NADN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 291

FEDERAL COURT OF AUSTRALIA

NADN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 291 NADN AND NASV V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No N793 of 2003 SELWAY, BENNETT AND LANDER JJ SYDNEY 16 DECEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 793 OF 2003

BETWEEN: NADN

FIRST APPELLANT

NASV

SECOND APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: SELWAY, BENNETT AND LANDER JJ

DATE OF ORDER: 16 DECEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant is to 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 793 OF 2003

BETWEEN: NADN

FIRST APPELLANT

NASV

SECOND APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: SELWAY, BENNETT AND LANDER JJ

DATE: 16 DECEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellants who are husband and wife are Bangladeshis. They claim to be stateless Biharis. They arrived in Australia on 18 September 2000. On 16 October 2000 they applied for protection visas under the Migration Act 1958 (Cth) (the Act). On 2 November 2000 a delegate of the Minister refused their applications. On 1 December 2000 the appellants applied to the Refugee Review Tribunal (RRT) for a review of that decision. 2 On 6 September 2002 the RRT affirmed the decision of the delegate of the respondent not to grant a protection visa to the appellants. 3 The female appellant applied to this Court for judicial review of the RRT decision. The male appellant (NASV) was not named as an applicant in the proceedings. On 29 April 2003 the husband applied to be joined as a party which was not opposed by the respondent. The trial Judge made an order on 13 June 2003 nunc pro tunc allowing that application. 4 This appeal was heard in two stages. On the day on which the appeal was called on the female appellant did not appear. The Court was told by the male appellant she was caring for a sick child. The Court proceeded to hear the male appellant's submissions and adjourned to allow the female appellant to separately address the Court. That seemed to be the best course to adopt because the male appellant told the Court that he did not have authority to speak for his wife. 5 On the second occasion there was no appearance by either appellant. The female appellant was called but did not appear. She had been given notice of the time and date of hearing. No communication was received by the Court prior to the hearing giving any reason for her non-attendance. In the absence of any appearance by the female appellant, the Court reserved its decision. 6 Shortly after reserving its decision a communication was received from the female appellant that she had arrived late at the Court. 7 The Court decided to reconvene to give the female appellant an opportunity to put submissions to the Court. 8 The matter was called again in the afternoon and the Court heard submissions from the female appellant and counsel for the respondent. 9 The appellants were married to each other on 19 May 2000. The wife is in her mid twenties. She claimed that she was Bihari. Biharis are people who originated from the north Indian State of Bihar and is a term given to a group of non-Bengali residents and citizens of the former East Pakistan. She said that she had spent the whole of her life, prior to her departure from Bangladesh, in a Geneva refugee camp in Dhaka. She said that she and her husband travelled to Australia using passports issued in Dhaka on 29 August 2000. The passports were obtained through the assistance of an agent. In his reasons for judgment, the Judge from whom the appeal comes extracted a summary by the RRT of the wife's claims. The RRT had summarised her claims as follows: 'l While living in Geneva camp she was assaulted and intimidated: she reported the assault to the police, but they were reluctant to follow up; l She and her husband were continuously harassed and intimidated with threats of abduction and rape. They were constantly in fear of their lives; l During a shopping trip in her locality she was set upon in a public street, taken to an unknown location, brutally assaulted and raped by several locals and left unconscious in the street. Members of her community found her and took her to hospital; l She reported the incident to the police but they were reluctant to press charges against locals; l Camp authorities were not in a position to protect her; l After she was assaulted the applicant husband was assaulted and severely attacked in the street; l They were able to escape from Bangladesh with the help of an agent who arranged their passports and helped them to leave Bangladesh safely; l Their lives will be in danger if they return to Bangladesh.' 10 The appellants' claim before the RRT failed because the RRT disbelieved them both. 11 First the RRT concluded that because they both had genuine Bangladeshi passports they were likely to be Bangladeshi citizens and therefore unlikely to be non-citizen Biharis. Biharis are generally unable to obtain passports. 12 Secondly, the RRT found that they had not lived all their lives in a refugee camp. Biharis are Urdu speakers. Whilst the wife claimed that she spoke, read and wrote Urdu she was unable to communicate in Urdu with the RRT, or to use the Urdu language or to write her name and age using the Urdu script.. The husband did not claim to be able to speak Urdu. Because he was unable to speak Urdu the RRT rejected his claim that he was a Bihari. 13 Thirdly the RRT concluded that the appellants were Bangladeshis and had no reason to have lived in a refugee camp. 14 Fourthly the RRT found that many of the documents produced by the appellants in support of their claim were fraudulent. 15 Fifthly, the RRT found that there was a significant inconsistency between the wife's and husband's evidence in relation to her claim that she had been abducted and assaulted in Bangladesh in July 2000. The RRT concluded that because of the significance of the incident it would have been likely that both the wife and the husband would give consistent evidence. 16 For those reasons the RRT rejected the appellants' claim that they were non-citizen Biharis who had a well founded fear of persecution. In any event the RRT concluded, on independent evidence, that as a general matter the Biharis did not face persecution in Bangladesh. 17 On the application for judicial review before the Judge the appellants claimed that the decision of the RRT ought to be set aside for two reasons. 18 First because the RRT had been guilty of actual bias. No particulars of the bias were given. The Judge rejected the submission. He found that the complaint was no more than 'a strong complaint about the fact finding'. 19 Next it was submitted that because of the decision of Muin v Refugee Review Tribunal (2002) 190 ALR 601, the RRT decision had to be set aside. No factual basis was provided for that submission which was rejected by the Judge. 20 During submissions before the Judge the appellants also complained of the RRT's failure to comply with s 424A of the Act. That section provides: '(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies—by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information.' 21 The appellants complained that the RRT failed properly to put them on notice that the discrepancies in their evidence was a matter of importance to the RRT in arriving at its decision. In particular it was submitted that the RRT had not complied with s 424A(2) of the Act. No document was given to the appellants. It was submitted that the failure to comply with s 424A(2) and s 441A of the Act meant that the RRT had not accorded the appellants procedural fairness. 22 The Judge thought it necessary to listen to a tape of the hearing before the RRT. Neither party objected to the Judge proceeding on that basis. The Judge listened to the relevant parts of the tape in which the RRT put the appellants on notice of the discrepancy between the wife's evidence and the husband's evidence. He said: 'Having listened to the tape I conclude that the matter was raised squarely with the applicants. The matters to which subs 424A(1) directs itself were attended to by the Tribunal. The Tribunal afforded fairness to the applicants in the way it dealt with the issue. However, the strictures of subs 424A(2) were not complied with. For the reasons expressed by the Full Court in NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 102 this procedural omission is not fatal and does not found a ground of review.' 23 After the Judge reserved his decision the appellants apparently filed further submissions purporting to deal with the matter afresh. The submissions stated that the appellants had a belief about certain matters relating to a lack of procedural fairness on the part of the RRT. Again, as in the original submissions, no evidence was provided to support the appellants' apparent beliefs. 24 On 10 June 2003, in the absence of the appellants, the Judge delivered his reasons and dismissed the appellants' application. Later that day he made an order that neither party enter the orders made earlier that day without leave and listed the matter for further hearing on 13 June. 25 On 13 June 2003 the appellants appeared and the husband argued that there should be no order for costs because he and his wife had no funds to pay them. On that day the Judge confirmed his order that the application be dismissed. He ordered the appellants to pay the respondent's costs. 26 The appellants have appealed from that decision. The grounds identified in the notice of appeal are: '2. The Single judge of the Federal Court in his Honour's Judgment delivered on 10th June 2003 failed to find error of law, Jurisdictional error, Procedural fairness and relief under s 39B of the Judiciary Act 1903. 3. The grounds and relief is very much similar with a recent High Court Judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). Catchwords: Immigration – Refugee – Protection visa – Decision by Minister to refuse application for visa – Review of decision by Refugee Review Tribunal – Obligation of Secretary of the Department of Immigration and Multicultural Affairs to give relevant documents to Register [sic] of Tribunal for purpose of review – Nature and extent of obligation – Migration Act 1958 (Cth), ss 148(3), 424(1). I will provide more grounds later. 4. Recent High Court judgment: Plaintiff S 157/2002 v Commonwealth of Australia [2003] HCA 1 (4 February 2003). 5. Recent Federal Court of Australia judgment: SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 (14 February 1003).' 27 Those grounds of appeal are of no assistance in identifying any error made by the Judge. 28 An amended notice of appeal was filed which raised the following grounds: '(1) A number of errors were occurred by the Tribunal, which was not considered by the Honourable Judge.