NAJI v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from the orders and judgment of the primary Judge in NAJI v Minister for Immigration and Multicultural Affairs [2003] FCA 412. The appellant did not appear at the hearing of the appeal and counsel for the respondent applied for an order that the appeal be dismissed with costs pursuant to O 52 r 38A of the Federal Court Rules. For the reasons given below it is our view that the appeal had no prospects of success in any event. In these circumstances it was clearly appropriate to accede to that application. Under O 52 r 38A the appeal is dismissed with costs. 2 The appellant is a citizen of Bangladesh. He arrived in Australia on 15 June 2000. On 10 July 2000, he applied for a protection visa pursuant to the Migration Act 1958 ('the Act'). In order for him to succeed on that application the respondent ('the Minister') had to be satisfied that the appellant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Act. In general terms the Minister had to be satisfied that the appellant was a 'refugee' as defined in the Convention being a person who: '…owing to a well-founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.' 3 The appellant claimed that he was a member of Jatiyatabadi Chatradel ('Jat C'), the student wing of the Bangladesh National Party ('BNP'). He had first joined Jat C whilst studying at college in 1988, but had remained active since that time. He claimed to have risen to senior regional positions in Jat C. He claimed that his political enemies, particularly members of the student party associated with the Awami League, another major political party in Bangladesh, had made false allegations and charges against him. These had resulted in charges being laid against him by the police - one charge in March, 1989 involving allegations relating to the use of explosives and bombs, another in October, 1989 regarding the possession of arms, another in May, 1990 and another in September, 1996 both concerning threats and extortion against shop-keepers, another in June, 1998 for throwing bricks at vehicles and setting fire to a bus and finally a charge filed in August, 1999 that the appellant entered with others into a private home and there killed a political opponent. The appellant argued, in effect, that these charges were politically motivated and that he had a well-founded fear of persecution for political reasons. He also argued that the charges remained outstanding and that he was at risk of the prosecutions being pursued if he was returned to Bangladesh. 4 The appellant's claim for a protection visa was considered by a delegate of the Minister. The delegate was not satisfied that Australia had protection obligations to the appellant. This was primarily on the basis that there is an independent judiciary in Bangladesh, so there was no reason to think that the appellant would not have a fair trial and, consequently, the appellant did not have a real chance of persecution if he returned to Bangladesh. The delegate dismissed the application on 10 August 2000. 5 The appellant sought a review of that decision by the Refugee Review Tribunal ('the Tribunal'). The Tribunal was required to determine for itself whether it was satisfied that Australia has protection obligations to the appellant as at the date of its decision. This is important in this case because the factual situation had changed in the period from the date of the delegate's decision to the date of the Tribunal's decision. In the Bangladesh elections in October, 2001 the BNP was successful and formed the new government, replacing the previous Awami League government. In light of that change on the political landscape, the appellant made a new claim that he feared that he would be killed by local political rivals in the Jat C and the BNP if he returned to Bangladesh. He had not made that claim before. 6 In relation to the claim for persecution based upon the criminal charges still outstanding against him, the Tribunal found as follows: (a) It accepted that the charges had been laid and were outstanding. It also accepted that the new government was taking 'concerted action…to arrest and bring quickly to trial persons against whom there are serious charges outstanding…regardless of political or other affiliations or involvement'; (b) It noted that the behaviour alleged against the appellant - extortion, violence and even murder - was the sort of behaviour that was engaged in by student political bodies in Bangladesh. The Tribunal was not prepared to accept the assertions of the appellant that he had never been engaged in such activities. The Tribunal concluded that 'it does not appear self-evidently unreasonable or persecutory that the police should treat seriously complaints to this effect…'; (c) As the BNP were now in government the Tribunal did not accept that the appellant would be targeted by local Awami League student leaders so that the appellant would be 'unable to have recourse to the authorities or would be unable to resolve any "false charges" laid by political opponents'. 7 The other 'new' claim by the appellant was that he would be killed by his political rivals if he returned to Bangladesh. The Tribunal did not find that claim credible: 'The Applicant was unable at hearing (despite repeated requests) to provide any specific instances in support of his assertion that from the outset local political rivals within the BNP student wing had opposed him and made life difficult for him. In the absence of anything more specific, the Tribunal was not satisfied that this amounted to anything significant or persecutory, rather than simply the normal rivalries of internal political manoeuvring and division. The late emergence of this claim and the lack of detailed substance provided did not satisfy the Tribunal that the Applicant actually faces a real chance of harm or persecution from within his own party essentially and significantly for a Convention reason. The Tribunal has already noted that the Applicant has submitted evidence in relation to apparently cordial recent contacts with the BNP leader and Bangladesh Prime Minister and/or those around her. The Tribunal has considered but does not accept the Applicant's claim that he is now also at risk of harm from these BNP opponents who would try to kill him because they now occupy positions in the local student wing formerly occupied by the Applicant. While a gang rival who has usurped a leadership position might plausibly resort to such action, it is difficult to conceive that in a local student branch of a political party purely political ambition or rivalry would prompt such action. The Tribunal is satisfied that if there are local party members who intend to physically harm the Applicant, it is essentially and significantly for reasons other than political opinion.' 8 The Tribunal was not satisfied that the appellant faced a real risk of persecution for a Convention reason. On 2 December 2002, it confirmed the delegate's decision that the appellant not be granted a protection visa. 9 The appellant applied in this Court for a review of the decision of the Tribunal. The appellant claimed to be lodging his application pursuant to s 39B of the Judiciary Act 1903 (Cth). Taking a particularly generous view of it, it might be arguable that he was seeking orders in the nature of mandamus, prohibition and (perhaps) an injunction against an officer of the Commonwealth. On the assumption that the appellant was seeking such orders then this Court had jurisdiction to hear the application. However, it is clear that this Court's jurisdiction does not include 'merit' review. At least by reason of s 474 of the Act (if not otherwise) the jurisdiction of this Court in relation to this matter is limited to the identification and correction of 'jurisdictional error' in the processes, reasoning or decision of the Tribunal: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 particularly at [76]. 10 In his application the appellant asserted that he had been deprived of an opportunity to fully 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 appellant was not satisfied with the Tribunal's comments regarding whether there was a real chance the appellant would be persecuted in Bangladesh. In his reasons the primary Judge refers to further assertions made by the appellant in written submissions: '…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.' 11 The primary Judge dealt with these various assertions as follows: '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. 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. … 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. 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. 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.' 12 Having identified no jurisdictional error the primary Judge dismissed the application with costs. 13 The appellant appealed from the decision of the primary Judge. The appeal grounds, such as they are, do not purport to identify any error by the primary Judge, much less an appealable error. Instead the appeal grounds allege various errors said to have been made by the Tribunal and by the Minister's delegate. These are not matters that are directly relevant on an appeal. Indeed, given that the appellant had the advantage of a review by the Tribunal of the decision of the delegate, the decision of the delegate was not directly relevant to the proceedings before the primary Judge. 14 Even if we take a particularly generous view of the appeal grounds as raising a general and unparticularised issue of whether the primary Judge made some appealable error in his analysis of whether the Tribunal made a jurisdictional error, there is nothing in the processes, reasoning or decision of the Tribunal that appears to involve any error, whether jurisdictional or not. This is what the primary Judge found. We can find no appealable error in the reasoning of the primary Judge. 15 As already pointed out, the appellant did not appear at the appeal hearing. Whatever view may have been taken if there was some clearly arguable issue raised in his appeal grounds, in the absence of any such issue the only appropriate course is to dismiss the appeal pursuant to O 52 r 38A of the Federal Court Rules. 16 It follows that the appeal must be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sackville, Selway and Lander.