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MIGRATION - Application for review of decision of the Refugee Review Tribunal - no lack of procedural fairness or bad faith - privative clause decision - application dismissed.

NACN v Minister for Immigration [2002] FMCA 231 (10 October 2002)

NACN v Minister for Immigration [2002] FMCA 231 (10 October 2002)
Last Updated: 2 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NACN v MINISTER FOR IMMIGRATION
[2002] FMCA 231



MIGRATION - Application for review of decision of the Refugee Review Tribunal - no lack of procedural fairness or bad faith - privative clause decision - application dismissed.



Migration Act 1958

Judiciary Act 1903

Migration Legislation Amendment (Judicial Review Act) 2001

Muin v Refugee Review Tribunal [2002] HCA 30

NADR v MIMIA [2002] FCAFC 293

NAAV v MIMIA [2002] FCAFC 228

Kopalapillai v MIMIA (1998) 86 FCR 547

W148/00A & MIMIA (2001) 185 ALR 703

A v MIMIA [1999] 53 ALD 545

MIMIA v Prathapan (1998) 86 FCR 95 at 104F

Applicant A v MIEA (1996 - 1997) 190 CLR 225

SBAP v MIMIA [2002] FCA 590

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

Zahid v MIMIA [2002] FCA 1108

NAAG of 2002 v MIMIA [2002] FCA 713

SCAA v MIMIA [2002] FCA 668

Craig v South Ausrtalia (1995) 184 CLR 164

Moulana v MIMIA [2002] FMCA 219

Applicant:
NACN



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 262 of 2002



Delivered on:


10 October 2002



Delivered at:


Sydney



Hearing Date:


27 September 2002



Judgment of:


Barnes FM


REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Nil



Counsel for the Respondent:


Mr T Reilly



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) That the Application be dismissed.

(2) That the Applicant pay the Respondent's costs and disbursements of the application which are fixed at $4,500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 262 of 2002

NACN


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 20 December 2001 and notified to the Applicant by letter dated 24 January 2002. The application was made to the Federal Court on 21 February 2002 within the period permitted by section 477 of the Migration Act 1958 (the Act) and is made pursuant to section 39B of the Judiciary Act 1903. The matter was transferred to this Court on 18 April 2002. It was set down for hearing on 30 May 2002. The Applicant did not attend the hearing and did not contact the Court to provide any reason for non-attendance. There being no appearance by the Applicant the application was dismissed.

2. The Applicant appealed from the decision to dismiss his application but then filed a Notice of Motion seeking to have the orders made in his absence set aside. On 21 August 2002 the Court ordered that the judgment made on 30 May 2002 be set aside, that the matter be adjourned for hearing and that the Applicant file and serve an amended application, any evidence upon which he relied and written submissions. In support of the notice of motion the Applicant had provided an affidavit as to his ill health at the time of the hearing supported by a medical certificate.

3. In his amended application the Applicant claimed that the Tribunal did not follow the correct procedure and failed to act in good faith when deciding the matter and that the Tribunal had not considered his claims properly and that the decision was affected by "'procedural fairness', `judicial (sic) error' as well as error of law". It is clear from the Applicant's written submissions that what is claimed is a denial of procedural fairness, jurisdictional error and error of law. In a supporting affidavit the Applicant set out particular factual claims which he suggested the Tribunal did not take into consideration. It was said that the Tribunal did not analyse the various facets of Bangladeshi factional politics but rather generalised his claims based on "their preconceived ideas and hypotheses". The Applicant's written submissions raise claims of denial of procedural fairness and lack of good faith as discussed further below.

Background

4. The Applicant, who is a citizen of Bangladesh, arrived in Australia on 9 September 1999. On 14 October 1999 he applied for a Protection Visa. On 18 November 1999 a delegate of the Respondent refused the application. He sought review by the Tribunal. A hearing was held on 22 November 2001. His application was refused on 24 January 2002.

5. The Tribunal accepted that, as he claimed, the Applicant had been a member of the Bangladesh Nationalist Party (BNP) and assistant secretary of a branch of the BNP's student wing. However the Tribunal considered that the Applicant had exaggerated the threats facing him from the rival Awami League (AL) and did not accept that his AL enemies would again search for him if he returned to Bangladesh and discontinued his work with the BNP as he claimed.

6. The Tribunal considered that the Applicant would be able to avoid political attacks and violence if he returned to Bangladesh given his stated intention to leave the political arena all together upon return to Bangladesh and his stated opposition to violence in Bangladesh politics.

7. The Tribunal was satisfied that the Applicant would be able to express his political opinions and participate normally in politics in Bangladesh if he so chose especially as the BNP were now in power in Bangladesh. The Tribunal was also satisfied, on the basis of independent country information, that the authorities of Bangladesh are willing and capable of protecting the Applicant from harm over his political views and that he could access State protection if he was threatened with harm because of his political opinion.

8. The Tribunal considered that the claims which the Applicant raised at the hearing to the effect that he feared harm from elements of his own political party (the BNP) were fabricated and that in any event he could also access State protection from such harm. The Tribunal concluded that it was not satisfied that Australia owed the Applicant protection obligations under the Refugees Convention as amended by the Refugees Protocol.

The applicant's contentions

9. In his written submissions of 20 September 2002 the Applicant claimed that he was denied procedural fairness and that the decision involved bad faith on the part of the Tribunal. He submitted that he was misled into believing that the Tribunal had read information which had been in the documents listed in Part B of the delegate's decision (in particular six documents providing country information relating to Bangladesh) and as a result did not ensure that such information was placed before it. He contended that the Tribunal had not read the Part B documents upon which the original decision-maker had relied "thoroughly". It was suggested that the Tribunal had taken into account some relevant information but not all. The Applicant suggested that the Tribunal did not take his application into consideration properly, but instead relied upon "some general facts". It was argued that as in Muin v Refugee Review Tribunal [2002] HCA 30 it could be claimed that the Applicant had been misled into believing that the Tribunal had read all of the material relating to his application including the Part B material. He claimed that he was misled by the Tribunal letter of 22 October 2001 inviting him to a hearing and stating "the Tribunal has looked at all of the material relating to your application but it is not prepared to make a favourable decision on this information alone". He claimed that he was misled into thinking that the Tribunal had considered particular relevant information and as a result did not ensure that such information was placed before it. No particular relevant information was identified. Indeed the Applicant noted that the Tribunal decision referred to some of the Part B documents and suggested that the Tribunal took into account some relevant information but not all.

10. The submission relies on extracts from the decision of the Full Court of the Federal Court in NADR v MIMIA [2002] FCAFC 293 but suggests that in this case there was a denial of procedural fairness and a lack of good faith. It appears that he is also suggesting that the decision is not a bona fide attempt to exercise power or is one which contravenes an inviolable limitation on the decision-maker's power.

The respondent's contentions

11. The written submissions of the Respondent were prepared prior to the first hearing date and before the decision of the Full Court of the Federal Court in NAAV v MIMIA [2002] FCAFC 228.

12. The Respondent argued that the Applicant had been unsuccessful because of the view the Tribunal took of the facts, in particular its views as to the Applicant's credibility and its finding that he could access State protection if needed. It was submitted that so long as the Tribunal's findings were open to it, no error was demonstrated (see Kopalapillai v MIMIA (1998) 86 FCR 547 at 558 - 549 and W148/00A & MIMIA (2001) 185 ALR 703 at 64 - 69 per Tamberlin and RD Nicholson JJ). The Tribunal's findings were said to be open to it on the reasons given. Similarly it was submitted that the Tribunal's finding that the existence of State protection in Bangladesh was sufficient to negative a well founded fear was a factual matter for it

(A v MIMIA (1999) 53 ALD 545 at [54]. It was suggested that it was not necessary for the Tribunal to find that the State can guarantee protection (MIMIA v Prathapan (1998) 86 FCR 95 at 104F) and that in the absence of a finding that the State was unable or unwilling to protect the Applicant he could not establish a well founded fear of persecution (Applicant A v MIEA (1996 - 1997) 190 CLR 225 at 233 per Brennan CJ and at 257 - 8 per McHugh J).

13. In any event it was submitted that the Tribunal's decision was one to which the privative clause in section 474 of the Act applied and that none of the Hickman conditions were breached in this case. The Applicant had initially appeared to claim that the Tribunal did not consider the Applicant's claims and exhibited actual bias without providing any particulars. It was submitted that the Tribunal did consider the Applicant's claims, accepting some and rejecting others and that there was no evidence of actual bias. Accordingly there could be no suggestion that the Tribunal decision was not made bona fida (SBAP v MIMIA [2002] FCA 590 per Heerey J at [45]).

14. In response to the Applicant's subsequent written submissions Counsel for the Minister submitted that the decision of the High Court in Muin was not applicable. Further, even if there had been a failure to accord procedural fairness to the Applicant, the introduction of the privative clause in s.474 has the effect of excluding the rules of procedural fairness (NAAV v MIMIA [2002] FCAFC 228).

15. It was also submitted that the Applicant had not established his claim of lack of good faith. In effect the Applicant had submitted that one could infer bias or lack of good faith from the Tribunal reasons. A Court should not draw such an inference from the fact that the Applicant was not believed.

Application of the law

16. It was common ground that the Tribunal's decision is a privative clause decision within the meaning of section 474(2) of the Migration Act and is thus subject to the limitations on judicial review prescribed by section 474(1) which were introduced by the Migration Legislation Amendment (Judicial Review Act) 2001 as applicable to all applications made to the Court on and from 2 October 2001.

17. While not mentioned in the Applicant's submissions, regard must be had to the decision of the Full Court of the Federal Court in NAAV v MIMIA [2002] FCAFC 228. In that case the five judges constituting the Full Court agreed that s474(1) is not to be read literally but is to 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 that case Dixon J observed at 615:

"Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body."

18. There was also broad agreement in NAAV that the purported exercise of power by the decision-maker must not be one that contravenes what is variously described as an `inviolable limitation or restraint' (Black CJ at [12]), a `final limitation upon the powers, duties and functions of the decision-maker' (von Doussa J at [619]) or a `structural' element in the operation of the Act (Black CJ at [37]). As a matter of construction, the broad statement of legislative intention expressed in a privative clause may be displaced by a provision which makes clear Parliament's intention that the observance of some procedure or the proper consideration of some issue is to be a precondition for a valid decision. As outlined by Sackville J in Zahid v MIMIA [2002] FCA 1108, there is a difference between the approach taken by the majority (Black CJ, Beaumont and von Doussa JJ) and that of the minority (French and Wilcox JJ) in relation to the correct approach to such final or inviolable limitations on the decision-maker's powers.

19. The Applicant relied on the decision of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30. He argued that the effect of the sending of the letter of 22 October 2001 amounted to a denial of procedural fairness because he was misled into thinking that the Tribunal had read "thoroughly" the information in the Part B documents. As a result he did not ensure that the Tribunal had relevant information placed before it.

20. In NADR v MIMIA [2002] FCAFC 293 the Full Court of the Federal Court considered a similar claim. As was pointed out in NADR the decision of the High Court in Muin turned upon agreed facts. Such agreed facts are absent or at least have not been proved in the present case. In particular it has not been agreed in this case that the Part B documents were not physically provided to the Tribunal. Indeed the Tribunal reasons for decision make reference to two of the documents contained in Part B as well as to a number of documents which it appears came into existence after the departmental decision of

18 November 1999. 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 Applicant's written submissions or in his oral evidence 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 the 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.

21. Accordingly, as in NADR, it has not been established that there was a denial of procedural fairness. Furthermore NAAV has established that the effect of the privative clause (which did not apply in Muin as the original application for judicial review was made prior to 2 October 2001) is, in effect, to validate jurisdictional errors including a breach of the rules of natural justice (see von Doussa J at [628] - [638] Black CJ concurring [4] and Beaumont J at [91] and following and also at [114] to [116]). Thus the effect of the introduction of the privative clause is to exclude the rules of procedural fairness.

22. The second ground raised by the Applicant is that there has been bad faith on the part of the Tribunal. It appears that it is argued that this is within the Hickman exceptions in constituting a lack of a bona fide attempt by the Tribunal to exercise its power. The Applicant submitted that the letter of 22 October 2001 misled the Applicant, that the decision in relation to the Applicant was misleading (although he does not explain how) that the Tribunal member must have know of its error and that it did nothing to correct it. Again I would refer to the decision of the Full Court in NADR, in particular the judgment of Keifel J. As is pointed out at [31] bad faith in this context "implies a lack of an honest or genuine attempt to undertake the task and involves a personal criticism of the Tribunal or officer in question". (Also see NAAV per Beaumont J at [107] and NAAG of 2002 v MIMIA [2002] FCA 713 at [24] per Allsop J). Insofar as the Applicant alleges actual bias I note that as von Doussa J pointed out in SCAA v MIMIA [2002] FCA 668 it would be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. There is nothing in the evidence before the Court in this case from which bias or lack of good faith on the part of the Tribunal could be inferred.

23. The evidence before the Court does not establish bad faith on the part of the Tribunal or a lack of a bona fide attempt to exercise its power.

24. The Applicant's submissions also state generally that the Tribunal ignored relevant evidence and that it made findings in the face of contradicting independent evidence and that this constituted jurisdictional error being a breach of procedural fairness. Again there is no evidence to support such claim. I note in any event that if the decision did involve jurisdictional error in the sense identified in Craig v South Ausrtalia (1995) 184 CLR 164 it would be validated by the privative clause (see Black CJ in NAAV at [30], von Doussa at [636] - [639] and Beaumont J at [277]). Nor is there any evidence to support a claim that the Tribunal failed to comply with an inviolable limitations upon its powers in the sense considered by the majority in NAAV. (See Sackville J's clear exposition of the majority view in NAAV in Zahid v MIMIA [2002] FCA 1108 with which I respectfully agreed in Moulana v MIMIA [2002] FMCA 219).

25. In these circumstances and given that there is nothing otherwise to suggest that the decision of the Tribunal involved a lack of bona fides, that it did not relate to the subject matter of the legislation or that it was not reasonably capable of reference to the power given by the decision-maker, and nor that there is a contravention of any inviolable limitation or structural element in the operation of the Migration Act, it follows that the Applicant's claim for relief pursuant to s.39B(1) of the Judiciary Act must be dismissed.

26. I therefore dismiss the application and order that the Applicant pay the Respondent's costs. The Respondent indicated that through his Counsel that the costs incurred in this matter had been increased by the fact that there had been three hearing dates because of the Applicant's non-attendance on the first occasion, the subsequent hearing in relation to the Notice of Motion and the hearing on 27 September 2002. I note however that, on the basis of the medical evidence submitted by the Applicant, there was an explanation for his non-attendance on the first occasion which necessitated the short hearing in relation to his Notice of Motion on 21 August 2002. In these circumstances I consider it appropriate that the Applicant should bear the costs of the Respondent in an amount consistent with what would have been the costs had the matter been dealt with on the basis of one hearing date. Accordingly I order that the Applicant pay the Respondent's costs of the application fixed in the amount of $4,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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