NADP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 569 (7 May 2002)

Last Updated: 8 May 2002

FEDERAL COURT OF AUSTRALIA

NADP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 569

MIGRATION - protection visas - Refugee Review Tribunal ("RRT") rejected application because of changes brought about by the 2001 elections in Bangladesh - whether RRT bound to afford applicant opportunity to comment on election results where applicant promised to return to Bangladesh if the Awami League lost power - whether breach of rules of procedural fairness.

Constitution, s 75(v)

Judiciary Act 1903 (Cth), s 39B(1)

Migration Act 1958 (Cth) , s 474

Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah [2001] HCA 22; (2001) 179 ALR 238, distinguished.

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, cited.

NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263, followed.

NADP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1679 of 2001

SACKVILLE J

SYDNEY

7 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1679 OF 2001

BETWEEN:	NADP APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	7 MAY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed

2. The 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 1679 OF 2002

BETWEEN:	NADP APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	7 MAY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant is a citizen of Bangladesh. He arrived in Australia on 22 August 1997 and one month later lodged an application for a protection visa. On 1 December 1997 a delegate of the respondent ("the Minister") refused the application. On 7 November 2001, some four years later, the RRT affirmed the delegate's decision. The RRT's reasons give no explanation for the delay beyond noting that the applicant gave oral evidence on 14 December 1999 and that further submissions were received from the applicant and his adviser on 21 May 2001 in response to country information sent to them in April 2001. It may be that part of the delay was because the RRT, having regard to the applicant's written submissions, was awaiting the outcome of the elections in Bangladesh which took place in early October 2001.

2 The applicant now seeks review of the RRT's decision. The application filed in this Court on 24 December 2001 does not identify the source of the Court's jurisdiction, but the Minister has been content to regard the application as having invoked s 39B(1) of the Judiciary Act 1903 (Cth) ("Judiciary Act"), pursuant to which the Court has jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.

BACKGROUND

3 The applicant claimed that he had been a tireless supporter of the Awami League until 1996, when he left out of revulsion for its violent policies and practices. He then joined the Freedom Party, thereby becoming the object of revenge by Awami League activists. The applicant said he feared for his life in Bangladesh, having been assaulted many times. The applicant submitted to the RRT photographs, newspaper clippings and other documents referring to his political activities and to the laying against him of what he said was a false murder charge at the instigation of his political opponents.

4 In the written submissions of 21 May 2001 to which I have referred, the applicant claimed that after the 1996 elections, won by the Awami League, Freedom Party members became the prime target for Awami League violence. Moreover, the Awami League administration had "sent many opposition party members to dungeons". According to the applicant, during the Awami League's reign political violence and turbulence had exceeded all previous levels. The applicant's written submissions included these paragraphs:

"I can promise to the Onshore Refugee authority to return home the very next day if the Awami league fails in the general election and anyone form the new government. Our party leaders and associates anticipates that there is a more than likely chance that before the first half of 2002 the unruly situation will compelled the patriotic defense force (Army) to take over the power from the new administration, that may favor us to repatriate and rehabilitate. I urge RRT to allow me at least to wait till that day and to consider our party forecast seriously and can consult with anyone specialized in Bangladesh politics.

I only urge the RRT for my right to live as a normal human being. The right to walk the streets with no fear of being harassed and threatened. The right to sleep with peace of mind without being awakened suddenly in fear of attack from the Awami hooligans. I only desire what millions of others in this world does; the peace of mind that comes from being able to control my own life in safety. Surely this is not a large thing to ask for and I hope the RRT will grant me this freedom from fear and hopelessness even if it is just for a year (12 months), and I am pretty sure within this time frame there will be a radical change in Bangladesh politics and the situation will be in our favour to return home. I can begin my life again with the right of freedom of speech after a long time when I will go back my own soil; our Freedom party would be able to resume their politics in the political arena without any fear of harm and danger."

At the time these written submissions were prepared, the applicant was represented by a migration agent.

THE RRT'S REASONS

5 The RRT made the following findings:

* The applicant had been a branch officer of the Awami League and had been widely respected for his political acumen.

* The applicant had left the Awami League in 1996 and become a branch office bearer of the Freedom Party.

* He had made enemies among some Awami League activists, who had sought to take revenge on him by trying to attack him and laying false charges against him.

* The applicant had said that he would be prepared to return freely to Bangladesh the day the Awami League was thrown out of power. This event had indeed happened, as the Bangladesh National Party ("BNP") had won the October 2001 general election with a huge majority.

* On the applicant's own evidence he would be able to return to Bangladesh and be free of political harm.

* Notwithstanding the applicant's own "sanguinity on his political future", the RRT had given the matter independent consideration and was satisfied that he would be safe under the new BNP government, which would continue to extend the hand of friendship to the Freedom Party.

* The applicant would be able to obtain protection against the false charges laid against him, were they to be revived on his return to Bangladesh. The Bangladesh authorities were well aware of the problem of false charges being laid and determined to stop the practice. The independent courts could be relied on to protect individuals falsely charged.

6 The RRT summarised its findings as follows:

"In short, I find that whether or not the applicant had faced insurmountable problems over his political views before leaving Bangladesh in 1997, he would not face such problems now given that there is a new government, friendly to the [Freedom Party], in power, which is determined to prevent political thuggery. I find that the applicant can avail himself of the protection of the police in relation to any threat of harm, and that the courts would act fairly and strongly in protecting him from false charges. For all these reasons, I am not satisfied that the applicant has a well-founded fear of persecution under the Convention in Bangladesh."

THE SUBMISSIONS

7 The applicant appeared unrepresented at the hearing. His command of English is good. Although an interpreter was present, the applicant was generally able to manage without his services.

8 The applicant filed written submissions on in this Court his own behalf. Shortly thereafter I received further written submission on his behalf from a barrister to whom the applicant had been referred for legal advice pursuant to Federal Court Rules, O 80. The barrister advised that he had been unsuccessful in his attempts to contact the applicant and was unsure as to whether he had instructions.

9 The applicant informed me that he had spoken to the barrister shortly before the hearing, but that the barrister was unable to appear. The applicant indicated that he was content to proceed on the basis that I would take account of the barrister's written submissions and that he did not wish to seek an adjournment to enable the barrister to make oral submissions.

10 The written submissions by the applicant himself are clearly presented. They concentrate, however, on factual issues, arguing that the RRT failed to give sufficient weight to evidence of political persecution in Bangladesh, especially violence directed at Freedom Party activists. None of these factual contentions provides a basis for imputing error to the RRT such as would warrant the grant of relief pursuant to the jurisdiction conferred by s 39B(1) of the Judiciary Act. Nothing else said in those written submissions carries the applicant's case in this Court any further.

11 The barrister's submission contended that the RRT breached the rules of procedural fairness by failing to give the applicant an opportunity to comment on information critical to the decision, namely country information concerning the result of the elections in Bangladesh in October 2001. It was said that the change of government in Bangladesh was determinative of the outcome of the application. The submission acknowledged that the applicant had stated that he was willing to return to Bangladesh in the event of a change of government at the next election, but said that there were three reasons why this did not affect the RRT's obligation to give the applicant an opportunity to comment in the change of government:

* The country information on which the RRT relied noted that further unrest could follow the election and that disputes between the BNP and Awami League had routinely triggered violence.

* The applicant might still have been concerned about persecution by the Awami League even though it was out of government.

* There may have been other country information of assistance to the applicant.

REASONING

12 The applicant's submission founded on want of procedural fairness relied on the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 179 ALR 238. In that case, the prosecutor, a citizen of Bangladesh, applied for a protection visa in April 1996. He claimed to fear harm from Islamic fundamentalists and said that the BNP government, then in power, supported the fundamentalist groups and would not provide protection for him. In June 1996, the BNP was ousted from power and the Awami League took over. The delegate did not make a decision until May 1997. The delegate refused the application. He did so on the basis that the situation in Bangladesh had changed following the election, particularly as the vote for the fundamentalist party had dropped. The delegate considered that the Awami League government was capable of offering persons like the applicant effective protection against religious fundamentalists. The delegate did not invite the applicant to make further submissions with respect to the elections or the subsequent change of government.

13 The applicant sought relief in the original jurisdiction of the High Court pursuant to s 75(v) of the Constitution. The High Court held, by majority (Gaudron, McHugh and Kirby JJ; Gleeson CJ and Hayne J dissenting), that

* the Migration Act 1958 (Cth) ("Migration Act") did not evince an intention to exclude the general law rules of procedural fairness; and

* the delegate had denied procedural fairness to the applicant

14 Gaudron J said this (at 260):

"The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her. Mr Miah was not given the opportunity to put a case by reference to the change in government in Bangladesh or to answer the case made against him by reference to that change. Procedural fairness required that he be given that opportunity."

McHugh J expressed his conclusion as follows (at 274):

"The delegate had a duty to exercise his power in accordance with the rules of natural justice. He failed to do so. He did not question the prosecutor's claims about what he experienced in Bangladesh or doubt his credibility. He relied on information that he obtained pursuant to powers conferred by Subdiv AB. The information concerned events that occurred after the prosecutor applied for a visa. The delegate consulted that information well after the date of the application. The information was equivocal. The delegate relied on it in relation to the core issue for determination and his reliance on it was decisive of the outcome of the application. In those circumstances, the delegate ought to have informed the prosecutor of the new material and offered him an opportunity to respond to it before acting on it."

Kirby J endorsed (at [279]) a principle expressed by a Full Court of this Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, at 592:

"[The] entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question."

Kirby J observed that the greater the significance of the information, the more pressing became the need to disclose it to the prosecutor for comment. It followed that the prosecutor "ought not to have been taken by surprise, as he was". His Honour considered that, in the circumstances of the case, it was substantially unjust for the delegate, as the repository of the statutory power, to proceed as he had.

15 There are two very clear differences between the present case and Ex parte Miah. The first is that the applicant in the present case could not have been taken by surprise by the fact that the RRT considered the change in government in Bangladesh to be significant. On the contrary, the applicant himself identified the forthcoming elections in Bangladesh as the crucial event and invited the RRT to so regard it if (as in fact occurred) the Awami League lost power. He did so by promising to return home the day after elections if the Awami League failed to retain office. If he changed his mind after the elections, as he apparently did, there was no impediment to his writing to the RRT and informing it of his desire to make further submissions before it made a final decision.

16 The second difference is that it was not the applicant's case that he would continue to fear persecution in Bangladesh if the Awami League lost power at the forthcoming election. His considered position was that he could begin his life again if the Awami League lost power and that the Freedom Party "would be able to resume their politics...without any fear of harm and danger". All he asked for was a year from the date of his submission (a period that has now elapsed).

17 In Ex parte Miah, McHugh J commented on the need to examine the circumstances of the particular case in order to determine what procedural fairness requires. He said this (at [129]):

"Once it is acknowledged that there is a general duty to accord natural justice to an applicant applying for a protection visa, the inquiry drops from a matter of general principle to the particular. In Kioa v West, Brennan J said that `[i]t is not possible precisely and exhaustively to state what the repository of a statutory power must always do to satisfy a condition that the principles of natural justice be observed'. The content of the principles which the legislature intends to be applied in the circumstances of a particular case cannot be discovered by reference solely to the statute. In Kioa, Brennan J also pointed out that:

`The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.'

The critical questions then, are what are the principles of natural justice required in the particular circumstances of this case and has any provision of the Act specifically excluded one or more of them." (Citations omitted.)

18 In my opinion, assuming the RRT was obliged to accord procedural fairness to the applicant, it did not breach that duty in the circumstances of the present case. The applicant was well aware that the RRT would regard the results of the October 2001 elections as significant to his case. Indeed, he invited the RRT to regard the results of the election as determinative of his case. He could not have been taken by surprise by the RRT's decision or the significance it attributed to the result of the election. The requirement to accord procedural fairness does not entitle the applicant to make fresh submissions simply because he or she has had a change of heart.

19 If, contrary to my view, the RRT breached the requirements of procedural fairness it would be necessary to consider whether the effect of s 474(1) of the Migration Act is to prevent this Court granting relief to the applicant. A range of views as to the effect of s 474(1) has been expressed by single Judges of the Court. So far as I am aware, the only authority dealing specifically with the effect of s 474(1) of the Migration Act in a case where an applicant seeks relief under s 39B(1) of the Judiciary Act by reason of a denial of procedural fairness is NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263. There, Gyles J held (at [35]) that s 474(1)

"operates according to its terms, which are inconsistent with the existence of [an] implied duty to afford procedural fairness by supplying information going beyond the requirements of Div 4 of Pt 7 of the Act".

If it were necessary to decide this issue, I would follow Gyles J's decision, even though his observations may have been obiter since he ultimately held that there had been no denial of procedural fairness in that particular case.

CONCLUSION

20 The appeal must be dismissed. The applicant must pay the Minister's costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated: 7 May 2002

The applicant was self-represented.

Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	2 May 2002
Date of Judgment:	7 May 2002