FEDERAL COURT OF AUSTRALIA NAUE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 103 NAUE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 216 of 2004 RYAN, FRENCH and NICHOLSON JJ 6 MAY 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 216 of 2004 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NAUE Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent JUDGES: RYAN, FRENCH and NICHOLSON JJ DATE OF ORDER: 5 MAY 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs, to be taxed in default of agreement. 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 216 of 2004 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: NAUE Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent JUDGES: RYAN, FRENCH and NICHOLSON JJ DATE: 6 MAY 2004 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from an order of a single Judge of the Court dismissing with costs an application by the appellant for review of a decision by the Refugee Review Tribunal ("the Tribunal") affirming the refusal to grant the appellant a protection (class XA) visa. The Tribunal's decision was made on 11 June 2003. 2 The appellant's claim for a protection visa was based on a fear of persecution by reason of his political opinions if he were to return to Bangladesh. The detail of his claim has been summarised as follows by the learned primary Judge; 'The applicant was born in Bangladesh and claims that his 'political involvement with the Jatiya Party compelled me to leave the country'. He is a seaman and arrived in Australia, on 21 August 2001, by leaving his ship in Fremantle. He says that he completed the Higher School Certificate in 1993 and was elected as joint secretary of the Pabna Sadar Thana Jatiya Party in 1995. This activity, he says, put him into conflict with both the Awami League and the BNP. In 1998 he was elected as an executive member of the Jatiya Party Pabna District Committee. On 11 December 1998, while returning home from a procession in the city, he was attacked with an axe by a group of Awami League activists and his right leg was injured. Subsequently, members of the Awami League became 'more aggressive against me' and he feared for his life. A number of 'false cases' were filed against him. The applicant also relies on the current political situation and uncertainty in Bangladesh.' 3 Her Honour, in the course of reasons for judgment published on 6 February 2004, identified the principal findings of fact which had been made by the Tribunal and concluded; 'It is apparent that the applicant was unsuccessful because of the view that the Tribunal took of the facts, in particular its strong finding that the applicant was not credible and its rejection of all of his substantive claims.' 4 The grounds on which the appellant sought review by this Court of the Tribunal's decision were not clearly formulated and completely lacked particulars. As the learned primary Judge noted; "The basis for the grounds set out in the application, to the extent that they go beyond matters of fact, are difficult to elucidate." However, the appellant took advantage at first instance of an opportunity to provide further written submissions which were apparently prepared with professional or other assistance. Her Honour carefully reviewed those submissions and gave them a benevolent interpretation in identifying the errors which the appellant was endeavouring to impute to the Tribunal. By that means, the following twelve propositions were distilled from the written submissions and what the appellant had said in the course of the oral hearing in this Court: '1. the Tribunal failed to assess whether the applicant's fears of being persecuted for being a member of a political party were well founded in the reasonably foreseeable future and thereby failed to accord him procedural fairness; 2. the Tribunal's finding that he had no well founded fear of persecution in Bangladesh for a Convention reason was not open to the Tribunal; 3. the Tribunal did not provide the applicant with particulars of information about violence against the Jatiya Party that formed part of the Tribunal's decision; 4. the Tribunal did not put to the applicant its doubts about the documents; 5. the applicant is in the same position as in Muin; 6. the Tribunal failed to refer to unspecified 'evidence or any other material' in relation to the protection available from the authorities in Bangladesh; 7. the Tribunal's finding that the applicant does not have a well founded fear of persecution because of his political views is an error of law; 8. the Tribunal failed to collect the Part B documents from the Department file; 9. there was 'procedural inefficiency' in that the Tribunal did not refer to sufficient documents supplied by the applicant and ignored relevant evidence; 10. the Tribunal's factual findings indicate actual bias; 11. the Tribunal did not believe the applicant; 12. the Tribunal failed to investigate the applicant's claims.' 5 Her Honour then examined the Tribunal's reasons for decision and pointed to its refusal to accept that the appellant is, or ever was, a member of the Jatiya Party. That finding, it was noted, made it unnecessary, as a matter of logic, for the Tribunal to look to the nature of the Jatiya Party or persecutory actions against its members in Bangladesh. The learned primary Judge also observed that the finding to which we have just referred was open to the Tribunal on the evidence before it and was largely based on the conclusion that the appellant was not a reliable or credible witness. Her Honour went on to observe at [22] of the reasons below; 'As the Tribunal was not satisfied that the applicant faced persecution for his political beliefs, there was no need for the Tribunal to examine whether he would be protected by the authorities from such persecution.' 6 We respectfully agree with that observation. It was also noted in the same context that the Tribunal had put to the appellant and the migration agent who represented him before the Tribunal its concerns about the appellant's factual assertions and the documents produced by the appellant in support of those assertions. Her Honour's conclusion that the Tribunal gave the appellant an opportunity to respond to those concerns has not been challenged in the course of the present appeal, except by asserting that the Tribunal had "refused to investigate the papers" said to establish the authenticity of the documents relied on by the appellant and that there had been a refusal in bad faith "to assess my documents and evidences." 7 We agree with the conclusion of the learned primary Judge that no particulars have been given of bias on the part of the Tribunal and none is apparent. The same is true of the imputation of "bad faith" raised by the appellant in a "further outline of submissions" relied on in support of the appeal. Much of that outline is devoted to an attempt to draw parallels between the facts of the present case and those considered by the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601. However, that attempt foundered on the affirmative finding by the Tribunal that the appellant had not been a member of the Jatiya Party. As was pointed out at [24] to [25] of the reasons below; '… In the present case, unlike Muin, there is no evidence nor is it agreed that the applicant was in any way misled by any act or omission on the part of the Tribunal or that the applicant would have taken any particular steps if he had been in any way misled. Assumptions as to these matters cannot be made (NADR of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 465 ('NADR')). The Tribunal has set out its findings and reasons in detail. The applicant has not specified any particular fact or document to which the Tribunal did not refer but, in any event, the Tribunal is not obliged in the abstract to search the Department file or all available country information or to refer in its reasons to each and every available fact and document, or every available fact and document about the Jatiya Party. The Tribunal found, as a fact that was open to it, that the applicant had not been a member of the Jatiya Party. It was membership of that party on which the applicant relied to establish a well founded fear of persecution.' 8 The same finding that the appellant had not been a member of the Jatiya Party presented an insuperable obstacle to the appellant's succeeding on any of the grounds numbered 1, 2, 3, 6 or 7 in the passage quoted at [4] above where her Honour sought to identify each head of the appellant's complaints against the Tribunal. Submission 4 of those identified by her Honour was effectively answered by her finding that the Tribunal did put to the appellant its doubts about the documents. Support for that finding is provided by these recitals in the reasons of the Tribunal published on 11 June 2003; '45. The country information concerning document fraud in Bangladesh was put to the applicant. He agreed that there was much document fraud but claimed that there was some genuineness. He was asked about the documents that he had provided. He was asked about the letter from the lawyer, and whether he knew him. He said he was his lawyer and helped him on many occasions. He was asked if the lawyer spoke English. He claimed that he could speak English but was not fluent because he did not use it often. He was asked about the lawyer being a professor, that he needed a doctorate and position at a university. It was put to him that his letter did not disclose a doctorate, and he was asked which university. He claimed that he did not know, that it probably was the Rashai university. It was put to the applicant that the letter was in bad English and not about anything legal. He claimed that the lawyer did not know English. The applicant was asked if he asked for the letter in English, and he said yes. The problems in the letter were put to the applicant; that it did not mention the charges, offences or the details of the cases against him, that there was nothing about the legal procedures or outcomes, and that it gave advice not to return contrary to the kind of advice that a lawyer would give. He claimed that the lawyer could not write it properly because he was not used to the language. 46. The letter from the JP was put to the applicant; that it was in vague and general terms, and there were no dates and nothing of what the applicant did. He claimed that it was not written properly because the author did not understand the requirements needed for a refugee claim. The applicant was asked about the medical documents. The applicant claimed that they referred to an incident in 1988 for his brother. He was asked about the claimed incident in 1998. He said it was for the incident in 1998. He was asked how an incident in 1988 was relevant to his claims in 2003. He claimed that it should be for the incident in 1998. He was asked how he obtained records from that time. He claimed that all the certificates were genuine and based on hospital documents. … … … 48. The newspaper articles were put to the applicant. He was asked if the photograph in the newspaper article was the same as the photograph provided with his protection visa application. He claimed that the photograph was collected from the university college. He was asked again if it was the same photograph as that provided with his protection visa application. He said may be. The applicant was asked why such an article would appear in a newspaper in April 2003 when everything that had happened to him occurred before he left Bangladesh in May 2001, other than that applicant had caused such an article to appear. He claimed that when his family went to the hospital to get the medical documents there were journalists in the hospital who came to know of his problems, and they wrote the article. He was asked how his brother's situation came to appear in another newspaper about the same time. He claimed that it came to the notice of a journalist in the hospital. He was asked how he came to have an original newspaper with his brother's photograph. He claimed it was not with him, may be it was at home or in Bangladesh. He claimed that he only received the newspapers the day before the hearing. 49. The applicant was asked about the JP Pabna letter; that it was general and vague in describing his activities. He said that the writer did not understand the requirements. It was put to him that it appeared to be a form letter, with his name and details inserted, and that it was in appalling English. He claimed that Bangladesh was not an English speaking country. The letter from the notary public was put to the applicant. He claimed that it was from a young lawyer. He was asked about the cases. He claimed that they were like using explosives and attacking a student teachers meeting. … … … 51. Other documents handed up by the applicant were put to him. He claimed that they arrived yesterday and he had not had an opportunity to look at them. The Australian doctor's certificate was put to the applicant. He said it was from a doctor in Sydney. He was asked what the report showed. He claimed it showed that he had been examined about the places he had been hit. He was asked what conclusions he thought it showed. He claimed that the doctor reached the conclusion that the injury had been caused by an axe. What was written in the report was put to the applicant; that there was nothing of an axe, and that the doctor [scil. had] written that the applicant had stated that the scar was caused by a sharp instrument, with knife crossed out. The doctor observed that the scar was an old scar. He was asked when he claimed that the injury happened. He said it was in July 1998. It was put to him that 4 years was not a long time for it to be described as an old scar, especially one claimed to have been done by an axe. He claimed that they were all injuries and that he had many marks.' 9 In addition, the Tribunal's concerns about a letter dated 25 February 2002 purportedly from a legal advocate informing the appellant of cases against him pending in the "Magistrate and District Court" in Bangladesh were put to the appellant's migration agent as revealed by this passage from the Tribunal's reasons; '56. The migration agent referred to the certificate from the lawyer. He claimed that not all lawyers in Bangladesh were intellectual. He claimed that a professor in Bangladesh did not need a doctorate because of civil service examinations. He submitted that the lawyer's experience made him a professor in college, not because of doctorate but because of being professional and practical. He submitted that the letter was written by a professor.' 10 Moreover, some, at least, of the documents relied on by the appellant had been identified to him as questionable because the delegate to the respondent Minister, in reasons for the initial decision to refuse the appellant a protection visa, had pointed out on 14 June 2002; 'On 13 May 2002 & 26 May 2002 the applicant submitted the following documents to support his claims. 1 A certified copy of a letter dated 2 November 2001 issued by Jatiya Party Pabna District Branch, Abdul Hamid Road Pabna. The signatory to this letter is not named. 2 A certified copy of a letter dated 10 February issued by Jatiya Party Central Office, House No. 75/E, Road No-17/A, Banani, Dhaka signed by Moktar Hossain, Organizing Secretary Jatiya Party, Central Committee. This letter is addressed to Onshore Protection, Department of Immigration Level 3, 26 Lee St Sydney. (It is noted that this letter is dated 10 February and is addressed to Onshore Protection at Lee Street whereas the applicant's application is assessed in Parramatta. Moreover Onshore Protection at Pitt Street only moved to Lee St in the last week of April 2002). Hence this leads me to doubt the genuineness of this document. 3 A certified copy of a letter purported to be issued by the lawyer, Prof. Sanat Kumar Sarker engaged by the applicant in Bangladesh. (This document also contains a lot of spelling and grammatical errors.) I have considered these documents submitted by the applicant. Though I have doubts about the genuineness of these supporting documents I accept as plausible that the applicant may have been affiliated with the Jatiya Party. ……' 11 Against that background, it is inconceivable that the appellant and his adviser were under any misapprehension that the authenticity of at least most of the documents on which he relied remained a live issue until the Tribunal's decision on 11 June 2003. 12 We agree, for the reasons explained by the learned primary Judge, that there is nothing in any of the "submissions" numbered 7, 8, 10, or 12 quoted at [4] above which can avail the appellant in his attempt to establish reviewable error by the Tribunal. Submission 9 is answered by this observation of McHugh J in Re Minister for Immigration and Multicultural Affairs, Ex parte Durairajasingham (2000) 74 ALJR 405 at 416-417; 'Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal. ……… In this case, the Tribunal made an express finding that it did not accept the prosecutor's wife's evidence. That was sufficient to comply with the requirements of s 430(1).' 13 Submission 12 does no more than dispute factual findings made by the Tribunal. The appellant sought in oral submissions made in the course of the hearing of the appeal to renew his attacks on those findings. However, it is clear that this Court's powers, whether at first instance or on appeal, to examine decisions of the Tribunal do not extend to merits review. 14 It follows that the appellant has not made out any ground of attack on the Tribunal's decision or the judgment at first instance. It was for these reasons that we ordered yesterday that the appeal be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court. Associate: Dated: 6 May 2004 Counsel for the Applicant: The appellant appeared in person Counsel for the Respondent: Mr M Wigney Solicitor for the Respondent: Spark Helmore Date of Hearing: 5 May 2004 Date of Order: 5 May 2004 Date of Reasons: 6 May 2004