FEDERAL COURT OF AUSTRALIA NAGC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1506 APPLICANT NAGC OF 2002 & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N892 OF 2002 EMMETT J 21 NOVEMBER 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N892 OF 2002 BETWEEN: APPLICANT NAGC OF 2002 FIRST APPLICANT APPLICANT NAGD OF 2002 SECOND APPLICANT APPLICANT NAGE OF 2002 THIRD APPLICANT APPLICANT NAGF OF 2002 FOURTH APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 21 NOVEMBER 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the appeal be dismissed 2. the appellants pay the respondent's 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 N892 OF 2002 BETWEEN: APPLICANT NAGC OF 2002 FIRST APPLICANT APPLICANT NAGD OF 2002 SECOND APPLICANT APPLICANT NAGE OF 2002 THIRD APPLICANT APPLICANT NAGF OF 2002 FOURTH APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: EMMETT J DATE: 21 NOVEMBER 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The first applicant ("NAGC") is the husband of the second applicant ("NACD") and the father of the third applicant ("NAGE") and the fourth applicant ("NAGF"). They all claim to be citizens of Bangladesh. NAGC, NAGD and NAGE arrived in Australia on 24 September 1999. On 5 November 1999 they lodged an application, with the Department of Immigration and Multicultural Affairs, for a protection class XA visa under the Migration Act 1958 (Cth) ("the Act") for each of them. 2 On 1 December 1999 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), refused to grant protection visas. On 21 December 1999, NAGC, NAGD and NAGE applied to the Refugee Review Tribunal ("the Tribunal"), for review of that decision. 3 On 7 June 2000, NAGF was born to NAGC and NAGD. On 25 August 2000 an application was lodged on behalf of the new born child for a protection class XA visa. On 26 April 2001 a delegate of the Minister refused to grant a protection visa and on 15 May 2001 an application for review of that decision was lodged with the Tribunal on behalf of NAGF. 4 On 5 March 2002 the Tribunal affirmed both decisions not to grant protection visas. On 22 April 2002 an application was lodged with the Court seeking, amongst other things, an order redirecting the claims to the Tribunal for further consideration and a direction to the Tribunal to make a further consideration of the matter. On 21 June 2002, Allsop J ordered that the matter be transferred to the Federal Magistrates Court. 5 On 7 August 2002, Driver FM ("the Magistrate"), having ordered that NAGC be appointed litigation guardian in respect of the two infant applicants, ordered that the application be dismissed and that the applicants pay the Minister's costs and disbursements of the application fixed at $4000. On 26 August 2002 the applicants lodged a notice of appeal to this Court seeking orders that the appeal be allowed and that the orders of the Magistrate be set aside. 6 When the matter was called on for hearing today, NAGC sought leave to adduce further evidence under O 52 r 36 of the Federal Court Rules, an application for leave to request the Court to receive further evidence may be made by motion on the hearing of the appeal without filing or serving notice of the motion. However, under O 52 r 36(6) an applicant must file any affidavit not less than twenty-one days before the hearing of the appeal, setting out the evidence necessary to establish the grounds of the application and the evidence that NAGC wants the Court to receive. 7 No such affidavit has been filed and the Minister objects to the Court receiving the additional material. I shall deal with this application in dealing with the substance of the appeal. In the course of argument, NAGC sought leave to amend the original application to the Court to raise what are said to be legal errors on the part of the Tribunal that were not the subject of the original application. I should also deal with that matter in dealing with the substance of the appeal. 8 Before the Tribunal, the applicants relied on written submissions that asserted that the Tribunal had predetermined the outcome before the hearing before it and went through the hearing simply as a matter of form. The Magistrate treated that assertion as an allegation of a lack of good faith on the part of the Tribunal on the basis of actual bias. 9 In his written submissions to the Magistrate, NAGC asserted that a number of errors had been made which were summarised by the Magistrate as follows: 1. The Tribunal had incorrectly assessed his claim in relation to a local political rival who had made threats against him and his family arising out of problems that the two had experienced in local elections. 2. The Tribunal was wrong in rejecting as fabricated a warrant of arrest that the applicant had submitted at a late stage to the Tribunal in support of his claims. 3. The Tribunal acted in a procedurally unfair way in questioning NAGD about statements of fact that he had made and drew insupportable conclusions from the answers given by NAGD. 4. The Tribunal placed unnecessary stress on a relatively unimportant matter of the time of a national election in Bangladesh. 5. The Tribunal did not properly assess NAGC's ability to relocate to another part of Bangladesh in order to avoid conflict with his political rival. 6. The Tribunal failed to take into account that NAGC had travelled to Australia a number of times on business purposes during which visits he did not make any claim to be a refugee. 10 Those grounds are not reflected in the grounds set out in the original application filed with the Court, which were in the following terms: 1. The procedures that were required to be observed in accordance with the Act in connection with the making of the decision were not observed. 2. The Tribunal made a number of errors in deciding the fate of the applicant's claim. 3. The Tribunal incorrectly portrayed the real picture of the applicant's claim. 4. The Tribunal incorrectly assessed the current political situation of Bangladesh. 5. The decision of the Tribunal is not justifiable. 6. The Tribunal failed to consider the material facts of the claim. 11 No issue appears to have been taken before the Magistrate as to the adequacy of the grounds shown in the application, in relation to the matters relied on by NAGC before the Magistrate. 12 In its reasons the Tribunal recorded that NAGC claims to be afraid to return to Bangladesh as he and his family could face harm amounting to persecution at the hands of a political opponent in his home area. The Tribunal said that NAGC had acknowledged that the problem he claims to face is localised but that he claims that he cannot gain protection from the harm by relocating to another part of Bangladesh. 13 The Tribunal records that the claims by the three other applicants to be in need of protection rest solely on the claimed risk faced by NAGC. The Tribunal's reasons then deal with credibility of NAGC's claims under three heads as follows: 14 Inconsistency between NAGC's and his NAGD's accounts: The Tribunal placed weight on the fact that NAGD, in the course of evidence given before the Tribunal, made no reference to a claimed shooting of the house where they resided a week before departure from Bangladesh. The Tribunal was of the view that an instant as significant as the shooting at the house a week before their departure would not have been overlooked by NAGD if in fact it had occurred. The Tribunal found that the reason why it was not commented on by NAGD was because the incident had not occurred and the claim had been fabricated. 15 NAGC's claimed political profile: NAGC claimed that he had a deep and long standing involvement in politics in Bangladesh. However, he was unsure of the details of the election in which his party lost power and the opposition took control. The Tribunal observed that NAGC had made no attempt to communicate with his party's support organisations in Australia and was of the view that NAGC would have at least investigated their strengths and affiliations if he was involved with the party to the degree he claims to have been. 16 Doubtful authenticity of certain documents: The first of the documents was an arrest warrant provided to the Tribunal by NAGC. The Tribunal found that the document was fraudulent and had been provided at the eleventh hour to support the claim that was advanced by NAGC that he had false charges laid against him,. The Tribunal gave reasons for rejecting the authenticity of the document. The second document purported to be a letter from NAGC's father. The Tribunal found that the information in the letter was not genuine and accordingly rejected it. 17 The Tribunal found that NAGC was the managing director of a company in Bangladesh and that he travelled overseas carrying out business for that company. It rejected NAGC's claims to have been a significant local figure in the Bangladesh Nationalist Party ("the BNP") and that he faced serious harm at the hands of a political opponent who was in the Bangladesh Awami League ("the Awami League") but is now in the BNP. In any event, the Tribunal found that if the claims had been accepted, any harm asserted was localised and NAGC and his family could reasonably find protection in Bangladesh by moving from the area he lived in to another area. 18 The Magistrate concluded, in his reasons, that there was no error on the part of the Tribunal and therefore found it unnecessary to consider the application of s 474 of the Act. In the course of his reasons, the Magistrate dealt briefly with the assertion that the Tribunal had predetermined the outcome. His Honour concluded that he was unable to accept that the matters raised by NAGC established a case of bias or a lack of good faith. He considered that it was understandable that, when significant numbers of similar claims are made in migration cases before the Tribunal, presiding members may come to a hearing with suspicions about the veracity of the claims made. The Magistrate concluded that, while the Tribunal may well have come to the hearing with suspicions about the veracity of those claims, that did not itself establish a lack of good faith or bias. 19 His Honour referred to the principle that the Tribunal does not have to accept uncritically whatever claims are made and that it can, and should, where it has suspicions, test the veracity of those claims. His Honour concluded that that is what the Tribunal was doing in questioning NAGC about factual matters such as the date of the Bangladeshi election at which the Awami League gained power. 20 In relation to the complaint concerning the treatment of NAGC's wife, the Magistrate observed that the Tribunal stated that it had persisted in questioning NAGC's wife about certain matters. The Tribunal stated that an assurance had been given to NAGC's wife that she did not need to have specific dates in mind but only approximate times. The Magistrate thought, therefore, that it might be surprising that, in the reasons of the Tribunal, the Tribunal drew attention to the inconsistency between the accounts of NAGC and his wife. However, his Honour concluded that even taking into account that NAGC's wife was not expected to give precise details, the Tribunal properly took into account that the statements made by NAGC's wife made no mention of the claimed shooting at their house a week before the family's departure from Bangladesh and that she had made reference to two other alleged incidents that had apparently not been mentioned by NAGC. 21 The grounds stated in the notice of appeal to this Court are as follows: "1. The Trial judge erred in failing to find that the Tribunal had failed to respond the material facts of the case. 2. The honourable trial judge erred in considering the natural justice which the Tribunal failed to consider it. The honourable trial judge was able to consider the natural justice and also empowered to consider any errors committed by the Tribunal. 3. The honourable trial judge also erred considering the applicant's persecution upon returning to Bangladesh as an activist of the Bangladesh Nationalist Party. 4. The Tribunal unreasonably brought relocation factor in respect to the applicant's review. The honourable trial judge did not take it into consideration. 5. The Tribunal did not provide the applicant an opportunity to comment on materials which the Tribunal relied its decision on. The honourable judge did not consider it." 22 Although directions were given for written submissions to be filed five hearing days before the appeal was to be heard, no such submissions were filed. However, when the matter was called on for hearing NAGC proffered written submissions on which he wished to rely. He did not wish to add anything to those written submissions. No objection was taken on behalf of the Minister to my receiving the written submissions. 23 The written submissions deal with errors of two kinds. The first might be characterised as errors of fact. The second kind are characterised in the written submissions as legal errors. I shall deal with each separately. 24 The first category is as follows: 1. The Tribunal did not accept that NAGC had been a significant local figure in the BNP and faced serious harm at the hands of a local opponent. 2. The Tribunal advised NAGC that his local rival could be avoided by moving to Myocali where he had been born. In fact, the evidence before the Tribunal showed that NAGC had been born in Chittagong. 3. NAGC, referring to the alleged arrest warrant, invited the Court to send that document to Bangladesh through the Department of Foreign Affairs for investigation through the Australian High Commissioner in Dhaka. 4. The question of the year in which the Awami League came to power was not important and the Tribunal and the Magistrate were wrong in concluding that it was an important national election and that it was not irrelevant. 25 All of those matters are matters of fact. The conclusions reached by the Tribunal in relation to those matters were open to it on the material before it. It is no function either of the Federal Magistrates Court or of this Court in dealing with a proceeding of this nature, to investigate the correctness of factual findings made by the Tribunal. None of those matters constituted a ground upon which the Federal Magistrates Court could have intervened in relation to the decision of the Tribunal. 26 The legal errors claimed by NAGC in his written submissions are as follows: 1. The Tribunal did not look at country information which was favourable evidence and important supportive information which should have been looked at but which was not. 2. The Tribunal referred to independent country reports in relation to Bangladesh on three occasions but did not go through the political violence which was recorded in the country reports, a very important matter for NAGC's case. 3. A report by The United States Department of State on human rights practices in Bangladesh, which was referred to by the Tribunal in its reasons, was not furnished to NAGC either before, or at the time of furnishing the reasons for decision. 4. The Tribunal did not have regard to an updated report by the US Department of State of 4 March, 2002 dealing with human rights practices in Bangladesh. 27 The document described in 4 is the document that NAGC seeks leave to adduce as additional evidence on the hearing of the appeal. The application for leave to amend the original grounds of review is to include the four grounds that I have just indicated. I am of the view that both applications should be rejected for the reasons that I will shortly give. I do not consider that there is any prospect of any of the grounds succeeding. Therefore, it would be futile to permit amendment. 28 So far as the additional evidence is concerned, there was no obligation for the Tribunal to have regard to the document, assuming that it had come to the Tribunal's attention before the decision was made. Bearing in mind that the document was published on 4 March 2002 which I would take to be United States time, when the decision of the Tribunal was made on 5 March 2002 the Tribunal could be excused for not being aware of the existence of the report. Accordingly, I reject the additional evidence. I shall have it marked for identification. 29 I do not consider that there is any substance in any of the additional grounds sought to be relied upon. However, it seems to me that the matter is properly to be disposed of by reference to s 474 of the Act. The decision of the Tribunal is clearly a "privative clause decision" within the meaning of s 474(2) of the Act. That is to say, it is a decision of an administrative character made under the Act. Accordingly, by the operation of s 474(1) the decision is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called in question in any court and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. The Court must have regard to those provisions. 30 It may be that there are some inviolable limitations in the Act, which operate as conditions precedent to the jurisdiction of the Tribunal and which are not protected by s 474 of the Act (see NAAV v The Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 ("NAAV's Case")). While there is some disagreement among the judges who constituted the Court in NAAV's Case, it is clear that no essential precondition to the Tribunal's jurisdiction, such as might have been recognised by the majority, has been identified in this case. None of the errors alleged by NAGC, if established, would amount to breach of any such inviolable limitation as is referred to by the majority of the judges who comprised that Court. 31 Nevertheless, a privative clause decision will be outside the purview of the Court's jurisdiction if it is a bona fide attempt to exercise its power, it relates to the subject matter of the Act and, is reasonably capable of reference to the power given to the Tribunal (see King v Hickman and Fox; Ex parte Clinton (1945) 70 CLR 598 at 615). Clearly, the Tribunal's decision related to the subject matter with which the Act is concerned. Further, it is clear that the Tribunal was in substance dealing with its jurisdiction to review an exercise of the power to grant or refuse a protection visa. While some attack was mounted by NAGC on the good faith of the Tribunal, I consider that the Magistrate correctly found that there was no basis for concluding that the Tribunal made its decision otherwise than by way of a bona fide attempt to exercise its power. 32 A decision will not be made in pursuance of a bona fide attempt to exercise power if there is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal – (see NAAV's Case at paragraphs [107] and [108]). Further, a blatant disregard of statutory directions about a decision-making process set down in the Act may constitute actual bias in the sense that one might draw an inference from such a circumstance that no honest attempt is being made to exercise the jurisdiction conferred. However, I am not persuaded that the possibility that the Tribunal came to the hearing with some suspicion about the veracity of NAGC's claims is sufficient to justify a finding that the Tribunal did not make a bona fide attempt to exercise its power 33 I consider that any attack on the decision of the Tribunal is precluded by the operation of s 474 of the Act. Accordingly, the Magistrate was correct in dismissing the application. In my view this appeal should be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 1 December 2002 Counsel for the Appellants: NAGC in person Counsel for the Respondent: Ms M. Allars Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 21 November 2002 Date of Judgment: 21 November 2002