NANL v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 277

FEDERAL COURT OF AUSTRALIA

NANL v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 277

NANL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 2362 of 2003

SACKVILLE J
SYDNEY
18 MARCH 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N2362 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	NANL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	18 MARCH 2004
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	N2362 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	NANL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	18 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE APPEAL

1. This is an appeal from the Federal Magistrates Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“RRT”).  By its decision handed down on 17 March 2003, the RRT affirmed a decision of a delegate of the respondent (“Minister”) not to grant a protection visa to the appellant. 

2. The Chief Justice has made a direction that the appeal should be heard and determined by a single Judge of the Court: s 25(1A) Federal Court of Australia Act 1976 (Cth).

   THE PROTECTION CLAIMS

3. The appellant is a citizen of Bangladesh, born in Chittagong in 1976.  He arrived in Australia on 12 July 2001 and on 25 July 2001 lodged an application for a protection visa.

4. The appellant claimed that he had a fear of persecution in Bangladesh for reasons of political opinion, arising from his role as a political activist supporting the Bangladesh Nationalist Party (“BNP”).  The appellant claimed that his active involvement in student politics on behalf of the BNP had brought him to the attention of the Awami League (“AL”) government and their activists.  He said that if he were to return to Bangladesh, his life would be in danger.

5. The claims made by the appellant included the following:

   • He joined the student wing of the BNP in 1990 (when he was aged 14).  Subsequently he was elected to a variety of positions within the student wing of the BNP, culminating in his election in 1998 as the General Secretary of the Islamia Degree College Branch of Jatiyotabadi Chattra Dal (“JCD”), the BNP student organisation.
   • At about that time, the appellant organised and participated in a demonstration with other BNP members.  In consequence, he was arrested and detained for three days.
   • On 20 February 2000, the appellant was attacked and beaten mercilessly by AL activists when he was on his way home from a meeting.  He was rendered unconscious and taken to hospital, where he remained for one month.  After receiving death threats from his attackers, he moved to Raozan, said to be a stronghold of the BNP located in another region of the Chittagong district.
   • In Raozan, he received shelter from an influential leader of the BNP.  This leader, however, decided to act against the party and threatened to kill the appellant unless he joined in the about-face.  In consequence of the appellant’s refusal to co-operate, this person arranged for his “pet thugs” to attack the appellant and attempt to kill him.  Once again, the appellant was severely beaten and was compelled to leave Raozan.
   • In order to escape political attacks, the appellant obtained a position as assistant cook on an Iranian vessel.  He joined the ship on 4 January 2001 and deserted the ship upon its arrival in Adelaide on 12 July 2001.

6. On 10 October 2001, a delegate of the Minister wrote to the appellant.  The letter pointed out that in the recent national elections, the BNP had won a comfortable majority of seats and would soon form Bangladesh’s new government.  The letter also indicated that the political scene in Bangladesh, according to independent country information, was “volatile and inter-party rivalry leading to violence [was] a pervasive feature”.  The letter said that most of this violence was attributable to criminal elements and was often personally based, rather than political.  The letter invited the appellant’s comments.

7. The appellant’s adviser responded by a letter dated 7 November 2001.  This enclosed translations of newspaper articles and other documents, including medical certificates, said to support the appellant’s case.  A document purporting to be a translation of a certificate from an office-bearer of the BNP stated that the appellant had suffered severe torture and had even been sentenced to gaol “in false cases”.  A document purporting to be from a court suggested that the appellant was subject to arrest under the Special Powers Act as a “member of arms cader [sic] group”. 

8. Subsequently, the appellant made further claims.  These included the following:

   • A letter of 24 January 2003, prepared by the appellant’s agent, asserted that the appellant feared persecution because of his “political profile as a leader of Awami League”.  This was the first time the appellant claimed to have feared persecution because of what was described as the “atrocities of BNP government and their thugs”.
   • The appellant submitted a video cassette said to show a meeting organised by his political opponents (from the Chattra League) and a meeting of his supporters (said to be activists of the JCD).
   • The appellant relied on a letter purporting to be from a Bangladeshi advocate stating that he faced life in imprisonment if convicted under the Special Powers Act.  His agent stated in a letter of 13 March 2003 that he could actually face capital punishment.

9. The appellant made additional or amended claims while giving evidence to the RRT on 17 March 2003.  These included the following:

   • The appellant now said that there was only one false case against him.  That was in relation to the April 1998 arrest, when he had been detained for three days and subsequently released on bail.
   • In response to the RRT’s suggestion that he had lived at only two addresses in the decade before he left Bangladesh, the appellant claimed for the first time that he had tried to relocate in Rajshahi, outside the Chittagong district, but did not stay there long.  This was the first reference he had made to Rajshahi.
   • The claim that he had been an AL activist had been made without his knowledge.

   THE RRT’S DECISION

10. The RRT delivered an oral decision after the hearing, which was subsequently reduced to writing.  The RRT found that the appellant had not presented his claims for refugee status in a credible way and that the claims themselves were not credible.  His case failed “because of four key factors”.  These were the inadequacies and contradictions of his original claims; the manner in which the appellant and adviser kept adding to the claims; the “unimpressive” documents and video tape that had been submitted (by that the RRT meant, as it put to the appellant, that they appeared to be fraudulent); and the independent country information.

11. The RRT accepted for the purposes of the decision that the appellant was a member of the student wing of the BNP.  However, it did not regard the documents submitted by him as reliable evidence for his claim to have been an office-holder of the BNP, because much of that material was clearly fraudulent or exceeded claims that the appellant himself had originally made.  Even if the appellant did hold the positions he claimed, his actions from 1998 undercut his claimed leadership profile.  Moreover, he had admitted, in documentation presented to the delegate, that he was merely a low level or low profile leader.  In any event, his involvement with the BNP had finished long ago and he had never claimed to have been engaged in political activities anywhere other than the Chittagong district (one of the 64 districts of Bangladesh).

12. The appellant’s original claim to have been detained for three days in 1998 had treated the incident as one of relatively little importance.  Against that background, the claims made by him after July 2001 in respect of that incident were “simply exaggerations and fabrications”.

13. The RRT did not know whether the claimed attacks that were said to have taken place in February and September 2000 ever occurred.  If they had, however, the RRT concluded that the attacks were simply part of the cycle of attack and counter-attack which is part and parcel of student politics in Bangladesh and of which the appellant was well aware when he chose to stay involved in student activism.

14. The RRT rejected the appellant’s claim that he had attempted to relocate outside the Chittagong area. 

15. The RRT pointed out that the appellant’s claims about “false cases” had varied from time to time and some of the claims were absurd.  For example, the claim that he might be subjected to capital punishment was simply “an absurd advance on an already absurd claim of life imprisonment”.  Other claims were equally incredible.  If, despite all those findings, criminal cases had been brought against the appellant, he would have the opportunity to defend himself in court in Bangladesh.  The country information indicated that he would receive justice through the superior courts.

16. The fact that the appellant had not attempted to move from the Chittagong district after the claimed events of April 1998 showed that he did not feel that he was in any danger from the Awami League or the authorities.  Similarly, if there were any attacks in 2000, he had not taken the step of moving to another district in Bangladesh.  His unhindered departure from Bangladesh in January 2001, using a passport in his own name, demonstrated that he did not have a profile which would lead to him fearing, or being sought by the Awami League or the authorities.

17. The country information led the RRT to conclude that if the appellant did not wish to live in the Chittagong district, there were many parts of the country in which it would be reasonable to expect him to relocate in safety. He had managed to support himself in Australia for twenty months and he had savings which amounted to about four times the annual per capita income in Bangladesh.  The RRT had no doubt of his ability to support himself in the country in which he was born, was educated, spent most of his life and still had family.  Furthermore, if he wished to pursue politics in Bangladesh without thuggery and criminality, he would be able to do so and would have little to fear from rival political groups.

18. For these reasons, the RRT concluded that the appellant did not have a genuine fear of persecution for a reason referred to in the Convention relating to the Status of Refugees (“Convention”), and did not have a well-founded fear of persecution within the meaning of the Convention.  He was therefore not a person to whom Australia had protection obligations under the Convention.

    THE MAGISTRATES COURT’S DECISION

19. The appellant’s application for review was filed in the Magistrates Court on 9 April 2003.  The application, as the learned Magistrate observed, was in “generic” form.  An amended application was subsequently filed.  This identified grounds by reference to repealed provisions of the Migration Act 1958 (Cth), but his Honour treated the application as one simply seeking to establish jurisdictional error, in accordance with the principles laid down by the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

20. The Magistrate observed that it was not clear from the documents filed by the appellant what grounds of review he was seeking to pursue.  However, his Honour identified three grounds as intended to be raised:

    (i)that the RRT had failed to accord the appellant procedural fairness;

    (ii)that the RRT’s decision was vitiated by actual bias, because the RRT member had adopted an unshakeable, predetermined view of the outcome; and

    (iii)the RRT had erred in making adverse findings as to the appellant’s credit.

21. The Magistrate rejected the claim of denial of procedural fairness, which was based on the assertion that the appellant had been denied a fair opportunity to present his arguments to the RRT.  While the appellant had claimed that the RRT member had not been interested in listening to his arguments, and had simply required him to answer “yes” or “no” to questions, that claim was inconsistent with the RRT’s detailed description of what had occurred at the hearing.  The Magistrate declined the appellant’s invitation to listen to a tape of the hearing with a view to seeing whether his claims might be substantiated.  His Honour observed that no transcript of the tape had been prepared or provided and the appellant had not foreshadowed that he wished the Court to listen to the tape.  In his Honour’s view, the record of the RRT hearing appearing on the face of the decision record spoke for itself.  On the basis of the RRT’s summary of the evidence at the hearing, the appellant had clearly been apprised of the critical issues and given an opportunity to respond directly to the RRT’s concerns about his credibility and the inconsistencies in his evidence.

22. The Magistrate also rejected the claim of actual bias.  The RRT member was entitled to deliver his decision and reasons orally (as the Magistrate himself did).  The fact that the RRT member held and expressed doubts about critical elements of the appellant’s claims was not an indication of bias.  Rather, the member was taking the opportunity to test the appellant’s claims and to draw his attention to serious doubts held by the RRT thereby giving him an opportunity to explain his position.  There was therefore no basis for the allegation of actual bias.

23. Finally, the Magistrate observed that the RRT had employed conventional reasoning to reach its adverse findings concerning the appellant’s credibility and his account of events.  The findings were reasonably open to the RRT.  The appellant had simply sought to canvas the merits of the RRT’s decision, a course not permissible on a judicial review application.

24. For these reasons, the RRT dismissed the application. 

    THE APPEAL

25. The appellant’s notice of appeal and written outline of submissions repeat the claim that the RRT denied him procedural fairness.  The appellant says that he was not given a reasonable opportunity to address the issues before the RRT. 

26. The notice of appeal refers to bias on the part of the RRT, but this contention is not developed in the written submissions.  However, the appellant again takes issue with the factual findings made by the RRT.  Indeed, the bulk of the written submissions essentially assert that the RRT should have made factual findings in his favour.

27. The appellant also invokes, for reasons that do not emerge clearly, ss 424A and 441A of the Migration Act. No reference to these provisions appears to have been made before the learned Magistrate and the appellant has not explained how those provisions might be relevant to his case.

    REASONING

28. The RRT’s reasons contain a summary of the claims made by the appellant at the hearing and of the questions put by the RRT to the appellant and his responses thereto.  It is clear that the RRT had serious doubts about important aspects of the appellant’s various claims.  It is also clear from its reasons that the RRT put its principal concerns to the appellant in order to invite his responses to those concerns.  This can be illustrated by one paragraph in the reasons:

    “I noted that the [appellant’s] application of July 2001 had mentioned one arrest and detention but said nothing about torture or false cases and said that he had not been convicted of anything and that he was not wanted by the authorities.  I noted that he had declared those claims complete, correct and up-to-date and that the same declaration was made in December 2001 but that the [appellant] and his adviser had nevertheless used the many opportunities after July 2001 to add new claims about what had happened to him in the past and what faced him if he went back.  I noted that those claims, because of his earlier declaration and because of the increasingly bizarre raising of the stakes (such as claiming he was an AL leader and jumping from possible life imprisonment on 11 March 2003 to possible capital punishment on 14 March 2003), were not credible.  The [appellant] said that he had not been responsible for the claim of AL membership but went on to say that claims had not been made up.  When I asked why he had been detained so briefly and then released on bail if he were facing capital punishment, he said that a demonstration by his supporters had secured his release in 1998.  I noted that the way the [original] application had referred to the 1998 detention made it look as though it was just a routine arrest for participation in an illegal demonstration.  When I noted that he had continued to live at the same address for years after the April 1998 detention, which made it look as though no-one was after him, he said that he had been harassed by the police.  I said that he had made no such claim before and that claims made after the DIMIA application looked as though they had been made in order to make a minor incident look like a major one.”

29. The appellant’s complaint is essentially that the RRT doubted his account of events and pressed him with questions designed to test the veracity of that account.  But it must be remembered that proceedings in the RRT are inquisitorial in character (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, at 115 [76], per Gaudron and Gummow JJ), and that the RRT member is in the position of “an inquisitor obliged to be fair”: Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437, at 450 [57], per Gummow and Heydon JJ. One element of fairness involves, or at least can involve, putting to an applicant doubts about his or her account of events and inviting comment on those doubts. In Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, the High Court (Gleeson CJ, Gaudron and Gummow JJ) pointed out (at 435 [30]) that where:

    “credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously.  Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.  Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.”

30. There may be circumstances in which a tribunal conducts itself in such a vigorous and aggressive manner that the applicant is overborne or intimidated.  In Ex parte H itself, the Court concluded that a fair-minded observer might well infer from the constant interruptions to the evidence of the applicant and apparently dogmatic challenge to his truthfulness that there was nothing he could say or do to change the RRT’s preconceived view that he had fabricated his entire account.

31. There was nothing before the Magistrate to indicate that the RRT had done anything other than test the evidence presented by the appellant. It is true that in the passage cited at [28] above, the RRT referred to the “increasingly bizarre raising of the stakes” by the appellant and his adviser. But this comment was prompted by some quite startling changes in the appellant’s version of events and is indicative neither of actual bias nor of a reasonable apprehension of bias on the part of the RRT. The RRT’s account of the interchange between it and the applicant suggests nothing more than that the RRT was attempting to explore obvious difficulties with the appellant’s claims.

1. For these reasons, there is no basis for the appellant’s contention that the RRT was actually biased or that it did not attempt, in good faith, to discharge its statutory responsibilities. 

2. Although not the subject of any argument by the appellant, I sought the response of Mr Jordan, counsel for the Minister, to one particular matter.  I pointed out that the Magistrate had declined the appellant’s request to listen to the tape of the hearing before the RRT.  I inquired of Mr Jordan whether his Honour was entitled to take that course. 

3. Mr Jordan pointed out that the appellant’s request had been made during the course of final submissions in the Magistrates Court and had not previously been foreshadowed by him.  The appellant’s request was made in support of his assertion that the RRT had required him to answer simply “yes” or “no” to questions.  As the Magistrate’s reasons record, his Honour advised the appellant that his assertion was at odds with the description of the questions and answers appearing in the RRT’s reasons.  It was in this context that the Magistrate said that the record of the RRT hearing, appearing in the reasons of the RRT, spoke for itself.

4. Mr Jordan submitted that if the appellant was to be taken as having tendered the tape, the Magistrate’s rejection of the tender was justified under s 135(c) of the Evidence Act 1995 (Cth). This provides that the Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might “cause or result in an undue waste of time”. Had the tape been admitted into evidence, at the very least the Magistrate would have been required to listen to significant segments of it, if not the whole. It may also have been necessary to give the Minister’s counsel an opportunity to listen to the tape and to make submissions in respect of it. Since the appellant’s only reason for making the request was to support his assertion that the RRT required him to give yes or no answers and since there was no evidence that the RRT’s reasons falsely represented what had occurred at the hearing, the Magistrate could reasonably form the view that the probative value of the evidence was substantially outweighed by the danger that the evidence might cause an undue waste of time.

5. In my view, Mr Jordan’s submission is the appropriate way to view what occurred in relation to the tape.  I should add that, in any event, the appellant did not persist on the appeal with his assertion that he had been required to answer yes or no to questions.  He accepted that he had given more detailed responses than that and that his real complaint was that the RRT had doubted his claims and had questioned him in a manner that suggested that its doubts had not been dispelled.

6. No error has been shown in the Magistrate’s decision.  The appeal must be dismissed.  The appellant must pay the Minister’s costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville .

Associate:

Dated:             18 March 2004

The applicant was self-represented.

Counsel for the Respondent:	D Jordan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 March 2004
Date of Judgment:	18 March 2004