NAHM v Minister for Immigration - [2003] FMCA 295

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAHM v MINISTER FOR IMMIGRATION

[2003] FMCA 295

MIGRATION – Application for review of Refugee Review Tribunal decision – whether jurisdictional error or denial of procedural fairness – application dismissed.

Migration Act 1958 (Cth)

Muin v Refugee Review Tribunal (2002) 76 ALJR 966
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parteDurairajasingham (2000) 168 ALR 407
Kamal v Minister for Immigration & Multicultural Affairs [2002] FCA 818
SCAAv Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural & Indigenous Affairs v Jia [2001] HCA 17
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 498

Applicant:

NAHM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ263 of 2003

Delivered on:

26 June 2003

Delivered at:

Sydney

Hearing Date:

26 June 2003

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application is dismissed.
That the Applicant pay the Respondent’s costs set in the amount of $3,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ263 of 2003

NAHM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

These are ex tempore reasons for judgment in relation to an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 17 December 2002, affirming a decision of a delegate of the respondent not to grant a protection visa to the applicant.
The applicant is a national of Bangladesh who arrived in Australia on 22 September 2000. He applied for a protection visa on 4 October 2000. His application was rejected by a delegate of the Minister on 18 January 2001. He applied for a review of that decision by the Tribunal on 10 February 2001. The Applicant claimed that he was a prominent activist for the Bangladesh Nationalist Party (BNP) and feared that if he returned to Bangladesh he would be persecuted by the Awami League government. By the time of the Tribunal hearing the BNP was in power in Bangladesh. When this was put to him by the Tribunal the applicant responded that the BNP had changed and that real power was exercised by the Jamaat-e-Islami Party (which was in coalition with the BNP) and the Army, which would seek to harm him.
The Tribunal accepted that there was “some evidence that local BNP leaders have been harmed”. However, it did not accept that the applicant came into that category.
Apart from his nationality, the Tribunal was unable to accept any of the applicant’s claim as true. It could not conclude that he had been involved in any political activity of a kind that would place him at any risk of persecution in the future. The Tribunal’s main reason for discounting the applicant’s claims was its conclusion that he had set out to mislead it by submitting photographs that were doctored so as to show him participating in a demonstration.
For these reasons the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention.
The issues in this case are numerous as raised by the applicant in his original application and affidavit and written submission although in fact there is considerable overlap between the various claims and not all of them were dealt with in the written submission. As the applicant is self-represented I have considered all of his claims and also the material before me to ascertain whether there is any reviewable error.
The applicant claimed that the Tribunal did not consider his claim, that it did not observe procedures under the Migration Act, that it ignored the merits of his claim, that it failed to take into account what he described as the “verdict” of Bangladeshi country information, that it did not act in good faith, it misjudged the fate of his claim, did not raise with him the country report and departmental information (this apparently being an argument based on the High Court decision in Muin v Refugee Review Tribunal (2002) 76 ALJR 966) that he was not and is not represented by a solicitor and that the Tribunal was affected by actual bias and that there was a lack of procedural fairness.
The respondent submitted that no reviewable error was apparent in the Tribunal decision or procedures. In the course of the hearing today, the applicant raised a number of further issues. He complained that the Tribunal did not take into account his documentation, had not investigated such documentation and that his application had been unsuccessful because the Tribunal took the view, with which he disagreed, that because the BNP is in power, he does not face persecution.
He indicated that he also took issue with the Tribunal conclusions in relation to his credibility, in particular the credibility of the photographs which he provided. He disagreed with the Tribunal conclusion that if he returned to Bangladesh he would not face a risk of persecution.
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 establishes that it is necessary to consider whether there is a jurisdictional error or failure to comply with the principles of natural justice constituting a failure to exercise jurisdiction or an excess of the jurisdiction by the Tribunal conferred by the Migration Act 1958.
Turning then to the specific claims made by the applicant. The applicant claims that the Tribunal did not consider his claims and ignored the merits of the claim. From the Tribunal reasons for decision, it is apparent that the Tribunal considered his claim which it summarised. However the Tribunal reasons turned on the findings in relation to credibility. Credibility is a matter for the Tribunal par excellence: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parteDurairajasingham (2000) 168 ALR 407. The Tribunal findings in relation to credibility were open to it on the material before it. It is not for the court to form its own view as to whether it would have given the issues relied on by the Tribunal the significance given to them by the Tribunal or on such view to conclude that the Tribunal's assessment of the applicant's claims should not have been made. Such evaluative processes are for the Tribunal, (Kamal v Minister for Immigration & Multicultural Affairs [2002] FCA 818).
In essence, the applicant seeks to reargue the merits of the case before the Tribunal. Merits review is not available in this court. The applicant's case before the Tribunal relied on his assertions and the set of photographs which he submitted. The Tribunal indicated that it was aware of the obligation to be sensitive to the difficulties faced by asylum seekers. However, for reasons which it gave and which were open to it, the Tribunal concluded that the photographs were obviously doctored and that the applicant had made a deliberate attempt to mislead the Tribunal.
The rejection of the applicant’s claims about his own role meant that the Tribunal decision did not turn on an analysis or understanding of the current position in Bangladesh. The Tribunal did not rely on the change of government, although as is clear from page 79 of the court book that it was aware of and referred to such factors. It concluded that if the applicant was involved in political activity in Bangladesh, there was insufficient reliable evidence on which to conclude that such activity would place him at any risk of persecution in the future. This conclusion was based on the fact that the Tribunal was not satisfied as to the truth of any of the applicant’s claims, which were not supported by evidence apart from the photographs which the Tribunal regarded as doctored. The Tribunal did note that the party that he claimed to support was now in power (albeit in coalition) and that there was some evidence that some local BNP leaders had been harmed. However, the Tribunal was not satisfied that there was any reliable evidence that the applicant was a local BNP leader or that he was at any risk of harm. No reviewable error is apparent in the Tribunal’s consideration of the applicant’s claims.
The applicant alleged generally that the Tribunal did not observe procedures under the Migration Act. No particular procedures were identified and no breach of any provision of the Migration Act is apparent on the material before me.
As indicated, the Tribunal decision turned on its findings in relation to credibility. The applicant's argument that the Tribunal failed to take into account the Bangladeshi country report does not establish any error on the Tribunal's part. It is apparent that the Tribunal left open the possibility that if the applicant were a BNP activist there would be a real issue as to whether or not he would have a well founded fear of persecution based on the material before the Tribunal (being the independent country information referred to in the Tribunal reasons).
In the application and in the written submission it is also alleged that the Tribunal failed to act in good faith. An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. It is not to be lightly made and must be clearly alleged and proved. The circumstances in which a court will find that an administrative decision maker has not acted in good faith are rare and extreme, especially where, as here, all that the applicant relies upon is the written reasons for the decision under review.
Mere error or irrationality does not, of itself, demonstrate a lack of good faith, nor does poor decision making of itself (see generally the decision of the Full Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361). Associated with this claim is a claim that the Tribunal was biased. Bias is also difficult to establish solely from the published reasons. (see SCAAv Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668).
There is nothing on the material before me to support the claim of actual bias or a lack of bona fides or an absence of good faith on the part of the decision-maker. As indicated above, the Tribunal conclusions were open to it on the material before it. In the hearing the Tribunal expressed its concerns in relation to the doctored photographs and warned the applicant that his credibility was at risk. It allowed an adjournment so that the applicant could consult with his adviser.
The material before me does not indicate that there was any actual bias arising from prejudgment in the sense that the decision maker was committed to a conclusion already formed or indeed arising in any other way. Nor is there anything on the material before the court to suggest that there is any real likelihood that a reasonable observer might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the application. (Minister for Immigration and Multicultural & Indigenous Affairs v Jia [2001] HCA 17). The Tribunal has an inquisitorial role and it was appropriate for it to raise and deal with the credibility of the applicant as it did.
The applicant complains that he had no solicitor. This fact does not establish any error on the part of the Tribunal. In any event he did have the assistance of a migration agent in connection with his Tribunal application. His claim that the Tribunal misjudged the fate of his claim is a disagreement with the merits and is not available as a ground of review.
He also claimed that the Tribunal did not raise with him in the hearing a country report and Departmental information on which it relied. It appears from the written submission that this raises an argument based on the decision of the High Court in Muin and perhaps also an argument under section 424A of the Migration Act. However, as the Full Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 indicated, documents in the nature of country information (such as the documents in this case) are within the exception in section 424A(3)(a). There is no obligation on the Tribunal to give the applicant notice of the general country information on which it relied. Nor is there anything in the material before me to suggest that this case was such that an obligation to give notice of such information arose on the ground of procedural fairness because, for example, there had been a change of circumstances.
The claim based on Muin has not been established. It is not open to the applicant simply to rely on Muin without establishing the factual matrix on which his claim is based. There is an absence of any agreed facts as were present in Muin. The applicant does not establish that he was misled into thinking that the Tribunal had considered particular relevant information and that as a result, he did not ensure that such information was placed before it. There is no indication of what particular steps he would have taken, had he been told that, if it were the case, that the Tribunal had not been provided with the documents relied on by the Department. The applicant did refer in the hearing to information in the country reports which he said supported his argument in relation to the present situation in Bangladesh. However, as I have indicated, the Tribunal decision did not turn on the present situation in Bangladesh, as it did not accept the applicant's claims.
Having considered all of the material before me and the applicant's claims I am not satisfied that any jurisdictional error or lack of procedural fairness has been established. Nor am I satisfied that it has been established that there was a lack of a bona fide attempt in the sense within the Hickman provisos (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 498). The applicant was given a reasonable opportunity to present his case and to deal with adverse matters put to him by the Tribunal. The Tribunal considered the claims, made findings including credibility findings which were open to it on the material before it. There is no reviewable error apparent on the material before the court.
Finally, the applicant took issue with the Tribunal’s failure to undertake an investigation before rejecting documents. There was no issue in relation to the authenticity of written documents tendered to the Tribunal apart from the photographs. The Tribunal conclusions in that regard were open to it on the material before it.
As no error has been established I have no alternative but to dismiss the application. I will hear submissions as to costs.

RECORDED : NOT TRANSCRIBED

As the applicant has been wholly unsuccessful I consider that it is appropriate that he meet the respondent's costs. The costs should be set in accordance with the Federal Magistrates Court Rules. Taking into account the nature of this and other similar cases, I consider that an appropriate amount for such costs is $3000.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 26 June 2003