NAHG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 369

FEDERAL COURT OF AUSTRALIA

NAHG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 369

MIGRATION – application for review of decision of Refugee Review Tribunal affirming decision not to grant a protection visa – application dismissed

Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 474, 420

Hickman, R v; Ex parte Fox and Clinton (1945) 70 CLR 598 cited Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 cited NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 cited Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 cited NAHG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N1434 OF 2002 EMMETT J 25 MARCH 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1434 OF 2002

BETWEEN: NAHG

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 25 MARCH 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the application be dismissed; 2. the applicant pay the respondent's costs of the application. 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 N1434 OF 2002

BETWEEN: NAHG

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 25 MARCH 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of Bangladesh who arrived in Australia on 29 June 2000. On 8 August 2000, he lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) ('the Act'). On 12 September 2000, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused to grant a protection visa. On 3 October 2000, the applicant applied to the Refugee Review Tribunal ('the Tribunal'), for review of the decision of the Minister's delegate. On 11 November 2002, for reasons given on 5 December 2002, the Tribunal affirmed the decision not to grant a protection visa. 2 On 31 December 2002, the applicant applied to this Court for orders in respect of the decision of the Tribunal. The application is expressed to be 'against the decision of the Refugee Review Tribunal (RRT) refusal of a protection visa on 5/12/02'. Under the heading 'Details of Claim', the application specifies the following: '1. The procedures that were required under the [Act] to be observed in connection with the making of the decision were not followed. 2. The Tribunal ignored the merits of the claim. There was substantial evidence submitted as basis for inferring that the applicant was a refugee within the meaning of the Convention. 3. The Tribunal's decision was not based on a reasonable examination of the evidence and the Tribunal has not consider (sic) this case in accordance with the United Nations Convention 1951. 4. The Tribunal made a number of errors in deciding the applicant's review. 5. The Tribunal did not consider the material facts of the claim. Thus it ignored the applicant's real fear of persecution upon returning to Bangladesh. 6. The Tribunal ignored the fact that the applicant really fears being persecuted once he returns to Bangladesh.' 3 In an affidavit filed in support of the application on 31 December 2002, which I have treated as a submission, the applicant made the following assertions: '1. The Tribunal did not [m]ake any bona fide attempt to determine whether I was a true refugee, in light of its assertion that it did not have any evidence to form a favourable decision. 2. The Tribunal relied on a number of sources of information which do not document the true position existing currently in Bangladesh. 3. The Tribunal did not given any weight to the evidence, which indicated that I was persecuted and physically assaulted by my political rivals. 4. In relation to relocation, the Tribunal assumed that I could avoid persecution by relocating. However, this is impractical given the small nature of Bangladesh and wide spread persecution. 5. The Tribunal wrongly assumed that I will be protected by my political friends who are currently in office, since the army has true power. This Tribunal ignored that the army is in control today and ailed [allied] to the minority faction (the Jamat-e-Islami) in the partliament.' 4 Pursuant to directions that I gave on 7 February 2003, the applicant filed and served an outline of submissions in support of his contentions. Those submissions make the following assertions: 'Due to an unavoidable circumstances (sic) I could not appear at the hearing to explore the chances of my persecution upon returning to Bangladesh. The Tribunal did not take any current observations given by human rights organizations and by the independent newspapers into consideration. … 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 [Bangladesh Nationalist Party], which I belonged [to], is not the BNP today, the BNP has changed its attitude and motive towards anti‑liberation and fanatic forces of the nation.' 5 The submissions then say that s 474 of the Act is not effective to oust judicial review of an administrative decision made by a Commonwealth officer where the ground for review is lack of reasonableness as to jurisdiction, or failure or constructive failure of jurisdiction or denial of natural justice in respect of jurisdiction. The submissions refer to the decision of this Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 to the effect that there are circumstances in which the Tribunal must take into account the possibility that alleged past events occurred, even though it finds that those events probably did not occur. 6 The submissions also say that, in this case, bona fide attempts were not followed by the Tribunal. The applicant relied on the proposition that a blatant disregard of statutory directions about a decision making process laid down in the Act is unlikely to meet the requirement, referred to in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, that the decision, to be beyond review, must be one that is a bona fide attempt to exercise the relevant power. 7 Next, there is an assertion in the submissions that the current regime in Bangladesh failed to ensure the constitutional rights of its citizens. Finally, reference is made to s 420(2)(b) of the Act which provides that the Tribunal 'must act according to substantial justice and the merits of the case'. The submissions assert that the Tribunal failed to consider the merits of the case. 8 If the decision of the Tribunal is a decision of an administrative character made under the Act, then s 474(1) provides that it is final and conclusive, that it must not be challenged, appealed against, reviewed, quashed or called in question in any court and that it is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account 9 Such a provision, properly construed, is constitutionally valid. However, it applies to a decision only so long as the decision, relevantly, is a bona fide attempt to exercise jurisdiction and provided that the decision involves neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. 10 An administrative decision that involves jurisdictional error is no decision at all. Thus, if there is jurisdictional error because, for example, of a failure to discharge imperative duties, or to observe inviolable limitations or restraints, the decision in question cannot properly be described in terms of s 474(2) as being a decision made under the Act: see Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24. 11 The grounds relied upon by the applicant to which I have referred raise some matters that could take the Tribunal's decision of 11 November 2002 outside the provisions of s 474 of the Act. It is necessary, therefore, to consider the reasons of the Tribunal to see whether there is any substance in the contentions on behalf of the applicant. 12 In its reasons, the Tribunal records claims by the applicant that at high school he was affiliated with the Jatiyatabadi Chatradal, a student wing of the Bangladesh Nationalist Party ('BNP'). The applicant said that he participated in many demonstrations and worked hard for BNP programs. He claimed that, as a consequence, he became a target for activists of the Chatra League, the student wing of the opposing Bangladesh Awami League. He stated that he was several times attacked by the Chatra League activists and was injured and that they threatened his family members and filed a number of false charges against him. He claimed that he was insecure and so arranged a student visit to come to Australia and that he fears persecution if he returns to Bangladesh. 13 On 21 August 2002, the Tribunal wrote to the applicant and to his authorised recipient advising that it had considered all the papers relating to his application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and to present arguments at a hearing on 8 November 2002. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the case without further notice. 14 The Tribunal received a communication from the authorised recipient, the applicant's adviser, on 2 October 2002, indicating that the applicant would attend at the scheduled hearing. However, the applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. The Tribunal received no communication from the applicant or his adviser to explain that absence. The Tribunal records in its reasons that it therefore decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 15 While the applicant asserts in his submissions that he could not appear at the hearing because of 'an unavoidable circumstances' (sic), there has been no attempt on his part to explain what those circumstances were. In any event, the Tribunal indicated in its reasons that no adverse inference was drawn by the Tribunal from the failure of the applicant to attend the hearing. Nevertheless, the Tribunal recorded that the absence of the applicant put him at a disadvantage because the Tribunal had only the information contained in the written material before it from which to make a determination. In those circumstances, the Tribunal found it difficult to satisfy itself that the applicant has a well-founded fear of persecution on return to Bangladesh. 16 The Tribunal accepted that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of any doubt. However, the mere fact that a person claims fear of persecution for a particular convention reason does not establish the genuineness of the asserted fear, or that it is well-founded or that it is for the reasons claimed. The Tribunal considered that there were significant matters about which it would have wished to satisfy itself at a hearing had the applicant attended. 17 The Tribunal recorded that the applicant has provided no circumstantial details or supporting material in relation to his claimed involvement with the BNP student wing. Although the applicant referred briefly and generally to having been attacked by opposing student activists several times, he made no attempt to elaborate that claim or to provide any details of the alleged incidents or when they occurred or under what circumstances. The applicant referred briefly to 'a number of false cases against me' but did not state what those false cases were, or when they were filed or what eventuated. 18 In those circumstances, the Tribunal found it difficult to be satisfied that the applicant had a genuine subjective fear of persecution. The Tribunal also found it difficult to be satisfied that the applicant had experienced any particular mistreatment or harm. The Tribunal accepted that there was evidence that the student wings of the major parties, including those of the Awami League and the BNP, have been involved in mutual violence although, the Tribunal noted, it appears that that has generally been territorial or personal rather than essentially political. 19 The Tribunal was not satisfied from the material before it, including the limited information provided by the applicant, that any difficulties with the Awami League student supporters occurred other than in the context of student violence that was not essentially related to any political views held by or imputed to the applicant. The Tribunal also had regard to the fact that the applicant's own political party, the BNP, was successful in national elections in October 2001, securing an almost two-thirds parliamentary majority in its own right, sweeping all the seats in the applicant's home city of Dhaka. The Tribunal did not accept that a claimed BNP supporter or activist would now be targeted with impunity by local Awami League Student Wing supporters or be unable to have recourse to the authorities or would be unable to resolve any forced charges laid by political opponents. 20 In all the circumstances, on the basis of the limited information before the Tribunal about the applicant's actual experiences and circumstances, the Tribunal was not satisfied that the applicant would face a real chance of persecution for a convention reason on return to Bangladesh. In any event, the Tribunal considered that the applicant could avoid any local difficulties in his own district by living in one of the other large and densely-populated cities of Bangladesh, such as Chittagong. The Tribunal acknowledged that, while Bangladesh may be relatively small physically, it has a population in excess of 130 million. 21 The Tribunal concluded that having considered the evidence as a whole it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as defined in the Act and that, therefore, the applicant does not satisfy the criteria set out in s 36 of the Act for a protection visa. 22 I am prepared to treat the proceeding as an applicant pursuant to s 39B of the Judiciary Act 1903 (Cth), which would authorise the grant of prohibition or mandamus and ancillary orders if the decision of the Tribunal could be shown to involve an excess of or failure to exercise the Tribunal's jurisdiction. The grounds upon which the applicant complains about the decision of the Tribunal appear, however, to go to the merits of the Tribunal's decision rather than to the validity of the decision and, in particular, any excess of jurisdiction. I shall deal briefly with the grounds insofar as they can be discerned from the application, the affidavit and the written submission. 23 If the Tribunal had failed to comply with a procedural requirement there could be a basis upon which the validity of the decision could be impugned. Thus a blatant disregard of statutory directions could be evidence of a lack of bona fide attempt to exercise the relevant power: see, for example, NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 at 627, at [674]. However, no particulars of any procedures said not to have been followed have been identified. The material before the Court does not disclose any procedural requirement left unfulfilled. 24 The applicant also asserts that the Tribunal's decision was not based on a reasonable examination of the evidence. That appears more to be a complaint about the decision and the conclusion of the Tribunal that the applicant would not be subjected to persecution and the finding that the applicant would have the protection of the authorities. No particular error has been identified and my consideration of the reasons does not indicate any unreasonable examination of the evidence or a failure of a reasonable examination of the evidence on the part of the Tribunal. 25 Next, there is an assertion that the Tribunal did not consider the case in accordance with the Refugees' Convention. Once again, this is no more than an assertion and nothing has been said in support of the assertion. The Tribunal in its reasons set out its understanding of the provisions of the convention and the interpretation that has been given to those provisions by the High Court. I am unable to perceive any error in the approach stated by the Tribunal. 26 Next, the application claims that the Tribunal did not consider the material facts of the claim and that it ignored the applicant's real fear of persecution. That assertion is not made out upon an examination of the reasons. The reasons indicate that the Tribunal appears to have had regard to the evidence before it. Because of the failure of the applicant to attend a hearing, the Tribunal was unable to satisfy itself that the applicant has a genuine subjective fear of persecution. In any event, the Tribunal concluded from the evidence before it that, whether or not the applicant has a subjective fear of persecution, such a fear would not be well-founded having regard to the change in government in Bangladesh. 27 There is no basis for any conclusion that the Tribunal embarked upon the hearing and made its decision otherwise than in a bona fide attempt to exercise the power conferred by the Act. The thrust of the complaint, as I have said, is that the Tribunal came to a decision that was unfavourable to the applicant. The complaint that the Tribunal did not give any weight to the evidence is unfounded having regard to the reasons which refer to the material before the Tribunal. 28 I am not persuaded that there was any error on the part of the Tribunal that could be properly characterised as a failure to exercise jurisdiction or an excess of jurisdiction conferred by the Act. There is nothing to satisfy me that the decision of the Tribunal was otherwise than a bona fide attempt to exercise the power conferred by the Act. The decision is clearly a decision, on its face, that would be authorised by the Act and one that relates to the subject matter. In the circumstances, I am not persuaded that the applicant has established that any relief should be granted in respect of the decision of the Tribunal. It follows, in my view, that the application should be dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.