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MIGRATION - Application for review of decision of Refugee Review Tribunal - no reviewable error - no actual bias - no lack of procedural fairness- privative clause decision - application dismissed.

NARD v Minister for Immigration [2003] FMCA 60 (6 March 2003)

NARD v Minister for Immigration [2003] FMCA 60 (6 March 2003)
Last Updated: 10 April 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NARD v MINISTER FOR IMMIGRATION
[2003] FMCA 60



MIGRATION - Application for review of decision of Refugee Review Tribunal - no reviewable error - no actual bias - no lack of procedural fairness- privative clause decision - application dismissed.



Judiciary Act 1903

Migration Act 1958

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

NAAV v MIMIA [2002] FCAFC 228

R v Hickman; Ex parte Fox & Clinton [1945] 70 CLR 598

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1

NADR v MIMIA [2002] FCA 293

Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 37

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 467

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration & Multicultural Affairs v Yusef [2001] 180 ALR 1

Abebe v Commonwealth (1999) 197 CLR 510

Minister for Immigration & Multicultural & Indigenous Affairs v Jia Legeng (2001) 205 CLR 507

Applicant:
NARD



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ884 of 2002



Delivered on:


Thursday 6 March 2003



Delivered at:


Sydney



Hearing Date:


Thursday 27 February 2003



Judgment of:


Barnes FM


REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr JD Smith



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) That the application is dismissed.

(2) That the applicant pay the respondent's costs.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ884 of 2002

NARD


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS






REASONS FOR JUDGMENT
The application

1. This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) dated 26 June 2002 and handed down on

18 July 2002 refusing to grant a protection visa to the applicant. The applicant applied to the Federal Court on 9 August 2002 under s.39B of the Judiciary Act 1903 and the matter was transferred to this Court by Beaumont J on 6 September 2002.

2. The applicant, who is a national of Bangladesh, arrived in Australia on

9 November 1999 on a Bangladeshi passport. On 24 November 1999 he lodged an application for a protection (class XA) visa. On 10 December 1999 a delegate of the Minister refused to grant a protection visa and on 30 December 1999 the Applicant applied to Tribunal for review of that decision.

3. The applicant claimed to fear persecution from fundamentalist Muslims in Bangladesh by reason of his religion, namely Buddhism.

Tribunal reasons

4. The Tribunal held a hearing on 4 April 2002. The applicant was represented by an adviser who subsequently submitted material on several occasions. On 28 June 2002 the Tribunal wrote to the applicant advising that the decision would be handed down on 18 July 2002. On 1 July 2002, the adviser submitted further material to the Tribunal.

5. The Tribunal found that it was not satisfied that the applicant had a well-founded fear of persecution in Bangladesh by reason of his religion or political opinion or for any other convention reason.

6. The Tribunal considered the various and differing claims made by the applicant in his protection visa application, in his review application and in a subsequent statement to the Tribunal. The Tribunal found that the applicant's evidence in relation to most aspects of his claim was `vague, generalised, unconvincing and lacks specific detail, and was elaborated and fabricated.' In particular the Tribunal considered this to be especially so with regard to a series of claims that the applicant had made in a statutory declaration of 2 January 2001 after his application had been refused by a delegate of the respondent. This statement contained completely new claims and major incidents not referred to in the original protection visa application. The Tribunal sought comment from the applicant and his adviser in relation to the differences in the claims and addressed the explanations provided. It gave detailed reasons for rejecting the claims of January 2001 as not having any credibility or veracity. It noted that the original claims were very generalised and vague and there was no specific detail of incidents or of the persecution that the applicant claimed to have suffered. Those claims related to alleged harassment and violence at the hands of teachers and students at a school and a claim that as a Buddhist monk the applicant (and his father) had been threatened by Muslims and the police, that false cases had been bought against him and that he had escaped Bangladesh. In contrast, in the statement of 2 January 2001 he made a number of new claims, including claims about having to obtain a passport through a broker and "absconding" for over ten months to avoid Muslim fundamentalists who had threatened his life because of his protests. He claimed to have participated in specific major incidents which were detailed, and that he had been chased by Muslim hoodlums and had also been in the company of another monk who was captured by the police and tortured for information and subsequently disappeared.

7. The Tribunal was unable to accept that the claims in the statement of January 2001 had any credibility or veracity. It concluded that they were elaborations and fabrications to provide the applicant with the profile of a refugee. It did not accept the explanations as to why the claims had changed from the protection visa application. The Tribunal also considered that the applicant's `propensity for elaboration and fabrication' extended to other evidence relating to his departure from Bangladesh and the circumstances in which he obtained a passport and his siblings (in particular claims in January 2001 in relation to an older brother and sister not referred to in his protection visa application). The Tribunal gave detailed reasons for its concerns in this respect. It concluded that the applicant did not leave Bangladesh in order to escape persecution but rather to attend a non-government organisation conference in Korea as a delegate from Bangladesh.

8. The Tribunal accepted that the applicant participated in a Buddhist protest in Canberra in May 2002, but noted that there had been no mention of any religious or political activities of the applicant in Australia at any prior time and that there was no evidence or submissions that the applicant had been involved in any other activities prior to the incident. It also considered a copy of a purported newspaper article from a Bangladeshi newspaper which showed a photograph of the applicant's role in the May 2002 demonstration despite the fact that the newspaper was said to have been published on 7 February 2002 (some three months before the demonstration in fact occurred). On this basis and in light of independent information as to the high level of document fraud in Bangladesh the Tribunal was unable to accept that the document was genuine and did not give it any weight. The Tribunal concluded that it was unable to accept that the applicant was a refugee sur place on the basis of his activities in Australia. It was satisfied that s91R(3) of the Migration Act applied to the applicant and that he had not satisfied the Tribunal that he engaged in the conduct (participation in the Buddhist protest) otherwise than for the purpose of strengthening his claim to be a refugee.

9. The Tribunal also referred to submissions at the hearing and subsequently by the applicant's adviser that the applicant was a member of an oppressed minority as a Buddhist and therefore could not go back to Bangladesh because he would be subjected to harm, violence and discrimination at the hands of the Muslim majority. The Tribunal referred to the many documents including newspaper articles, magazine articles, a book and documents from the internet which had been provided in support of this contention. It accepted that the materials may indicate that there may be discrimination and some harassment of religious minorities in Bangladesh. However it concluded that in light of the findings it had made that the applicant had not been subject to persecution in Bangladesh, it was unable to accept that there was more than a remote chance that the applicant would suffer harm as a Buddhist should he return to Bangladesh.

10. On the basis of these findings the Tribunal concluded that it was not satisfied that the applicant had a well founded fear of persecution if he were to return to Bangladesh now or in the foreseeable future.

The applicant's submissions

11. In his application filed on 9 August 2002 the applicant repeated his claims of mistreatment in Bangladesh. He submitted that the Tribunal had not considered any evidence in relation to his claims (the documents which he had submitted) but rather had depended on generalised facts and findings of the Department. It was claimed that the Tribunal's `ignoring of relevant evidence and its finding in the face of contradicting independent evidence' indicated actual bias which constituted jurisdictional error being a breach of procedural fairness. The applicant did not file written submissions before the hearing but in oral submissions took issue with the factual findings of the Tribunal, sought to indicate that the Tribunal had not taken relevant material into account (in particular photographs and a video which had been provided to the Tribunal) and also submitted, without elaboration, that he fell within the principles of the decision of the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30.

The respondent's submissions

12. The respondent submitted that the Tribunal approached its task in the manner required of it. Essentially it did not accept that the applicant was a credible witness and found that he had fabricated claims and documents in support of his application. It was argued that there was nothing to indicate actual bias. Rather the Tribunal had understood its task and carried it out according to law and there was no jurisdictional error. In relation to the claims made by the applicant at the hearing it was submitted that the facts of this case should be distinguished from those of Muin and Lie in particular because of the absence of agreed facts such as were critical in that case or of any evidence as to whether the Tribunal had the material relied upon by the delegate before it, whether the Tribunal had regard to such material, whether the applicant was in fact misled by any behaviour or statement by the Tribunal, or of what he would have done had he not been so misled and whether that would have had any material effect on the Tribunal's decision.

13. In relation to the submission that the Tribunal failed to take into account relevant material, it was pointed out that the Tribunal decision refers to the material put before it, including the photos, videos and the submissions of the applicant and his adviser and also the material provided. Material was submitted after the decision was made but before it was handed down. However it was submitted that an internal Refugee Review Tribunal document relating to such material indicated that the member had considered the material and concluded that the submissions contributed nothing new to what had already been submitted on the applicant's behalf on several occasions after the hearing.

The applicable law

14. Pursuant to s.483A of the Act this Court has the same jurisdiction as the Federal Court in relation to a matter rising under the Migration Act. Under s.475A it has jurisdiction in relation to a `privative clause decision' that is a decision made on a review by the Tribunal. `Privative clause decision' is defined in subsections 474(2) and (3) of the Act. Subsection 474(1) of the Act limits review by the Court of privative clause decisions as follows:

A privative clause decision:

a) is final and conclusive;

b) must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and

c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.

15. In NAAV v MIMIA [2002] FCAFC 228 the Full Court of the Federal Court held that s474 must be construed in the same manner as the kind of privative clause considered in the decision R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. In other words there were said to be three conditions which, if met, would ordinarily mean that a decision the subject of a provision such as s.474 would be valid. These are: first the decision is a bona fide attempt by the decision-maker to exercise its power, second that the decision relates to the subject matter of the legislation, and third that the decision is reasonably capable of reference to the power conferred on the decision-maker. There was also broad agreement in NAAV that the purported exercise of power must not be one that contravened an inviolable limitation on the operation of the Act.

16. In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 the High Court held that as a matter of construction the expression `decision... made under this Act' in subsection 474(2) "must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act." (at [76] and also see [19] per Gleeson CJ and [163] per Callinan J). If there has been a jurisdictional error the decision cannot properly be described as a decision made under this Act and is thus not a privative clause decision as defined in subsections 474(2) and (3) of the Act. Further a decision flawed for reason of failure to comply with the principles of natural justice is also said not to be a privative clause decision within s474(2). If there is no jurisdictional error affecting the Tribunal's decision then the decision would be a privative clause decision and protected by s474(1) unless it was shown that one of the Hickman provisos had not been met. In Plaintiff S157/2002 the High Court confined itself to a general statement of principle in relation to jurisdictional error and the particular issue of jurisdictional error by reason of a denial of procedural fairness as asserted by the Plaintiff. The precise scope of the notion of jurisdictional error in this context and the determination of which provisions in the Migration Act constitute inviolable limitations or restraints raises some complex issues (see for example Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1 in relation to s.65 of the Migration Act). These issues do not require resolution in the present case as, for the reasons set out below, I am not satisfied that the applicant has established, or that the material before the Court reveals, any reviewable error or denial of procedural fairness.

The present case

17. The applicant's submission in relation to denial of procedural fairness on the basis of the principles in the Muin case was simply framed in terms of a claim that the case applied. The applicant submitted a copy of Part B of the decision of the delegate of the Minister refusing the applicant a protection visa. This lists the evidence before the delegate. A handwritten notation states: `where is the evidence'. This appears to be a claim that either the applicant was not given the material referred to in Part B or that the Tribunal failed to have regard to such documents. As Kiefel J pointed in NADR v MIMIA [2002] FCA 293, Muin establishes that "there is want of procedural fairness when an applicant before a Tribunal is misled into thinking that the Tribunal has considered particular relevant information and, as a result, did not ensure that such information was placed before it". However, as in NADR, at a factual level the present case differs from Muin, particularly in light of the absence of any agreed facts as were of relevance in Muin. In particular it is not agreed in this case that the documents referred to as the Part B documents were not physically provided to the Tribunal. While the Tribunal reasons for decision do not refer to the documents, the applicant has not established that he was misled into thinking that the Tribunal had considered particular relevant information and that as a result he did not ensure that such information was placed before it. There is no indication either in the application or in the applicant's oral submissions of what particular steps he would have taken had he been told, if it was the case, that the Tribunal had not been provided with any or all of the Part B documents. In particular the applicant does not identify any particular information in the Part B documents which he believed the Tribunal had taken into account and which he would have ensured was placed before it had he been advised that this was not the case. Furthermore, there is no evidence that the applicant in any way relied to his disadvantage upon the statement in the letter of 27 February 2002 from the Tribunal inviting the applicant to a hearing that the Tribunal "had looked at all of the material" relating to his application but was not prepared to make a favourable decision on that information alone. Nor has it been established that the applicant was deprived of any opportunity to put further information or submissions to the Tribunal or that he did or failed to do anything because of any belief or understanding engendered in his mind by the letter of 27 February 2002 (see Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6 at [36] to [38] per Gleeson CJ and [103] to [106] per McHugh and Gummow JJ). No lack of procedural fairness has been established.

18. As to the other complaints of the applicant, the reasons for the Tribunals decision reveal that it approached its task in the manner required of it. First it made findings as to the underlying claims by the applicant in respect of past events (see Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at [399] per Dawson J, [406] per Toohey J and [415] per Gaudron J and also see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at [574] - [575]). The Tribunal then considered how those facts applied to the definition of a refugee within the meaning of article 1A(2) of the Convention as required by sections 36(2) and 65(1) of the Migration Act. Essentially the Tribunal did not accept the applicant as a credible witness and found that he had fabricated claims and documents in support of his application for a visa. The issue of credibility of the applicant was a matter for the Tribunal to determine (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 467 at [67]). The conclusions of the Tribunal in this respect were open on the evidence before it. It set out its findings on material questions of fact and its reasons for rejecting the applicant's claims. It has not been established that the Tribunal failed to take into account all relevant considerations in the sense discussed by the High Court in Craig v South Australia (1995) 184 CLR 163 and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [73] - [75] per McHugh, Gummow and Hayne JJ. While failure to take into account all relevant considerations in a way that affects the exercise of power is an error of law (that was regarded by the majority judgment in Yusuf as constituting a jurisdictional error) the majority judgment also makes the point that the considerations that are relevant to the Tribunal's task are to be identified primarily by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider (see Abebe v Commonwealth (1999) 197 CLR 510 at [579] per Gummow and Hayne JJ) and that the grounds of judicial review that "fasten upon `the use made of relevant and irrelevant considerations' are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are essentially concerned with the process of making the particular findings of fact upon which the decision-maker acts" (at [74]). In this case the Tribunal made findings in relation to the applicant's claims of past persecution and concluded that he had fabricated claims and documents in support of his application for a visa. The Tribunal expressly referred to the photographs and video evidence which formed part of the material relied on by the applicant. This is not a case where the Tribunal has misunderstood the applicant's claim or has failed to deal with a relevant aspect or essential element of a claimed fear of persecution.

19. Further, the fact that the Tribunal does not refer expressly to particular material or to the material submitted to it on 1 July 2002 does not establish a jurisdictional error. I am satisfied on the basis of the Refugee Review Tribunal documents relating to the material submitted on 1 July 2002 that the submission was drawn to the attention of the member who considered it and determined that it contributed nothing new to what had already been submitted on the applicant's behalf. The material in question was a collation of numerous racial incidents which were said to have occurred in Bangladesh under the present Government and a 1996 letter to the editor of an Indian newspaper in relation to the experiences of a Christian in Bangladesh. As outlined above, the Tribunal referred to the information provided by the applicant's adviser in relation to discrimination and harassment of religious minorities in Bangladesh but indicated that this should be put in context, as described, and concluded that the applicant and adviser had attempted to paint an exaggerated view of the situation of disorder and violence in the country. In light of the finding that the applicant himself had not been subject to persecution in Bangladesh the Tribunal was unable to accept that there was more than a remote chance that the applicant would suffer harm as a Buddhist if he were to return to Bangladesh.

20. The applicant has not established that some relevant, significant and credible material was provided to the Tribunal and not taken into account. The Tribunal accepted that the applicant was a Buddhist but did not accept his claims of past persecution. No error is apparent in its treatment of the applicant's claim to be a refugee sur place and its application of s.91R(3). The application claimed that the Tribunal ignored relevant evidence and that its findings were made in the face of contradicting independence evidence. This was said to indicate actual bias constituting jurisdictional error being a breach of procedural fairness. However, there is nothing in the manner in which the Tribunal set out its reasons to indicate that the member had a mind so predisposed or committed to a particular outcome or conclusion already formed that he was unwilling or unable to change it whatever evidence was presented (see Minister for Immigration & Multicultural & Indigenous Affairs v Jia Legeng (2001) 205 CLR 507). Nor on the material before the Court could it be said that there was there any real likelihood that a reasonable observer might reach a conclusion that there was such a prejudgment such as to constitute apprehended bias.

21. No jurisdictional error or denial of procedural fairness has been established. The decision is a privative clause decision within s.474 of the Act. It has not been argued, nor does the material before the Court establish, breach of any of the so called Hickman provisos. As no reviewable error has been established it follows that the applicant's claim for relief must be dismissed.

22. I therefore dismiss the application and order that the applicant pay the respondent's costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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