Federal Court dismisses refugee appeal for insufficient grounds

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

NAJP of 2002 v Minister for [NAME] [2002] FCA 1452 NAJP OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1058 OF 2002 [NAME] [APPELLANT] 25 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1058 OF 2002

ON APPEAL FROM A MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NAJP of 2002

APPELLANT

AND: [APPELLANT] FOR [NAME]

RESPONDENT

[APPELLANT] OF ORDER: 25 NOVEMBER 2002

[APPELLANT]

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 1058 OF 2002

BETWEEN: NAJP of 2002

APPELLANT

AND: MINISTER FOR [NAME]

RESPONDENT

JUDGE: [NAME]: 25 NOVEMBER 2002

PLACE: [APPELLANT] FOR

JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate. On 19 September 2002, [NAME] dismissed an application brought by the appellant to review a decision of the Refugee Review Tribunal ("[NAME]") handed down on or about 2 May 2002. [NAME] affirmed a decision of a delegate of the respondent ("the Minister"), made on 16 November 1999, not to grant the appellant a protection visa. 2 The appellant arrived in Australia on 9 October 1990 on a temporary visa valid for three weeks. He applied for that protection visa on 2 August 1999 (his initial application for a protection visa, made in January 1994, was subsequently withdrawn). The application to review the delegate's decision was filed in [NAME] on 27 November 1999. [NAME] therefore took nearly two and a half years to dispose of the application for review of the delegate's decision. 3 The application for judicial review of [NAME]'s decision was initially filed by the appellant in this Court on 27 May 2002, but was transferred to the Federal Magistrates Court by order of [NAME] J on 15 July 2002. The Magistrates Court was thus exercising the jurisdiction conferred on that Court by s 483A of the Migration Act 1958 (Cth) ("Migration Act") which confers on the Magistrates Court the same jurisdiction as the Federal Court has in relation to a matter arising under the Migration Act. The Federal Court's jurisdiction includes that conferred by s 39B(1) of the Judiciary Act 1903 (Cth). 4 The appeal to this Court is brought pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act"). The Chief Justice has made a direction pursuant to s 25(1A) of the Federal Court Act that it is appropriate for a single Judge to exercise the appellate jurisdiction of the Court in respect of the appeal.

BackgrounD 5 The appellant is a citizen of Bangladesh born on [DATE]. In a written statement that was before [NAME], he claimed to have completed both secondary school and a commerce degree at a [COMPANY]. [NAME] also noted that, prior to leaving Bangladesh in 1990, the appellant had worked as a photographer and a cook. 6 The appellant's principal claim before [NAME] was that he had a well-founded fear of persecution in Bangladesh by reason of his political opinions. These political opinions were said to be attributed to him by reason of his long association with, and leadership role within, Bangladesh's [NAME]. In support of this claim, the appellant provided [NAME] with correspondence between himself and certain [NAME] leaders. 7 According to [NAME], the [NAME] is one of Bangladesh's larger political parties. It formed government in Bangladesh during the late 1980s under the leadership of [NAME]. More recently, the [NAME]'s primary political rivals in Bangladesh have been the BNP (which formed the current government) and the [NAME]. The appellant claimed that his membership of the [NAME] commenced when he was in secondary school and continued even after his arrival in Australia. 8 The appellant's ostensible role with the [NAME] was as a photographer. In that capacity he was required to photograph party functions. However, the appellant claimed that, apart from his official duties, he was required to take pictures of events being held by the [NAME]'s political opponents. Furthermore, in his capacity as a [NAME] leader, he claimed to be involved in the recruitment of members from other political parties. These activities were said to support his claim to have achieved some notoriety as an active member of the [NAME] in Bangladesh. 9 The appellant claimed before [NAME] that his reputation as an active member of the [NAME] meant that he would be exposed to persecution if compelled to return to Bangladesh. He referred [NAME] to certain newspaper and periodical articles which were said to support a finding that former [NAME] members were routinely persecuted by its political opponents. Such persecution was claimed to consist of wrongful imprisonment and fabricated charges. Additionally, the appellant relied on oral evidence given by [NAME] to [NAME] concerning a trip the latter made to Bangladesh in April 1998. According to [NAME], a group of 20 or 30 armed men came to the place where he was staying and made clear their threats to kill the appellant if he returned to Bangladesh.

[NAME]'s findings and reasons 10 [NAME] rejected the factual basis for the appellant's claim to fear political persecution in Bangladesh. It stated its findings follows: "I did not find [the appellant] to be a credible witness. He claims that he fled Bangladesh because he feared persecution because of his political opinion. However, he failed to apply for a protection visa until 3 years after arriving in Australian and then withdraw [sic] his application before it was finalised. I consider these actions a very strong indications that he did not have a genuine fear of persecution in Bangladesh at that time. Furthermore, as he agreed at the hearing, the political party to which he claims to have belonged was in power at the time he left the country. This casts further doubt on the claim that he fled to avoid persecution for reasons of political opinion. And the letters which he provided to support his claim that he belonged to the [NAME] contain information which is at odds with the information which he himself provided, which indicates that they are not genuine documents. After considering all of the relevant evidence, I am not satisfied that [the appellant] was an active member of the [NAME] in Bangladesh, nor that he fled Bangladesh because he feared persecution as a result of his membership of the party." 11 [NAME] went on to note an alternative finding, which it expressed as follows: "even if I accept [the appellant's claims] regarding his membership of the [NAME] in Bangladesh and later in Australia, I do not accept that this places him at risk of serious harm amounting to persecution if he returns to Bangladesh. There is nothing in the evidence before me which suggests that members of the [NAME] generally have been at risk of serious harm in Bangladesh because of their merely because of their peaceful and legitimate involvement with the party at any time since 1990. In these circumstances, I do not accept that 30 armed men made threats against him in 1998 when [NAME] was visiting the country."

the application for judicial review 12 The application for judicial review occupied two hearing days, on 5 and 19 September 2002. Although the appellant's request for an adjournment on the first day was refused, in the light of his oral submissions the matter was stood over for two weeks to enable a second day to be set aside for the case. [NAME] delivered an ex tempore judgment at the conclusion of the second day of the hearing. The reasons for judgment were subsequently published on 9 October 2002. 13 [NAME] identified the grounds of review of [NAME]'s decision, which emerged from the application and supporting documentation, as follows: "(1) [NAME] did not consider the [appellant] as a refugee despite many evidentiary proofs; (2) the procedures that were required to be observed under the Migration Act in connection with the making of the decision were not observed; (3) [NAME] ignored the merits of the claim and it did not take into consideration material from the [NAME]; (4) [NAME] did not act in good faith as regard to the [appellant]'s claims; (5) [NAME] misjudged the fate of the [appellant]'s claim; (6) [NAME] made a number of errors to decide the fate of the [appellant]'s claim noting that the [appellant] is not and was not represented by a solicitor; (7) [NAME] ignored relevant evidence and made its finding in the face of contradicting independent evidence which indicates actual bias constituting jurisdictional error and being a breach of procedural fairness." 14 It appears that the appellant also raised a number of other grounds of review in oral submissions to [NAME]. These seem largely to have amounted to criticisms of the factual findings made by [NAME], particularly in relation to the position of the [NAME] members in Bangladesh in 2001 and 2002. However, the appellant also apparently asserted that: · [NAME] did not have available to it the documents supporting the appellant's initial claim for a protection visa; · the interpreter provided for the hearing before [NAME] "asked him misleading questions and misunderstood answers"; and · the sound recording of the hearing before [NAME] had been interfered with so that information which the appellant considered important to his claims was deleted. 15 [NAME] assessed all claims made by the appellant by reference to the decision of this Court in [NAME] v Minister for [NAME][2002] FCAFC 228. He set out the following seven grounds of review that were stated by [NAME] (at [535]) in [NAME] v [NAME] be available to an applicant seeking to review a privative clause decision: "(1) the decision exceeds the constitutional limits upon legislative power imposed by the Commonwealth Constitution; (2) the decision was not made in good faith; (3) the decision was not reasonably capable of reference to the power under which it was made; (4) the decision was not made by reference to the subject matter, scope and objects of the Migration Act; (5) the decision was made in breach of an express statutory limit or condition upon a power which, as a matter of construction, notwithstanding s.474, must be observed for the effective exercise of the power; (6) the decision is made in breach of a limit or condition on a power which, notwithstanding s.474, is implied from the statute or imposed by the common law, and which must be observed for the effective exercise of the power; and (7) the decision was made in breach of the requirements of procedural fairness (also known as natural justice) when the circumstances are such that, notwithstanding s.474, procedural fairness is a necessary condition for the valid making of the decision." 16 [NAME] considered that in view of the reasoning of the majority in [NAME] v Minister, grounds (1)-(5) identified by [NAME] were available notwithstanding s 474(1) of the Migration Act, although the extent to which ground (5) was available depended upon the analysis of Black CJ, who formed one member of the majority. [NAME] thought that ground (6) was to be treated with "some caution", while ground (7) had clearly been rejected by the majority. He went on to say that not every legal error would amount to a breach of an express limit or condition on a power, although he did not find it necessary to identify precisely the kind of legal error that would suffice. He did suggest, however, that a "significant legal error" on the face of [NAME] decision might vitiate the decision notwithstanding s 474(1) of the Migration Act. 17 The Magistrate considered that [NAME] had not fallen into any "significant legal error". He said this: "23. The application for a protection visa, which was the subject of the proceedings before [NAME], was made some nine years after the [appellant] arrived in Australia. That fact, of itself, apparently raised some scepticism in the mind of [NAME]. It is apparent from the finding and reasons of [NAME], at pages 6 and 7 (court book, pp. 69-70), that the claims made by the [appellant] were not believed by [NAME]. [NAME] did not accept that the [appellant] had been the victim of persecution in Bangladesh and found that he was not at risk of persecution should he return to Bangladesh. 24. [NAME] specifically rejected evidence provided by the [appellant]'s [NAME] concerning alleged threats to kill the [appellant] which [NAME] had allegedly overheard when visiting Bangladesh in 1998. [NAME] also found that certain documents presented by the [appellant] in support of his claims were not genuine. I see nothing sinister in the adverse conclusions drawn by [NAME] about the credibility of the [appellant], his documents and the evidence of [NAME]. It is both appropriate and necessary for [NAME] to make findings on issues of credit. [NAME] does not have to uncritically accept allegations made to it. 25. [NAME] did not have before her the documents relating to the original protection visa application made by the [appellant], although the [appellant] was able to provide some material. I do not think that anything turns on that because the documents which were necessary for [NAME] to have before it were the documents which related to the current protection visa application.

26. I find that on the material put before [NAME] [NAME] was entitled to draw adverse conclusions. The decision and reasons of [NAME] do not contain anything suggestive of bias or otherwise indicating a lack of good faith. Neither do the decision and reasons contain anything indicating on their face that [NAME] fell into any significant legal error in arriving at the degree of satisfaction necessary to support a refusal of the protection visa sought by the [appellant]. … 33. There is nothing else in the matters put before me by the [appellant] that would lead me to interfere with the decision of [NAME] in the face of the privative clause. The findings made by [NAME] concerning the political situation in Bangladesh were reasonably open to it. [NAME] was entitled, on the material before it, to reject the assertions made by the [appellant] concerning the alleged persecution of him and his family. [NAME] correctly applied the Refugee Convention as modified by the Migration Act. [NAME], in coming to its decision, did not breach any essential requirement of the Migration Act. [NAME] acted in good faith. The decision of [NAME] was a bona fide attempt at exercising the powers conferred on it." 18 [NAME] also rejected the appellant's oral submissions that the hearing before [NAME] was tainted by difficulties with the interpreter and that important parts of the sound recording had been deleted. He said this: "29. I also reject the [appellant]'s contention that he was unable to present his case effectively to [NAME] because of interpretation difficulties. It appears to me from that recording that the interpreter provided was interpreting effectively. However, I also note that relatively early in the proceedings before [NAME] the [appellant] requested permission to present his arguments in English. For a significant portion of the proceedings before [NAME] the [appellant] appeared to present his submissions to [NAME] and answer questions put by [NAME] clearly and effectively in English.

30. I formed the view from that that the [appellant] has a good command of the English language. He did revert to reliance upon the Bengali interpreter during the latter part of the proceedings before [NAME] when complex and possibly difficult questions were put to him by [NAME]. It is noteworthy that by that stage [NAME] had indicated scepticism about the truthfulness of the matters alleged by the [appellant].

31. There is nothing in the sound recording of the proceedings before [NAME] that indicates to me that [NAME] was biased. [NAME] chose to conduct the proceedings informally but there was nothing wrong in that. [NAME] is not a court and it is appropriate that proceedings be conducted informally. It is apparent from the sound recording that [NAME] became sceptical about the [appellant]'s claims at a relatively early stage of the proceedings. She made that scepticism clear to the [appellant] and invited him to put material before her to overcome that scepticism. In order to establish actual bias the [appellant] must satisfy me that [NAME] displayed some animosity to him or dealt with the proceedings with a closed mind." 19 [NAME] accordingly dismissed the application for judicial review.

the appeal 20 The notice of appeal filed in this Court does not specify any ground upon which it is said that [NAME] may have erred in law. It states that submissions in support of the appeal will be provided shortly. 21 At a directions hearing held on 30 October 2002, the appellant was directed to file and serve written submissions in support of the appeal by 18 November 2002. The appellant did not file any written submissions in accordance with the directions, or indeed at all. 22 When the appeal was called on for hearing, the appellant requested an adjournment. I declined to grant an adjournment, for reasons that I have given in a separate judgment. The appellant thereupon declined my invitation to make submissions in support of his appeal. He maintained this approach, notwithstanding that I advised him that, in the absence of any grounds of appeal or arguments in support of the appeal, it was very unlikely that the appeal could succeed.

23. The position, therefore, is that the appellant has not identified any grounds of appeal, nor put any submissions in support of his appeal.

24. In these circumstances, it is enough for me to say that I can discern no error in the approach taken by [NAME]. It may be that, as Mr [NAME], who appeared on behalf of the Minister, observed, that the [NAME]'s approach to the construction of s 474(1) of the Migration Act is somewhat generous to the appellant. Nothing turns on this, as there is no basis for concluding that [NAME] erred in holding that [NAME] had not made "any significant legal error" in affirming the delegate's refusal to grant a protection visa.

25. In essence, the appellant failed before [NAME] because the substance of his factual account was not accepted. [NAME] held that there was no ground for impugning [NAME]'s decision, even independently of the protective operation of s 474(1) of the Migration Act. Nothing has been put on the appeal, nor does anything appear from the judgment, to suggest that the [NAME] erred.

26. The appeal must be dismissed. The appellant must pay the Minister's costs. I certify that the preceding twenty six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME] [NAME] .

Associate: Dated: 25 November 2002 The appellant was self represented. Solicitor for the Respondent: [redacted]

Date of Hearing: 25 November 2002

Date of Judgment: 25 November 2002