NANM and NANN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 99 (20 May 2003)

Last Updated: 21 May 2003

FEDERAL COURT OF AUSTRALIA

NANM and NANN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 99

Migration Act 1958 (Cth) s 36(2)

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24, considered

Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601, referred to

NANM and NANN of 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1214 of 2002

WHITLAM, FINN & GOLDBERG JJ

20 MAY 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1214 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN:	NANM and NANN of 2002 Appellants
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent
JUDGE:	WHITLAM, FINN & GOLDBERG JJ
DATE OF ORDER:	20 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the respondent's costs of and incidental to the appeal.

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 1214 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE

FEDERAL COURT OF AUSTRALIA

BETWEEN:	NANM and NANN of 2002 Appellants
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent
JUDGE:	WHITLAM, FINN & GOLDBERG JJ
DATE:	20 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellants, a husband and wife from Bangladesh, applied for protection visas, which were refused by a delegate of the respondent ("the Minister") on 12 August 1999. On 9 September 1999 the appellants sought review of the delegate's decision before the Refugee Review Tribunal ("the Tribunal") and on 20 May 2002 the Tribunal affirmed the decision of the delegate not to grant the appellants protection visas. The appellants then filed an application for review before a single judge of the Court. The application was dismissed on 30 October 2002. The appellants now appeal against that decision.

The appellants' circumstances

2 The appellants are citizens of Bangladesh. They claimed a fear of persecution on the ground of political opinion arising from the appellant husband's involvement in the Jatiya Party, a minority political party in Bangladesh. The appellant husband was a member of the Jatiya Party and claimed to have taken an active role in the activities of the Party as Vice President of his local branch. The appellant husband is a businessman. He claimed that a gang attacked his business and stole a large sum of money. In support of this claim he provided a number of media articles reporting the robbery. He claimed that the gang of extortionists were under the control of the Awami League and that the attack was politically motivated. He claimed that the people who had robbed his shop threatened to kill him if he did not withdraw his charge against them and that they laid false charges against him. In support of this claim the appellant husband presented charge sheets and arrest warrants dated from 24 March 1999 to 28 April 1999 which accused him of attacking an Awami League meeting. He claimed that, if returned to Bangladesh, he would suffer consequences of the false charges laid against him at the instigation of the Awami League. The appellant husband claimed that as a result of these incidents he faced harm amounting to persecution from the Awami League.

3 The appellant husband also claimed that he had suffered harm from the BNP when it was in power during 1991 to 1996 and he also referred to an incident in 1990 in which he claimed to have been attacked by BNP supporters following the collapse of the Ershad regime.

4 The appellant wife's claims are dependent upon those of her husband, as she did not advance any separate claims of her own.

The findings of the Tribunal

5 The Tribunal accepted that a small group such as the local branch of the Jatiya Party, to which the appellant husband belonged, could be caught up in the political violence which the country evidence established was prevalent in Bangladesh. The Tribunal accepted that the appellant husband was a member of the Jatiya Party. However, the Tribunal did not accept that the husband was as politically active as he claimed or had the high profile within the Party which he claimed to have as his evidence regarding his participation was brief and general and did not indicate a leadership role. The Tribunal was also influenced in this regard by the fact that the appellant husband had left the country for a short period at a critical time for the Jatiya Party during the 1996 elections, which absence the Tribunal saw as inconsistent with the role the appellant husband claimed to have had in the Party.

6 The Tribunal rejected the claim that the attack on the appellant husband's shop was politically motivated. The Tribunal noted that the media articles provided by the appellants referred to a number of attacks on business people in the area and referred to the attacks as being motivated by monetary gain. The Tribunal concluded that the appellants were the subject of extortion and robbery which was not politically motivated. The Tribunal also found that the State was prepared to take action in relation to these attacks, as evidenced by the police moving to arrest at least one culprit.

7 The Tribunal also rejected the appellant husband's claims to have been targeted by the Awami League because of the charges against him. The Tribunal noted that this claim was not made when the appellant husband first applied for a protection visa, that it was implausible that the appellant husband would have been able to avoid arrest when he continued to operate his business and the Tribunal took the view that the documents provided by the appellant husband relating to the charges were fraudulent. Even if there were outstanding arrest warrants on false charges against the appellant husband, the Tribunal found that the BNP would not pursue them if they had been made for political reasons by the Awami League.

8 The Tribunal accepted that Jatiya Party members may have faced harm from BNP supporters during the early 1990s. However it found that the appellant husband would not face harm from members or supporters of the BNP now or in the reasonably foreseeable future.

9 The Tribunal concluded that there was no real chance that the appellant husband faced harm amounting to persecution for reasons of his political opinion and accordingly found that he did not have a well-founded fear of persecution on that ground. The Tribunal was of the view that, absent any independent claims by the appellant wife, her application depended upon the outcome of the appellant husband's application and accordingly she did not satisfy the requisite criteria for a protection visa. The Tribunal thus affirmed the decision of the Minister's delegate not to grant the appellants protection visas.

The decision of the primary judge

10 The primary judge identified two matters on which the appellants based their application. The first matter was that the Tribunal referred in its reasons for decision to the appellant wife as having appeared at the Tribunal hearing and stating that her claim depended upon her husband's case and that she had no separate claims of her own. The appellants submitted that the appellant wife was not present at the hearing and therefore could not have made any statement regarding her claims.

11 The primary judge found that the Tribunal had erred as the appellant wife was not present at the hearing before the Tribunal. However, his Honour noted that a migration agent acting for both appellants was present at the hearing and that it was possible that the migration agent had made a statement on behalf of the appellant wife that her claims were dependent upon her husband's claims. His Honour also noted that the appellant wife's claims were in fact entirely dependent upon and derived from association with her husband's claims. Thus his Honour concluded that the error was not such as to call the Tribunal's decision into legal question.

12 The second matter raised by the appellants related to the statement by the Tribunal in its reasons in relation to the appellant husband's claims that supporters of the Awami League had brought false criminal charges against him. The Tribunal noted that the appellant husband had not made the claims when he applied for a protection visa but only raised them in a submission on 14 March 2002. The Tribunal stated that if the claims were genuine they would have been made earlier.

13 The primary judge found that the appellant husband did raise the matter of a false charge in the statement accompanying his original application and in this regard the Tribunal had erred. However, the primary judge thought that this error was of a factual nature which did not have a legal consequence because the Tribunal gave other reasons, in addition to the failure to make the claims earlier, which supported its finding that the claims were false and these other reasons were sufficiently powerful to lead to an inference that the Tribunal would have reached the same conclusion even if it had realised the claims were made with the original application.

14 The primary judge also pointed to the statement by the Tribunal that, even if the charges were genuine, the Awami League was no longer in government and so the appellant husband would be able to defend the charges without influence from the executive. The primary judge also noted the Tribunal's general view that there was no real chance that the appellant husband would face harm and persecution for reasons of his political opinion and that any fears he held in that regard were therefore not well founded.

15 The primary judge's conclusion was that certain factual errors had been made by the Tribunal but that the error regarding the appearance of the appellant wife was trivial and of no significance and the error regarding the time at which the appellant husband made his claim regarding the charges did not avail the appellants in a legal sense. His Honour found that no legal error had been shown and accordingly dismissed the application.

The appellants' grounds of appeal

16 The appellants' notice of appeal set out the following grounds of appeal:

"2. The Single judge of the Federal Court In his Honours Judgment delivered on 30^th October 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 document 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 is under s 39B of the Judiciary Act 1903n (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 57(v) of the Constitution.

6. In Walton v Phillip Ruddock MIMA (2001) FCA 1839 Merkel J cited Darling Casino Ltd 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 an 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 or law is jurisdictional error, which will invalidate any order or decision of tribunal which reflects it.

8. In Adebe 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 for excesses of Commonwealth power.

9. The Tribunal's decision on 20^th May 2002, being a privative clause decision, is subject to the constrains on review imposed by s.474(1) Migration Act 1958. The selection 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 with in 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 Australisia Ltd (1947)75CLR361;RvCentral Reference Board; ex parte Theiss (Repairs) Pty Ltd (1948) 77CLR 123; and R Murray; Ex part Proctor (1949) 77CLR387.

11. The Tribunal's ignoring of relevant evidence and its finding in the fact of contradicting independent evidence which indicates actual bias constitutional error being a breach of procedural fairness which is n an essential condition of the exercise of the decision making power and attracts 39B Judiciary Act1903 as per ;Gaudron J in Abebe v Commonwealth(1999) 162ALR 1 at 33 paragraph (113) Thus subject to the operation of discretionary fact6ors, 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. Therefore the tribunal's decision on 20^th May 2002 was affected by actual bias constituting Judicial error."

17 These written grounds were supplemented by a further written submission handed up to the Court at the commencement of the appellants' oral submissions. It did not particularise the grounds of appeal but made general assertions. The only ground which was related to s 424A of the Migration Act 1958 (Cth) ("the Act"). The information allegedly not brought to appellants' notice was general country information. No question of non-compliance with the requirements of s 424A arises in such circumstances. There was also a quite unsubstantiated allegation that the Tribunal acted in bad faith. There is no conceivable basis for this claim. It should not have been made.

18 The grounds of appeal raised numerous issues which were not raised in the original application for review which came before the primary judge. Further, the grounds of appeal did not address, with one possible exception, any of the matters raised in the original application for review. The exception appears to be an unparticularised general reference to a failure to observe procedures.

19 The notice of appeal appears to have been drawn with a view to avoiding what were, at the time of the filing of the notice of appeal, thought to be the effect and consequences of the privative clause in s 474 of the Act.

20 Subsequent to the primary judge delivering his reasons, and the filing of the notice of appeal, the High Court handed down its decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24. The High Court held that, notwithstanding the privative clause in s 474 of the Act, an application for relief under s 75(v) of the Commonwealth Constitution was not precluded by s 474 when the claim was that the Tribunal had committed jurisdictional error.

21 It is not easy to discern from the notice of appeal what the nature or content of the new grounds is as no sufficient particulars have been given of the grounds. For example, there are no particulars of the ground of appeal in par 2 of the notice relating to error of law, jurisdictional error or procedural fairness. There is a reference in the ground of appeal in par 3 of the notice to Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601. In that case the High Court found that there had been a failure to accord the plaintiffs procedural fairness but there was no suggestion that the grounds which gave rise to the conclusions of the High Court in that case applied in the present appeal.

22 The primary judge did not determine the application before him on the basis of the application of s 474 of the Act. His Honour observed:

"Quite apart from the operation of s 474 of the Migration Act 1958 (Cth), legal error must be shown and here I think there is none. I need not therefore consider s 474 in this case."

23 We are satisfied that the primary judge did not fall into error in deciding that no legal error had been shown in relation to the decision of the Tribunal. As his Honour correctly pointed out the factual error in relation to the presence of the appellant wife at the hearing before the Tribunal has no legal consequence.

24 The error of the Tribunal in stating that no claims were made in relation to false criminal charges brought against the appellant husband by supporters of the Awami League when the appellants applied for protection visas has no legal consequence because the Tribunal also found that the documents concerning the false charges were fraudulent. It is significant to note that the Tribunal also found that as the Awami League was no longer in government the appellant husband could defend himself against the charges in a court which would not be influenced by the executive.

25 We are satisfied that the Tribunal did not commit any jurisdictional error, nor did it fail to accord the appellants procedural fairness and otherwise did not commit any error which is reviewable outside the purview of s 474 of the Act.

26 The appeal should be dismissed with costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam, Finn & Goldberg.

Associate:

Dated: 20 May 2003

Counsel for the Appellants:	The first appellant appeared in person
Counsel for the Respondent:	R Bromwich
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 May 2003
Date of Judgment:	20 May 2003