NAJR of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT (revised from transcript) MADGWICK J: 1 This is an appeal from a judgment of Federal Magistrate Barnes given on 13 December 2002. In that judgment, the learned Magistrate was considering an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 7 May 2002. That decision in turn had affirmed a decision of a delegate of the respondent minister refusing to grant the appellant a protection visa on account of his alleged status as a refugee. 2 The matter had been transferred to the Federal Magistrates Court from this Court by Tamberlin J. As the Federal Magistrate put it, the appellant had claimed to fear persecution by reason of his political opinion in Bangladesh of which country he is a citizen. He claimed that his father was a local leader of the Jatiyo Party ("JP"), that the appellant had worked for a JP candidate in 1996 and that he had been the general secretary of the youth wing of the JP. He claimed that he had had false charges laid against him by members of the rival political party, the Awami League. In the result, he said he had been hiding from the police in 1999 and 2000 and had left Bangladesh on a false passport on 12 May 2000. He arrived in Australia on 13 May 2000 and applied for a protection visa on 8 June 2000. 3 The Tribunal Member accepted that the appellant was a Bangladeshi national and was prepared to accept that he favoured the JP. However, the Tribunal Member considered the appellant to be an unreliable witness and dismissed most of his claims as fabrications. 4 Among other things, the Tribunal did not accept that he started school at four, matriculated at fourteen and thereupon become the general secretary of the youth wing of the JP. Further, the Tribunal found that the appellant had given misleading information about his supposed inability to obtain a passport, since it emerged that he had applied to the Bangladesh High Commission in Canberra for a passport and was issued one bearing the same photograph as in the false passport. 5 The Tribunal also found, by reference to conflicting information provided by the appellant, that he had attempted to mislead the decision makers as to his marital status and in relation to whether his father was alive or dead. The appellant at one point claimed that his father had died in 1999 but later provided a statutory declaration which his father was said to have sworn in September 2000. 6 In any case, the Tribunal found that as the Awami League was no longer in power in Bangladesh, and as the ruling Bangladesh Nationalist Party ("BNP") had repealed some of the repressive legislation enacted by the Awami League in the past, and otherwise improved its relations with the JP, that: "… the [appellant's] claims had been superseded by history." In other words, the Tribunal Member held that, even if contrary to her findings, the appellant had ever been at risk of persecution, this would not be so now. 7 The application as heard by the learned Federal Magistrate occurred in a legal environment in which the privative clause, s 474 of the Migration Act 1958 (Cth) ("the Act"), was regarded as having the effect attributed to it by the Full Court of this Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449. In that context, the appellant claimed that the Tribunal had, among other things, deprived him of natural justice, failed to consider material facts and exercised its powers unreasonably by finding him to be an unreliable witness. 8 The learned Magistrate rejected the claim that there was a denial of natural justice or that relevant material was not taken into account and rejected also a suggestion that there had been an absence of good faith by the Tribunal or that the Tribunal had failed to make a bona fide attempt to exercise its power. The learned Magistrate said that the appellant had not established that there were "any errors of fact or law or illogicality" and expressed the view, among others that, "I am not satisfied that any requirement of the Act necessary to attract the Tribunal's jurisdiction was not met or that any of the claims made by the appellant establish a ground for review". 9 The appellant's notice of appeal indicated no grounds of appeal but foreshadowed that a detailed submission would be forwarded to the Court after he had received a copy of the Federal Magistrate's decision. Recently a document headed "Written Argument" was received. Apart from merely factual matters it suggested that: "… (2) The procedures that were required to be observed under the Migration [Act] 1958 in connection with the making of the decision were not observed; … (4) The tribunal did not act in good faith in regards to my claims; … (7) The Tribunal's ignoring of relevant evidence and its finding in the face of contradicting independent evidence which indicates actual bias constitute jurisdictional error being a breach of procedural fairness ... (8) …The RRT has failed to investigate my claims ... Therefore, the tribunal's decision was affected by actual bias constituting judicial error. (9) Recent High Court [judgment] Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 … and SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 … are very relevant of my case. (10) The very recent High Court of Australia [judgment] Muin v Refugee Review Tribunal & Lie v Refugee Review Tribunal … [are] very relevant of my RRT decision of my protection visa application." 10 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 and Muin v Refugee Review Tribunal & Ors and Lie v Refugee Review Tribunal (2002) 190 ALR 601 are well known. SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 is a decision of Mansfield J. His Honour said at [20]-[25]: "On 4 February 2003, the High Court gave judgment in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (Plaintiff S157/2002). The High Court determined that the privative clause provision in s 474(1) of the Act, properly construed, is a valid enactment. It found the proper construction of the Act, including s 474, imposed an obligation of providing a fair hearing as a limitation upon its decision-making authority: see per Gleeson CJ at [37]-[38]; per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [83]; and per Callinan J at [160]. Such an obligation had earlier been found to exist in relation to the Tribunal under the Act: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. The question whether procedural fairness must still be accorded by the Tribunal so that it acts within its jurisdiction, in the light of the Migration Legislation Amendment (Procedural Fairness) Act 2002, is yet to be determined.The decision in Plaintiff S157/2002 related to the Act as it stood prior to that amendment. However, in my view, it is clear that the decision in Plaintiff S157/2002 overrules NAAV as to the circumstances in which jurisdictional error will be demonstrated on the part of the Tribunal. It does so necessarily in relation to the Tribunal's obligation to accord procedural fairness, and in relation to the way in which NAAV found that s 474 had expanded the jurisdiction of the Tribunal. Consequently, I consider in the light of Plaintiff S157/2002 that the learned Magistrate erred in law by taking too narrow a view of what might constitute jurisdictional error on the part of the Tribunal. In the circumstances, I allow the appeal. I think it is also proper to remit the matter to the Magistrate for rehearing or further hearing according to law. I do not consider it appropriate to determine the application myself, sitting as a Full Court. Firstly, I have heard this appeal sitting as a Full Court of the Federal Court following a direction by the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976. The Chief Justice's direction that the appeal should be heard by a single judge was given when the decision in NAAV would have been applied, whereas the decision in Plaintiff S157/2002 indicates the nature of jurisdictional error on the part of the Tribunal may involve complex and difficult questions of law. Such matters may be more appropriately addressed by the Magistrate at first instance and, in the event of an appeal, by a Full Court constituted as normal by three judges. It is not clear that, in the light of the High Court decision, the Chief Justice would have given such a direction, at least until the significance of the decision in Plaintiff S157/2002 has been explored in later cases. As the appeal has been heard, it is not appropriate for the certificate given under s 25A of the Federal Court of Australia Act 1976 to be withdrawn. Accordingly, I do not think it is fair to the appellant in the circumstances to be deprived of the normal judicial review processes available to him. If I were to decide this matter myself, he would in effect be getting only one judicial determination in accordance with the decision in Plaintiff S157/2002 about the correctness in law of the Tribunal's decision. He has no further right of appeal, although he may seek special leave to appeal to the High Court. Allied to that consideration is the fact that, on what is clearly a complex and difficult legal question, I would be giving a judgment as a Full Court of the Federal Court. The precedential consequences of such a judgment in relation to single judges of the Court sitting at first instance has not yet been explored. For those reasons, I allow the appeal and remit the matter to the Federal Magistrate who heard the application under s 39B of the Judiciary Actat first instance for rehearing or further hearing according to law. I will hear the parties as to costs." 11 In oral argument the appellant suggested that he had not had procedural fairness; that irrelevant questions as to whether he was married or not had been asked of him; that he had been denied natural justice; that the Tribunal did not believe him and had made the decision without investigation, and that he had not been asked about information from a quoted United States country report. 12 He also said that he had with him before the Tribunal a witness who had been told not to speak by the Tribunal. According to the Tribunal Member, and as conceded by the appellant, he was represented by an adviser, a migration agent, who attended the hearing. The Tribunal Member says the appellant brought forward no witnesses. When this was drawn to the appellant's attention, he said that the intended witness had been the migration agent. There is evidence that he brought forward no witnesses. There has been no complaint until today that in any way, shape or form he or his migration agent were hindered from saying anything that either of them might have wished to say. There is no sworn evidence to this effect and it is inevitable that the claims now made should be rejected. 13 The approach in SGDB would ordinarily, I think, be a compelling one, notwithstanding the decision of Gyles J in Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144. Lobo concerned the question of what a single Judge should do in a case not involving procedural fairness, having regard to what might be called the technically binding quality of the decisions in NAAV and S157. His Honour, I think, had in mind the position of a Judge sitting at first instance. 14 I am sitting exercising the appellate jurisdiction of the Court and, although it may seem anomalous, and the matter has not been fully argued, it appears to me that, as I understood counsel for the respondent to concede, I would have authority in point of the doctrine of precedent to differ from NAAV even if it might still be binding on a single judge sitting at first instance. Lobo in no way decided what a Full Court of this Court should now do in relation to NAAV. 15 The question ultimately is: what is appropriate in a particular case? My feeling is that eventually and soon a Full Court of this Court will declare that the reasoning of the majority in NAAV cannot stand with the reasoning of the joint judgment in S157, nor I would add, as I read the Chief Justice's reasons in the latter case, with the reasons of his Honour. Properly understood, as I view the matter, there is no real distinction between the Chief Justice's approach and that of the majority. In these circumstances, it is not necessary to consider to finality the approach of Callinan J. 16 It would ordinarily be a matter of concern, as Mansfield J pointed out, that a would-be appellant for judicial review, according to the law as it is correctly conceived at a given time, should not have access to a determination at first instance followed by a right of appeal against the first instance determination of the judicial officer concerned. However, theoretical niceties may be, as it were, trumped by practical realities. 17 While the Federal Magistrate, did not, as it seems to me, apply the correct test as to what the appellant needed to show to obtain a judicial review (because she applied an NAAV understanding of s 474 rather than a S157 understanding of that section), it would be pointless to remit the matter for hearing thereupon to enable another appeal to this Court. For reasons well open to it, the Tribunal considered, not to put too fine a point on it, that the appellant was a liar and that his complaints had no foundation in reality. In any case, the Tribunal considered that circumstances had changed in Bangladesh so that a formerly active JP functionary would not now be at risk of persecution for reasons of his political opinion. The appellant has been able to agitate every matter that concerned him before me and has freely done so. 18 There is no indication at all that there has been any jurisdictional failure or error on the part of the Tribunal (and I include in the notion of jurisdictional error, the question of any denial of natural justice, notwithstanding what may be the effect, referred to in SGDB, of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)). The Tribunal did not fail to accord the appellant a proper hearing and the claim to the contrary is quite