FEDERAL COURT OF AUSTRALIA NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 MIGRATION - privative clause decision - refusal of protection visa by Refugee Review Tribunal - affirmed on application to primary Judge - whether denial of procedural fairness - whether appellant misled into believing Tribunal had read documents to which the original decision maker had referred - interpretation of s 474 Migration Act 1958 (Cth) according to Hickman principles - whether excludes procedural fairness - whether Tribunal's procedure shows lack of good faith STATUTORY INTERPRETATION - interpretation of privative clauses EVIDENCE - reliance on decision based on agreed facts - whether court should infer that appellant misled by communication of Tribunal - whether any evidence to permit a finding of bad faith PROCEDURE - whether leave to appeal - whether leave ought to be granted to add the further ground of failure to act in good faith Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 474(1) Muin v Refugee Review Tribunal [2002] HCA 30 distinguished NAAV v Minister for Immigration and Multicultural Affairs [2002] FCAFC 228 applied R v Hickman; Ex parte Fox v Clinton (1945) 70 CLR 598 cited NADR OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N272 of 2002 SPENDER, MOORE, KIEFEL JJ 18 SEPTEMBER 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N272 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NADR OF 2001 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: SPENDER, MOORE, KIEFEL JJ DATE OF ORDER: 18 SEPTEMBER 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Leave to further amend the notice of appeal be refused. 2. The appeal be dismissed. 3. The appellant pay the respondent's costs, including reserved 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 N272 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NADR OF 2001 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: SPENDER, MOORE, KIEFEL JJ DATE OF ORDER: 18 SEPTEMBER 2002 WHERE MADE: SYDNEY REASONS FOR JUDGMENT SPENDER J: 1 I have had the benefit of reading the reasons for judgment of Kiefel J in draft form. I agree that the appeal should be dismissed, for the reasons which her Honour gives concerning the ground of appeal based on the judgment of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30. I agree with her Honour's conclusion that there has not been demonstrated in this case a denial of procedural fairness, with the consequence that the Muin ground is not made out. 2 That is sufficient to dispose of the appeal, and consequently it is unnecessary to enter into any further issue. 3 I agree with the orders proposed by Kiefel J. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 18 September 2002 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N272 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NADR OF 2001 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: SPENDER, MOORE, KIEFEL JJ DATE OF ORDER: 18 SEPTEMBER 2002 WHERE MADE: SYDNEY REASONS FOR JUDGMENT MOORE J: 4 I have had the advantage of reading the reasons for judgment of Kiefel J in a draft form. I gratefully adopt her Honour's account of the appellant's claim, the decision of the Tribunal and the judgment of the learned primary judge. 5 The point ultimately sought to be raised in the appeal is a narrow one. The appellant contends that the circumstances arising in relation to the consideration of his position by the Tribunal are sufficiently similar to those considered by the High Court in Muin v Refugee Review Tribunal [2002] HCA 30 to lead to a similar conclusion. That is, he was denied procedural fairness. However as Kiefel J has pointed out, the facts agreed in Muin v Refugee Review Tribunal upon which the decision of the High Court turned are absent in the present matter or at least have not been proved. Nor has the appellant sought to prove them. Moreover one of the Part B documents was actually considered by the Tribunal and referred to in its reasons for decision. There is thus the possibility that the Tribunal did, in fact, have recourse to the documents that the Department should have sent but may not have, as the appellant alleges. The appellant has not demonstrated a denial of procedural fairness. 6 This conclusion is sufficient to dispose of the appeal. The appeal should be dismissed and the appellant ordered to pay the Minister's costs. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 18 September 2002 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N272 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NADR OF 2001 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: SPENDER, MOORE, KIEFEL JJ DATE: 18 SEPTEMBER 2002 PLACE: SYDNEY REASONS FOR JUDGMENT KIEFEL J: 7 The appellant is a citizen of Bangladesh. He arrived in Australia on 12 February 1999 and thereafter lodged an application for a protection visa (Class AZ). The basis for his claim to refugee status was the political activities in which he had engaged in Bangladesh prior to leaving there in 1994. On 15 March 1999, the Minister's delegate refused to grant the visa, the Refugee Review Tribunal then affirmed that decision, and his Honour the primary Judge dismissed the application for relief under s 39B of the Judiciary Act 1903 (Cth). 8 The appellant had claimed that, from the mid-1980's to the mid-1990's, he had been active in the Chatra Shibir, the junior wing of the fundamentalist Islamic party, the Jama'at-e-Islami and had held a senior position, branch Vice-President, at his university college until 1991. He claimed that he had organised and attended many demonstrations and party meetings and that because of these activities he had fallen foul of other parties. 9 The appellant claimed before the Tribunal that the BNP (the Bangladesh Nationalist Party), which took power in 1991, had falsely accused him of taking part in a plot to kill some police officers. He was arrested but set free on bail by the Court and subsequently left the country. The AL (the Awami League) came to power in 1996. The appellant was unable to return because he believed he would be harmed by the AL, which attacked rival parties. The Tribunal noted that the BNP was returned to government in 2001. The appellant said that he feared that the charges laid in 1994 would be revived by his political opponents and he had also heard of some new charges being laid against him. He did not know what they were and appeared later to be confused on this topic. 10 The Tribunal accepted the appellant's claims about his political involvement and that a false charge had been brought. It was not satisfied however, that the appellant would face persecution over the charge or over the expression of his political views. 11 In the latter respect, as his Honour the primary Judge, Emmett J, observed, the Tribunal considered that there was no evidence to support a claim that the party to which the appellant belonged, or the Chatra Shibir, had been stifled or repressed. Rather, contrary to the appellant's claims the independent evidence showed that it was regularly engaging in a high level of violence. It did not fear the AL and had resorted to murdering its leaders whilst it was in government. 12 The Tribunal accepted that the bringing of false charges against the appellant would amount to harassment because of his politics. It was not satisfied that he lacked protection and was vulnerable to persecution in such a situation. In particular the courts had freed him and this indicated that he would not lack protection from the courts. It considered it "highly implausible" that the police and the courts would have allowed him to be set free if they had any substantial suspicion that he was guilty of the killings. The authorities had either realised that the charge against him was false, or considered that he had only minimal involvement and were therefore inclined to be lenient. It was not satisfied, on the appellant's own evidence regarding his release on bail, that he was in a dire position and fearing a real chance of persecution. The alleged and unspecified new charges were, the Tribunal held, invented to boost his case. 13 The Tribunal accepted that the laying of false charges by rival political groups is a common tactic in Bangladesh, but that the victims of such action have protection. The Government had shown that it was aware of the problem and was determined to stop it. It had passed legislation which permitted changes to be brought against persons instigating false charges. The courts are independent and may be relied upon for protection with respect to such charges. Whilst there may be a problem with some judges in the lower courts, appeals from them are required to come before the High Court within three weeks. At this level the judiciary displayed a significant degree of independence and had ruled against the government even in politically controversial cases. 14 The Tribunal accepted that the appellant might face police or court action concerning the charges but did not consider that he would face persecution over them. Given the appellant's non-office-bearer status in his last three years in Bangladesh, his absence from the country and the political climate between 1994-2001, including the various political changes which have occurred, the Tribunal was not satisfied that he would have a profile distinct enough to draw adverse attention from activists in other parties. The Tribunal found that the appellant can practice politics freely in Bangladesh and stay out of harm, referring in this regard to a Country Information Report concerning violence experienced by a minority of political activists. If he was innocently exposed to harm over his political views he could avail himself of the protection of the authorities who, the Tribunal found, are willing to protect a person in his position. The independent evidence showed that, in general, the forces of law and order enforced the anti-crime laws in a non-discriminatory way. This was so regardless as to whether the BNP party was in power. Furthermore, it noted that Jama'at is part of the present governing coalition and it might have won up to seventeen seats in the new parliament. In these circumstances a supporter would not be at risk of persecution over his political views. 15 In his amended application to the Court the appellant listed two grounds, but the only one relied upon at the hearing before his Honour was that relating to actual bias: "The failure by the Tribunal to fully consider the independent evidence in relation to the protection available to the applicant from the authorities should he return to Bangladesh indicates the Tribunal adopted a closed mind to the independent evidence such that the decision is affected by actual bias." 16 The appellant did not seem to take issue with the interpretation of s 474(1) of the Migration Act 1958 (Cth) according to the principles established in R v Hickman; Ex parte Fox v Clinton (1945) 70 CLR 598, 615. It was there held, as his Honour the primary Judge noted (at [3]), that a provision such as s 474(1) means that no decision to which it relates is to be invalidated on the ground that it had 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 statute, subject to certain conditions. These conditions are that the decision is a bona fide attempt to exercise power, that it relates to the subject matter of the grant of power and that it is reasonably capable of reference to the power given to the decision-maker. Indeed, the appellant's contention, relating to bias, could be seen as addressing the condition that the decision be made bona fide. His Honour approached the matter in that way. 17 There was nothing in the Tribunal's reasons and no evidence as to its conduct in the course of the hearing to suggest actual bias, his Honour held. His Honour noted that the appellant limited his contentions to the proposition that an examination of all of the independent evidence indicates that a right thinking decision-maker would have come to a different conclusion and therefore one should infer that the Tribunal was affected by actual bias. As his Honour observed, it is not sufficient to establish actual bias to invite a court to find that it may have come to a different decision from the decision-maker. Even factual error or faulty reasoning will not be sufficient to make out the ground. The difficulty with the appellant's case was that there was independent evidence to justify the conclusion the Tribunal reached. The appellant contended that the evidence showed that all was not well in Bangladesh and he was at risk. His Honour noted that the evidence did indicate that the situation was not ideal, but it also supported a conclusion that the appellant could find protection from the authorities and the courts. His Honour himself considered the documents to which the Tribunal had referred. There could not be any suggestion of bias on its part in reaching conclusions about the protection available to the appellant, his Honour concluded. The documents supported that finding and there was no reliable material to the contrary. The other conditions referred to in Hickman were satisfied. 18 The notice of appeal did not identify any error on the part of his Honour. The appellant continued to maintain that the Tribunal had been biased. Further consideration of the contents of the notice of appeal is not necessary. When the appeal came on for hearing the appellant was granted leave to amend his notice of appeal to raise the ground that he was denied procedural fairness because he was misled into believing that the Tribunal had been sent and had read the Part B documents, to which the original decision-maker had referred. The argument is based upon Muin v Refugee Review Tribunal [2002] HCA 30. The hearing of the appeal was then adjourned to allow the appellant's legal advisers to consider the effect of the decisions of a Full Court of this Court, as to the operation of s 474 of the Act, in five appeals, which had been handed down on the evening before the appeal. NAAV v Minister for Immigration and Multicultural Affairs [2002] FCAFC 228 is one of them. 19 At the adjourned hearing the appellant informed the Court that he did not wish to pursue any of the original grounds of appeal. He sought further leave to add a ground, in addition to that based upon want of procedural fairness, as to which NAAV might be conclusive. The further ground is that the Tribunal failed to act in good faith. This is established, it is submitted, by reference to the contents of the letter dated 21 December 1999 forwarded to the appellant prior to the hearing and advising him that: "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". The letter is also relied upon as establishing a denial of procedural fairness. A letter in similar terms had been sent to the plaintiff in Muin. The appellant's starting point is that the letter is incorrect because the Tribunal had not read the "Part B" documents upon which the original decision-maker had relied, in particular six documents providing country information relating to Bangladesh. This Court reserved decision upon the question whether leave to add the further ground should be granted. 20 The Protection Visa Decision Record lists the evidence which had been before the first decision-maker as "Part B". Copies of those documents were provided to the Court following the hearing. In the Tribunal's Decision and Reasons for Decision document the Tribunal lists the independent evidence and country information which it described as "relevant in providing a context to the applicant's claims …". One of the documents listed in Part B, relating to Bangladesh and dated February 1998, is amongst them. The Tribunal otherwise referred to documents different from the Part B documents. It may be observed, without listing the documents in each record, that those in Part B were dated between July 1994 and February 1998 and those listed in the Tribunal's reasons covered the same period but also extended beyond it. 21 In Muin it was contended by the plaintiff that there had been a want of procedural fairness in two respects. He had been misled into believing that the Tribunal had read some information which had been in the Part B documents; and the Tribunal had not drawn to his attention some material adverse to his claims so as to enable him to comment upon them. It is the first of those contentions which is here relevant. The plaintiff in Muin was said to have relied upon the assurance in the Tribunal's letter to him, sent before the hearing, to the effect that it had read all of the material relating to his application. This was taken by the members of the Court to include the Part B material, but that is no doubt because of the facts agreed as between the parties which included the following: "The Plaintiff believed that the Part B documents were sent to and looked at by the First Defendant in the making of the review on the papers and/or the final decision on the Plaintiff's protection visa" (see at [16]). The statement of agreed facts then goes on to list, in some detail, what would have been done if Mr Muin had been aware that the Tribunal had not. 22 The agreed facts in Muin went a long way towards a conclusion, on the part of the majority of members of the Court, that Mr Muin had been misled into thinking he did not need to put information before the Tribunal (Gaudron J [62]); Hayne J [256], Gummow and Kirby J agreeing; Callinan J [309]. It would not have been necessary for him to provide that information if the Tribunal had itself had reference to it. A factual issue, not covered by the agreed facts, arose in this connexion and members of the Court diverged in the findings they were prepared to make. Gleeson CJ ([23]) was not prepared to draw an inference that the Tribunal member had not read the documents, which would be tantamount to a conclusion that the Tribunal had not told the truth in the letter. Although the Part B documents were not physically provided to the Tribunal, it had access electronically and otherwise to the information which was listed in the original decision. McHugh J ([114]-[117]) was also not prepared to make a finding to that effect, the onus being on the Plaintiff to make out such a contention. There were reasonable explanations for the absence of a reference to the Part B material. The Tribunal member may have been aware of the material and considered them out of date or irrelevant. Gaudron J ([60]) inferred from the reference to only three of the documents in the Tribunal's reasons, that it did not have regard to them. Hayne J [257] (Gummow and Kirby JJ agreeing) appears to have considered the fact that the Tribunal may not have been aware of what was in the Part B documents to be sufficient. Callinan J [302] inferred that the documents were not looked at because they were not sent to the Tribunal. 23 It is necessary to add, in connexion with the final declarations made in Muin, that a want of procedural fairness was found by a majority of the Court (but not by Hayne J) to have been established because the adverse material was not drawn to the plaintiff's attention. 24 Muin does not establish, as the submissions for the appellant implied, that the effect of sending a letter in those terms will amount to a denial of procedural fairness in circumstances where the Tribunal has not referred to the Part B documents in its later decision. Rather it holds there is a want of procedural fairness where an applicant before a Tribunal is misled into thinking that the Tribunal has considered particular relevant information and, as a result, did not ensure that such information was placed before it. Whether it is necessary to infer that the Tribunal was not likely to have considered the material, or whether it is sufficient that it may not have done so, is perhaps moot. It is also of importance that a conclusion that the plaintiff was misled was rendered possible largely because of agreed facts. 25 At a factual level the present case differs substantially from Muin. It is not agreed that the documents were not physically provided to the Tribunal. It is not agreed that the appellant was misled by the letter, or that he would have taken any particular steps had he been told, if it was the case, that the Tribunal had not been provided with them. It was submitted that the Part B documents can be seen to relate to the appellant's case. So much can be expected. Beyond that the appellant sought to utilise the findings of fact in Muin to make out his case. Needless to say, that is not a course which is open. Each case must be considered on its own facts. 26 It cannot be inferred as a fact in every case involving a letter in these terms, that an applicant was affected in some way by it when they came to provide information to the Tribunal and participate in the hearing. Much of course will depend upon what information was contained in the Part B documents and the issues in the applicant's case. It could not be assumed that the appellant here would have taken any particular course had he known that the Tribunal had not been provided with the documents, or did not intend to refer to them. It was not explained to the Court how that might be concluded by reference to the contents of the Part B documents. It would also be necessary to consider whether the particular matters, upon which the appellant would rely were, in any event, amongst the material identified by the Tribunal. Those matters were not identified for the Court. 27 In the present case the first decision was made in March 1999. The letter informing the appellant that the material had been considered was dated 21 December 1999. It asked him to furnish any documents he wished to rely upon and he responded to that invitation. On 23 April 2001 a further letter was sent by the Tribunal, apologising for the delay and asking for any new information to be submitted. It also attached independent evidence that had arrived subsequent to the hearing, to which it was said consideration would be given in preparing the decision. The Tribunal advised that it may have regard to "relevant newsworthy political incidents that have occurred recently, such as actions taken by and against Chatra Shibir; an example is attached". The Tribunal later agreed to extend the time in which the appellant put forward any material in response, the appellant having sought to submit documents about the current situation. He did provide a detailed submission and it seems likely that he provided the bundle of newspaper articles which now form part of the record. 28 The facts just recited are relevant to the question whether the Tribunal should be taken not to have referred to the Part B documents, and to an extent, the question of good faith. In Muin there was evidence concerning the availability to the Tribunal of electronic access to the information (see per Gleeson CJ) but that course was not followed here. It would not seem to me possible, on the facts of this case, to conclude that the Tribunal did not refer to them because it did not list them in its reasons. It may equally have preferred to rely upon other information as a more relevant or up-to-date account. In any event the appellant 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 brought forward had he been advised that it had not. 29 In my view the decision in Muin does not avail the appellant. Further, Muin was not a case decided in connexion with a privative clause. It is not disputed that the decision here is a privative clause decision to which s 474(1) of the Migration Act 1958 (Cth) applies. NAAV holds that, provided the conditions referred to in Hickman are observed, s 474(1) operates, in effect, to validate jurisdictional errors, including a breach of the rules of natural justice (see Von Doussa J at [628] to [638], Black CJ concurring [4] and Beaumont J [91] and following and [114] to [116]. As Von Doussa J explained, the amendment effected by s 474 expanded the power and authority of decision-makers. The terms were specific. The effect is to exclude the rules of procedural fairness [648]. 30 It remains to consider the question whether leave should be granted to raise the additional ground of want of good faith on the part of the Tribunal member. That there be a bona fide attempt to exercise the power given by the statute is one of the conditions imposed by Hickman. No error was pointed to in Emmett J's conclusion that the other conditions were satisfied in this case. 31 The appellant would argue that the letter is misleading, and that the Tribunal member must have known of its error and did nothing to correct it. This cannot be accepted. To hold that a person might be misled by the terms of the letter says little, if anything, about how the Tribunal member in question approached their task. Beaumont J in NAAV ([107]) refers with approval to the decision of Allsop J in NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 [24] and the cases there referred to, where his Honour held that 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. I respectfully agree. There is no evidence which would permit a finding of bad faith on the part of the Tribunal. The steps taken by the Tribunal towards a decision in this case point decidedly the other way. It should not be, but it seems to be, necessary to restate that an allegation of bad faith is a very serious allegation and should not be made without a proper foundation in fact, especially by legal practitioners. 32 The proposed ground has no merit. Leave to further amend should be refused. The appeal should be dismissed with costs, including reserved costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel. Associate: Dated: 18 September 2002 Solicitor for the Appellant: Mr M Jones – Solicitor Counsel for the Respondent: Mr R Bromwich Solicitor for the Respondent: Clayton Utz Lawyers Date of Hearing: 16 and 21 August 2002 Date of Judgment: 18 September 2002