NAJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1185

FEDERAL COURT OF AUSTRALIA

NAJQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1185 NAJQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 215 OF 2004 ALLSOP J 9 SEPTEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 215 of 2004

BETWEEN: NAJQ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 9 SEPTEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the respondent's 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 215 of 2004

BETWEEN: NAJQ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE: 9 SEPTEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from orders made by a Federal Magistrate on 4 February 2004 in which the Federal Magistrate dismissed an application made under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal ("the Tribunal") made on 30 December 2002, in which the Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the appellant. The Chief Justice has directed that the matter be heard by a single Judge of this Court. 2 The notice of appeal from the decision of the Federal Magistrate was as follows: 2. The Single judge of the Federal Magistrate Court in her Honors Judgment delivered on the 4 February 2004 failed to find error of law, Jurisdictional error Procedural fairness and relief under Section 39B of the Judiciary Act 1903. 3. The grounds and relief is very much similar with a recent High Court Judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). Catchwords: Immigration – Refugee – Protection visa – Decision by Minister to refuse application for visa – Review of decision by Refugee Review Tribunal – Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Register of Tribunal for purpose of review – nature and extent of obligation – Migration Act 1958 (Cth), ss 148(3), 424(1). 4. The Honorable trial judge erred in considering the real state of affairs of the applicant, the applicant feared harm. And also the present ruling government fail to protect civilians life, which is a worldwide concern today. Honorable Trial judge did not take it into consideration. 5. S474 of the Migration Act is ineffective as per the recent two decision of the High Court of Australia. Honorable trail judge did not consider this in favour of me. 6. The applicant will face persecution if she returns to his country of origin as there are significant level of violation of human rights, this was not considered by honourable judge. 7. Recent High Court judgement: Plaintiff S 157/2002 v Commonwealth of Australia [2003] HCA 1 (4 February 2003). 8. Recent Federal Court of Australia judgement: SGDB V Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 (14 February 2003) [errors in original] 3 It is necessary to understand that this is an appeal from the Federal Magistrate not a wholesale re-agitation of the application for judicial review, nevertheless, it is appropriate to understand the claims made for the application which was before the Federal Magistrate. These were as follows: 1. The Refugee Review Tribunal has not attended any evidence in relation to the applicant's claims and thus its decision is influenced by sufficient doubts. The applicants provided a suitable vehicle and most of the grounds relied upon facts and documents, which the tribunal did not consider. The RRT heavily depended in their handling of the issues based on the generalized facts and findings of DIMA. 2. The RRT failed to internalise the circumstantial; grounds of the review application while considering the claims of the review application and did not consider the supporting facts and documents. Therefore, the applicant seeks a review of the decisions of the Tribunal under s 39B of the Judiciary Act 1903 (Cth) and Migration Act 1958 (Cth). 3. The Tribunal's ignoring of relevant evidence and its finding in the face of contradicting independent evidence which indicated actual bias constitute jurisdictional error being a breach of procedural fairness which is an essential condition and of the exercise of the decision making power and attracts s 39B Judiciary Act 1903 as per Gaudron J in Abebe v commonwealth (1999)162 ALR 1 at 33 paragraph [113]. Thus, subject to the operation of discretionary factors, breach of those rules is a jurisdictional error which will ground prerogative relief. 4. The applicant is a genuine refugee under the UN Convention and sub-class 866 of the Migration Act 1958, but the authority has not considered applicants claims and he has been refused to remain in Australia permanently. The RRT has failed to investigate the applicant's claims, specifically the grounds of persecution, in Bangladesh. Therefore, the tribunal's decision dated on 30 December 2002 was affected by actual bias constituting judicial error. 4 The generality and lack of specificity of the original application is evident from its terms. The Federal Magistrate dealt with the matter as follows. Her Honour first examined the Tribunal decision commencing with an outline of the now appellant's claims for protection. In [3] of the reasons of the Federal Magistrate the following summary was set out. 3. The applicant claimed to fear persecution by reason of his political opinion in Bangladesh. He claimed to have been a leading member of the Jatiya Party and to have suffered false charges from members of the rival Bangladesh National Party (the BNP) and the Awami League in 1988 and 1989. He claimed for the first time at the Tribunal hearing to have been beaten by Awami League members in December 1989. After the BNP came to power they ordered his arrest. He feared for his life. He went to Kuwait in 1993 on an employment visa. He claimed that after the Awami League if he returned to Bangladesh. While in Kuwait he had renewed his passport at the Bangladesh Embassy. 5 The Federal Magistrate then proceeded to explain how the Tribunal had dealt with the matter and this is set out in paragraphs 4, 5 6 and 7 of the Federal Magistrate's reasons, which are in the following terms. 4. The Tribunal found that the applicant's pivotal claim to have been beaten in December 1989 was false. It had regard to the fact that the claim was not raised until one day before the Tribunal hearing, that the applicant by then introduced further detail to the story and that his claims in relation to injuries suffered were inconsistent with the description in a hospital document provided by him in support of his claim. The Tribunal rejected the submission by the applicant´s adviser that the claim had been referred to in the applicant's statutory declaration in a claim that he had become `subject to political suppressions by the political opposition alliance´. 5. As a result the Tribunal found that the authenticity of the documentation provided by the applicant in relation to the hospital admission and the nature of his wounds was false. Having regard to the credibility problems of the applicant in relation to the claimed beating and independent evidence in relation to document fraud, the Tribunal found that other photocopied documents (apart from those downloaded from the web) which had been provided by the applicant on 3 December 2002 were also false. 6. The Tribunal did, however, find that the applicant was a member of the Jatiya Party and was involved in political activities. However it found that he had a low political profile, that he was able to leave Bangladesh on his own passport and that he had lived overseas for almost a decade. Independent evidence in relation to the situation in Bangladesh did not suggest that the applicant would be targeted if he returned to Bangladesh. The Tribunal was not satisfied that there was a real chance in the future of the applicant being selected or targeted for persecution for reason of his political opinion. Furthermore, although two false cases were lodged against him, for the reasons referred to and because the higher courts in Bangladesh were said to display a significant degree of independence, the Tribunal was not satisfied on the evidence that there was a real chance in the future of these claims being tried against the applicant for his political opinion. 7. Considering all his claims, the Tribunal was not satisfied that the applicant faced a real chance of persecution should he return to Bangladesh now or in the foreseeable future. Hence it was not satisfied on the evidence before it that the applicant had a well founded fear of persecution for a Convention related reason. 6 The Federal Magistrate then, if I may say so respectfully, carefully and thoroughly dealt with the matters identified in the application before her Honour. In [8] of the Federal Magistrate's reasons, her Honour dealt with the claim that the Tribunal had not attended to the evidence in relation to the claims (being the matter referred to in [1] of the ground of appeal). The Federal Magistrate noted that no particulars of this claim had been provided and that insofar as it was alleged that the had failed to have regard to relevant considerations this had not been established on the material before the Court. 7 The Federal Magistrate was of the view that, contrary to the claim in the application, the Tribunal did consider the supporting information and documents submitted by the appellant but did not amongst other things accept the genuineness of the supporting documents. The Federal Magistrate noted that the appellant was unsuccessful because of the view the Tribunal took of the information and its assessment based on country information and the other factors referred to by the Tribunal that the appellant's claimed fears were not well-founded. 8 I find no error of approach in [8] of the Federal Magistrate's reasons. In reaching that conclusion I have had regard to the underlying reasons of the Tribunal. The considerations referred to in [8] of the Federal Magistrate's reasons also dealt with the assertion in ground 2 of the application of a failure to internalise the circumstances of the appellant's claims. 9 The Federal Magistrate then turned to the third ground of the appeal, being the allegation of actual bias. The Federal Magistrate was of the view that no proper grounds for such an allegation were present and this ground was rejected. There is no error whatsoever in the Federal Magistrate's approach to this question. 10 The fourth ground of appeal did not, on its face, require any attention by the Federal Magistrate since it did not identify any conceivable jurisdictional error. The Federal Magistrate then proceeded to deal with the appellant's written submissions. 11 I should add that in the introductory section of her Honour's reasons, the following appeared: As the applicant is self represented, I have considered not only the issues that he raises but also the material before me to determine whether there is any jurisdictional error. 12 The first matter considered by the learned Federal Magistrate was the submission that the Tribunal erred in failing to investigate the appellant's claims. The learned Federal Magistrate correctly said that the Tribunal was under no obligation to make inquiries though her Honour restricted the comments she made to the circumstances of this case. Her Honour was plainly correct in this regard. 13 The learned Federal Magistrate then dealt with the submission that the Tribunal did not complete the exercise of its jurisdiction as it made no findings as to what socio-political changes might occur in Bangladesh in the reasonably foreseeable future and failed to assess whether the appellant's fears of being persecuted for being a popular politician of Bangladesh were well-founded in the reasonably foreseeable future. 14 The learned Federal Magistrate correctly concluded that, contrary to this submission, the Tribunal did in fact consider the reasonably foreseeable future and that it concluded on the basis of a number of factors which were open to it that the appellant did not face a real chance of persecution should he return to Bangladesh now or in the foreseeable future. 15 The Tribunal then dealt with the appellant's complaints that the Tribunal did not provide him with particulars of information which formed part of the reason for the Tribunal decision. Particular emphasis was apparently placed before the magistrate on information that political persecution in Bangladesh had subsided. 16 The learned Federal Magistrate noted that this claim, which appeared to raise a complaint under s 424A of the Migration Act, or an assertion of lack of procedural fairness, foundered on the difficulty that the reasons of the Tribunal reflect that the Tribunal did provide the appellant with particulars of information about the present situation in Bangladesh. This was discussed with the appellant at the hearing. No transcript of the hearing was tendered before the Federal Magistrate. 17 The Federal Magistrate concluded, correctly in my view, that there had been no breach of s 424A or a lack of procedural fairness established in this regard. 18 From [12] onwards, the learned Federal Magistrate proceeded to deal with matters not specifically raised by the applicant, the appellant before this Court, which could possibly raise an argument as to the existence of jurisdictional error. The learned Federal Magistrate noted that the Tribunal rejected the appellant's claims referring to a number of factors, including the question of the prevalence of document fraud in Bangladesh. 19 The learned Federal Magistrate noted the existence of Full Court authority in the Federal Court that in some circumstances a Tribunal is under an obligation to put such information of document fraud to an applicant for comment consistently with its obligations to afford procedural fairness. The learned Federal Magistrate, however, noted that the reasons of the Tribunal indicated that the Tribunal put its concerns in this respect to the appellant, whose response, which is recorded in the reasons of the Tribunal, was that that was impossible and can not happen. On this basis the learned Federal Magistrate was of the view that there had been no denial of procedural fairness. 20 The learned Federal Magistrate then in [13] proceeded to consider the information which the Tribunal put to the appellant about the present situation in Bangladesh including the independence of the higher levels of the judiciary. 21 Thereafter the learned Federal Magistrate rejected any contention that the decision was illogical or that this was a ground of jurisdictional error. It is unnecessary to examine the correctness of this last proposition, because there is no apparent illogicality in the Tribunal's decision. 22 The learned Federal Magistrate concluded in relation to procedural fairness as follows in [14] of her Honour's reasons. This is not a case where claims were rejected on the basis of material which should have been put to the applicant (cf WAGU v MIMIA [2003] FCA 912). Critical issues were raised with the applicant. 23 Subject to the comment made as to the question of illogicality above, I find no error in the approach thus far of the learned Federal Magistrate. 24 The final paragraph of the reasons of the Federal Magistrate are as follows: 15. None of the applicant's other generally worded, but unparticularised, written arguments, or the material before me raise any jurisdictional error. In particular, the applicant's written arguments refer to Muin (Muin v Refugee Review Tribunal (2002) 190 ALR 601) as `very relevant´ without further explanation. There is nothing in the material before me to suggest that that case has any relevance to the circumstances of this case. As no jurisdictional error has been established the application must be dismissed. 25 This paragraph raises an assertion that the cases of Muin and Lie, decided in the High Court, provides a ground of jurisdictional error to this appellant. No evidentiary assertion was laid before the Federal Magistrate for any conclusion or even any argument that the appellant was in any way misled by any procedure adopted. Muin and Lie were cases on agreed facts. It is necessary to make out some factual foundation in any particular case upon which to found a conclusion that there has been some procedural unfairness in a particular person's case. 26 I turn to the grounds of appeal in the notice of appeal. I will use the paragraph numbers adjacent to the paragraphs set out earlier, being [2] through to [8]. 27 Paragraph 2 is a generalised assertion without any particulars of error of the magistrate and my earlier discussion of the magistrate's reasons is sufficient to deal with [2]. 28 Paragraph 3 is an assertion that Muin and Lie somehow gives a legal conclusion to the effect that jurisdictional error was present in this case. For the reasons earlier expressed that is not the case. 29 Paragraph 4 of the notice of appeal is not in terms an identification of any species of jurisdictional error. It directs itself to the fact finding process involved and is not a ground of jurisdictional error. 30 Paragraph 5 deals with s 474 of the Migration Act. The whole approach of the learned Federal Magistrate was conformable with the decisions of the High Court such that if jurisdictional error is shown s 474 is of no effect to prevent judicial review. 31 Apart from the fact that the wrong gender is used, paragraph 6 does not identify any jurisdictional error of the Tribunal or any error in the learned Federal Magistrate. As I have sought to identify, the learned Federal Magistrate dealt with the grounds of application, the written submissions and her Honour's own reading of the decision. The assertions in [6] assume an answer contrary to that given by the Tribunal as to a real chance of persecution. 32 Paragraph 7 refers to Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476, the learned Federal Magistrate was well aware of that decision and her reasons illustrate as much. That is not a legitimate ground of appeal. 33 Paragraph 8 deals with the decision of Mansfield J in SGDB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 74. No particulars are given as to why this decision of his Honour in relation to another person's application has any bearing on this appeal. This was a case decided shortly after Plaintiff S157 was handed down. His Honour found jurisdictional error in the particular decision. It is of no relevance in relation to this appeal. 34 The appellant has filed two sets of written submissions in this Court on the appeal, the first was filed on 13 July 2004 and the second was filed in Court today. The first submissions deal at length with the Tribunal's decision. The first body of submissions, which were otherwise dealt with by the learned Federal Magistrate, complain about the failure of the Tribunal to internalise the circumstantial grounds of the review application and otherwise failing to give appropriate weight to material which was said to be favourable to the appellant. An instance of this can be seen in [4] of the appellant's written submissions filed on 13 July in which the following appears: