NACW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 253 (11 November 2003)

Last Updated: 4 December 2003

FEDERAL COURT OF AUSTRALIA

NACW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 253

MIGRATION - appeal - where conceded error of construction by primary judge because of subsequent decision of High Court - whether primary judge's orders should be set aside and the proceedings be remitted

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228; (2002) 123 FCR 298 cited

NABH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 19 followed Plaintiff S 157/2002 v Commonwealth [2003] HCA 2; (2003) 195 ALR 24 discussed

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S 134/2002 [2003] HCA 1; (2003) 195 ALR 1 followed

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 77 ALJR 699 referred to

SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121; (2003) 199 ALR 281 referred to

SDAV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 129; (2003) 199 ALR 43 referred to

NACW OF 2002, NACX OF 2002, NACY OF 2002, NACZ OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1298 OF 2002

SPENDER, HELY & BENNETT JJ

11 NOVEMBER 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1298 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NACW OF 2002 FIRST APPELLANT NACX OF 2002 SECOND APPELLANT NACY OF 2002 THIRD APPELLANT NACZ OF 2002 FOURTH APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	SPENDER, HELY & BENNETT JJ
DATE OF ORDER:	11 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal of NACW of 2002, NACY of 2002 and NACZ of 2002 is upheld.

2. The orders made by the primary judge on 19 November 2002 are set aside insofar as they relate to the application made by those appellants.

3. The proceedings insofar as they relate to those appellants be remitted to the primary judge for further hearing and determination.

4. The appeal of NACX of 2002 is 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 1298 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NACW OF 2002 FIRST APPELLANT NACX OF 2002 SECOND APPELLANT NACY OF 2002 THIRD APPELLANT NACZ OF 2002 FOURTH APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	SPENDER, HELY & BENNETT JJ
DATE:	11 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 Each of the appellants is a citizen of Bangladesh. NACW (`the wife') is the wife of NACX (`the husband'). NACY and NACZ are their children (`the daughters'). The wife applied for a protection visa on 6 March 1996. The daughters were included in the wife's application as members of the family unit who do not have their own claims to be a refugee. The husband applied for a protection visa on 23 May 1997 and joined the wife and daughters in his application as members of the family unit who do not have their own claims to be a refugee.

2 A delegate of the respondent refused their applications for protection visas on 20 October 1997. The Refugee Review Tribunal (`the RRT') affirmed that decision on 7 February 2002. As the daughters did not put forward individual claims to refugee status, their claims for protection visas depended on the outcome of one or other of their parent's applications. The appeal papers include a notice of motion for the appointment of the husband as the next friend of the daughters for the purpose of this appeal, but so far as we can see, no such appointment has been made. Neither party submitted that this was a matter of any significance.

3 The wife claimed that she had problems in Bangladesh because she was a leading advocate of women's rights and because of her involvement with a political party called Gono Forum. The husband claimed that he had problems prior to his departure from Bangladesh because of his involvement in a small political party called the Jatiya League, and because of his involvement in the publication of two books of poetry which contained criticisms of the first leader of Bangladesh and his daughter.

4 On 9 March 2000 the husband and the wife attended a hearing at the RRT. After that hearing the RRT asked the Australian High Commission in Dhaka to conduct further investigations into the claims made by the husband regarding his political activities in Bangladesh, and the problems which he claimed to have faced as a result of his involvement in the publication of the books of political poetry.

5 On 30 June 2000 the RRT wrote a letter which summarised the results of these investigations. In its typed form, the letter was addressed to the wife, but this appears to have been altered in handwriting so as to make the husband the addressee of the letter. It does not matter very much to whom the letter was addressed because in the body of the letter the addressee was told that all of the appellants had to be told about the letter.

6 On 25 July 2000 the husband's solicitors wrote to the RRT enclosing a statutory declaration from the husband in response to the RRT's letter of 30 June 2000 and making certain submissions in relation to that letter.

7 At about this time the husband told the RRT that the High Commission officer who had investigated his claims had behaved corruptly, contacting his nephew and a friend to demand money in exchange for a favourable report. He said that his nephew and the friend had refused to pay any money and as a result the report from the Department of Foreign Affairs & Trade (`DFAT') was biased. The RRT forwarded that information to DFAT, but noted in its decision that the investigation into the allegations had still not been finalised as at the time of that decision.

8 In August 2001 a different officer from the Australian High Commission in Dhaka made enquiries into the husband's claims at the request of the RRT. By letter dated 3 October 2001 the RRT gave to the husband a summary of the results of these further investigations. According to the RRT's letter, the further investigations suggested that the husband had exaggerated his involvement in politics and his importance as a political figure in Bangladesh. The further investigations also cast doubts upon the husband's claims in relation to the publication of the books of poetry. Accordingly, the husband was invited to attend a hearing to be held on 19 November 2001 to discuss these and any other outstanding matters relating to his case.

9 In subsequent correspondence, the RRT, the husband and the wife all treated the invitation to a second hearing as being one which was extended to both husband and wife. The hearing date was changed to 23 November 2001 because an interpreter requested by the wife was not available on 19 November 2001. The hearing was again rescheduled to take place on 26 November 2001 at the wife's request because of a medical appointment which she had on 23 November 2001. By letter of 26 October 2001 the wife was informed by the RRT that `your new hearing' is 23 November 2001. By letter dated 21 November 2001 the husband informed the RRT that the wife would not be able to attend the hearing to be held on 26 November 2001 `as she is not fit until 27 November 2001, but she is willing to attend a hearing in a later date'. That request was supported by a medical certificate.

10 A second hearing took place on 26 November 2001. The husband was present at that hearing. The primary judge said that `it is not clear' whether the wife attended the second hearing. The inference which we would draw from a reading of the RRT's reasons for decision is that she did not.

The RRT's decision

11 The RRT handed down its decision dated 14 January 2002 on 7 February 2002. Both the husband's and the wife's applications for protection visas were refused. That led to the refusal of the applications made on behalf of the daughters which were dependent on the success of a parent's claim. The RRT did not believe that the wife was a member of the Gono Forum and gave reasons for coming to that conclusion. The RRT accepted that the wife was involved in a number of women's groups in Bangladesh, however, at most she experienced only minor harassment because of this and the RRT did not accept that she fled Bangladesh because she feared she would face persecution if she remained. In the RRT's assessment, fundamentalism was not a strong force in Bangladesh in the late 1990's. Jamat-I-Islam, the main Islamic party, won only three seats in the June 1996 elections. The RRT did not accept that the wife had suffered harm amounting to persecution at the hands of Islamic fundamentalists because of her participation in women's groups.

12 Nor did the RRT accept the husband's claim that he feared persecution at the hands of the ruling Awami League government of Bangladesh because he was a leading member of the Jatiya League. The RRT also expressed the view that the husband and others involved in the writing and publishing of the books of political poems had `arranged to have charges filed against themselves ... and that they directly or indirectly influenced the outcome of the case in order to manufacture a claim for protection in Australia'.

The proceedings at first instance

13 The only argument which appears to have been made before the primary judge was that the RRT denied the appellants procedural fairness. There appear to have been two particulars of this claim: first, that the wife was denied procedural fairness because she was not able to attend the second hearing and second, that the RRT did not give the appellants an opportunity to comment on information on which it relied.

14 At the time of the primary judge's decision, the decision of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228; (2002) 123 FCR 298 was binding on her Honour. The majority in that case decided that a denial of procedural fairness was not available as a ground of review. Following the subsequent decisions of the High Court in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S 134/2002 [2003] HCA 1; (2003) 195 ALR 1 and Plaintiff S 157/2002 v Commonwealth [2003] HCA 2; (2003) 195 ALR 24 it is clear that the reasoning of the majority in NAAV (supra) was incorrect: SDAV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 129; (2003) 199 ALR 43 at [34]; SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121; (2003) 199 ALR 281 at [19]. Thus her Honour was induced by the majority decision in NAAV to approach the resolution of this case from a false premise.

15 Notwithstanding the decision of the Full Court in NAAV, her Honour considered the claim that the RRT did not provide the wife with a second hearing and thereby deprived the wife of natural justice. Her Honour's reasons for rejecting this claim are as follows at [24]:

`Applicant NACW claims that the Tribunal did not provide her with an opportunity for a second hearing and that this deprived her of natural justice. However there is nothing in the reasons of the Tribunal or in the material before me that supports this claim. Much less does it suggest that the Tribunal's exercise of its power was other than in good faith. The Tribunal's letter of 3 October 2001 advising the applicants of that hearing indicates that the purpose of the hearing was to resolve the Tribunal's doubt about aspects of applicant NACX's claim. From the Tribunal's reasons, and additional material included in the papers before the Court, it appears that the time between the first and second hearing was used to investigate the claims made by applicant NACX. In its reasons, the Tribunal only refers to the second hearing when discussing further information it has obtained with applicant NACX. There is nothing in those reasons to indicate that the second hearing was in any way concerned with the claims of applicant NACW. The Tribunal's discussion of her claims focuses on statements made prior to the first hearing. There is reference to her evidence given at "the hearing" and no reference to a "second hearing". In contrast, when discussing applicant NACX's evidence the Tribunal distinguishes between what was discussed at the first and second hearings. I am not satisfied that any issue relevant to applicant NACW's claim was discussed at the second hearing and therefore I do not accept that there was any breach of natural justice in the second hearing proceeding in her absence or any absence of good faith.'

(emphasis added)

The wife's appeal

16 On the hearing of the appeal we were informed by the appellants that in October 2001, shortly prior to the second hearing, there was another change in government in Bangladesh. Thereafter, we were told, the fundamentalist group, Jamat-I-Islam, formed part of the ruling coalition.

17 There appears to have been some discussion of this matter at the second hearing, as the RRT's reasons for decision include the following:

`I noted that there had recently been in a change of government in Bangladesh and that it seemed unlikely that the BNP would be greatly interested in pursuing him for political reasons related to the books or otherwise. [The appellant] said that the Awami League was still a powerful force in Bangladesh and he believe that he was still at risk of persecution from supporters of the party. He added that the current government has many fundamentalists and he and his wife had always opposed fundamentalism, which would place them at greater risk.'

18 In the light of that reference, the primary judge's conclusion that the second hearing was in no way concerned with the wife's claims is not correct. The issue of whether the wife was at greater risk because of her opposition to fundamentalism and because the government now had many fundamentalist supporters was the subject of discussion at the second hearing. The RRT correctly recognised that it was required to determine whether there was a real chance that the wife would be at risk of persecution if she continued to participate in the women's movement on her return to Bangladesh. Whatever may have been the position in the past, the probable future in the light of a change of government was germane to that question. The wife's claim of a denial of procedural fairness could not be dismissed on the ground that the second hearing was confined to matters affecting the husband's claim alone.

19 However, the conduct of the second hearing in the absence of the wife does not necessarily amount to a denial of procedural fairness even though she may have had a legitimate expectation derived from the pre-hearing correspondence that both husband and wife would attend the second hearing: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 77 ALJR 699. The issue is whether the applicant was unfairly deprived of the opportunity of advancing her case because the RRT proceeded with the second hearing in her absence. In order to make out such a case, the wife would need to establish that she refrained from putting material before the RRT which could have improved her position because she believed that she would have an opportunity of putting that material before the RRT at the second hearing.

20 The appellants claimed that this was the case, but the claim was not supported by evidence. As we have concluded, for the reasons which follow, that the wife's appeal must be upheld and the matter remitted to the primary judge for reconsideration, then subject to the direction of the primary judge, the wife will have the opportunity of adducing evidence on this question.

21 As to the second way in which the claim was particularised, her Honour said in [25] of her judgment:

`It is not necessary to consider other claims made by the applicants in their written submissions in relation to an alleged denial of procedural fairness by the Tribunal not giving them the opportunity to comment on information on which it relied. Even if such claims could be made out they would not amount to non-compliance with the Hickman conditions sufficient to entitle this Court to grant relief.'

Whilst that was a course which it was open to her Honour to adopt in the light of the decision in NAAV, the result of the subsequent decisions to which we have referred is that it was necessary for the Court to consider other claims in relation to an alleged denial of procedural fairness provided the claims were comprehensible and sufficiently particularised to enable a decision to be given with respect to them. In failing to deal with the second particular of procedural fairness, her Honour failed properly to apply the law as it is now understood.

22 It follows that the appeal of the wife and the daughters must be upheld, and the matter be remitted to the primary judge for further hearing and determination: cf NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 19.

The husband's appeal

23 The husband appeared for himself without the benefit of legal assistance but in the presence of an interpreter. The husband was able to put his submissions himself in an articulate manner. His oral submissions were primarily devoted to the advancement of his wife's case. So far as his own appeal is concerned, the only matter on which he relied was that the RRT determined his application for a protection visa before the results of the DFAT enquiry into his allegations of corruption on the part of the High Commission officer who first investigated his claims were known.

24 In the document styled `Appellant's submission' filed with the Court on 23 October 2003, the matter was put in this way:

`4. In this judicial review appellant's rely on the following grounds:

(a) ...

(b) ...

(c) ...

(d) The RRT has confirmed to appellant's representative vide it's letter dated 07 Augusts 2000 that the raised allegations made by the appellant to be investigated. Accordingly the investigation was started and necessary documents were obtained from the appellant by the RRT. (Referred to Appeal Book Page no. 7.4/Page no. 578/Page No. 579/580/Page no. 581.

(e) The RRT did not wait till the completion of the investigation on the complain raised by the appellant's on the unfairness bribery approach by the Dhaka Australian High Commission representative to the relatives and friends of appellants. Without which the Tribunal concluded the decision. (Referred Appeal Book Page no. 579)

5. The appellant's believe that their application has not been taken into consideration properly - the decision made by the Tribunal was relied upon some general facts; therefore establishes a "denial of procedural fairness".'

25 Paragraphs 4(d) and (e) are a complaint that the RRT determined the application for protection visas before the result of the husband's complaints of bias on the part of the officer of the Australian Embassy in Dhaka who first made enquiries at the request of the RRT had been investigated by DFAT. This complaint is without substance. The RRT did not rely on the results of the enquiries made by this officer in its reasons for decision. Instead the RRT had further enquiries made by another official who was not involved in the original advice and had regard to the results of the second set of enquiries in reaching its decision. The appellants were informed in the RRT's letter to the husband of 3 October 2002 that the RRT was proceeding in that way. The RRT did not commit any error, let alone a jurisdictional error, in proceeding in this way.

26 It is patent on the face of the RRT's decision that the RRT investigated and assessed the claims made by the husband. The fact that the RRT did not accept those claims does not mean that the RRT failed to consider the application properly, nor does it establish a denial of procedural fairness. The complaint made in par [5] of the appellants' written submissions is thus not made out. It was not submitted that the husband had been denied procedural fairness in any other respect.

27 The husband's appeal is dismissed with costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 11 November 2003

	The appellants appeared in person
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Sparke Helmore Solicitors
Date of Hearing:	5 November 2003
Date of Judgment:	11 November 2003