FEDERAL COURT OF AUSTRALIA NAIA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 350 MIGRATION – protection visa refused by delegate – RRT affirmed decision of delegate – adverse findings made by RRT upon applicant's credibility – RRT rejected applicant's claims as to prevailing political events in Bangladesh since his arrival in Australia – findings of RRT clearly open to be made – no error of law demonstrated – unnecessary to consider implications of privative clause. Migration Act 1958 (Cth) NAIA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 28 OF 2003 CONTI J 11 APRIL 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 28 OF 2003 BETWEEN: NAIA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: CONTI J DATE OF ORDER: 11 APRIL 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant to pay the respondent's costs of the proceedings. 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 28 OF 2003 BETWEEN: NAIA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: CONTI J DATE: 11 APRIL 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant was born in Bangladesh, according to the Minister's delegate, on 11 December 1969 or 1 January 1957. He arrived in Australia on 4 October 2000. On 20 October 2000, he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs, and thus became entitled to be considered against the criteria for each of the following subclasses, namely 785 (Temporary Protection) and 866 (Protection). On 14 November 2000, a delegate of the Minister refused to grant a protection visa. 2 On 22 November 2002, the Refugee Review Tribunal ("RRT") affirmed the decision not to grant a protection visa, finding that the applicant had fabricated claims of having been assaulted, and having been in hiding, and of having been subjected to false charges. The foundation of his claims to refugee status was active membership of the BNP party in Bangladesh, and active opposition to the then Awami League Government, and his fears of harm in Bangladesh because of his political activities on behalf of the BNP. The RRT rejected those claims, and expressed its satisfaction that the applicant was a minor political activist in the BNP, and would be of no adverse interest in the reasonably foreseeable future to the Awami League or anyone else for any Convention reason in Bangladesh. The RRT therefore found that the applicant did not have a well-founded fear of harm by reason of his political opinion, or for any of the other Convention related reasons, in the reasonably foreseeable future in Bangladesh. The applicant was notified by the RRT of its decision by letter dated 18 December 2002. 3 On 13 January 2003, the applicant made application to the Court for review of the RRT's decision. The following grounds (for review) were propounded under the heading "Details of Claim" (I have adopted the literal text): "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 failed to consider the current political situation prevailing in Bangladesh particularly the violation of human rights which amount to persecution. 3. The applicant faced harm on a number of occasions by his political opponents, which was not considered by the Tribunal for valid reasons. 4. The Tribunal did not take any bona fide attempts to examine the real state of affairs of the review applicant and the Tribunal denied setting aside the decision of the DIMIA without any proper reasoning. 5. The Tribunal did not have any objective evidence to justify its decision. 6. The Tribunal made a number of errors in deciding the review of the applicant's protection visa." 4 In purported support of those grounds, the applicant provided a contemporaneous affidavit on 13 January 2003 in the following terms (again adopting the literal text): "1. I am a Bangladeshi national. I belonged to the Bangladesh Nationalist Party (BNP). This party came to power after my departure from Bangladesh. The BNP came to power this time with collaboration the fundamentalist Jamat-e-Islami and provided an opportunity to the Jamat-e-Islami to share power. As a result many real activists of the party have become victims by their own party men. I will be considered one of them. 2. The Tribunal failed to take bona fideattempts to find the reality of the claim. 3. The Tribunal did not consider the present political environment that has exerted a detrimental affect on me. 4. On a number of occasions I was ill treated by my political opponents. The Tribunal did not consider these circumstances. 5. The Tribunal disregarded the true situation currently existing in Bangladesh." In the circumstances, I adopted the course of receiving the affidavit as evidentiary material in the proceedings, subject to the Minister's objections thereto which I formally recorded. 5 The applicant also provided to the Court what purported to be written submissions in support of the appeal, in the text which I have literally reproduced below for ease of reference: "1. I am a Bangladeshi citizen. I came to Australia on 4 October 2000 and I filed an application for protection visa to DIMIA on (?) October 2000 and a delegate of the Minister refused to grant my protection visa on 14 November 2000. On 17 November 2000 I filed an application for review to the Refugee Review Tribunal. Finally the RRT affirmed the decision of the DIMIA. 2. These proceedings were commenced on 13 January 2003. I appeared before the Honourable Court. I am not familiar with the procedures of this Honourable Court; nor was I familiar with the legal and evidentiary principles applicable to a Court case in Australia. At the time that the proceedings were commenced, I believed that I would be able to conduct the proceedings in person. Having now become aware of the legal and evidentiary principles that are involved. I have come to the conclusion that I am not able to adequately conduct these proceedings in person. I do not have funds to appoint a solicitor at this stage. I went to a number of organisations to receive legal aid but failed. 3. I went to a number of solicitors but their charge is extremely high which is not maintainable by me at this stage. I do not have that much money to afford to a counsel. As such I am making this submission to the Honourable Court. 4. The Tribunal did not consider the current situation prevailing in Bangladesh. Furthermore, the current regime is heavily influenced by this fundamental and fanatical Muslim Party, the Jamat-e-Islami. Two very influential ministries (Agriculture and social welfare) are given to the war criminals. The BNP, which I belonged, is not the BNP today, the BNP has changed its attitude and motives towards anti liberation and fanatic forces of the nation. After the change over political power the anti liberation forces of the country have reached their peak which has abandoned the real face of the nation. 5. S 474 of the Migration Act 1958 is not effective to oust judicial review of an administrative decision made by a Commonwealth officer where the ground for review is: (a) lack of reasonableness as to jurisdiction (reasonableness review), (b) failure or constructive failure of jurisdiction; or/(c) denial of natural justice in respect of jurisdiction. The Tribunal did not adequately care about the current situation prevailing in Bangladesh, plus constructively failed to take all material facts into consideration. The Tribunal did not take into account relevant submissions. 6. In Minister for Immigration and Multicultural Affairs v Rajalingam (1999) FCA 719 Hon. Sackville J said that 'it follows from the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question to the RRT is whether it is satisfied that the applicant has a well-founded fear of persecution, in the sense of having a 'real substantial basis' for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring'. 7. In my case bona fide attempts were not followed by the Tribunal. In NAAV v Minister for Immigration (2002) FCAFC 228, His Honour Von Doussa J said at paragraph 674 that 'A failure by a decision maker to follow directory provisions in the Act may in the circumstances of a particular decision be important in determining whether its making was not an honest attempt to deal with a subject matter confided to the Tribunal and to act in pursuance of the powers of the Tribunal… A blatant disregard of statutory directions about a decision making process laid down by the Act is unlikely to meet the Hickman Proviso that the decision be one that is bona fide attempt to exercise the relevant power. Unless that requirement is met s 474(1) can not validate the decision'. 8. The current regime in Bangladesh has failed to ensure the Constitution rights of its citizens and it is an element of persecution. 'The failure to ensure these rights under any circumstances is thus appropriately considered to be tantamount to persecution'. 9. In fact, the current Prime Minister of Bangladesh deployed the army on along with other forces to combat operation names 'operation clean heart'. In the operation clean heart about 42 death in custody and thousands were tortured inhumanly. Thus an indemnity ordinance was passed which indemnified the custodial tortures and deaths. It is a clear violation of Constitution grantees to its citizen and human rights. In the case of Bangladesh the state itself is violating Universal Human Rights and civil rights to its citizen. 'The source of the persecution is not limited. It may emanate from the government or a third party. Obviously, it will be much easier to show that the fear of persecution is well founded if government of the state of origin is perpetrating it: G Gilbert, "Right of Asylum: A change of direction" (1983) 32 ICLQ 633 at 645'. 10. In accordance with section 420(2)(b) of the Act, the Tribunal is obliged to make substantial Justice and to consider the merits of the case. On 4 February 2002 in the case as plaintiff 157/2002 the Highest Court of the land unanimously decided that there is no legality and ineffective of s 474(1) of the Migration Act. In Yesus v Minister for Immigration and Ethnic Affairs Madgwick J emphasized that 'The inescapability of such a conclusion about his status requires a consideration of Chan v Minister for Immigration (1989) 169 CLR 379. It was accepted by the High Court that it is the facts as they exist at the date that a claimant seeks refugee status in Australia which must be determined, rather than the date when he left his country of nationality (the question of the appropriate time for the factual determination is still, despite some change in the statutory framework that time: Singh v Minister for Immigration & Ethnic Affairs (Federal Court of Australia, Branson J, 30 May 1996, unreported)'. 11. I have a real fear of persecution upon returning to Bangladesh was not considered by the RRT." 6 As appears therefrom, the applicant raised the following purported grounds in support of his application for review of the RRT's decision: (i) the absence of consideration by the RRT of "the current situation prevailing in Bangladesh"; (ii) the ineffectiveness of s 474 of the Migration Act 1958 (Cth) "… to oust judicial review of an administrative decision"; (iii) the need for the RRT to take into account "the possibility that alleged past events occurred even though it finds that those events probably did not occur", and not to "foreclose reasonable speculation about the chances of the hypothetical future event occurring"; (iv) dictum of Von Doussa J in NAAV v Minister for Immigration and Multicultural Affairs (2000) FCAFC 228 at [675]; (v) the behaviour of the "current regime in Bangladesh"; (vi) the failure of the RRT to consider the merits of the case; and (vii) his continuing fear of persecution upon returning to Bangladesh. 7 It is evident from what I have already set out in these reasons, and from what the applicant asserted verbally in the course of his address to the Court, that the applicant had received information and legal advice, since the RRT decision was handed down, from a source not identified, upon matters of case law precedent. In any event, in so far as the applicant sought to refer to events and circumstances prevailing in Bangladesh subsequent to his arrival in Australia, the applicant did not do so upon the footing of evidence from any person or persons who were in a position to authoritatively testify as to the accuracy and veracity of any such events and circumstances. Moreover, in so far as the applicant purported to repudiate the findings of the RRT adverse to his case for refugee status, and to assert omissions of the RRT to make findings in its decision, the applicant has not done so to an extent evincing any viable basis for administrative review. 8 Counsel for the Minister made the following submissions by way of support for the RRT's reasons for affirming the delegate's refusal to grant a protection visa: "2.2 The Tribunal accepted the applicant's evidence that he was a member of the BNP. However the Tribunal was not satisfied that he was prominent in the BNP, the applicant having given evidence that he carried out instructions given by others in the party. The Tribunal concluded that he was simply a follower and a 'low-level organiser' and therefore not at the level where independent country evidence suggested that harassment was experienced. 2.3 The Tribunal disbelieved the applicant's evidence as to how he came to be in possession of a valid passport, which he presented to the Tribunal, given that he claimed he had entered Australia on a false passport because he was refused a passport. The Tribunal concluded that he used a false passport in order to circumvent the scrutiny or difficulties of applying for an Australian visa. 2.4 The Tribunal found the applicant's account of the assault in August 1997 confused and contradictory, and was not satisfied he was truthful. 2.5 The Tribunal was not satisfied that the applicant was assaulted in January 1999 since he provided no meaningful elaboration of the circumstances of the assault and provided no documentary evidence of the severe injuries he claimed to have sustained. 2.6 The Tribunal was not satisfied that the applicant was truthful as to his having gone into hiding as he gave three different accounts of the period during which this occurred. The Tribunal found that the applicant showed a 'readiness to modify his claims in… a blatant manner' and gave no weight to this aspect of his claim. 2.7 The Tribunal found that the applicant's claim about the charges brought against him was inconsistent and not substantiated, and concluded that this claim was fabricated. 2.8 The Tribunal concluded that there were 'grave adverse credibility concerns' about the applicant. Moreover, given his low-level involvement in the BNP, absence for two years and evidence that he did not intend to be involved in political activities on his return, there was not a real chance that he would be of adverse interest to the Awami League or anyone else on his return to Bangladesh." 9 In my opinion, each of those submissions accurately reflect the reasoning and findings of the RRT, none of which the applicant has adequately, or at all, confronted or addressed, to the extent of demonstrating error on the part of the RRT. Moreover, the adverse conclusions of the RRT upon the credibility of the applicant's testimony to the RRT were open to the RRT to reach, and no legitimate basis for challenge in the context of the present review proceedings in this Court has been demonstrated by the applicant. 10 I have reached the following conclusions by way of resolution of the present application for review, in response to the Minister's submissions which were expressed with commendable precision: (i) there was no failure on the RRT's part to observe procedures required under the Migration Act 1958 (Cth), as the applicant had claimed; indeed the applicant did not specify which statutory procedure or procedures the RRT supposedly failed to observe; (ii) there was no omission on the RRT's part to consider and determine whether the applicant faced harm on a number of occasions from his political opponents; (iii) there was no omission on the RRT's part to make a bona fide attempt to examine the true state of the applicant's affairs; (iv) the RRT properly referred to country evidence as to the circumstances of low level party organisers, and party members with a higher profile, in Bangladesh, and correctly determined the "objective aspect of the real chance test" by reference to the political position prevailing at the time of its decision-making; (v) to the extent that the applicant raised a "no evidence" ground for review, the applicant had not identified which finding of fact made by the RRT was supposedly not supported by any evidence; and (vi) on the contrary, the RRT's decision was based on findings and inferences of fact which were supported by probative material placed before the RRT. 11 The Minister also made submissions in response to the applicant's claim that the RRT failed to consider the role of Jamat-e-Islami, a fundamentalist Muslim Party, in Bangladesh, and further that the BNP had allegedly changed its agenda since the applicant was a member thereof and was now sympathetic to anti-liberation and fanatical forces. In deference to those submissions, precisely framed by counsel for the Minister, I set out the same verbatim below: "6.2 However the Tribunal does refer in its reasons to the applicant's claims about the Jamat-e-Islami. The Tribunal notes that in the course of hearing the applicant raised the Jamat-e-Islami when this had not previously been part of his claim. The Tribunal also describes the applicant's claim that he would be killed by the Awami-League and the Jamat-e-Islami. In his application for a protection visa the applicant referred to the Jamat-e-Islami as the coalition partner of the BNP. However he did not claim that he faced persecution by the Jamat-e-Islami. He claimed only that the Awami men would kill him or bring false charges against him. Without mentioning the name of the party, the applicant's written submission to the Tribunal of 20 November 2002, referred to the coalition partner of the BNP in government and stated that the applicant would 'not be benefited by his party men'. 6.3 The Tribunal in the course of the hearing asked the applicant questions about changes to the BNP since it came to power. The Tribunal did not find the applicant's answers addressed its question as to why the BNP would not be prepared to support him as a previous loyal follower. All that the applicant claimed was that the BNP now in power was not the same as when he was in Bangladesh. The applicant was not able to explain to the Tribunal why the coalition with the Jamat-e-Islami would preclude the BNP from supporting him. The Tribunal clearly took into account the coalition between the BNP and Jamat-e-Islami. This information did not assist the Tribunal in drawing a finding of fact in the applicant's favour as to any charges against him being pursued by that coalition on his return to Bangladesh, since he had never had problems with the Jamat-e-Islami." In my opinion, those observations and submissions on the part of counsel for the Minister were correct, and should be upheld. 12 In the result, I find that the Minister correctly contended that it was open to the RRT to reach the conclusions adverse to the applicant which it did below, and that its decision did not involve, contrary to the applicant's submissions, any non-compliance with "inviolable limitations in the Act operating as essential preconditions to its exercise of jurisdiction", as contended by the applicant, and further that its reasons for decision are not infected with any other legal error. 13 In the result, it has become unnecessary for me to consider the Minister's submissions concerning the disentitlement of the applicant in any event to seek review of jurisdictional error on the part of the RRT. The application for review is in my opinion without merit and should be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 17 April 2003 Applicant: In person Counsel for the Respondent: M. Allars Solicitor for the Respondent: Clayton Utz Date of Hearing: 11 April 2003 Date of Judgment: 11 April 2003