Applicants S487/2002 v Minister for Immigration & Multicultural & Indigenous Affairs

A Brief History 7 The history of this matter shows how prolonged the decision-making process can be before an application for a protection visa is finally determined. A brief history is as follows: (i) The applicant is a citizen of Bangladesh He arrived in Australia on 18 November 1995 and applied for a protection visa on 27 November 1995, nearly eight years ago. In substance, he claimed to fear persecution by Islamic fundamentalists if he returned to Bangladesh, because he had been a progressive journalist and had written articles opposed to fundamentalism. He claimed that he had been a target for fundamentalist attacks and that his baby had been abducted as a lesson to him. (ii) On 11 July 1997, the Delegate refused the application for a protection visa. Twenty months elapsed between the date of the application for a protection visa and the Delegate's decision. (iii) On 13 August 1997, the applicant applied to the RRT for review of the Delegate's decision. The RRT conducted a hearing on 7 May 1999. Subsequently, the RRT, at the applicant's request, asked the Department of Foreign Affairs and Trade ("DFAT") to investigate certain of the applicant's claims. The applicant provided a detailed written response to DFAT's cable. A second hearing took place before the RRT on 3 July 2000. The RRT ultimately handed down its decision on 6 September 2000, affirming the Delegate's decision. The review by the RRT took over three years to complete. (iv) The applicant then applied for judicial review of the RRT's decision pursuant to the then Part 8 of the Migration Act 1958 (Cth). On 5 March 2001, the application was dismissed by Tamberlin J: [A] v Minister for Immigration and Multicultural Affairs [2001] FCA 252. (v) An appeal to the Full Court was dismissed on 7 August 2001: [A] v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 153. The proceedings in the Federal Court, from filing of an application to disposition of the appeal, therefore, took only about eleven months to resolve. (vi) On 4 September 2001, the applicant sought leave to appeal to the High Court. The application was dismissed on 23 April 2002. The special leave application took some seven months to finalise. (vii) Nearly eight months after the application for special leave to appeal was dismissed, the applicant commenced the current proceedings in the High Court. As already noted, they were remitted to this Court on 6 February 2003. So far as the evidence shows, no attempt was made by or on behalf of the Minister to remove the applicant from Australia at any time during the eight months preceding the commencement of the current proceedings.

The RRT's Reasons 8 A convenient summary of the proceedings before the RRT is contained in the judgment of Heerey J in the Full Court appeal. I reproduce the account here: "The appellant claimed to fear persecution in Bangladesh arising from his work as a liberal journalist publishing numerous articles and writings criticising the policies and activities of Islamic fundamentalists. He also claimed to have been a founding member of the Nirmal Committee which was established to bring to trial members of Jamaat-e Islam, the fundamentalist Islamic party in Bangladesh who were believed by the Committee to have committed war crimes during 1971 war of independence. In support of his claims the appellant submitted a large volume of his publications and other documentation such as photographs of himself with high profile Bangladeshi liberals. He identified a course of harassment and persecution over several years which he claimed to have suffered in Bangladesh at the hands of Islamic fundamentalists in retaliation for his public criticisms of their activities, for example: 1. In January 1992 he was followed by two motor bikes and the riders fired shots and threw bombs at him. 2. In June 1993 his six year old daughter was kidnapped. He received a telephone call from a man who offered to return his daughter if he ceased his publications. He agreed and his daughter was returned the next day. 3. In September 1993 fundamentalists fired shots and threw hand grenades into the offices of the newspaper where he worked. 4. In June 1995 a bomb was thrown into his car critically injuring his driver. 5. In October 1995 a shot was fired at his car, breaking the rear windshield. The appellant claimed that he had been unable to obtain protection from the authorities in Bangladesh because of the political influence wielded by the Islamic fundamentalists. It was also asserted that he had received harassment in Australia from Bangladeshi Islamic fundamentalists in retaliation for his publications in Australian newspapers. The harassment included anonymous letters and telephone calls. The Tribunal conducted a hearing in May 1999 and then arranged for inquiries to be made in Bangladesh by the Department of Foreign Affairs and Trade (DFAT) in relation to the appellant's claims. The results of DFAT's investigations were forwarded to the appellant. He responded to the DFAT inquiries with further written submissions and initial material and gave further evidence at a second hearing in July 2000. In support of its decision the Tribunal gave very substantial reasons extending over about 30 pages. In addition to a substantial volume of material provided by the appellant, the Tribunal's decision was based upon a comprehensive analysis of a large body of country information. The Tribunal accepted that the appellant worked as a journalist and that he had published articles and a book espousing anti-fundamentalist views. The Tribunal also accepted that he was associated with leading members of the Nirmal Committee and may have been injured when the offices of his newspaper were bombed in 1993. However, the Tribunal was not satisfied that this resulted in the appellant having a well founded fear of persecution in Bangladesh. In essence, this conclusion was founded upon the following findings: 1. The appellant was not an entirely credible witness and had exaggerated his importance as a political figure and the extent of the harassment he had received; 2. It was clear from the country information that the height of Islamic fundamentalist violence against journalists and progressives was from 1992 until 1994. Since then the level of such violence had declined markedly. Moreover the Awami League, which was the most secular of Bangladesh's major political parties, was elected to government in 1996 and neither supported nor condoned religious extremists and extremism or violence; 3. Information from DFAT and a variety of other sources indicated that there were many liberal and secular journalists who continued to express their views without facing serious problems and that the Nirmal Committee continued to exist without serious problems effecting its members and supporters; 4. In any event, the evidence indicated that people who had been threatened by fundamentalists could obtain protection from the authorities. Although there was only a remote chance that the appellant would need protection, it would be available to him if required."

The Proceedings in the Federal Court 9 In the proceedings heard by Tamberlin J, the applicant (who was then represented by counsel) argued that the RRT had misapplied the law and had failed to set out its findings on material questions of fact or to refer to the evidence as required by s 430(1)(c) and (d) of the Migration Act. His Honour held that there had been no misapplication of the law and that the RRT had satisfied the requirements of s 430(1)(c) and (d). 10 Before the applicant's appeal was heard by the Full Court, the High Court decided Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. That decision effectively disposed of the applicant's argument founded on s 430(1)(c) and (d) of the Migration Act. However, the Court gave a broad interpretation to the now-repealed s 476(1)(b) of the Migration Act, which at the time provided a ground of review where "the person who purported to make the decision did not have jurisdiction to make the decision". 11 The applicant's counsel, in the light of the decision in Yusuf, sought to amend the grounds of appeal by abandoning those agitated before Tamberlin J and replacing them with three grounds, as follows:

• the RRT's decision was beyond jurisdiction because the RRT was under a duty to inquire further about information contained in a particular DFAT cable and to consider the applicant's request that it call evidence from an editor named by him;
• the RRT erred in law in determining whether the applicant faced a real chance of persecution; and
• the RRT acted beyond jurisdiction in failing to take into account relevant considerations. 12 The Full Court refused leave to amend the grounds of appeal because it concluded that they were without merit. Their Honours pointed out, inter alia, that although the DFAT cable had been critical of the applicant, the RRT had not relied on any of those criticisms except where they had been confirmed by independent evidence.

The Submissions 13 The applicant's written submissions in support of the relief he now seeks make generalised allegations of unfairness and bias on the part of the RRT. He submits that certain documents taken into account by the Delegate were not before the RRT and that therefore the RRT had failed to comply with s 418(3) of the Migration Act. The applicant also makes a number of complaints about the RRT's findings of fact and repeats submissions previously rejected by Tamberlin J and the Full Court. The applicant, who represented himself at the hearing, elaborated some of these submissions in oral argument. 14 The Minister has filed a notice of objection to competency. The basis for the notice is that the proceedings were commenced in the High Court outside the time limits prescribed by the High Court Rules 1952 for applications for writs of certiorari and mandamus. The High Court Rules, O 55 r 17, provide that an order nisi for a writ of certiorari to remove a proceeding of an inferior tribunal for the purpose of its being quashed shall not be granted unless the application for the order is made no later than six months after the date of the proceedings. A Court or Justice may enlarge the time appointed by O 55 r 17: see High Court Rules, O 60 r 6(1). The High Court Rules, O 55 r 30, provide that an application for a writ of mandamus to a "judicial tribunal" to hear and determine a matter shall be made within two months of the date of the refusal to hear, or within such further time as is under special circumstances allowed by the Court or a Justice. 15 The Minister submits that since over three years elapsed between the date of the RRT's decision and the commencement of proceedings in the High Court, no extension of time should be granted. Mr Wigney, on behalf of the Minister, points out that even if the applicant relies on the proceedings in the Federal Court and his application for special leave to appeal to justify the delay, there is an unexplained delay of seven months between the High Court's refusal of leave and the institution of the current proceedings. Mr Wigney recognises that the Court has power to extend time, but says that it would be inappropriate to do so having regard to the absence of merit in the applicant's case. 16 The Minister also relies on so-called Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589). He argues that it was plainly unreasonable for the applicant not to raise most of the grounds on which he now relies in the first judicial review proceedings which were ultimately concluded by the High Court's refusal of special leave to appeal. To the extent that the applicant invokes grounds that may have been unavailable to him in the earlier proceedings by reason of restrictions on the jurisdiction of the Federal Court imposed by the now repealed s 476(2) of the Migration Act, the Minister says that those grounds have no merit.

Reasoning 17 In Applicant M216/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 931, the circumstances of a remittal from the High Court were very similar to the present case. Heerey J noted that the Federal Court Rules contain no express time limits applicable to applications for prerogative relief remitted to the Federal Court. He also pointed out that the 35 day limitation period now prescribed by s 486A of the Migration Act (assuming it to be constitutionally valid) did not apply to the applicant, because the RRT's decision, as here, was made before 27 September 2001. 18 His Honour held, however, that the time limits prescribed in High Court Rules, O 55 rr 17 and 30, applied to the remitted proceedings insofar as the applicant sought writs of certiorari and mandamus. His Honour considered that a limitation provision of the kind specified in those rules was to be characterised as part of the definition of a substantive right. Accordingly, unless the time fixed by the High Court Rules was enlarged, the applicant could not succeed. Ultimately, Heerey J declined the application to extend time, having regard to the delay of six years in bringing the proceedings. 19 Heerey J did not specifically address the question of whether High Court Rules, O 55 rr 17 and 30, apply to an order nisi seeking writs of certiorari and mandamus in relation to a decision of the RRT. While it would seem that the RRT is an "inferior court or tribunal" and that its decision can be characterised as an "order…or other proceeding" for the purposes of O 55 r 17, it is by no means clear that the RRT is a "judicial tribunal" for the purposes of O 55 r 30: see Re Commonwealth; Ex parte Marks (2000) 177 ALR 491, where McHugh J left open the question of whether the Australian Industrial Relations Commission is a "judicial tribunal" for the purposes of O 55 r 30. 20 In my opinion, it is unnecessary to explore the meaning and scope of O 55 rr 17 and 30. The short answer to the application, regardless of whether or not the time limits in the High Court Rules apply to the proceedings remitted to this Court, is that it is without merit.

The Principal complaint 21 The applicant's principal complaint is that the Secretary of the Department did not comply with s 418(3) of the Migration Act, because he had failed to give the Registrar of the RRT two specific documents in his possession or control, namely Documents CX 17737 and CX 19246. Section 418(3) is as follows: "The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision." 22 The applicant points out, correctly, that the Delegate's decision record expressly identified the two documents as among those considered by him. The applicant also correctly points out that the RRT made no reference to these documents in its reasons for decision. The applicant asks me to conclude that the two documents had not been "given" to the RRT within the meaning of s 418(3) and that this omission is sufficient, on the authority of Muin v Refugee Review Tribunal (2002) 190 ALR 601, to justify quashing the RRT's decision, presumably on the basis that the omission would constitute a jurisdictional error. 23 The Delegate's decision records that the material he took into account included the following: "B2 Doc. CX17737 - DFAT Cable DA1206 dated 11/7/96 from Dhaka; B3 Doc. CX19246 - Bangladesh PM Hasina Assures Press Freedom; Reuter Business Briefing Electronic Download, dated 31 August 1996." 24 The decision record also includes these passages: "I note that the Australian High Commission in Dhaka advises, As a further indication of the societal rejection of fundamentalism and the associated difficulties it produces, the fundamentalist political party the Jamaat-E-Islami had its number of parliamentary seats reduced from 18 to 3 in the June 1996 National Election (B2)…. I note that the Prime Minister Sheikh Hasina has expressed her commitment to respecting press freedom (B3)." The references to "B2" and "B3", respectively, are to the two documents previously identified by the RRT. 25 The application book, which incorporates (so Mr Wigney informed me) all the material before the RRT, does not include copies of documents B2 and B3. However, Mr Wigney tendered the two documents. Document B2 (the DFAT cable) contains the following notation: "This Report was prepared by the Country Information Service (CIS) and included in CISNET (the network of CIS country information databases which are available to all refugee/protection visa decision-makers in the Department of Immigration and Multicultural Affairs [DIMA] and the Refugee Review Tribunal [RRT])." It is clear on its face that Document B3 (the business briefing from Reuter) had been downloaded from Reuter News Service. In any event, the decision record also makes it clear that the Delegate downloaded the document. 26 In my opinion, the applicant's submission fails at the first hurdle because no breach of s 418(3) of the Migration Act has been established. It is true, as Mr Wigney conceded, that the RRT probably did not have a hard copy of either of the documents in its files. But the two documents were specifically identified in the Delegate's decision record (which was given to the RRT). Moreover, they were (as I infer) readily accessible to members of the RRT in electronic form by means of computer searches using the identifiers unique to each document or using retrieval systems. I also infer that each of the two documents could be readily downloaded by the RRT Member if she so desired. 27 In Muin v RRT, the agreed facts were that members of the RRT had access to the CISNET data base and other electronic data bases via desktop computers. The RRT's file did not include hard copies of a number of documents identified by the delegate as Part B documents. However, these documents were available to the RRT member in electronic form by accessing data bases which were regularly updated. 28 Gleeson CJ held that there had been sufficient compliance with s 418(3) of the Migration Act. His Honour said this (at 608): "Section 418 imposes a requirement to 'give' to the registrar certain 'documents'. What constitutes sufficient compliance with such a requirement depends upon the nature of the documents in question, the form in which they were available to the delegate, and the purpose for which they are to be made available to the tribunal. The purpose of the requirement is to enable the person reviewing the decision to know, and have access to, the material upon which the delegate relied, so as to be able to conduct the review. If the material is in the nature of general reference material, stored for convenience in a library, or on an electronic database, then provided the library, or the database, is accessible to the tribunal, I see no reason to interpret the requirement literally so as to require physical delivery of paper by the secretary to the registrar of the tribunal." McHugh J agreed (at 628) that the word "give" in s 418(3) is wide enough to cover a situation where the Secretary, through the Department, permits the RRT to have access to the relevant data base. 29 Kirby J took a more literal approach to the construction of s 418(3) and concluded that the documents in electronic form had not been "given" to the RRT. However, his Honour acknowledged (at 652) that "[e]lectronic 'documents' could perhaps be 'given' by separate identification and annexure to an electronic transmission." Kirby J went on to observe that "even that was not done in the present case. Merely making such 'documents' (or some of them) 'available' in a mass of undifferentiated material in a database of constantly changing content does not comply with the language and particular design of the Act." 30 The other members of the Court did not specifically address this issue.

31 To the extent that Gleeson CJ and McHugh J expressed views different from those of Kirby J concerning the application of s 418(3) of the Migration Act to material on electronic data bases, I think I should follow their approach. On that approach, the Secretary did not contravene s 418(3), since the two relevant documents (B2 and B3) were (a) specifically identified by the Delegate in the decision record, which was provided to the RRT; and (b) accessible to the RRT member in the manner I have described. Indeed it is not entirely clear, even on Kirby J's reasoning, that the Secretary would be held to be in breach of s 418(3). The present is not a case where documents were made available only in "a mass of undifferentiated material in a database of constantly changing content". The relevant documents were identified by unique numbers in the Delegate's decision record which was provided to the RRT and could easily be located and downloaded by the RRT Member from the data bases. 32 In any event, even if the Secretary had failed to comply with s 418(3) of the Migration Act, this would not establish that the RRT's decision was without legal effect. That is because the Secretary's compliance with s 418(3) of the Migration Act was not a precondition to the exercise of the RRT's review functions and there was no obligation on the RRT to consider the documents described in s 418(3) as part of the review process: see Muin v RRT, at 609, per Gleeson CJ; at 615-616, per Gaudron J; at 641-642, per Gummow J; at 659, per Hayne J. 33 Furthermore, there is nothing in this case (unlike Muin v RRT) to show that the applicant was misled by anything done or not done by the RRT, nor that he wished to contradict any information contained in the two documents. The DFAT cable was relevant to the Delegate's analysis merely because it confirmed that the fundamentalist party, Jamaat-e Islam, had been reduced to holding three seats following the 1996 Bangladeshi elections. This fact appears not to have been in contest before the RRT. Certainly, the applicant did not suggest that he disputed DFAT's reporting of the result of the elections. 34 The Reuter business briefing was regarded by the Delegate as relevant because it suggested that the (then) new government was committed to respecting press freedom. The RRT, which was considering the position four years later, concluded, on the basis of advice from DFAT and other sources referred to in the reasons, that many liberal, secular journalists continued to express their views without facing serious problems. The Reuter document appears to have played no part in the RRT's reasoning or conclusions. 35 In my view, the RRT did not deny procedural fairness to the applicant.

OTHER CONTENTIONS 36 The applicant repeats his claim that the RRT failed to comply with the requirements of s 430(1)(c) and (d) of the Migration Act, in that it did not set out its findings on material questions of fact or refer to evidence upon which those findings were based. Tamberlin J rejected this argument, holding that the RRT had complied with its obligations. As was recognised by the applicant's counsel before the Full Court, the argument became untenable in any event following the decision of the High Court in Yusuf. 37 The applicant also repeats a contention made before Tamberlin J that the RRT had incorrectly applied the law to the facts. As Tamberlin J held, this contention, in substance, amounts to saying that the RRT erred in reaching the factual conclusion which it did. Independently of any question of issue estoppel, the argument is without merit. 38 Next, the applicant repeats the contentions put to the Full Court that the RRT should have inquired further into the DFAT cable of 16 July 1999 and should have interviewed certain witnesses. The Full Court rejected the first contention, on the ground that the RRT did not rely on or even accept the criticisms of the applicant made in the DFAT cable. The reasoning of the Full Court continues to apply to this contention, as it does, to the second contention. Both must be rejected. 39 The applicant complains that the RRT did not refer to all documents lodged by him in support of his claim. There was no requirement for the RRT to do so. As the Full Court noted, the RRT gave a detailed and carefully reasoned decision, addressing the issues raised by the applicant. 40 The applicant put forward some additional criticisms of the RRT's reasons. These, in substance, amount only to criticisms of the fact-finding process and could not amount to jurisdictional error. 41 The applicant also asserts that a DFAT officer disclosed in Bangladesh certain information about the applicant. This is said to be a contravention of s 437 or s 438 of the Migration Act, although these provisions are directed, respectively, to the Secretary and the RRT. There is no evidence to support the claim. In any event, there is nothing to suggest that the RRT requested DFAT to take the alleged action of which the applicant complains. 42 Finally, there is no substance to the applicant's claims that the RRT was biased against him.

conclusion 43 There is no need to address the Minister's Anshun estoppel argument. The application must be dismissed. The applicant should pay the Minister's costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate: Dated: 14 November 2003 The applicant appeared in person.

Solicitor for the Respondent: Blake Dawson Waldron