FEDERAL COURT OF AUSTRALIA NAHT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1049 MIGRATION – application for review of decision of Refugee Review Tribunal – whether s 474(1) operated to protect the decision. Migration Act 1958 (Cth) Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 applied NAAG of 2002 v MIMIA [2002] FCA 713 cited NAHT OF 2002 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NO. N 401 OF 2002 BEAUMONT J 22 AUGUST 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N401 OF 2002 BETWEEN: NAHT OF 2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: BEAUMONT DATE OF ORDER: 22 AUGUST 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed, with 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 N401 OF 2002 BETWEEN: NAHT OF 2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: BEAUMONT DATE: 22 AUGUST 2002 PLACE: SYDNEY REASONS FOR JUDGMENT BEAUMONT J: INTRODUCTION 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 18 March 2002, whereby the Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The application therefore falls within the "privative clause" regime of s 474 of the Migration Act 1958 (Cth) ("the Act"). 2 The application for an order of review, filed on 3 May 2002, sets out the "details of claim" as follows: "1. The procedures that were required under the Migration Act 1958 to be observed in connection with the making of the decision were not observed; 2. The Tribunal ignored the merits of the claim. 3. The Tribunal did not take into consideration real picture of the Bangladeshi politics. 4. The Tribunal made errors to decide the fate of the applicant's claim. 5. The Tribunal misjudged the fate of the applicant's claim. 6. The Tribunal have not considered the evidentiary proof of the applicant's claim. 7. The Tribunal used authorities to decide the case are biased and influenced by the Bangladeshi government." 3 The applicant's affidavit, sworn 3 May 2002, which accompanied the application, states: "1. The member of the Tribunal took a number of irrelevant matters into consideration. 2. I was deprived of receiving natural justice. 3. The Tribunal made errors in deciding the fate of my claim. 4. The Tribunal's assertion in regard to politics in Bangladesh is not accurate. 5. I am not satisfied by the decision of the Tribunal. 6. The Tribunal did not consider me as a refugee in accordance with the United Nations Convention 1951 as amended 1967 protocol related to the status of refugees. 7. The authorities which were used to justify the decision are biased and influenced by Bangladeshi authorities." background 4 The applicant in this matter is a citizen of Bangladesh. He arrived in Australia on 18 August 1999 and applied for a protection visa on 23 September 1999. His application was refused by a delegate of the Minister on 26 October 1999 and the applicant lodged an application for review with the Tribunal 16 November 1999. 5 The applicant holds a passport which was issued in 1991 and, since that time, he has visited Hong Kong for a week in October 1991, and India on three consecutive occasions in 1994 and 1996. The applicant was issued with a visitors' visa for Australia on 10 August 1999. 6 In a written statement, submitted by the applicant with his protection visa application, the applicant made the following claims. 7 The applicant claimed that he was born in Bangladesh, in Chittagong, on 21 December 1969. He claimed that he completed 12 years of education in Dhaka and that his parents and three siblings still live in Balgladesh. 8 The applicant claimed that his father was a Union Chairman during the British period and that he was involved in politics. He claimed that when he grew up and started college, he also became involved in politics. 9 The applicant claimed that, after the war of independence in 1971, members of his family were frequently tortured at the hands of the Awami League and their agents. He claimed that the houses of his family members were burnt and looted by members of the local Awami League. 10 The applicant claimed that in 1986 he was admitted to Jagonnath College. He claimed that in 1988 he joined Jatiya Party politics at the Sabuj Bagh Thana. He claimed that after the 1991 parliamentary elections, when the Bangladesh Nationalist Party (BNP) came to power, he led a number of demonstrations against the BNP regime, as leader of the Jatiya Party. 11 The applicant claimed that in June 1996, while returning home, a group of Awami League hooligans attacked him. He claimed that they hit and injured him and stripped him at knife point. The applicant also claimed that in June 1997, at 11 pm one night while passing through the University grounds, a number of Awami thugs shouted out the applicant's name and attacked and hit him from behind with hockey sticks and other weapons. He claimed that a finger on his left hand was broken in the incident. The applicant further claimed that the same thugs continued to threaten him over the telephone. 12 The applicant claimed that in May 1998, while he was leading a meeting at Sabuj Bagh a group of Awami thugs threw a petrol bomb into the meeting. He claimed that the following day he was shot by the same thugs. 13 The applicant claimed that, after this incident his family urged him to leave politics. He claimed that, during this time, a number of false cases were filed against him to destroy his political career. 14 The applicant claimed that, following these incidents, he finally decided to leave his country to avoid the fear of persecution he had as a result of his political affiliation with the Jatiya Party. He claimed that his life was not safe in Bangladesh. In his statement, he claimed that: "Democracy does not exist in Bangladesh even now. … Awami League is trying to destroy Jamat from Bangladesh. They have introduced numerous policies to destroy the Jatio Party. In the name of Special Powers Act they have been frequently arresting the Jatio Party leaders and workers". 15 Following the delegate's decision, refusing to grant the applicant a protection visa, the applicant submitted a number of documents to the Tribunal in support of his application for review of the delegate's decision. These documents included various letters attesting to the applicant's membership of the Jatiya Party and the attacks made on him and his politics by the Awami League. 16 Prior to the Tribunal hearing, the Tribunal received a further submission from the applicant's adviser, dated 11 March 2002, in which the following further claims were made, that is to say, that extensive political harassment and persecution was occurring against the Jatiya Party leaders and workers in Bangladesh since the BNP-led coalition government had come to power; that, since the October 2001 election, political and communal violence had reached such a point that hundreds of Jatiya Party supporters, Awami League supporters and minority Hindus had been killed and injured, and many more had gone into hiding to save their lives; and (affirming his earlier claims) that he was a leader and activist of the Jatiya Party and that he had experienced a number of attacks from his political opponents and that a number of false cases had been filed against him. the tribunal hearing 17 The applicant gave oral evidence before the Tribunal, at a hearing on 11 March 2002, that, following the completion of his education in 1988, he had worked for the Jatiya Party. When questioned on this by the Tribunal member, he said that, at least for the period from 1988 to 1996, he had done some work travelling abroad to purchase cosmetics and sold them in Bangladesh on the wholesale market. 18 The Tribunal member put to the applicant that the country information before him indicated that the Jatiya Party had split into factions. The applicant was asked whether he was aware of this. The applicant replied that he had heard that the Party had split into two factions, one being President Ershad's wife's faction and the other being that of his brother. When asked the name of President Ershad's brother, the applicant said that he did not know. 19 The Tribunal member asked the applicant whether he had maintained contact with any members of the Jatiya Party since leaving Bangladesh. He replied that he had not, as many of the people he associated with had left the country. 20 The Tribunal member then put to the applicant that certain independent country information before the Tribunal (sourced to the Australian High Commission to Bangladesh) indicated that, following the October 2001 elections, the Jatiya Party had split into three factions: the Ershad, the Manju and the Manzur factions. The Tribunal member put to the applicant that he had difficulty accepting that, if the applicant had been involved at a high level with the Party for a period of eleven years, as the applicant claimed, that he would fail to maintain an interest to the point of knowing that it had split into three factions. 21 The Tribunal member asked the applicant which of the three factions he would support if he was in Bangladesh and the applicant replied that, since he did not know what their policies and philosophies were, he did not know which he would support. 22 The Tribunal member also put to the applicant that his claims made to the Tribunal indicated that the applicant had been a supporter of President Ershad when he had previously been involved with the Party. The applicant agreed that this was the case. The Tribunal member put to the applicant that the independent country information before the Tribunal indicated that the Jatiya Party (Ershad) had taken 14 seats in the recent elections; and that the BNP's attitude to the Jatiya Party was "neutral". The applicant's adviser submitted, later, that this was not the case and that, since the BNP had such a large majority in government, it wanted to rid itself of any opposition. (It was submitted that the BNP had targeted minorities, such as Hindus, and that there was a lack of tolerance for all minorities, including the minority Jatiya Party.) 23 The applicant also gave evidence before the Tribunal that the false charges laid against him, made in May and November 1998, involved a charge of weapons possession and a charge of throwing an explosive at an Awami League gathering. He said that the authorities had tried to arrest him in 1998, but that he was not at home at the time. The Tribunal member put to the applicant that he would not have been able to leave the country so easily on a passport in his own name if the authorities were seriously pursuing him. The applicant said that his travel arrangements were made by an agent. 24 At the hearing, the applicant produced a new passport which had been issued through the Bangladesh High Commission in Canberra, as a result of the applicant's passport being stolen. The Tribunal member put to the applicant that this indicated that the applicant was not a person of adverse interest to the authorities. The applicant's adviser replied that, from his experience, the reissue of a passport was a routine matter, and that a replacement passport would be issued, even if there were charges pending. the tribunal's decision 25 The Tribunal characterised the applicant's claim as, in essence, that he feared harm amounting to persecution in Bangladesh, because of antagonism towards him from Awami League and BNP members' attitudes to his party, the Jatiya Party. 26 In relation to the applicant's political profile, the Tribunal found that it was not satisfied that he was the committed Party member that he claimed he was. In coming to this conclusion, the Tribunal member noted that, although he had only left Bangladesh in about August 1999, he was not aware of significant changes which had occurred in the Party since that time. The Tribunal member also noted that, if the applicant had chosen to, he had the means available to him to keep abreast of the political situation in relation to the Jatiya Party in Bangladesh through the Bangladeshi media in New South Wales. 27 As a result, although the Tribunal accepted that the applicant was a member of the Jatiya Party, it did not accept that the applicant would have any significant commitment to the Party, or hold any position of significance, leading to persecution, were he to return to Bangladesh. The Tribunal accepted the independent country information which indicated that the BNP was neutral in its feelings towards the Jatiya Party. The Tribunal also found that, given that the applicant did not know which of the three factions of the Jatiya Party he would join were he to return to Bangladesh, there was no basis on which to speculate whether or not he would be at risk of harm from either the BNP or the Awami League for reasons of membership a political party that he may, or may not, elect to join. 28 In relation to the applicant's claim of false charges having been laid against him, the Tribunal found that these claims were fabricated, as it did not accept that the authorities would fail to act on a serious matter such as throwing explosives at a meeting of the Awami League, who were in power at the relevant time. In any event, the Tribunal found that the applicant had experienced no further consequences of such alleged charges in 1999 and that, were he to do so upon return, he could defend himself against such charges through normal court procedure, as the independent country information before the Tribunal indicated that Bangladesh has an independent judiciary and court system. 29 Having considered the evidence as a whole, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution if he returned to Bangladesh. applicant's submissions on his application for judicial review 30 A number of submissions were made on behalf of the applicant in support of his application for an order of review. Written submissions were filed on behalf of the applicant on 5 July 2002 and 16 July 2002 and oral submissions were made to the Court at the hearing on 9 July 2002. 31 Firstly, it was submitted on behalf of the applicant, that he was denied procedural fairness as a result of the delay, respectively, between his application for review to the Tribunal, the time of the hearing before Tribunal and the giving of its decision. It was submitted that, because of the delay in the making of the decision, the applicant became subject to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), and that: "[t]he applicant should not be barred to make application for order of review to the Federal Court, when the [Tribunal] failed to provide procedural fairness". Further, it was submitted on behalf of the applicant that he was denied procedural fairness when he was not informed earlier that the "making of the decision might be delayed for years" . 32 Secondly, it was submitted on behalf of the applicant that: "In the information sheet of the [Tribunal] it is written that the hearing will be informal. The applicant had expected it to be informal organization [sic]. But the hearing is conducted this is done more than formal. The [Tribunal] was preoccupied with an intention to refuse applications and that it came to its task with closed mind." In support of this submission, it was alleged on behalf of the applicant that the Tribunal did not make its' decision in good faith when it fulfilled its task of making a determination of the applicant's case. 33 Finally, it was submitted on behalf of the applicant, that the Tribunal "acted in excess of its jurisdiction" in that it was "bound to inquire into the reasons behind the making of the threats in order to determine the applicant's claim properly". It was further submitted that the Tribunal was: "…obliged to act as an 'inquisitor' and thus was bound to explore the applicant's claim that the applicant was a member of Jatiya. His association with the Jatiya Party was the main reason of the fear of persecution. … The [Tribunal] did not give credibility to the applicant's claims that he has no protection from the authorities and he does not believe that the Courts in Bangladesh will provide fair trial." conclusions on the application for judicial review 34 The decision of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 now provides a comprehensive statement of the legal principles in this area. 35 Firstly, in relation to the applicant's submission that he was denied procedural fairness as a result of the delay between his original application to the Tribunal and the Tribunal making its decision (and the supervening enactment of the Migration Legislation Amendment (Judicial Review) Act 2001), this argument cannot succeed. In NAAV, a majority of the Full Court held that the common law requirements of natural justice do not survive the enactment of s 474 of the Act (per Beaumont J at [113] - [114], von Doussa J at [637] – [639] and [648] – [649], Black CJ concurring). Whether or not there was a breach of the common law rules of natural justice arising out of the delay in this matter, it is clear that there was no breach of any statutory requirement, and review is, therefore, effectively excluded by s 474 of the Act. 36 Secondly, in relation to the applicant's submission that the Tribunal "came to its task with a closed mind" in that it was "preoccupied with an intention to refuse [the] application", to the extent that such a submission involves an allegation of bias against the Tribunal, this ground must also fail. As held by a majority in NAAV, the above conduct cannot, on any view, amount to bias (per Beaumont J at [107] – [109], von Doussa J at [635] – [637], Black CJ concurring). Provided the Tribunal made an honest and genuine attempt to undertake the task required by the legislation (as it plainly did), there can be no claim of lack of bona fides on the part of the Tribunal (see also Allsop J in NAAG of 2002 v MIMIA [2002] FCA 713 at [24]). 37 Finally, in respect of the applicant's submission that the Tribunal has a duty to act as an "inquisitor" and that the Tribunal acted "in excess of jurisdiction" by giving insufficient weight to the applicant's claims that he would have no protection from the authorities were he to return to Bangladesh, such a submission clearly involves an impermissible attempt to re-agitate the facts of the matter. 38 In my opinion, s 474(1) operated to protect the Tribunal's decision from the challenges now raised. 39 Accordingly, the application must be dismissed with costs. I certify that the preceding thirty nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. Associate: Dated: 22 August 2002 Solicitor for the Applicant: Theodore Solomon & Partners Counsel for the Respondent: Mr G Johnson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 9 July 2002 Date of Judgment: 22 August 2002