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1 This is an appeal from a decision of a judge of the Court, Stone J, given on 6 February 2002 dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") under the Migration Act 1958 (Cth) ("the Act"). On 25 October 2001, the Tribunal affirmed a decision of a delegate of the respondent, which decision was made nearly four years before on 27 November 1997, refusing the appellant a protection visa.

NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2002]

NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 236 (14 August 2002)
Last Updated: 19 August 2002


FEDERAL COURT OF AUSTRALIA
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 236


APPLICANT NACB OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No N 142 of 2002

SPENDER, MOORE, KIEFEL JJ

SYDNEY

14 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 142 OF 2002



ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
APPLICANT NACB of 2001

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGE:
SPENDER, MOORE, KIEFEL JJ


DATE OF ORDER:
14 AUGUST 2002


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant 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 142 OF 2002



ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
APPLICANT NACB of 2001

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGE:
SPENDER, MOORE, KIEFEL JJ


DATE:
14 AUGUST 2002


PLACE:
SYDNEY





REASONS FOR JUDGMENT
THE COURT:

1 This is an appeal from a decision of a judge of the Court, Stone J, given on 6 February 2002 dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") under the Migration Act 1958 (Cth) ("the Act"). On 25 October 2001, the Tribunal affirmed a decision of a delegate of the respondent, which decision was made nearly four years before on 27 November 1997, refusing the appellant a protection visa.

2 When the appeal was called on this morning there was no appearance by or on behalf of the appellant. The Court notes that the appellant was informed by letter dated 27 May 2002 that the appeal would be listed for hearing here on Wednesday, 14 August 2002 at 10.15 am, yet the appellant has not sought to prosecute his appeal. For that reason the appeal should be dismissed. Notwithstanding that, the Court has carefully looked at the material the subject of the present appeal.

3 The appellant is a national of Bangladesh. He arrived in Australia on 2 September 1997 after informing the Australian High Commissioner in Dhaka that he wanted to come to Australia to take part in martial arts shows. He claimed to fear persecution in Bangladesh from the Awami League because of his membership of a political party called the Freedom Party which he joined in 1989. At the Tribunal hearing, the appellant further claimed that he feared harm because "he had been an opponent of drug users and suppliers".

The Tribunal's Decision

4 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 appellant's written submissions responding to updated independent country information concerning the political situation in Bangladesh that the Tribunal had sent to the appellant. The Tribunal noted that the appellant had lived in Narayangonj in Bangladesh for 20 years before leaving for Australia. The Tribunal also noted that the appellant had a university degree and had owned a trading business for some years.

5 Having considered the material before it, the Tribunal found that the appellant had fabricated claims to substantiate his application for a protection visa. It stated:

"I am not satisfied that there is credibility in the applicant's claims regarding his political situation, and the general political situation in Bangladesh."
6 The Tribunal regarded as implausible the claim that the appellant became leader of the Freedom Party in his village at the age of fifteen 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]."
7 The Tribunal was also not convinced that the appellant's supporting documentation was genuine. The Tribunal summarised its conclusions:

"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."
The Application for Review

8 As Justice Stone recognised, the decision under challenge is a privative clause decision within the meaning of s 474 of the Act. The appellant was represented by counsel at the hearing before the primary judge, and the only ground of review raised on the appellant's behalf at that hearing was actual bias constituting jurisdictional error. The particulars in support of this ground allege wrongful findings by the Tribunal as to the credibility of the appellant and the absence of independent forensic expert examination of the appellant's documents to determine their authenticity. Her Honour said at [15]:

"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) 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."
9 To establish actual bias, the least that must be shown is that the Tribunal had a "closed mind" - a pre-formed view which was irreversible regardless of what further evidence was presented: MIMA v Jia (2001) 178 ALR 421; 75 ALJR 679 at [71-72] per Gleeson CJ and Gummow J; [121] per Kirby J; and [185-186] per Hayne J. Drummond J expressed the view in Kan v MIMIA [2002] FCA 923 at [24] that it would be:

"difficult to see why actual bias, a subjective motivation, should not come within the first Hickman proviso ..."
10 That conclusion is supported by the observations of Mansfield J in SBAN v MIMIA [2002] FCA 591 at [29] that, in the light of a finding that the Tribunal was actually biased, it was:

"... then a short step to the conclusion that the Tribunal did not exercise its function of deciding the application in good faith, but did so with a mind apparently directed to deciding the claim adversely to the applicant."
11 Stone J carefully considered the question of whether actual bias had been made out. Her Honour concluded:

"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.
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.

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."

12 The notice of appeal does not elucidate how it is said that the primary judge erred in finding the non-existence of actual bias, the sole ground of appeal raised before Stone J.

13 No error has been demonstrated in her Honour's finding on the ground relied on for an order of review. The appeal should be dismissed, with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Moore, and Kiefel.




Associate:

Dated: August 2002

There was no appearance on behalf of the appellant.


Counsel for the Respondent:
Mr G. Johnson






Solicitor for the Respondent:
Blake Dawson Waldron






Date of Hearing:
14 August 2002






Date of Judgment:
14 August 2002


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