NANL v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 233

FEDERAL COURT OF AUSTRALIA

NANL v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 233

MIGRATION – appeal from decision of Federal Magistrate dismissing application for review of decision of Refugee Review Tribunal – no error of law – appeal dismissed

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 474

Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2 referred to

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449 referred to

NANL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1231 OF 2002

EMMETT J

27 FEBRUARY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1231 OF 2002

BETWEEN:	NANL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	27 FEBRUARY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the appeal be dismissed;

2.the appellant pay the respondent’s costs of the appeal.

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	N1231 OF 2002

BETWEEN:	NANL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	27 FEBRUARY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of Bangladesh.  He arrived in Fremantle as a seaman on board the ship Al-Kuwait on 14 October 1999 and deserted that ship later on that day.  On 28 October 1999, he applied for a protection visa under the Migration Act 1958 (Cth) (“the Act”). That application was refused by a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (“the Minister”), on 6 December 1999. On 23 December 1999, the appellant applied for review of that decision by the Refugee Review Tribunal (“the Tribunal”). On 20 May 2002, the Tribunal made a decision affirming the decision of the delegate not to grant a protection visa to the appellant.

2. On 5 July 2002, the appellant filed an application under s 39B of the Judiciary Act 1903 (Cth) for review by the Federal Court of the Tribunal’s decision. On 26 July 2002, Whitlam J transferred the matter to the Federal Magistrate’s Court. On 1 November 2002, for reasons given ex tempore on that day, Barnes FM dismissed the application.  By notice of appeal filed on 19 November 2002 the appellant now appeals to this Court.  The Chief Justice has directed that the matter be heard by a single judge. 

3. The notice of appeal to this Court states the ground of appeal in the following terms:

   “The Federal Magistrate’s Court erred in failing to hold that the decision of the Refugee Review Tribunal of 20 May 2002 involved an error of law, being error involving an incorrect interpretation of the applicable law or incorrect interpretation of the law to the facts as found by the Tribunal (s 476(1c) of the Migration Act).”

4. The appellant appears in person. That explains the reliance on a ground of appeal based on a provision of the Act that has since been repealed. Before the Tribunal the appellant claimed to have been involved in political activities for the Bangladesh Nationalist Party (“BNP”). From the time he was a student, he claims to have been targeted and attacked by the Awami League supporters. He also claimed that he would now face mistreatment by his own party, despite the fact that it is now in Government, because he claims it is in coalition with some extremist factors.

5. Barnes FM observed that the Tribunal had made a series of factual findings, many of which were adverse to the appellant.  She recorded that the Tribunal rejected certain aspects of his claims as inconsistent with other independent evidence available to the Tribunal.  The Tribunal also described a number of documents obtained and submitted by the appellant as “contrived and self-serving”.

6. While the Tribunal found that the appellant had exaggerated or embellished some significant elements of his claims, it accepted that he was an active member of the BNP student wing and, indeed, probably of the BNP itself, in his particular village or district up to June 1996.  The Tribunal found that it was plausible that, for that reason, he may have been harassed and assaulted by Awami League supporters in the immediate aftermath of the 1996 elections, at which the Awami League defeated the BNP.

7. The Tribunal also accepted that local political opponents may have lodged complaints against the appellant with local police.  However, the Tribunal stated that its ultimate finding was not dependent on its rejection of some aspects of the appellant's evidence and that it would have come to the same conclusion if it had unqualifiedly accepted his account of his past experiences.  The Tribunal found in particular that any hostility, harassment or mistreatment that the appellant may face was from particular local political opponents and that the appellant could avoid those difficulties by living elsewhere in Bangladesh.  The Tribunal considered the possibility of relocation and concluded, in particular, that the appellant could relocate to Dhaka.  The Tribunal gave reasons for reaching that conclusion.

8. In relation to the appellant’s claim that he had concerns about differences within the BNP, the Tribunal did not accept that the BNP was now having to compromise its basic policies or philosophies in exchange for support from small Islamic parties or that such association would lead to persecution of the appellant by members of his own party.  The Tribunal concluded that, to the extent that the appellant had concerns about differences within the BNP, they were also local problems for the appellant in his district and did not amount to persecution.

9. At the hearing before Barnes FM, the solicitor who then appeared for the appellant indicated that the only ground that he wished to pursue was the ground described by the solicitor as the Tribunal making its decision “with a closed mind”.  That ground was specified in the application as a claim that the Tribunal did not act in good faith in relation to the appellant’s claim.

10. Barnes FM treated that allegation as one of actual bias and as an allegation of a lack of good faith on the part of the Tribunal.  However, as her Honour observed, no further particulars of the precise legal basis for the allegation were provided.

11. The matter proceeded before the Magistrate on the basis that the decision of the Tribunal was a privative clause decision within the meaning of s 474(2) of the Migration Act 1958 (Cth). No submission has been made and, indeed, one would not expect one from a litigant in the position of the present appellant appearing in person, that the recent decision of the High Court in Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2 has any bearing on the proceeding. There is nothing in the material that was before the Magistrate that would justify a conclusion that the decision of the Tribunal was not a privative clause decision within the meaning of s 474(2). In any event, Barnes FM turned her mind to the possible arguments that might have been raised but for the provisions of s 474.

12. The material relied upon by the appellant in support of the submission that there was a lack of good faith on the part of the Tribunal consisted of a number of factors. First, it was suggested that the delay in the hearing of the matter by the Tribunal was in some way indicative of a lack of good faith. The delay had the result that, by the time of the Tribunal decision, the decision was within the definition of s 474(2), whereas that provision would not have been applicable had the decision been given before 2 October 2001.

13. The Magistrate concluded that the suggestion that the Tribunal took too much time for consideration was not established on the material before the Court in so far as it related to the actions of the individual decision maker.  The material showed that, once an invitation for a hearing had been made in March 2002, the matter proceeded relatively expeditiously to hearing on 8 May 2002.  There was no basis for suggesting that any delay was attributable to the member of the Tribunal who constituted the Tribunal for the purposes of the decision.

14. Secondly, the appellant also relied on allegations based on the Tribunal’s findings in relation to certain evidence relating to the claim based on persecution because of his membership of the BNP.   It was suggested to the Magistrate that the Tribunal reached its conclusions with a closed mind and that the rejection of documents described by the Tribunal as “contrived and self serving” indicated a lack of good faith. 

15. Thirdly, it was claimed on behalf of the appellant that the Tribunal had undervalued the impact of violence in a country such as Bangladesh and that it had failed to take into account relevant information in relation to the present state, policies and philosophy of the BNP.

16. The Magistrate considered each of those claims individually and also the totality of the claims and concluded that they did not constitute evidence of a lack of good faith, actual bias or a lack of bona fides (if there is a difference).  It was also alleged that the exercise of power was erroneous in fact or law in relation to the present situation of the BNP.  The Magistrate was not satisfied that there was, in fact, any error.  Further, as the Magistrate observed, even if it were established that there was an error of fact or law, that, of itself, would not constitute a lack of good faith.

17. The Magistrate considered the evidentiary basis for the Tribunal’s conclusion concerning the documents that were rejected as “contrived and self serving”.  The Magistrate concluded that the Tribunal’s conclusions in that regard were open to it on the material before it. 

18. The original application to the Court included the following grounds:

    “1.The Tribunal did not consider the applicant as a refugee despite many evidentiary proofs;

    2.The procedures that were required under the Migration Act (1958) to be observed in connection with the making of a decision were not observed;

    3.The Tribunal ignored the merits of the claim;

    4.The Tribunal did not act in good faith in regards to the applicant’s claim;

    5.The Tribunal misjudged the fate of the applicant’s claim;

    6.The Tribunal made a number of errors to decide the fate of the applicant’s claim.”

19. The allegation that procedures required to be observed were not observed and that the Tribunal ignored the merits of the claim may conceivably be construed as an allegation of a denial of procedural fairness.  However, no particulars were provided and, indeed, those grounds were not pressed before the Magistrate when the appellant was legally assisted. 

20. In any event, the Magistrate considered those matters and concluded, without giving detailed reasons, that there was no lack of procedural fairness or, at least, that she was not satisfied that the material established a lack of procedural fairness.  The Magistrate, in reliance upon the decision of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449, observed that, even if there were a denial of procedural fairness, that would not provide a basis for review of the Tribunal’s decision. That justification, of course, would no longer stand in the light of the decision of the High Court in Plaintiff S157 of 2002.

21. On one view, grounds 1, 3 and 5 in the original application seek to challenge factual findings and conclusions reached by the Tribunal.  So long as the Tribunal acted in good faith and purported to make a decision that was authorised by the statute, and so long as the Tribunal acted according to law and accorded the appellant procedural fairness, there would be no justification for interfering with the decision of the Tribunal in relation to those matters.

22. The affidavit filed in support of the application contained an assertion that the Tribunal had deprived the appellant of “receiving the natural justice”.  No evidence was advanced in support of that assertion.  It is apparent that the appellant was afforded a right of hearing by the Tribunal, and there is nothing in the material which would appear to support a conclusion that the appellant was denied procedural fairness.

23. In the circumstances, I am unable to find any error on the part of the Magistrate and it follows, in my view, that the appeal should be dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            21 March 2003

Solicitor for the Applicant:	The applicant appeared in person with the assistance of an interpreter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 February 2003
Date of Judgment:	27 February 2003