NAIH v Minister for Immigration

[2003] FMCA 308

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAIH v MINISTER FOR IMMIGRATION [2003] FMCA 308

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

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth)

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parteDurairajasingham (2000) 168 ALR 407
Kamal v Minister for Immigration & Multicultural Affairs [2002] FCA 818
Minister for Immigration & Multicultural Affairs, Re; Ex parte Lam [2003] HCA 6
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]
1 KB 223
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17
Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28
Minister for Immigration & Multicultural Affairs, Re; ex parte Applicant S20/2002 [2003] HCA 30
Selvadurai v Minister for Immigration and Multicultural Affairs (1994) 34 ALD 347
Abebe v Commonwealth of Australia (1999) 197 CLR 510
R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 498

Applicant: NAIH

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ233 of 2003

Delivered on: 3 July 2003

Delivered at: Sydney

Hearing Date: 3 July 2003

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms M Allars

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. That the application is dismissed.

2. That the applicant pay the Respondent's costs set in the amount of $4000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ233 of 2003

NAIH

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. These are extempore reasons for judgment in the matter of NAIH and the Minister. This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 10 December 2002 affirming a decision of the delegate of the respondent to refuse to grant a protection visa to the applicant. The applicant applied to the Federal Court under section 39B of the Judiciary Act 1903 and the matter was transferred to this court. 

Background

1. The applicant who claims to be a citizen of Bangladesh arrived in Australia on 31 August 2000 and applied for a protection visa on

   
   11 October 2000.  On 11 January 2001 a delegate of the respondent refused to grant a protection visa to the applicant.  On 8 February 2001 the applicant applied for review of that decision by the Tribunal.  The applicant claimed to fear persecution by reason of his political opinion in Bangladesh.  In his application for a protection visa he claimed that he:

   i)was a single Sunni Moslem man from Bangladesh;

   ii)was a political activist in the Jatiya Party of Daghan Bhinyan than a and a member of the executive committee of the Feni District Jatiya Party;

   iii)was a victim of members of the Awami League, in particular Mr Joynal Hazari, who sought to wipe out opponents such as the applicant;

   iv)in 1993 was arrested by police in connection with a demonstration organised for the release of President Ershad and was detained for 72 hours and tortured;

   v)in 1998 was appointed publication secretary of the Jatiya Party’s Feni branch;

   vi)during 1994 and 1995 developed a political profile and was in an antagonistic relationship with members of the Bangladesh Nationalist Party (BNP)

   vii)after the 1996 elections when the Awami League formed government with the support of the Jatiya Party, organised meetings and delivered lectures in many areas explaining the objectives of the Jatiya Party;

   viii)was severely beaten twice by Hazari’s forces and warned that if he did not listen to them he would be killed.

2. The applicant elaborated on his claims in an unsworn statutory declaration, documents provided to the Tribunal, and in evidence at a hearing held by the Tribunal on 13 November 2002.  The Tribunal had before it the material from his application for a protection visa, his various submissions including newspaper clippings and documents purporting to be from members of the Jatiya Party and court documents.  At the hearing the applicant made a number of claims as detailed in the Tribunal reasons for decision.  He claimed that:

   (i)he prepared all the answers in the application and submissions himself;

   (ii)he presented a false passport on entry into Australia;

   (iii)although the Awami League lost government in October 2001 when one faction of the Jatiya Party gained power Mr Hazari still was powerful and had the same objectives and the BNP was trying to take revenge;

   (iv)supporters of the Jatiya Party were still receiving threats;

   (v)the first time he was beaten was in 1993 on the way home from the office and he was also accused of being involved in a bomb blast at that time;

   (vi)in 1997-98 when Hazari came to power he was threatened and abused; and

   (vii)in 1993 false cases were filed against him relating to explosives.

   In particular the applicant confirmed that he basically prepared the answers in his applications and submissions himself with the assistance of a migration agent and a friend and that he had had read to him and understood such material and that all of it was correct. 

3. As indicated in the Tribunal reasons for decision, in the course of the hearing the Tribunal put to the applicant inconsistencies in his claims and also put to him issues of concern arising out of his evidence and independent country information before the Tribunal. In particular the Tribunal discussed with the applicant not only the inconsistencies and his inability to recall significant dates and events, but also the present political situation in Bangladesh, the change of government, the independence of the higher levels of the judiciary and the situation in relation to documentary fraud of documents produced from Bangladesh.  Such matters are detailed at some length in the Tribunal reasons for decision. 

4. The Tribunal reasons for decision also indicate that while the Tribunal accepted that the applicant was a national of Bangladesh and a Muslim the applicant failed essentially because the Tribunal did not believe him.  The Tribunal did not accept the applicant as a credible or plausible witness.  It gave reasons for such conclusion.  In particular it found that he had demonstrated that he was prepared to alter and embellish his evidence.  His oral evidence contradicted his written evidence in important respects and in parts contradicted itself.  More particularly the applicant could not satisfactorily explain the contradiction in his evidence as to when he was beaten (1993, 1997-8 or 1999), how often (once or twice) and when or by whom the major beating occurred (in particular whether it was by the police after a demonstration or by Hazari thugs when he was on the way home from his political office) or the length of his claimed detention (72 hours or part of a day).  Further, while he claimed that false charges had been laid against him in relation to a bombing incident in 1993, the documents that he submitted purporting to be official court documents referred to an incident occurring in 1999 despite this not being the claim in his five written submissions. 

5. The Tribunal also considered the applicant’s explanation for this inconsistency.  He claimed that there had been two separate incidents.  The Tribunal found this explanation to be weak and to be contrary to the voluminous written submissions which the applicant had said were complete.  As such events were the central elements of the applicant's claims, the Tribunal stated that it would have expected the applicant to have had a clear memory as to such significant personal events.  The Tribunal concluded that overall the inconsistencies and disparities were of such a nature that it could not accept them, and as a result did not accept the applicant as a credible witness.  Hence it did not accept his claims in his submissions or oral evidence. 

6. The Tribunal nonetheless went on to consider what would be the case if it were to accept the applicant's claims.  It referred to independent country information as to the present political situation in Bangladesh, the evidence from the applicant, the situation of the judiciary in Bangladesh and the view that it took in relation to document fraud and the documents provided by the applicant (noting that he had admitted that his passport was ‘faked’).  It found that on the basis of the independent country information, that after the BNP won power at the elections in October 2001 the Awami League and Mr Hazari were no longer in power and the BNP adopted a neutral attitude to the Jatiya party, to which the applicant claimed to belong. 

7. It found that there was no evidence to support the applicant's claims regarding fear of adverse action against him by the BNP, the Awami League, Mr Hazari or vigilante mobs.  It also found that the higher levels of the judiciary displayed a significant degree of independence which was relevant as to whether the Bangladeshi government was able or willing to provide protection to the applicant. 

8. It also found on the independent evidence before it, that the documents provided by the applicant purporting to be court documents were fake.  It referred to a number of pieces of independent country information in relation to documentary fraud in Bangladesh.  Furthermore its conclusion in that regard was supported by its view of the applicant's dissonant evidence in relation to the documents, his agreement that documents are faked in Bangladesh, and his admission that he himself caused his own passport to be faked. 

9. Having regard to all such matters, the Tribunal concluded that the applicant did not have a well-founded fear of persecution. 

10. The application contained a number of grounds for review.  Further grounds were raised by the applicant in his written submissions and in oral submissions before the Court.  Several of the grounds overlap.  It is convenient before dealing with those, to note the relevant law in relation to these proceedings. In Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24, the High Court held that the expression "decisions made under this Act" in section 474 of the Migration Act 1958 refers to decisions which involve neither a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act. If there has been a jurisdictional error or a failure to comply with the principles of natural justice, the decision is not a privative clause decision and is reviewable (see section 39B Judiciary Act 1903). 

11. In this case, although it appears that the applicant has had some unidentified assistance in connection with the preparation of his written submissions, he is self-represented.  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, in addition to all of the grounds raised by the applicant in relation to which there is a considerable overlap. 

12. Turning first to the grounds set out in the application.  The applicant claims that the Tribunal made a jurisdictional error in finding that he did not have a high profile in Bangladesh.  However, as indicated, the Tribunal did not believe the applicant and found that he was not credible.  That was the primary basis for its decision.  It was open to the Tribunal to reach its findings as to the applicant's credibility on the material before it.  This is a function of the primary decision maker for which detailed reasons need not be given:  Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parteDurairajasingham (2000) 168 ALR 407 at 423.

13. In fact, the Tribunal gave detailed reasons as to why the applicant was not believed on certain critical matters.  Furthermore as the Federal Court said in Kamal v Minister for Immigration & Multicultural Affairs [2002] FCA 818 at [36]:

    It is not for the court on reviewing a decision of the Tribunal to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal or upon any such view to conclude that the Tribunal's assessment of the applicant's claims should not have been made.  Those evaluative processes are for the Tribunal.

14. The applicant claimed the Tribunal made an error of law amounting to a jurisdictional error in finding that the documents he provided lacked credibility without adequate investigation by the fraud investigation unit of the Department.  The Tribunal has no such duty of inquiry.  This is not a case where the Tribunal has informed the applicant that it would take certain steps and fail to do so.  (See Minister for Immigration & Multicultural Affairs, Re; Ex parte Lam [2003] HCA 6). There is no duty to make such inquiries arising under the Act or at common law nor, as I discuss further below, do the requirements of procedural fairness in this case require any such inquiry. It is for the applicant to make his case and to put his documents before the Tribunal. In this case he had the opportunity to do so.

15. The applicant also claims that the Tribunal erred in not taking into consideration the threat to his life or liberty and significant harassment or discrimination he would experience on his return to Bangladesh.  However, it is apparent from the Tribunal reasons that it took into account all of his claims, evaluated them and made findings of fact, in particular findings in relation to his lack of credibility and that it rejected his claims on that basis.  It also considered claims as to the future in light of independent information in relation to the present situation in Bangladesh and the fact that the Awami League and the local member, Mr Hazari, are no longer in power.  No error is established in this respect. 

16. The application claimed generally that the Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction but provided no particulars.  The final claim in the application, that the applicant was entitled to a protection visa, is a disagreement with the conclusions of the Tribunal.  Merits review is not available in the Court. 

17. In written submissions the applicant made a number of claims in particular that the Tribunal exceeded its jurisdiction or deemed procedural fairness to him.  The first ground, again, repeats the claim that the Tribunal did not take any steps to determine whether the Court documents that the applicant had submitted were genuine.  The Tribunal did, however, consider this issue.  It considered the independent country information, the applicant's other evidence in this regard as discussed above and its findings were based on such material.  As I have indicated there was no obligation on the Tribunal to take any further steps to determine the genuineness of the documents which the applicant submitted.  Its decision in relation to such documents did not “just turn”, as the applicant submitted, on the fact that documents can be fraudulently obtained. 

18. In relation to the Tribunal's finding that there was no real chance that the applicant would be targeted for persecution for any Convention reason in the future, the applicant claims very generally that this conclusion was not formed by a correct application of the applicable law.  I have considered the Tribunal reasons for decision.  The Tribunal set out the applicable law correctly and there is no error apparent in the way in which it was applied. 

19. There are no particulars of the repeated claim of constructive failure to exercise jurisdiction and it is not established on the material before me.  The claim that the Tribunal did not permit the applicant to give evidence in accordance with section 425 of the Act is not established.  The applicant had the opportunity to and did attend an oral hearing.  It is clear from the Tribunal reasons for decision that he was given an opportunity to have such a hearing and to address issues of concern to the Tribunal during the course of that hearing.  He had the opportunity to give evidence in that way and also took the opportunity to send written submissions to the Tribunal and to provide other documentary material.  There is no evidence to support this claim. 

20. The applicant repeats the claim that the Tribunal failed to take into consideration the possible future threat if he returned to Bangladesh.  Again, the decision turned primarily on the fact that the Tribunal did not believe the applicant.  It did in fact go on to consider such issues, finding that there was no evidence to support the claims and also referring generally to the other issues such as the independent judiciary at higher levels and other factors referred to above.  The applicant’s disagreement with the Tribunal conclusions in this regard does not establish a reviewable error.  The Tribunal did not fail to consider the possible threat or the claim that an activist in the Jatiya Party could be targeted.  It rejected all the applicant’s claims based on his lack of credibility but went on to conclude that any such fears of persecution were not well founded based on independent country information.

21. The applicant claims the Tribunal member tried to mislead him by telling him the documents he had provided were not genuine.  There is nothing before me to suggest that the Tribunal did try to mislead the applicant. It was appropriate for the Tribunal to put to the applicant the concerns that it had in this regard.  It did so and it gave him the opportunity to comment and properly took his comments into account in reaching its decision. 

22. The applicant also claims that the Tribunal failed to make due inquiry and it appears that he claims that there was a failure to act according to substantial justice within section 420(2)(b) of the Migration Act.

    
    

    I have dealt with the issue of due inquiry. There is no particularisation as to how there is an alleged failure to comply with section 420. The Tribunal gave the applicant an opportunity to be heard and to address its concerns and I am not satisfied that there is any breach of section 420(2)(b) of the Act.

23. The applicant claimed that the Tribunal failed to accord him procedural fairness, and that it did not give him the opportunity to respond to any adverse material that it possessed.  It is apparent from the Tribunal reasons, (in particular court book, pages 106 to 110) that the Tribunal put to the applicant the matters of concern to it and took into account the answers that the applicant gave.  No particular adverse material has been identified by the applicant and there was nothing in the material before me to suggest that there was any failure by the Tribunal to comply with the obligations of section 424A in this regard in relation to adverse material.  The Tribunal is not under obligation to put independent country information to the applicant or to put to the applicant its thought processes. 

24. The applicant also submitted that he was not given the benefit of doubt in the assessment of his credibility.  However, I am satisfied from the Tribunal reasons for decision that its approach to the question of credibility was open to it on the material before it.  It was aware of and took into account the principles in relation to giving a plausible applicant the benefit of the doubt.  However, it appropriately took into account the specific claims made by the applicant and the inconsistencies therein in reaching its conclusions in relation to credibility.  No error or lack of procedural fairness is established in this regard.  The Tribunal tested the applicant's claims against the country information and in terms of consistency, and on this basis found that the applicant was not credible.

1. Insofar as it may be asserted in this connection that the decision was unreasonable, I am not satisfied that any unreasonableness whether in a Wednesbury (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) sense or otherwise has been made out on the material before me. It cannot be said that the Tribunal's findings were so unreasonable that no reasonable person could make such findings. The findings were open to the Tribunal on the material before it as I have indicated.

2. The applicant then makes a number of submissions on page 3 of his written submissions that canvas issues of procedural fairness, actual and apprehended bias and bona fides.  A party alleging bias carries a heavy onus.  I refer to the principles set out by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 as to whether a finding of factual bias will be made out. As pointed out by His Honour:

   It would be a rare case for actual bias to be demonstrated solely on the published reasons of the Tribunal.

3. In this case, what is before the court is the published reasons of the Tribunal and the normal documentation of the correspondence preceding the hearing and the submissions made by the applicant.  The evidence before the Court as to the manner in which the hearing was conducted is that contained in the Tribunal reasons for decision.  No transcript of the hearing has been provided and there is nothing in what the applicant said as to the claims that he put to the Tribunal to suggest that such material would advance his claims. 

4. The Tribunal reasons reveal that the Tribunal appropriately, given the inquisitorial nature of its proceedings, asked the applicant questions, put to him inconsistencies and that he provided answers and they were considered by the Tribunal.  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 the its decision making.  Nor is there anything in 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 (Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17 and Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28).

5. In this case, the credibility of the applicant was in issue.  The decision-maker in such circumstances had necessarily to test his evidence and confront him with adverse matters and inconsistencies.  The inquisitorial role of the Tribunal is, as the respondent pointed out, recognised by the recent High Court decision in Minister for Immigration & Multicultural Affairs, Re; ex parte Applicant S20/2002 [2003] HCA 30 at 49.

6. There is nothing to establish that the Tribunal member had a preconceived idea that the applicant was an undeserving case as is submitted.  The Tribunal dealt with the need to give the benefit of the doubt to an applicant.  There is no indication that the Tribunal member approached his task with other than an open mind or that a particular view was taken that the applicant was undeserving.  The reasons for decision do not support the claim that the Tribunal took isolated incidents and facts out of context which were misleading or that he failed to take into account the cumulative effect of the applicant's experience. 

7. The Tribunal dealt with the applicant's claims in full and sequentially and attempted to put them in context and resolve inconsistencies.  It was because inconsistencies and cumulative claims could not be resolved that the Tribunal reached its findings in relation to credibility. 

8. Paragraphs E and F on page 3 of the respondent's written submissions go over issues that I have touched on.  As I have indicated the Tribunal's approach to the applicant's account of his evidence and the position of an asylum seeker does not indicate any lack of procedural fairness or bias.  The Tribunal indeed referred to the authorities in that regard (see Selvadurai v Minister for Immigration and Multicultural Affairs (1994) 34 ALD 347 and Abebe v Commonwealth of Australia (1999) 197 CLR 510). It did attempt to resolve the inconsistencies. It put such matters to the applicant. It also took into account the possibility that his claim was true and the consequences of such a finding. The applicant claims that the Tribunal failed to recognise that he could be singled out and targeted because of his political opinion as an activist in the Jatiya Party. This is a disagreement with the conclusions of the Tribunal in this regard. Merits review is not available to the applicant in this court.

9. The applicant addresses generally the effect of section 474 and the decision in Plaintiff S157. It is not disputed that the effect of s.157 is that a denial of procedural fairness is jurisdictional error which is not protected by section 474. However in this case no denial of procedural fairness has been established. The applicant was given every opportunity to put information before the Tribunal and to make comments. He was not denied any opportunity to appear and give evidence on an issue the Tribunal considered to be critical to the outcome of the case. The material before the court does not establish either actual or apprehended bias on the part of the decision maker. The Tribunal member made it clear that he had concerns about inconsistencies and he sought clarification appropriately in relation to issues of concern. Insofar as the written submissions contains repetition of other claims or slight variations on those claims they are not made out.

10. In the hearing today the applicant raised a number of other matters which I will mention briefly.  He made a new factual claim in relation the position of the Jatiya Party in Bangladesh at present.  This court is not the venue for the consideration of new factual claims and I note that the Tribunal considered the information before it as to the then present position in Bangladesh and BNP’s attitude to the Jatiya Party.  It did so on the basis of independent evidence before it and there was no evidence that contrary information was before the Tribunal.  However insofar as this submission takes issue with the weight attributed to particular information that is a matter for the Tribunal. 

11. Contrary to a further submission of the applicant the Tribunal did refer and take into account newspaper cuttings submitted by the applicant.  Again, it is a question of the weight that it attributed to such material which related to the general position of political parties and members in Bangladesh.  It is not necessary for the Tribunal to refer line by line to all the evidence before it.  The applicant also made claims in relation to the position of the Awami League in the area of Bangladesh in which he lived.  However the Tribunal reasons for decision make it clear that it considered the claims made by the applicant in the protection visa applicant and in the written and oral submissions to the Tribunal.  Fresh factual claims raised in the course of an application for judicial review do not establish reviewable error by the Tribunal. 

    
    

    I have rejected the claim that the Tribunal has a duty to investigate documents in the manner submitted by the applicant.  I note in particular that the Tribunal did have regard to the documents purportedly coming from courts in Bangladesh and to the inconsistencies in dates in those documents and the dates of events, particularly bombing, referred to by the applicant in his evidence.

12. Further, the applicant takes issue with the Tribunal's approach to his position and level of membership of the Jatiya Party referring to the "leader of party being in danger".  Again I am satisfied that the Tribunal considered the claims before it.  The decision turned essentially on credibility.  The applicant was unsuccessful because of the view the Tribunal took of the facts, in particular its findings that he was not credible.  The findings were open to the Tribunal.  This is not a situation where there was no evidence before it.  No error is demonstrated in the Tribunal's conclusions as to credibility nor is any other jurisdictional error or denial of procedural fairness apparent on the material before the court. 

13. The decision is a privative clause decision.  No failure to observe the so called Hickman (see R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 498) provisos has been established. Insofar as it is claimed that there is a lack of a bona fide attempt by the Tribunal to exercise power I have already considered the claim in relation to the claims of actual or apprehended bias. Such claim is not made out on the material before the court. Accordingly the application must be dismissed.

    
    

    I will hear submissions in relation to costs.

RECORDED   :   NOT TRANSCRIBED

1. In light of the fact that the applicant has been wholly unsuccessful it is appropriate that he bear the Minister's costs.  I consider that in light of the nature of this and other similar cases despite the fact that a large number of grounds were raised they were able to be dealt with in the course of submissions before the court and an appropriate amount for costs if $4000. 

2. Accordingly, it is orders that the applicant pay the respondent's costs set in the amount of $4000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  3 July 2003