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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's decision to refuse to grant a protection visa - alleged tampering with RRT sound recording - allegation rejected - application dismissed.

NAJP v Minister for Immigration [2002] FMCA 216 (19 September 2002)

NAJP v Minister for Immigration [2002] FMCA 216 (19 September 2002)
Last Updated: 14 October 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAJP v MINISTER FOR IMMIGRATION
[2002] FMCA 216



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's decision to refuse to grant a protection visa - alleged tampering with RRT sound recording - allegation rejected - application dismissed.



Federal Magistrates Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 65, 91R, 91S, 474, 476

Migration Regulations

Craig v State of South Australia (1995) 184 CLR 163

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

NAAV v Minister for Immigration [2002] FCAFC 228

NAIN v Minister for Immigration [2002] FMCA 177

SCAA v Minister for Immigration [2002] FCA 668

Applicant:
NAJP



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ541 of 2002



Delivered on:


19 September 2002



Delivered at:


Sydney



Hearing Dates:


5 & 18 September 2002



Judgment of:


Driver FM



REPRESENTATION

Applicant appeared in person






Solicitors for the Respondent:


Mr G Cranwell

Australian Government Solicitor


ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs of and incidental to the application, in accordance with the Federal Magistrates Court Rules 2001 (Cth).

NOTE

The Court certifies that it was reasonable for the respondent to employ an advocate to appear on behalf of the respondent both today and at the hearing on 5 September 2002.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ541 of 2002

NAJP


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. I have before me, for ex tempore judgment, an application filed on 27 May 2002 in the Federal Court to review a decision of the Refugee Review Tribunal ("the RRT") made on 8 April 2002 which was handed down on 5 May 2002. The RRT affirmed a decision of a delegate of the respondent Minister not to grant the applicant a protection visa. The applicant is a citizen of Bangladesh. He arrived in Australia on 9 October 1990. He first applied for a protection visa in January 1994 but withdrew that application in June 1995. It appears that he applied for other kinds of visa at that time. He was, however, unsuccessful.

2. The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs on 2 August 1999. On 16 November 1999 a delegate of the Minister refused to grant him a protection visa. On 27 November 1999 he applied for review of that decision. The proceedings instituted in the Federal Court have been transferred to this Court by order of her Honour, Stone J on 15 July 2002. The application as originally filed is quite detailed and appears to have been prepared with the benefit of some legal assistance.

3. The grounds of the application, however, are more particularly set out in documents filed in court by the applicant on 5 September 2002. The applicant also filed an affidavit in support of his application on 27 May 2002. The grounds as set out in the documents on 5 September 2002 are as follows:

(1) the RRT did not consider the applicant as a refugee despite many evidentiary proofs;

(2) the procedures that were required to be observed under the Migration Act 1958 (Cth) ("the Migration Act") in connection with the making of the decision were not observed;

(3) the RRT ignored the merits of the claim and it did not take into consideration material from the Bangladesh country report;

(4) The RRT did not act in good faith as regard to the applicant's claims;

(5) the RRT misjudged the fate of the applicant's claim;

(6) the RRT made a number of errors to decide the fate of the applicant's claim noting that the applicant is not and was not represented by a solicitor;

(7) the RRT ignored relevant evidence and made its finding in the face of contradicting independent evidence which indicates actual bias constituting jurisdictional error and being a breach of procedural fairness;

4. The applicant asserts that he is a genuine refugee within the meaning of the Refugees Convention. The applicant also asserts that the RRT is to investigate his claims, specifically the claim of persecution in Bangladesh. This is advanced as a further example of actual bias constituting jurisdictional error. The applicant further relies upon the High Court decision in Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal [2002] HCA 30.

5. The written submissions filed by the applicant in support of his application on 5 September 2002 are quite detailed. The applicant states that the RRT accepted his evidence about the political position he held but gave the matter no weight. The applicant asserts a political affiliation with the Jatiya Party. He asserts that his family was targeted by Awami League terrorists. He states that this relevant matter was not considered by the RRT. He further states that the RRT badly constructed its decision and made a number of factual errors. These are elaborated upon and concern political events in Bangladesh in 2001 extending through to mid 2002. The applicant further asserts that the presiding member "misguided the legal framework of the protection obligations towards refugees" and failed to apply the relevant parts of Article 1A(2) of the Refugees Convention.

6. The applicant further asserts in relation to persecution and sufferings of himself that the findings made by the RRT are not based on the "prevalent explosive social political predicaments of people in Bangladesh". The applicant asserts that the presiding member took irrelevant considerations into account in contravention of former s.476(3)(d) of the Migration Act. The applicant asserts that the RRT, in its examination of the political situation in Bangladesh, avoided a number of grounds of persecution which deprived him of natural justice.

7. The applicant expressed concern that the presiding member of the RRT did not have the documents relating to his first protection visa application available at hearing. He further asserts that the interpreter provided at the hearing before the RRT asked him misleading questions and misunderstood answers.

8. The applicant expanded upon these submissions orally before me on 5 September 2002. In particular, he augmented his written submissions with an allegation that the sound recording of the proceedings before the RRT had been interfered with in order to delete material he had sought to put before the RRT relating to a former Deputy Prime Minister of Bangladesh, who apparently was granted a protection visa in Australia and who has allegedly been the subject of politically motivated proceedings against him in Bangladesh. The name of this gentleman was provided in the proceedings before me but I will not repeat his name in these reasons as he may in fact have been granted a protection visa. The name appears in the transcript of the proceedings before me on 5 September 2002.

9. The written submissions filed on behalf of the respondent, simply put, state that the decision made by the RRT is a privative clause decision and that the applicant has been unable to advance a reviewable ground of review, described as the Hickman conditions.

10. It is submitted on behalf of the Minister that only three grounds of review are available. Those are first, the decision maker is required to have made a bona fide attempt to exercise its power; secondly, the decision must relate to the subject matter of the legislation; and thirdly, the decision must be reasonably capable of reference to the power given to the decision maker. Mr Cranwell, for the Minister, in his oral submissions, put to me that none of the matters advanced by the applicant was sufficient to justify overturning the decision of the RRT based upon the Hickman conditions. That submission, of course, was made without the benefit of having heard the sound recording of the RRT proceedings, bearing in mind the serious allegations made by the applicant concerning the quality of interpretation and interference with the sound recording.

11. In the proceedings before me on 5 September 2002 an issue arose concerning the interpreter who attended at court on that day. In essence, the applicant put to me that he knew the interpreter and that he did not have confidence in him. After examining the interpreter under oath I permitted the proceedings to continue, as I was satisfied that the interpreter could be relied upon to interpret properly, but out of an abundance of caution I arranged for a different interpreter to be present at these proceedings today.

12. It is important to commence a consideration of the decision of the RRT in this matter by reference to the decision of the Full Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228. I considered the operation of the privative clause in the light of that decision in the case of NAIN v Minister for Immigration [2002] FMCA 177. I noted at paragraph 10 of that decision that the decision of the Full Federal Court in NAAV is binding upon me. All of the judges in NAAV found that the privative clause in s. 474 of the Migration Act is valid and that the effect of the clause is to protect from judicial review decisions of the RRT which might otherwise be found to be invalid by reason of jurisdictional error.

13. All of the judges also found that some decisions evidencing jurisdictional error would not be protected from review by the privative clause but they differed as to the extent to which the privative clause would apply. At paragraph 535 of the decision in NAAV, his Honour French J set out seven grounds of review that, in his view, remain available notwithstanding the privative clause. These are:

(1) the decision exceeds the constitutional limits upon legislative power imposed by the Commonwealth Constitution;

(2) the decision was not made in good faith;

(3) the decision was not reasonably capable of reference to the power under which it was made;

(4) the decision was not made by reference to the subject matter, scope and objects of the Migration Act;

(5) the decision was made in breach of an express statutory limit or condition upon a power which, as a matter of construction, notwithstanding s.474, must be observed for the effective exercise of the power;

(6) the decision is made in breach of a limit or condition on a power which, notwithstanding s.474, is implied from the statute or imposed by the common law, and which must be observed for the effective exercise of the power; and

(7) the decision was made in breach of the requirements of procedural fairness (also known as natural justice) when the circumstances are such that, notwithstanding s.474, procedural fairness is a necessary condition for the valid making of the decision.

14. Grounds 1 to 4 find support from all the Justices in NAAV and are clearly founded upon the so-called Hickman principle. Ground 5 finds majority support in the judgments of their Honours Black CJ and Wilcox J in the matters of Turcan and Wang, although the extent of operation of the ground must be read in the light of the judgment of Black CJ in order to find a majority approved operating principle.

15. Ground 6 appears not to have been specifically considered by the rest of the Court, although it should be treated with some caution given the observation of Black CJ at paragraph 16 of his judgment. Ground 7 was rejected by the majority of the Court in NAAV. For the purposes of these proceedings I regard the first 5 grounds set out by French J above as open to the applicant, although the extent of the fifth ground needs to be considered in the light of the judgment of Black CJ. I also proceed on the basis that it is arguable that ground 6 is also available. Ground 7 is not available on the basis of the majority judgment in NAAV.

16. As was the case in the matter of NAIN v Minister for Immigration, in this case the applicant has asserted jurisdictional error in the terms identified by the High Court in Craig v South Australia (1995) 184 CLR 163. In NAAV, in relation to the appeal by Turcan at paragraph 30, Black CJ considered the application of that case in the light of the privative clause and said the following:

I take section 474(1) to express the Parliament's intention that the Minister's satisfaction is to be taken to exist even if the Minister (or the delegate) has identified a wrong issue, asked a wrong question, ignored relevant material, or relied on irrelevant material.

17. His Honour went on to say that where, however, the decision under review was subject to an inviolable precondition on the achievement of a degree of satisfaction and where a legal error is committed at arriving at that state of satisfaction, the decision will not be protected by the privative clause.

18. In NAIN I found that s.65, in requiring a level of satisfaction to be reached before granting or refusing a visa, imposes an inviolable precondition to the exercise of power.

19. It follows that if a legal error is made in assessing the criteria for the grant of a visa preparatory to determining whether the requisite degree of satisfaction has been met, the decision may be reviewable notwithstanding the privative clause. However, it is not any legal error which will provide a foundation for such review.

20. As was made clear by Black CJ in NAAV in the matter of Turcan, the general jurisdictional questions identified in Craig are not sufficient. What is necessary is the identification of a legal error of the kind identified in Turcan. This may be, for example, the application of a part of the Migration Act or Migration Regulations ("the Migration Regulations") which does not apply, or no longer applies, or a failure to apply a part of the legislative regime which must apply. For example, the RRT must apply the statutory description of persecution set out in s.91R of the Migration Act. Section 91R and s.91S qualify some aspects of Article 1A of the Refugees Convention. Section 36(2) of the Migration Act and the Migration Regulations require a decision maker to assess protection visa applications by reference to the Refugees Convention and protocol as clarified by sections 91R and 91S.

21. Potentially, the misapplication of these provisions may be reviewable notwithstanding the privative clause. To the extent that the applicant is simply asserting a breach of common law requirements of procedural fairness, and to the extent that he is inviting a review of the merits of the decision of the RRT, the application cannot succeed. However, the applicant also asserts a lack of good faith on the basis of actual bias and he asserts that the decision of the RRT is misguided in terms of the obligations of the Refugees Convention.

22. It is necessary therefore to consider whether the decision of the RRT disclose on its face a significant legal error vitiating the attainment of the degree of satisfaction necessary to refuse the application for a visa. It is also necessary to consider whether the proceedings before the RRT, or the decision itself, indicate that the presiding member was biased. The decision and reasons of the RRT are set out in the court book, commencing at page 64. The presiding member referred to the claims made by the applicant. These concern his membership of the Jatiya party in Bangladesh and his role as a photographer. The presiding member noted that the applicant had withdrawn his initial application for a protection visa on advice. The applicant had apparently received advice that he might be more successful in applying for a different type of visa. He was, however, unsuccessful.

23. The application for a protection visa, which was the subject of the proceedings before the RRT, was made some nine years after the applicant arrived in Australia. That fact, of itself, apparently raised some scepticism in the mind of the presiding member. It is apparent from the finding and reasons of the RRT, at pages 6 and 7 (court book, pp. 69-70), that the claims made by the applicant were not believed by the presiding member. The presiding member did not accept that the applicant had been the victim of persecution in Bangladesh and found that he was not at risk of persecution should he return to Bangladesh.

24. The presiding member specifically rejected evidence provided by the applicant's nephew concerning alleged threats to kill the applicant which the nephew had allegedly overheard when visiting Bangladesh in 1998. The presiding member also found that certain documents presented by the applicant in support of his claims were not genuine. I see nothing sinister in the adverse conclusions drawn by the presiding member about the credibility of the applicant, his documents and the evidence of his nephew. It is both appropriate and necessary for the RRT to make findings on issues of credit. The RRT does not have to uncritically accept allegations made to it.

25. The presiding member did not have before her the documents relating to the original protection visa application made by the applicant, although the applicant was able to provide some material. I do not think that anything turns on that because the documents which were necessary for the RRT to have before it were the documents which related to the current protection visa application.

26. I find that on the material put before the RRT the presiding member was entitled to draw adverse conclusions. The decision and reasons of the RRT do not contain anything suggestive of bias or otherwise indicating a lack of good faith. Neither do the decision and reasons contain anything indicating on their face that the presiding member fell into any significant legal error in arriving at the degree of satisfaction necessary to support a refusal of the protection visa sought by the applicant.

27. I have also listened to two copies of the recording of the proceedings before the presiding member. One copy was made available to me by the applicant, and the other copy was made available by the solicitors for the respondent. The sound quality of the recording provided by the applicant was significantly better than the sound quality on the recording provided by the solicitors for the respondent. I was, however, able to satisfy myself that the recordings were identical. I find that there was nothing in the comparison of the two recordings to indicate that anything had been deleted, as alleged by the applicant.

28. I was also able to establish that there had been some discussion between the applicant and the presiding member about the visit to Australia, or arrival in Australia, of the Deputy Prime Minister of Bangladesh. I am not satisfied that anything has been deleted from the oral record of the proceedings before the RRT relating to that matter or any other matter.

29. I also reject the applicant's contention that he was unable to present his case effectively to the RRT because of interpretation difficulties. It appears to me from that recording that the interpreter provided was interpreting effectively. However, I also note that relatively early in the proceedings before the RRT the applicant requested permission to present his arguments in English. For a significant portion of the proceedings before the RRT the applicant appeared to present his submissions to the RRT and answer questions put by the RRT clearly and effectively in English.

30. I formed the view from that that the applicant has a good command of the English language. He did revert to reliance upon the Bengali interpreter during the latter part of the proceedings before the RRT when complex and possibly difficult questions were put to him by the presiding member. It is noteworthy that by that stage the presiding member had indicated scepticism about the truthfulness of the matters alleged by the applicant.

31. There is nothing in the sound recording of the proceedings before the RRT that indicates to me that the presiding member was biased. The presiding member chose to conduct the proceedings informally but there was nothing wrong in that. The RRT is not a court and it is appropriate that proceedings be conducted informally. It is apparent from the sound recording that the presiding member became sceptical about the applicant's claims at a relatively early stage of the proceedings. She made that scepticism clear to the applicant and invited him to put material before her to overcome that scepticism. In order to establish actual bias the applicant must satisfy me that the presiding member displayed some animosity to him or dealt with the proceedings with a closed mind.

32. The obligations upon an applicant in order to establish a case of actual bias are clearly set out by His Honour von Doussa J in the case of SCAA v Minister for Immigration [2002] FCA 668 at paragraphs 34 to 44. There is nothing in the sound recording that indicates to me that the presiding member had any personal animus to the applicant. Neither does the sound recording indicate a closed mind. It is abundantly clear that the presiding member did not believe the claims put to her by the applicant but that does not indicate bias. It simply indicates scepticism.

33. There is nothing else in the matters put before me by the applicant that would lead me to interfere with the decision of the RRT in the face of the privative clause. The findings made by the RRT concerning the political situation in Bangladesh were reasonably open to it. The RRT was entitled, on the material before it, to reject the assertions made by the applicant concerning the alleged persecution of him and his family. The presiding member correctly applied the Refugee Convention as modified by the Migration Act. The RRT, in coming to its decision, did not breach any essential requirement of the Migration Act. The RRT acted in good faith. The decision of the RRT was a bona fide attempt at exercising the powers conferred on it.

34. I add for completeness that the provisions of former s.476 of the Migration Act are not relevant to these proceedings. I do not regard the decision of the High Court in Muin and Lie, on those provisions, as relevant to these proceedings.

35. In all the circumstances, I will dismiss the application for review.

36. On the question of costs Mr Cranwell, on behalf of the Minister, has sought an order for costs. That is opposed by the applicant on the basis that he has no money to pay an award of costs and an order for costs would cause him hardship.

37. The applicant has emphasised to me that he has no funds available which he could use to meet an order for costs. I do not regard the financial circumstances of the applicant as the determining factor in considering whether or not to make an order for costs. The general principle in civil proceedings before this Court, as in other courts, is that costs follow the event. In other words, generally the unsuccessful party must pay the costs of the successful party. The financial circumstances of the unsuccessful party may determine whether the costs are in fact paid, but they should not determine whether or not a costs order is made.

38. There is no absolute rule that a successful party is entitled to an order for costs. There are circumstances where it is not appropriate to make an order for costs, for example where the behaviour of the successful party disentitles them to a costs order. There is, however, nothing in these proceedings which indicates to my satisfaction that I should depart from the general principle.

39. Ordinarily in migration proceedings of a routine nature it has been my practice to fix costs in a specific amount. There are alternative courses. One is to make a simple order for costs to be assessed on the fixed event base scale applying in the Federal Magistrates Court Rules 2001 (Cth) ("the Federal Magistrates Court Rules"). In my view, that is the appropriate approach to take in this matter, which was heard over two days, and in which more than usual had to be resolved. Under that scale, the respondent Minister would be entitled to costs for the following stages; Stage 1 plus a daily hearing fee for a short mention; Stage 5 being preparation for a final hearing for one day; and Stage 6 for a final hearing of one day, bearing in mind that this hearing has been conducted over two half days.

40. The respondent Minister has been represented by a solicitor alone who has also acted as an advocate. Rule 21.14 of the Federal Magistrates Court Rules provides that if a solicitor appears for a party alone or instructed by another solicitor who is a member of the same firm the solicitor is entitled to 150 per cent of the daily hearing fee for a solicitor in addition to the fee for preparation for the hearing.

41. For the purposes of rule 21.15 of the Federal Magistrates Court Rules I certify that it was reasonable for the respondent to employ an advocate to appear on behalf of the respondent both today and at the hearing before me on 5 September 2002. The order that I will make is that the applicant pay the respondent's costs and disbursements of and incidental to the application in accordance with the scale of costs in the Federal Magistrates Court Rules.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Driver FM


Associate:

Date: 9 October 2002
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