NADF of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs

Application for Adjournment 1 The applicant complains about a decision of the Refugee Review Tribunal (the Tribunal) made on 13 November 2001. 2 The date of that decision is important not only for the resolution of the substance of the matter but also for the adjournment application with which I am now dealing. In 2001 the Commonwealth Parliament passed legislation, taking effect on 2 October 2001, radically altering the grounds for review under the Migration Act 1958 (Cth) (the Act) which applicants in matters of this kind can rely upon in challenging decisions of the Tribunal, amongst other tribunals. 3 Previously there had been a limited list of grounds for review under s 476 of the Act. The denial of natural justice had been removed explicitly as a ground for review; Wednesbury unreasonableness, as it was called, and other grounds of review were either eliminated or narrowed. Parliament was able to do this in relation to the Federal Court because the Federal Court's jurisdiction is statutory and capable of being controlled by Acts of the Commonwealth Parliament. This led to a disconformity or difference in the jurisdiction of the High Court and the jurisdiction of this Court. The jurisdiction of the High Court is constitutional in that s 75(v) of the Constitution enshrines the ability to challenge decisions of officers of the Commonwealth by mandamus and prohibition. 4 The purpose of explaining this is that from October 2001, the jurisdiction of the High Court and the jurisdiction of this Court were brought into line by allowing parties to bring proceedings under s 39B of the Judiciary Act 1903 (Cth)in this Court. However, what the Parliament did was to enact s 474 of the Act, being a provision referred to as a privative clause. The general effect of sections of Acts of Parliament such as this is set out in the various reasons of the Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228. While there was a difference of view in some respects in those judgments in respect of the different complaints in the matters before them, the general approach to clauses or provisions of the Act such as s 474 were basically common. 5 Section 474 does not limit the jurisdiction of this Court, but rather widens the authority of the decision maker. It widens it by, in effect, saying - as long as the decision-maker approaches the matter bona fide, that is honestly and in good faith, and as long as the matter is reasonably referrable to the power apparently being exercised, the decision will be authorised by Parliament. Difficult questions can arise about statutory construction and the like as to whether a particular decision is one covered by the privative clause. 6 Here, there is no doubt as a matter of statutory construction that the decision of the Tribunal was a purported exercise of the power of review under s 412 and following of the Act, in dealing with a decision under ss 36 and 65 of the Act for a protection visa. 7 Thus, the only basis for review will be whether the Tribunal reached its decision in a bona fide way, dealing with the matter reasonably referrable to the power, and as a matter of statutory construction, whether there was the breach of what is sometimes called an inviolable limitation or fundamental limitation left in place by the privative clause. I have allowed the applicant effectively to amend his claim. I did this by admitting into evidence a letter of 26 August 2002 which, from its face, was plainly drafted for him, as he said, by a friend or colleague who must have had some training or at least some legal background or some familiarity with legal matters. 8 The original application was discursive and disclosed no ground of review either under the previous regime or under the privative clause regime. It dealt with factual matters and a complaint as to the substance of the result - what is sometimes called merits review, which under not only the previous regime and the current regime, but also standard administrative law is not a basis for this Court to review an administrator's decision. 9 The letter of 26 August 2002 provides as follows: This purports to be an Application pursuant to s 39B of the Judiciary Act 1903 (Cth) which seeks to challenge a decision of the Refugee Review Tribunal ('the tribunal'), handed down on 6 December 2001, to refuse the applications for a protections visa pursuant to the Migration Act 1958 (Cth) (the Act). I am a citizen of Bangladesh. I came to Australia on 12 January 1999 and applied for a Refugee and Humanitarian Visa which was refused on 15 March 1999 and I applied to the Tribunal to review that decision. The grounds of the application for the Federal court as follows: 1) The tribunal did not consider the Applicant as a refugee despite many evidentiary proofs. 2) The procedures that were required to be observed under the Migration Act 1958 in connection with the making of the decision were not observed. 3) The tribunal ignored the merits of the claim. It did not take into consideration the verdict from Bangladesh country report. 4) The tribunal did not act in good faith in regards to my claims. 5) The tribunal misjudged fate of the applicant's claim. 6) The tribunal made a number of errors to decide the fate of the applicant's claim. The applicants were not (& still are not) represented by thesolicitor. 7) The Tribunal's ignoring of relevant evidence and its finding in the face of contradicting independent evidence which indicates actual bias constitute jurisdictional error being a breach of procedural fairness which is an essential condition of the exercise of the decision making power and attracts s.39B Judiciary Act 1903 as per Gaudron J in Abebe v Commonwealth (1999) 162 ALR 1 at 33 paragraph [113]. Thus, subject to the operation of discretionary factors, breach of those rules is a jurisdictional error which will ground prerogative relief. 8) I am a genuine refugee under the UN Convention and sub-class 866 of the Migration Act 1958, but the authority has not considered my claims and I have been refused to remain in Australia permanently. The RRT has failed to investigate my claims, specifically the grounds of persecution, in Bangladesh. Therefore, the tribunal's decision was affected by actual bias constituting judicial error. 9) The very recent High Court of Australia Judgement "Muin v Refugee Review Tribunal & Lie v Refugee Review Tribunal. The Judgement is very relevant of my RRT decision of my protection visa application. … 10 The letter set out at [9] above complains about nine matters. The matters raised are phrased, at least in part, with an eye to the change of the law last year. However, in significant part, there is also a claim about the merits of the decision, that it is in effect wrong having failed to deal adequately with material put before the Tribunal. 11 Importantly, however, there is a claim of actual bias, as I read it, and a claim of denial of natural justice. On the authority of the Full Court decisions referred to collectively as NAAV, supra, the denial of natural justice ground does not amount to the identification of a breach of a fundamental or inviolable provision or question of law not covered by the privative clause, that is, s 474 of the Act. In particular this was dealt with by a primary judge in NAAV, supra, the appeal from whose decision was dismissed by the Full Court. 12 However, the question of a denial of natural justice and the question of actual bias do amount to a substantive aspect of any complaint of the kind which is made in point 4 of the letter which is set out at [9] above. That is that the Tribunal did not act in good faith. If there has been a denial of natural justice and it is said that the Tribunal was biased, those matters would or could inform any assessment as to whether or not the Tribunal acted in good faith. 13 Good faith is a serious matter. That is, to allege that the Tribunal lacked good faith is a serious matter because it alleges in effect that the Tribunal failed to act honestly in dealing with the matter or alternatively, in a way attracting personal criticism, the Tribunal did not in effect deliberately intend to approach the claim with the seriousness that it required. 14 The applicant's matter came on for hearing before me in March 2002. At that time he made the substantive complaints, some of which were repeated today, that he was not able to communicate adequately with the Tribunal in such a way that he had in effect been denied a fair hearing by the Tribunal. Those matters being raised, I indicated that it was appropriate for me to listen to the tape recordings and read the transcript of the Tribunal hearing. No party demurred from that course. These were later supplied to me. I listened to the tape recording and read the transcript. Having done so, the matter was re-listed for hearing. On the re-listing of the matter today the applicant indicated that he wished to give me the letter of 26 August 2002, which he did, and he now wishes to obtain the assistance of a lawyer and for this he needs an adjournment. 15 Some relevant facts about this application for an adjournment were contained in material the applicant provided from the bar table. I allowed him to speak from the bar table but I will treat what he said as able to be acted on since the solicitor for the respondent indicated that if I did so, he did not wish to cross-examine the applicant. 16 It is clear that the applicant has had legal advice on the terms of the Tribunal's decision. This was provided in February 2002. The first day of the hearing took place on 15 March 2002. The applicant has indicated that he was not happy with the advice of the legal representative. No one appeared for him in March. The matter was left part heard for longer than I would have liked and that was a matter for me. However, what it did do was give the applicant further time to approach a lawyer if he wished to do so. He indicated to me that he has spoken to an acquaintance or friend in England who will provide or seek to provide money for the obtaining of a lawyer once it is clear how much that will cost. 17 If I thought, on the basis of the terms of the Tribunal's decision, the transcript, the tape and what the applicant has said to me, that there was the possibility of a ground of review encompassed within s 39B of the Judiciary Act in the light of the existence of the privative clause, I would, subject to an order for costs, have granted the adjournment. However, the basis of the review being what it is and the authority of the decision maker being widened as it has been by s 474, for the reasons I am about to express in slightly more detail, I do not see how it can be successfully argued that the decision of this decision maker was vitiated by some error left available and authorised to ground review by the terms of s 474 of the Act. 18 In those circumstances, in the light of the delay but also primarily in the light of the lack of any apparent basis for review, I think that it would be futile to adjourn this matter and it would simply place both parties at a further burden for costs which ought not be expended. These reasons for refusing the adjournment must be read with the reasons which I am about to give in relation to the application as amended. 19 For those reasons I dismiss the application for an adjournment and I will now deal with the substantive application.