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

EX TEMPORE REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a judgment of a Judge of this Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("RRT") handed down on 24 January 2002. The RRT affirmed a decision of a delegate of the respondent ("the Minister") made on 17 November 1999, not to grant the applicant a protection visa. 2 The applicant is a citizen of Bangladesh, who arrived in Australia on 9 September 1999. He lodged an application for a protection visa on 14 October 1999. On 17 November 1999, the delegate refused his application. As already noted, the RRT affirmed the delegate's decision. It did so after holding a hearing on 22 November 2001. 3 The appellant claimed before the RRT to fear persecution in Bangladesh by reason of his membership of and involvement in the Bangladesh Nationalist Party ("BNP"). He claimed that he had been targeted by activists from rival parties, particularly the Awami League ("AL"). In support of his claims, he submitted photographs purporting to show his brother who had been injured by AL thugs. 4 The RRT accepted that the appellant had joined the student wing of the BNP. However, the RRT was not satisfied that the appellant was a witness of truth and found that he invented claims to suit his purposes. The RRT expressed the "very strong view" that his claim of being a person under threat of persecution was not sincere. Notwithstanding its adverse view of the appellant's credibility, the RRT accepted that he might have suffered some harm and harassment in Bangladesh, but found that he had greatly exaggerated the threats facing him. 5 In particular, the RRT found that the appellant had been a very low level party worker and, as such, it was most implausible that political enemies would have regarded him as a significant enough threat to pursue him relentlessly throughout Bangladesh (as he had claimed). The RRT also considered that, given the appellant's lack of profile and his three year absence from politics in Bangladesh, it was implausible that the AL would have continually asked his family for news of him over that period (as he had also claimed) or that it would pursue him on his return to Bangladesh. 6 The RRT rejected the appellant's claim that members of the AL had bashed his brother. It found that the appellant had exaggerated and fabricated this claim and that photographs taken at a different time had been used in order to support the false claim. 7 The RRT noted a new claim by the appellant at the hearing, namely that he feared harm from sections of the BNP itself, who used violence in politics. The RRT was of the "very strong view" that the appellant had invented this claim in order to keep alive his application for a protection visa in the face of the BNP's election win. 8 The RRT went on to say that even if it had accepted the appellant's claim that he was at risk of harm from BNP elements, the BNP government would protect him from such people. 9 The RRT accepted that in Bangladesh violent attacks occur among activists in the student wings of political parties. For that reason, the RRT accepted that the appellant, as an activist of the BNP's student wing, might occasionally have been threatened, harassed and even bashed by rivals. However, the RRT said that it was not satisfied that the appellant faced a real chance of harm, given his evidence that he was opposed to violence in politics. Given that attitude, the RRT found that he would choose to avoid contact with thuggish elements of any party he joined and thus would not be dragged into the "vendetta-type of violence" associated with those groups. 10 The RRT pointed out that the BNP had attained power in Bangladesh in the October 2001 elections. The RRT considered it "nonsensical" to assert that a member of a party fears persecution in the expression of his political views when his party has swept the polls. 11 The RRT summarised its conclusions as follows: "I find that the [appellant] has invented significant claims to boost an application for a protection visa and I find that he has exaggerated the risk of harm that might face him in politics. Even if harm is threatened, I am satisfied that he would be able to avail himself of the protection of the country because independent evidence shows that the authorities of Bangladesh are willing to protect people from political harm and are determined to prevent such harm from happening. In the light of all this, I am not satisfied that the [appellant] has a well-founded fear of persecution for a Convention reason in Bangladesh." 12 The primary Judge noted that the appellant had filed no written submissions in support of his application, but had addressed the Court orally. His submissions had related to the factual findings made by the RRT. 13 His Honour approached the case on the basis that s 474(1) of the Migration Act had the meaning and effect ascribed to similar words by Dixon J in R v Hickman: Ex parte Fox and Clinton (1954) 70 CLR 598. On this basis, the question was whether the RRT's decision was a bona fide attempt by it to exercise its powers. The primary Judge found that there was no foundation for any lack of bona fides. In substance, the appellant's claim had been rejected because the RRT did not accept his evidence and also because the RRT's conclusions were supported by objective material. The primary Judge could find no basis for denying that s 474(1) applied to validate the decision of the RRT. 14 The appellant filed written submissions in support of his appeal but did not elaborate upon them. The written submissions in part seek to canvass factual issues that were resolved against the appellant by the RRT. His claim that the RRT's factual conclusions were erroneous does not establish jurisdictional error that would attract relief of the kind referred to in s 39B of the Judiciary Act 1903 (Cth) ("Judiciary Act"). 15 The appellant also sought to invoke the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 in support of a claim that the RRT had denied him procedural fairness. As Mr Reilly, who appeared for the Minister, pointed out, the appellant did so by means of written submissions that seem to have borrowed language found in the judgment of Kiefel J in NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293. 16 Perhaps not surprisingly, the author of the written submissions appears not to understand fully the facts and reasoning in Muin v Refugee Review Tribunal. The complaint made by or on behalf of the appellant appears to be that the RRT did not receive some or all of the documents referred to in Part B of the delegate's decision. 17 This complaint was not made to the primary Judge and is not referred to in the notice of appeal, which does not identify clearly any specific ground of appeal. Nonetheless, since the appellant is unrepresented, we shall address the fresh contention he has raised on the assumption that he has applied for leave to amend the notice of appeal. 18 In Muin v Refugee Review Tribunal, the agreed facts were that the plaintiff had been induced to believe that the RRT had received certain Part B documents and that if he had known that the RRT did not in fact have them, he would have corrected that omission: see at 659, per Hayne J. In the present case, there is no evidence that the RRT did not receive the Part B documents referred to by the delegate. Nor is there any evidence that, even if it did not receive those documents, the appellant believed that the documents had been provided or that he would have acted differently had he known that the documents had not in fact been forwarded to the RRT. The factual basis for the application of the reasoning in Muin v Refugee Review Tribunal is therefore wanting. Any application for leave to amend the notice of appeal to include the fresh ground should be refused. The ground lacks substance. 19 It follows that the appellant has not established any jurisdictional error that would attract relief of the kind referred to in s 39B of the Judiciary Act. 20 It is not necessary to consider the effect of s 474(1) of the Migration Act. However, the effect of that provision, as interpreted by the Full Court in NAAV v Minister for Immigration and Multicultural Affairs [2002] FCAFC 228, is to validate the RRT's decision even if the decision had involved a breach of the common law rules of procedural fairness or any other error of the kind relied on by the appellant. Thus even if the appellant had shown that the RRT's decision was affected by what, in the absence of s 474(1), would be a jurisdictional error, the appellant would not be entitled to relief. 21 The appeal must be dismissed, with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam, Sackville & Conti JJ.