NAHN v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT Introduction 1 This is an application for judicial review of a decision of the Refugee Review Tribunal ("the RRT") handed down on 10 December 2002 affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision of the delegate was given on 29 September 2000. 2 The applicant is a citizen of Bangladesh. He claimed to have a well-founded fear of persecution on the ground of imputed political opinions. The Applicant's Claims 3 The applicant's claimed fear of persecution arose from what he said was his close association with Taslima Nasreen ("Ms Nasreen"), a feminist author whose writings and statements provoked death threats from some Islamic groups in the early 1990s and who left Bangladesh for Europe in 1994. 4 The applicant claimed that Ms Nasreen appointed him as her local book distributor in 1992 and that he feared attacks from fanatical religious groups as a result of his association with Ms Nasreen. He pointed to examples of this including the burning of his bookstall as well as a violent attack on him and his employees in November 1999. 5 The applicant also said that he had organised a demonstration on 3 December 1999 at which the procession was attacked by fanatical Muslim students and that the procession turned into a riot at which some of the protesters were injured. 6 The applicant said that he had left Bangladesh in December 1999 but that he had returned in April 2000 only to find that the situation had not improved. He said that the police and other fanatical groups were looking for him in order to kill him. The decision of the RRT 7 The RRT was of the view that significant aspects of the applicant's evidence were confused, internally inconsistent and inconsistent with independent evidence. The RRT did not consider that the applicant was a credible or reliable witness. It was of the view that the applicant fabricated his claims in order to create the profile of a refugee to support his application for a protection visa. 8 The RRT rejected the applicant's claim that he was closely associated with, and a book distributor for, Ms Nasreen. The Tribunal member stated:- "In my view, the applicant's lack of knowledge of significant issues to do with Taslima Nasreen's life and work is inconsistent with is (sic) claim to have had a close association with her and to have distributed her books. I am led to conclude that the applicant fabricated this claim in an attempt to create for himself the profile of a refugee." 9 As the RRT did not accept the applicant's claimed association with Ms Nasreen, the RRT did not accept that he led demonstrations in support of her or that he was harassed, assaulted or arrested. 10 The RRT went on to say that the applicant's lack of knowledge concerning Ms Nasreen was not the only basis on which the RRT member rejected the applicant's claims. Several examples of his inconsistent evidence were set out in the RRT's decision. One of the examples was the claim that he had organised a demonstration on 3 December 1999. The RRT stated that the applicant's passport indicated that he was in Jakarta during the period when the demonstration was said to have taken place. 11 The RRT noted the "applicant's suggestion" that the RRT member contact Ms Nasreen to verify his claims. However, the RRT stated that, on the basis of the problems with the applicant's own evidence to which the RRT member referred, the RRT concluded that the applicant was a completely unreliable witness and it was therefore not necessary to make any attempt to contact Ms Nasreen. The Application for Review 12 The application for review was in very general terms. It was supported by an affidavit which set out facts which were included in the RRT's reasons for decision. 13 The applicant expanded on the grounds of review in lengthy written submissions. It is clear that the written submissions were not prepared by him. They were prepared by someone with knowledge of recent case law in the area of migration. 14 The applicant appeared in person and he did not add to the written submissions in any substantive way. He did refer to the RRT's factual findings and he relied upon the failure of the RRT to obtain evidence from Ms Nasreen. Decision 15 The first part of the applicant's written submissions sought to challenge the factual findings of the RRT. It is well established that this is not the function of the Court on an application for judicial review. Accordingly, the first ground of review must fail. 16 In the second part of his written submissions, the applicant contended that the circumstances in this case were similar to those which the High Court found in Muin v Refugee Review Tribunal (2002) 190 ALR 601 to amount to a denial of procedural fairness. 17 However, as a Full Court observed in NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293, the decision in Muin turned on agreed facts and it is necessary for an applicant to provide evidence in support of those facts in order to bring himself or herself within the Muin principle. 18 Here, the applicant did not seek to prove that the Part B documents were not before the RRT. Nor did he seek to prove that he had been misled. 19 The applicant's attempt to invoke the decision in Muin must therefore be dismissed for the reasons stated by Kiefel J in NADR at [25] as follows:- "At a factual level the present case differs substantially from Muin. It is not agreed that the documents were not physically provided to the Tribunal. It is not agreed that the appellant was misled by the letter, or that he would have taken any particular steps had he been told, if it was the case, that the Tribunal had not been provided with them. It was submitted that the Part B documents can be seen to relate to the appellant's case. So much can be expected. Beyond that the appellant sought to utilise the findings of fact in Muin to make out his case. Needless to say, that is not a course which is open. Each case must be considered on its own facts." 20 See also to the same effect the following remarks of Hely J in NADZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 118 at [14]:- "As the Full Court made plain in NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 at par [24] Muin does not establish that the sending of letters in terms of the letter of 12 August 2002 would amount to a denial of procedural fairness in circumstances where the RRT has not referred to the Part B documents in its later decision. Rather, Muin holds that there is a want of procedural fairness where an applicant before the RRT is misled into thinking that the RRT has considered particular relevant information favourable to the applicant, and as a result, the applicant does not ensure that such information is placed before the RRT, or drawn to its attention. The later decision of the High Court in Re Minister for Immigration & Multicultural Affairs; ex parte Lam(2003) HCA 6, confirms that an applicant in a case such as the present must show that he relied to his disadvantage upon communications from the RRT before there is any question of a want of procedural fairness." 21 The applicant's third point was stated in his written submissions as follows:- "The Tribunal's ignoring of relevant evidence and its finding in the face of contradicting independent evidence constitutes jurisdictional error being a breach of procedural fairness …" 22 I asked the applicant what the "relevant evidence" and the "contradicting independent evidence" were. He replied, in each case, that it was the failure of the RRT to call Ms Nasreen. For reasons set out at [23] to [29] below, I do not consider the failure to call Ms Nasreen amounted to a denial of procedural fairness. 23 The applicant did not give written notice under s 426(2) of the Migration Act 1958 (Cth) ("the Act") that he wanted the RRT to obtain oral evidence from Ms Nasreen. However, it is appears from the RRT's reasons that the applicant made an oral request or an oral suggestion to it that Ms Nasreen be called to give evidence. 24 The applicant informed me from the bar table that he was unaware of Ms Nasreen's whereabouts at the time of the hearing before the RRT. It seems from what he told me that he believed she was in the United States or Sweden. The effect of what he said was that she was somewhere overseas at the time of the hearing before the RRT. 25 If the applicant had given a notice under s 426(2) of the Act, the RRT would not have been bound to call Ms Nasreen. It would have been bound to take the applicant's wishes into account but s 426(3) states in express terms that the RRT is not required to obtain evidence from a person named in the notice. 26 The applicant could not have been in a better position by attending the hearing and saying that he wished to call Ms Nasreen; see WADA v Minister for Immigration & Multicultural Affairs [2002] FCAFC 202 at [38] per Gray, RD Nicholson and Emmett JJ. 27 In any event, s 427(4) of the Act provides that the RRT must not summon a person to appear before the Tribunal to give evidence unless the person is in Australia. As I have already said, Ms Nasreen appears to have been overseas at the relevant time. The Tribunal therefore did not have power to summon her and was prohibited under the Act from doing so. 28 In those circumstances, there can be no breach of procedural fairness in the failure of the RRT to call Ms Nasreen to give evidence. 29 The applicant sought to tender an email dated 16 May 2003 purportedly from Ms Nasreen which was said to corroborate the applicant's claims. I rejected the tender because the document was brought into existence after the date of the RRT hearing. Orders 30 The orders which I propose to make are that the application be dismissed with costs.