NAPD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1320

FEDERAL COURT OF AUSTRALIA

NAPD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1320 MIGRATION – appeal from a Federal Magistrate – no jurisdictional error on the part of the Refugee Review Tribunal - dismissed Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicant S154/2002 (2003) 201 ALR 437 NAPD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 392 of 2004 HILL J SYDNEY 5 OCTOBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 392 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAPD

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HILL J

DATE OF ORDER: 5 OCTOBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The matter be stood over till 9.30 am tomorrow on the question of costs, subject to the parties filing consent orders on costs in chambers today.

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 392 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAPD

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HILL J

DATE: 5 OCTOBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT HILL J: 1 The appellant appeals from the decision of a Federal Magistrate (Mr Driver FM) dismissing the appellant's application for judicial review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the respondent Minister not to grant to the appellant a protection visa. Although heard by a single judge, the appeal is in the appellate jurisdiction of this Court. 2 The appellant was a national of Bangladesh who arrived in Australia in or around the year 2000 on a Bangladesh passport. Shortly thereafter he applied for a protection visa (XA) claiming that he was a person to whom Australia owed protection obligations. It suffices here to say that, generally speaking, Australia would owe protection obligations to the appellant if he came within the definition of "refugee". In article 1A(2) of the 1951 Convention Relating to the Status of Refugees as modified by the 1967 Protocol Relating to the Status of Refugees, ("the Convention"). A person will be a refugee within that definition if that person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. 3 It was the appellant's case as originally formulated, that he feared persecution if returned to Bangladesh because his father had been in the past a freedom‑fighter. The appellant himself had been a supporter of the BNP, and in or around 1999 he had been sentenced in Bangladesh in absentia on the false charge of murder. Between the time of the original application and the time of the Tribunal's adverse decision, elections said to have been generally properly held had taken place and in the result Bangladesh was now led by a BNP government. The Awami League was in opposition. 4 The Tribunal dealt with the appellant's claim that he feared persecution from the Awami League for the reasons briefly indicated. Quite shortly, the Tribunal made the following comments: In his original application the applicant had claimed that he was unwilling to return to Bangladesh as he feared that he would be persecuted the Awami League government because he had been a BNP activist. It was put to the applicant that there was now a BNP‑led government and the Awami League were in opposition. The applicant said that he was no longer in politics. He expects that the BNP would punish him if he returned. 5 The Tribunal proceeded to set out other matters and under the heading "Findings and Reasons" said: There is now a BNP government and the Awami League are in opposition. I am not satisfied that the applicant faces any risk of persecution because of his past opposition to the Awami League. 6 As already noted, another claim of the appellant made before the Tribunal related to the false charge of murder, of which he said he had been convicted in absentia. This matter the Tribunal dealt with as follows: The applicant claims to be arrested and gaoled as he was sentenced, in his absence, in June 2001, for the murder of a person in 1999. The applicant produced a letter from a lawyer in support of this claim. I note the country information about such letters from lawyers and false claims of court proceedings and documents. I also note that the applicant's passport reveals that he has twice returned to Bangladesh since the time he states that he was charged with murder. The applicant states that visa entry stamps in his passport are not genuine. They were put there to give an impression that the applicant was a frequent traveller, in order to help his efforts to obtain a visa for Australia. He states that he had not travelled at all before coming to Australia. Contrary to that answer the applicant, in his original application for protection, made in Australia, claimed to have visited India and returned to Bangladesh after the date on which he was charged. I am not satisfied that the applicant's response was truthful. I consider it unlikely that someone charged with such serious offences would be able to leave and re-enter Bangladesh on their own passport. I also consider it unlikely that the applicant would have returned to Bangladesh if facing such serious charges. I am not satisfied that the applicant has been charged or convicted. I am not satisfied that he has been sentenced in absentia. I am not satisfied he is at any risk of an arrest on return to Bangladesh. 7 The Tribunal concluded that it was not satisfied that the appellant was at risk of persecution should he return to Bangladesh or had a well-founded fear of persecution for a reason referred to in the Convention. 8 The appellant raised three grounds of judicial review before the Magistrate. Each was unsuccessful. Only two of the grounds are pressed in the present appeal. First it was submitted that the Tribunal fell into jurisdictional error in concluding that the appellant did not face a risk of persecution because of his past opposition to the Awami League. It was submitted that the Tribunal should have considered the possibility that in future elections the Awami League might be successful and in the result, at least in the foreseeable future, the appellant would have a real chance of being persecuted by those supporting the Awami League. 9 Alternatively it was submitted that the Tribunal fell into jurisdictional error in finding that the appellant had not been charged or convicted of a serious but false offence based upon what the Tribunal saw as the appellant's ability to come and go from Bangladesh while he said he was facing those charges. It was submitted that the Tribunal should have considered whether the appellant was on bail and if so whether that provided an explanation for the ability of the appellant to twice leave Bangladesh and travel to India. 10 Both of these submissions were rejected by the learned Magistrate. His Honour noted that the appellant had not explicitly claimed at the hearing before the Tribunal, that he feared the Awami League might return to power and recommence persecuting him. The Magistrate noted that in substance, what was being asserted was that the Tribunal should have speculated about the possibility of the Awami League in the future being returned to government and thereafter resuming its asserted persecution of the appellant. The learned Magistrate, however, specifically noted that nothing had been put before the Tribunal by or on behalf of the appellant, indicating either that there was any imminent election in Bangladesh or any real possibility that the Awami League might be re-elected. There was, so the Magistrate held, no jurisdictional error in refusing to speculate on a matter not raised before it. 11 As to the second matter, the learned Magistrate was of the view that the appellant's claim had been rejected on credibility grounds. The Magistrate noted that the Tribunal had rejected the assertion that the appellant had been charged with an offence at all. It found also that the appellant had lied in suggesting that visas showing visits to India were not valid visas. The learned Magistrate said inter alia: "The applicant cannot have it both ways. Either he left Bangladesh or he did not at the relevant time. His assertion was that he had not left. The presiding memberdrew an adverse credibility conclusion about that assertion. It is difficult for the applicant now to contend, notwithstanding what he said at the RRT, that in fact he did leave and could have done so because he was released on bail. The final difficulty for the applicant in this argument is that it is not obvious in the material before the RRT that the applicant was released on bail... In my view the evidence available to the RRT did not call for a consideration of the possibility that the applicant had been released on bail pending trial and was in those circumstances able to enter and leave the country. In order for such consideration to be called for, some more specific evidence of bail would have been needed and some consideration would logically have to be given to the issues of the conditions on which bail was granted, and whether those conditions included an obligation to surrender the applicant's passport or not to leave the country pending trial. None of that was before the Tribunal." 12 It is common ground between the parties that for the appellant to succeed in having the Tribunal's decision set aside, it would be necessary for the appellant to show jurisdictional error on the part of the Tribunal. Such jurisdictional error might be shown in a case where the Tribunal had actually or constructively failed to exercise its jurisdiction by not considering or otherwise ignoring the case put by the appellant. 13 A jurisdictional error might similarly be made out where in purporting to exercise its jurisdiction, the Tribunal applied a wrong criterion in its consideration. For example if, as has been submitted was the case here, the Tribunal applied a wrong test of what constituted persecution, that could constitute jurisdictional error. Likewise, if the Tribunal failed to consider whether the appellant had a well-founded fear of persecution at the relevant time, that too could constitute jurisdictional error and lead to the Tribunal's decision being set aside. 14 There will be an obvious difficulty in showing a failure on the part of the Tribunal to exercise jurisdiction in not considering a case for the appellant if the appellant did not in fact seek to raise the case before the Tribunal. That such a circumstance will generally not involve jurisdictional error is clear from the decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicant S154/2002 (2003) 201 ALR 437 per Gummow and Hayden JJ at [57]. It may be different (it is unnecessary to consider whether it is) where the case not directly advanced is so clearly evident on its face that the Tribunal would be under an obligation to consider it. That is not, however, the present case. 15 Although it was the appellant's case that he had feared persecution from the Awami League, that case was not really advanced in the context of some future elections in Bangladesh. Indeed, it was advanced before those elections took place which brought the BNP to government. The Tribunal recognised in its discussion of the law, that it was required to consider whether there was a real chance of persecution having regard to the facts as they existed when the decision was made and those that might exist in the reasonably foreseeable future. It did not err in this statement of principle. 16 The Tribunal found that there was no objective chance of the appellant being persecuted because of his past opposition to the Awami League. It did so for the reason that, as it said, there was now a BNP-led government in office which opposed the Awami League. The conclusion which the Tribunal reached was a conclusion of fact. It was not a conclusion of law. There is nothing on the face of the Tribunal's reasons that suggested that the Tribunal either failed to consider the case brought by the appellant on this point, or for that matter, applied some erroneous view of the meaning of persecution or as to the point of time at which the issue of well-founded fear of persecution should be considered. Like the learned Magistrate, I reject this submission. 17 As to the second matter, the Tribunal found, for reasons which it gave, that it was not satisfied that the appellant had been charged or convicted of the offence of murder, which he said had been fabricated against him. It did so on the basis that the appellant had in the relevant period during which he was apparently awaiting prosecution, left Bangladesh twice for India and had returned. The Tribunal regarded it as unlikely that a person charged with murder would be able to do this and also unlikely if the charge was false that the person would return to Bangladesh. 18 There was never any suggestion put to the Tribunal that the appellant was on bail or in some way had some conditions applying to him which permitted him to leave Bangladesh on two occasions while awaiting trial. It is simply not an error of jurisdiction on the part of the Tribunal to speculate about matters not put to it. It may well be thought unlikely that a person charged with murder but on bail, would be able to leave the country on two occasions while awaiting prosecution on such a serious charge. But whether or not it is, this was not ever suggested to the Tribunal. Rather, it was the appellant's case that he had not in fact left the country at all in the period. The Tribunal did not believe the appellant on this matter and its failure to accept the appellant's evidence resulted in the conclusion which the Tribunal reached. That conclusion did not involve jurisdictional error. 19 It follows that the appeal from the learned Magistrate should be dismissed and the appellant ordered to pay the respondent's costs. 20 I order that the appeal be dismissed and I stand over until tomorrow morning at 9.30 am the question of what costs order to make subject to any order being filed in Court indicating agreement on the matter. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.