NADO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (includes corrigendum dated 16 October 2002) [2002] FCAFC 309 (11 October 2002)

Last Updated: 17 October 2002

FEDERAL COURT OF AUSTRALIA

NADO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 309

CORRIGENDUM

NADO OF 2002 & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 693 of 2002

SACKVILLE, ALLSOP & JACOBSON JJ

11 OCTOBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 693 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NADO OF 2002 FIRST APPELLANT NADP OF 2002 SECOND APPELLANT NADQ OF 2002 THIRD APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	SACKVILLE, ALLSOP & JACOBSON JJ
DATE OF ORDER:	11 OCTOBER 2002 (CORRIGENDUM 16 OCTOBER 2002)
WHERE MADE:	SYDNEY

CORRIGENDUM

In order two (2) of the orders of the Court, the word "respondent's" should be inserted before the word "costs" and the word "proceedings" should be deleted and replaced with the word "appeal", so that order two (2) says: "The appellants pay the respondent's costs of the appeal".

I certify that the preceding paragraph is a true copy of the Corrigendum herein of the Honourable Justices Sackville, Allsop & Jacobson JJ.

Associate:

Dated: 16 October 2002

FEDERAL COURT OF AUSTRALIA

NADO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 309

NADO OF 2002 & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 693 of 2002

SACKVILLE, ALLSOP & JACOBSON JJ

11 OCTOBER 2002

SYDNE

YIN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 693 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NADO OF 2002 FIRST APPELLANT NADP OF 2002 SECOND APPELLANT NADQ OF 2002 THIRD APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	SACKVILLE, ALLSOP & JACOBSON JJ
DATE OF ORDER:	11 OCTOBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the costs of the proceedings.

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 693 of 2002

ON APPEAL FROM A SINGLE JUDGE OF FEDERAL COURT OF AUSTRALIA

BETWEEN:	NADO OF 2002 FIRST APPELLANT NADP OF 2002 SECOND APPELLANT NADQ OF 2002 THIRD APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE, ALLSOP & JACOBSON JJ
DATE:	11 OCTOBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from an order of a Judge of the Court dismissing an application purportedly under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal (the Tribunal) affirming a decision of a delegate of the respondent Minister to refuse protection visas under the Migration Act 1958 (Cth) (the Act). We say "purportedly" because, as the primary judge pointed out, the application was not in proper form. However, the primary judge dealt with the matter assuming that all formalities had been complied with. We shall do the same.

2 The three appellants are a family: husband, wife and child. The first and second appellants (husband and wife) had their own applications. However, it is unnecessary to refer further to the claim of the wife because, prior to the Tribunal making its decision, she expressed a desire not to proceed with her independent claim and to be considered under her husband's application. Thus the positions of the second and third appellants are governed by the fate of the first appellant's appeal. We will refer to the first appellant as the appellant.

3 The appellants are Bangladeshi nationals. The husband arrived in Australia in October 1995. In January 1996, he applied for a Refugee and Humanitarian (Migrant) Class BA visa. This was refused in November 1997. In December 1997 he applied for a protection visa claiming fear of harm for reasons of political opinion and in particular for being associated with the publication of a book dealing with the role of the Muslim religion in Bangladesh. In March 1998 the husband's application was refused. In April 1998 the husband applied to the Tribunal for review. In June 2000 the review was heard (together with the then extant claim for review by the wife). The Tribunal made various enquiries in Bangladesh. It called a further hearing in November 2001. In February 2002 the Tribunal handed down its decision (on the husband's claim for review made in March 1998) affirming the decision of the delegate.

4 The primary judge heard the matter on 6 June 2002 and delivered judgment on 24 June 2002.

5 The claims in the application and an accompanying affidavit were set out by the primary judge at [5] and [6] of his reasons. Submissions were filed prior to the hearing before the primary judge and they are set out at [7] of his reasons.

6 There was a claim as to the Constitutional invalidity of s 474 of the Act. (Notices under s 78B of the Judiciary Act were sent in a timely fashion to the Attorneys General before the hearing by the primary judge.) His Honour dealt with this claim conformably with the views expressed by his Honour in NAAX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 263 and by Allsop J in NAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713, that is upholding the Constitutional validity of the section. This is in accordance with the views of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228.

7 As the primary judge said, that left in substance one claim available: that the Tribunal had not approached its task bona fide. The claims before the primary judge were various and intermingled, with allegations of bias and lack of procedural fairness at the fore. However, the primary judge was correct to approach the matter on the basis that a lack of bona fides had to be demonstrated.

8 The Notice of Appeal makes the following complaints about the primary judge's orders (typographical errors appear in the original):-

1. The trial judge erred in failing to find that the Tribunal had failed to respond to the material facts of the case.

2. The Honorable trial judge erred considering the natural justice, which the Tribunal deprived the applicant. The Honorable trial judge failed to consider the natural justice and also empowered to consider any error that occurred by the Tribunal (39(B) of the Judiciary Act).

3. The Honorable trial judge also erred considering the applicant's persecution upon returning to Bangladesh, as there is a court verdict against him.

4. The Honorable trial judge failed to consider the breach of natural justice, as the RRT did not provide an opportunity to the applicant to make comments on materials which RRT used to conclude its decision. Furthermore, the RRT did not consider the interview of the applicant's spouse who has a different claim also. In this case procedural fairness was also breached."

9 Until the handing up to us of written submissions on the appeal, there was no specific attack on the primary judge's finding that the decision had not been shown to lack bona fides.

10 When the appeal was called on for hearing, the appellant handed up typed written submissions. They were signed by the appellant. They were plainly not his work. Upon being asked, the appellant said that a migration agent had prepared them, for reward.

11 The written submissions invoke the High Court's decision in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601. The draftsperson of the submissions selected portions of the judgments in that case and referred to that case in such a way as to indicate a lack of understanding of it, certainly as to this appellant's position. There was no evidence here that there was a failure to comply with subs 418(3) of the Act, that the appellant thought some matter was before the Tribunal when it was not, or that the Tribunal took into account any matter not brought to the attention of the appellant. In any event, there is a clear majority in NAAV, supra, to the effect that even if there had been shown to be a failure to accord procedural fairness, such a circumstance was effectively authorised by s 474.

12 The primary judge refused to deal with the matter on the basis of natural justice. On the authority of NAAV, supra, he was correct to do so.

13 The written submissions make an assertion that the Tribunal acted in bad faith. This is a serious allegation. We have read the decision of the Tribunal. We see no basis for the assertion. The primary judge was of the view that the Tribunal had not exhibited a want of bona fides. No attempt was made to show how his Honour fell into error.

14 The written submissions relied on the judgment of Merkel J in Walton v Ruddock [2001] FCA 1839 in favour of the proposition that jurisdictional error existed, untouched by s 474. No coherent basis for the existence of any jurisdictional error was put forward. Also, without the slightest disrespect to Merkel J, the jurisprudence in the Court, in particular in the five member Full Court in NAAV, supra, makes the citation of a decision of late 2001 of a single judge of the Court less than helpful.

15 We are concerned that, for reward, a migration agent has drawn submissions, which in the circumstances were of little assistance to the Court, or to the appellant, without attribution of their authorship. It is a practice about which we have grave reservations. We intend no criticism of the appellant. He is not legally trained and is not to be expected to appreciate this. We would have thought that if a migration agent is to draft submissions, he or she should make it plain that he or she is the author of the submissions. This is particularly so when he or she does not appear.

16 Other complaints in the Notice of Appeal are essentially factual matters, which, to have any force, must form part of an attack on the bona fides of the Tribunal. We have dealt with this.

17 We can see no error in the approach and reasons of the primary judge.

18 The appeal must be dismissed. We see no reason why costs should not follow the event in the usual way.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sackville, Allsop & Jacobson JJ.

Associate:

Dated: 11 October 2002

The Appellant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	R Bromwich
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 October 2002
Date of Judgment:	11 October 2002