BZAIM v Minister for Immigration

[2015] FCCA 1232

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAIM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1232

Catchwords:
ADMINISTRATIVE LAW – Administrative review – Refugee Review Tribunal – false or misleading representations – no error of law established –application dismissed – costs.

Legislation: 

Migration Act 1958 (Cth), ss.36, 424AA

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425

Applicant: BZAIM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 1158 of 2014

Judgment of: Judge Vasta

Hearing date: 1 May 2015

Date of Last Submission: 1 May 2015

Delivered at: Brisbane

Delivered on: 1 May 2015

REPRESENTATION

The Applicant appearing on his own behalf with the assistance of an Interpreter.

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application filed on 22 December 2014 be dismissed.

2. The Applicant pay the Respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRG 1158 of 2014

BZAIM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

Introduction

1. By application dated 22 December 2014, the Applicant, BZAIM, comes to this Court seeking a review of a decision of the Refugee Review Tribunal of 27 November 2014.  By that decision, the Refugee Review Tribunal affirmed a decision of the delegate of the Minister for Immigration and Border Protection not to grant the Applicant a protection visa.  The grounds for the granting of such a visa come from the Refugee Convention of which Australia is a party.  In Article 1 of the Convention, it defines a refugee as any person who:

   “Owing to well-founded fear of being persecuted for reasons 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.”

2. If a person does not fit within that Article, then there is the complementary protection criterion, which is also in s.36 of the Migration Act 1958 (Cth), that is, that there are protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

3. The Applicant claimed that he was a member of the Bangladesh Nationalist Party (BNP).  As a result of that, he suffered threats and violence from members of the Awami League (AL), the rival political party which had come to power.  In assessing this claim, the Tribunal asked a number of questions about the affiliation that the Applicant has.  Of significance to the Tribunal was a matter that the Applicant could not describe the BNP flag, nor was he able to recall the main principles of the BNP.

4. Of further significance was the information provided by the Applicant deposing to the fact that he left Bangladesh in 2007 because of this persecution and fled to India, to Malaysia and maybe to other countries before he became an illegal maritime arrival in this Country.  Of significance to the Tribunal was the fact that the BNP was still in power in 2007 and did not lose power until December 2008.  The group AL took power at that time, which was at a time after the Applicant had left Bangladesh.  As a result of those matters, the Tribunal was of the view that the Applicant was not a member of a particular social group or political opinion and did not have a fear of persecution.

5. Therefore, not fitting within the Convention criterion, there were not substantial grounds to believe that he fitted within the complementary protection criterion.  In coming to this Court, the Applicant must show that there has been jurisdictional error on the part of the Tribunal in coming to that conclusion. 

6. The grounds of the application were:

   “1. The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration my oral and other documental evidences in relation to my claim to be a refugee.”

7. In my view, the reasons of the Tribunal display that everything that the Applicant said to them was well and truly considered.  Just because such evidence was not ultimately accepted does not mean that it was not considered. The Tribunal noted that Mr BZAIM was able to correctly identify the local representatives in his particular constituency.  The unfortunate fact for the Applicant is that in taking into consideration the oral and other documental evidences in relation to the claim, the Tribunal found that such could not be accepted when weighed against the adverse inferences that could well and truly be drawn from those other matters.   In my view, Ground 1 fails. 

8. Ground 2 is that:

   “2. The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction and denied procedural fairness by not giving me the opportunity to submit my explanations for any adverse information that the Tribunal may have.  If I would be given the opportunity to explain that could have led to a different decision by the tribunal.”

9. Pursuant to s.424AA, such adverse information must be given to the Applicant and he must be given sufficient time to respond which includes, if asked for, some time to consider it. At paragraph 14 of the decision of the Refugee Review Tribunal, it is clear that such adverse information was put to the Applicant during the hearing. Therefore, in my view, Ground 2 also fails.

10. Ground 3 is:

    “3. The Tribunal biased by the country information and considered my case on average without giving any weight on my claims and didn’t look the matter individually.”

11. It is obvious that the Tribunal put great weight upon the Country information.  It was but part of the evidence before them and they found such evidence of assistance.  But that does not mean that the Country information made the Tribunal biased. Whilst it looked at the Country information, it simply found that that information outweighed what the Applicant had said because of the findings they had already made as to the credibility of the Applicant.  This is especially so when matters I alluded to in paragraph 4 of these reasons are considered. Therefore in my view, Ground 3 also fails. 

12. Ground 4 is that:

    “4. The Tribunal denied the natural justice in determining my review application that the Tribunal is biased, or in the alternative, there was an apprehension of bias in the making of the purported decision.”

13. It seems to me that a claim of apprehended bias is a very serious allegation to make on a Tribunal.  As outlined in Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 at paragraph [28] and [27] An Applicant must show that:

    “…a hypothetical fair-minded lay person who is properly informed as to the nature of proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias.

    …might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the question to be decided.”

14. For a finding of actual bias, the required standard is outlined in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]:

    “…the state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.”

15. As I say, it is a very rare and exceptional case where such will be able to be proven and such allegations, for me to act on, must be firmly established.  A finding against the Applicant on matters of credibility does not indicate that there has been pre-judgment or bias.  When one looks at what it is that the Applicant was saying, even on its face, it was a story that was difficult to accept.  When one then added the country information, that initial feeling was corroborated.  It is difficult to see how the Tribunal could have come to any other decision.  But that in no way could be illustrative of bias.  Therefore, I cannot see that ground 4 has any merit whatsoever.

16. The fact is that this application is one where I must find jurisdictional error and it is not a proceeding where I can have a merits review.  When one looks at the outline of submissions, which was helpful, it does show, however, that what the Applicant was really seeking was a merit based review of the decision of the Refugee Review Tribunal.  What he is really asking me to find is that the Tribunal ought to have believed and accepted his evidence instead of making the findings that it did.  That is not a jurisdictional error.

17. All in all, having a look at the whole of the decision, as I must, and looking for any jurisdictional error, I cannot find such in the decision.  I therefore dismiss the application and I do so with costs in the sum of $6,825.00.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  13 May 2015