NAAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 582

FEDERAL COURT OF AUSTRALIA

NAAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 582

MIGRATION – appeal – protection visa – appeal from the decision of the Federal Magistrate – whether Refugee Review Tribunal acted in bad faith or was biased Judiciary Act 1903 (Cth) s 39B Federal Court of Australia Act 1976 (Cth) s 25(1A) Migration Act 1958 (Cth) s 424A, 424A(3)(b) Muin v Refugee Review Tribunal (2002) 190 ALR 601 referred to NAAL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 275 OF 2003 HELY J 16 JUNE 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 275 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAAL

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 16 JUNE 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal 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 275 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAAL

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE: 16 JUNE 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of Bangladesh who arrived in Australia on 11 April 2000. He applied on 19 April 2000 for a protection visa on the ground that he has a well-founded fear of persecution in Bangladesh by reason of his political opinion. The application was refused by the Minister's delegate on 15 May 2000. The appellant applied for a review of that decision by the Refugee Review Tribunal ("the RRT"). By a decision dated 26 July 2002, handed down on 20 August 2002, the RRT affirmed the decision not to grant a protection visa. 2 The RRT accepted the appellant's claims that he was a member of the Bangladesh Nationalist Party ("BNP") and that he held positions in the BNP both in student politics, and subsequently in a local constituency in the lead up to the 1996 parliamentary elections. The RRT also accepted the appellant's claim that he supported one BNP candidate against Mr Bulu, another BNP candidate. 3 However, the RRT did not accept the appellant's claims that false charges were laid against him, of which he was convicted in absentia, nor did it accept the appellant's claim that he would be the target of either Awami League supporters, or supporters of Mr Bulu, in the event of his return to Bangladesh. In its written reasons, the RRT explains why it did not accept these claims. As to the first, the RRT found that the appellant had twice departed, and once re-entered Bangladesh, as a seaman using his own passport. Were the appellant to be the subject of government attention as he claims, in the RRT's opinion he would have been easily found by the government authorities during this period or through the normal registration of his seaman's papers. As to the second, eight years had elapsed since the appellant had been active in Bangladesh politics at the local level. In the light of this, the RRT did not accept that the appellant's political "profile" would have remained sufficiently prominent that those he claims to fear would still seek him. 4 The RRT accepted independent evidence to the effect that politics in Bangladesh are violent, but it was not satisfied that in the circumstances of the appellant's case there was a real chance that the appellant may suffer serious harm upon his return to Bangladesh for reason of his political opinion. 5 The appellant sought relief from this Court under s 39B of the Judiciary Act 1903 (Cth). On 20 February 2003 the Federal Magistrate dismissed the application. The Federal Magistrate found that the RRT had properly considered the appellant's claims, and rejected the appellant's submission that the RRT was biased. The Federal Magistrate noted that the bias claim "effectively arose out of the decision itself". 6 The appellant now appeals from that decision. By direction of the Chief Justice given under s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the appeal is to be heard by a single judge. 7 The grounds of appeal contained in the Notice of Appeal are: "GROUNDS 2. The Single judge of the Federal Magistrate Court In his Honours Judgment delivered on the 20th February 2003 failed to find error of law, Jurisdictional error Procedural fairness and relief under Section 39B of the Judiciary Act 1903. 3. The grounds and relief is very much similar with a recent High Court Judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). Catchwords: Immigration – Refugee – Protection visa – Decision by Minister to refuse application for visa – Review of decision by Refugee Review Tribunal – Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Register of Tribunal for purpose of review – Nature and extent of obligation – Migration Act 1958 (Cth), ss 148(3), 424(1)." 8 The appellant filed written submissions in support of the appeal. The submissions have been placed with the papers and I will not attempt a detailed summary of them here. Those submissions assert: (a) that the RRT member demonstrated actual bias; (b) that s 424A of the Migration Act 1958 (Cth) was not complied with; (c) that the RRT's decision was wrong; (d) that there is a close parallel between the circumstances of the present case, and the circumstances the subject of the High Court's decision in Muin v Refugee Review Tribunal (2002) 190 ALR 601; and (e) despite the privative clause in s 474 of the Act, the Court may grant relief in case of jurisdictional error. 9 In addition, the submissions attach what appear to be newspaper articles and press releases issued by Amnesty International and a report apparently prepared by the Bangladesh Institute of Human Rights on the human rights situation in Bangladesh. The articles appear to be recent and to have come into existence after the decision of the RRT. The articles were not before the RRT, nor were they tendered before the Federal Magistrate. Counsel for the Minister objected to the tender of this material on the hearing of the appeal. The material is incapable to demonstrating error on the part of the Federal Magistrate or error on the part of the RRT and is therefore irrelevant. 10 The case which the appellant conducted before the Federal Magistrate on the issue of bias was grounded in the RRT's reasons for decision. The Federal Magistrate correctly concluded that there was no substance in that claim as the RRT considered the appellant's claims and rejected them for reasons which it gave and which were open to the RRT. On the hearing of the appeal the appellant contended that if I "listened to the tape" I would understand that the RRT was biased and that its decision was not in accordance with the Migration Act. The appellant did not place the tape before me, nor was it before the Federal Magistrate. There was no suggestion before the Federal Magistrate that anything which occurred at the hearing itself supported the bias claim or the claim that the RRT acted in bad faith. As the matter was not raised at first instance, and as the tape was not in evidence before the Federal Magistrate, nor is it in evidence before me, it is not open to the appellant to assert for the first time on appeal that the way in which the hearing was conducted establishes bias. 11 Nor is there any substance in the claim that s 424A was not complied with. The assertion that s 424A was enlivened appears to be based on a contention that the RRT rejected the appellant's claims by reason of some inconsistency between the appellant's oral and written evidence. That is not so. Even if it were so, s 424A(3)(b) makes it clear that s 424A would have no relevant application. 12 The claim that the RRT's decision was wrong impermissibly invites this Court to embark on a merits review of the RRT's decision. A like invitation was extended to me in the course of the appellant's oral submissions. 13 As to the fourth claim, there was no attempt either before the Federal Magistrate, or in this Court, to lay the factual foundation for a contention that there had been a denial of procedural fairness of the kind considered by the High Court in Muin's case. 14 During the course of his oral submissions the appellant asserted that the RRT failed to take into account the appellant's claims, although he did not identify what those claims were beyond asserting that the RRT did not believe that false cases had been presented again him, or that he was convicted in absentia. The appellant also asserted that the RRT made its decision without any investigation, although it is apparent on the face of the RRT's decision that it obtained and considered "country information" which led it to accept the fact that politics in Bangladesh are violent. The RRT did not ignore the appellant's claims or the material which the appellant placed before it. Rather, it simply did not accept some of the appellant's claims or evidence for the reasons articulated in its decision. The findings of fact made by the RRT, including its rejection of critical parts of the appellant's claims, were open to it on the materials before it and are not susceptible to challenge. There was no jurisdictional error. 15 Nor has the appellant established any error on the part of the Federal Magistrate in dismissing the appellant's application. His decision was the only decision reasonably open to him on the materials before him. 16 The appeal should be dismissed. The appellant submitted that he is in financial difficulties and for that reason no costs order should be made against him. No materials were placed before me to establish that fact, but I am content to assume that it is the case. Nonetheless, that provides an insufficient reason for departing from the usual practice in cases such as the present where a consequence of an unsuccessful appeal is usually that the unsuccessful appellant is ordered to pay the respondent's costs. This appeal is without merit, and there is no reason for departing from the usual practice. 17 The appeal is dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.