S1426 of 2003 v Minister for Immigration and Multicultural Affairs

[2006] FCA 1151

FEDERAL COURT OF AUSTRALIA

S1426 of 2003 v Minister for Immigration and Multicultural Affairs [2006] FCA 1151

Judiciary Act 1903 (Cth): s 39B
Migration Act 1958 (Cth): Pt 8

APPLICANT S1426 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD899 OF 2006

JESSUP J
8 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	NSD899 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

APPLICANT S1426 OF 2003
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	8 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	NSD899 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

APPLICANT S1426 OF 2003
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	8 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of the Federal Magistrates Court given on 24 April 2006 in which an application for judicial review pursuant to s 39B of the Judiciary Act 1903 (Cth) in relation to an earlier decision of the Refugee Review Tribunal was dismissed. The Tribunal's decision was given on 12 November 1998 and by it the Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the appellant a protection visa under the Migration Act 1958 (Cth) (“the Act”).

2. The appellant is a citizen of Bangladesh.  He claimed to have a well-founded fear of persecution for his political opinion.  He claimed to have been a member of the Bangladesh Nationalist Party, referred to as the BNP, who was persecuted by the Awami League.  His claims included being the organising secretary of a regional branch of the BNP, being attacked by Awami League hooligans at various times and having three false charges filed against him. 

3. The Tribunal accepted that the appellant was a member of the BNP, but was not satisfied he was a leading activist or that there was a real chance that either the local members of the Awami League or the authorities wished to persecute him.  The Tribunal expressed serious doubts about the authenticity of the documents submitted by the appellant which indicated that he faced a politically motivated charge in Bangladesh.  It noted a number of points which cast doubt on their genuineness: the fact that he left Bangladesh openly without bribes whereas independent evidence suggested that he could not have done this if an arrest warrant had been issued and the fact that a list of names of BNP leaders facing politically motivated charges which the Tribunal had obtained, and to which it referred the appellant, while appearing to be comprehensive, did not contain the appellant's name. 

4. The Tribunal noted that, even if it were wrong on the matter of the appellant's politically motivated charges, it was satisfied that the courts had treated him fairly by granting him bail and that any legal case against him had been resolved by the time of the appellant's departure from Bangladesh.  The Tribunal did not consider it necessary to contact the court in Bangladesh to check the authenticity of documents, as it would have been difficult to obtain confirmation of their authenticity and the Tribunal already had reasons for doubting the validity of the charges.  The Tribunal was not satisfied the appellant faced politically motivated charges if he returned to Bangladesh.  Evidence of the attacks given by the appellant suggested that the harm significantly subsided after mid-1996.  Although the Tribunal noted that the clashes between supporters of political parties continued, the Tribunal was satisfied that the appellant could still express his political opinions through active membership of the BNP without being subject to serious violations of basic rights.  The Tribunal was not satisfied that the appellant's fear for a Convention reason was well-founded and affirmed the decision not to grant a protection visa.

5. An unusual aspect of the appellant's circumstances is that he did apparently apply under the then provisions of Pt 8 of the Act for a review of the decision of the Tribunal. That application came before this court and was decided by Hely J on 3 June 1999: [1999] FCA 770. At the time, the appellant was assisted by a friend in explaining his case to his Honour. In the course of his reasons for dismissing the appellant's then application Hely J said (at [3]–[4]):

   “I have read through the decision of the Tribunal myself on a number of occasions to see whether it revealed any reviewable error.  The Tribunal member reviewed the claims which the applicant made and the independent country evidence.  The Tribunal was not satisfied, for reasons which it gave, that the applicant faces politically motivated charges if he were to return to Bangladesh.  The Tribunal gave a number of reasons for that decision.  In my view they are capable of supporting the decision to which the Tribunal came and no reviewable error is revealed in that aspect of the Tribunal's reasoning process.

   The Tribunal also considered whether the applicant was facing or was at risk of serious harm by Awami League supporters should he return to Bangladesh.  Again, for reasons which it gave, it was not satisfied that the applicant was at risk in that respect, and again, the reasons which it gave are capable of supporting the decision which it made.  I cannot detect any reviewable error in that part of the Tribunal's decision.  Accordingly, it seems to me that no ground has been shown which would justify this court in making an order for review.”

   It is true that the procedure for an order for review to which Hely J referred was a statutory one under Pt 8 of the Act, whereas the application which the appellant made in the Federal Magistrates Court was, or at least must be treated as, an application for what are sometimes described as the constitutional writs of prohibition and mandamus, with certiorari being available should it be required. However, there is an argument that there is such a degree of substantive similarity between the cause of action then arising under Pt 8 and the cause of action on which the appellant sued in the Federal Magistrates Court as to constitute Hely J’s judgment of 3 June 1999 a binding one for present purposes, and as having effectively and forever disposed of the question whether the decision of the Tribunal made in November 1998 was affected by jurisdictional error of the kind which is now alleged. In other words, it is arguable that the case which the appellant sought to put to the Federal Magistrate was and remains res judicata.  A judgment to that effect on very similar facts was made by Merkel J in Somanader v MIMA (2000) 178 ALR 677.

6. I mention the possible role of res judicata in the circumstances of this case because I am concerned that the Federal Magistrates Court should have been asked to consider a matter which was arguably the subject of a previous binding decision.  I say arguably because I have not had the benefit of full argument about the point here, and I do not want it to be thought that res judicata would necessarily have precluded the present proceedings.  I go no further than to express my concern about it.  I shall decide this case without reference to the principle of res judicata substantially for the reason that nothing along those lines was advanced before the learned Federal Magistrate below and I am sitting as a court of appeal, and particularly in the absence of any point being taken by the respondent.  I do not think it would be appropriate for me to embark upon an examination of such matters when the Federal Magistrates Court proceedings were conducted without reference to these points.  It is of course a consequence of the fact that I am sitting on appeal from the Federal Magistrates Court that I should interfere with, or alter, the judgment of that court only if I am persuaded that there was error in that judgment or in the process of reasoning which produced it.

7. The appellant has run three points before me in relation to which I have been assisted by some concise but clear submissions provided in outline by him on 28 July 2006. The difficulty with those submissions, as was pointed out by Mr Cleary who appeared for the first respondent, is that they do not, at least in terms, take issue with or seek to identify error in the judgment of the Federal Magistrate. The submissions are drafted as though I were sitting on an application under s 39B of the Judiciary Act at first instance. This has quite possibly been the cause of two of the points now sought to be made by the appellant, being fresh ones in the sense that they were not conducted before the Federal Magistrate. As I understand the law, the appellant requires the leave of the court to advance arguments here on appeal that were not put before the Federal Magistrate. There are a number of considerations which I am required to weigh in the balance upon the matter of granting or refusing that leave. Foremost amongst them in my opinion is whether the points in question appear to have an intrinsic merit or a reasonable prospect of success if they were to be run in this court. In fact, of course, the appellant has had the opportunity to run the case as though he were granted leave, so I am well-placed to make a judgment as to whether the points have any merit. I shall consider those two points first.

8. The first of them is described in the appellant's outline as the ‘employment history’ point.  He complains that the Tribunal dealt, in an adverse way, with what is said to have been identified as an inconsistency between two pieces of information provided by the appellant as to his previous employment.  In this respect the Tribunal said that the appellant had given three different accounts of his employment history in statements made variously to Australian immigration officers and to the Tribunal.  It said that he had effectively withdrawn his claims to have been a farm assistant in the dairy industry and a cook at a hotel.  The Tribunal continued:

   “He explained to the Tribunal's satisfaction why he claimed at Brisbane Airport to be a farm assistant and I propose to treat as irrelevant to this decision the assertions he made as recorded in the Immigration Inspector's report.  He was unwilling or unable to explain to the Tribunal why, in his application form for the protection visa, he claimed to have been a cook and did not refer to his business as a farmer.  However, his source of income in Bangladesh is not relevant to whether his fear of persecution there is well founded.  I found his final assertion at the hearing to have been a farm-owner to be the most plausible of the three accounts, and accept it as fact.”

9. Mr Cleary, pointed out that, properly understood, the Tribunal was not using these apparent points of inconsistency to the detriment of the appellant as one would when, for example, assessing the credibility of a witness who has given different accounts in relation to the same thing, but rather was simply noting the history and background of the explanations which had been given by the appellant as a preliminary to deciding what it should find as a fact in this regard.  Mr Cleary pointed out, as is apparent from the passage I have quoted above, that the Tribunal treated as irrelevant to its decision the assertions which the appellant had previously made.  I consider Mr Cleary's submissions in this respect to be well-founded and I cannot see that the ‘employment history’ point as I have described it involves any legitimate basis for a submission of jurisdictional or like error on the part of the Tribunal.  I therefore refuse leave for that point to be advanced in this court.

10. The second of the two points which were not put before the Federal Magistrates Court was what I shall describe as the contradiction point.  It was dealt with in a paragraph of the appellant's outline headed ‘Tribunal's decision contradictory itself’.  As I understand it, the point is that the Tribunal at some stage accepted that the appellant did have a genuine subjective fear of being targeted by the Awami League activists, whilst at the same time finding that such a fear was not well-founded in Bangladesh.  The appellant's submission was that these two findings were contradictory.  If the Tribunal had made two findings of this kind it is manifest that they ought not to be regarded as contradictory.  The question of whether a person such as the appellant has a genuine fear – genuine in the sense of being genuinely felt by the individual – is quite a different question from the objective one of whether such a fear was well-founded in fact.  There are many cases in which an applicant for a protection visa will properly be held to have a fear in his or her own mind, but at the same time fall short of persuading the Tribunal that such a fear was well-founded against objective factual criteria. 

11. Even if it might be possible to describe concurrent findings of that kind as contradictory, that would not, without more, in my view, give rise to an error of a jurisdictional kind for a body such as the Tribunal.  In addition to these matters, Mr Cleary informed me that, on his reading of the Tribunal's decision, he was not able to discern any positive finding that the appellant did have a genuine subjective fear of being targeted by the Awami League and, for my own part, I have not noticed any such finding.  I consider, therefore, that this point also is quite without merit, and I would dispose of it by declining the appellant leave to raise it at this stage since it was not raised before the Federal Magistrate.

12. The third of the three points on which the appellant based his arguments on appeal is a point which, while not exactly the same as, was certainly broadly similar to, a point which was run on his behalf or by him before the Federal Magistrate.  It has been described in his outline as a ‘Genuineness of the documents’ point.  It is based upon the following passage in the reasons of the Tribunal:

    “I have serious doubts about the genuineness of the documents submitted by [the appellant] which indicate that he faces a politically-motivated charge in Bangladesh, for several reasons.  I have regard to the fact that false documents which appear to be official are readily available in Bangladesh.  Such original documents, such as those purportedly issued by a court, cannot be disregarded but must be treated with caution.  Having regard to this, I note a number of points which cast doubt on their genuineness.”

    The Tribunal proceeded to observe that the appellant had been able to leave Bangladesh openly and legally without paying bribes to officials.  The Tribunal referred to evidence from the Department of Foreign Affairs and Trade to the effect that the appellant could not have left Bangladesh like that if there were an arrest warrant issued in his name at the time.  The Tribunal referred to the appellant's claim to have already had a preliminary hearing in court in relation to a politically motivated charge and to have been released on bail with his brothers.  The Tribunal noted that the charge in question was the apparently serious one of unlawful assembly with arms.  It opined that the appellant's ability to leave the country through the international airport using his own passport and without paying bribes was not consistent with his claim that he was awaiting trial in serious charges at the time.  It added that the appellant's willingness to leave in this manner indicated a lack of fear.  It did not accept the appellant's explanation that simply because he left without warning the authorities had not made arrangements to prevent his departure.  It regarded it as fanciful to suggest that the authorities in Bangladesh act only to block the departure of people awaiting trial or avoiding arrest when they are forewarned of a planned escape.  The Tribunal proceeded to refer to the list of names of BNP leaders facing politically motivated charges to which I have referred above and said that that list appeared to be comprehensive and complete.  It noted that the appellant's name was not on that list, notwithstanding that he claimed to be a BNP leader.  Although the Tribunal accepted that some published lists may not be comprehensive, it added, ‘this one appears to be exhaustive’.  The Tribunal concluded on this point by saying that it had difficulty believing that the appellant faced any politically motivated trumped up charges at any time before his departure from Bangladesh, but added that, even if it was wrong on this point, it was satisfied that the courts treated him fairly by granting him bail and that any legal case against him had been resolved by the time of his departure from Bangladesh.

13. The appellant's concern with these aspects of the Tribunal's decision related to the way in which it dealt with the charge documents on which  he had relied.  In his outline of submissions in this court he appears to have accepted that forged or fraudulently obtained documents were readily available in Bangladesh.  However, he asserted that his own documents were not false, and that the Tribunal expressed its reservations about the genuineness of them without making any investigation.  He said that the Tribunal did not make any effort to prove the authenticity of his documents after he requested it to do so.  He concluded on this point that the Tribunal had made these comments in bad faith.  As to the last observation, I should say that there is nothing in any of the material which would sustain such a criticism of the Tribunal.

14. As to the point generally, although, as I have said, the point was not advanced in precisely the same terms before the Federal Magistrate, a point which in substance dealt with the treatment by the Tribunal of the charge documents and the reservations which it had as to the prospect of those documents having been fraudulently obtained was part of the case before the Federal Magistrate, and he dealt with it. I shall set out the relevant part of the reasons of the Federal Magistrates Court which deal with this point at [11].

    I will deal with the Applicant's grounds in order beginning with the claim of denial of procedural fairness relating to the Tribunal's use of independent country information about the prevalence of document fraud in Bangladesh.  As counsel for the Minister submitted, the facts necessary to establish the kind of error set out in Re Minister for Immigration and Multicultural Affairs, Ex parte Miah (2001) 206 CLR 57 do not apply in this case.

    First, the country information about document fraud was only one of the reasons why the Tribunal expressed serious doubts about the documents provided by the Applicant.  Again, the Tribunal put all the adverse country information to the Applicant for his comments during and after the hearing.  Third, even though the Tribunal did make an adverse finding about the false charges against the Applicant it also considered that if there were such false charges the applicant could expect a fair hearing in court.”

15. In the proceedings before this court the appellant has not attempted to demonstrate error in this passage of the Federal Magistrate's judgment.  For my own part, I cannot discern any.  I cannot understand why the Tribunal was not entitled to proceed in the way that it did, namely by drawing to the appellant's attention the concerns which it had about the authenticity of documents upon which he relied, by indicating to him the derivation or origin of those concerns and by making a judgment which took them into account for such weight as they were worth, but which was also based upon other relevant considerations.  If there is a single critical passage in the decision of the Tribunal in this respect it is the following:

    “Such original documents such as those purportedly issued by a court cannot be disregarded but must be treated with caution.”

    This approach was, in my opinion, an entirely appropriate one for the Tribunal in the circumstances which confronted it at the time, but it is not necessary for me to go so far as to base my judgment upon such a conclusion.  It is sufficient if I find, as I do, that the Federal Magistrate's judgment that nothing in the Tribunal's decision in this respect demonstrated jurisdictional error was free from appellable error.

1. In these circumstances the court will order that the appeal be dismissed. 

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:       8 August 2006

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	M P Cleary
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	8 August 2006
Date of Judgment:	8 August 2006