NADZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 118

FEDERAL COURT OF AUSTRALIA NADZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 118

MIGRATION – refusal of protection visa by Refugee Review Tribunal – whether denial of procedural fairness akin to that established in Muin v The Refugee Review Tribunal – no evidence that the applicant was misled Judiciary Act 1903 (Cth) s 39B Muin v The Refugee Review Tribunal (2002) 76 ALJR 966 distinguished NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 referred to Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) HCA 6 applied NADZ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1192 OF 2002 HELY J 28 FEBRUARY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1192 OF 2002

BETWEEN: NADZ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 28 FEBRUARY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is 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 N 1192 OF 2002

BETWEEN: NADZ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE: 28 FEBRUARY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act") seeking to challenge a decision of the Refugee Review Tribunal ("the RRT") made on 27 September 2002, in which the RRT affirmed the decision of the Minister's delegate not to grant a protection visa to the applicant. 2 The applicant is a citizen of Bangladesh. The applicant claimed to be a member of the Bangladesh National Party ("the BNP"). He said that in January 1995 a labour leader of the Awami League was assassinated at the Adamjee Jute Mills at which the applicant worked. Although the applicant had nothing to do with the assassination, he claimed that local Awami League leaders managed to include his name on the charge sheet, and in December 1995 all of the people named in the charge sheet, including the applicant, were found guilty of the murder. 3 The applicant claimed that some of his colleagues were sent to jail for life, but he went into hiding. The applicant claimed that he was discovered and assaulted by Awami League members, and on 8 February 1996 he left Bangladesh for Saipan, a US territory. He remained in Saipan until his departure to Australia. He arrived in Australia on 14 May 2000. 4 The RRT rejected the applicant's claims because it did not believe him, and because it was not satisfied as to the authenticity and reliability of documents submitted by the applicant in support of his claims. The RRT gave these documents no weight. 5 The RRT summarised its conclusions as follows at RD 124: "The applicant's claims and evidence are filled with implausibilities, contradictions and inconsistencies, and the Tribunal is not satisfied that he is a reliable witness, therefore: · The Tribunal does not believe that the applicant was ever implicated in any murder · It does not believe the applicant was ever charged with a murder or that an arrest warrant was issued against him · It does not believe that any judgment or sentence has been passed against him · It does not believe he was ever in hiding · It does not believe that he was ever assaulted in Bangladesh." At RD 125 the RRT summarised its conclusions in the following way: "Considering the applicant's mendacity on not only the essential elements of his claims and evidence, but other aspects of his claims and evidence discussed above, as well as well as the numerous inconsistencies in his claims and evidence, and the inconsistencies with the independent evidence, the Tribunal finds that the claims of harm, and threats of harm, by the Awami League, the Jatiya Party and the police in Bangladesh to be a fabrication. Given the significant adverse findings on credibility in relation to the applicant, the Tribunal cannot be satisfied that the applicant has a real chance of being persecuted for a convention reason in Bangladesh in the foreseeable future, and is therefore not satisfied that the applicant's fear of persecution for a Convention reason is well founded." Obvious typographical errors in this passage have been corrected. 6 The grounds on which relief is sought do not appear with any clarity from the application. The applicant lodged written submissions dated 18 February 2003 in support of his application. Those submissions are twelve pages long, and have been placed with the papers. I will not attempt to summarise them. 7 Paragraphs 3 – 13 of the applicant's written submissions repeat the applicant's account of the facts, and conclude in par 13 with the submission that: "there are sufficient grounds to conclude with certainty that the applicant's claims and fears are genuine". The RRT concluded that they were not genuine. Paragraphs 3 – 13 appear to invite a merits review of the RRT's decision, which this Court is not entitled to undertake. 8 Paragraph 14 asserts a belief on the part of the applicant that the decision of the RRT was otherwise than a bona fide attempt to exercise its power. This assertion is not particularised, nor is it made out. In oral submissions the applicant complained that the RRT did not investigate all of the papers properly. However, the substance of the applicant's complaint appears to be that the RRT did not accept as genuine documents which, if authentic, may have supported the applicant's claim. 9 Paragraphs 15 – 22 of the applicant's written submissions allege a failure to follow proper procedures, and that the RRT denied the applicant procedural fairness in a manner akin to that found in Muin v The Refugee Review Tribunal (2002) 76 ALJR 966. 10 In the present case, the delegate listed in Part B of the decision record eight documents which contained "evidence", which the delegate used in making his decision. The documents listed include the UNHCR Handbook, the departmental files relating to the applicant, and six documents which appear from their description to contain information about Bangladesh. Two of those documents, namely CX 31417 and the US country reports on human rights practices for 1998, were specifically referred to by the RRT in its reasons for decision. 11 By letter dated 2 August 2000 (Exhibit 1) the RRT informed the applicant that it had asked the Department to send a copy of the documents about the applicant's case to the RRT, and when the documents were received, the Department would look at the papers along with other evidence on the RRT file to determine whether it could make a favourable decision. 12 By a letter dated 12 August 2002 the applicant was informed that a member of the RRT "… has considered material relevant to your application". As the RRT was unable to make a decision favourable to the applicant "on the papers", he was invited to attend a hearing. 13 Similar letters were sent out to the applicant in Muin's case. In its reasons for decision in the present case, the RRT states that it has before it the Department's file, which includes the protection visa application and the delegate's decision record. It is apparent from the terms of the RRT's reasons that it had other documents before it including at least some of the Part B documents, as well as other material. 14 As the Full Court made plain in NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 at par [24] Muin does not establish that the sending of letters in terms of the letter of 12 August 2002 would amount to a denial of procedural fairness in circumstances where the RRT has not referred to the Part B documents in its later decision. Rather, Muin holds that there is a want of procedural fairness where an applicant before the RRT is misled into thinking that the RRT has considered particular relevant information favourable to the applicant, and as a result, the applicant does not ensure that such information is placed before the RRT, or drawn to its attention. The later decision of the High Court in Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) HCA 6, confirms that an applicant in a case such as the present must show that he relied to his disadvantage upon communications from the RRT before there is any question of a want of procedural fairness. 15 The elements of the procedural fairness claim in Muin were: (a) the RRT told the plaintiff that it had asked the Secretary to send a copy of the plaintiff's documents and when they were received, it would look at them along with other evidence on the RRT's file to determine whether it could make a favourable decision; (b) the RRT informed the plaintiff that it had looked at the material relating to the application; (c) the plaintiff believed that the RRT had received the Part B documents; (d) some of the Part B documents were favourable to the plaintiff; (e) the Part B documents had not been considered by the RRT Member; (f) the plaintiff had been misled into believing that it was unnecessary for him to draw the favourable information in the Part B documents to the attention of the RRT; and (g) if the plaintiff had not been misled he would have taken steps to correct the situation, and would have tendered additional evidence in support of his position, including decisions favourable to applicants in analogous situations. 16 In Muin, there was a statement of agreed facts which dealt with all of those elements except element (e). As to (e) the justices who constituted the majority were prepared to infer from the agreed facts that the RRT had not considered the Part B documents. The justices who were in the minority on this point, were not prepared to draw an inference on the facts which were agreed that the RRT had not read the Part B documents. 17 In the present case there are no agreed facts. There is evidence in terms of elements (a) and (b) above, but no evidence as to the remainder. In particular, elements (c), (e), (f) and (g) have not been established. There is no evidence that the applicant was in any way misled by the communications from the RRT, hence there are no facts established in the present case which could conceivably give rise to a finding of a want of procedural fairness. 18 There was a second element of a want of procedural fairness in Muin, inasmuch as Mr Muin was not made aware of the substance of unfavourable documentary information received by the RRT after the delegate's decision. It was established that he would have conducted his case differently had he been aware of that information. A denial of procedural fairness was established in that respect as well. 19 In the present case, the applicant's written submissions only rely upon a denial of procedural fairness in the first of the ways considered in Muin. Nothing was put in the written submissions or orally, which could conceivably establish a want of procedural fairness by reason of any supposed failure to alert the applicant to the substance of any documentary information which would be adverse to the applicant's case. The documentary information in the possession of the RRT which was adverse to the applicant's case was information in relation to document fraud. That information was specifically communicated to the applicant at the hearing, and his comments on that information invited. 20 Paragraphs 23 – 28 of the applicant's written submissions allege jurisdictional error on the basis that the RRT ignored relevant evidence. Whilst the submission asserts that the RRT ignored relevant evidence, that evidence is not identified in the written submission, nor was it identified orally. The applicant's claim was rejected because the RRT did not believe the applicant, primarily because of inconsistencies in his story, and because it did not accept as genuine documents which he produced. That does not mean that the RRT "ignored" these matters. 21 The application is dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.