Reasoning
16 The notice of appeal filed by the appellant does not identify any error of law on the part of the primary Judge. A letter to the Court, which is apparently intended to contain the appellant's written submissions, raises a number of complaints about the RRT's decision. The letter complains in particular that the RRT ignored relevant evidence and displayed actual bias. The letter also suggests that the RRT denied the appellant procedural fairness, although it does not indicate in which way the RRT did so.
17 If the RRT's decision is considered independently of s 474(1) of the Migration Act, none of the appellants' complaints is made out. To the extent that the appellant contends that the RRT misapprehended evidence or underestimated the dangers facing him in Bangladesh, the contention seeks to canvass the merits of the RRT's decision and cannot establish a jurisdictional error such as would justify the grant of relief under s 39B(1) of the Judiciary Act.
18 Nor is there any substance in the complaint that the RRT denied the appellant procedural fairness. The appellant's letter refers to the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601. In that case, it was found that the RRT had taken into account documentation adverse to the plaintiff's case of which the plaintiff had been unaware. The Court also found that the plaintiff, had he known of the RRT's intention, would have made further submissions and adduced additional evidence.
19 In the present case, there is nothing to indicate that the RRT took into account documentation adverse to the appellant of which he was unaware. Even if the RRT had taken any such documentation into account, there is nothing to indicate that the appellant would have conducted his application before the RRT any differently.
20 There is, however, a plausible argument, although it is not expressed by the appellant, that the RRT committed an error of law by misconstruing the Convention definition of "refugee". As the primary Judge pointed out, the RRT did not examine the frequency with which elections are held in Bangladesh nor the likelihood of the Awami League being returned to or otherwise assuming power in the country. This might suggest that the RRT assumed that the question of whether the applicant had a well-founded fear of persecution had to be assessed by reference to a relatively short period following his return to Bangladesh. In other words, the RRT may have interpreted the Convention definition as precluding the possibility that the applicant might have a well-founded fear of being persecuted in Bangladesh at some time after the current BNP government loses power.
21 The RRT's own recital of the elements of the definition of "refugee" in the Convention Relating to the Status of Refugees explains the notion of a "well-founded" fear of persecution for a Convention reason as follows:
"an applicant's fear[of] persecution for a Convention reason must be a 'well-founded' fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a 'well-founded fear' of persecution under the Convention if they have genuine fear founded upon a 'real chance' of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent."
This explanation is consistent with the authorities: Chan v Minister for Immigration and Immigration and Ethnic Affairs (1989) 169 CLR 379, at 389, per Mason CJ; at 429, per McHugh J; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, at 571-574.
22 There is nothing in the RRT's analysis or in the authorities which suggests that a fear of persecution can be "well-founded" only if it relates to events which might occur (if at all) immediately upon or soon after the applicant's return to his or her country of nationality. As the joint judgment in Minister for Immigration and Ethnic Affairs v Guo points out (at 572), the task of the RRT includes making findings as to whether particular events "might or might not occur in the future". It is true that a finding that there is no real chance that an applicant will suffer persecution for some time after his or her return to the country of nationality may make it difficult to persuade the RRT that there is a real chance that the applicant will suffer persecution in the more distant future. But if the RRT is to apply the correct test - that is, whether an applicant has a well-founded fear of persecution for a Convention reason - it may be necessary to consider whether the applicant's fear of being persecuted in the more distant future (and not merely in the period shortly after his or her return) is well-founded.
23 As we understood Mr Kennett, who appeared for the Minister, he did not dispute that the RRT would have erred if it had construed the Convention definition of "refugee" to limit consideration of the applicant's fear of persecution to a relatively short period following his return to Bangladesh. Mr Kennett submitted, however, that the RRT's reasons, properly understood, showed that it had not misconstrued the definition. He pointed out that the RRT had concluded its reasons by recording that it was not satisfied that the appellant had a well-founded fear of persecution in Bangladesh for a Convention reason. Mr Kennett acknowledged that the RRT had not expressly considered whether the appellant's fear of persecution might prove to be well-founded should the BNP lose power at some stage. Nonetheless, so he argued, the RRT must be taken to have implicitly found either that there was no real chance that the appellant would be persecuted even if the Awami League regained power, or that the BNP could be expected to remain in power more or less indefinitely.
24 It is by no means clear that the RRT's reasons, even if given a benevolent construction, can be read this way. In the critical paragraph (extracted at [8] above), the RRT gave as the reasons for rejecting the appellant's claims the advent of the BNP government, its lack of interest in harming Freedom Party members, and the independence of Bangladesh's judiciary. The RRT simply did not advert to the question of whether the appellant's fear of persecution would be well-founded if the BNP lost power in Bangladesh. It is difficult to interpret the RRT as doing anything other than approaching the appellant's case on the basis that it was required only to consider whether he had a well-founded fear of persecution for such time as the BNP government remained in power. It must be remembered that the appellant claimed that members of the Awami League had not only laid false criminal charges against him, but had threatened to kill him. While the RRT had serious doubts about the veracity of the appellant's claims, it proceeded on the basis that they were true. An independent judiciary could hardly protect the appellant against the threat to kill him if those making the threat acquire the means to carry it out.
25 It is not, however, necessary to express a final view on this question, because s 474(1) of the Migration Act protects the RRT's decision from the consequences of what would otherwise be irregularities such as errors of law. Section 474(1) 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.
26 The effect of s 474(1) was considered by a five member Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. The approach of the majority in NAAV v Minister was summarised by another Full Court in NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294, at [24], as follows:
"In NAAV v Minister, von Doussa J (with whom, on this point, Black CJ and Beaumont J agreed) stated (at [635]) that the Migration Act contained a hierarchy of provisions of which, in relation to privative clause decisions, s 474(1) was intended by Parliament to be the leading provision. His Honour held that "apparently inconsistent provisions of the Act" are to be construed as subject to the restrictions in s 474(1). Consequently, the effect of s 474(1) is to expand the jurisdiction of the relevant decision makers including the Tribunal so that a decision that is affected by irregularities that would, in the absence of s 474(1), amount to jurisdictional error will be within power, subject to satisfying the so-called "Hickman conditions. The Hickman conditions require that the decision
· be a bona fide attempt to exercise the power which the Act reposes in the decision maker;
· relate to the subject matter of the Act;
· be reasonably capable of reference to the power.
In addition, it follows from the reasons of the majority in NAAV v Minister that a decision will not be protected from judicial review if it contravenes what is variously described as an "inviolable" condition, "jurisdictional factor" or "structural elements" found in the legislation: at [12], per Black CJ; at [619], per von Doussa J."
27 There is no doubt, in our view, that the second and third of the Hickman conditions were satisfied in the present case. However, we interpret the appellant's submissions as intended to argue that the RRT did not make a bona fide attempt to exercise the powers conferred on it by the Migration Act. In Wu v Minister for Immigration & Multicultural Affairs [2002] FCA 1242, Sackville J summarised the approach taken in NAAV v Minister to the first of the Hickman conditions, in terms (at [59]) with which we agree:
"the touchstone that emerges from the judgment in NAAV [v Minister] is that a decision of the MRT will satisfy the first Hickman condition if it is the consequence of an honest attempt to act in pursuance of the powers of the tribunal. There may be cases where the disregard of statutory requirements or, indeed, of the evidence, is so 'blatant' (to use von Doussa J's word) that an inference can be drawn that the decision-maker has not honestly attempted to exercise the relevant statutory power. There may also be cases where the decision-maker has knowingly exercised a power for an improper purpose: Daihatsu Australia Pty Ltd v Federal Commissioner of Taxation (2001) 184 ALR 576, at 587, per Finn J. But the fact that the tribunal has misconstrued the legislation or committed procedural errors will not, of itself, ordinarily establish that it has not honestly attempted to exercise its power: Daihatsu v FCT, at 590."
28 There is no basis, in our view, for concluding that the RRT did not make a bona fide attempt to exercise its powers. The fact that the RRT may have misconstrued the Convention definition of "refugee" does not demonstrate either bias or lack of good faith. The RRT plainly attempted to discharge its functions honestly and it did not attempt to exercise its powers for any improper purpose.
29 The RRT clearly satisfied the Hickman conditions, and there can be no suggestion that the RRT contravened an inviolable statutory requirement.
30 Accordingly, the appeal must be dismissed, with costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sackville, Allsop & Jacobson.