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MIGRATION - Application for review of Refugee Review Tribunal decision - no lack of procedural fairness - no jurisdictional error.

NATI v Minister for Immigration [2003] FMCA 143 (20 March 2003)

NATI v Minister for Immigration [2003] FMCA 143 (20 March 2003)
Last Updated: 21 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NATI v MINISTER FOR IMMIGRATION
[2003] FMCA 143



MIGRATION - Application for review of Refugee Review Tribunal decision - no lack of procedural fairness - no jurisdictional error.



Migration Act 1958 (Cth)

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

NAAV v Minister for Immigration Multicultural & Indigenous Affairs [2002] FCAFC 228

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379

Re Minister; Ex parte Durairajasingham (2000) 168 ALR 467

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1

Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24

Paul v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 64 ALD 289

Vao v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 161

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

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

Applicant:
NATI



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ925 of 2002



Delivered on:


20 March 2003



Delivered at:


Sydney



Hearing Date:


20 March 2003



Judgment of:


Barnes FM


REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr G.T. Johnson



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) That the application is dismissed.

(2) That the Applicant pay the Respondent's costs fixed in the amount of $3500 in accordance with Rule 21.02 (2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ925 of 2002

NATI


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an ex tempore judgment in the matter of NATI v Minister for Immigration & Multicultural & Indigenous Affairs.

2. This is an application for review of a decision of the Refugee Review Tribunal made on 16 July 2002 and handed down on 6 August, 2002. The applicant applied to the Federal Court on 29 August 2002. The matter was transferred to this Court by Jacobson J on 23 September, 2002. The matter was set down for hearing on 27 February 2003. The parties were ordered to file and serve written submissions. The applicant faxed a copy of written submissions to the Court on 24 February 2003. The respondent also made written submissions.

3. By a facsimile letter dated 26 February, 2003 the applicant sought and was granted an adjournment on the basis of a medical certificate that stated that he was unfit to attend the Court from 26 February to

5 March 2003 inclusive because of a `closed head injury'. He also said that he was seeking legal representation in light of the decision in the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.

4. The matter was adjourned until 20 March, 2003. On 19 March 2003 the applicant faxed a further letter to the Registry stating that he had "contracted but did not need (sic) engage a barrister for his hearing' having not yet received funds from overseas. He asked the Court to consider his application and written submission dated 24 February, 2003. He also informed the Court that he was unable to appear due to unexplained `personal difficulties'. He did not appear at the time fixed for the hearing.

5. The applicant has made written submissions. He has had the respondent's outline of submissions filed on 25 February 2003 since before the first hearing date. He has requested the Court to consider his application on the basis of his documentary evidence and the written submission. Accordingly, despite his absence, I have considered his application and not simply dismissed it on the basis of his non-appearance today.

6. The applicant, who is a national of Bangladesh, arrived in Australia on 5 September 1998 on a Student Visa which was cancelled in January 2000. He applied for a Protection Visa on 16 February 2000. He claimed to have been a supporter of the Bangladesh Nationalist Party (BNP), to have joined its student wing in his teens and to have been involved in the election campaign in 1991. He also claimed to have been a leader of the student wing of the party, the JCD, at high school and college and subsequently joint secretary of the local area branch and to have demonstrated and led demonstrations against the opposing Awami League.

7. He claimed that his home was attacked by a group of Awami League thugs after the June 1996 elections and that they tried to kill him on subsequent occasions and that a number of false cases had been filed against him. In the course of his application for review by the Tribunal he made a number of additional claims as to attacks on him, his family and his family home and alleged clashes with police and political opposition parties and also that the police had not assisted him. He claimed to be still unsafe despite the fact that the BNP was now in power in Bangladesh on the basis that the judiciary and police were said still to be largely influenced by the Awami League and subject to political inference. He also claimed that he would be persecuted by his own party because of his perceived pro-liberation views.

8. The Tribunal was not satisfied that the applicant faced a real chance of persecution in Bangladesh. It made findings of fact and it provided extensive reasons for its decision. The Tribunal was not satisfied that the applicant faced a real chance of persecution in Bangladesh. As set out in the submissions of the respondent:

a) The Tribunal was not satisfied that the applicant had a subjective fear of persecution in Bangladesh. The Tribunal has explained this conclusion at RD85, finding that:

i) The applicant came to Australia on a student visa (which the Tribunal found to be indicative of his true intention);

ii) The applicant made no attempt for 17 months to seek protection (whereas the Tribunal considered that he would have applied for protection earlier had he genuinely needed it);

iii) The applicant only applied for a protection visa after his student visa was cancelled and after his adviser (it was claimed) apparently mishandled an appeal from that cancellation;

iv) It was not credible that the applicant chose not to apply earlier for any of the reasons given (which were individually then dealt with by the Tribunal at RD85.5-85.8);

b) It found that the applicant invented all his claims of persecution;

c) In any event it dealt with those claims, finding that they lacked credibility;

d) In relation to the `highly dramatic claims' made just before the hearing in a second statement, the Tribunal found that it was not credible that the applicant would be too disturbed to state these when he first sought protection 17 months after arrival in Australia, or that he would have waited a further 2 years to make these claims if they were true. The Tribunal indicated here that it found the applicant's migration agent to be well-experienced in preparing protection visa applications for Bangladeshis, the initial statement was quite long and that it bore no signs of being done hastily;

e) In relation to the initial claim (made in 2000) that the applicant feared persecution from the governing Awami League (`AL') because he was a member of the rival Bangladesh Nationalist Party (`BNP'), the Tribunal found that such fear could not now credibly be asserted given that the BNP `swept the polls', being elected to power, in 2001, and that the area from which the applicant comes appears to be stronghold of the BNP;

f) In relation to a latter claim by the applicant that he faced persecution from anti-independence activists within the BNP who threatened people who had worked for independence, the Tribunal found that this claim was a `patent attempt to rescue his claims'. The Tribunal found that it was absurd in the applicant's case given that he was born in 1975, when independence had occurred in 1971, and that he would not be classed amongst the freedom fighters;

g) With respect to the applicant's `effort to mend' that claim by saying that, even to work as he had for people who had fought for independence placed him at risk, the Tribunal found (for reasons which it proceeded to give at RD87.4-89.5) that the claims lacked credibility. The Tribunal was simply not satisfied that there was a real chance that a person within the BNP who approves of Bangladeshi independence would be harmed for such a political view;

h) In any event, the Tribunal was of the view that the applicant would have effective protection in Bangladesh in relation to any threatened acts of political thuggery or politically motivated false charges (even assuming that such threats or charges might otherwise occur).

9. The applicant claims that Tribunal ignored relevant evidence and made findings in the face of contradicting independent evidence and that this indicated actual bias constituting jurisdictional error being a breach of procedural fairness.

10. In an affidavit accompanying his original application the applicant took issue with the factual findings of the Tribunal and claimed to have established, beyond reasonable doubt, that he was a refugee. He also claimed that the Tribunal had failed to take into account independent reports of political incidents and murders in Bangladesh and that the Tribunal had relied only on Department of Foreign Affairs country information. In the written submissions that he provided by facsimile dated 24 February 2003, he claimed that the Tribunal did not consider him to be a refugee "despite many evidentiary proofs", that the (unidentified) procedures that were required to be observed under the Migration Act 1958 (Cth) (the Act) in connection with the making of the decision were not observed, and that the Tribunal ignored the merits of the claim and did not take into consideration the "verdict" from the Bangladesh country report. There is not explanation of exactly which aspect of the independent country information is referred to in this claim.

11. Attached to his application are two extracts from the decision of the High Court in Plaintiff S157, being paragraphs [35] - [39] and [71] -[76]. It appears that attention is being drawn, in particular, to paragraph 76 by virtue of what appears to be a black arrow beside that paragraph.

The relevant law

12. Pursuant to section 483A of the Act this Court has the same jurisdiction as the Federal Court in relation to a matter arising under the Act. Under section 475A it has jurisdiction in relation to a privative clause decision, that is a decision made on the review by the Tribunal. A privative clause decision is defined in subsections 474(2) and (3) of the Act. Subsection 474(1) of the Act limits review of the Court. In NAAV v The Minister for Immigration Multicultural & Indigenous Affairs [2002] FCAFC 228 the Full Court of the Federal Court held that section 474 must be construed in the same manner as the kind of privative clause considered in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. In other words, there are three conditions which, if met, would ordinarily mean that a decision, a subject of a provision such as section 474 would be valid. These are first that the decision is an 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.

13. In Plaintiff S157 the High Court held that, as a matter of construction, the expression `decisions 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]). If there has been a jurisdictional error, the decision cannot be properly described as a decision made under this Act and is thus not a privative clause decision as defined in section 474. Further a decision flawed for reason of failure to comply with the principles of natural justice is not a privative clause decision within section 474. If there is no jurisdictional error affecting the decision then it would be a privative clause decision and protected by section 474 unless it was shown that one of the Hickman provisos had not been met.

14. In Plaintiff S157 the High Court confined itself to a general statement of principle in relation to jurisdictional error and the particular issue of jurisdictional error by reasons of a denial of procedural fairness as asserted by the Plaintiff in that case. The precise scope of the notion of jurisdictional error in this context is one which involves some complex issues. I refer, for example, to the decision of the High Court in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1. However, the present case is not one in which it is necessary for the Court to decide what kinds of jurisdictional error have the effect that a decision is not a privative clause decision in the manner determined by Plaintiff S157 as on the material before the Court no jurisdictional error of any kind has been established.

15. The applicant takes issue with the findings of fact. However, the merits of the Tribunal decision are not susceptible to review by the Court. It is argued by the applicant in a very general way that the Tribunal did not consider the applicant as a refugee despite many evidentiary proofs. This is an impermissible challenge to the facts as is the argument that the Tribunal ignored the merits of the claim. Insofar as there is a general criticism of the manner in which the Tribunal proceeded, I am satisfied that no error has been demonstrated in the Tribunal's approach. The Tribunal decision reveals that it approached its task in the manner required of it. It made findings as to the underlying claims by the applicant in respect of past events (see Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379). It then considered the application of the definition of refugee within the meaning of Article 1A of the Refugees Convention.

16. Essentially, the Tribunal did not accept the credibility of the applicant and found that he had invented claims in support of his application for a visa. The issue of credibility of the applicant is a matter for the Tribunal to determine, Re: MIMA v Ex-Parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. The conclusions of the Tribunal in this respect were open on the evidence before it. It set out at some length its findings on material questions of fact and its reasons for rejecting the applicant's claims.

17. On the material before the Court there is nothing to suggest that the Tribunal in anyway failed to take into account any relevant considerations in the sense discussed by the High Court in Craig v South Australia (1995) 184 CLR 163 as explained in The Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1. I note in that respect that while a failure to take into account all relevant considerations in a way that affects an exercise of was regarded in Yusuf as a jurisdictional error, the considerations that are relevant to the Tribunal's task are to be identified primarily by reference to the Act rather than by reference to the particular facts of the case that the Tribunal is called on to consider. The ground is concerned essentially with whether the decision maker has properly applied the law, not with the process of making the particular findings of fact upon which the decision maker acts. There is no such error in this case. The weight to be given to particular matters is (subject to the Act) a matter for the Tribunal (Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 and Paul v MIMIA (2002) 64 ALD 289).

18. In any event, in this case the Tribunal made findings in relation to the applicant's claims and concluded that he had invented claims in support of his application. It expressly referred to relevant country information which was part of the material before it. This is not a case where it has been shown that 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. Further, the fact that, as claimed by the applicant, the Tribunal does not refer expressly to particular material that the applicant submitted was relevant, does not establish a jurisdictional error. The Tribunal is not obliged to expressly mention each part of the evidence before it where the elements or integers of the claim are considered (Paul at [78] per Allsop J).

19. I am satisfied that the Tribunal had regard to the information before it. The applicant has not established that some relevant, significant and credible material was provided to the Tribunal and not taken into account.

20. Part of the applicant's claim may also be seen as a claim of denial of procedural fairness based on an allegation that there was actual bias. That has not been shown. There is no evidence that the Tribunal could be said to have had a closed mind in the requisite sense or have formed a view that it was unable or unwilling to alter regardless of what material was placed before it. I refer in that regard to the decision in Vao v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 161 at [29] and the passages there cited from Minister for Immigration & Multicultural Affairs & Jia Legeng (2001) 205 CLR 507 at [438] and [449] and Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at [32] - [36] where the distinction is drawn between bias and factual error or faulty reasoning.

21. For the sake of completeness I also mention that there is nothing to suggest any apprehended bias on the material before the Court. There is nothing that indicates that there was any real likelihood that a reasonable observer might reach a conclusion that there was such a pre-judgement by the Tribunal member such as to constitute apprehended bias (Minister for Immigration & Multicultural Affairs & Jia Legeng (2001) 205 CLR 507).

22. In summary then, no jurisdictional error or denial of procedural fairness has been established. The decision is a privative clause decision within section 474 of the Act. Nor does the material before the Court establish a failure to comply with or a 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. As the applicant has been wholly unsuccessful it is appropriate that he meet the respondent's costs.

23. Accordingly it is ordered that the application be dismissed and that the applicant pay the respondent's costs fixed in the amount of $3500 in accordance with Rule 21.02 (2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 20 March 2003.
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