FEDERAL COURT OF AUSTRALIA NAOJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 263 NAOJ v Minister for Immigration & Multicultural & Indigenous Affairs N 1035 of 2003 HEEREY, STONE AND BENNETT JJ SYDNEY 13 NOVEMBER 2003 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1035 OF 2003 On appeal from a judge of the Federal Court of Australia BETWEEN: NAOJ APPELLANT AND: MINISTER FOR IMMGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: HEEREY, STONE AND BENNETT JJ DATE OF ORDER: 13 NOVEMBER 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs 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 N 1035 OF 2003 On appeal from a judge of the Federal Court of Australia BETWEEN: NAOJ APPELLANT AND: Minister for Immigration AND Multicultural AND Indigenous Affairs RESPONDENT JUDGE: HEEREY, STONE AND BENNETT JJ DATE: 13 NOVEMBER 2003 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a decision of Justice Sackville, dismissing an application for review under s 39B of the Judiciary Act 1903 (Cth) ("Judiciary Act") of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the respondent Minister to refuse the appellant a protection visa. The appellant is a citizen of Bangladesh and claims to fear persecution for political reasons. The relevant facts and grounds on which review was sought before the primary judge are set out in his Honour's reasons: NAOJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 815. (Those reasons are available on the Federal Court's website: www.fedcourt.gov.au.) 2 The appellant's Notice of Appeal contains six grounds of appeal. They are as follows: "1. The primary judge erred in not finding that there was a lack of procedural fairness in the proceedings in the Refugee Review Tribunal ("the Tribunal"), in that the Tribunal did not give the Appellant a reasonable opportunity to answer the independent evidence in the possession of the Tribunal which suggested to the Tribunal that it is possible to be involved in political activities in Bangladesh in the circumstances of the appellant, without being a victim of violence and/or which otherwise suggested to the Tribunal that the appellant is not a refugee within the meaning of the Refugee Convention. 2. The primary judge erred in not finding that the Tribunal fell into jurisdictional error by relying on independent country evidence from 1996 and 1998, in preference to the United Kingdom Home Office October 2002 Bangladesh assessment. In doing so the Tribunal may be said to have ignored relevant material, relied in part on irrelevant material and/or, made findings which were erroneous or mistaken. 3. The primary judge erred in not finding that the Tribunal, and the Delegate of the respondent had not dealt in any substantive way with, a key component of the appellant's claim, that being the outstanding charge he is facing in Bangladesh. (p 69-70RD) By not dealing with this matter, there was a constructive failure to exercise jurisdiction on the part of the Tribunal, and/or a lack of procedural fairness. 4. The primary judge erred in not finding that the Tribunal made findings which were not available to it on the evidence in relation to: a. The influence of the local opponent, even though the opponent's political party was not in the majority in the Parliament of Bangladesh. b. The Tribunal's rejection of the appellant's explanation for his return visits to Bangladesh. c. The appellant's family not moving from the family home after the attacks on the appellant. d. The relocation issue. 5. The primary judge erred in not finding that the Tribunal fell into legal error in a manner which affected the exercise of its power by asserting in effect that given that the appellant return to his country after leaving it, he could not come within the Convention definition of a Refugee. 6. The primary judge erred in not finding that the Tribunal fell into error by asserting in effect in a manner which affected the exercise of its power that if the appellant returned to Bangladesh he need not be involved in politics." 3 The application for review before Sackville J, which was filed in the Federal Court on 22 April 2003, contained grounds which are set out in [12] of his Honour's reasons: "[12] The applicant appeared unrepresented in this Court. The grounds of his application are as follows: (i) the RRT committed jurisdictional error in finding that the applicant did not have a genuine fear of persecution for a Convention reason; (ii) the RRT's finding were not formed by a correct application of the applicable law; (iii) the RRT had no jurisdiction to make its decision because its "reasonable satisfaction" was not arrived at in accordance with the requirements of the Migration Act 1958 (Cth); (iv) the RRT exceeded its jurisdiction in making the decision to affirm the delegate's decision; (v) the RRT's decision was affected by bias; (vi) the RRT failed to perform the duty imposed on it by the Migration Act, s 425(1) to decide the applicant's case on the material put to it; (vii) the RRT's decision was not a bona fide attempt to act within its authority." 4 At the hearing before the primary judge, the appellant did not refer to the grounds of his application. His Honour noted in [13]-[14] that the appellant raised points essentially limited to a complaint about the outcome of the application to the Tribunal and also claimed that the Tribunal asked him irrelevant questions. The applicant did not identify what the questions were and the primary judge concluded that there was no material to support the applicant's claim and, in any event, it is not of itself a basis for imputing jurisdictional error to the Tribunal (see [14]). 5 The appellant was not represented before the primary judge but he is represented by counsel in this appeal. We therefore consider that the grounds in the original application have been abandoned and the appeal should proceed on the grounds in the notice of appeal. 6 The first issue raised by the notice of appeal is whether the Tribunal failed to provide the appellant with a reasonable opportunity to answer the independent evidence considered by the Tribunal. As counsel for the respondent pointed out in submissions, the appellant was invited before the hearing to send evidence and submissions to the Tribunal. The reasons of the Tribunal disclose that he provided the Tribunal with some articles concerning political violence and corruption in Bangladesh. He attended a hearing at which he gave evidence about his situation. In these circumstances it is clear that there is no jurisdictional error related to denial of procedural fairness in the Tribunal's decision. This ground of appeal must fail. 7 The second issue raised by the notice of appeal alleges jurisdictional error on the part of the Tribunal in relying on independent country evidence from 1996 and 1998 in preference to a 2002 report prepared by the United Kingdom Home Office. The reasons of the Tribunal, when dealing with independent evidence, refer to a number of reports from 1998, 1996, 1999, 2002 and 2001. There is nothing in the reasons to support the view that it preferred certain country evidence to other evidence. The Tribunal specifically noted in its findings that the Awami League is no longer in government in Bangladesh. The Tribunal took into account relevant and current information available to it. The weight of such evidence is a matter for the Tribunal (see NAAX v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 119 FCR 312 at [52]), and the Court only has jurisdiction to review if the decision is affected by jurisdictional error. The findings of the Tribunal in relation to the current situation in Bangladesh were reasonably open on the evidence before the Tribunal. It follows that this ground of appeal must fail. 8 The third issue raised by the notice of appeal is whether the Tribunal committed jurisdictional error by failing to deal in any substantive way with the outstanding charge the appellant was facing in Bangladesh. The Tribunal referred to the charge in its reasons, but concluded that the appellant had no subjective fear of persecution, as he returned to Bangladesh in March 2001, at a time when the charge was still outstanding. It is clear from the reasons that the Tribunal consider the appellant's evidence about the charge. In those circumstances, it is clear that this Court has no jurisdiction to intervene. The Tribunal has the function of determining the merits of an application and the appellant can only apply to the Court for review on the limited grounds contained in s 476 of the Migration Act 1958 (Cth) ("Migration Act"). Those grounds do not encompass this factual matter. This ground of appeal must also fail. 9 The fourth issue raised in the notice of appeal canvasses a number of factual findings made by the Tribunal. We consider that these findings were open to the Tribunal on the evidence before it. For the same reasons given in [8] above, this ground of appeal fails. 10 The fifth ground raised by the appellant is whether the Tribunal erred in finding, in effect, that since the appellant returned to Bangladesh after leaving the country he could not be considered a refugee. This was not a finding made by the Tribunal. It was a factor taken into consideration by the Tribunal in determining whether the appellant feared persecution for a Convention reason, but the Tribunal did not find that it precluded the appellant from succeeding in his application for a protection visa. This is evidence that the Tribunal properly was able to take into consideration. It follows that this ground of appeal also fails. 11 The final ground raised in the notice of appeal is whether the Tribunal erred in asserting that if the appellant returned to Bangladesh he need not be involved in politics. The Tribunal found that "the chance the [appellant] would again be involved in Jatiya Party activities if he returned to Bangladesh is remote". Again, this is a factual finding which could reasonably be reached on the material before the Tribunal. Notwithstanding that the appellant is using legal terminology apt to describe judicial review, it is clear that the appellant is really seeking merits review. Review in this Court is limited to the grounds in s 476 of the Migration Act. It follows that this final ground of appeal must also fail. 12 We have read the reasons of the Tribunal and of the primary judge. We see no reason to doubt the primary judge's conclusion that there was no legal error in the decision of the Tribunal. The appeal must be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Stone and Bennett. Associate: Dated: 20 November 2003 Counsel for the Appellant: Mr I Archibald Counsel for the Respondent: Ms M Allars Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 13 November 2003 Date of Judgment: 13 November 2003