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

Federal Court of Australia|2002-07-19|Before: Branson J

REASONS FOR JUDGMENT 1 By an undated amended application filed at the Court on 22 April 2002 the applicant sought judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the respondent ("the Minister") not to grant the applicant a protection visa under the Migration Act 1958 (Cth) ("the Act"). 2 The amended application, which is brought pursuant to s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"), is in the following terms: "The applicant claims: A DECLARATIONthat the Federal Court of Australia has jurisdiction to review 'privative clause decisions', as provided by s 474 of the Migration Act 1958, for jurisdictional error and/or including denial of natural justice. A DECLARATION that s.474 of the Migration Act 1958, is invalid for being inconsistent with s 75(v) of the Constitution to the extent that s 474 precludes review of 'privative clause decisions', by the Federal Court, for jurisdictional error and/or including denial of natural justice. A WRIT OF MANDAMUS directed to the Second Respondent ordering the Second Respondent, by himself or by other Member of the Refugee Review Tribunal, other than the Member having made the decision under review, being a decision of 20 November 2001 made by Chris Keher, and other than Member S. Akmeemana who made an earlier decision in relation to the applicant, to hear again the application of the applicant and to determine that application according to law. A WRIT OF CERTIORARI directed to the Second Respondent ordering the Second Respondent to quash the said decision of 20 November 2001 being a decision affirming the decision of the minister's delegate refusing to grant the applicant a protection visa. UPON THE GROUNDS THAT: 1. Sec 474 of the Migration Act 1958is invalid for purporting to oust the judicial power of the Commonwealth which is vested in Commonwealth courts by virtue of Chapter III of the Constitution. Particulars S. 71 of the Constitution S. 474 of the Migration Act 1958 2. S. 474 of the Migration Act 1958 is invalid for being inconsistent with sec. 75(iii) and/or sec. 75(v) of the Constitution Particulars S. 75(iii) of the Constitution S. 75(v) of the Constitution S. 474 of the Migration Act 1958 3. S. 474 of the Migration Act 1958 is not effective to oust judicial review of an administrative decision made by a Commonwealth officer where the ground for review is: (a) lack of reasonableness as to jurisdiction ('reasonableness review') (b) failure or constructive failure of jurisdiction; or (c) denial of natural justice in respect of jurisdiction. 4. The decision under review was made in excess or usurpation of jurisdiction and is reviewable for: (a) lack of reasonableness as to jurisdiction ('reasonableness review') Particulars Re Key Claims No.'s 5, 6, 9, 10, 11, 12, 13, 15, 17 and 18 (b) failure or constructive failure of jurisdiction; or Particulars Re Key Claims No.'s 5, 6, 9, 10, 11, 12, 13, 15, 17 and 18 (c) denial of natural justice in respect of jurisdiction. Re Key Claim 9 The applicant claims: 1. Orders in terms of the claims made herein 2. Costs." 3 The terms of the amended application suggest that the applicant may, at least at the time that the document was drawn, have had access to legal advice. However, counsel for the Minister advised the Court at the hearing that the amended application is in the precise terms of an application made in another matter and that the reference to "Key Claims" in ground 4 was capable of being understood only in the context of the other matter. It may therefore be the case that the applicant did not have legal advice at the time of the filing of the amended application but merely copied another person's application. 4 The matter came before me for a directions hearing on 26 April 2002. The applicant was not legally represented but had the assistance of a court‑appointed interpreter. On that day I directed the Minister to serve all necessary notices under s 78B of the Judiciary Act and listed the matter for hearing on 5 June 2002. I urged the applicant to take immediate steps to seek legal assistance for the purpose of the hearing. 5 When the matter was called on for hearing the applicant again appeared without legal representation. Again he had the assistance of a court‑appointed interpreter. The applicant sought an adjournment of the hearing to allow him further time to raise the funds necessary to pay for legal representation. As I was not satisfied that there was any real likelihood that an adjournment would result in the applicant being able to obtain legal representation for the purposes of a hearing, I declined to grant the adjournment sought. However, as I considered that there was a chance that the applicant might be able to obtain more limited legal assistance, I granted the applicant leave to supplement his oral submissions with written submissions provided that any such submissions were filed and served within fourteen days. I granted the Minister leave to file and serve answering submissions within a further three days of the service on him of any such supplementary submissions. 6 Not surprisingly as he lacked legal representation, the applicant was not able to advance any submissions at the hearing in support of his amended application. It was clear that the applicant had no real understanding of the grounds upon which the amended application sought relief in respect of the decision of the Tribunal. Mr Reilly, counsel for the Minister, spoke briefly in support of his comprehensive and helpful written submissions. 7 On 18 June 2002 written submissions dated 17 June 2002 were filed by the applicant. The terms in which the submissions are drawn indicate that they were drawn not by the applicant but by someone, most probably a legal practitioner, on his behalf. They contain a number of statements such as: "… I submit that the applicant's case was initially considered by …"; and "I submit that the present applicant has suffered from breach of the rules of natural justice." 8 The submissions do not disclose the identity of their author. If it be the case that the submissions were drawn by a legal practitioner, I consider that the identity of the legal practitioner should have been disclosed to the Court. A legal practitioner owes duties to the Court which are of wide ranging significance. These duties derive from the special relationship that a legal practitioner has with the courts and they override the duties which the legal practitioner owes to his or her client (Re B [1981] 2 NSWLR 373 per Moffitt P at 382; Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224) ("Caboolture Park Shopping Centre case"). The duties include that a legal practitioner must not keep back from the court any information within his or her knowledge which the court is entitled to have before it and must not mislead or deceive the court by stating facts which are to his or her knowledge not true (A Guide to the Professional Conduct of Solicitors issued by the Council of the Law Society (UK) 1974). 9 The special relationship which exists between a legal practitioner and this Court is such, in my view, that the Court is entitled to know when and to what extent a legal practitioner is acting on behalf of a litigant before the Court. In the Caboolture Park Shopping Centre case, the Full Court at 233‑234 observed: "It is of the utmost importance for the administration of justice in this Court that legal practitioners acting in proceedings before the Court are honest, candid with the Court and neither obstruct the administration of justice by the Court, nor abuse the Court's process. It can hardly be accepted that the Court must stand idly by when practitioners appearing before it, or acting in matters in the Court, act with impropriety." 10 Unless the Court knows when, and to what extent, a legal practitioner is acting on behalf of a litigant, the special relationship between the legal practitioner and the Court will be diminished in significance and the Court disempowered from taking appropriate steps to deal with instances of impropriety. Further, should the Court be misled into concluding that a litigant is without legal advice or assistance, when the truth is that he or she has access to legal advice or assistance, the obligation on the Court, including its administration, to provide reasonable assistance to unrepresented litigants may well be abused. 11 The line between when a legal practitioner is acting on behalf of a litigant in a proceeding and when he or she is merely providing informal advice or assistance which the litigant may or may not act upon will not always be easy to draw. However, there can, in my view, be no doubt that when a legal practitioner draws a document which is filed in a proceeding he or she is to that extent acting on behalf of the litigant on whose behalf the document is filed. 12 The written submissions filed by the applicant summarised the relevant facts and issues as follows: "The Facts 1. The applicant is a citizen of Bangladesh and claimed fear of persecution as a member of the Bangladesh Nationalist Party (BNP). He arrived in Australia on 19 January 1997. On 12 February 1997 the applicant made a protection visa application with the Department of Immigration and Multicultural Affairs. However, no specific claims were made in respect of the applicant's fears of return to his native country. 'Though indicating that he will be later submitting a statement to support his application the matter was determined by the delegate of the Minister prior to receipt of such' [RD 179]. On 28 April 1997, the delegate's decision was appealed to the RRT on 12 May 1997 for review. The Issues 2. From the above facts, the question is, whether the RRT has jurisdiction to review an invalid application contrary to s 47(1) of the Migration Act 1958. Secondly whether the notice of invitation to appear under s 425A, of the Act, with regards to implied obligation of natural justice had been complied with." 13 The assertion that "no specific claims were made in respect of the applicant's fears of return to his native country" is not, in my view, accurate. The applicant applied for a protection visa by completing the prescribed form (ie Form 866). He indicated on the form that he sought protection in Australia so that he did not have to go back to Bangladesh. In answer to the question "Why did you leave that country?" he answered: "I left Bangladesh because I feared I would be persecuted by the Awami Leagude [sic] regime. See statement: to be provided."

In answer to the question "What do you fear may happen to you if you go back to that country?" he answered:

"I fear that I will be either killed or tortured and unlawfully detained by the Awami League regime if I return to Bangladesh because of my involvement in the Bangladesh Nationalist Party. See attachment to be provided."

After identifying the Awami League as the source of the harm that he feared in Bangladesh, the applicant answered the question "Why do you think they will harm/mistreat you if you go back?":

"I believe the Awami League regime will harm me because I was a high profile student leader of the Bangladesh Nationalist Party. See statement to be provided." 14 The decision of the Full Court in Bal v Minister for Immigration & Multicultural Affairs [2002] FCAFC 189 makes it plain that the applicant's application for a protection visa was not an invalid application. The indication on the face of the form that further particulars of his claim would be provided in a statement to be provided by him at a later time did not mean that the applicant did not substantially comply with the requirements of the Act and the regulations when he completed the Form 866. No further consideration need be given to the issue said to arise from the asserted invalidity of the applicant's application for a protection visa. 15 The second issue identified by the written submissions filed by the applicant arises from the circumstance that the Tribunal was reconstituted pursuant to s 422 of the Act upon the resignation of the member who originally constituted the Tribunal for the purpose of determining the applicant's application for review of the decision of the delegate of the Minister. It was the member who originally constituted the Tribunal who had heard the oral evidence of the applicant. 16 Section 422 of the Act relevantly provides: (1) If the member who constitutes the Tribunal for the purposes of a particular review: (a) stops being a member; or (b) for any reason, is not available for the purpose of the review at the place where the review is being conducted; the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review. (2) If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted." 17 The written reasons for decision of the Tribunal record the following: "The Tribunal was originally constituted by S. Akmeemana who has left the Tribunal. The matter has been reallocated on 20 June 2000 to the current Tribunal to finish the review. The Tribunal has before it the Department's file, which includes the protection visa application and written submissions in support of the application. The Tribunal also has before it written submissions in support of the application for review. The applicant also gave oral evidence to the previously constituted Tribunal on 27 May 1998. The hearing tapes have been transcribed and been read by me. I wrote to the applicant (copy to his adviser) on 12 October 2000 advising him of the above and requesting whether he had any further information to put to the Tribunal. There was no initial response to this letter, and the Tribunal telephoned the adviser on 23 January 2001, who said that they had advised the applicant of the letter but had not heard from him. The Tribunal called again on 31 January 2001 and 6 February 2001. The Tribunal was advised that they did not have instructions and no contact from their client for at least 12 months. The Tribunal received a letter from the applicant dated 28 March 2001 … . I have considered that response. …" 18 By his letter dated 28 March 2001 the applicant advised the Tribunal: "I refer to your letter dated 12 October 2000. I was informed by my agent about your letter a few days ago. But I gave my correspondence address to my agent before which is: PO Box 469, Kingsford, NSW 2032. My agent failed to send me the letter in time. As such a delay has occurred. My personal situation has changed a lot in due course of time. I am seriously involved in the Bangladesh Nationalist Party (BNP) Politics since my arrival in Australia. On 16 November 2000 one of our great leader and deputy leader (opposition) in the national parliament of Bangladesh professor AQM Badruzzdoza Chowdhury came to Australia for a political tour. As such a function was held on 18 November at Science Theater of the University of New South Wales. I was one of the organizers of the function. I led the cultural programs in the function. I also arranged two reputed singers from Bangladesh. Mr. Saju Kamal, the assistant general secretary of the central committee Jatiyatabadi Jubodal (Youth wing of the BNP) was also a special guest in the above‑mentioned function. Under the guidance of professor Chowdhury a committee has been formed under the title of Bangladesh Nationalist Party (BNP), Australia (Inc). This committee will have the status like a district committee in Bangladesh. I was elected as the cultural secretary of this committee. I accompanied Mr. Chowdhury during his stay in Sydney. He visited my resident and took dinner with me. The central committee of the BNP has also approved this committee. This news has been published in various magazines in Australia and in Bangladesh. I have been engrossing all of this news and photographs with letter. It will take a number of weeks time to translate a number of documents. When it will be available I will send to the Tribunal. Therefore, I request you please consider the above circumstances and provide me with an opportunity to submit all relevant documents in this regard. …" 19 The Tribunal made the following findings with respect to the applicant's membership of the BNP: "I accept, as detailed above, that the applicant is a medium level member of the BNP and that he has continued that involvement in Australia. I note that his party has won the October 2001 general elections. In those circumstances I find that any fear he has now in respect to the past in Bangladesh is not well founded in that the chance of him suffering any harm is remote and insubstantial. He is, on his admission, well connected and a long serving member of the BNP and in those circumstances it is not unreasonable to expect that he can seek assistance from the government and his associates in the BNP if indeed he has any concerns." 20 The written submissions filed by the applicant state: "The reality is that the applicant was unawares of the change in guard, with respect to who actually heard his case and the decision‑maker in the same case. The purpose of the strict requirement to appear before the Tribunal is a recognition that parties before it, ought to be given procedural fairness - in the nature of a hearing. This allows such applicant in the present case, the opportunity to put his case before the Member who will have the benefit of hearing the applicant's claimed fear, first hand, before rejecting such application. It is the case that Part 8 of the Act, contain what can be described as 'natural justice' provisions. The differently constituted Tribunal is bound by law to grant the applicant an opportunity to be heard: s 425. Otherwise, implied by the very circumstances of the case. The respect for applicant's human rights is a mitigating factor in granting him a hearing, hence the inconclusive hearing conducted by the previous Member, before leaving office." 21 There would seem to be little reason to doubt that the applicant learnt from the letter of the Tribunal dated 12 October 2000 that the Tribunal had been reconstituted. Even if he did not, the above submissions are directly inconsistent with the reasoning of the Full Court in Liu v Minister for Immigration & Multicultural Affairs [2001] FCA 1362; 187 ALR 348. In that case the Full Court held that where an applicant has given evidence to a Tribunal member, reconstitution of the Tribunal does not require that the applicant be given another opportunity to appear before the Tribunal and give evidence. 22 In any event, the applicant by his letter of 28 March 2001 did respond to the invitation issued by the reconstituted Tribunal. He did not request another opportunity to appear before the Tribunal. Rather he requested the Tribunal to consider the additional circumstances outlined in the letter and to provide him with the opportunity to submit "all relevant documents in this regard". The Tribunal, as its written reasons for decision disclose, did give consideration to the additional circumstances outlined in the letter of 28 March 2001. Although the decision of the Tribunal was not made until 29 October 2001, nothing suggests that the applicant provided to the Tribunal translations of the documents identified in the letter dated 28 March 2001 or indeed any further documents. 23 The submission that the applicant was denied procedural fairness by the Tribunal is untenable. 24 In the circumstances it is not necessary for consideration to be given to grounds 1, 2 and 3 of the amended application. No arguments were advanced in support of these grounds either at the hearing or in the written submissions filed by the applicant. As to ground 4, even if it be assumed that s 474 of the Act does not operate to prevent the Court from giving consideration to the ground, the submissions made to the Court do not substantiate the ground. 25 Having given consideration to the reasons for decision of the Tribunal I am satisfied that there is no ground upon which the decision is open to review by this Court. 26 The application will be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Counsel for the Applicant: The applicant appeared in person

Counsel for the 1st and 2nd Respondent: Mr T Reilly

Solicitor for the 1st and 2nd Respondent: Australian Government Solicitor

Date of Hearing: 5 June 2002

Date of Judgment: 19 July 2002

Migration Act 1958(Cth)ss 422, 474

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