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MIGRATION - Application for review of decision of Refugee Review Tribunal - privative clause decision - application dismissed.

NANL v Minister for Immigration [2002] FMCA 314 (1 November 2002)

NANL v Minister for Immigration [2002] FMCA 314 (1 November 2002)
Last Updated: 3 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NANL v MINISTER FOR IMMIGRATION
[2002] FMCA 314



MIGRATION - Application for review of decision of Refugee Review Tribunal - privative clause decision - application dismissed.



Migration Act 1958

Migration Legislation Amendment (Judicial Review) Act 2001

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

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

Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1108

NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293

NAML v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1190

Craig v South Australia (1995) 184 CLR 163

Applicant:
NANL



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ680 of 2002



Delivered on:


1 November 2002



Delivered at:


Sydney



Hearing Date:


1 November 2002



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Nil



Solicitors for the Applicant:


Bharati Solicitors



Counsel for the Respondent:


Nil



Solicitors for the Respondent:


Australian Government Solicitors



ORDERS

(1) That the application is dismissed.

(2) That the applicant pay the respondent's costs, fixed in the amount of $3,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ680 of 2002

NANL


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
The application

1. This is an ex tempore judgment. The applicant, who is a citizen of Bangladesh arrived in Fremantle as a seaman on board the ship

Al Kuwait on 14 October 1999. The applicant apparently was granted shore leave and deserted the ship later on 14 October 1999. He applied for a protection visa on 28 October 1999. That application was refused by a delegate of the respondent on 6 December 1999. On 23 December 1999, the applicant applied for review by the Refugee Review Tribunal (the Tribunal).

2. The Tribunal held a hearing on 8 May 2002 and on 20 May 2002 made a decision affirming the decision of the delegate not to grant a protection visa to the applicant. The applicant was notified of the decision by letter dated 23 May 2002. He filed an application for review under section 39B of the Judiciary Act 1903 in the Federal Court on 5 July 2002. The matter was transferred to this court by Whitlam J on 26 July 2002.

3. The basis for the applicant's claim to have a well founded fear of persecution is set out at some length in the Tribunal reasons for decision. In short he claimed to have been involved in political activities for the Bangladesh Nationalist Party (the BNP) from the time he was a student and to have been targeted and attacked by Awami League supporters. He also claims that he will now face mistreatment by his own party despite the fact that it is now in government because it is in coalition with some extremist factors. He is secular and hence claims to face the prospect of persecution from some elements of the party.

4. He submitted various letters from his family and associates in Bangladesh as to his claimed experiences, again detailed in the Tribunal reasons for decision. The Tribunal made a series of factual findings, many of which were adverse to the applicant, It rejected certain aspects of his claims as inconsistent with other independent evidence available to the Tribunal. It described a number of the documents obtained and submitted by the applicant as contrived and self serving.

5. The Tribunal referred, in particular, to identical typed letters from his wife and mother which are addressed to the applicant in identical terms commencing in the form "I do hereby inform you..." except that one refers to "my husband" and one to "my son". They purport to inform the applicant what has happened to him in the past as set out in his claims.

6. The applicant claimed involvement in the BNP. While the Tribunal found that he had exaggerated or embellished some significant elements of his claims, it did accept that he was an active member of the BNP student wing and indeed probably of the BNP itself in his particular village or district up to June 1996 and that it was plausible that for that reason he may have been harassed and assaulted by Awami League supporters in the immediate aftermath of 1996 elections at which the Awami League defeated the BNP.

7. The Tribunal also accepted that local political opponents may have lodged complaints against the applicant with local police. However the Tribunal started that its ultimate finding was not dependent on its rejection of some aspects of the applicant's evidence and would have been the same even if it had unqualifiedly accepted his account of his past experience. It found in particular that any hostility, harassment or mistreatment that he may face was from particular local political opponents and that the applicant could avoid those difficulties by living elsewhere in Bangladesh.

8. The Tribunal considered the possibility of relocation and concluded that the applicant could relocate, to Dhaka in particular, and it gave reasons for that conclusion. It also noted that the BNP swept to power in October 2001. It did not accept that a claimed BNP activist would now be targeted with impunity by Awami League support. In other words, he would be able to have recourse to and protection from the authorities.

9. In relation to the claim that the applicant had concerns about differences within BNP the Tribunal did not accept that BNP was now having to compromise its basic policies or philosophies in exchange for support from small Islamic parties or that such association would lead to persecution of the applicant by members of his own party. It noted independent country information in support of that conclusion. In any event it concluded that to the extent the applicant had concerns about differences within the BNP these were also local problems for him in his district and did not amount to persecution.

10. Finally it noted, although nothing has been made of it today, that to the extent that the applicant may face legal difficulties because he broke his contract by leaving his ship in Australia this would not amount to persecution for a Convention reason.

11. In the application filed by the applicant a number of grounds were identified. An affidavit filed in support also identified grounds and written submissions filed by the solicitor for the applicant elaborated on these grounds.

12. However in the hearing today the solicitor for the applicant indicated that the only ground which he wished to pursue was the ground that he described as the Tribunal making the decision with a `closed mind'. The ground relied upon is specified in the application as a claim that the Tribunal did not act in good faith in regards to the applicant's claim. In the affidavit it is asserted that the Tribunal gave a decision `which was preset in the back of its mind'. The written submissions suggest that the Tribunal made its decision with a closed mind.

13. I have considered this as an allegation of actual bias and also as an allegation of a lack of good faith in some other way although no further particulars of the precise legal basis for the allegation have been provided. I take it more generally to be a claim that the circumstances are such as to come within one of the so called Hickman conditions (which are returned to), that being an argument that the Tribunal decision did not make a bona fide attempt to exercise its power. I have also given consideration to the other grounds that were raised and will return to them briefly at the conclusion of this judgment.

The applicable law

14. It is common ground that the Tribunal decision is a privative clause decision within the meaning of section 474(2) of the Migration Act 1958 and as such is 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.

15. The proper construction of section 474 has been the subject of detailed consideration by the Full Court of the Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. It was conceded by the solicitor for the applicant that the court is bound by that decision.

16. Each member of the court in that case delivered a separate judgment in relation to each appeal - there were five matters before the court. All agreed that section 474(1) is constitutionally valid and that the amendments have removed what would otherwise be errors in the making of some migration decisions from the scope of judicial review by validating decisions that might otherwise have been invalid.

17. There was broad agreement, however, that section 474(1) is not to be read literally but is to be construed in the same manner as the kind of privative clause considered in many decision of the High Court, in particular R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598. In that case Dixon J identified three conditions which, if met, would ordinarily mean that a decision which is the subject of a privative clause would be valid, namely:

i) That the decision was a bona fide attempt to exercise the power conferred on the decision maker.

ii) That the decision relates to the subject matter of the legislation.

iii) That the decision is reasonably capable of reference to the power conferred.

18. There was also broad agreement in NAAV that the purported exercise of power by a decision maker must not be one that contravenes `inviolable limitations' or restraints or what are sometimes described as a `final limitation upon the powers, duties and functions of the decision maker'. I note that the majority in NAAV took a rather different view to the minority on this issue and I refer to and respectfully adopt the summary of Sackville J in Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1108 in that respect.

The present case

19. I have considered the claim made by the applicant in light of the Tribunal's reasons for decision and treatment of the claims made in the application for review and also all of the other material before the Court documents. The material relied upon by the applicant in support of his submission that there was a lack of good faith consists of a number of factors.

20. First, it was suggested that the delay in the hearing of the matter by the Tribunal was in some way indicative of a lack of good faith. It was pointed out that the delay had meant that by the time of the Tribunal decision (and hence the application to the court) the applicant was caught by the privative clause. It was suggested that this could in some way establish or suggest bad faith.

21. It is not clear to me in this case how the time taken from the time of lodgement of the application with the Refugee Review Tribunal to the decision by the decision maker can in any way constitute bad faith on the part of the decision maker. The application for review was filed on 23 December 1999. The documents show that once the hearing invitation was made in March 2002 the matter proceeded relatively expeditiously to hearing on 8 May 2002. There was certainly no excessive delay from the time of the hearing to the decision by the Refugee Review Tribunal.

22. The suggestion that the Tribunal took too much time for consideration is simply not established on the material before the court in so far as it relates to the actions of the individual decision maker. Indeed it has not been established that the time taken from the lodgement of the application to the final decision by the Tribunal was in any way a reflection of any mala fides by anyone in the Tribunal. The applicant's solicitor conceded that there was no intention to allege that the Tribunal member had in any way intentionally delayed a decision waiting for the possibility of a change in the legislation by the introduction of the privative clause as happened in 2001.

23. The applicant also relied on allegations based on the Tribunal's findings in relation to certain evidence about the claim based on persecution because of his membership of BNP by opponents such as Awami League supporters. It was suggested that the Tribunal reached its conclusions with a closed mind. It was submitted that the rejection of documents by the Tribunal (that is the documents that it described as contrived and self-serving) indicated a lack of good faith. It was also claimed that the Tribunal had undervalued the impact of violence in a country such as Bangladesh, and that it had failed to take into account relevant information in relation to the present state and policies and philosophy of the BNP now in government with minority Islamic parties.

24. I have considered each of these claims individually and also the totality of the claims in relation to the allegation of a lack of good faith actual bias or lack of bona fides. It is important to note first that as Keifel J pointed out in the Full Court of the Federal Court decision in NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293:

"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. An allegation of a lack of bona fides is a very serious allegation and should not be made without a proper foundation in fact, especially by legal practitioners."

25. Reference was made by the legal representative for the respondent to the decision of Tamberlin J in NAML v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1190. His Honour reiterated the seriousness of a claim of a lack of bona fides and indicated that it generally calls for proof of extreme circumstances:

"Where, for example, an exercise of power is based on a fact which the decision maker knows not to be true there is no bona fide exercise of the power. The same possibility applies where a decision maker considers there is not a substantial possibility that the fact is true but nevertheless acts on that basis. The lack of bona fide is usually associated with dishonesty or action which is shown to be contrived or colourable. On the other hand, a decision may not lack bona fides where the decision maker could consider that the decision is correct, even if there is some uncertainty about the position. Merely to establish that there has been an exercise of power which proves to be erroneous in fact or law is not sufficient to establish that a decision lacks bona fides."

26. In this case the it was alleged that the exercise of power was erroneous in fact or law particularly in relation to the present situation of the BNP. However it was not established that this was the case. Further, even if it were to be established that there was an error of fact or law or other error in failing to take into account relevant considerations in the manner submitted by the applicant as described above, I am not satisfied that this would constitute a lack of bona fides on the part of the decision maker. Nor do I regard the conclusion of the Tribunal that a number of documents obtained and submitted by the applicant were on the face of them contrived and self-serving as evidence of the Tribunal having a closed mind or of a lack of bona fides.

27. In relation to the documents in issue and the conclusions about the BNP, I am satisfied that there was a factual basis for the Tribunal's conclusions. The conclusions were open to the Tribunal on the material before it. The reasons for the conclusions are set out clearly. To the extent that the complaint seeks to allege that the Tribunal reached the wrong conclusion, it is in seeking impermissible merits review. It has not been established that the Tribunal in any way knowingly made a decision that was based on facts known not to be true, or that the decision-maker considered that there was not a substantial possibility that facts were true but nonetheless acted on that basis.

28. The applicant's solicitor made certain factual statements from the Bar Table which were by way of suggesting that there should be some merits review of the factual basis for the Tribunal decision. This would not be permissible, whether or not the privative clause was in place. Having considered the claims made by the applicant, both individually and taken together, I am not satisfied that it has been established that there was no bona fide exercise of power by the Tribunal in this case.

29. In relation to the other claims made by the applicant in written submissions (although not pressed today), I note that I have considered those claims and I briefly mention for the sake of completeness and in the interests of the applicant that some of these grounds seek impermissible merits review. In so far as it is a suggested that the Tribunal failed to take into account relevant considerations in relation to the BNP (by giving emphasis to relocation) I consider that the Tribunal properly considered the question of the current situation and relocation and made factual findings that were clearly open to it. If I am wrong in that regard and the Tribunal did not have regard to relevant considerations, then it would in any event be an error of the type identified by the High Court in Craig v South Australia (1995) 184 CLR 163 . In NAAV, the Full Court held that if the decision-maker identified a wrong issue, asks itself the wrong question, ignores relevant material or in some circumstances makes an erroneous finding or reaches a mistake in the conclusion, the decision is now validated by section 474(1).

30. There was no specification of which particular procedures under the Act that were claimed not to have been observed or which sections of the Act were said to have been breached. Error was suggested in general terms but there was no identification of any particular legal error other than as previously mentioned. Concerns about natural justice were also raised in the application. However there is no suggestion that there were any grounds for this other than what appears to be an argument that the Tribunal failed to advise the applicant of what types of questions would be raised at the hearing. This was not pursued in the proceeding today but on the written submission before me I would not be satisfied that this establishes a lack of procedural fairness. Again I note that in any event the decision in NAAV has made it clear that a denial of procedural fairness does not provide a basis for review of the Tribunal decision in light of the privative clause.

31. Accordingly, it has not been established that the decision was not a bona fide attempt to exercise power by the Tribunal. It was not argued that the decision did not relate to the subject matter of the legislation or that it was not reasonably referrable to the power conferred on the Tribunal. There is nothing to suggest that those conditions are not met. Nor was it established that any requirement of the Act necessary to attract the Tribunal's jurisdiction was not met.

32. In these circumstances it follows that the applicant's claim for relief must be dismissed. I therefore dismiss the application.

33. I have the power under Rule 21.02(2)(a) of the Federal Magistrates Court Rules to set the amount of costs. I consider that it is appropriate to do so in this case. Having regard to the nature of this and similar proceedings it is appropriate that costs be fixed in the amount of $3,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

34. Accordingly it is ordered that the application is dismissed and that the applicant pay the respondent's costs, fixed in the amount of $3,500 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding thirty-four (34)paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date:
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