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[2003] FCA 412
Federal Court of Australia
2003-04-28
Madgwick J
Original judgment source is linked above.
REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 This is an application for judicial review brought under s 39B of the Judiciary Act 1903 (Cth). It attacks the validity of a decision of the Refugee Review Tribunal ("the Tribunal") which was handed down on 29 January 2003. 2 The application, in the parts which are comprehensible, asserts that the applicant was deprived of an opportunity fully to present his case to the Tribunal; that the Tribunal failed to act according to substantial justice; that the merits of the case were ignored by the Tribunal Member and that the applicant is "… not satisfied with the RRT Member's comments regarding my real chance of persecution in Bangladesh". The accompanying affidavit refers to factual matters and indicates an intention to lodge "… further submission and document ASAP". 3 In submissions prepared for him allegedly without fee by a migration agent, further assertions that might have something to do with jurisdictional error include "that procedures that were required to be observed under the Migration Act 1958 in connection with the making of the decision were not observed"; that "the Tribunal misjudged faith of the applicants claim"; that the Tribunal's ignoring of relevant evidence and its finding in the face of contradicting independent evidence indicate actual bias; that the RRT has failed to investigate the applicants claims. References are made to Plaintiff S157 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 195 ALR 24 and to SGDB v The Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 74 and to Muin v Refugee Review Tribunal & Ors and Lie v Refugee Review Tribunal (2002) 190 ALR 601. 4 The applicant is a Bangladeshi national who came to Australia on 15 June 2000, travelling on a Bangladeshi passport in his own name issued in June 1999. He applied for a protection visa on 10 July 2000. On 10 August 2000 a delegate of the respondent Minister refused that application and on 5 September 2000 the applicant applied for review of that decision. 5 At a hearing before the Tribunal on 12 November 2002, the applicant was represented by a migration agent and he gave oral evidence, having submitted further material to the Tribunal in December 2001. The applicant's adviser also submitted a four page submission and photocopies of a number of documents. The applicant claimed at the hearing that he could not speak or follow the hearing for long because he had "some problem in my brain". There was medical documentation before the Tribunal which the applicant had submitted concerning a head injury in May 2000. However, this did not suggest that there would be any ongoing or consequent difficulties. The Tribunal Member recorded that he had nevertheless "provided a break half way through what was a relatively short hearing" and that he "did not note any evidence of difficulties during the hearing". 6 As will appear, the applicant raised a fresh issue for the first time at the hearing before the Tribunal and then requested further time to obtain documentation about that matter. Despite observing that the applicant had had plenty of time previously to provide any documentation about that matter, the Tribunal allowed the applicant two weeks for further submission of material. However, as the Tribunal member recorded, no such further information was provided to the Tribunal, nor did the applicant contact the Tribunal to seek an extension of time or explain the lack of any further material. 7 The applicant claimed that he had been involved in student politics from 1989 until 2000 as a supporter and leading office holder in the student wing of the Bangladesh National Party (the "BNP"). He claimed that he had been subjected to harm in various ways by political opponents firstly in the Jatiya Party and later by supporters of the Awami League. In particular, he referred to "false cases" in considerable number which had been lodged against him, including claims that he was implicated in a murder. He claimed that in May 2000 he was attacked by armed men whom he described as "Awami terrorists" and beaten unconscious. He claimed to have fled to India and Nepal in 1999, on hearing that he had been accused of the murder, and to have promptly fled his local area for Dhaka, the capital, after the May 2000 beating and then to have left the country. He claimed that he would be killed if he returned to Bangladesh by Awami League opponents. 8 At the hearing before the Tribunal, the applicant claimed for the first time that he was targeted not only by local supporters of the Awami League student wing but also by some members of the BNP as well. Although the BNP had swept to office as a result of overwhelming success in national elections in 2001, the applicant claimed this would not avail him because the government was taking steps to see that outstanding criminal charges were quickly finalised, and this included charges against BNP members. If the only information one had about Bangladesh were the materials in these cases, the Court could be forgiven for concluding that the chief occupation of people in Bangladesh is supporting one or other of the major political groupings and then being terrorised by false charges laid by political opponents. Nevertheless, the Tribunal Member in this case, as it seems to me, proceeded with apparently due and appropriate care. 9 While the Tribunal Member was critical of some aspects of the applicant's account and did not accept some of his documents as genuine, he did not simply disbelieve the applicant on a wholesale basis. The Tribunal accepted that the applicant might well face charges in Bangladesh but did not accept that they arise essentially and significantly for a Convention reason as s 91R(1)(a) of the Migration Act 1958 (Cth) ("the Act")requires. Nor did the Tribunal Member accept that the laying of the charges amounted to persecution in respect of which the Bangladeshi State would not or could not provide protection. 10 As to the applicant's late claims about difficulties with factional enemies within the BNP, the Tribunal Member did not accept that he faced serious harm from such people. However, the Tribunal Member took the view, in any event, that his BNP opponents were
motivated, as I understand the Tribunal Member, by personal ambition rather than by any difference of political opinion with the applicant. 11 The chronological account of the proceedings which I have given, gives the lie to the claim that the applicant did not have an adequate opportunity to present his case. The fact is that he had a luxurious amount of time to prepare and to add to anything he wanted to put to the Tribunal before the hearing and he failed to take advantage of the extra time generously given to him by the Tribunal. 12 As counsel for the Minister observes, if the claim that the Tribunal did not act according to substantial justice and ignored the merits of his case means that the Tribunal reached a conclusion on the merits different from that sought by the applicant, no jurisdictional error is revealed. If it means that the Tribunal intentionally or dishonestly ignored important aspects of the case it might amount to an allegation of actual bias. This allegation it seems is made and my short references to the way in which the Tribunal Member approached the task give the lie to this claim, which never should have been made. 13 This case continues the tradition, in my experience, that migration agents who are not also admitted to legal practice in Australia add little but distraction to the consideration of applicants' claims for refugee status. Why the respondent's department is required to disperse significant amounts of public funds on hearings made necessary or extended by incompetent submissions, or worse, by such migration agents, permitting the public purse to suffer its emptying in this way with so little apparent effort, to put an end to the untoward practices, is not clear to me. It may be that I am insufficiently well-informed. It may be that the phenomenon has been insufficiently clearly brought to the attention of the Minister. If that is so, these remarks may remedy any such deficiency. 14 Returning to the supposed failures by the Tribunal, I know of no procedure that the Tribunal did not observe that it should have, nor does anything appear that would remotely suggest that the failure to follow any such procedure might amount to jurisdictional error. The Act lays down a good many procedures that are to be followed and it is to be implied from the Act that other procedures may be required, but it makes a mockery of the adjective "jurisdictional" in the term jurisdictional error, to suppose that any failure to observe any procedure however minor, qualifies to invalidate a decision of the Tribunal. 15 There is not the faintest reason to believe that the Tribunal did not act in good faith. There is no evidence to suggest that the applicant may have been disadvantaged in the way that the successful plaintiffs were in Muin v Refugee Review Tribunal & Ors and Lie v Refugee Review Tribunal (2002) 190 ALR 601, nor was there any denial of natural justice, which was the issue in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. The relevance of SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 to the case is not apparent to me. 16 Quite apart from these matters, Bangladesh is often described as a place where political violence is endemic and that being so, it would appear to me that there must be considerable numbers of cases where, whether the violence is endemic or not, people might have a legitimate claim for refugee status. Accordingly, I have considered the material to see whether any jurisdictional error suggests itself to me, but none does. 17 For these reasons the application must be dismissed. The applicant is ordered to pay the respondent's costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.
NAJI
Minister for Immigration & Multicultural & Indigenous Affairs