NACM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 21 December 2001 and handed down on 24 January 2002, affirming the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) made on 17 November 1999 not to grant the applicant a protection visa. The application for review by this Court was lodged after 2 October 2001 and therefore falls to be decided under the provisions of the Migration Act 1958 (Cth) (the Act) in place and operative after 2 October 2001. The applicant seeks relief under s 39B of the Judiciary Act 1903 (Cth). 2 The applicant is a citizen of Bangladesh who, having arrived in Australia on 9 September 1999, lodged an application for a protection (class XA) visa with the Department on 14 October 1999. On 17 November 1999 the delegate of the Minister refused to grant this application. On 23 November 1999 the applicant applied for review by the Tribunal. The decision of the Tribunal affirming the delegate's decision is the subject of the application before me. 3 The effect of ss 474, 475, 475A and 476 of the Act has been discussed by me in NAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713. My reasons in NAAG should be read with these reasons. Suffice it to say that it is evident from the language of s 474, the Second Reading Speech of the Minister and the terms of the relevant Explanatory Memorandum that the Parliament intended s 474 to carry the meaning and effect ascribed to similar words by Dixon J in R v Hickman; Ex parte Fox and Clinton (1954) 70 CLR 598, and the line of High Court authority following and applying Hickman. As I said in NAAG, what is also clear is that s 474 was and is not intended to deny to the Court authority to deal with 'privative clause decisions', under s 39B of the Judiciary Act, in any way. Rather, construing s 474 with ss 65 and 36 in the context of the evident purpose of s 474, the state, or lack, of satisfaction about whether Australia has protection obligations to a non-citizen is not invalid if it is made in a bona fide attempt to act in the course of the authority, relating to the subject matter of the legislation and if it is reasonably capable of reference to the power given to the Minister, delegate or Tribunal. 4 Such a decision is not invalid, even if, absent s 474, the reaching of the state of satisfaction, or lack thereof, and acting thereafter would have been bad in law for jurisdictional reasons or for non-jurisdictional error. 5 The applicant's grounds of complaint are that the Tribunal erred in not considering the supporting facts and documents presented by the applicant in relation to his claims, in not considering the applicant's claim and in failing to investigate his claims, thereby affecting his decision with actual bias. The applicant filed no written submissions. He addressed me orally, through an interpreter. It was clear from his submissions that he takes issue with the factual findings of the Tribunal. 6 In these circumstances, my task is to deal with the matter as I have outlined in [3] above. 7 The first question is thus whether the Tribunal's decision was bona fide, in the sense to which I made reference in NAAG , that is whether it was an honest attempt to deal with the subject matter conferred on the executive, or whether it involved personal fault on the part of the decision-maker going beyond error of fact or law, which must be clearly identified or proved. I will return to this shortly. 8 Secondly, the decision must be directed to those matters which can be said to relate to the subject matter conferred on the executive in the context of the Act. The decision of the Tribunal, reviewing a delegate's decision about the issue of a protection visa requiring the reaching of a state of satisfaction, or lack thereof, under ss 65 and 36, was plainly one having such a relationship with the Act. 9 Thirdly, in the context of the Act and the decision of the Tribunal, there must exist some degree of connection between the decision and the power conferred such that it can be said that the decision is reasonably capable of reference to the power given to the Tribunal under ss 414 and 415. Plainly that requirement was satisfied. 10 Was the decision a bona fide attempt by the Tribunal to exercise its powers? I have examined the reasons of the Tribunal and the material placed in the Court Book and have considered the submissions of the applicant. There is no foundation for any allegation of lack of bona fides, nor, in that context, of actual bias. The applicant's claims were, essentially, that he was a supporter of the BNP party in Bangladesh and that he feared violence and persecution at the hands of the Awami League. He was unable to satisfy the Tribunal that he faced a real chance of such persecution, in particular in circumstances where the BNP had once again won power at the most recent elections. In part, his evidence was rejected as untruthful and, in part, objective material was used to found this conclusion. 11 The Tribunal also found that there was an adequate degree of protection which the Bangladeshi authorities were both willing and able to give to him. 12 I can see no foundation for any assertion that these findings were not reached bona fide. 13 For the above reasons the application must be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.