NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 86 (6 February 2004)

Last Updated: 2 March 2004

FEDERAL COURT OF AUSTRALIA

NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 86

NAST AND ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 780 of 2003

ALLSOP J
6 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 780 of 2003

BETWEEN:	NAST FIRST APPLICANT NASU SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	6 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The application be dismissed.
2.	The first applicant 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	N 780 of 2003

BETWEEN:	NAST FIRST APPLICANT NASU SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	6 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 In this matter the applicants seek review under s 39B of the Judiciary Act 1903 (Cth) of a decision of the Refugee Review Tribunal (the Tribunal) made on 12 May 2003 in which the Tribunal affirmed a decision of a delegate of the Minister refusing the applicants protection visas for which they had made claims. The first applicant is a national of Bangladesh and is the mother of the infant second applicant who was born in Australia after arrival on 15 January 2002, the first applicant having arrived in Australia on 17 March 2001. There were two applications for visas but it was recognised that the second applicant's application was dependent upon the success of the first applicant’s.

2 The claims of the first applicant and her subjective fears of returning to Bangladesh claimed by her were set out in a statement accompanying her application for a visa. Briefly, and in summary form, they related to the history of her relationship with a man she met in college while studying for her secondary school Higher Certificate. Their relationship apparently blossomed and she apparently, the first applicant that is, began to live with the man in question not within the context of a formal marriage relationship. Her expectations of the relationship were deeply disappointed by life with this gentleman, in particular because of the attitude of his immediate family.

3 The first applicant's own family were apparently deeply disapproving of the conduct in question. After the man in question went to Kuwait to find work, the first applicant continued to remain with his family and her treatment at their hands apparently became worse. In particular, she was abused and mistreated by the man's younger brother in the fashion she sets out in her statement. Through relatives she managed to come to Australia under a visitor's visa. She says that if she returns home she will be persecuted by those in the man's family and that her family will no longer accept her.

4 She says that she would not be accepted now by the man she considers to be her husband and that her life is not safe in Bangladesh in circumstances where, as a woman without a husband and with no family to care for her, she will, with her child, be unable to fend for herself.

5 Those are the claims of the applicant in her statement, elaborated slightly to place them in a little context. I do not make any findings of fact. That is not my task in an application such as this. The delegate and then the Tribunal were each charged with the responsibility of examining all the facts of the case. The Tribunal starts entirely afresh to do the same thing that the delegate did, that is, examine the claims.

6 My task in an application such as this is to ensure that the Tribunal has approached the matter lawfully so that it can be assessed one way or the other whether the claims of the applicants have been lawfully and properly considered. What it is necessary to understand is that the Tribunal is given the task of coming to a state of satisfaction. It either is satisfied of all relevant matters or it is not satisfied of all relevant matters. The most important consideration for it, and the one relevant here, was whether it was satisfied that the applicants had a well-founded fear of persecution under the Refugee Convention.

7 Pursuant to the statute, if the Tribunal is satisfied of all relevant things it must grant a visa. Also, if the Tribunal is not satisfied of all relevant things, it must not grant a visa. Here, the Tribunal had the claims of the applicant in writing before it. It gave notice of a hearing to the applicant because the Tribunal said that it was not satisfied on the papers alone of the version of events given by the applicant.

8 The applicant did not attend the hearing of the Tribunal. The first applicant has indicated to me this morning that she was sick on that day and that she did not realise the importance of the Tribunal hearing day. I am satisfied from the terms of the correspondence informing the first applicant of the hearing that from its terms a fair statement was made as to the importance of the Tribunal hearing.

9 The Tribunal in its reasons identified the matters which led it to a view that there were inconsistencies that needed explanation. I need not list them. They are contained on page 8 of the Tribunal's reasons. It is sufficient for me to say that having read the material, including the statement of the first applicant and the reasons of the Tribunal, it was in no way irrational or arbitrary or capricious for the Tribunal to want an explanation about these matters.

10 The Tribunal did not go on to decide adversely these factual questions. Rather, it said that with the material before it, with the inconsistencies perceived, the Tribunal could not be satisfied of the existence of a well-founded fear of persecution. Complaint is now made about that approach, by the applicants.

11 The application lists various complaints. The application is written in hand in English with respect to the first applicant, plainly not by her. The seven grounds of the application were as follows:

1. That the decision involved a jurisdictional error of law being an error of law involving an incorrect interpretation of the applicable law to the fact of the case was found by the Refugee Review Tribunal.

2. The Tribunal ignored the merits of the claim & the Tribunal gave the decision within considering real state of affairs.

3. The Tribunal decision was unjust & was made without taking into account the full gravity of the applicant’s circumstances and the consequences of the claim.

4. The Tribunal decision was an improper exercise of the power conferred by the Migration Act on the regulations.

5. There was no evidence or other material to justify the making of the decision.

6. The Tribunal did not provide me an opportunity to make comments on material, which the Tribunal relied on its decision.

7. The Tribunal took irrelevant considerations to decide the applicant case.

12 Further, today, in Court the applicant handed up a three-page document identifying further grounds and submissions in support of her and her child's application.

The applicants appeals from the decision of the Refugee Review Tribunal given of 12^th May 2003 pursuant to S.476(1)(f) on the grounds that the decision was induced or affected by actual bias.

Particulars of actual bias

On the evidence as a whole, the findings of the Tribunal member as to the following matters demonstrated actual bias:

The Tribunal does not accept that I was persecuted, abuse by my husband and my family.

The Tribunal also rejects my claim because my written evidence was inconsistent in relation to major issues. The Tribunal did not treat this matter as a s.424A issue as I brought in my primary statements which I submitted in connection with my protection visa application to the department to ensure that it was before the Tribunal.

In any case, if the Tribunal is wrong and I am a genuine refugee the Tribunal is still not satisfied that I have a well-founded fear of persecution within the meaning of the Convention if I return to Bangladesh now.

Despite numerous opportunities to mention my fear of brutally assaulted. The Tribunal dose not accepted well established persecution in my claim were genuine and true.

1. The grounds and relief is very much similar with a recent High Court Judgement – 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 obligation – Migration Act 1958 (Cth), ss 418, 424(1).

2. Despite the severity of the "privative clause", an opportunity for review can lie under section 39B of the Judiciary Act (Cth) 1903, which relies on the original jurisdiction of the Federal Court. However, review under s.39B is gained the decision of the Refugee Review Tribunal dated 12^th May 2003 can be reviewed, if the following four factors are observed:

a. The decision maker acted in good faith.

b. The decision is reasonably capable of reference to the power granted to the decision maker – this is unlikely to be an issue given that, to argue to the contrary, it would have to be shown that the decision maker did not have the authority to make the decision concerned, for example, had not had the authority delegated to him or her by the Minister for Immigration and Multicultural and Indigenous Affairs or had not been properly appointed to the Tribunal.

c. The decision relates to the subject matter of the legislation (i.e. the Migration Act) – this again is highly to be an issue, given that a major purpose of the Migration Act is the making of visa decisions.

d. Constitutional limits are not exceeded – given the clear constitutional basis for visa decision making in the Migration Act this is highly unlikely to arise.

From the above factors, the only one of any real significance is the first, that the Tribunal did not act in good faith.

Under the Hickman principles, in order for the Federal Court to review the decision of the RRT, my claim that the decision maker acted in bad faith. This is very easy to find the RRT decision dated 12 May 2003 in my refugee application. This means that the decision maker got the facts wrong, took into account irrelevant matter, did not take certain matters into consideration. And the decision maker did not make an honest attempt to come to the right decision, also the decision maker intentionally made a wrong decision, in other words acted in bad faith.

On the 4 February 2003, the High Court of Australia handed down its decision in plaintiff S157/2003 v Commonwealth of Australia [2003] HCA 2 (4 February 2003). This to some extent overturned the decision in NAAV or at least widened the grounds for review to include "errors of law".

The High Court held that people whose fundamental rights are at stake are ordinarily entitled to expect more than good faith. They are ordinarily entitled to expect fairness. If parliament intends to provide that decisions of the Tribunal, although reached by an unfair procedure, are valid and binding, and that the law dose not require fairness on the part of the Tribunal in order for its decisions to be effective under the Act, then s474 is insufficient to manifest such an intention.

The High Court went on to say that if a decision was made in breach of the rules of natural justice, then that decision would not be a decision to which s474 applies. It would not be a privative clause decision as it would not properly be a decision made pursuant to the Migration Act, as the Act contemplates that decisions will be made according to law.
[emphasis and errors as in original]

13 From the material before me there is no basis to conclude that there has been some incorrect interpretation of applicable law; there is no basis to conclude that the Tribunal in its approach in any way ignored the merits of the claim. There is no basis to conclude that in the light of the difficulty the Tribunal had with perceived inconsistencies that in the absence of explanation it is to be criticised for not being satisfied of the relevant matters; there is no basis to conclude there was any improper exercise of power or that there was no evidence or material to justify its lack of satisfaction.

14 There is an assertion of a failure to accord procedural fairness. On the history of the matter that simply is not arguable. Even if it were, s 422B of the Migration Act 1958 (Cth) would make that assertion irrelevant. But for the avoidance of doubt, and in fairness to the Tribunal Member, I should express my view that on the facts as I have outlined them there was not the slightest unfairness to the applicant in the procedure adopted.

15 In coming to the view that it could not be satisfied as to the applicant's claims as to a well-founded fear of persecution I see no irrelevant considerations taken into account in terms understood in administrative law by reference to the principles in the High Court case of Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. The assertion of actual bias made in the submissions handed up today is without foundation. An assertion of actual bias in relation to a Tribunal such as this is an assertion of a most serious kind for which, on the material before me, there is no foundation. The submissions in relation to the privative clause need not be dealt with in the light of what I have said. Further, there was no bad faith and no breach of the rules of natural justice, for the reasons I have given.

16 There is reference in the submissions handed up today as to the application, or asserted application, of the decisions of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 and Lie. No evidence was led and no submissions were put which would even begin to found the application of those two decisions. In particular, there is no asserted relationship between the lack of attendance at the hearing and the contents of any letter sent prior to the Tribunal hearing. That would be difficult because the first applicant explained to me today that she was sick. Implicitly in her statement to me today she understood that the hearing was on the day which it was held.

17 There is no evidence of the Tribunal having refused any later request to re-open the hearing because of an inability to attend on that day. And on the material before me the Tribunal cannot be criticised for dealing with the matter reasonably promptly after the hearing date.

18 For these reasons I would dismiss the application.

19 Before concluding, I wish to add one further matter but before saying what I am about to say, I wish to preface it by saying that it is not said with the slightest criticism of the first applicant at all and I am not seeking in any way to criticise her or her conduct in the handling of this matter.

20 However, it is plain that the application was drawn by someone who understood English perfectly. The same can be said of the submissions that were handed up today. The content of both the application and the submissions today reveal some familiarity with the governing law in this country. They show no familiarity with the application of that governing law to the first applicant’s position as she finds herself with her child after the Tribunal hearing.

21 It is not this Court's job to investigate whether or not money was paid for these documents or whether they were prepared by well meaning persons doing this for no fee. In large part, they are incantations of general propositions and at no time do they descend to the particularity of the applicant's position. If it be the case that a practitioner or a non practitioner charged the applicant money for these documents, for my part, I would view that seriously. However, it is not this Court's function to make these sorts of investigations.

22 Apart from anything else, this Court cannot investigate any lawyer-client relationship which may have existed between the applicants and any adviser. I wish to emphasise once again that what I have said is in no way a criticism of the first applicant or of the second applicant. It would be entirely a matter for the first applicant but if she were to have paid money for this "assistance", it might be a matter that she would wish to pass on to the Department or the Law Society, but that is entirely a matter for her and I do not wish to say any more.

23 The orders of the Court are:

1. The application be dismissed, and
2. The first applicant pay the respondent's costs.

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

Associate:

Dated: 2 March 2004

The applicant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	Ms M Allars
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	6 February 2004
Date of Judgment:	6 February 2004