NADP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 381

FEDERAL COURT OF AUSTRALIA

NADP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 381 NADP v Minister for Immigration and Multicultural and Indigenous Affairs N487 of 2002

BRANSON, FINN & DOWNES JJ SYDNEY 26 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N487 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

BETWEEN: NADP

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BRANSON, FINN & DOWNES JJ

DATE OF ORDER: 26 NOVEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's cost of the appeal. 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 N487 of 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

BETWEEN: NADP

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: BRANSON, FINN & DOWNES JJ

DATE: 26 NOVEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant, a citizen of Bangladesh, whose application for a protection visa was refused by the Refugee Review Tribunal, appeals against a decision of a judge of this Court dismissing his application to this Court under s 39B(1) the Judiciary Act 1903 (Cth). 2 The decision of the Tribunal was a privative clause decision for the purposes of s 474(1) of the Migration Act 1958 (Cth). The judgment of the primary judge was given prior to the decision of the Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228. Given the divergent views that were at that time expressed by single judges as to the effect of s 474(1), His Honour first considered the substance of the s 39B application. His conclusion in that matter made it unnecessary to decide whether s 474(1) would, in the circumstances, have precluded any grant of relief under s 39B of the Judiciary Act 1903 for an alleged denial of procedural fairness. Procedural Fairness 3 This issue arose in the following way. The appellant, having previously been an active member of the Awami League in Bangladesh, left it to become a branch office bearer of the Freedom Party. The Awami League won the national election in 1996 and Freedom Party members had then, according to the appellant, become prime targets of violence. In responding to country information sent by the Tribunal to him in April 2001, he made written submissions which included the following: 'I can promise to the Onshore Refugee authority to return home the very next day if the Awami league fails in the general election and anyone form the new government. Our party leaders and associates anticipates that there is a more than likely chance that before the first half of 2002 the unruly situation will compelled the patriotic defense force (Army) to take over the power from the new administration, that may favor us to repatriate and rehabilitate. I urge RRT to allow me at least to wait till that day and to consider our party forecast seriously and can consult with anyone specialized in Bangladesh politics. I only urge the RRT for my right to live as a normal human being. The right to walk the streets with no fear of being harassed and threatened. The right to sleep with peace of mind without being awakened suddenly in fear of attack from the Awami hooligans. I only desire what millions of others in this world does; the peace of mind that comes from being able to control my own life in safety. Surely this is not a large thing to ask for and I hope the RRT will grant me this freedom from fear and hopelessness even if it is just for a year (12 months), and I am pretty sure within this time frame there will be a radical change in Bangladesh politics and the situation will be in our favour to return home. I can begin my life again with the right of freedom of speech after a long time when I will go back my own soil; our Freedom party would be able to resume their politics in the political arena without any fear of harm and danger.' 4 In early October 2001 there was a further national election in which the Awami League lost power and the Bangladesh National Party ('the BNP') gained power. The Tribunal member took account of this result in the following way: 'I note the applicant's claim that he would be prepared to return freely to Bangladesh the day the AL was thrown out of power. I find that this has, indeed, happened. The BNP (which operated freely and robustly at all levels of politics while in opposition) has won the October 2001 general election with a huge majority … I find, on the applicant's own evidence, that he would be able to return to Bangladesh now and be free of harm of his political opinion as a supporter either of the FP or the BNP. Notwithstanding the applicant's own sanguinity on his political future under an AL-free government, I have given the matter independent consideration and am satisfied that he would be safe as I consider that the new BNP government will continue to extend a hand of friendship and support to the FP as it has done in the past …' 5 The Tribunal did not give the appellant the opportunity to comment on the country information relating to the election on which it relied. This was the basis of his complaint before the primary judge. The Migration Act and Procedural Fairness 6 Section 424A of the Act both prescribes information that the Tribunal is to provide to a visa applicant and excludes certain information from that obligation. Insofar as presently relevant, one of the exclusions is information "that is not specifically about the applicant": s 424A(3)(a). It has not been, and could not be suggested, that the failure to provide the country information to the appellant involved a contravention of s 424A. It was not information specifically about the appellant. 7 In consequence, if there had been a denial of procedural fairness in the present matter it would not have been one involving a failure to comply with a mandatory requirement of the Act. It would have involved no more than a failure to comply with the ordinary common law rules of procedural fairness. 8 In NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 von Doussa J (with whom Black CJ and Beaumont J agreed) held that s 474(1) of the Act excludes the rules of procedural fairness: see [636]-[637]; [648]; see also [4] per Black CJ; [113] per Beaumont J. That conclusion is not clearly wrong. It should be followed as a matter of comity. If a different view is to be taken of the scope, operation or validity of s 474(1) of the Act it is for the High Court to take it. Unless and until that occurs, the decision in NAAV should be applied in this Court. 9 This appeal, in consequence, must fail. Whatever might have been the situation prior to the amendment of the Act in 2001 that inserted the s 474 privative clause: cf Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; a denial of procedural fairness as such is caught by that clause. In saying this we do not imply that the circumstances of that denial may in its setting be such as to amount to a breach of one of the Hickman provisos and so be capable for that reason of founding the grant of relief under s 39B of the Judiciary Act 1903. The present is not such a case. Was there a Denial of Procedural Fairness? 10 As noted above, the primary judge did consider this question and decided it adversely to the appellant. In so doing he distinguished the decision of the High Court in Miah's case which has superficial factual similarities with the present appeal. 11 As in the present case, in Miah the delegate refused an application by a citizen of Bangladesh for a protection visa on the basis that the situation in that country had changed following the elections in 1996 and that the Awami League government was capable of offering persons like the applicant effective protection against religious fundamentalists. Again as in the present case, the delegate did not invite the applicant to make further submissions with respect to the elections or the subsequent change in government. 12 Despite the apparent similarities, the primary judge considered there to be two very clear differences between the present case and Ex parte Miah. 'The first is that the applicant in the present case could not have been taken by surprise by the fact that the RRT considered the change in government in Bangladesh to be significant. On the contrary, the applicant himself identified the forthcoming elections in Bangladesh as the crucial event and invited the RRT to so regard it if (as in fact occurred) the Awami League lost power. He did so be promising to return home the day after elections if the Awami League failed to retain office. If he changed his mind after the elections, as he apparently did, there was no impediment to his writing to the RRT and informing it of his desire to make further submissions before it made a final decision. The second difference is that it was not the applicant's case that he would continue to fear persecution in Bangladesh if the Awami League lost power at the forthcoming election. His considered position was that he could begin his life again if the Awami League lost power and that the Freedom Party 'would be able to resume their politics … without any fear of harm and danger'. All he asked for was a year from the date of his submission (a period that has now elapsed).' 13 Having noted the observations of McHugh J in Miah that the critical question is what is the natural justice required in the particular circumstances of the case, His Honour concluded that the Tribunal did not deny the appellant procedural fairness (assuming it was obliged to accord it to him). Not only was he well aware that the Tribunal would regard the results of the election as significant in his case, he had invited the Tribunal to regard those results as determinative of his case. There was no cause for surprise in the significance the Tribunal gave to the results of the election. 14 Assuming as His Honour did that the Tribunal was obliged to accord procedural fairness, we are not satisfied that his reasoning betrays any appellable error. The appellant had described a state of affairs to the Tribunal in which he would not subjectively have a fear of persecution. That state of affairs came to pass and was relied upon by the Tribunal. Procedural fairness did not require the Tribunal to anticipate a change of mind on his part. It was entitled to act on the appellant's representations. The onus was on him to raise any change of mind he had after the election. The Tribunal was not obliged to seek further assurance from him that he adhered to his previously expressed view. 15 We have adverted to this matter for the following reason, notwithstanding that it cannot arise because of the effect of s 474(1) of the Act. We have been asked not to hand down our decision until after the High Court hands down its decision in the challenge it has heard to the validity and scope of s 474(1). In light of the view we have taken of the correctness of the primary judge's conclusion, no useful purpose would be served in considering such a deferral of our decision. 16 The appeal should be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.