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

REASONS FOR JUDGMENT 1 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 7 February 2002, to refuse three applications for a protection visa pursuant to the Migration Act 1958 (Cth) ("the Act"). It is not in the proper form. The first applicant ("the husband") is married to the second applicant ("the wife"). They are the parents of the third applicant ("the child"). Each applicant is a citizen of Bangladesh. 2 The husband was granted a Visitor's Visa to enter Australia on 29 November 1994, but appears to have first entered Australia on 31 October 1995. At a time which is unclear, the husband applied for a Refugee and Humanitarian (Migrant) Class BA Visa which was refused on 26 November 1997. In December 1997 he applied for a Protection Visa. On 23 March 1998 a delegate of the respondent Minister refused the husband's application for a Protection Visa and on 27 April 1998 he applied to the Tribunal to review that decision. 3 In March 1998 the wife successfully applied for a Visitor's Visa. The wife arrived in Australia on 2 June 1998. She applied for a Protection Visa in September 1998. In December 1998 a delegate of the respondent Minister refused the wife's application for a Protection Visa. On 15 January 1999 the wife lodged an Application for a review of that decision by the Tribunal. At the time of the wife's application for a Protection Visa, she claimed to have been separated from her husband, and claimed to have a well-founded fear of persecution because, after arriving in Australia, she had had sexual relations with a man who was not her husband. However, in December 1999 the wife filed a change of address form which indicated that thenceforth she was cohabiting with her husband. At the request of the husband and wife, they were given an initial hearing by the Tribunal on the same day, namely, 7 June 2000. In February 2001 the wife indicated she did not wish to proceed with her Application based on her independent claims, but wished to be considered as someone who will suffer persecution as a result of her husband's problems. 4 The Tribunal handed down its reasons for decision on 7 February 2002, treating the claims of the wife and child as depending upon the claims of the husband. The Tribunal affirmed the decisions of the delegate. 5 The grounds of the Application to the Court were 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 Court that has given against me. 4. The Tribunal did not act in good faith in regards to my claim. 5. The Tribunal misjudged the 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 (and still are not) represented by a solicitor. 6 The Application was supported by an affidavit which claimed the following: "1. The Tribunal (RRT) did not take into account my conviction by the Court in Bangladesh as a consequence of editing the book named Munafiker Shobjatra. 2. The Tribunal deprived me of the natural justice. 3. The Tribunal denied the evidentiary proof of my claim. 4. The Tribunal's decision did not reflect the material facts of my claim. 5. The Tribunal has given a decision, which was preset in the back of its mind. 6. The Tribunal mixed up many facts with this decision, which affected the decision. 7. The Tribunal concentrated in a particular fact, while ignored many other facts in this connection." 7 Prior to the hearing, the husband filed submissions pursuant to a direction of the Court. It was accepted in these submissions that the other applicants were dependent upon his claim. Leaving aside matter which is not relevant, the submissions included the following: "4. It is an issue to consider the Honourable Court that whether the RRT breached the rules of procedural fairness by failing to give me an opportunity to comment on information which it relied. If so, whether this honourable Court can grant relief to the applicant in light of amendments to Part 8 of the Migration Act 1958 by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). 5. The Tribunal decision is dated. The Tribunal did no take any current observations given by human rights organizations and by the independent newspapers into consideration. After the change of political power through the 2001 parliamentary election a massive scale of oppression prevailed towards the opponent's political activists including the members of the Jatiya Party. 6. The Tribunal found genuineness of the Court verdict "The High Commission also advised that checks of the court records in Barisal indicated that the judgment against [the applicant] and the others was genuine". There is no authority before the RRT that the abovementioned Court has reversed its decision by some one's influence. 7. In Re MIMA; exparte Miah (2001) 179 ALR Gaudron J stated at 99 "the basic principle with respect to procedural fairness is that a person should have the opportunity to put his or her case and to meet the case that is put against him or her. Mr Miah was not given the opportunity to put a case by reference to the change in government in Bangladesh or to answer the case made against him by reference to that change. Procedural fairness required that he be given that opportunity". The Tribunal did not provide this opportunity to me to furnish this and for me to comment on that. 8. In regards to s 474 of the Migration Act 1958, the Federal Court is recently arranging for a number of appeals to be heard concurrently by the Full Court of five judges in Melbourne. There is a possibility that the hearing may take place in early June 2002, if honourable court considers the applicant has been denied procedural fairness, its judgment should be reserved until the outcome of the appeal before the Full Court. 9. Section 474 of the Migration Act 1958 is 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. 10. S 474 of the Migration Act 1058 is invalid for being inconsistent with sec 75(iii) and/or sec 75(v) of the Constitution. Particularly s 75(iii) of the Constitution, S 75(v) of the Constitution and S 474 of the Migration Act 1958. 11. 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. The Tribunal did not adequately care about current situation prevailing in Bangladesh plus constructively failed to take all material facts into consideration. 12. The Tribunal referred to Section 91R and 91S of the Migration Act 1958 to determine the refugee not in accordance with the United Nations Convention 1951 as amended 1967 protocol related to the status of refugee. In this regard I like to refer "Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1996-1997) 143 ALR 695 p698. In this case the Full Court pointed out that the Refugees Convention is not part of the domestic law of Australia and it must be construed having regard to the applicable principles of international law including the Hague Convention to which Australia is a party". 13. It is a case where I was deprived of natural justice from the RRT, which has been granted by clause 5 of the Commonwealth of Australia Act 1900 (Imp). It was established that Supremacy of Law over Arbitrary Power: Chu Kheng Lim v Minister for Immigration (1992) and Equality before the Law: A v Hayden [No 2] (1984)." 8 These submissions illustrate an unsatisfactory feature of the conduct of some migration cases. The submissions have obviously been influenced by, if not drawn by, a person with some knowledge of the law. It is not at all clear that the person concerned is qualified, and no professional responsibility is borne for what is said. The unrepresented applicant was, of course, unable to add anything of substance to the points made when the matter came on for hearing. 9 In the present case, assertions of constitutional invalidity were made in the submissions. There is no such claim in the application. This placed the respondent and the Court in a difficult position. In the event, the solicitor for the respondent took the initiative of giving notice about the constitutional claims to the Attorneys General, as required by s 78B of the Judiciary Act, but the time which was available for response was not reasonable within the meaning of that section. When the matter came on for hearing, the applicant made no application to amend the grounds of the claim, and, virtually on the Court's own motion, a ground was added: "7. Section 474 of the Migration Act 1958 is invalid." 10 At the hearing, the husband complained in particular about the manner in which the Tribunal had dealt with an issue concerning his conviction in absentia in Bangladesh for what amounts to criminal libel arising out of the publication of a book. At the invitation of counsel for the respondent, I also heard independently from the wife, although, in my opinion, there is no reason to doubt the Tribunal's statement that she had effectively abandoned her claim before it and sought to come within the umbrella of the husband's claim. Insofar as anything which she said would appear to support an individual claim on her own behalf, I have taken no notice of it. 11 As a result of the effect of s 78B of the Judiciary Act, I heard argument on all matters other than constitutional validity, and stood the proceeding over on the basis that if I was advised that a reasonable time had elapsed and that there was no notice given by any Attorney General of intention to intervene I would proceed to consider the constitutional question on the basis of the written submissions made on either side, giving leave for those written submissions to be supplemented. In the event, they have not been supplemented. 12 In NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 I held that s 474 was valid and that it operated in accordance with the principles laid down in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 and the line of High Court authority which has consistently applied those principles. In NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 539 I examined other decisions of judges of the Court and concluded that it was appropriate to consider the case on the basis that s 474 was valid and had the operation I had held it had. Without disrespect to other judgments since then, it seems to me that the judgment of Allsop J in NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 convincingly demonstrates the validity of s 474 and its operation in accordance with the Hickman principles. A Full Court has been assembled to decide appeals which involve this issue, and judgment has been reserved. There is no way of knowing when such a judgment will be forthcoming. In my opinion, it is not appropriate to await that decision. I do not propose to depart from that which I have previously held. 13 The consequence is that the only ground put forward by the applicants which has any chance of success is the claim that the Tribunal did not act in good faith. The way that this is expressed by Dixon J is that the decision-maker must have made "a bona fide attempt to exercise its power". In my opinion, that concept is not the same as the existence of bias, although there will be an overlap between them. The requirement of good faith is directed to the attempted exercise of the relevant jurisdiction, rather than to the manner of exercise of that jurisdiction. Viewed in that way, there can be no serious challenge to the decision here in question. The criticisms which have been made of it all relate to the manner of exercise of the jurisdiction. There is no suggestion that the Tribunal member was going outside the field open to the Tribunal. In any event, if the existence of bias in the Tribunal is capable of founding proceedings pursuant to s 39B of the Judiciary Act notwithstanding s 474 of the Act, the facts do not establish the existence of bias in this case. 14 The Tribunal dealt with three points. The first was the claims by the wife, which involved a consideration of various versions given by both the husband and the wife of their history. The Tribunal member formed a most unfavourable view of the credit of each of them because of discrepancies in those versions. The second was the husband's claims of fear of persecution because of his political activities in Bangladesh. These were examined and rejected in an unremarkable fashion. At the hearing of the Application the husband complained that the Tribunal ignored the current situation. In my opinion, it did not, but even if it did, that would not go any way at all towards establishing bias. It is not necessary to say more about these points. 15 The third was the husband's claims relating to his involvement in the publication of book called "Munafiker Shobjatra". The Tribunal accepted that such a book was published in Bangladesh and that it was critical of the then ruling party, Awami League, and those associated with it. It also accepted that, as a result of proceedings pursuant to ss 501 and 502 of the Bangladeshi Criminal Code, which relate to the publication and sale of defamatory matter, the husband, in his absence, was convicted and sentenced to a total of four years imprisonment and a fine of 1000 taka. The Tribunal concluded, however, that the conviction was a result of the husband and others arranging to have the charges laid against them in order to manufacture a claim for protection in Australia, giving detailed reasons for that conclusion. It also took into account that the Awami League was no longer in power in Bangladesh. It concluded that the authorities in Bangladesh would not be actively seeking the husband and the others involved and doubted that any action would be taken against them if they were returned home. In any event, the Tribunal held that even if the charges were not arranged, but rather were the result of action by members of the Awami League, the judgment being made for political reasons, it did not accept that reasonable fears of imprisonment or other harm on return were held. The Tribunal concluded that the husband would be able to appeal and receive a fair hearing from the Bangladeshi courts of that appeal if he returned and that he would be granted bail while the appeal is heard, particularly (but not only) because of the change in government. The Tribunal also rejected the husband's claim of risk of other harm from members of the Awami League because of his involvement with publication of that book, combined with his previous political activities. 16 I will briefly summarise what appears from the Tribunal's reasons as to the steps taken by it to investigate the question of the publication of "Munafiker Shobjatra" and the consequences of it. In July 1999 the Tribunal member sought information from the Australian High Commission in Dhaka, which was provided. In March 2000 the Tribunal member sought further advice from the Australian High Commission in Dhaka, which, again, was provided. On 3 July 2000 the information obtained from the High Commission was forwarded to the husband for his comment, to which he responded, in the course of which he made some allegations about persons connected with the High Commission which had been passed on to him by another person involved in the publication. On 8 September 2000 those allegations were forwarded to the High Commission, with a request that they be investigated. Although investigation of those allegations had not been finalised at the time of decision, further information was obtained which was forwarded to the husband on 3 October 2001. Following this, a second hearing was held on 21 November 2001 at which the information which had been obtained and the Tribunal's tentative conclusions about it adverse to the husband were disclosed to and discussed with the husband. 17 In argument, the husband relied upon the fact that the decision was made by the Tribunal before the investigations by the High Commission into his allegations were completed. However, the Tribunal judged that sufficient information had been obtained to enable a decision to be made. Much time had already elapsed in making inquiries. The Tribunal was bound by s 420 of the Act. Completing the review in the circumstances was not an indication of bias in the relevant sense. 18 Although the conclusions of the Tribunal may appear harsh, particularly to those accustomed to judicial proceedings, they were the result of a process which was explained in the reasons of the Tribunal. Furthermore, the manner in which the inquiry was conducted shows that the husband was given access to the relevant information which was obtained by the Tribunal member, and was given the opportunity of dealing with it. It also appears that the inquiries made and the source of the information were appropriate. Information of the type obtained may appear unsafe or unsatisfactory to those used to judicial method, but is a normal manner of dealing with administrative decisions. The applicants have not pointed to any circumstance for imputing bias or lack of good faith outside of the processes of investigation and the reasoning of the Tribunal disclosed in the reasons of the Tribunal. In my view, it would be rare indeed where bias could be found in this fashion. It is tantamount to saying that because the judge concerned does not agree with the reasoning and processes of the Tribunal, they must be the product of a biased mind. This would open the door to merits review and has been deprecated on many occasions (for a recent illuminating discussion, see SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] to [43]). 19 In my opinion, it cannot be concluded that the Tribunal did not make a bona fide attempt to exercise its power. There being no other tenable basis for attack upon the decision of the Tribunal, the Application must be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.