NAMD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 874

FEDERAL COURT OF AUSTRALIA

NAMD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 874 NAMD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 395 of 2003 ALLSOP J 18 AUGUST 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 395 of 2003

BETWEEN: NAMD

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 18 AUGUST 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the application be dismissed; 2. the applicant to pay the costs of the respondent; 3. the time for filing any notice of appeal in respect of these orders be extended to a time 21 days after the date of dispatch by the associate to Allsop J of these settled reasons to the parties, which day will be identified in the last paragraph of the settled reasons. 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 395 of 2003

BETWEEN: NAMD

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE: 18 AUGUST 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT

1 This matter involves an application under s 39B of the Judiciary Act 1903 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth) in respect of the decision of the Refugee Review Tribunal (the Tribunal) made on 26 February 2003 in which the Tribunal affirmed the decision of the delegate not to grant a protection visa to the applicant. The applicant has appeared unrepresented, although the application filed indicates some degree of familiarity by the draftsperson with the relevant application. 2 The application itself sets out some factual background to the matter as follows: The Applicant was in the Detention Centre at Villawood on 26 February 2003. During the time the Applicant applied for a Bridging Visa on the basis of his pending application at the Refugee Review Tribunal and he was approved for a Bridging Visa E with the security bond of $5000.00 and that he was expected to lodge security money on the 26th February 2003 being the last date for lodging with the Department of Immigration and Multicultural and Indigenous Affairs. The applicant was suffering from flu during that period and he sent a request through facsimile explaining his situation and requested for postponement of the hearing for 26 February 2003. The tribunal refused to grant the postponement as requested by the applicant and made a decision instantly on the 26 February 2003 adverse to the applicant. 3 The applicant asked for prohibition, an injunction, a writ of mandamus and a writ of certiorari. The grounds of the application are set out in ten paragraphs as follows: 1. The Tribunal erred in law amounting to jurisdictional error in finding that the applicant did not and does not have a genuine fear of persecution and that he has no well-founded fear of persecution. 2. Exceeded its jurisdiction in making its decision to affirm the Respondent's decision; 3. Constructively failed to exercise its jurisdiction in arriving at its decision; 4. It is clearly shown that the Tribunal Member denied the applicant an opportunity to be present and be heard at the hearing on 26th of February 2003 by refusing to grant an adjournment when requested by the applicant due to his ill health while he was in the Villawood Immigration Detention Centre. If the applicant would have been given an opportunity to appear and answer his claims it could have led to a different decision, therefore there is a jurisdictional error. 5. The Tribunal failed to perform the duty imposed on it by the Migration Act (section 425(1)) to decide the applicant's case on the material put to it and by conducting an appropriate enquiry there on. 6. The Tribunal by denying the opportunity of the applicant to be present and heard at the hearing on 26th February 2003, the tribunal had not fully listened to the claims and explanations the applicant wish to put, thereby the Tribunal declined to exercise its jurisdiction and failed in its duty. 7. The refusal to grant an adjournment for the applicant to be present and explain his claims is a significant one as it impaired the applicant's ability to respond to the adverse information at the hearing. 8. The said decision of the Tribunal was made by the Tribunal was not a bona fide attempt to act in the Tribunal's authority. 9. The Applicant is entitled to a Protection Visa, which he has applied; 10. The Applicant have a well founded fear of persecution in the country of his nationality i.e. Bangladesh. 4 Notwithstanding the width of the apparent grounds it would appear that the only particularised ground is the failure to adjourn the hearing. This is put in [4], and inferentially [5], [6] and [7]. 5 The allegation of lack of bona fides in [8] is not supported by any particulars or any submission. With the greatest respect to the person who assisted the applicant to draft that paragraph it simply should not have been included in this application. The allegation of the lack of bona fides is a serious matter to raise against any Tribunal and it is not one to be raised in the absence of any apparent ground and any particulars whatsoever. I do not criticise the applicant personally for including [8]. He is not legally trained and almost certainly does not understand the seriousness of the allegation in [8]. 6 For the benefit of the person who apparently assisted in the preparation of this document it should be understood that allegations of lack of bona fides are very serious allegations to make. Given the shortness of the hearing and the lack of any real time taken up in dealing with the question of lack of bona fides, the occasion does not arise for the consideration of any special order for costs against the person responsible for the inclusion of that allegation. 7 I will now return to the substance of the matter. 8 The applicant is a citizen of Bangladesh who arrived in Australia on 29 July 2000. He is 23 years of age. Upon the expiry of the visa which the applicant had upon his arrival, the applicant, on 6 December 2002, lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (the Act). 9 The applicant provided a statement in support of his claim for a protection visa. The statement was some six pages long. The essence of his claim was that he was attacked by a group of BNP thugs in 1999 and that that occurred because of his political affiliations in Bangladesh. In late 1998 he said that he had been elected as the executive member of Dakhar City Committee of the "Jatio" Party student wing, and that he had participated in demonstrations against the Awami League and the BNP. Thus his claim for protection visa was one founded on his apparent fear of persecution for political reasons. He also indicated that he was a supporter of the feminist writer Taslima Nasrin and he indicated that Muslim fundamentalists were targeting him because he was a member of a Taslima Nasrin fan club. 10 Paragraph 19, being the second last paragraph of the applicant's statement, was in the following terms: If I return to my living country - Bangladesh now, there exists the following measures, in particular besides other unforeseen evens [sic]: 1. Death in the hands of BNP thugs. 2. Arrest by the BNP coalition government Police and I would remain in the jail Custody and torture without any trial. 3. The Bangladeshi terrorists will kill me. For safe of my life I do not have any other alternatives. 11 The applicant had also asserted that there had been false charges brought against him by the authorities at the behest of his political opponents. 12 The delegate of the minister refused a protection visa. The matter came before the Tribunal. The Tribunal refused to give a protection visa on the papers alone and on 7 February 2002 it wrote to the applicant informing him that it was unable to make a favourable decision on the papers and invited him to a hearing on 26 February. At this stage the applicant was in immigration detention. 13 On 24 February the applicant wrote to the Refugee Tribunal. The letter stated the following: …unfortunately, Wednesday, 26 February 2003 is my last date to pay my bond money for bridging visa and I can't extended [sic] that date. So I might be unable to attend the hearing. And I (am) also expecting some papers for my RRT (hearing) from my country but I didn't get yet. So, if you consider all this matter and change the hearing date one month or couple of weeks it will be really helpful for me. 14 The Tribunal responded to this request on 25 February, the day before the hearing, by saying that the member hearing the matter did not regard the applicant's reasons as sufficient to justify the postponement of the hearing. The hearing went ahead on 26 February 2003 at 10.00 am. The applicant did not attend. 15 The applicant submitted before me that there were a number of reasons for his non-appearance at the Tribunal. It was the last day for paying his bond money for the bridging visa (a matter raised with the Tribunal). He indicated before me that he attempted to change that date for payment of the bond money but could not. The applicant also indicated to me this morning that he was sick on 21 February and that he called by telephone to indicate to the Tribunal that he was sick. 16 The unwillingness of the Tribunal to accede to these requests for an adjournment was a discretionary decision in the conduct of the hearing which, on the material before me, was one which was open to be made. Whether or not I would have given the applicant a week or two is neither here nor there. The Tribunal, no doubt, took the view that the fact that some money had to be paid on or before 26 February did not mean that the applicant was unable to attend the Tribunal hearing at 10 am on 26 February. 17 An unsubstantiated assertion of further papers without any identification as to what significance they may have, as contained in the facsimile of 24th, and an assertion of being ill late in the piece, shortly prior to the schedule day for hearing, were not in total, compelling grounds as to why the applicant should not attend this most important hearing for him. 18 I do not see any error of principle in the approach of the Tribunal. Furthermore, s 422B of the Migration Act makes clear that the Division of the Migration Act 1958 (Cth) in which it appears is exhaustive of the requirements of natural justice. There is no assertion that by refusing an adjournment on material which was open to the Tribunal so to act, that there was otherwise a breach of any statutory provision, in that Division or otherwise in the Act. 19 There are no particular complaints raised by the applicant in relation to how the Tribunal otherwise dealt with his application. The grounds of the application, which I have set out above, are singularly unhelpful in identifying any particularity of complaint. They are what might be referred to as usual allegations of lack of jurisdiction. Of themselves they tell one nothing as to why there was jurisdictional error; as to why there was a constructive failure of jurisdiction; as to why the Tribunal failed to perform the duty imposed on it to decide the applicant's case on the material put to it and why, as I have said earlier, there was a lack of bona fides. 20 I have carefully examined the reasons of the Tribunal. After the customary introduction to the legislation and definition of, refugee, the Tribunal dealt with the claims and evidence of the applicant. These matters were dealt with carefully on pages 4, 5, 6, and 7 of the reasons. It should be recognised that the Tribunal was dealing with the matter on the material that had been submitted to it. 21 On pages 8, 9 and 10 of the reasons, the Tribunal examined and dealt with the relevant country information. Then, from pages 10 through 15, the Tribunal made its findings and explained its reasons. It first dealt with its refusal to grant an adjournment. The reasons for that are set out on pages 10 and 11. As I have said earlier, I see no error of principle or approach in the Tribunal in the way it approached the matter. 22 On page 11 of the reasons, the Tribunal emphasised the opportunities that the applicant had had to put forward what he wanted to the department and to the Tribunal. At pages 11 and 12, the Tribunal noted the late raising of the claims for protection. The applicant sought to explain this before me today on the basis that he had a visa until 2002 and so did not need to make an application for a protection visa. I think the point the Tribunal was making was that if the application for protection was a valid one, it may well have been made earlier, given the likelihood of the expiry of a student or other visa in the ordinary course by the effluxion of time. 23 From page 12 onwards, the Tribunal dealt with the claims which had been made by the applicant in the various papers before the Tribunal. 24 On page 14 of its reasons, the Tribunal concluded that in view of the applicant's behaviour in continuing to live in Dhakar, and the manner of his departure, that is, lawfully on a visa, it saw no reason to suppose that the applicant was being, or would be, pursued by his opponents or the police. However, the Tribunal identified two matters to take into account if it was wrong in that earlier conclusion. 25 The first of those matters was country information on the Jatiya Party, which led the Tribunal to conclude that the governing BNP is now on good terms with or is at least neutral towards the Jatiya Party. Secondly, other country information about law and order led the Tribunal to conclude that the applicant would secure justice through the superior courts in Bangladesh. 26 The Tribunal then went on to deal with the gaps in time between the attack in 1999, the obtaining of the passport in May 2000, leaving Bangladesh in July 2000 and the application for the protection visa in December 2002. The Tribunal then indicated the following: The very large gaps between each of these events, especially the gap between his departure and his application, lead me to conclude that he was not in fear of persecution in Bangladesh when he was in Bangladesh or when he left Bangladesh or when he was in Australia. The fact that he did not apply for a protection visa until well after he was detained is particularly revealing. I believe that if he genuinely feared persecution he would have done everything possible to obtain appropriate protection under the Convention at the earliest possible opportunity, including after arrival in Australia, not only for his peace of mind but also for the peace of mind of his family back in Bangladesh. 27 Bearing in mind the essential process of the task of the Tribunal, that is, to be satisfied of the obligations of Australia in relation to protection obligations, this approach of the Tribunal appears to me to be without apparent error. 28 The Tribunal also said that the fact that the applicant was now out of Bangladesh for almost three years since his departure is another reason to suppose that any danger to him has been exaggerated or fabricated in his claims. 29 In conclusion, the Tribunal, having considered the evidence as a whole, stated that it was not satisfied that the applicant is someone to whom Australia has protection obligations under the Refugees Convention and so it was not satisfied that the criterion set out in subs 36(2) of the Act for a protection visa had been satisfied. The Tribunal then affirmed the decision of the Delegate. 30 I do not ascertain any apparent error of approach, jurisdictional or otherwise, of the Tribunal in its treatment of the material. I see no error in the approach by way of principle of the Tribunal in handling the application for the adjournment. I see no basis to conclude that the question of the adjournment or any other matter vitiated the Tribunal's decision to warrant any intervention whatsoever under s 39B of the Judiciary Act 1903 (Cth)or any other basis for relief which could be conceivably mounted. 31 For these reasons the order of the Court will be as follows: 1. the application be dismissed; 2. the applicant to pay the costs of the respondent; 3. the time for filing any notice of appeal in respect of these orders be extended to a time 21 days after the date of dispatch by my associate of these settled reasons to the parties, which day will be identified in the last paragraph of the settled reasons. 32 Paragraph added on settling of these reasons: The date of dispatch of reasons was Friday 22 August 2003.