FEDERAL COURT OF AUSTRALIA S53 of 2002 v Refugee Review Tribunal [2003] FCA 1173 MIGRATION – application for an order nisi for constitutional writs – denial of procedural fairness – whether the applicant relied on letters sent by the Refugee Review Tribunal that it would have regard to certain documents before making its decision – whether Muin v Refugee Review Tribunal 190 ALR 601 assists the applicant in all the circumstances of this case Migration Act 1958 (Cth) s418(3) Muin v Refugee Review Tribunal 190 ALR 601 distinguished Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam 195 ALR 502 followed S53 OF 2002 v REFUGEE REVIEW TRIBUNAL AND MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 46 of 2003 BRANSON J 27 OCTOBER 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N46 of 2003 BETWEEN: S53 OF 2002 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: BRANSON J DATE OF ORDER: 27 OCTOBER 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for an order nisi for a writ of mandamus and a writ of certiorari be dismissed. 2. The applicant pay the costs of the second respondent. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N46 of 2003 BETWEEN: S53 OF 2002 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: BRANSON J DATE: 27 OCTOBER 2003 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 The applicant commenced this proceeding in the High Court of Australia seeking relief by way of constitutional writs in respect of a decision of the Refugee Review Tribunal ('the Tribunal') of 24 November 2000. By its decision the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ('the Minister'). The proceeding was remitted to this Court by order of Gaudron J made on 25 November 2002. The first respondent filed a submitting appearance. The second respondent appeared by legal representative to oppose the granting of the relief sought by the applicant. 2 The draft order nisi the subject of these proceedings sets out the following two grounds of review: '1. On 5 March 1998 an officer of the Department of Immigration and Multicultural Affairs ("the Department") made a decision refusing to grant the prosecutor a protection visa ("the Department's decision"). The prosecutor applied to the first respondent for review of the Department's decision. Section 418(3) of the Migration Act 1958 (Cth) provided at all relevant times that if an application for review is made to the first respondent the Secretary of the Department must give the Registrar of the first respondent various documents that are in the Secretary's possession or control and are considered by the Secretary to be relevant to the review of the decision. The documents referred to in Part B of the Department's decision were in the possession or control of the Secretary. It appears that the Secretary did not give a number of these documents to the Registrar, giving rise to a contravention of s 418(3). The contravention of s 418(3) gives rise to jurisdictional error of a type for which relief can be granted under Part 8A of the Migration Act as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 and the Migration Legislation Amendment Act (No 1) 2001. 2. By letter the first respondent invited the prosecutor to come to a hearing before the first respondent. The first respondent stated in the letter that it "has looked at all the material relating to your application". In fact, the first respondent had not looked at all the material relating to the prosecutor's application, giving rise to a denial of natural justice. Denial of natural justice is jurisdictional error of a type for which relief can be granted under Part 8A of the Migration Act as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 and the Migration Legislation Amendment Act (No 1) 2001.' BACKGROUND facts 3 The applicant, who is a citizen of Bangladesh, entered Australia on 12 January 1998 on a visitor visa. On 25 February 1998 the applicant applied to the Department of Immigration and Multicultural Affairs ('the Department') for a protection visa and on 5 March 1998 a delegate of the Minister ('the delegate') refused to grant the applicant a protection visa. 4 The applicant lodged an application with the Tribunal to review the decision of the delegate. 5 On 27 March 1998 the Tribunal sent a letter to the applicant acknowledging receipt of the application. The letter included the following: 'The Tribunal has asked the Department to send a copy of its documents about your case to the Tribunal. When we receive the Departments documents, the Tribunal will look at them along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour immediately. This is known as "review on the papers"' 6 By letter dated 12 January 2000 the Tribunal informed the applicant that it had 'looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone' and invited the applicant to attend a hearing before the Tribunal. 7 On 5 June 2000 the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. 8 The applicant sought judicial review of the Tribunal decision in the Federal Court and on 17 August 2000 the Court set aside the decision and remitted the matter to be redetermined by the Tribunal. The redetermination of the matter was undertaken by a differently constituted Tribunal. 9 By letter dated 13 September 2000 the Tribunal informed the applicant that it was ready to consider the applicant's case. The letter included the following: 'The Tribunal will now look at all evidence, submissions and other documents on the Tribunal file to determine whether it can make a decision in your favour immediately.' 10 On 21 September 2000 the Tribunal sent the applicant a letter which included the following statement: 'The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone.' 11 The Tribunal hearing was conducted on 17 October 2000. 12 On 24 November 2000 the Tribunal again affirmed the decision not to grant the applicant a protection visa. It is this decision of the Tribunal with which this proceeding is concerned. THE TRIBUNAL'S DECISION 13 The Tribunal noted that the applicant claimed to have joined the Chatra Shibbir ('CS'), the student wing of the Jamaat-e-Islami ('JI') as a student and to have been elected as the organising secretary of the school committee shortly thereafter. The Tribunal further noted that the applicant claimed to have been 'a renowned student leader' in the district and to have become a 'well known political leader in his area'. The applicant based his claim to be entitled to a protection visa upon his fear, as he asserted, that if he returned to Bangladesh he would be attacked and possibly killed because of his political activities. He claimed that a large number of false cases had been filed against him in Bangladesh. He further claimed to have been attacked by hooligans from the Bangladesh National Party ('BNP') and the Awami League ('AL'). 14 The Tribunal took the view that '[t]he applicant's evidence in relation to most aspects of his claims was vague, unconvincing, contained significant internal inconsistencies and was inconsistent with the independent information'. It concluded that the applicant was not a truthful witness. Most importantly, the Tribunal did not accept that the applicant was, or ever had been, a member of JI or CS. It found that his evidence disclosed a basic misunderstanding and lack of knowledge of the character, political activities and ideology of the JI and CS. 15 The Tribunal concluded that documentation provided to it by the applicant in support of his claims was not genuine. It noted that two separate and contradictory sets of documents had been provided. The Tribunal concluded that the second set had been intended to rectify internal inconsistencies in the first set as well as inconsistencies between the documents and the applicant's evidence. The Tribunal drew support for its conclusion that the documentation was not genuine from independent material which indicated that there is a high level of fraudulent documentation provided by Bangladeshi asylum seekers. 16 Although satisfied that the applicant is a Bangladeshi national, the Tribunal was not satisfied of the truth of the story told by him. It was not satisfied that there was a real chance that he would be imprisoned or otherwise harmed in Bangladesh because of his political activities or his political opinion. For this reason the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. EVIDENCE BEFORE THE COURT 17 The applicant gave affidavit evidence that a migration agent, Mohammad Sirajul Haque ('Mr Haque') had acted on his behalf in all dealings with the Tribunal. He said that he received a number of letters from the Tribunal and that he relied on Mr Haque to read the letters and take appropriate steps. 18 It was conceded by the counsel for the applicant that the applicant's case therefore rests on the evidence given by Mr Haque, the applicant's migration agent. 19 By affidavit sworn 29 August 2003 Mr Haque at pars [5] and [7] gave the following evidence: '5. My usual practice upon receipt of such correspondence is to read them. I understand the terms…"The Tribunal has looked a [sic]all the material relating to your application and…". "The Tribunal will now look at all evidence, submissions and other documents on the Tribunal File" and "The Tribunal has asked the Department to send a copy of its documents about your case to the Tribunal…when we receive the Department's documents the Tribunal will look at them along with any other evidence, … . as meaning as follows a) Copies of all documents, including Country Information, quoted within the body of the Protection Visa would be requested by, forwarded to and examined by the First Respondent (Refer annexure "D"). b) That when a "Review on the Papers" had been conducted, the First Respondent would have looked at all relevant material, including Country Information, quoted in the decision of the Second Respondent (refer annexure "A"). c) Prior to a Review on the Papers being conducted the Tribunal would assemble and then look at all evidence, submissions and documents, including Country Information, (refer annexure "B"). d) That subsequent to such Review, the relevant Country Information would have been thoroughly considered and attached to file for the purposes of the conduct of a formal hearing. … (7). Had I known at the relevant time that the Tribunal had not considered such material I may have advised a) To implement a Freedom of Information application to obtain Country Information to identify favourable parts that supported the Prosecutor's claims, and to produce such material to the Tribunal. b) To search for, obtain and produce other Country Information (not that which was referred to) seeking to challenge extract parts of the Country Information used. c) Vigorously sought to persuade the Prosecutor to retain the services of myself and/or the services of a lawyer to amplify the importance of either favourable parts of County Information or other Country Information independently obtained and to enable a more effective challenge.' 20 Mr Haque's evidence under cross‑examination was not easy to follow. However, he clearly said, and subsequently confirmed a number of times, that the documents referred to in paragraph 5(a) of his affidavit were the documents referred to in the applicant's protection visa application. He also gave evidence that the documents that he understood that the Tribunal would consider, as referred to in paragraph 5(b), (c) and (d) of his affidavit, were the documents referred to in paragraph 5(a). However, later evidence given by Mr Haque is impossible to reconcile with his affidavit evidence if his affidavit is so understood. No relevant documents were referred to in the applicant's visa application. 21 I do not think that is useful to analyse Mr Haque's evidence further. The clear impression created in my mind by Mr Haque's evidence taken as a whole was that he was anxious to assist the case of the applicant but had little, if any, actual recollection of the applicant's case or of his understanding at the relevant time of the letters sent by the Tribunal to the applicant. I am not satisfied that Mr Haque, when initially reading the Tribunal's letters concerning the applicant, ascribed any particular meaning to those aspects of the letters that are now relied upon. Had he ascribed any particular meaning to those aspects of the letters, he would now be able to articulate that meaning more coherently. I conclude that it is more likely than not that at the relevant time Mr Haque simply failed to turn his mind to what was intended to be conveyed by the aspects of the letters now relied upon. 22 I am not satisfied that Mr Haque was misled by the letters or any of them. Further, I am not satisfied that, if Mr Haque had turned his mind to the question of whether all of the material relating to the applicant's application that had been considered by the delegate had been looked at by the Tribunal, and had concluded that it had not, he would have taken steps to provide additional information to the Tribunal. Even with the benefit of hindsight Mr Haque did not identify any relevant additional information or even the type or types of information that he would have searched for. 23 However, for the reasons given below, even if I were satisfied that Mr Haque was misled by the letters, and if not misled would have acted differently, the outcome of this application would be unchanged. GROUND 1 24 Counsel for the applicant, Mr Zipser, did not address the first ground in the draft order nisi set out at [2] above in his written submissions. The ground was not however formally abandoned. At the hearing Mr Zipser declined an invitation to address that ground in his oral submissions. In my view, ground one has been practically abandoned. In any event, no failure by the secretary to comply with s 418(3) of the Act has been established. Even if it had, it does not follow that the applicant would be entitled on that ground to the relief that he seeks (Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601 ('Muin') per Gleeson CJ at [21]; Gaudron J at [56]-[57]; Gummow J at [173]-[179] and Hayne J at [251]). The applicant's case rests on the second ground of the draft order nisi. ground 2 25 In written submissions Mr Zipser characterised the applicant's case in the following way: 'The applicant says that he was misled by the letters from the RRT to him dated 27 March 1998 and 12 January 2000 into believing that favourable documents which had been before the Minister's delegate would be given to the RRT. The applicant says that the documents were not given to the RRT. As a result, he was denied procedural fairness.' 26 At paragraph [17] of his written submissions Mr Zipser extracted material from the Country Information documents, which he characterised as favourable to the applicant's claim to be entitled to a protection visa, which were referred to in the delegate's Part B documents, but not apparently considered by the Tribunal. The document titles and the favourable extracts consist of the following: '(a) In Country Information Report No 235/96 (CX 15506) dated March or April 1996 it is stated: "The Awami League, the Jatiya Party and the Jammat-e-Islami have not been in the Parliament for over two years, yet they have no problem holding the country to ransom." (b) In the United States Department of State Country Information Reports on Human Rights 1995 "Bangladesh" it is stated in Section 3 (titled "Respect for Political Rights: The right of citizens to change their government") it is stated: "The most significant opposition parties are the Awami League, the Jatiyo Party and the Jamaat-e-Islami, the major Islamic political party". (c) In a document titled "Violence hits Bangladesh election campaign" dated 11 May 1996 it is stated: "Police said at least 50 people were injured during clashes between supporters of Khaleda's Bangladesh National Party and fundamentalist Jamaat-e-Islami.' Significantly, as is mentioned above, Mr Haque did not give any evidence touching on this material. 27 The applicant relies on the High Court's decision in Muin. The High Court in Muin held that the plaintiff was denied procedural fairness in circumstances where the plaintiff relied on a misrepresentation that the Tribunal would have regard to the delegate's Part B documents before making its decision (see Gaudron J at [63]; Gummow J at [171]; Kirby J at [201]; Hayne J at [257] and Callinan J at [309]). 28 Even if it be assumed that Mr Haque was misled by the letters sent by the Tribunal on 27 March 1998 and 12 January 2000, I do not consider that Muin assists the applicant in the circumstances of this case. First, the decision of the Tribunal was firmly founded on its adverse view of the applicant's credibility. The material identified in [26] above does not touch upon the factors which caused the Tribunal to take an adverse view of the applicant's credibility. Secondly, Mr Haque's evidence does not establish that the alleged misrepresentations made any material difference. Mr Haque did not give evidence that he would, as opposed to might, have taken any steps had he not been misled. Nor did he give evidence to support the suggestion that a step that he might have taken was to draw the Tribunal's attention in some way to the material identified in [26] above. 29 The applicant has therefore failed to show that there was any relevant practical unfairness to the applicant flowing from the Tribunal's letters (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam 195 ALR 502). conclusion 30 In all the circumstances of this case the applicant has failed to make an arguable case for the grant of the order nisi which he seeks. No order nisi calling on the respondents or either of them to show cause should, in my mind, be made. 31 The application for an order nisi for a writ of mandamus and a writ of certiorari is dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 27 October 2003 Counsel for the Applicant: Mr B Zipser Solicitor for the Applicant: Adrian Joel & Co Counsel for the Second Respondent: Mr A Markus Solicitor for the Second Respondent: Australian Government Solicitor Date of Hearing: 1 September 2003 Date of Judgment: 27 October 2003