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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal to grant a protection visa - alleged procedural unfairness and bias - no reviewable error disclosed.

NASP v Minister for Immigration [2002] FMCA 344 (3 December 2002)

NASP v Minister for Immigration [2002] FMCA 344 (3 December 2002)
Last Updated: 13 January 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NASP v MINISTER FOR IMMIGRATION
[2002] FMCA 344



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal to grant a protection visa - alleged procedural unfairness and bias - no reviewable error disclosed.



Migration Act 1958 (Cth), ss.420, 474

Applicant:
NASP



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ868 of 2002



Delivered on:


3 December 2002



Delivered at:


Sydney



Hearing Date:


3 December 2002



Judgment of:


Driver FM



REPRESENTATION

The applicant appeared in person




Counsel for the Respondent:
Mr J K Kirk



Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed at $3,600.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ868 of 2002

NASP


Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This ex tempore judgment relates to an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 23 July 2002 and handed down on 13 August 2002. The general background facts relating to the application are set out in paragraphs 2-5 of written submissions prepared on behalf of the respondent minister and I accept that that is an accurate description of the background, which I adopt for the purposes of this judgment.

2. The application for review filed on 20 August 2002 and its supporting affidavit raises five grounds of review, the majority of which, in my view, relate to the merits of the decision of the RRT, in particular the ultimate issue of whether the applicant is a person to whom Australia has protection obligations under the Refugee Convention. It is not open to me to review the merits of the decision of the RRT.

3. That tribunal is the final tribunal of fact and the jurisdiction of this Court is limited to the question of whether any reviewable legal error has been committed by the RRT in coming to its decision. It is, of course, open to the applicant to request that the Minister reconsider the merits of the case and consider substituting a more favourable decision for that of the RRT. That is a matter for the applicant to consider.

I will restrict myself to the legal issues arising for determination.

4. The applicant in his application and supporting affidavit arguably raises two issues. One is a breach of procedural fairness. The other is a breach of s.420(2)(b) of the Migration Act 1958 (Cth) ("the Migration Act"). In addition, in his oral submissions today, the applicant asserts that the presiding member of the RRT was biased and did not exercise good faith in reaching a decision. The allegation of procedural fairness is not particularised and it is not apparent from the court book that there was any breach of procedure in the conduct of proceedings before the RRT.

5. The applicant was invited to appear before the RRT and that he did so and presented both oral submissions and documents. The applicant was made aware of potentially adverse matters relating to him that the RRT took into account. The applicant exercised an opportunity to dispute potentially adverse matters at the hearing provided to him.

I conclude, therefore, that there was no breach of procedure by the RRT that could sustain the assertion of a lack of procedural fairness.

6. The asserted breach of s.420(2)(b) of the Migration Act is an assertion that the RRT did not come to its decision in accordance with substantial justice and the merits of the case. This it seems, having heard the applicant in his oral submissions, is necessarily related to the assertion that the presiding member was biased and did not come to a decision in good faith. That is, of course, a serious allegation which should be clearly stated and should be particularised.

7. The applicant took me to page 120 of the court book in particular and the presiding member's treatment of a letter that the applicant submitted from an official of the Bangladesh High Commission in Canberra. That letter appears in the court book at page 104. The applicant submitted that letter in support of his statements concerning his background and his general good character. The applicant asserts that the presiding member used that letter for an improper purpose in order to demonstrate that the applicant would be safe should he choose to return to Bangladesh.

8. This matter is dealt with by the presiding member in the court book at page 120 in the following terms:

In support of his good qualities he submitted a letter of commendation from the Bangladesh High Commission in Canberra dated 20 July 2000. The Tribunal put to the applicant that this letter in fact was written by a diplomat representing the Awami Government at that time and one which he had claimed was harassing him with false charges. The applicant agreed that this was not the case. He said, however, the present government cannot protect people and he wished to follow in the footsteps of his "politically active forefathers". He said he cannot compromise with his principles and successful political activism in Bangladesh requires one to "resort to firearms and adopting corrupt principles". He said that people in the BNP would be afraid he might rise to become prime minister or president and that is why both parties would oppose him. He said Bangladesh is not a country for honest people

9. There appears to be no further reference to this letter in the decision and reasons of the RRT so it cannot be said that it was a determining factor in the RRT coming to its decision that the applicant did not have a well founded fear of persecution. I can surmise that because there was a change of government in Bangladesh last year, with the Awami League losing power to the BNP (which the applicant supports) that the RRT did not consider that the letter assisted the applicant in his claim.

10. The letter would seem to be essentially irrelevant to the contrary proposition that it was safe for the applicant to return to Bangladesh. Given that the Awami League was no longer in power the views of one High Commission official in Canberra, who was apparently associated with the Awami League, would not have any particular bearing on the risk of persecution following the change of government.

11. The findings and reasons of the RRT are set out briefly in the court book at pages 127 and 128. Those findings and reasons, although brief, deal coherently with the two issues put before the RRT by the applicant. Those were the potential for him to suffer persecution at the hands of the Awami League and the potential for him to suffer persecution at the hands of fellow BNP members. The RRT dismissed the first assertion on the basis that there had been a change of government in Bangladesh last year and that an Awami League figure, who the applicant asserted was a particular risk to him, had been detained by the authorities, indicating that that individual was no longer a threat and the that the authorities were taking reasonable steps in order to prevent such individuals persecuting others.

12. The second assertion was not accepted by the RRT on the basis of the material before it. The RRT was not satisfied that there was any persuasive evidence of intra-party conflict within the BNP that posed a risk to the applicant.

13. It was, of course, for the applicant to persuade the RRT that he was a person to whom Australia has protection obligations under the Refugees Convention. Decision makers under the Migration Act are presented with very many similar claims and it is very common for applicants from Bangladesh to make claims based on political adherence to one party or another in Bangladeshi politics. It is easy, in those circumstances, for a decision maker to become cynical and not to assess as clearly as is possible the particular assertions made by particular applicants. Many applicants make claims based on false documentary evidence - something which the applicant in these proceedings forcefully submitted to me, that he has eschewed. That is to his credit. There is authority that decision makers should not be too critical of applicants in adverse circumstances whose claims of persecution might be seen as deficient in one respect or other and that applicants should, all other things being equal, be given the benefit of the doubt.

14. On the other hand, decision makers are not required to uncritically accept all that applicants put before them. It is the job of the RRT to weigh and assess the material before it and to come to a view on the merits on the claims made by applicants. This Court must restrict itself to the question of whether any identifiable legal error has been made by the RRT in that process. It is not for me to say whether the applicant is a refugee or not. The RRT has decided that he is not and I am not able to find any discernible legal error on the face of the decision and on the face of the record contained in the court book.

15. I am not persuaded by the applicant's assertion that the presiding member was biased and indicated pre-judgment. That does not appear from the face of the decision and reasons of the RRT. I did not have the advantage of reading the transcript of the proceedings before the RRT. The applicant could have put that transcript into evidence if he had wished to. I note that he is a lawyer with a distinguished background in Bangladesh, and would have been familiar with the evidentiary requirements for an allegation of bad faith or bias. On the material before me, therefore, I am not able to conclude that the RRT presiding member showed pre-judgment establishing actual bias. For that reason, I am not persuaded that the presiding member acted otherwise than in good faith. The decision was a bona fide attempt by the RRT to exercise its decision making powers.

16. In addition, the decision is clearly one made under the Migration Act and one that relates to the subject matter of the legislation. It was further reasonably capable of reference to the RRT's power to determine whether the applicant was a refugee. The three basic Hickman provisos are therefore satisfied. In addition, I have formed the view that no inviolable pre-condition on the exercise of power by the RRT has been breached. In particular, I conclude that s.420(2)(b) of the Migration Act has not been breached as I am not satisfied that the presiding member was biased or otherwise acted in bad faith or in some other way failed to conduct the proceedings in accordance with substantial justice and the obligation to consider the merits of the case.

17. I have already found that the claim of procedural unfairness fails and no other ground for challenging the validity of the decision of the RRT has been advanced. In the circumstances, I find that no reviewable error has been disclosed in these proceedings. That conclusion would be the same whether or not resort is had to the privative clause in s.474(1) of the Migration Act. I will, therefore, dismiss the application.

18. On the question of costs, Mr Kirk has sought an order on behalf of the Minister and had indicated that actual costs and disbursements incurred to date are in the vicinity of $4,700. The applicant opposes any order for costs and has also asked me to take in to account his limited financial means should I be minded to make an order for costs. The respondent has been wholly successful in the proceedings in that I have dismissed the application and found that no reviewable error has been disclosed in the proceedings. The respondent is therefore entitled to an order for costs in accordance with the general principle that costs follow the event.

19. As to the amount of costs, it is my general practice to fix an award of costs in order to avoid further disputation between the parties and in order to ensure that the strict application of the scale of costs in the Federal Magistrates Court Rules does not produce an unjust result in the more simple migration proceedings that come before the Court. I will do the same in these proceedings.

20. Based upon the amount of costs actually incurred on behalf of the Minister, when assessed on a party/party basis, I consider that an order for costs in the sum of $3,600 would be adequate. I will therefore order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,600.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 20 December 2002
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