NASP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 989 (16 September 2003)

Last Updated: 24 September 2003

FEDERAL COURT OF AUSTRALIA

NASP v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 989

MIGRATION - no point of principle.

Migration Act 1958 (Cth)

NASP OF 2002 V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1377 OF 2002

BEAUMONT J

16 SEPTEMBER 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1377 OF 2002

BETWEEN:	NASP OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	16 SEPTEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed, with 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	N 1377 OF 2002

BETWEEN:	NASP OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BEAUMONT J
DATE:	16 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

1 The appellant (who appeared before the Court unrepresented, but, it appears, with some professional assistance), appeals from a decision of Driver FM dismissing his application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The relevant decision was that he was not a refugee for the purposes of the Migration Act 1958 (Cth) ("the Act") and the Refugee Convention and thus was not eligible for a protection visa.

2 The appellant arrived in Australia on 12 January 2000 and lodged an application for a protection visa on 4 February 2000. The Minister's delegate refused the application on 15 March 2000. The appellant applied to the Tribunal on 13 April 2000. The Tribunal handed down its decision, affirming the decision not to grant a protection visa, on 1 August 2002. The Tribunal found that it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.

3 An application for judicial review under s 39B of the Judiciary Act 1903 (Cth) was filed in this Court on 20 August 2002. The matter was remitted to the Federal Magistrates Court on 12 September 2002. The privative clause in s 474 of the Act thus applies to the decision of the Tribunal.

4 The appellant's evidence to the Tribunal was that he was a trained lawyer and advocate, from a well-known family with an outstanding political reputation, and who had been politically active in the Bangladesh National Party ("BNP"). He had also been an officer in the Bangladesh Air Force until 1993, reaching the rank of Squadron Leader. His claim to refugee status concentrated on his political activities and connections, and his claim of a fear of persecution from not only members of the rival political grouping, the Awami League, but also from some members of his own party, the BNP.

5 At the time when the appellant made his application for a protection visa in February 2000, the Awami League was in power in Bangladesh, having been in government since June 1996. But in October 2001 the appellant's own party, the BNP (in coalition with other parties), won government in Bangladesh. It was in that context that the Tribunal made its decision in 2002.

6 In its findings and reasons, the Tribunal said:

`At the hearing, the applicant acknowledged that the Awami League government which was in office when he departed and from whom he feared harm, had now been replaced in government by his own party, the BNP. At the hearing, the applicant claimed that if he now returns to Bangladesh he will still suffer harm from the Awami League, now in opposition, as well as from vindictive members of the BNP, his own party, who would resent the fact that the applicant is a promising politician.

The Tribunal is prepared to accept that the applicant is a BNP party member and that he has contacts with the BNP at the highest level as he claims. The Tribunal has considered the applicant's claims but finds no support in the independent evidence, which the Tribunal accepts, that the Awami League, now in opposition, is conducting any program of targeting BNP personalities such as the applicant. Moreover, the tribunal finds that if he were so threatened, the applicant, as a BNP member with high contacts in the Party, could call upon the resources of the government to protect him in such a situation. Indeed, the figure in the Awami League that the applicant specifically identified as representing a threat to him has, according to the applicant's own evidence, been detained on a charge of murder by the authorities. The Tribunal finds as speculative, and is not persuaded by, the applicant's claim that this person might be released or that conflict might ensue over his arrest which might, in the end, harm the applicant. In the light of the evidence before it, the Tribunal finds that the applicant's fear of harm from the Awami League is not well founded.

The Tribunal has also considered the applicant's claim that he fears harm from vindictive fellow BNP members. The Tribunal notes that the only evidence in the independent evidence above of intra-BNP conflict refers to the arrest of BNP members engaged in attacks on Hindus, and a clash between rival BNP factions in a village. On the basis of the evidence before it, the Tribunal is not satisfied that any fears the applicant has in this regard are well founded.

In the light of this, the Tribunal finds that any harm the applicant may suffer as a result of merely resuming political activities upon his return to Bangladesh, is not harm that would engage the protection of the Convention.

In the circumstances of the applicant's case, the Tribunal is not satisfied by the totality of the evidence before it, that there is a real chance the applicant would be harmed if he returned to Bangladesh and resumed his life in politics.

Overall, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.'

7 In his application for judicial review of the Tribunal's decision dated 19 August 2002, the appellant relied upon these grounds:

`2. I am a genuine Refugee applicant in accordance with the United Nations Conventions 1951 and 1967 protocol related to the status of Refugee. I am not satisfied with the RRT decision and the decision is bared by the Refugee Conventions & protocol and the Migration Act 1958. May I please your honor to accept my application and returned me a favourable Judgement for the ends of Justice.

I was deprived to fully present my case to the Tribunal.

4. The Tribunal failed to act according to substantial justice and the merits of the case were ignored by the Refugee Review Tribunal member.

5. I am not satisfied with the RRT Member's comments regarding my real fear of persecution under the present ruling of BNP coalition government in Bangladesh.'

8 In support of his application the appellant filed an affidavit sworn 18 August 2002, stating -

`I strongly believe that the tribunal failed to visualize the circumstantial facts of my case. The tribunal could not weigh my apprehension in the light of the present volatile political scenario of Bangladesh. The tribunal made mostly sweeping statement without perceiving the intra-party conflict of BNP, the aggressive traits of Awami activists, the lot of political killings, social unrest and the incapacity of the ruling party even to protect their own political activists from the onslaughts of the overt and convert [sic] rivals.

My written and verbal submission along with the documentary evidence vis-a-vis the grim political condition of my country and my personal status to wit my apprehension of persecution made it clear beyond any reasonable doubt that I am a genuine refugee applicant. But unfortunately the tribunal could not perceive these burning realities.

The tribunal also cited and relied on a few cases of our country even not based on independent of media. Whereas numerous deadly political incidents and murders occurring without any halts have been overlooked by the tribunal. Hence, the tribunal could not foresee my fear of political persecution due to my personal and political profile.

I was one of the well-known political leader, belonged to the Bangladesh Nationalist Party and I was the first Joint Convenor of the BNP of Shariatpur District Committee and presently I am a leading member of Shariatpur District Convening Committee And I am also the executive member of Nationalist Lawyer's Forum.'

9 The appellant developed his grounds of appeal before the Court today - essentially to the same effect.

10 In his reasons, Driver FM said:

`4. The applicant in his application and supporting affidavit arguably raises two issues. One is a breach of procedural fairness. The other is a breach of s.420(2)(b) of the Migration Act 1958 (Cth) ("the Migration Act"). In addition, in his oral submissions today, the applicant asserts that the presiding member of the RRT was biased and did not exercise good faith in reaching a decision. The allegation of procedural fairness is not particularised and it is not apparent from the court book that there was any breach of procedure in the conduct of proceedings before the RRT.

5. The applicant was invited to appear before the RRT and that he did so and presented both oral submissions and documents. The applicant was made aware of potentially adverse matters relating to him that the RRT took into account. The applicant exercised an opportunity to dispute potentially adverse matters at the hearing provided to him.

I conclude, therefore, that there was no breach of procedure by the RRT that could sustain the assertion of a lack of procedural fairness.

6. The asserted breach of s.420(2)(b) of the Migration Act is an assertion that the RRT did not come to its decision in accordance with substantial justice and the merits of the case. This it seems, having heard the applicant in his oral submissions, is necessarily related to the assertion that the presiding member was biased and did not come to a decision in good faith. That is, of course, a serious allegation which should be clearly stated and should be particularised.

7. The applicant took me to page 120 of the court book in particular and the presiding member's treatment of a letter that the applicant submitted from an official of the Bangladesh High Commission in Canberra. That letter appears in the court book at page 104. The applicant submitted that letter in support of his statements concerning his background and his general good character. The applicant asserts that the presiding member used that letter for an improper purpose in order to demonstrate that the applicant would be safe should he choose to return to Bangladesh.

8. This matter is dealt with by the presiding member in the court book at page 120 in the following terms:

"In support of his good qualities he submitted a letter of commendation from the Bangladesh High Commission in Canberra dated 20 July 2000. The Tribunal put to the applicant that this letter in fact was written by a diplomat representing the Awami Government at that time and one which he had claimed was harassing him with false charges. The applicant agreed that this was not the case. He said, however, the present government cannot protect people and he wished to follow in the footsteps of his "politically active forefathers". He said he cannot compromise with his principles and successful political activism in Bangladesh requires one to "resort to firearms and adopting corrupt principles". He said that people in the BNP would be afraid he might rise to become prime minister or president and that is why both parties would oppose him. He said Bangladesh is not a country for honest people"

9. There appears to be no further reference to this letter in the decision and reasons of the RRT so it cannot be said that it was a determining factor in the RRT coming to its decision that the applicant did not have a well founded fear of persecution. I can surmise that because there was a change of government in Bangladesh last year, with the Awami League losing power to the BNP (which the applicant supports) that the RRT did not consider that the letter assisted the applicant in his claim.

10. The letter would seem to be essentially irrelevant to the contrary proposition that it was safe for the applicant to return to Bangladesh. Given that the Awami League was no longer in power the views of one High Commission official in Canberra, who was apparently associated with the Awami League, would not have any particular bearing on the risk of persecution following the change of government.'

11 In my opinion, Driver FM was clearly correct in law and in fact in concluding that in this respect, no "bias" or lack of procedural fairness on the Tribunal's part had been demonstrated here.

12 Driver FM went on to say:

`11. The findings and reasons of the RRT ... , although brief, deal coherently with the two issues put before the RRT by the applicant. Those were the potential for him to suffer persecution at the hands of the Awami League and the potential for him to suffer persecution at the hands of fellow BNP members. The RRT dismissed the first assertion on the basis that there had been a change of government in Bangladesh last year and that an Awami League figure, who the applicant asserted was a particular risk to him, had been detained by the authorities, indicating that that individual was no longer a threat and that the authorities were taking reasonable steps in order to prevent such individuals persecuting others.

12. The second assertion was not accepted by the RRT on the basis of the material before it. The RRT was not satisfied that there was any persuasive evidence of intra-party conflict within the BNP that posed a risk to the applicant.'

13 Driver FM was not persuaded that, in so finding, the Tribunal "was biased or indicated a pre-judgment".

14 Again, in my view, Driver FM was clearly correct in fact and in law in so deciding.

15 By his notice of appeal to this Court dated 17 December 2002 (filed 18 December 2002), the appeal relies upon the following grounds:

`2. The Single judge of the Federal Magistrate Court in his Honors Judgment delivered on the 3^rd December 2002 failed to find error of law, Jurisdictional error, Procedural fairness and relief under Section 39B of the Judiciary Act 1903.

3. The grounds and relief is very much similar with a recent High Court Judgment - Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). Catchwords: Immigration - Refugee - Protection visa - Decision by Minister to refuse application for visa - Review of decision by Refugee Review Tribunal - Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Register of Tribunal for purpose of review - Nature and extent of obligation - Migration Act 1958 (Cth), ss 148(3), 424(1).

4. The RRT failed to internalise the circumstantial grounds of the review application while Considering the claims of the review and did not consider the supporting facts and documents. Therefore, the applicant seeks a review with the Federal Court of the decisions of the Tribunal under s 39B of the Judiciary Act 1903 (Cth) and Migration Act 1958 (Cth).

5. The Federal Court has jurisdiction in relation to the Refugee Review Tribunal decision of 9 January 2002 ... under s 39B of the Judiciary Act 1903 (Cth) being a matter which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The jurisdiction is co-extensive with the jurisdiction of the High Court under s.75(v) of the Constitution.

6. In Walton v Phillip Ruddock MIMA (2001) FCA 1839 Merkel J cited Darling Casino Ltd v NSW Casino Authority [1997] HCA 11; (1997) 191 CLR 602, Gaudron and Gummow JJ observed at 633. The term of s.75(v) would be defeated if a privative clause operated to protect against jurisdictional errors being refusal of exercise jurisdiction, or excess of jurisdiction, in the later case whether by reason of the constitutional invalidity of the law relied upon or the limited terms of the valid law.

7. Justice Merkel went on to cite Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179. If an administrative tribunal falls in to 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 at least in some circumstances, to make a erroneous finding or to reach mistaken conclusion and the tribunal's exercise or purported exercise of power is thereby, it exceeds statutory power. Such an error of law is jurisdictional error, which will invalidate any order or decision of tribunal which reflects it.

8. In Adebe [sic] v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 Gleeson CJ and McHugh J stated at 536-537 once a question arises as to whether a Commonwealth officer has acted lawfully or within or outside the jurisdiction conferred on him or her, no law of the Parliament can curtail the jurisdiction of this Court to decide the issue, a jurisdiction which the Constitution has conferred on this Court to protect the people of the Commonwealth and the individual states from excesses of Commonwealth power.

9. The Tribunal's decision of 9 April 2002, being a privative clause decision, is subject to the constrains [sic] on review imposed by s.474(1) Migration Act 1958. The selection [sic] operates in accordance with the diction of Dixon J in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 at 615. The effect of the clause is that a decision in fact made by an administrator will fall within the jurisdiction of the administrator provided "that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body".

10. In judicial Review of Administrative Action (2^nd edition) by Mark Aronson and Bruce Dyer, the authors at page 691 add two other principles - first, that the impugned decision does not display a jurisdictional error on its face and secondly, did not breach a statutory constraint regarded as being so important as to be unprotected in anyway by the operation of the clause. Authority for the first principle is derived from a part of Dixon J's Hickman judgment at 618 as well as R v Commonwealth Rent Controller; ex parte National Mutual Life Association of Australasia Ltd [1947] HCA 32; (1947) 75 CLR 361; R v Central Reference Board; ex parte Theiss (Repairs) Pty Ltd [1948] HCA 9; (1948) 77 CLR 123; and R [v] Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387.

11. The Tribunal's ignoring of relevant evidence and its finding in the face of contradicting independent evidence which indicates actual bias constitutional error being a breach of procedural fairness which is an essential condition of the exercise of the decision making power and attracts 39B Judiciary Act 1903 as per Gaudron J in Abebe v Commonwealth [1999] HCA 14; (1999) 162 ALR 1 at 33 paragraph (113). Thus subject to the operation of discretionary factors, breach of those rules is a jurisdictional error which will ground prerogative relief.

12. The applicant is a genuine refugee under the UN convention and sub-class 866 of the Migration Act 1958, but the authority has not considered applicant's claims and he has been refused to remain in Australia permanently. The RRT has failed to investigate the applicant's claims, specifically the grounds of persecution, in India [the reference to India appears to come from another document]. Therefore the tribunal's decision dated on 9 April 2002 was affected by actual bias constituting Judicial error.'

16 With respect to Ground 2, the appellant had the opportunity to present oral evidence to the Tribunal, which he took. The appellant also presented written material to the Tribunal which was referred to by the Tribunal. Moreover, as Driver FM noted, the Tribunal drew the attention of the appellant to certain potentially adverse findings and gave him the opportunity to respond.

17 The Notice of Appeal mentions, in Ground 2, Muin v MIMIA [2002] HCA 30; (2002) 76 ALJR 966. It appears that no argument relating to country information was made in the Court below, and there is no evidence before the Court to support a Muin-type argument, either in relation to what information was or was not provided to the appellant, or as to what difference this might have made. Moreover, in contrast to Muin, the issue of the change of government was squarely raised and addressed by the appellant in the hearing before the Tribunal. Indeed, the claimed threat from rival members of the BNP was one of the two bases on which his case was put before the Tribunal (in contrast to how it was put to the Department, before the change in government).

18 In my view, no error has been shown in the decision below in this regard.

19 The remaining grounds of appeal seem to be directed to a contention that, for the purposes of s 474 of the Act, the Tribunal's findings constituted a "jurisdictional error". But, in my opinion, no error of fact or of law has, in the case of the Tribunal, been demonstrated, let alone one of a "jurisdictional" kind.

20 Accordingly, the appeal must be dismissed, with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated: 24 September 2003

Solicitor for the Applicant:	The appellant appeared in person
Counsel for the Respondent:	Mr J K Kirk
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	16 September 2003
Date of Judgment:	16 September 2003