NALJ 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 NALJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 612. For the reasons given below the appeal is dismissed with costs. 2 The appellant is a citizen of Bangladesh. He arrived in Australia on 11 September 2000. On 25 September 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 the youth wing of the Bangladesh National Party ('BNP') until he left college in 1994. He then joined the BNP. Subsequently he became an executive member of the Dhaka City party committee and was general secretary of his area. He claimed that in June, 2000 he was involved in a political demonstration by the BNP against the party then in government, the Awami League. During that demonstration a passer-by was shot dead. The appellant claims that the Awami League accused the appellant and others of being involved as a result of which charges of murder were made against him. He claimed that he feared that he would be unjustly sentenced to life imprisonment if he answered the charges. He said that the police and the judiciary were biased in favour of the Awami government. He said that he went into hiding until he was able to escape to Australia. 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 19 April 2001. 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. As the Tribunal reasons record: 'At the Tribunal hearing, the applicant said, in response to queries as to how he could claim to be persecuted by the Awami League when his own party was in government, that his potential "enemies" and persecutors now included, in addition to the Awami League, members of the Jatiyo Party and factions within his own party the BNP.' 6 The Tribunal concluded that the appellant did not have a well-founded fear of persecution. As to his allegation that he would not receive a fair trial, the Tribunal concluded: 'Country information suggests that the Bangladesh judicial system remains relatively independent and the alleged case against the applicant for murder, should it proceed, would be considered on its legal merits. The Tribunal does not accept his claim that the police would support the bringing of "false" charges against the applicant by the Awami League, especially as his party is now in power. … [T]he Tribunal is satisfied that "meaningful or adequate or effective" protection sufficient as to remove a real chance of persecution for the foreseeable future, will be available to the applicant on his return.' 7 As to the allegation that the appellant would be subject to persecution by his own party and by the 'Jatiyo party', the Tribunal: '…does not accept that the applicant faces a real chance of persecution from members of his own party as well as from opposition parties. The Bangladesh Government has encouraged the police to arrest and the courts to try BNP members and those of other parties who have breached the law…The Tribunal accepts that current Government policy is directed towards ensuring that party protection will no longer be enough to prevent law breakers from being arrested and facing the courts.' 8 On 28 January 2003, the Tribunal confirmed the decision of the delegate not to grant 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). We are prepared to accept that the appellant was seeking orders in the nature of mandamus, prohibition and (perhaps) an injunction against an officer of the Commonwealth and that this Court had jurisdiction to hear the application. 10 That jurisdiction 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 ('S157') particularly at [76]. 11 The primary Judge summarised the grounds of review, so far as they could be ascertained from the application, as follows: 'The only matters of substance, or potential legal substance that one might discern from the application and written submissions seem to me to be an alleged deprivation of the opportunity fully to present his case to the Tribunal and that the Tribunal failed to act according to the substantial justice and the merits of the case.' 12 The appellant made written submissions which apparently were similar to those in other similar cases recently considered by the same primary Judge. The primary Judge summarised the further grounds alleged in the written submissions as follows: 'Reading his submissions with unwonted charity, the applicant accuses the decision maker of various matters which, if established, would go to the jurisdiction of the Tribunal. These include that the Tribunal acted in bad faith generally, that it got the facts wrong, that it took into account irrelevant matters and that it did not take certain relevant matters into consideration. Warming to the task, the submissions proceed to assert that the decision maker did not make an honest attempt to come to the right decision. Getting to full speed, the submissions assert also that the decision maker intentionally made a wrong decision: "Having listened to the tape recording of the Tribunal proceedings and having read its decision, your lordship can say that the Tribunal acted in bad faith."' 13 The primary Judge considered these various alleged 'jurisdictional errors'. He concluded that they had not been made out: 'No procedural unfairness is manifest from the material before me. If any error could be established on the part of the Tribunal Member it would not appear to be of such a kind that it would nullify the decision. … If the Tribunal Member did "get the facts wrong" so far as I can see he did not do so by misunderstanding the evidence in the applicant's case nor did he take into account any irrelevant material, or fail to take into account any relevant material that was before him.' 14 The primary Judge dismissed the application with costs. 15 The appellant has appealed to this Court from the decision of the primary Judge. The appeal grounds refer to the decision of the High Court in S157 and to the decision of Mansfield J in SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74. Apart from the question of jurisdiction, in those cases the respective Courts considered whether the Tribunal had failed to afford a fair hearing. In this case the primary Judge accepted that he had jurisdiction to ascertain whether the Tribunal has afforded a fair hearing to the appellant. He considered whether the Tribunal had done so and concluded that it had. No appealable error has been identified. None is apparent. 16 The appeal grounds also refer to the High Court's decision in Muin v Refugee Review Tribunal (2002) 190 ALR 601 ('Muin'). This is a much misunderstood decision. In Muin the relevant hearing by the Tribunal was held to be unfair because, on the facts of that case, the applicant for a visa had been misled as to what material was before the Tribunal. What Muin has to do with this case has not been explained. In the absence of some specific allegation of unfairness and prejudice the issue cannot sensibly be explored, even if it were the task of this Court on appeal to carry out such an exploration for itself. Certainly there is nothing before us that would suggest (much less establish) any jurisdictional error as was identified in Muin. We note that nothing seems to have been argued before the primary Judge which would seem to have much similarity to the facts of Muin. 17 We agree with the conclusion reached by the primary Judge. There is nothing in the processes, reasoning or decision of the Tribunal that appears to involve any jurisdictional error. This is what the primary Judge found. We can find no appealable error in the reasoning of the primary Judge. 18 It follows that the appeal must be dismissed with costs. 19 However, before leaving the matter we note that the primary Judge was critical that the application filed in this Court was in exactly the same terms as that filed in other cases. For example the application is in exactly the same terms as was that in NAJI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 268. Given the similarity in the factual claims made and in the result reached by the Tribunal this would not be remarkable in itself, save for the fact that the application in each case is totally inadequate. We also note that the notice of appeal in this case is in exactly the same terms as was the notice of appeal in other cases, such as in NANJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 270. The criticism made by the primary Judge must be understood in the context in which it was made. Documents filed in court cannot be criticised merely because they are similar, or, indeed, exactly the same, as those filed in other cases. The problem, if there is one, is not because the documents are the same, but because the documents do not relevantly have anything to do with the case at hand. In this case the relevant documents do not usefully identify the grounds of complaint. This is obviously the basis upon which the primary Judge was critical of the documents (including the written submissions) filed by the appellant in this case. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Selway, Bennett and Lander.