NAJQ v Minister for Immigration and Multicultural and Indigenous Affairs

1 This is an appeal from orders made by a Federal Magistrate on 4 February 2004 in which the Federal Magistrate dismissed an application made under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal ("the Tribunal") made on 30 December 2002, in which the Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the appellant. The Chief Justice has directed that the matter be heard by a single Judge of this Court. 2 The notice of appeal from the decision of the Federal Magistrate was as follows: 2. The Single judge of the Federal Magistrate Court in her Honors Judgment delivered on the 4 February 2004 failed to find error of law, Jurisdictional error Procedural fairness and relief under Section 39B of the Judiciary Act 1903. 3. The grounds and relief is very much similar with a recent High Court Judgment - Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). Catchwords: Immigration - Refugee - Protection visa - Decision by Minister to refuse application for visa - Review of decision by Refugee Review Tribunal - Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Register of Tribunal for purpose of review - nature and extent of obligation - Migration Act 1958 (Cth), ss 148(3), 424(1). 4. The Honorable trial judge erred in considering the real state of affairs of the applicant, the applicant feared harm. And also the present ruling government fail to protect civilians life, which is a worldwide concern today. Honorable Trial judge did not take it into consideration. 5. S474 of the Migration Act is ineffective as per the recent two decision of the High Court of Australia. Honorable trail judge did not consider this in favour of me. 6. The applicant will face persecution if she returns to his country of origin as there are significant level of violation of human rights, this was not considered by honourable judge. 7. Recent High Court judgement: Plaintiff S 157/2002 v Commonwealth of Australia [2003] HCA 1 (4 February 2003). 8. Recent Federal Court of Australia judgement: SGDB V Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 (14 February 2003) [errors in original] 3 It is necessary to understand that this is an appeal from the Federal Magistrate not a wholesale re-agitation of the application for judicial review, nevertheless, it is appropriate to understand the claims made for the application which was before the Federal Magistrate. These were as follows: 1. The Refugee Review Tribunal has not attended any evidence in relation to the applicant's claims and thus its decision is influenced by sufficient doubts. The applicants provided a suitable vehicle and most of the grounds relied upon facts and documents, which the tribunal did not consider. The RRT heavily depended in their handling of the issues based on the generalized facts and findings of DIMA. 2. The RRT failed to internalise the circumstantial; grounds of the review application while considering the claims of the review application and did not consider the supporting facts and documents. Therefore, the applicant seeks a review of the decisions of the Tribunal under s 39B of the Judiciary Act 1903 (Cth) and Migration Act 1958 (Cth). 3. The Tribunal's ignoring of relevant evidence and its finding in the face of contradicting independent evidence which indicated actual bias constitute jurisdictional error being a breach of procedural fairness which is an essential condition and of the exercise of the decision making power and attracts s 39B Judiciary Act 1903 as per Gaudron J in Abebe v commonwealth (1999)162 ALR 1 at 33 paragraph [113]. Thus, subject to the operation of discretionary factors, breach of those rules is a jurisdictional error which will ground prerogative relief. 4. The applicant is a genuine refugee under the UN Convention and sub-class 866 of the Migration Act 1958, but the authority has not considered applicants claims and he has been refused to remain in Australia permanently. The RRT has failed to investigate the applicant's claims, specifically the grounds of persecution, in Bangladesh. Therefore, the tribunal's decision dated on 30 December 2002 was affected by actual bias constituting judicial error. 4 The generality and lack of specificity of the original application is evident from its terms. The Federal Magistrate dealt with the matter as follows. Her Honour first examined the Tribunal decision commencing with an outline of the now appellant's claims for protection. In [3] of the reasons of the Federal Magistrate the following summary was set out. 3. The applicant claimed to fear persecution by reason of his political opinion in Bangladesh. He claimed to have been a leading member of the Jatiya Party and to have suffered false charges from members of the rival Bangladesh National Party (the BNP) and the Awami League in 1988 and 1989. He claimed for the first time at the Tribunal hearing to have been beaten by Awami League members in December 1989. After the BNP came to power they ordered his arrest. He feared for his life. He went to Kuwait in 1993 on an employment visa. He claimed that after the Awami League if he returned to Bangladesh. While in Kuwait he had renewed his passport at the Bangladesh Embassy. 5 The Federal Magistrate then proceeded to explain how the Tribunal had dealt with the matter and this is set out in paragraphs 4, 5 6 and 7 of the Federal Magistrate's reasons, which are in the following terms. 4. The Tribunal found that the applicant's pivotal claim to have been beaten in December 1989 was false. It had regard to the fact that the claim was not raised until one day before the Tribunal hearing, that the applicant by then introduced further detail to the story and that his claims in relation to injuries suffered were inconsistent with the description in a hospital document provided by him in support of his claim. The Tribunal rejected the submission by the applicant´s adviser that the claim had been referred to in the applicant's statutory declaration in a claim that he had become very relevant´ without further explanation. There is nothing in the material before me to suggest that that case has any relevance to the circumstances of this case. As no jurisdictional error has been established the application must be dismissed. 25 This paragraph raises an assertion that the cases of Muin and Lie, decided in the High Court, provides a ground of jurisdictional error to this appellant. No evidentiary assertion was laid before the Federal Magistrate for any conclusion or even any argument that the appellant was in any way misled by any procedure adopted. Muin and Lie were cases on agreed facts. It is necessary to make out some factual foundation in any particular case upon which to found a conclusion that there has been some procedural unfairness in a particular person's case. 26 I turn to the grounds of appeal in the notice of appeal. I will use the paragraph numbers adjacent to the paragraphs set out earlier, being [2] through to [8]. 27 Paragraph 2 is a generalised assertion without any particulars of error of the magistrate and my earlier discussion of the magistrate's reasons is sufficient to deal with [2]. 28 Paragraph 3 is an assertion that Muin and Lie somehow gives a legal conclusion to the effect that jurisdictional error was present in this case. For the reasons earlier expressed that is not the case. 29 Paragraph 4 of the notice of appeal is not in terms an identification of any species of jurisdictional error. It directs itself to the fact finding process involved and is not a ground of jurisdictional error. 30 Paragraph 5 deals with s 474 of the Migration Act. The whole approach of the learned Federal Magistrate was conformable with the decisions of the High Court such that if jurisdictional error is shown s 474 is of no effect to prevent judicial review. 31 Apart from the fact that the wrong gender is used, paragraph 6 does not identify any jurisdictional error of the Tribunal or any error in the learned Federal Magistrate. As I have sought to identify, the learned Federal Magistrate dealt with the grounds of application, the written submissions and her Honour's own reading of the decision. The assertions in [6] assume an answer contrary to that given by the Tribunal as to a real chance of persecution. 32 Paragraph 7 refers to Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476, the learned Federal Magistrate was well aware of that decision and her reasons illustrate as much. That is not a legitimate ground of appeal. 33 Paragraph 8 deals with the decision of Mansfield J in SGDB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA 74. No particulars are given as to why this decision of his Honour in relation to another person's application has any bearing on this appeal. This was a case decided shortly after Plaintiff S157 was handed down. His Honour found jurisdictional error in the particular decision. It is of no relevance in relation to this appeal. 34 The appellant has filed two sets of written submissions in this Court on the appeal, the first was filed on 13 July 2004 and the second was filed in Court today. The first submissions deal at length with the Tribunal's decision. The first body of submissions, which were otherwise dealt with by the learned Federal Magistrate, complain about the failure of the Tribunal to internalise the circumstantial grounds of the review application and otherwise failing to give appropriate weight to material which was said to be favourable to the appellant. An instance of this can be seen in [4] of the appellant's written submissions filed on 13 July in which the following appears: