NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 57 (6 February 2002)

Last Updated: 8 February 2002

FEDERAL COURT OF AUSTRALIA

NACB v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 57

MIGRATION - protection visa - review of decision of Refugee Review Tribunal ("Tribunal") - whether decision of Tribunal affected by actual bias

Migration Act 1958 (Cth) ss 474 and 476

R v Hickman: ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 referred to

Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 followed

Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 followed

NACB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1547 of 2001

STONE J

6 FEBRUARY 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1547 OF 2001

BETWEEN:	NACB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	6 FEBRUARY 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 1547 OF 2001

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

JUDGE:	STONE J
DATE:	6 FEBRUARY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant is a citizen of Bangladesh who arrived in Australia on 2 September 1997. His application for a protection visa made on 20 October 1997 was refused by a delegate of the respondent Minister on 27 November 1997. The Refugee Review Tribunal ("Tribunal") confirmed the delegate's decision on 25 October 2001. On 21 November 2001, the applicant commenced proceedings in this Court seeking a review of the Tribunal's decision under Pt 8 of the Migration Act 1958 (Cth) ("the Act").

THE APPLICANT'S CLAIMS

2 In a written statement, the applicant claimed a well-founded fear of persecution because of his membership of a political party called the Freedom Party that he joined in 1989. He alleged that "[a]fter some days, by virtue of my political proficiency" he was promoted to the position of President of the local village committee in Narayangonj. He claimed that when the Awami League returned to power in Bangladesh in 1996, it persecuted members of the Freedom Party because of the party's role in the murders of the President, Sheikh Mujibur Rahman and members of his family.

3 He further claimed that the Awami League brought a number of false charges against him in relation to illegally possessing arms, taking property and violence against Awami League members. In response, he claimed Awami League members tried to kill him, the police tried to arrest him and searched his relatives' homes, but he escaped. He was able to leave the country only after paying US$10,000 to a broker to go through immigration at Dhaka airport.

4 He also claimed that in October 1997, he was told by his brother that the police and members of the Awami League were looking for him as he was suspected of murdering Awami League leader, Maser, in early October 1997 and attacking other members of Maser's group using guns and bombs. At the Tribunal hearing the applicant added to the above claims that he was also in fear of harm because "he had been an opponent of drug users and suppliers."

THE TRIBUNAL'S DECISION

5 In making its decision on the application for the protection visa, the Tribunal considered the application, a departmental interview, oral evidence given to the Tribunal on 7 December 1999 and the applicant's written submissions responding to updated independent country information concerning the political situation in Bangladesh that the Tribunal had sent to the applicant.

6 The Tribunal noted that the applicant had lived in Narayangonj in Bangladesh for 20 years before leaving for Australia. The Tribunal also noted that the applicant had a university degree and had owned a trading business for some years. Having considered the material before it the Tribunal found that the applicant had fabricated claims to substantiate his application for a protection visa. It stated that:

"I am not satisfied that there is credibility in the applicant's claims regarding his political situation, and the general political situation in Bangladesh."

7 The Tribunal regarded as implausible the claim that the applicant was leader of the Freedom Party in his village at the age of 15 so soon after having joined the Freedom Party but stated that:

"Even if I were to accept this fanciful claim, I find it implausible that he faced, or would face persecution from either of the major parties or that he lacks the protection of relevant authorities in Bangladesh for holding a political opinion sympathetic to the [Freedom Party]."

8 The Tribunal relied on independent information that showed that the Awami League, which was in power from 1996 to October 2001, allowed the Freedom Party leaders who had been accused of Sheikh Mujibur's murder appropriate access to the judicial system. It noted that the Bangladesh Nationalist Party when previously in power passed an Indemnity Ordinance protecting Freedom Party members involved in the murder of Sheik Mujibur. Whilst the Tribunal accepted that the Awami League acted improperly using the detention powers of the Special Powers Act, independent country information referred to in the Tribunal's decision showed that those affected had been released by the Bangladesh High Court unless they were facing other charges.

9 Further claims by the applicant that he was specifically targeted and the police "attacked" him did not satisfy the Tribunal in light of DFAT cable DA 1684 of 11/6/97, CX22832 which according to the Tribunal reported that,

"the [Freedom Party] was not regarded as a credible political force in Bangladesh and that its `electoral insignificance means that it attracts little attention from the ...[Awami League, which] of course is much more concerned with the only political party that presents a credible threat, the Bangladesh National Party".

Consequently, the Tribunal was not satisfied that the Awami League would have made numerous false charges against the applicant. Neither was it satisfied about the applicant's claim that he was accused by the Awami League of murdering Maser in October 1997 when he had been in Australia since September 1997. The Tribunal referred to the common tactic in Bangladesh of the "laying of false charges by rival political activists" and cited the Public Safety Bill brought in by the Awami League government in 2000 to counteract this practice. Contrary to the claims made by the applicant, the Tribunal found that in August 2001 the police were determined to prevent election violence by arresting 60,000 people many of whom were known instigators of political violence.

10 The Tribunal was willing to accept, on the basis of independent information, that if the applicant had been involved in politics which exposed him to public clashes he could have been harmed, but found that this outcome was the "rough-and-tumble" nature of Bangladeshi politics and was not indicative of persecution.

11 Given the weight of the independent evidence, the Tribunal was not convinced that the applicant's supporting documentation was genuine. It referred to the high incidence of forged documents in Bangladesh but noted that it was not applying a blanket rule about documents from Bangladesh. Rather the Tribunal was influenced by this in the context of the general lack of credibility of the applicant's claims.

12 It is clear that the Tribunal's conclusion that the applicant did not have a well founded fear of persecution was greatly influenced by its assessment of the independence of the superior courts of Bangladesh. The Tribunal stated that:

"independent evidence shows that the Bangladeshi courts do not bow to political or other pressure when handling cases of political violence brought before them, and the judiciary, particularly at the higher levels, can be trusted to uphold the law fairly and rigorously. If beset by enemies and mistrustful of justice being applied at lower court levels, the applicant can appeal to the High Court which, according to the Public Safety Bill brought in last year must hear appeals from cases of false charges within three weeks".

13 The Tribunal summarised its conclusions thus:

"In light of all of the above, I am not satisfied that the applicant faces persecution over his political opinion in Bangladesh: it is implausible that a person with his claimed low-profile role would be a source of concern to rival parties and be thus targeted by them, and even in the unlikely instance that he had been targeted, I find that the authorities of Bangladesh are willing and able to offer him protection from harm."

GROUNDS OF REVIEW

14 In his amended application for an order of review the applicant raised only one ground of review, namely that the decision of the Tribunal was affected by actual bias constituting jurisdictional error. The particulars set out in the applicant were as follows:

"1. The Tribunal described as implausible the applicant's claim that he became a leader of a local village leader [sic] at the age of 15 when in fact the applicant claimed he was 17 at the time of being promoted to leader;

2. The Tribunal described as implausible the applicant's claim that he was facing persecution from two major parties when in fact he claimed persecution from one major party only;

3. The applicant's documents in support of his case were not subject to independent forensic expert examination in order to form an opinion on their authenticity;

4. The Tribunal described as `fanciful' the applicant's claim that he would be well known and recognised wherever he went, a claim supported by Country Information."

15 The decision under challenge is a privative clause decision within the meaning of s 474 of the Act. The Court's jurisdiction to review such decisions is severely limited by the provisions in s 474 and s 476 of the Act. While the principle enunciated by Dixon J in R v Hickman; ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 suggests that there remains some scope for review, the extent of this jurisdiction has yet to be determined. As I have formed the view that the claim of actual bias cannot be substantiated it is not necessary for me to comment on this issue.

16 The issue of bias can be dealt with very briefly. As Mr Burwood, counsel for the applicant, conceded, actual bias is very difficult to establish. It is not necessary to go beyond the four points made by Drummond J in Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 at 133 - 134. Those points emphasise that actual bias requires a closed mind and prejudgment of the case such that the decision-maker is not open to persuasion. Drummond J specifically stated that early indication of an adverse view, displays of irritation or impatience are not in themselves sufficient to show bias. These points were adopted by Sackville J in Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at [30]. Sackville J cautioned, at [32] - [33], against too readily making the leap from "factual error or faulty reasoning" to a finding of actual bias with its implication of a closed mind and stated:

"that a claim of actual bias must take into account the legislative framework within which tribunals operate. In a court the impartiality of the judge is protected and preserved by rules limiting his or her involvement in the forensic process, including the gathering of evidence. By contrast, tribunals have a variety of fact finding and information gathering functions that are characteristic of an administrative decision-making process. They are often required to play an active role not only in eliciting information but in testing the reliability of evidence presented or relied upon by a particular applicant. Their procedures necessarily differ from those of courts."

17 The particulars relied on by the applicant to support the claim of bias fail to take into account the cautions expressed by Drummond J and Sackville J. The Tribunal in this case found the applicant unconvincing. It concluded that the weight to be given to the independent evidence, which it considered in detail, was such as to overwhelm the applicant's evidence. Such a conclusion is a matter for the Tribunal and no error or bias is demonstrated by such a conclusion.

18 In its summary of the applicant's claims, the Tribunal occasionally quoted the applicant in a manner to which the applicant took exception and expressed its rejection of the applicant's claims strongly. It referred to the claim that the applicant had assumed a leadership position in the Freedom Party at the age of 15 as "fanciful". It apparently also used that term in connection with the applicant's claim that he would be well known throughout Bangladesh. There is little doubt that the Tribunal had difficulty in accepting the applicant's claims and perhaps a note of irritation does creep into the Tribunal's summary. Nevertheless, as Drummond J points out (see [16] above) this is not sufficient to indicate bias. In relation to the claim of early leadership the Tribunal went on to state that even if the claim were accepted there were other good reasons for rejecting the applicant's claim. There is no indication here of a closed mind or of the Tribunal having prejudged the matter. The claim that the Tribunal had somehow demonstrated bias in considering if the applicant had grounds to fear persecution from the Bangladesh Nationalist Party cannot be accepted. Although the applicant did not claim a fear of harm from this party, it was entirely proper for the Tribunal to consider this issue. This consideration in no way detracted from the Tribunal's consideration of the possibility of harm from the Awami League and the Tribunal made extensive findings on this issue. The Tribunal is not bound to confine its consideration to matters or issues raised by the applicant.

19 The applicant complains that the Tribunal dismissed his documentary evidence without taking independent steps to verify their authenticity. It was however for the Tribunal to decide what weight should be given to these documents. There is no obligation on the Tribunal to seek any independent forensic analysis and failure to do so is not evidence of a closed mind.

20 Finally, it was submitted for the applicant that, even if the instances referred to did not individually indicate the presence of actual bias, they do so if taken together. Counsel did not elaborate on this and the bald assertion is not convincing. In my opinion, even collectively, these instances do not indicate any prejudgement of the issues raised by the applicant. I am not able to find any evidence in the reasons of the Tribunal that would support even a claim of apprehended bias and certainly there is no evidence of actual bias.

21 For these reasons the application must be dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 6 February 2002

Counsel for the Applicant:	Mr D Burwood
Solicitor for the Applicant:	Mofazzal Haque Kazi
Counsel for the Respondent:	Mr G T Johnson
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	4 February 2002
Date of Judgment:	6 February 2002