NADI v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2002-05-23|Before: Sackville J

REASONS FOR JUDGMENT 1 This is an application seeking review of a decision of the Refugee Review Tribunal ("RRT") handed down on 5 February 2002. The RRT affirmed a decision of a delegate of the respondent ("the Minister") made on 20 October 1999 not to grant the applicant a protection (class AZ) visa.

BACKGROUND 2 The applicant is a citizen of Bangladesh. He arrived in Australia on 24 April 1999, on a student visa. On 9 August 1999, he lodged an application for a protection (class AZ) visa. On 20 October 1999, a delegate of the respondent ("the Minister") refused to grant the applicant a protection visa. On 17 November 1999, the applicant lodged an application for review of the delegate's decision by the RRT. 3 The course of events before the RRT is of some importance. After a delay of nearly two years, the RRT wrote to the applicant on 10 October 2001, at his home address, inviting him to attend a hearing at the RRT on 15 November 2001. A copy of the letter was sent to the applicant's migration agent. 4 There is no dispute that the applicant received the letter and that he completed a form advising the RRT that he wished to give oral evidence and that his adviser would be in attendance. The applicant, however, neither attended at the appointed time nor communicated with the RRT to explain his absence. Nor did his representative appear or proffer any explanation for the applicant's non-appearance. In these circumstances, the RRT decided that, pursuant to s 426A of the Migration Act 1958 (Cth) ("Migration Act"), it would make a decision on the review without taking any further action to allow or enable the applicant to appear before it. 5 The applicant's written claims, in summary, were as follows:

the rrt's reasons 6 The RRT accepted that the applicant was "a member and minor office-bearer of the BNP". It also accepted that, over a period of ten years, he had been bashed at least twice and his home had been ransacked once, by thugs belonging to the AL. Without more information from the applicant, however, the RRT could not be satisfied that he had been the victim of persecution for a reason recognised by the Convention Relating to the status of Refugees 1951 ("Convention"), as distinct from criminal reasons. Nor could the RRT be satisfied that he had been refused help by the police, since the lack of any "result" might have been caused by factors other than an unwillingness to protect the applicant. 7 The RRT was also unable to be satisfied that the applicant's claim that a false charge had been laid against him was "genuine and Convention-related". Even if it was, the RRT was not satisfied that the applicant faced persecution in Bangladesh over such a false charge. The RRT found that:

the laying of false charges by rival political activists is a common tactic in Bangladesh;
the courts are independent and can be relied on to provide protection to those falsely charged; and
the applicant could obtain protection in Bangladesh from harm flowing from any false and politically-motivated charge. 8 The RRT pointed out that the applicant's own party, the BNP, had been swept to power in the 2001 elections. It was therefore "nonsensical" to assert that a member of the party in power feared persecution for the expression of his political views. 9 The RRT then considered what the applicant's position might be if he were to return to politics in Bangladesh. It recognised that the applicant might be threatened with harm. The RRT was satisfied, however, on the basis of the independent evidence, that he would not be denied protection. Indeed, after a survey of the independent evidence, the RRT was satisfied "that the authorities of Bangladesh are willing and capable of protecting the applicant from harm over his political views". 10 The RRT concluded as follows: "In summary, given the lack of information in the claims made by the applicant, and the fact that his party is in power in Bangladesh and is determined to prevent political violence, I am not satisfied that the applicant has a well-founded fear of persecution in Bangladesh over his political opinion or for any other Convention reason."

the application to this court 11 The applicant filed an application in this Court seeking relief pursuant to s 39B(1) of the Judiciary Act 1903 (Cth) ("Judiciary Act"). Section 39B(1) confers jurisdiction on the Court: "with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth." 12 Since the application was filed after the commencement date of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ("Amendment Act 2001") the present proceedings are governed by Part 8 of the Migration Act as amended by the Amendment Act 2001. The key provision in Part 8 is s 474, which relevantly provides as follows: "474(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: Privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not)…." 13 Neither the application nor an accompanying affidavit identified with clarity any ground that might establish jurisdictional error such as to warrant the granting of relief under s 39B(1) of the Judiciary Act. The applicant, however, filed written submissions which, as I followed them, raised these arguments: (i) the RRT had failed to give sufficient weight to evidence that activists within the BNP were subject to extreme torture from the AL; (ii) the RRT had erred by assuming that the applicant could not succeed in establishing that he was at risk of persecution for reasons of political opinion unless he could show that he had a prominent political profile; (iii) the RRT's findings were not based on "the prevalent explosive social-political predicaments" and failed to take account of the fact that the applicant was a member of the BNP's pro-liberation wing who would not benefit from the election of the BNP government in 2001; and (iv) the RRT had denied the applicant natural justice in some unspecified manner.

reasoning 14 In my opinion, none of the contentions raised by the applicant establish error on the part of the RRT. Submissions (i) and (iii), although accompanied by reference to authorities, in substance amount simply to disagreements with the factual findings made by the RRT. Since the applicant chose not to appear before the RRT, it is perhaps not surprising that the RRT did not refer to all the material the applicant now considers relevant to his case. But even if the RRT's factual findings were deficient in some respects, a matter as to which I express no view, that would not establish a basis for the Court to grant relief under s 39B(1) of the Judiciary Act (leaving to one side the effect of s 474(1) of the Migration Act). 15 Submission (ii) attributes to the RRT a process of reasoning that it did not adopt. The RRT did not assume that a person could be at risk of persecution for reasons of political opinion only if he or she had a prominent political profile. The RRT found, on the basis of the material before it (and in the absence of an opportunity to question the applicant), that the applicant was a minor office-bearer of the BNP. It accepted that he had been bashed and had his home ransacked, but was not satisfied that this was for reasons of political opinion or for any other Convention reason. The RRT was also plainly not satisfied that the applicant was at risk of persecution in Bangladesh by reason of his political opinion, given that his own political party had been swept into office. These were factual findings open to the RRT and which disclose no error. 16 Submission (iv), that the RRT denied the applicant natural justice was not explained, either in the written submissions or in oral argument. In the circumstances I have outlined, the RRT provided the applicant with an opportunity to give evidence and make submissions, in accordance with the requirements of ss 425 and 425A of the Migration Act. The applicant chose not to avail himself of that opportunity. The RRT proceeded to a decision in his absence in exercise of the power conferred by s 426A of the Migration Act. None of this involved a denial of natural justice. 17 To the extent that the applicant's submissions were intended to suggest that the RRT had misunderstood or misapplied the Convention concept of a "well-founded fear of being persecuted", I do not think it did so. The RRT explained the concept in terms derived from the leading authorities. Nothing in its analysis suggests that it failed to apply the concept in accordance with that explanation. 18 Having regard to the conclusions I have reached, it is not necessary to consider whether the applicant's claim for relief is, in any event, defeated by s 474(1) of the Migration Act. The application must be dismissed. 19 The Minister's representatives in this case failed to comply with a direction of the Court relating to the timely service of written submissions. This occasioned a short adjournment of the proceedings to enable the applicant, with the benefit of an interpreter, to read the submissions. While the Minister's default did not substantially extend the hearing time, the costs award should reflect the importance of the Minister, particularly in a case involving an unrepresented applicant, scrupulously complying with the Court's directions. The applicant should pay fifty per cent of the Minister's costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville .

The applicant was not represented. Counsel for the Respondent: Mr G Kennett

Solicitor for the Respondent: Blake Dawson Waldron

Migration Legislation Amendment (Judicial Review) Act 2001(Cth)

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