NAOL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 840

FEDERAL COURT OF AUSTRALIA

NAOL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 840 NAOL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 499 OF 2003 JACOBSON J 30 JULY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 499 of 2003

BETWEEN: NAOL

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 30 JULY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant 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 499 of 2003

BETWEEN: NAOL

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE: 30 JULY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT Introduction 1 This is an application for review of a decision of the Refugee Review Tribunal ("the RRT") delivered on 25 March 2003 affirming a decision of a delegate of the Minister refusing to grant the applicant a protection visa. The RRT's decision was given on 25 March 2003 at the conclusion of an oral hearing held on that day. The decision of the delegate which was affirmed by the RRT was given on 20 June 2001. The decision of the RRT 2 The applicant is a citizen of Bangladesh. He claimed to have a well-founded fear of persecution on political grounds. He claimed to be a member of the Bangladesh Freedom Party ("FP") and that most of the senior members of it were in gaol and had been sentenced to death. He claimed that, on 14 April 2001, he attended a meeting where a remote controlled bomb exploded and nine people were killed and thirty injured. The applicant claimed that if he returned to Bangladesh, he would be persecuted either by members of the police or by members of a rival political party. 3 The applicant tendered in evidence before the RRT documents which he claimed were arrest warrants for a number of false cases brought against him in Bangladesh. 4 The RRT stated that it had carefully considered the applicant's claims and evidence and did not accept as true his claims of having been a member and supporter of the FP. The RRT considered that his claims were fabricated and that he was not a credible witness. 5 The RRT stated that it was obvious from what took place at the oral hearing that the applicant knew virtually nothing about the FP other than the names of its prominent leaders. He did not know that it had a newspaper and he did not know the name of its youth wing. There were a number of other important details about the FP of which the applicant was unaware. 6 The RRT reiterated what it had already said about its rejection of the applicant's claims in the following passage:- "I have carefully considered the evidence given in this matter and the independent evidence and would have expected someone of the claimed association with and involvement in the Party as claimed by the applicant to have known of the matters I discussed with him, the fact that he knew virtually nothing of the Party, its personalities and of the June 1996 elections indicates to me that his claims of association with and membership of the Freedom Party are fabricated. I do not accept any of his claims as being true. I find that he was not a credible witness." (CB 103-104) 7 The RRT found that the documents which the applicant had claimed to be arrest warrants were in fact fabrications. One of the documents related to an incident which allegedly occurred on 5 December 2000 whereas the incident which the applicant described in his original application was said to have occurred on 14 April 2001. The other two documents were found by the RRT to be near verbatim copies of one another with crude attempts to change the order of the names and addresses of the persons charged and of the witnesses. 8 The RRT stated that, overall, it found that the applicant did not have a well-founded fear of persecution for reasons of a Convention ground. The RRT concluded by stating that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Convention or the Protocol. 9 It is plain that the applicant was unsuccessful because of the view which the RRT took of the facts and, in particular, its finding that the applicant was not a credible witness and that his claims and documents were fabricated. These findings were open to the RRT for the reasons which it gave. 10 The applicant appeared before me in person when the matter was called on for hearing on 8 July 2003. He sought an adjournment which I refused. He addressed me briefly on that morning. His only submission was that the RRT had given its judgment immediately after the conclusion of the hearing and had not properly considered the application. I understood this to be a submission that the RRT was guilty of actual bias. This was consistent with the terms of his application filed on 22 April 2003 in which bias is alleged. 11 Bias is a serious allegation. As von Doussa J said in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38], it will be a rare case where actual bias is demonstrated solely on the published reasons for decision. This is not such a case. There is nothing to suggest that the RRT's mind was closed. The mere fact that the decision was given at the conclusion of the hearing cannot possibly give rise to such a finding. 12 Courts regularly give ex tempore judgments. That does not indicate bias. It merely indicates that the trier of fact or law was in a position to decide all of the issues immediately after hearing the evidence and argument. The position is no different in an administrative tribunal. 13 At the conclusion of submissions made by counsel for the Minister on 8 July 2003, I stood the matter over until today to enable the applicant to have a conference with counsel who had been appointed pro bono under the Court scheme. I took this course because the applicant had put to me as a ground for his adjournment application that he had not been able to obtain the advice ofcounsel before the commencement of the hearing. In fact, the position was that counsel had appointed a conference but the applicant had not attended. He told me that the reason he had not done so was that he did not realise the advice was free. 14 Although I did not regard what the applicant said as entirely satisfactory, I took the view that the better course was to give him an opportunity to obtain advice assuming counsel was still willing to provide it. 15 Prior to the resumption of the hearing, I received a written outline of submissions from the applicant dated 28 July 2003. He states that he had a conference with counsel, on 21 July 2003. The submissions state that the applicant received only an undated letter from counsel stating that:- "He was unable to obtain a Bengali interpreter from the Translating Interpreting Service. This of course is a significant qualification on any view he expresses, as he was limited in his ability to adequately converse with me at the conference." 16 However, my associate received a letter from the applicant's counsel by fax on 28 July 2003. The letter confirms that no interpreter was available. But it concludes with the following statement:- "Nevertheless I am satisfied that [the applicant] understood what I had to say, though our ability to communicate as to technical matters was limited." 17 This letter was provided to the applicant in the course of the hearing today. I asked him whether he had any comment on it and in particular whether he wished to say anything about the passage quoted. His only response was to make scandalous and unsupported allegations against his counsel. 18 I am satisfied that the applicant has had adequate opportunity to put before me any matter which can properly be put in support of his application. 19 The applicant's written outline sets out his submissions which are said to contain grounds of jurisdictional error which overcome the effect of the privative clause contained in s 474 of the Migration Act. 20 The submissions cover much of the ground which was before me on 8 July 2003 in the application and a supporting affidavit. The written submissions take the matter no further than the application or the affidavit but contain allegations in very general terms. The submissions repeat the allegation of bias which I have dismissed for the reasons set out above. 21 There are also serious but entirely unsupported allegations that the RRT member acted as a prosecutor, breached UNHCR procedures for determining refugee status and that the RRT failed to make a bona fide attempt to carry out its duties. These allegations are also dismissed. 22 The applicant's submissions contend that there was a breach of procedural fairness, apparently on the ground that the RRT did not permit him to give evidence in accordance with s 425 of the Act. 23 No transcript of the RRT hearing was tendered to support this allegation and the detailed section of the RRT's decision under the heading "Claims and Evidence" would appear to me to indicate that the RRT fully complied with the provisions of s 425 of the Act. 24 There is a further claim in the written submissions which may be thought to be a submission of a denial of procedural fairness. The applicant contends that the RRT's failure to grant him an adjournment which he sought on the hearing of his application on 25 March 2003 in order to submit explanations in reply to adverse materials impaired his ability to respond to adverse information at the hearing. 25 However, there was no evidentiary foundation for this claim. There was no affidavit evidence in support of such a contention. Nor, as I have said, was the transcript of the hearing tendered. This was so notwithstanding the fact that the same allegation was made by the applicant in his application which was before me on 8 July 2003 and on which date Mr Reilly, counsel for the respondent, specifically drew the applicant's attention to the fact that no transcript had been tendered. 26 Moreover, no evidence was put before me to support a contention that the result could have been different if the RRT had granted an adjournment. 27 There are no other grounds in the applicant's outline of submissions which could possibly amount to jurisdictional error. 28 When the matter was before me today I asked the applicant whether he wished to say anything in addition to his written outline. His response was to ask for a further adjournment. I refused an adjournment because in my opinion it is plain that the applicant has had ample time to prepare his case. 29 I am satisfied that this application is entirely without merit. 30 The orders I make are that the application is dismissed with costs.