NAHZ v Minister for Immigration - [2003] FMCA 291

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAHZ v MINISTER FOR IMMIGRATION

[2003] FMCA 291

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

Migration Act 1958 (Cth)

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749
Stead v State Government Insurance Commission (1986) 161 CLR 141
Minister for Immigration & Multicultural Affairs, Re Ex parte Lam (2003) 77 ALR 699
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 293
Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17
R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 498

Applicant:

NAHZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ221 of 2003

Delivered on:

20 June 2003

Delivered at:

Sydney

Hearing Date:

20 June 2003

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

That the application is dismissed.
That the Applicant pay the Respondent’s costs set in the amount of $4,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ221 of 2003

NAHZ

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 19 December 2002, affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.
The applicant is a citizen of Bangladesh who arrived in Australia on

29 September 2000. He lodged an application for a protection visa on 20 October 2000. On 23 November 2000 a delegate of the respondent made a decision refusing to grant the applicant a protection visa. The applicant applied to the Tribunal for review of that decision. The applicant claimed to fear persecution at the hands of members of the Awami League because of his involvement in the Bangladeshi National Party (the BNP).
The Tribunal accepted that the applicant was a member of the BNP. It detailed the claims that he made in relation to that membership and accepted that he had held a number of positions in the BNP, in particular, that he was president of his secondary school committee, president of the youth wing for his village and a member of another committee for the district. The Tribunal considered the applicant's evidence of what he did in support of the BNP, in particular his evidence that he followed the instructions of higher ups in the parties, received instructions and carried out those tasks and his participation in demonstrations and encouragement of people to attend demonstrations and activities under the guidance of leaders and others higher up in the party. On the basis of these claims the Tribunal concluded that, rather than being a high profile level leader, the applicant was simply a follower and a low level organiser. In light of independent country information in relation to the risks likely to be faced by such people (as compared to high level officials) the Tribunal could not be satisfied that the applicant was the target of the Awami League as claimed.
The Tribunal also took into account the fact that the applicant had left Bangladesh some two years earlier, that he had travelled to and from Bangladesh in 1999 and that nothing had happened to him on his return. On the basis of its conclusion about the level of his involvement and the independent evidence the Tribunal was not satisfied that the Awami League or anyone else would have any ongoing adverse interest in the applicant in the reasonably foreseeable future.
The Tribunal also considered the applicant's claim that his home was ransacked and looted in 1996 by members of the Awami League. The Tribunal did not accept that claim to be credible and gave reasons for its findings.
Similarly, it did not accept the applicant's claim that false charges had been filed against him, in particular, because of the applicant's vagueness about the crimes and when the charges were laid, his inability to produce evidence to substantiate the claim despite having ample time to do so and the fact that by his own actions, in leaving and returning to Bangladesh after a 1999 business trip, he appeared to have given such claims no serious regard.
The Tribunal concluded that the applicant had not faced any harm or adversity in the past and would be of no adverse interest to the Awami League or anyone else for any Convention reason in the reasonably foreseeable future in Bangladesh. The Tribunal therefore found that the applicant did not have a well-founded fear of persecution for reason of his political opinion or for any other Convention reason in the reasonably foreseeable future in Bangladesh. It affirmed the decision of the delegate.
The applicant sought review of the Tribunal decision in the Federal Court on 13 January 2003. The matter was transferred to this court on 21 February 2003. In his application, the applicant appears to be claiming that the Tribunal failed to make a bona fide attempt to exercise its powers. He states that the Tribunal did not consider the current political situation in Bangladesh and did not take into consideration operation ‘Clean Heart’ which he said was being run by the army. He claimed that the Tribunal inaccurately portrayed him as a low profile political leader and did not consider the fact that he had been harassed and oppressed by a Mr Hazari, one of the top terrorists in the country associated with the Awami League. He also claimed generally that a number of errors had occurred in deciding his fate. An accompanying affidavit repeated his claims as to persecution.
The written submission filed by the applicant makes different claims, although in fairness it should be noted that the submission was prepared after the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.
Essentially, the applicant claims that he was denied procedural fairness for a number of reasons. First that he was not told, when invited to a hearing, that he would have access to country information on which the Tribunal would base its decision. Secondly, that he had no chance to know the issues and contents on which a decision would be based. Thirdly, that he was not aware of whether all the country information about Bangladesh was supplied by the Department to the Tribunal. (This allegation was made with reference to the decision of the High Court in Muin v Refugee Review Tribunal (2002) 76 ALR 966). Fourthly, that he was not told that the making of the decision might be delayed for one or two years and that the delay caused him stress and that the political situation in Bangladesh became worse. Fifthly, the applicant took issue with the Tribunal conclusion that, as a person who was not a high profile leader level, he was in no danger of persecution. He claimed that the question of whether he was high or lower level was irrelevant as he had a well founded fear of persecution.
Sixth, he claimed that the Tribunal hearing was not conducted in an informal way although the information sheet provided had indicated that such hearing would be conducted informally. Associated with this claim is a claim that the Tribunal came to its task with a closed mind and that it unnecessarily accused him of fabricating his claim in relation to false charges and gave that claim no weight. The applicant claims that the Tribunal wrongly alleged that he lied to enhance his refugee application by supplying a false document. The applicant suggested that the Tribunal did not realise how hard it was to obtain any documents from Bangladesh while overseas.
In oral submissions before the court, the applicant submitted that he did not understand what evidence the Tribunal wanted, and that if he had the opportunity for a fresh hearing and was told what was needed he would provide it. He brought a potential witness to the hearing from whom he sought to provide oral evidence in relation to the situation in Bangladesh. I explained that the court proceedings are not a re-hearing at which fresh evidence may be considered and did not hear evidence from this person.
The applicant is self-represented, although it appears he may have had some assistance in connection with preparation of his written submissions. Accordingly, I have considered the Tribunal reasons for decision and all the material before me to determine whether or not it reveals a reviewable error. I have also considered each of the grounds raised by the applicant.
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 by the Tribunal to exercise jurisdiction or an excess of the jurisdiction conferred by the Migration Act 1958.
The applicant was invited to a hearing in a letter sent by the Tribunal on 3 October 2002. It commenced with a statement that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on this information alone. It invited the applicant to a hearing to give oral evidence and present arguments in support of his claims. It indicated that the applicant could ask the Tribunal to obtain oral evidence from another person or persons. The applicant was asked to send any new documents or written arguments he wanted the Tribunal to consider by a specified date. The applicant was also provided with information on the hearing. A copy of the letter was sent to his migration agent. The Tribunal has complied with its obligation under the Migration Act to invite the applicant to a hearing, as required by section 425 of the Act. There is nothing in the material before me to suggest that the way in which this was done constituted a denial of procedural fairness.
The applicant complained that he was ‘not told about the contents and issues’. He seems to suggest that he should have been given advance notice of relevant issues. However, the applicant was informed that the information before the Tribunal was insufficient to result in a favourable decision. He was invited to provide further documentation or written argument. It is for the applicant to put his case before the Tribunal. The argument that the applicant had no chance to know the issues and contents on which the decision would be based does not establish any denial of procedural fairness or jurisdictional error.
In so far as this constitutes, in conjunction with the claim about country information, a claim that this or other information should have been put before him for comment, I am not satisfied that there is any lack of procedural fairness or indeed, any failure to comply with section 424A of the Act (whether or not such a failure might constitute a lack of procedural fairness or a jurisdictional error). In particular, as held by the Full Court of the Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749, documents in the nature of country information are within the exception in section 424A(3)(a). Similarly, the country information relied upon by the Tribunal in this case would come within this exception. There is no obligation on the Tribunal to give the applicant notice of general country information on which it relied and there is nothing in the material before me to suggest that this case is such that an obligation to give notice of information arose because, for example, of a change in circumstances.
The applicant also relies on the decision of the High Court in Muin. However this claim has not been established. As submitted by the respondent, it is not open to the applicants simply to rely on Muin's case without establishing the factual matrix on which his claim is based. As Kiefel J pointed out in NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 293, Muin establishes that there is a want of procedural fairness when an applicant is mislead into thinking the Tribunal has considered particular relevant information and as a result did not ensure such information was placed before it.
In this case, there is an absence of any agreed facts as were of relevance in Muin. The applicant has not established 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, if that were the case, that the Tribunal had not been provided with any of the documents relied on by the Department. Further the applicant does not identify any particular information that he believed the Tribunal had taken into account and that he would have ensured was placed before it had he been advised that was not the case. The claim on this basis is not made out.
The applicant also complains of the delay in the making of the decision. First, I note that the delay is from the time of application to hearing and not from the time of hearing to decision. More importantly, it has not been shown that such delay in any way denied the applicant the opportunity of a successful outcome. Indeed, on the contrary, it allowed the applicant considerable time to obtain further information or evidence in support of his claim. (Stead v State Government Insurance Commission (1986) 161 CLR 141 and Minister for Immigration & Multicultural Affairs, Re Ex parte Lam (2003) 77 ALR 699).
Associated with that claim is a claim that the hearing was conducted in a formal manner. There is no evidence to substantiate this claim. Nor is there any indication as to how the alleged formality in any way denied the applicant the opportunity of a successful outcome.
It is further alleged that the Tribunal came to its task with a closed mind. It appears from the submissions and application that the applicant is alleging generally either actual or apprehended bias constituting a denial of procedural fairness and/or a lack of a bona fide attempt by the Tribunal exercise its powers.
A party alleging bias carried a heavy onus. The allegation must be distinctly made and clearly proved. (see Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17, SCAA v Minister for Immigration & Multicultural & Indigenous Affairs as to the principles which apply to the question of whether a finding of actual bias is made out). As pointed out by von Doussa J in SCAA it will be a rare case where actual bias can be demonstrated solely on the published reasons of the Tribunal.
In this case there is nothing before the court other than the published reasons and the normal documentation of the letters and correspondence proceeding the hearing. There is no evidence as to the manner in which the hearing was conducted other than what is said in the Tribunal reasons for decision. These reasons reveal that the Tribunal appropriately, given the inquisitorial nature of its proceedings, asked the applicant a number of questions and he provided answers. There is nothing on the face of the reasons of the Tribunal or the material before the court to suggest that the Tribunal was dishonest in its task or reckless in the manner of its decision making. Nor is the evidence before the court such as to establish apprehended bias. There is nothing 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 resolution of the application. (See Jia) One must take into account the different nature of Tribunal proceedings compared to court proceedings and its inquisitorial role. (Ex parte H [2001] HCA 28). Furthermore, in this case the credibility of the applicant was an issue and the decision maker in such circumstances had necessarily to test his evidence and confront him with adverse matters and inconsistencies.
I am not satisfied that there is in this respect any error by the Tribunal either jurisdictional error, lack of procedural fairness or a lack of a bona fide attempt in the sense contemplated by the so-called Hickman provisos (see R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 498).
Finally the applicant alleged in oral submissions that he did not understand what evidence the Tribunal wanted. This is related to other claims discussed above. It is for the applicant to put his evidence to the Tribunal in support of his claim and the Tribunal's task is to assess whether it accepts those claims. The evidence does not suggest that the applicant was not given a reasonable opportunity to present his case and to deal with adverse matters put to him by the Tribunal. Further, the Tribunal reasons show that it considered the applicant's claims and the bases for those claims. It made factual findings, including credibility findings open to it on the material before it. On the basis of those findings and additional independent information, it found that any fear held by the applicant was not well founded. This was the task set for it by the Migration Act and there is no reviewable error apparent on the material before the court.
As no error has been established I have no alternative but to dismiss the application. I will hear submissions in relation to costs.

RECORDED : NOT TRANSCRIBED

The applicant has been wholly unsuccessful and I consider that it is appropriate that he should bear the costs of the respondent and that the costs be set in accordance with the Federal Magistrate Court Rules. Bearing in mind the nature of this and similar proceedings, I consider that an appropriate amount is the sum of $4000.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 20 June 2003