NAUG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1595

FEDERAL COURT OF AUSTRALIA

NAUG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1595 NAUG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N904 OF 2003 HILL J 15 DECEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N904 OF 2003

BETWEEN: NAUG

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HILL J

DATE OF ORDER: 15 DECEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent Minister's costs of it. 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 N904 OF 2003

BETWEEN: NAUG

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HILL J

DATE: 15 DECEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of Nigeria who arrived in Australia on 3 September 2001. Shortly thereafter he applied for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the provisions of the Migration Act 1958 (Cth) ("the Act"). That application was refused and the applicant then applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. It is a criterion for the grant of a protection visa that the applicant be a person to whom the Minister is satisfied Australia has protection obligations under the Convention relating to the Status of Refugees, done at Geneva on 28 July 1951, as affected by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967 ("the Convention"). 2 A person will generally speaking be a person to whom Australia has protection obligations if that person is a refugee within the meaning of Article 1A(2) of the Convention. It was the applicant's claim that he had been associated with the Movement for the Actualisation of the Sovereign State of Biafra ("MASSOB"). He claimed that in February 2000 he had been arrested and detained but had then escaped. 3 He claimed to be a founding member of MASSOB and during his university education to have held leadership positions. He subsequently after graduation became a pharmacist. He claimed that he had become ultimately assistant national campaign manager for MASSOB in which position he had visited Benin, Ghana, Togo, Zimbabwe, Botswana and South Africa seeking to create awareness and support for MASSOB. He claims that his prominent position with MASSOB internationally and as leader at a local and national level gave rise to a well founded fear of persecution for a reason referred to in the definition of refugee in the Convention. 4 Since arriving in Australia he has worked with homeless men at the Matthew Talbot Hostel and studied part-time to obtain registration in Australia as a pharmacist. 5 The application to this Court, which is an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) made applicable to the present case by section 475A of the Migration Act 1958 (Cth) set out no ground demonstrating jurisdictional error such as would found relief under s 39B. At the outset of the hearing before me the applicant indicated the nature of the case he wished to make and sought leave to file in Court and read an affidavit he had sworn dated 11 December 2003. 6 As a result of matters raised by the applicant I gave leave to amend the application to show as grounds for relief the following. (1) That the applicant had been denied natural justice by the Tribunal in that the Tribunal had interrupted him and not allowed him to express his case and had conducted the review in such a way as to cause the applicant to become tense and not able to express the case he wished to bring. (2) That the Tribunal did not hold a real review of the decision of the respondent Minister refusing to him the grant of a protection visa because of the manner in which the Tribunal had conducted itself and which is referred to in the ground dealing with natural justice. (3) That the Tribunal had approached the hearing in a manner which was biased. 7 The affidavit which the applicant sought to read exhibited the tapes of the proceedings before the Tribunal and claimed that the hearing which had been conducted was not a fair one. The affidavit sought in summary form to deal with the manner in which the Tribunal had questioned the applicant concerning his non involvement in Australian politics or in politics in Australia and dealt also with questioning by the Tribunal of the applicant concerning his obtaining in Australia a Nigerian passport. 8 To the extent that the affidavit sought to indicate what the applicant would have said had the questioning taken another course I permitted the affidavit to be read but not as evidence of the correctness of the answers which the applicant said he would have given. Counsel for the Minister had no objection to this course. 9 The affidavit concluded by the applicant saying that the way the proceedings had been conducted by the Tribunal had caused him to become "tensed up and more anxious". The applicant said that he felt that the Tribunal member was not being fair and would not listen to the applicant. He said that he could not co-ordinate his argument and put his case clearly and that had the Tribunal member listened to him the applicant would have taken more time to answer the Tribunal's questions. He perceived that the Tribunal member was arguing with him and in consequence the applicant said he forgot what he wanted to say and indeed argued back and became confused. 10 I listened to the tapes of the proceedings before the Tribunal paying particular attention to the questions which the Tribunal put concerning the non involvement of the applicant in politics in Australia and the ease with which the applicant had obtained a passport in Australia after he had lost his previous passport at Central Railway Station in Sydney. 11 There may well be cases where the conduct by a Tribunal member is such that an applicant is denied natural justice. It is a requirement of natural justice or procedural fairness as it is more accurately called that an applicant be given the opportunity to put his or her case. If the conduct of a Tribunal member is such that the applicant is denied that opportunity then the applicant will have demonstrated a jurisdictional error such as to found relief under s 39B of the Judiciary Act 1903 (Cth). 12 It is but another way of putting that proposition to say that the obligation of a Tribunal member is to conduct a real review of the decision of the Minister and that if it is shown that the Tribunal member's conduct is such that an applicant is not given the opportunity of putting his or her case then the Tribunal will not have conducted a real review. 13 Finally it can be said that there may well be jurisdictional error if there is legal bias on the part of a Tribunal member. In law actual bias is established in a case where the decision maker approaches his or her task with a closed mind. I should say at the outset that there is nothing in the tapes which I've heard which in any way indicates the Tribunal member in the present case approached the matter with a closed mind and indeed while it may be said that while the Tribunal member at times questioned the applicant vigorously, the approach of the Tribunal member indicated if anything that his mind was open and that he was prepared to listen to the answers of the applicant. 14 It is clear that the proceedings in the Tribunal will be stressful for an applicant, while no doubt the effects of that stress may vary from applicant to applicant it is not difficult to understand that many applicants will be tense during the course of a hearing and perhaps have difficulty in expressing the case they wish to put. No doubt the difficulty of an applicant will be exacerbated by any language difficulty which the applicant may have. I should say here that the applicant's English is very good but no doubt he too has difficulty from time to time, not only perhaps in understanding which is said to him but also in expressing clearly what he wants to say. 15 As I have already noted, the Tribunal member conducted the interview at times forcefully. The procedure before the Tribunal is inquisitorial and not adversarial. Sometimes that may make the questions which the Tribunal member asks seem difficult to an applicant who is required to answer them. 16 The questions which the Tribunal member put concerning the non participation of the applicant in political activity in Australia came about because the Tribunal member had a concern which he expressed that a person who had been, as the applicant claimed, very active in promoting the affairs of MASSOB both locally and internationally would continue to do so in Australia. The applicant may or may not at the outset have thought that the Tribunal member was asking questions about Australian party politics, although the tapes do not suggest that this was so. 17 It is not for this Court to substitute its views for that of the Tribunal. Personally I can understand that a person who had fled Nigeria and came to Australia might well prefer the peace and quiet of this country to the cut and thrust that might perhaps exist in Nigeria, but it was certainly for the Tribunal member to determine what if any weight he would put upon the conclusion that the applicant, while in Australia, had really not participated in anything more than some casual discussions with acquaintances here. 18 The questions concerning the passport were directed at another concern of the Tribunal member, namely that a person who had apparently been arrested in Nigeria and escaped custody there, but not apparently charged with treason, would advise the authorities in Nigeria that he was in this country by requesting a passport. The applicant sought to convince the Tribunal member that he had a right to a passport and took the view that at least he was in no real danger applying for a passport from this country. 19 I had some difficulty with the Tribunal's express understanding of the law of extradition, however, I am not able to say whether what the Tribunal member said on that topic in any way affected his ultimate decision. Certainly there is nothing in the Tribunal's published reasons which suggest it did. 20 In summary, the Tribunal member questioned the applicant forcefully. The Tribunal member's questions were often repetitious, and as I said, I can well understand that a person faced with the questions could be tense and perhaps have difficulty responding in the way that person might wish to respond, but it is one thing to say that and another to say that the applicant has, in the present circumstances, demonstrated that there was a denial to him of procedural fairness in that he did not have an opportunity to put to the Tribunal member his case. Certainly he was invited to on a number of occasions to say anything he wished and there is nothing in the tapes that suggested that he was unable to avail himself of this opportunity. It follows that the suggestion that the Tribunal did not conduct a real review must, for the same reason, fail. 21 In the circumstances, the application must be dismissed. I will order the applicant to pay the respondent's 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 Hill.