NARI v Minister for Immigration
[2003] FMCA 267
•4 June 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NARI v MINISTER FOR IMMIGRATION | [2003] FMCA 267 |
| IMMIGRATION & CITIZENSHIP – Review of a decision of the Refugee Review Tribunal – whether any reviewable error – no lack of procedural fairness – no jurisdictional error – no bias established. |
Migration Act 1958 (Cth), ss.91X; 424A; 474; 475A; 483A; 484
Judiciary Act 1903 (Cth), ss.39B; 44
Federal Magistrates Act 1999 (Cth), s.39
Muin v RRT; Lie v RRT (2002) 190 ALR 601
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
Craig v South Australia (1995) CLR 163
Plaintiff S157 v Commonwealth (2003) 195 ALR 24
| Applicant: | NARI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 927 of 2002 |
| Delivered on: | 4 June 2003 |
| Delivered at: | Sydney |
| Hearing date: | 29 May 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed.
The Applicant is to pay the Respondent’s costs of and incidental to the Application, fixed in the amount of $4,750.00.
Subject to any written submissions made by the applicant’s former solicitor, Mr Jyoti Bharati of 2/32 Beamish Street, Campsie, and any written submissions in response by the respondent or the applicant, Mr Bharati pay the sum of $1,000.00 towards the costs thrown away by the respondent as a result of Mr Bharati signing consent orders dismissing the application on 3 February 2003 without instructions.
Any written submissions of the solicitor pursuant to paragraph 2 of this order be filed and served on the respondent and the applicant 14 days after service of a sealed copy of these orders on them.
Any written submissions of the respondent or the applicant pursuant to paragraph 2 of this order are to be filed and served within seven (7) days of the service of the submissions Mr Bharati on that party.
I grant the parties liberty to apply on three (3) days’ notice.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 927 of 2002
| NARI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
The applicant, who is identified only by the letters NARI of 2002, seeks a review of a decision by the Refugee Review Tribunal
(hereafter referred to as “the RRT” or “The Tribunal”) not to grant him a protection visa. The applicant is identified in this way rather than by the use of his name by reason of the provisions of section 91X of the Migration Act 1958, which provides that the Court must not publish the name of an applicant for a protection visa.
The applicant has made a written submission in this matter, as has Counsel for the respondent. Both of them also addressed the Court orally.
Background
The applicant is a citizen of Bangladesh who said he was born on
25th April 1964, which would make him 39 years of age. He says that he is a Buddhist monk and an artist by profession. He arrived in Australia on 9th November 1999 on a Bangladeshi passport, having obtained a temporary business visa earlier that month in Seoul, South Korea.
On 23rd November 1999 he applied for a protection visa. In his application for a protection visa the applicant said that he had never married. He described how he had attracted unfavourable attention from fundamentalist Muslims in Bangladesh, who had burnt his shop and threatened his life. He said that they had tortured his family and had attacked him, so he decided to leave the country in order to save his life. He said that he feared that if he returned to Bangladesh he would not be able to earn a living or spread the Buddhist ideology. If he were to do so, the Muslim fundamentalists would kill him.
On 9th December 1999 the Delegate of the Minister for Immigration & Multicultural Affairs refused his application for the grant of a Protection Visa. He was granted a Bridging Visa that allowed him to remain in Australia lawfully for 28 days. He was informed of his right to apply to the RRT for a review of the refusal to grant him a Protection Visa.
On 30th December 1999 the applicant applied to the RRT for a review of the decision not to grant him a Protection Visa. On 5th August 2000 the applicant appointed a Migration Agent to act for him. On
27 February 2002 the RRT wrote to the applicant indicating it had looked at all the material relating to his claim but was not prepared to make a favourable decision on this information alone. Accordingly, the RRT invited him to attend a hearing on 4th April 2002.
The applicant submitted a number of documents to the RRT for its consideration, including a lengthy statement dated 14th March 2002. In that statement, he told how he was born on 25th June 1971
(a different date of birth from that which he had previously given) into a prominent Buddhist family in the Rangunia area, near Chittagong in Bangladesh.
The applicant described various incidents of discrimination against him from his school days, including being ordered out of the religious class at school and, on one occasion, being set upon by Muslim people in a funeral procession. He told how, in his adult life, he first opened an art shop in 1993, but was attacked and beaten by Muslim fundamentalists. He later opened an art shop in 1995, in Bud Para Bazaar, Chittagong. Muslim fundamentalists came to his shop and attacked him. He was beaten so badly that he required medical treatment for an injury to his left elbow. His shop was burnt down.
The applicant described how he sought shelter in a Buddhist temple and commenced to reside there permanently. He was ordained as a Buddhist monk at the end of 1995. Muslim fundamentalists attacked the temple but he was absent.
The applicant described how he decided to leave the country. He obtained a passport with a false date of birth, 25th April 1964, which he said he did for his personal safety. He lived in the city of Dhaka from June 1996 to December 1998, when he heard that his parents had been attacked by Muslim fundamentalists. He himself was chased by some Muslim people.
In October 1999 the applicant says that he left Bangladesh for South Korea, where he obtained a visa to enter Australia. He arrived in Sydney on 9th November 1999. He says that Muslim fundamentalists found out that he was living in Australia and, as a result, they attacked his family home in Bangladesh and set fire to it.
The applicant went on to give a general description of how Buddhists are persecuted in Bangladesh. He said that the Bangladesh Government does not guarantee the safety of the Buddhist community because the Government is basically composed of Muslims.
The applicant attached a number of documents to his statement, referring to various happenings in Bangladesh. He also annexed some documents by way of references.
The applicant appeared before the RRT on 4th April 2002. He was unrepresented. There was an interpreter in the Bengali language. The applicant brought some documents with him to the hearing, including a medical sickness certificate and videotape. He gave evidence and was asked a number of questions.
On 25th June 2002 the RRT prepared a written decision which was handed down on 18th July 2002. The RRT was, to say the least, critical of the applicant’s evidence:
“The applicant’s evidence in relation to most aspects of his claims was vague, generalised, unconvincing, lacked specific detail, was elaborated and fabricated. This is especially so with regard to the series of claims that the applicant made in a statement provided on 14 March 2002. I do not consider that the applicant was a reliable or credible witness. The lack of credibility of the applicant’s evidence leads me to conclude that I am unable to be satisfied that the applicant faces a real chance of persecution in the foreseeable future if he returns to Bangladesh.”[1]
[1] RRT Decision paragraph 47.
The finding of the Tribunal was that the Tribunal affirmed the decision not to grant a protection visa. The applicant has since applied to this Court for a review of that decision. He submitted an amended ground to his application, which stated that the decision was induced or affected by actual bias and provided particulars of the bias, which he claimed. He referred to the judgment of the High Court of Australia in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601, a decision handed down on 8th August 2002.
The applicant provided a further outline of submissions in which he claimed that the RRT decision was affected by an error of law, by jurisdictional error. The document that he produced was the subject of an inquiry by me at the hearing. In answer to my question, the applicant informed me that he had obtained material for his further outline of submissions from a migration agent.
Some of the paragraphs of the further outline of submissions appeared as if they had been taken from an application by someone else. In paragraphs 4, 5 and 6 of the further outline of submissions, the applicant is referred to in the feminine gender, as ‘her’[2] or ‘she’[3] rather than ‘him’ or ‘he’, as it appears to me that the applicant is clearly male.
[2] Paragraphs 4 and 6
[3] Paragraph 8
In paragraph 8 of his submission, the applicant refers to a letter dated 8th July 2002. The relevant paragraph of the submission says:
“At a factual level the present case differs substantially from Yuen, but the nature of denial of procedural fairness is very much similar. It is understandable that the letter (dated 8 July 2002) misled the appellant or that he would have taken any particular steps had he been told, if it was the case, that the tribunal had not been provided with them.”
I asked the applicant before me about this ‘letter dated 8 July 2002’ and he was unable to reply. The proceedings before the RRT had been heard on 4th April 2002 and the decision had been written on 25th June, even though it was not handed down until 18th July 2002. No letter of 8th July could have affected the applicant as the proceedings before the RRT had effectively been heard and the decision had been written by that date.
Jurisdiction
The Federal Magistrates court has been given the same jurisdiction as the Federal Court in relation to a matter arising under the Migration Act, by virtue of section 483A of that Act. Section 484 states that this Court and the Federal Court have exclusive jurisdiction in relation to privative clause decisions, other than the jurisdiction of the High Court of Australia.
Privative clause decisions are defined by section 474 of the Act:
“(1) a privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
Privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).”
Under the provisions of section 474(2) of the Act, the decision by the RRT is a “privative clause decision.” Where a person makes an application to review a privative clause decision on or after
2nd October 2001, the Federal court, and therefore the Federal Magistrates Court, only has jurisdiction in respect of the proceeding pursuant to subsection 39B or 44 of the Judiciary Act 1903.
Section 475A of the Act provides:
Section 476 does not affect the jurisdiction of the Federal Court under section 39B or 44 of the Judiciary Act 1903 or section 39 of the Federal Magistrates Act 1999, or the jurisdiction of the Federal Magistrates Court under section 483A of this Act, section 44 of the Judiciary Act 1903 or section 32AB of the Federal Court of Australia Act 1976, in relation to:
(a) a privative clause decision that is a decision made on a review by a Tribunal under Part 5 or 7 or section 500; or
(b) any other decision in respect of which the court’s jurisdiction is not excluded by section 476”.
Section 476 of the Act provides that the Federal Court and the Federal Magistrates Court do not have any jurisdiction in relation to a primary decision. A primary decision is defined by subsection 476(6) as:
“A privative clause decision:
(a) that is reviewable, or has been reviewed, under Part 5 or 7 or section 500; or
(b) that would have been so reviewable if an application for such review had been made within a specified period.”
The Federal Magistrates Court has jurisdiction to grant prerogative relief pursuant to section 39B of the Judiciary Act 1903. That jurisdiction, similar to that conferred on the High Court by section 75(v) of the Constitution, permits the Court to grant prerogative relief by way of prohibition or mandamus, or by way of an injunction about a decision of an officer of the Commonwealth.
Conclusions
The thrust of the applicant’s submissions is that the Tribunal fell into error for two reasons. First, it is submitted that the Tribunal did not consider the documentary evidence that the applicant had provided. On my asking the applicant why that was so, he indicated that it was proven by the fact that he did not get the right result. Because he did not get the right decision, therefore the RRT had not read the documents. Had the RRT read the documents, the RRT would not have come to the decision that it did.
Of course, that is a circular argument. In my belief, it is answered by the fact that a perusal of the decision of the Tribunal indicates that the documents were in fact considered. Paragraphs 53 through to 55 contain a detailed analysis of some of the documents, including the document from the Buddhist Society and the particular medical certificate that the applicant referred to. There is also reference to the videotape produced by the applicant. I am of the view that the decision of the RRT indicates that the Tribunal member did consider those documents. Unfortunately for the applicant, he did not construe them in the applicant’s favour.
The other criticism made by the applicant went to the nature of the hearing. The applicant said that the Tribunal “acted like he was an enemy”. He indicated that the Tribunal member did not allow him to complete his answers. He would attempt to answer the question and the Tribunal member would ask him another question. He wanted to show the Tribunal member his injury, and, indeed, he did show his injured arm to the Court on the hearing before me, but the Tribunal member said to him “I have a lot of injuries on my body, but that doesn’t prove anything”.
The way in which the applicant says that the hearing was conducted is the basis for his claim that there was actual bias on the part of the RRT. I do not have a transcript of the proceedings before me to support that allegation. I would comment that the way in which RRT hearings are conducted was considered by the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, where Heerey and Kiefel JJ, in a joint judgment, considered the situation where bad faith may manifest itself in the form of actual bias. They defined actual bias as “A state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented.”[4]
[4] At paragraph 10 of the judgment.
Their Honours went on to point out this important fact about RRT hearings:
“In the particular context of reviews of decisions of the RRT it should be kept in mind that the Tribunal only embarks on a hearing when it is not satisfied on the papers that a protection visa should be granted: section 425(2)(a). Therefore, the very fact that there is a hearing necessarily involves at least some lack of satisfaction on the part of the RRT. It is in the nature of things that this may vary in degree and could amount in some cases to suspicion, or even strong suspicion. The fact that the RRT holds such a state of mind, or that it becomes apparent in the course of the hearing, does not of itself suggest actual bias in the relevant sense."[5]
[5] Ibid, paragraph 11.
The applicant refers in paragraph 9 of his further Outline of submissions to an error in a somewhat mystifying paragraph:
“The decision in relation to the applicant was misleading, and that the tribunal member must have known of its error and did not did nothing (sic) to correct it. The applicant strongly believes that the decision was acted on bad faith on the part of the tribunal.”
There is no evidence of an error that the tribunal member was aware of, and no evidence that the tribunal acted in bad faith. If the applicant is referring to an error of law, rather than an error of fact, again, I have difficulty in identifying what the error of law is. I note that the applicant refers to the decision in Craig v South Australia (1995)
184 CLR 163 (cited by Merkel J in Walton v Phillip Ruddock MIMA [2001] FCA 1839), particularly the passage at page 197:
“If an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, it exceeds its authority or powers. Such an error of law is a jurisdictional error, which will invalidate any order or decision of the tribunal, which reflects it.”
I have previously found that I am not satisfied that the RRT ignored relevant material submitted by the applicant, and none of the other examples referred to in that passage would appear to me to apply. The use of the words “to make an erroneous finding or to reach a mistaken conclusion” in the passage quoted by the applicant do not refer to a finding made by the Tribunal after considering the material before it.
I am not satisfied that there appears to have been any jurisdictional error. The privative clause in section 474 of the Migration Act applies.
The major part of the applicant’s case appears to be that the RRT was factually wrong in arriving at the decision that it did, but that is not a decision that this Court can decide. An application to this Court is not a re-hearing of the substantive issues of the case. I am satisfied that the RRT considered the applicant’s evidence, including the applicant’s documents. The decision made by the RRT appears to me to be one that was open to the RRT to make. Whilst the applicant contends that the RRT’s decision is erroneous, the decision cannot be reviewed unless there is shown to have been a breach of one of the principles referred to above. There is no evidence of such a breach.
I am not satisfied that the applicant was shown any bias by the RRT in the conduct of the hearing. He appears to have given his evidence. At the end the Tribunal was not persuaded that he had made out a case. The fact that he was questioned about his assertions does not establish any bias. As was pointed out in SBAN, section 425 of the Act makes it clear that the RRT will normally only invite the applicant to appear before it to give evidence and present arguments relating to the issues if the Tribunal does not consider that it should decide the review in the applicant’s favour on the basis of the material before it.
In this case the RRT was not satisfied on the basis of the material before it that it should decided the review in the applicant’s favour. It invited the applicant to appear before it to give evidence and argue his case. He had the assistance of an interpreter. After hearing the evidence the RRT was still not satisfied that it should decide the review in the applicant’s favour.
I find that the applicant is not entitled to relief and that the application must be dismissed. In this jurisdiction costs follow the event. As the applicant has been wholly unsuccessful in these proceedings there should be an order for costs in favour of the respondent. I order that the application be dismissed. I make the costs orders contained in the commencement of this judgment.
I will order a transcript of my reasons for this decision
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 30 June 2003
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