FEDERAL COURT OF AUSTRALIA NANJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 632 MIGRATION – refusal of protection visa by Refugee Review Tribunal – whether denial of procedural fairness akin to that established in Muin v Refugee Review Tribunal – no evidence that the applicant was misled Migration Act 1958 (Cth) s 426A Judiciary Act 1903 (Cth) s 39B Muin v Refugee Review Tribunal [2002] HCA 30 referred to NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293 cited NANJ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 435 OF 2003 HELY J 17 JUNE 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 435 OF 2003 BETWEEN: NANJ APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: HELY J DATE OF ORDER: 17 JUNE 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be 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 435 OF 2003 BETWEEN: NANJ APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: HELY J DATE: 17 JUNE 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is a national of Bangladesh. He entered Australia on a visitor's visa on 16 December 2000. The visa was valid for a period of one month. On 12 January 2001 the applicant lodged an application for a protection visa. He claimed a well-founded fear of persecution in Bangladesh on the basis of his political opinion arising from his activities as a member of the Jatiya Party. In a statement the applicant provided in support of his application, he claimed that: (a) on or about 1986 he joined the Jatiya Party because of the charismatic leadership of General Ershad; (b) he was actively involved in the Jatiya Party leading 'many demonstrations' and in 1988 he was elected the Publicity Secretary of the Jatiya Party of Jessore District Committee; (c) after the Bangladesh Nationalist Party came to power in 1991 he 'was beaten, threats were made to kill him and he was arrested a number of times'; (d) in 1996 the Awami League came to power with the assistance of the Jatiya Party and the applicant was elected as the Joint Secretary of the Jatiya Party of the Jessore District Branch; (e) when the Jatiya Party fell out with the Awami League the Applicant 'led many demonstrations' and he became a 'target'. He was 'seriously' beaten by a group of Awami League supporters on 23 March 2000 causing him to be hospitalised for a number of days; (f) on 1 May 2000, he participated in a protest march and he and other supporters were attacked by a group of Awami activists. After this the Awami League supporters filed a number of false cases against him; and (g) the police did not take any action in relation to the attacks on him by Awami League supporters. However, the applicant did not provide any documents or further information in support of his application. 2 The application was refused by a delegate of the Minister on 10 April 2001. In his decision the delegate referred to the lack of detail of the applicant's claims and the absence of any documentary evidence to support those claims. On 3 May 2001 the applicant applied to the Refugee Review Tribunal ('the RRT') for a review of the delegate's decision. On 22 November 2002 the RRT wrote to the applicant and informed him that it was not able to make a favourable decision on the material before it and invited him to attend a hearing on 18 December 2002. 3 On the day of the hearing the applicant's Migration Agent sent a facsimile to the RRT informing the RRT that the applicant was sick and attached a medical certificate. The medical certificate stated that the applicant was, 'suffering ... from sunburn, blister on the back, and tiredness'. The RRT agreed to adjourn the hearing and sent a letter dated 18 December 2002 to the applicant and to his Migration Agent informing them that the hearing was re-scheduled for 6 January 2003. The applicant's Migration Agent also rang the RRT on 19 December 2002 and was informed of the new hearing date. 4 In his application to the RRT for review, the applicant gave as his address for service his home address at 142 Carcoola Street, Canley Vale, New South Wales 2166. The application named Mr Sirajul Haque of M S Haque and Co as his adviser. On 6 January 2003 neither the applicant nor his Migration Agent attended the hearing. On 7 January 2003 the applicant's Migration Agent rang the RRT and said that the applicant had not received the letter informing him of the new hearing date. 5 The Migration Agent conceded that he knew of the new hearing date and had received the RRT's letter. The Migration Agent said that he would contact the RRT if he heard further from the applicant. The RRT then made its own inquiries and ascertained that: (a) the applicant collected the RRT's letter dated 18 December 2002 from the Canley Vale post office on 10 January 2003; and (b) the applicant had informed the Canley Vale Post Office that he had recently moved. 6 The RRT delayed making its decision for a period of six weeks and in that time did not hear further from the applicant or his Migration Agent. 7 The RRT was not notified of any change of address, nor was it requested to hold a further hearing. The RRT then decided to proceed pursuant to s 426A of the Migration Act 1958 (Cth) ('the Act') to make its decision. On 12 March 2003 the RRT handed down its decision affirming the decision of the delegate to refuse the protection visa. The RRT found that it could not be satisfied as to the applicant's claim due to the lack of detail contained in his protection visa application and the lack of any supporting documentation. 8 The RRT noted that the Minister's delegate referred in his decision to the lack of detail and the absence of any documentary evidence to support the applicant's claims. The RRT also noted that the applicant's adviser had forwarded a submission to the RRT on 17 December 2002, but the RRT did not regard this submission as curing the deficiencies and inadequacies in the applicant's claims to which it referred. The RRT said that there was nothing to support the applicant's claims other than the written material provided by him. 9 The applicant also failed to attend the hearing which would have permitted the RRT the opportunity to elicit further details of his claim. The RRT considered that these matters, combined with the lodgement of his protection visa application just before his visitor's visa was due to expire, were inconsistent with a person who has a genuine fear of persecution. 10 The RRT then considered each of the applicant's claims separately. The RRT did not accept that the applicant held any position in the Jatiya party. The RRT also said that it was unable to find that the applicant had participated in any demonstrations or that he was beaten, or threatened, or arrested, or was the subject of false charges. The reasons which the RRT gave for not accepting these claims was the lack of detail given by the applicant in support of the claims and the absence of any documentary or supporting evidence. The RRT then considered the current political situation in Bangladesh. The RRT accepted the independent country information in preference to the submissions of the applicant's Migration Agent. 11 The RRT found that the Jatiya party is now in a peaceful coalition with the ruling Bangladesh Nationalist Party. The RRT also found that the senior levels of the judiciary are independent and the applicant could successfully defend any false charges in the Court system. It was a matter for the RRT to assess the applicant's claims and it did so. It was open to the RRT to reach the conclusions which it did. 12 The applicant filed an application under s 39B of the Judiciary Act 1903 (Cth) in this Court on 7 April 2003. The application contained the following grounds: (1) that the decision involved a jurisdictional error of law, being an error of law involving an incorrect interpretation of the applicable law to the fact of the case as found by the RRT; (2) the RRT failed to take a relevant consideration into account in exercising its power to determine the applicant is a refugee; (3) the RRT member refused to accept that the applicant has a well-founded fear of persecution on Convention reasons; (4) the RRT's decision was unjust and was made without taking into account the full gravity of the applicant's circumstances and the consequences of the claim; (5) the decision by the RRT is not justifiable by the evidences used in the decision. The documents have indicated clear violation of human rights which is tantamount to persecution. The RRT ignored this fact; (6) the RRT failed to consider the real problems surrounded to a member of the Jatiya Party; and (7) the applicant was deprived of natural justice. 13 No particulars of any of these grounds were provided. Whilst the applicant elaborated upon his case in oral submissions, his submissions really boiled down to two. The first was that he did not know of the date to which his hearing had been adjourned. If he had known of that date he would have attended the hearing and would have successfully persuaded the RRT of the justice of his case. And second, that he has a genuine fear of persecution if returned to Bangladesh by reason of his political opinions. The applicant told me that if he has to go back to Bangladesh he thinks he would be killed. 14 In my view, the RRT complied with the relevant requirements of the Act and it was entitled to proceed in the way in which it did. It sent notice of the adjourned hearing to the applicant in a letter addressed to the applicant at the address which he had nominated for that purpose and in its decision the RRT correctly records that the notice was deemed to have been given to the applicant on 31 December 2002. Further, the applicant's adviser was informed orally and by letter of the date scheduled for the adjourned hearing. The applicant offers no explanation as to the apparent lack of contact between him and his adviser, if in truth, lack of contact there was. 15 There is no obvious error on the face of the RRT's decision. It considered each element of the applicant's claims and assessed whether he would face a real chance of persecution if he returned to Bangladesh. It delayed giving its decision for a period of six weeks after the applicant failed to attend the adjourned hearing. As neither the applicant nor his migration agent contacted the RRT within that time to explain the applicant's circumstances or request a further hearing, it proceeded to make a determination under s 426A of the Act. The RRT was entitled to proceed in the way in which it did. 16 In this Court the applicant handed up a document styled: 'Applicant's submission' which I will have placed with the papers. I will not attempt to summarise the content of that submission in these reasons. It is sufficient to say for present purposes that it contains a number of unsubstantiated assertions which are entirely lacking in particularity. Some of the assertions impermissibly invite a merits review on the part of this Court of the RRT's decision. 17 There are, however, two new matters contained in the submission which I should address. The first is a submission that the RRT was guilty of actual bias. The only material relied upon in support of that claim is the decision itself. It is said that the RRT's ignoring of relevant evidence and its findings in the face of independent evidence are indicative of actual bias. It has not been established that the RRT ignored relevant evidence. All that has been established is that the RRT did not accept the applicant's claims. Nor has it been established that the RRT's decision was given in the face of independent evidence. The RRT itself invoked independent evidence which it described in support of the conclusion to which it came. 18 The second new ground is that the recent judgment of the High Court in Muin v Refugee Review Tribunal [2002] HCA 30 is said to be very relevant to the circumstances of the present case. Just how that is so, or just how that comes to be so, has not been explained. Nothing has been placed before me which could establish that the applicant was misled into thinking that the RRT had considered particular relevant information and, as a result, the applicant did not ensure that such information was placed before the RRT. The matters which need to be established in order to enliven the Muin principle were referred to by the Full Court of this Court in NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 293, and in particular at pars 24 and 26. The Muin principle does not exist in the air. It is only enlivened if the factual substratum on which the decision rests has been established by evidence. That is not something which has occurred here. In any event, speaking generally, the RRT appears to have relied upon more recent information than the information which was listed in Part B of the Delegate's decision. 19 The applicant has not demonstrated any error that could lead to the conclusion that the RRT failed to exercise or exceeded its jurisdiction, or that it had breached any of the Hickman provisos. The application should therefore be dismissed. 20 The Minister seeks an order that the application be dismissed with costs. The applicant says that he does not have any money and that he cannot afford to pay the Minister's costs. He has not placed any materials before me which establish that that is so, but I am content to assume that it is so. But that provides no reason for departing from the usual practice of ordering an unsuccessful applicant to pay the Minister's costs. 21 I therefore order that 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. Associate: Dated: 24 June 2003 The applicant appeared in person Counsel for the Respondent: Ms R Francois Solicitor for the Respondent: Clayton Utz Solicitors Date of Hearing: 17 June 2003 Date of Judgment: 17 June 2003