Applicant S370/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1514

FEDERAL COURT OF AUSTRALIA

Applicant S370/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1514 Applicant S370/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N1337 OF 2004 JACOBSON J 18 NOVEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N1337 OF 2004

BETWEEN: Applicant S370/2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 18 NOVEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal is dismissed . 2. The appellants to pay the respondent's costs of the appeal. 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 N1337 OF 2004

BETWEEN: Applicant S370/2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE: 18 NOVEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Federal Magistrate Barnes given on 7 September 2004 dismissing an application for injunctions and constitutional writs. The claim had been filed in the High Court and remitted to the Federal Court. 2 The appellant is a national of Bangladesh who arrived in Australia on 22 March 1998. He lodged an application for a protection visa in May 1998. On 1 June 1998 a delegate of the Minister refused to grant a protection visa. The appellant sought review from the decision of the Refugee Review Tribunal ("the RRT") on 10 December 2001 to affirm the decision of the delegate. 3 On 29 October 2002, the appellant filed a draft order nisi in the High Court. On 6 February 2003, Gaudron J remitted the proceedings to the Federal Court. On or about 24 October 2003, the application was remitted from the Federal Court to the Federal Magistrates Court. 4 The learned Federal Magistrate treated the application as though it was an application for final relief in accordance with a decision of a Full Court in Applicant S422 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 89. Before turning to the reasons for the decision of the Federal Magistrate I will deal with the decision of the RRT. 5 The appellant claimed to have a well-founded fear of persecution in Bangladesh by reason of his political opinion. He claimed that he was a prominent political activist and belonged to the Bangladesh Nationalist Party (BNP). He claimed that he was wanted for arrest in Bangladesh because he had been convicted on false charges of having been involved in the killing of an Awami League activist. He claimed to have hidden underground for a period of about 12 months between the date of the charges and the date when he left Bangladesh. The RRT said that it had many problems with the appellant's claims and evidence. 6 The RRT said that it must keep in mind independent country information that documents are very commonly fraudulently obtained in Bangladesh. The RRT said that it therefore had serious reservations about accepting Bangladeshi documentation at face value. It is important to note that the RRT recorded at page 112 of the appeal book the following: "It was raised with the applicant that independent evidence indicates that it is very easy to procure forged documents, such as police and court documents in Bangladesh. He agreed but said the documents he had tendered were genuine." 7 The RRT went on to say that however, even if the police and court documents were true, the RRT found no evidence, beyond the appellant's assertions and letters of support, that the charges were politically motivated. 8 The Tribunal said moreover that it was not satisfied that if the charges were real the applicant could have so easily evaded capture by the authorities for a considerable period of time, because the charges related to a capital offence. The RRT said that one would assume that the authorities would be highly motivated to look for and find the appellant. It is evident that the RRT's decision turned on findings of credit because the RRT found that the appellant's replies to the RRT's questioning about an issue of the whereabouts of his alleged co-defendants to be evasive and unconvincing. 9 The RRT then said that in the light of its reasons for not accepting the appellant's claims that the charges were laid and that they were politically motivated, the RRT found that the letters of support were fraudulent. The RRT also said that even if the charges were made, independent country information established that the judiciary in Bangladesh at the higher levels showed a significant degree of independence. In the light of this, the RRT found that if the charges were in fact genuine then the appellant could obtain a fair hearing before a court in Bangladesh. 10 The RRT then said that in the light of this, it was not satisfied that the appellant was facing charges that had been falsely laid as a means of politically harassing him. 11 The RRT was prepared to accept some of the appellant's evidence. It accepted that he was a local active BNP supporter and played an active role in the party. It also accepted his claim that when his political opponents in the Awami League were widening a road they purposely excavated his ponds to provide material for the road. However, the RRT found that this act was not in itself a serious punishment or penalty of sufficient magnitude to constitute persecution under the Convention. 12 The RRT found no evidence to support a finding that there was a real chance that the appellant would face serious harm upon his return to Bangladesh, referring to the pervasive nature of violence in the political culture in Bangladesh. 13 In summary, the RRT was not satisfied that the appellant faced politically motivated charges and accordingly the RRT did not reach the necessary state of satisfaction that the appellant had a well-founded fear of persecution for a Convention ground. 14 The learned Magistrate observed that in the draft order nisi filed in the High Court the appellant raised four grounds in support of his claims. The first ground was that his case was analogous to the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 ("Muin"). Her Honour noted that this ground was apparent from the appellant's written submissions filed in the Federal Magistrate's court. However, her Honour noted that the appellant had not proved the necessary facts which underlie the decision of the court in Muin. 15 Her Honour observed there were no agreed facts and the appellant had not established that the RRT failed to consider the part "B" information before the delegate or that he was misled. Her Honour referred to a decision of a Full Court in NADR v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 465per Spender, Moore and Keiffel JJ. 16 The second ground relied upon was a claim of breach of sections 418(3) and 424A(1) of the Migration Act 1958 (Cth) ("the Act")\. Her Honour said that s 418(3) did not assist the appellant. Her Honour said at [13] that putting to one side the question of documents which related to documentary fraud and dealing with other general country information, that information fell within the exception contained in s 424A(3)(a) and accordingly no breach of the section was established. Her Honour was also satisfied that there was no lack of procedural fairness in relation to the RRT's treatment of general country information; see [14]. 17 Her Honour then turned to the specific claim in relation to the RRT's treatment of country information about document fraud in Bangladesh. She observed at [16] that there was authority of a Full Court in NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 78 ALD 416 to the effect that information in relation to documentary fraud in Bangladesh does not fall within the exception contained in section 424A(3). Her Honour then said at [17] that it was apparent from the RRTs reasons that the existence of independent evidence about fraudulent documents in Bangladesh and the ease of procuring them was put to the appellant during the hearing and that the appellant had the opportunity to comment on it and he did so. This is plainly a reference to the passage from the RRTs reasons at page 112 set out above. 18 Her Honour then said, accordingly, the gravamen of the country information was put to the applicant for comment and on this basis it had not been established there was any lack of procedural fairness. She recorded at [17] that the appellant did not dispute that the Tribunal correctly recorded what occurred in the hearing and she said that there was no transcript of the hearing before the court. She said that procedural fairness did not require the actual report to be put to or provided to an applicant. 19 Her Honour then referred to an authority of a Full Court in NAHV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 214 ("NAHV") that the failure to give the information to the applicant in accordance with one of the methods referred to in s 424A(2) does not constitute jurisdictional error. Her Honour then turned to the next ground relied on in support of the order nisi, namely, that the decision was affected by error of law, jurisdictional error and lack of procedural fairness. Her Honour observed at [19] that there were no particulars of this. She rejected that argument. Her Honour said at [20] that RRT's findings were open to it. She dismissed the other contentions put by the appellant in support of his application. 20 The notice of appeal was filed on 14 September 2004. It states three grounds as follows: "a) That the Tribunal's decision was in breach of procedural fairness as required under section 418(3), section 424A(1) of the Migration Act 1958. b) That the Tribunal denied the applicant natural justice in that it had material adverse to the applicant which it did not give the applicant access to prior to the hearing and also failed to understand the Article 1A(2) of the Convention defines a Refugee and criterion set out in s36(2)(a) of the Act for a protection visa. c) The ground set out 1 and 2 above (sic) constitute a failure by the Tribunal to give genuine and realistic consideration to the applicant's application and act in a bona fide manner." 21 The appellant filed written submissions in support of the appeal which seem to largely repeat the matters which were agitated before the learned Magistrate. 22 When the matter was called on for hearing the appellant sought an adjournment in order to obtain a transcript of the hearing before the RRT. No prior notice was given of the request for an adjournment. The application for an adjournment was opposed by Mr Beech-Jones, for the Minister. He said, quite fairly, that the Minister's attitude to the application may have been different if he had had some previous notice of the request notwithstanding the fact that the transcript was not put in evidence before the Federal Magistrate. 23 In deciding whether to grant the adjournment I have taken particular account of what the Magistrate said at [17]. As I said above, her Honour specifically recorded that the appellant did not dispute that the RRT correctly recorded what occurred at the hearing and that there was no transcript of the hearing before her Honour. The application for an adjournment is, in effect, a request for an adjournment to obtain fresh evidence. The rules relating to the reception of fresh evidence are well settled. They are dealt with in section 27 of the Federal Court Act 1976 (Cth) and in Order 52 Rule 36 of the Federal Court Rules. 24 In Orr v Holmes (1948) 76 CLR 632 at 635 - 640 the High Court said that the ordinary requirements for the receipt of fresh evidence are that the parties seeking to adduce it must show that reasonable diligence was exercised to procure the evidence for the hearing and that it is reasonably clear if the evidence had been available and had been adduced an opposite result would have been produced. The principle was stated similarly by Dixon CJ in Council of the City of Greater Wollongong v Cowan (1954) 93 CLR 435 at 444. 25 Nothing in the terms of Order 52 Rule 36 of the Federal Court Rules alters the effect of the principles stated by the High Court in the cases to which I have referred. 26 I refused the adjournment because it seems plain to me that the appellant could not satisfy the tests stated by the High Court. Moreover, if the appellant wished to take issue with the observations of the Federal Magistrate that he had not disputed that the RRT correctly recorded what had occurred at the hearing, he had ample opportunity to do so before today's hearing. This is so, notwithstanding the fact that he is unrepresented. Her Honour, as I have said, observed that there was no transcript of the hearing put before her and yet it was not until today that the appellant sought time to obtain a transcript. In those circumstances it seemed to me that the proper course was to refuse the request for an adjournment. 27 The appellant's written submissions stated two essential grounds. He did not address me orally and relied solely upon the written submissions. The first ground was that the Federal Magistrate was in error in failing to see that the appellant's case was governed by the decision of the High Court in Muin. However it seems to me that this submission must be rejected. Her Honour's reasons seem to me to be correct for the very reasons given by her at [12]. 28 The second ground may be reduced to two separate sub-grounds, namely, a denial of procedural fairness and a breach of s 424A. In my view, with one possible exception, her Honour's reasons for dismissing this ground, as stated in [16]-[18] of her judgment, seem to be correct. It is sufficient to say that the substance of the material was put to the appellant for comment as is clear from the passage which I have set out and the decision of the full court in NAHV establishes that there was no jurisdictional error. 29 The only possible departure from the reasons given by her Honour may be found in a decision of a full court in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ("NAMW")which seems to establish that document fraud of a kind considered by the RRT in the present case generally falls within the exception; see especially per Beaumont J at [67] and per Merkel and Hely JJ at [138]. I note that as in NAMW the question of the application of s 422B of the Act does not arise because the RRTs decision was handed down before the commencement of the section; see NAMW at [139]. 30 There is no foundation for the other ground of appeal referred to in paragraph (b) of the notice of appeal. That is to say the assertion that the RRT did not properly address Article 1A(2) of the Convention. 31 The last ground of appeal although not addressed in the written submissions stated that the RRT failed to give "genuine and realistic consideration to the application in a bona fide manner". 32 This seems to be a reference to the judgment of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 where his Honour referred to the need for a decision maker to give "proper genuine and realistic consideration to the merits of the case". 33 That formula probably refers to the requirement that a decision maker should not apply a policy inflexibly. However, the formula has narrow application; it was criticised by the Full Court in Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at 59-66. 34 Accordingly for the reasons I have stated above the appeal must be dismissed. The second order I make is that the appellant pay the costs of the appeal.