Applicant NAOB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: 1 The appellant appeals against an order of a judge of the Court made on 12 September 2002 in which the judge dismissed the appellant's application for an order of review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 27 May 2002. The Tribunal affirmed the decision of a delegate of the respondent ("the Minister") not to grant a protection visa to the appellant pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act") and the Migration Regulations 1994 (Cth). 2 The appellant, a national of Bangladesh, arrived in Australia on 21 July 1999. On 12 November 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs and on 9 December 1999 a delegate of the Minister refused to grant a protection visa to the appellant. On 7 January 2000 the appellant applied to the Tribunal to review that decision. 3 The appellant was a Sunni Muslim and converted to become an Ahmadi Muslim. He claimed that fanatic Muslims had harmed him and had threatened to kill him and that he had been hospitalised. He claimed that he feared fanatic Muslims and mullahs and his family members whom he said were torturing him. He claimed that he could not say his prayers and that the authorities could not protect him in Bangladesh as no‑one obeyed the law or respected human rights and the fanatic Muslims were protected by the authorities. 4 At the hearing before the Tribunal the appellant repeated his claims about being attacked because he was an Ahmadi Muslim but said that the family members who were in a conspiracy to kill him were not his immediate family but distant family members. 5 The Tribunal referred to a substantial body of country information relating to the treatment of Ahmadiyya Muslims and found that there was low level harassment of religious minorities including Ahmadis but found that the police generally intervened promptly to protect the members of such minorities. 6 The Tribunal did not accept all of the appellant's evidence as being true and considered that he had exaggerated aspects of his history and claims. The Tribunal found that the appellant was fabricating and exaggerating the harm feared and problems with his own family. The Tribunal did not accept his claims of fearing harm from his family as being true and found that he had fabricated this claim to enhance his claims for a protection visa. The Tribunal made a finding that overall the appellant had exaggerated aspects of his claims and to that extent was not a credible witness. The Tribunal found that there was State protection for Ahmadis provided by the Bangladesh authorities and that he did not have a well‑founded fear of persecution for reasons within the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967. 7 The primary judge referred to a number of the Tribunal's findings and noted the appellant's complaint that the Tribunal failed to give sufficient weight to the instances that he cited of harassment in various parts of Bangladesh and that the Tribunal took too optimistic a view of his situation if he was returned to Bangladesh. 8 The primary judge observed that the available grounds for review of the Tribunal's decision did not include disagreement with the Tribunal about the facts of the case. Generally it can be said that matters of fact are within the exclusive province of the Tribunal and not the court in the exercise of its jurisdiction of judicial review. 9 The primary judge considered the appellant's claim that the Tribunal was guilty of actual bias in reaching its decision and treated his claim as coming within the ground that the Tribunal did not act in good faith. It was apparent from the primary judge's reasoning that he was adopting the principles set out by the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449. The primary judge correctly stated the test of bias as being whether or not the decision‑maker was prepared to be open minded and to reach a conclusion either way, depending on the strength of the evidence and the arguments put to the Tribunal, and could see no basis for doubting that the Tribunal was prepared to be open minded in approaching the appellant's case: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532. The primary judge noted that no complaint had been made about the way in which the Tribunal conducted the hearing, rather the complaint was focused on the conclusions reached by the Tribunal. The primary judge was satisfied that the manner in which the Tribunal considered the appellant's claims and reached its conclusions did not disclose any basis for a claim of actual bias. 10 Subsequent to the primary judge delivering his reasons, the High Court handed down its decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. In that decision the High Court made it clear that notwithstanding the privative clause in s 474 of the Act, an application for relief under s 75(v) of the Commonwealth Constitution was not precluded by s 474 when the claim or allegation was that there was jurisdictional error. 11 In summary, the High Court held that s 474 insofar as it rendered final and conclusive a privative clause decision and protected it from challenge, only did so in respect of "decisions made under … [the] Act". Thus, decisions which involve a failure to exercise jurisdiction or involve an excess of the jurisdiction conferred by the Act are not, as a matter of statutory construction, decisions made under the Act and are therefore not privative clause decisions protected by s 474. Put shortly, s 474 does not apply to decisions which involve jurisdictional error, and does not apply, in particular, to decisions which do not comply with the principles of natural justice: Plaintiff S157/2002 v Commonwealth of Australia (supra) at 47. 12 The appellant relied on the following grounds in his notice of appeal: "1 The Single judge of the Federal Court in his Honors Judgement delivered on the 12 September 2002 failed to find error of law, Jurisdictional error, Procedural fairness and relief under Section 39 B of the Judiciary Act 1903. (a) The Refugee Review Tribunal did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed (High Court Judgement - Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). (b) The RRT decision was affected by an 'Error of law' and 'Jurisdictional error'. (c) There was no evidence or other material to justify the making of the decision." 13 The Minister submitted that the notice of appeal raised new grounds which had not been raised before the primary judge. It was not clear whether the notice raised new grounds as no particulars of the allegations of failure to follow proper procedures, error of law or jurisdictional error were supplied by the appellant. Although there was a reference in the notice of appeal to the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 in which the High Court found that there had been a failure to accord the plaintiffs procedural fairness, there was no suggestion that the grounds which gave rise to the conclusions of the High Court in that case applied in the present appeal. 14 We have considered the grounds relied upon by the appellant having regard to the reasoning of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (supra). In the light of that decision we consider that the appellant should have leave to rely upon the grounds of appeal which raise issues dealt with by the High Court. To the extent necessary the appellant should also have leave to amend his application for an order of review to raise these grounds and for it be treated as so amended. We have been unable to identify any factor or circumstance which warrants the conclusion that the Tribunal failed to follow the proper procedure required by the Act, or that the Tribunal failed to exercise jurisdiction or committed an excess of jurisdiction. We have been unable to identify any error of law in the primary judge's reasoning and conclusion that bias on the part of the Tribunal had not been demonstrated. The appellant's complaints, in substance, are that the Tribunal should not have made the findings it did on the merits and that the primary judge should have reconsidered those findings. Such complaints did not give rise to any ground of review before the primary judge and do not give rise to any ground of appeal before this Court. 15 The appeal will be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill, Goldberg & Conti JJ.