NAFT v Minister for Immigration & Multicultural & Indigenous Affairs

bennett j: 1 The appellant arrived in Australia on a visa obtained in the United Arab Emirates on a Bangladeshi passport which suggests that he is a national of Bangladesh. He claims, however, to be a stateless Bihari refugee who was born in and substantially grew up in Bangladesh. 2 It was accepted by the Refugee Review Tribunal ('the Tribunal') and the primary Judge that, if that were the case, he would be entitled to be considered for refugee status. However, the Tribunal considered that there was a material difference between Biharis who, in 1971, declined Bangladeshi citizenship seeking repatriation to Pakistan and those who accepted the then offer of Bangladeshi citizenship. It concluded for the reasons it gave, which were entirely factual, that the appellant was not a stateless Bihari but 'a fully-fledged citizen of Bangladesh'. As this was the basis for the appellant's claim, it was unsuccessful before the Tribunal. 3 In the hearing of an application for judicial review of the Tribunal decision, the primary Judge took account of the submissions put to him and observed at [13], correctly in our view: 'The applicant complains of factual findings and, as best as I can understand it, complains in effect that the Tribunal was actually or apparently biased against him.' 4 His Honour observed, at [15], that as far as he could tell from the material before him, the Tribunal had examined the appellant's claims with some care and had come to conclusions which were open on the evidence before the Tribunal. His Honour could see no indication that, in disbelieving the appellant the Tribunal was apparently biased against him in any way or that the Tribunal had any actual bias against him. 5 The submissions to this Court are essentially the same as those before the primary Judge. Indeed the appellant resubmitted in this Court his written submissions made to the primary Judge. He said that he did not wish to add anything in this Court and when the matter was further discussed only raised certain factual matters. The appellant contends that the primary Judge did not deal with all of his reasons as to why he says the Tribunal decision should be set aside. We do not see this as correct. 6 Counsel for the respondent points out that some of the factual assertions in the appellant's written submissions, in which he asserts that the Tribunal made findings contrary to his evidence, are themselves directly contrary to the appellant's own statements made in support of his application which were before the Tribunal. In any event, the appellant's reasons all relate to factual findings of the Tribunal. Further, they relate to the ultimate question of fact, that is, whether the appellant is a stateless Bihari. To the extent that they are said to support an inference that the Tribunal was biased, the primary Judge did consider these submissions and made the findings I have already referred to. 7 The appellant made some reference to a failure to comply with s 430 and s 353(2)(b) of the Migration Act 1958 (Cth) ('the Act'). As to the latter section I take it that the appellant means s 420(2)(b) of the Act. Although the primary Judge did not refer to the submissions expressly, even if a breach of these sections were established, it would not amount to jurisdictional error (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323). 8 No appellable error has been identified in the decision of the primary Judge, nor has jurisdictional error been identified in the decision and reasons of the Tribunal. 9 In my view the appeal should be dismissed with costs. SPENDER J: 10 I agree. HELY J: 11 I also agree. SPENDER J: 12 The order of the Court is that the appeal is dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Hely and Bennett.