Applicant S1061/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

1 This is an appeal against orders made by a Federal Magistrate on 22 November 2004, in which the Federal Magistrate dismissed an application made by the appellant for judicial review of a decision of the Refugee Review Tribunal (the "Tribunal") in which that Tribunal had affirmed a decision of a delegate of the Minister not to grant a protection visa. The decision of the delegate of the Minister was made in March 1998. The decision of the Tribunal was made in January 1999, and notified to the appellant in that month. 2 In this appeal, there has been determination by the Chief Justice pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that a single Judge of the Court hear the appeal. 3 The matter has a procedural history as follows in outline. In February 1999, the appellant sought review of the Tribunal's decision in the Federal Court. The application was dismissed by Von Doussa J on 31 May 1999. No appeal was taken from that dismissal. The appellant joined what has become known as the Muin and Lie Class Action Group (see Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601). His application in that respect was dismissed by consent by Emmett J on 30 April 2004. 4 The applicant then commenced fresh proceedings in the Federal Magistrates Court in May 2004. Notwithstanding the dismissal of the application by consent and the Muin and Lie Class Action various assertions are made in the current proceedings based on that decision. It is important as a preliminary observation to recognise that the age of the decision of the Tribunal means that what might otherwise be aspects of some difficulties in relation to s 424A of the Migration Act 1958 (Cth) do not arise. 5 The appellant claimed to fear persecution by reason of his political opinion in Bangladesh. He claimed to be a member of the Bangladesh Nationalist Party (the BNP), and to have been assaulted by members of the rival Awami League, and that members of the Awami League had caused false charges to be lodged against him in Bangladesh. He said that he would fear being killed if he returned to Bangladesh. 6 The findings and reasons of the Tribunal are set out on pages 9, 10 and 11 of its reasons. After finding that the appellant was a national of Bangladesh, the Tribunal went straight to the question of the reliability of the appellant as a witness. The Tribunal began by noting that it had become apparent that the appellant had made false statements to the Department and knowingly submitted a false document in evidence. It noted that some of his claims were internally inconsistent and that some important claims were not raised by him until the Tribunal hearing notwithstanding that he had an experienced Bengali speaking migration agent acting for him in the preparation of his written claims. 7 The Tribunal then went on to deal with the reasons why it did not accept that the appellant was a person with connections to the BNP. It found that documentary evidence purporting to be from the office secretary of a BNP branch was false. 8 The Tribunal then directed itself to the assertion that false and politically motivated charges would be laid against him if he returned to Bangladesh. In rejecting this, the Tribunal first directed itself to the documents, which had been provided by the appellant. It said that it had difficulty in accepting, as genuine official documents, the copies of two complaints lodged about him, and the arrest warrant. Secondly, the document which the appellant claimed to be a genuine arrest warrant was issued some five months before the applicant left Bangladesh. This aspect and other aspects of this part of the claims were found by the Tribunal to be implausible. 9 Thirdly, the Tribunal noted that the appellant's name was not listed in pro-BNP magazines. In this respect, the Tribunal rejected the explanation of the migration agent, then acting for the appellant. 10 Finally, the Tribunal said that even if the police had visited the appellant's home, it could not conclude that this was to arrest him for a Convention reason. Thus the Tribunal refused to conclude that the appellant had been sought by the police on politically motivated charges. 11 The Tribunal accepted that the appellant had faced some violence in the past, but in the light of its rejection that he was a BNP activist, it found it implausible that the violence had been motivated by perceptions of his political opinions. 12 The application before the learned Federal Magistrate identified four grounds. First, that procedures that were required by the Act and regulations to be observed had not been followed. Secondly, that the Tribunal did not provide an opportunity to the appellant to be heard on materials which the Tribunal used in its decision. Thirdly, there was no evidence or other material to justify the decision. Fourthly, the Tribunal made a decision which denied the appellant natural justice. 13 The learned Federal Magistrate after setting out these grounds, dealt with them one by one. I should add that at the hearing before the Federal Magistrate, there was an affidavit of the appellant of some two and a quarter pages, in support of his claim. It is important to understand the contents of that evidence in the light of the fact that there was a claim that there had been jurisdictional error by reason of a denial of natural justice. 14 If a party is to assert that a tribunal or court has failed to accord him or her natural justice or procedural fairness, then generally speaking, unless the facts are patently obvious, an evidential foundation for that assertion needs to be made. 15 The affidavit of the appellant deals with the following matters. First, it sets out some brief procedural history, including a procedural history up to the dealing with the Muin and Lie matter by the Federal Court. Then in paragraph 7 of the affidavit, it was stated that the Tribunal ignored relevant evidence and contradicting independent evidence which was a failure to provide procedural fairness. The affidavit then went on to discuss various aspects of the decision of Gaudron J in Abebe v Commonwealth of Australia (1999) 197 CLR 510. 16 The paragraph, that is paragraph 7, then went on to assert that in weighing the possible danger that he faced on return to Bangladesh, the Tribunal failed to apply Article 1A(2) of the Refugee Convention. The affidavit then went on to discuss the time limit in filing matters before the courts and, in particular, s 486A of the Migration Act, s 75(v) of the Constitution, and the High Court decision in Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476. 17 There was no attempt in the evidence by the appellant to analyse any particular aspect of the decision of the Federal Magistrate and to identify, in evidence, any important consideration by the Federal Magistrate which was not put to the appellant at the hearing. 18 Before moving on to an analysis of the decision and the reasons of the Federal Magistrate, in the light of my comments about the nature and extent of the evidence in the affidavit of the appellant, it is appropriate for me to identify the nature of the written submissions placed before the Court in this appeal by the appellant. 19 In paragraph 1 of those submissions, the appellant, once again, discussed the procedural history of the matter, the decision of Gaudron J in Abebe, and the assertion that Article 1A(2) of the Refugee Convention was not properly brought to bear on the claims. On the second page of the submissions, there is then a recitation of what appears in the notice of appeal as the grounds of appeal. These are four paragraphs. They are in the following terms: