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

REASONS FOR JUDGMENT 1 By an application filed on 9 April 2002 the applicant has sought judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 13 March 2002. By its decision the Tribunal affirmed a decision made by a delegate of the respondent not to grant the applicant a protection visa. 2 The applicant claims to be a citizen of Bangladesh although, as the Tribunal found, he travelled to Australia on an Indian passport. On his application for a protection visa the applicant stated that his religion was "Buddhist" and his occupation was "Monk". He claimed to fear persecution by Muslim fundamentalists because he had written a book critical of the Muslim religion. He stated that he would not be secure in either Bangladesh or India. 3 The delegate of the respondent concluded that the applicant was a citizen of India. The delegate noted that India, the original home of Buddhism, is a secular state which by its constitution provides for freedom of religion. The delegate was satisfied that the Indian authorities would be willing and able to protect the applicant in the event of his being threatened for reason of his religious beliefs in India. However, the delegate concluded that the applicant's claims were false. He found that the applicant did not face a real chance of persecution for a Convention related reason in India. 4 The Tribunal took a different view from the delegate concerning the applicant's nationality. Its written reasons for decision state: "Giving the Applicant the benefit of some doubt I am satisfied that he is or was a Bangladeshi national. I am satisfied that he did write articles and a book critical of the fundamentalist Muslims. I am satisfied that he did fear that he would be persecuted if he returned to Bangladesh." 5 The Tribunal noted that the applicant had travelled extensively on his Indian passport including to the United Kingdom, Norway, Korea, Thailand and Australia. It concluded that he had not sought protection between 1996 (he claimed to have fled persecution in 1995) and his arrival in Australia in 1999 because he did not need it. It was satisfied that he had been issued with an Indian passport that was accepted wherever he went, he was able to enter and depart India and he was not persecuted in India. The Tribunal concluded that the applicant has effective protection in India with the consequence that Australia has no protection obligations to the application under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967. 6 The decision of the Tribunal is a "privative clause decision" within the meaning of s 474(2) of the Migration Act 1958 (Cth) ("the Act"). As the recent decision of the Full Court of this Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 288 makes clear, a privative clause decision will be valid if the exercise of the decision maker's power was not in breach of an inviolable limitation or restraint on that power and if the three conditions identified by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615 are satisfied. Those conditions are: (a) the decision maker is required to have made a "bona fide attempt to exercise its power"; (b) the decision "relates to the subject matter of the legislation"; and (c) the decision is reasonably capable of reference to the power given to the decision‑maker. 7 No question arises in this case of any allegedly inviolable limitation or restraint on the power of the Tribunal. 8 The applicant, who was legally represented before the Court, argued that the decision of the Tribunal was tainted by scepticism in the Tribunal as to the applicant's claimed Bangladeshi nationality and by a failure by the Tribunal to give appropriate weight to the fact that the applicant, as a citizen of Bangladesh, must have obtained his Indian papers fraudulently. However, these complaints, even if they could be substantiated, fall short, in my view, of establishing that the Tribunal did not make a bona fide attempt to exercise its power, that the decision of the Tribunal does not relate to the subject matter of the Act or that the decision of the Tribunal is not reasonably capable of reference to the power given by the Act to the Tribunal. 9 Despite entertaining some doubt about the claims made by the applicant, the Tribunal gave consideration to his claim to be entitled to a protection visa on the basis that he was a citizen of Bangladesh who would suffer persecution if he returned to Bangladesh. I see no reason to conclude that it did not act bona fide in doing so. In any event had the Tribunal taken the only other view open to it as to the applicant's nationality, namely that he was Indian, a Tribunal decision adverse to him was virtually inevitable. 10 Section 474(1) of the Act requires, in these circumstances, that the application be dismissed. The application is dismissed with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.