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

REASONS FOR JUDGMENT Introduction 1 This is an application to review a decision of the Refugee Review Tribunal ("the RRT") given on 7 May 2002 affirming a decision of a delegate of the Minister not to grant a protection visa. 2 The application is governed by the amendment to the Act, which came into force on 2 October 2001. Accordingly, the decision under review is a privative clause decision as defined in s 474 of the Migration Act 1958 ("the Act"). Judicial review is therefore available only to the extent to which the Court's jurisdiction is not excluded by the privative clause. The applicant's claims 3 The applicant is a citizen of Bangladesh. He came to Australia in October 1999. He applied for a protection visa on 9 November 1999. The delegate refused the application for a protection visa on 30 December 1999. The applicant applied to the RRT for a review of the delegate's decision on 20 January 2000. The hearing before the RRT took place on 9 April 2002. 4 The applicant claimed that he had a well-founded fear of persecution in Bangladesh because of his political opinions and political activities. He claimed that he would be killed if he returned to Bangladesh and he could not relocate in that country because it is small and he could be found easily by his enemies. 5 The applicant claimed that he had been a member and office-bearer of the Jatio Party ("JP") in Bangladesh. He claimed to have been appointed as General Secretary for the Youth Wing of the JP for the District of Feni in 1995. He claimed that his brother disappeared in 1994 because of his political activities. He also claimed that, due to political activities in 1996, he was forced underground because of an arrest warrant against him. However, he claimed to have remained an active member of the party during that time. He also claimed that the police raided and ransacked his house in 1997 and that they had threatened to kill him. He claimed that he fled to India and stayed there for one year during the period from 1997 to 1998. 6 The applicant claimed that, on his return to Bangladesh in 1998, he discovered that he was still wanted by the police and the arrest warrant was still in force. He also claimed that, in January 1999, he was named in a leading local newspaper by the police and that he was declared to be a traitor who had engaged in subversive activities. 7 The applicant arrived in Australia under a false passport using a pseudonym. He claimed that another of his brothers arranged the passport, which was purchased by the applicant in September 1999. He used that passport to enter Australia on 19 September 1999. He claimed that he did not dare to apply for a passport in his own name in Bangladesh and that this was evidence of the dangers, which he feared. He produced a large number of documents to support his claim. 8 On 20 January 2000, the applicant's migration agent delivered written submissions to the RRT. The submissions claimed that the delegate was biased. The applicant relies on these submissions in his application for judicial review. 9 On 9 April 2002, further written submissions were delivered to the RRT by the applicant's solicitor, Mr Kazi. Mr Kazi's letterhead of 9 April 2002 describes him as a solicitor and barrister. 10 Mr Kazi's letter did not allege bias. He said that the Department did not obtain any expert's opinion when it made a finding that documentary evidence submitted by the applicant was fraudulent. Mr Kazi said that the finding relied on generalised assumptions and that this sort of "preconceived notion" resulted in "a negative atmosphere at the outset of the authority's decision. 11 Nevertheless, Mr Kazi agreed that it is a general trend for refugee applicants to submit false documents in supporting their claims but he said that it was incorrect to generalise this trend for all applicants. 12 The balance of the letter of 9 April 2002 canvassed the merits of the delegate's decision. The applicant relies on Mr Kazi's submission in this application. The decision of the RRT 13 The RRT found that the applicant's evidence in relation to most aspects of his claims was vague, general and unconvincing. The RRT found that the evidence contained significant internal inconsistencies and that it was not consistent with independent country information. The RRT considered that the applicant was not a reliable or credible witness. 14 The RRT did not accept that the applicant was or ever had been a member of the JP. The RRT found that the applicant's evidence in relation to this claim was unsatisfactory. The RRT stated that it was obvious that the applicant had no knowledge of the JP, its politics, its factions or its various allegiances. The RRT found that the applicant did not have the knowledge of an ordinary member of the JP, let alone a person who claimed to have been an office bearer. The RRT found that the applicant's claims of being a member and office bearer of the JP were fabricated. 15 The RRT did not place any weight on the documentary evidence submitted by the applicant in support of his claims. The RRT noted that there were a number of inconsistencies in the documents. For example, a purported newspaper report dated 23 January 1999 referred to an incident involving the applicant but the incident did not take place until 3 May 1999. Also, a photograph appearing in the newspaper article purportedly published on 8 May 1999 had a photograph of the applicant. However, the RRT noted that the applicant claimed that the photograph was taken in September 1999. The RRT relied on independent evidence about the prevalence of fraudulent documents from Bangladesh. 16 The RRT concluded that, in view of its findings about the veracity of the applicant's claims, it could not accept that the incidents of violence or persecution relied upon by the applicant had taken place. The RRT did not accept that the applicant's brother had disappeared in 1994 or that the applicant went into hiding and escaped to India. Nor did the RRT accept that the applicant's house was raided, that violence had been done to him or that false cases were brought against him. Accordingly, the RRT did not accept that the applicant suffered persecution for his political opinions or that he would suffer a real chance of persecution for political reasons if he returned to Bangladesh. Issues arising under the application for judicial review 17 The application reads more like a written submission than an application for judicial review listing grounds relied upon by the applicant. It refers to a number of leading authorities of this Court and the High Court including the decision of the High Court in Abebe v The Commonwealth of Australia (1999) 197 CLR 510. The applicant informed me that Mr Kazi prepared the application. The applicant also told me that he did not understand the document. In answer to my inquiry as to why Mr Kazi did not appear at the hearing, the applicant replied that he did not want him. 18 The application states that the RRT relied heavily on the generalised facts and findings of the Department for Immigration and Multicultural and Indigenous Affairs. The application states that 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." 19 The application concedes that the decision of the RRT was a privative clause decision and that it is subject to the constraints on review imposed by s 474(1) of the Act. Reference is made to the decision of the High Court in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. In order to overcome this difficulty, the application alleges bias in the following terms:- "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 which is an essential condition of the exercise of the decision making power and attracts s.39B Judiciary Act 1903 ---" 20 The application also states that the RRT failed to investigate the applicant's claims and therefore the RRT's decision was affected by actual bias constituting judicial error. 21 The application was supported by an affidavit sworn by the applicant on 26 June 2002. This document was filed on 26 June 2002 with the application. The affidavit contains no evidence of bias. Indeed, the affidavit is entirely silent on that issue. The affidavit was sworn by the applicant before Mr Kazi, who is described as a solicitor and barrister. The document states that the affidavit was sworn on 25 June 2002, notwithstanding the fact that, on the first page, the affidavit is said to have been sworn on 26 June 2002. Reasons for decision 22 The reason why the RRT dismissed the application was that it made strong findings that the applicant was not a credible witness. Indeed, the RRT found that the applicant's claims were fabricated. 23 As McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67], findings as to credibility are the function of the decision maker par excellence. The decision of the RRT, in particular its account of the oral hearing which took place on 9 April 2002 and the RRT's reference to independent evidence of document fraud sufficiently establish that the findings made by the RRT were open to it. 24 It follows that even under the statutory provisions in force prior to the enactment of the privative clause there were no grounds for judicial review of the decision. The RRT was the final arbiter of the merits; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559 (per O'Connor, Branson and Marshall JJ); see also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1995) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105 at [73]. 25 In any event, it is clear that even if the RRT fell into error in reaching the conclusion that it did, the decision is protected by the privative clause in s 474(1) of the Act; NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002]FCAFC 228 and Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1108 at [84] per Sackville J. 26 The applicant seeks to overcome the effect of the privative clause by alleging actual bias. An allegation of actual bias, if made out, would usually be tainted by lack of bona fides which would fall within an exception to the operation of the privative clause; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [35] per von Doussa J; c.f. NACL v Refugee Review Tribunal and Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 643 at [21] and [25] per Conti J. 27 In SCAA, von Doussa J said at [36]:- "Actual bias arising from prejudgment involves a state of mind by the decision maker whilst exercising the decision making power that is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. "The question is not whether a decision maker's mind is blank; it is whether it is open to persuasion": Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [71] - [72] per Gleeson CJ and Gummow J. That decision also stresses that a party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be "distinctly made and clearly proved": at [69] per Gleeson CJ and Gummow J and [127] per Kirby J." 28 His Honour, von Doussa J, at [37]-[38] discussed the proof which it is necessary to be made out in order to be able to establish a claim of actual bias. It can be established by inferences from all of the circumstances and, in very rare cases, by inferences solely from the decision appealed against. His Honour said at [37] that he shared the views expressed by Burchett J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 126-127 and Sackville J in Yit v Minister for Immigration and Ethnic Affairs [2000] FCA 885 at [27] that it would be wrong in principle to leap too readily from factual error or faulty reasoning by a decision maker, including even serious factual error on misconceived reasoning, to a finding of actual bias. 29 In the present case, there is nothing in the published reasons for the decision of the RRT to suggest that it made any factual error or that there was faulty reasoning. Nor is there anything in the circumstances which point to an indication that the RRT was committed to a conclusion reached prior to embarking upon the review process and that it was not open to persuasion. 30 The written submission of the applicant's migration agent dated 6 January 2000 that the RRT was biased because it said that 100% of the applications from Bangladesh use fraudulent documents is not an accurate reflection of the RRT's reasons. 31 Accordingly, there is nothing in the decision of the RRT or in any of the evidence before me which makes out a claim of bias. Indeed, in my view, on the material before me, there was no basis for making the allegation. However, I do not criticise the applicant, who appeared in person, for making the allegation. It is sufficient to say that I reject it. Conclusion 32 For the reasons set out above, the order I will make is that the application be dismissed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.