S487 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 125 (13 May 2004)

Last Updated: 18 May 2004

FEDERAL COURT OF AUSTRALIA

S487 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 125

MIGRATION – application to the High Court for constitutional writs and injunctive relief remitted to Federal Court – whether failure to comply with s 418(3) of the Migration Act 1958 (Cth) – documents specifically identified in Delegate’s decision record and available in electronic form – no denial of procedural fairness – appeal dismissed


Migration Act 1958 (Cth), ss 418(3)


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





















S487 of 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS


N 2165 OF 2003




MOORE, BRANSON and EMMETT JJ
13 MAY 2004
ADELAIDE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2165 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN:	S487 of 2002 APPELLANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MOORE, BRANSON and EMMETT JJ
DATE OF ORDER:	13 MAY 2004
WHERE MADE:	ADELAIDE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.	If leave to appeal is necessary, leave be granted.

2.	The appeal be dismissed.

3.	The first appellant 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 2165 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN:	S487 OF 2002 APPELLANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	MOORE, BRANSON and EMMETT JJ
DATE:	13 MAY 2004
PLACE:	ADELAIDE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

THE COURT

Introduction

1 The appellants applied for protection visas on 27 November 1995. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused that application on 11 July 1997. The appellants sought review of that decision and on 21 August 2000, the Refugee Review Tribunal ("the Tribunal") affirmed the delegate’s decision. On 18 December 2002 the appellants applied to the High Court for an order nisi for constitutional writs. On 6 February 2003, Gaudron J ordered that the proceedings in that Court be remitted to the Federal Court. The remitted proceedings were determined by Sackville J. On 14 November 2003, his Honour made an order dismissing the application. The appellants now appeal against his Honour's judgment.

2 As his Honour noted in his reasons for judgment, the appellants’ applications for protection visas now have a long history. The appellants are Bangladeshi husband, wife and children. We shall, from this point, refer only to the male appellant ("the appellant"). The appellant had previously applied to this Court for judicial review of the Tribunal's decision pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act") in the form it was in at that time. He relied on paras 476(1)(a), and (e) and s 430. Tamberlin J dismissed that application on 5 March 2001. An appeal to a Full Court from the judgment of Sackville J was dismissed on the day it was heard, namely 7 August 2001. On 4 September 2001, the appellant applied for special leave to appeal to the High Court. His application for special leave was dismissed on 23 April 2002.

Background

3 The appellant arrived in Australia on 18 November 1995 from Bangladesh. He claimed he had been a progressive journalist and had written anti-fundamentalist articles, although was never a member of a political party in Bangladesh. The essence of the appellant's claims was that he would face persecution by reason of his political opinion if he returned to Bangladesh. He claimed he would be killed or seriously harmed by Islamic extremists if he returned because he was anti-fundamentalist and his views were known. He claimed not to fear harm at the hands of what was then the current government, but believed that it would not be able to protect him from the religious extremists who wished to harm him.

The Tribunal’s decision

4 The Tribunal did not find the appellant to be an entirely credible witness, and concluded he had exaggerated certain of his claims. Its decision was summarised in the following passage from the judgment of Heerey J in the Full Court appeal which was reproduced by the primary judge in his reasons for judgment:

"The appellant claimed to fear persecution in Bangladesh arising from his work as a liberal journalist publishing numerous articles and writings criticising the policies and activities of Islamic fundamentalists. He also claimed to have been a founding member of the Nirmal Committee which was established to bring to trial members of Jamaat-e Islam, the fundamentalist Islamic party in Bangladesh who were believed by the Committee to have committed war crimes during 1971 war of independence.

In support of his claims the appellant submitted a large volume of his publications and other documentation such as photographs of himself with high profile Bangladeshi liberals. He identified a course of harassment and persecution over several years which he claimed to have suffered in Bangladesh at the hands of Islamic fundamentalists in retaliation for his public criticisms of their activities, for example:

1. In January 1992 he was followed by two motor bikes and the riders fired shots and threw bombs at him.
2. In June 1993 his six year old daughter was kidnapped. He received a telephone call from a man who offered to return his daughter if he ceased his publications. He agreed and his daughter was returned the next day.
3. In September 1993 fundamentalists fired shots and threw hand grenades into the offices of the newspaper where he worked.
4. In June 1995 a bomb was thrown into his car critically injuring his driver.
5. In October 1995 a shot was fired at his car, breaking the rear windshield.

The appellant claimed that he had been unable to obtain protection from the authorities in Bangladesh because of the political influence wielded by the Islamic fundamentalists. It was also asserted that he had received harassment in Australia from Bangladeshi Islamic fundamentalists in retaliation for his publications in Australian newspapers. The harassment included anonymous letters and telephone calls.

The Tribunal conducted a hearing in May 1999 and then arranged for inquiries to be made in Bangladesh by the Department of Foreign Affairs and Trade (DFAT) in relation to the appellant’s claims. The results of DFAT’s investigations were forwarded to the appellant. He responded to the DFAT inquiries with further written submissions and initial material and gave further evidence at a second hearing in July 2000. In support of its decision the Tribunal gave very substantial reasons extending over about 30 pages. In addition to a substantial volume of material provided by the appellant, the Tribunal’s decision was based upon a comprehensive analysis of a large body of country information.

The Tribunal accepted that the appellant worked as a journalist and that he had published articles and a book espousing anti-fundamentalist views. The Tribunal also accepted that he was associated with leading members of the Nirmal Committee and may have been injured when the offices of his newspaper were bombed in 1993. However, the Tribunal was not satisfied that this resulted in the appellant having a well founded fear of persecution in Bangladesh. In essence, this conclusion was founded upon the following findings:

1. The appellant was not an entirely credible witness and had exaggerated his importance as a political figure and the extent of the harassment he had received;
2. It was clear from the country information that the height of Islamic fundamentalist violence against journalists and progressives was from 1992 until 1994. Since then the level of such violence had declined markedly. Moreover the Awami League, which was the most secular of Bangladesh’s major political parties, was elected to government in 1996 and neither supported nor condoned religious extremists and extremism or violence;
3. Information from DFAT and a variety of other sources indicated that there were many liberal and secular journalists who continued to express their views without facing serious problems and that the Nirmal Committee continued to exist without serious problems effecting its members and supporters;
4. In any event, the evidence indicated that people who had been threatened by fundamentalists could obtain protection from the authorities. Although there was only a remote chance that the appellant would need protection, it would be available to him if required."

The decision of the primary judge

5 In the proceedings before Sackville J, the appellant pursued one new issue (in the sense that it had not been raised before Tamberlin J and the Full Court). The appellant submitted that the Secretary of the Department had failed to comply with s 418(3) of the Act because relevant documents which had been before the delegate had not been given to the Tribunal. The appellant also repeated submissions previously made to Tamberlin J and the Full Court. The Minister submitted that the appeal was not competent because it had been commenced outside prescribed time limits. The Minister contested the claim that there had been a failure to comply with s 418(3) and also raised Anshun estoppel.

6 The gist of the appellant's case before Sackville J was that the Secretary of the Department had failed to comply with s 418(3) by failing to give two documents (constituting country information) to the Registrar of the Tribunal and that this omission was sufficient, on the authority of Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601, to warrant the decision being quashed. Sackville J accepted that, although it was true that the Tribunal probably did not have hard copies of these documents, they were identified in the delegate's decision record which was given to the Tribunal and they were readily accessible to the Tribunal electronically. Sackville J followed the approach of Gleeson CJ and McHugh J in Muin (supra) that the word 'give' in s 418(3) was wide enough to cover the situation where the Secretary, through the Department, permits the Tribunal to have access to the relevant database. On that approach, the Secretary had not contravened s 418(3).

7 His Honour concluded that even if the Secretary had failed to comply with s 418(3), this would not have established that the Tribunal's decision was without legal effect. Compliance with s 418(3) was not a precondition to the exercise by the Tribunal of its review function, nor did the section (or the Act more generally) create an obligation to consider the documents referred to by the section. His Honour found the Tribunal had not denied the appellant procedural fairness arising from the way that these documents were dealt with by the Tribunal.

8 Sackville J noted that the appellant sought to raise before him many of the issues determined by Tamberlin J and the Full Court and that most amounted to criticisms of the Tribunal's fact-finding process and could not lead to a finding of jurisdictional error. As to the appellant's contention that the Tribunal did not refer to all the documents provided to it by him, Sackville J observed there was no requirement that the Tribunal do so.

9 His Honour pointed out that the appellant's assertion that a Departmental officer had contravened s 437 or s 438 by disclosing information about the appellant in Bangladesh was not supported by any evidence and, in any event, was misconceived as those sections are directed, respectively, to the Secretary and the Tribunal. Additionally, there was nothing to suggest the Tribunal had requested such disclosure. His Honour found there was no substance to the appellant's claims of bias against the Tribunal. His Honour found no need to address the Anshun estoppel argument advanced by the Minister and dismissed the application.

The appeal

10 The order made by the primary judge was that "the application be dismissed". While initially counsel for the Minister submitted the judgement was interlocutory, leave to appeal was necessary and the appeal was incompetent, he ultimately took the more pragmatic approach of submitting that if leave was necessary, the grant of leave was not opposed.

11 In our opinion, the approach taken by Sackville J to the issues raised by the application for the order nisi was correct for the reasons his Honour gave. The appellant has not demonstrated any error on the part of the primary judge.

12 If leave to appeal is necessary, we grant that leave. We dismiss the appeal with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, Branson and Emmett.

Associate:

Dated: 13 May 2004

The appellant appeared in person
Counsel for the Respondent:	M Wigney
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	4 May 2004
Date of Judgment:	13 May 2004