take part in the mafia-like, criminal vendetta-type activities indulged in by many in the student and youth wings of the political parties, or by those who take part in confrontational actions such as national strikes and major rallies which are prone to violence no matter which party is holding them and which the party in government at the time (Bangladesh: Profile of Asylum Claims and Country Conditions, Part II B, Student and Political Violence, pub’d by United States Bureau of Democracy, Human Rights and Labor, February 1998, CX31417, DFAT CIS Country Information Report No 497/96 of 7/6/98, CX17304; DFAT cable BGD14088 of 1/5/2000, CX41587). The applicant presents as a sober gentleman and I am not satisfied that he would have been active in those wings of his party which are bent on violence and which thus interact with rival parties on a physical rather than cerebral level. Thus I am prepared to accept that he might have been attacked or hurt in melees once or twice in a sporadic manner, but I am not satisfied that he was the targeted [sic] of sustained violence by political enemies. I am of the opinion that he has fabricated claims to exaggerate the harm that he might have suffered. I find that the applicant would be able to engage in the normal expression of his political opinion by avoiding the thuggish side of politics.
It is apparent from the above quotation that the country information was used by the presiding member to reach an adverse conclusion on the credibility of the applicant husband’s claims. The material was clearly adverse to his claims and, prima facie, should have been disclosed to him: Kioa v West (1985) 159 CLR 550 at 629 per Brennan J. There is no evidence that the information was disclosed to the applicants prior to the RRT decision and I infer that it was not.
I find that both under the general law and under s.424A(1) of the Migration Act the information should have been disclosed so that the applicant husband could comment upon it. That follows from the purpose for which the information was used: Baig v Minister for Immigration [2002] FCA 380 at [33]. In my view, s.424A(3)(a) does not assist the Minister: VEAJ of 2002 v Minister for Immigration [2003] FCA 678 at [37]-[39]. This was not information about a class of persons including the applicant. It was not information about any individual in particular. It was information about a class of persons that may or may not have included the applicant. The information was used by the presiding member to reach a conclusion that the applicant husband did not belong to the class of persons to whom the information related. In my view, information used for that purpose falls outside the exclusion in s.424A(3)(a).
The opportunity lost by the applicants was a real one. Their written submissions, while not well directed to the legal issues before me, show that they could have made relevant submissions to the RRT on the issue of political violence in Bangladesh in response to the country information.
Ms Henderson submits that even if the general law or s.424A(1) were breached it does not matter because the presiding member went on to determine that the applicant husband could avail himself of effective State protection even if he was the subject of political violence.
I reject that submission. Immediately after the discussion of the country information the presiding member said this (court book, page 128):
It might be that even if he engaged peacefully in politics and avoid[ed] rough elements, he might be harmed in sporadic and indiscriminate violent actions as Bangladeshi politics is played robustly. What is important here is whether he would be denied protection from such harm.
The presiding member went on to consider whether protection would be available and found that it would. It is clear to me that the harm to which the presiding member was referring was not serious and systematic harm that would constitute persecution under the Convention but sporadic and indiscriminate violent harm to which anybody could be subject. It follows that the presiding member did not consider the availability of State protection in relation to the more serious harm to which he had previously found the applicant was not at risk of suffering.
I find that the decision of the RRT is infected by jurisdictional error in that the RRT breached its procedural fairness obligations under the general law and breached s.424A(1) of the Act in failing to disclose to the applicant husband the country information at issue. It is not strictly necessary to consider the remaining question of whether the RRT constructively failed to exercise its jurisdiction in relation to the claim of persecution by reason of being subject to a false charge. However, given the possibility that I may be wrong in relation to the procedural fairness issue I will do so.
The presiding member expressed some doubts about the genuineness of this claim (court book, page 130) but proceeded to consider it as if it were a genuine claim. The presiding member found that the laying of false charges is a common political tactic in Bangladesh and that the Bangladeshi authorities are well aware of the problem and are determined to stop it. The presiding member referred to country information to the effect that several thousand detainees have been released from detention, apparently on false charges, however, some 1,000 persons remained in detention as at September 1996. Several thousand more persons were released from detention in 1997.
A parliamentary committee report in January 2001 found that 99 per cent of the 69,010 people arrested by governments of the day since 1974 on false charges under the Special Powers Act had been released because the grounds for detention had been judged by the courts to be weak and vague: court book, page 131. The presiding member concluded that even if the applicant husband was the subject of a false charge he could rely on the courts and the authorities to deal properly with such a false charge. The presiding member concluded that the applicant husband could have such a charge dismissed and further, the applicant husband could take action under the Public Safety Act of Bangladesh against those instituting false charges against him.
However, the presiding member did not consider whether the applicant would be detained pending any court hearing of the charge against him or any appeal against a conviction and the presiding member did not consider the conditions under which detainees are kept in Bangladesh. It is, in my view, extraordinary that huge numbers of persons in Bangladesh have been the subject of false charges by successive governments and apparently detained pending the resolution of those charges. I would have thought that the false imprisonment of a person on trumped up political charges, particularly if the conditions of detention are poor, could constitute persecution regardless of the ultimate fate of those charges or of the fate of the persons who instigated them. There was no consideration of that issue by the presiding member. There should have been. I find that the failure of the presiding member to consider that issue constituted a constructive failure to exercise the jurisdiction conferred on the RRT. For this reason also, the decision is infected by jurisdictional error.
As the decision of the RRT is not a privative clause decision, the prescribed time limit on applications in s.477 of the Migration Act does not apply. The respondent’s objection to the competency of the applicant was, in any event, not pressed. No other objection to the application was made on the basis of delay. In those circumstances, I do not consider it necessary or appropriate to consider whether relief should be withheld from the applicants by reason of delay.
Having regard to the foregoing considerations, I will make the orders set out at the start of this judgment. I will include a declaration, noting that there is an unresolved issue concerning the power of this Court to issue constitutional writs, particularly in circumstances where the application for judicial review was lodged out of time.
There will be no order as to costs as the applicants have not incurred any, and court fees have been waived.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 5 March 2004
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