S1061of 2003 v Minister for Immigration - [2004] FMCA 1089

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1061of 2003 v MINISTER FOR IMMIGRATION

[2004] FMCA 1089

MIGRATION – Refugee.

Migration Act 1958

Muin v Refugee Review Tribunal & Ors and Lie v Refugee Review Tribunal & Ors [2002] HCA 30

Re: The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1
Applicant A210/2002 v Minister for Immigration Multicultural & Indigenous Affairs [2004] FCA 286

Applicant:

S1061 of 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1385 of 2004

Delivered on:

22 November 2004

Delivered at:

Sydney

Hearing date:

22 November 2004

Judgment of:

Nicholls FM

REPRESENTATION

Counsel for the Applicant:

NIL

Solicitors for the Applicant:

NIL

Counsel for the Respondent:

Ms. R. Francois

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That application is dismissed.
The applicant to pay the respondent's costs set in the amount of $3900 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1385 of 2004

S1061 of 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

This is an application filed in this Court on 11 May 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 January 1999 and notified to the applicant by letter dated 8 January 1999 to affirm the decision made on 3 March 1998 of a delegate of the respondent Minister to refuse a protection visa to the applicant.
The applicant is a citizen of Bangladesh who arrived in Australia on 6 December 1997 as a visitor and applied for a protection visa on 5 January 1998. The applicant claimed to have been involved in politics in Bangladesh as a well known and popular leader of the Bangladesh Nationalist Party (BNP) and that he had been attacked by members of the opposition Awami League. He also claimed to have been charged with a crime in Bangladesh for political reasons.
In his application to this Court the applicant complains that:
-statutory procedures were not observed
-the Tribunal did not provide the applicant with an opportunity to comment on materials on which it relied
-that there was no evidence or materials to justify the Tribunal's decision
-a denial of natural justice.
None of these grounds are particularised in the application.
However, the applicant filed an amended application with a supporting affidavit on 27 September 2004. He claims four grounds:
1)A breach of the rules of procedural fairness in that the Tribunal did not give him an opportunity to comment on material adverse to his claim. In particular he refers to Australian Embassy reports which form part of the Tribunal's decision;
2)A breach of the rules of procedural fairness by failing to put country information to the applicant. This is not particularised.
3)That the Tribunal breached the rules of procedural fairness in relying in an impermissible way, on certain submissions of the “Secretary of the Department” [presumably the Department of Immigration Multicultural and Indigenous Affairs]. No particulars are provided.
4)The Secretary of the Department failed to provide the Tribunal with documents relevant to the review. This is particularised in Particulars 2 and 3 in that the applicant claims the Secretary did not provide “Part B” documents to the Tribunal and that the Tribunal did not consider these relevant documents. The applicant makes reference to “Gaudron J and Gummow J in Muin, Lie v Refugee Review Tribunal”.
At the hearing before me the applicant was unrepresented. He appeared with the assistance of an interpreter in the Bengali language. In relation to the proceedings before me the applicant had access to the Court’s Legal Advice Scheme and consulted a panel lawyer on 28 September 2004 and received advice on 12 October 2004. Further, on the applicant's own advice at the hearing before me he has had access to legal assistance during the history of litigation that he has pursued in relation to this Tribunal decision. [see below]
The applicant also relied on written submissions filed in this Court on 15 November 2004. The submissions recount:
-the applicant's account of various applications that he has made both administrative and litigious
-submissions on the law relevant to s. 486A of the Migration Act,
-a reciting of the grounds in the amended application
-further 11 points which the applicant submits support his belief that the Tribunal made errors. I will deal with these later in this judgment.
What was omitted in the applicant's outline of the history of this matter in his submissions, is that on 1 February 1999 he made an application to the Federal Court seeking judicial review of the same Tribunal decision which is the subject of the application currently before this Court [see Court Book 166-168]. On 31 May 1999 his Honour Justice von Doussa dismissed that application [CB 170]. His Honour found [CB 171-175] that the findings of fact made by the Tribunal were open to the Tribunal to make on the material before it and that it was open to the Tribunal to disbelieve the evidence of the applicant. His Honour found that in essence the applicant’s complaint was that the Tribunal “got the facts wrong” and that the applicant was seeking impermissible merits review. The Court found that no error of law in the Tribunal decision had been demonstrated.
During the course of the hearing before me today I was advised by the respondent's counsel that the applicant had been part of a class action brought before the High Court of Australia and that in relation to the applicant this matter had been referred to the Federal Court and that on 30 April 2004 his Honour, Emmett J made orders by consent that the application be dismissed. I have taken into evidence a copy of those orders and marked "RE1". Justice Emmett made orders by consent that the application be dismissed. The applicant confirmed that course of events and told me that he had been legally represented.
In his current amended application, in his first and second grounds the applicant asserts that the Tribunal took into account material adverse to the applicant and it did not give him an opportunity to comment on this material. In particular, he claims that these were Australian Embassy reports which formed part of the reasons for the Tribunal's decision. In relation to these Embassy reports the applicant has provided no detail as to their identity and relevance to the Tribunal’s decision. However, I note that at CB 162-165 there is a copy of a communication noted as Country Information Service (sourced from DFAT) and marked “From: Dhaka To: Canberra.” This appears to be an “Embassy report”. In the Tribunal record of decision at CB 101 [paragraph “d”] there is a reference to a “DFAT cable” providing what the Tribunal describes as independent evidence in relation to people for whom an arrest warrant has been issued and advice that such people are not permitted to leave Bangladesh. Another possible document is at CB 147-161 which is a copy of a report of a briefing on Bangladesh delivered on 2 April 1993 by a former diplomatic officer at the Australian High Commission at Dhaka.
The applicant has been unable to argue how and why this material was adverse to his claims. Clearly the Tribunal used this advice as a basis for seeking clarification from the applicant as to the circumstances of his departure from Bangladesh. In particular, the Tribunal refers to the applicant's response that the group leader had arranged his departure and may have bribed people. From the Tribunal’s record, which is not disputed by the applicant, it is clear the Tribunal put this matter to the applicant, gave him an opportunity to respond, and he did.
Further, and of significance, it is clear on a plain reading of the Tribunal's decision that central to its decision was the view that the Tribunal took of the applicant's credibility and of the credibility of some of his claims - see CB 104.5 where the Tribunal says:
The applicant did not impress as a credible witness.
It found the applicant had knowingly made false statements to the respondent’s Department, knowingly submitted a false document in evidence and that some of his claims were internally inconsistent, and that he was unable to offer any plausible explanation for any of these matters. It gave reasons for coming to this view. The Tribunal made further findings that in various respects the applicant's specific claims were implausible - see CB 105.3 (how he avoided arrest by the police), CB 105.7 (that he was assaulted because of his political opinion) and CB 105.9 (that he was sought by police because of a politically motivated charge).
As to any other documents containing adverse material on which the Tribunal relied, these were put to the applicant [see CB 101.2-105.2] and in particular in relation to the photocopied documents purporting to be evidence supporting his claim that he had been charged with criminal offences for political reasons the Tribunal put to him the adverse material on which it relied. This contention cannot be made out.
The third ground in the amended application is that the Tribunal relied on certain submissions from the “Secretary of the Department” in “an impermissible way.” There are no particulars, nor was the applicant able to provide any detail at the hearing before me, nor can I see on the material before me to what this may refer.
The fourth ground is that the Tribunal did not consider relevant materials in the applicant's “Part B” documents, which were before the respondent’s delegate and thereby fell into error as identified in Muin v RRT & Ors and Lie v RRT & Ors [2002] HCA 30. The applicant further asserts that the Secretary of the Department of Immigration Multicultural and Indigenous Affairs did not comply with s.418 (3) of the Migration Act. This is clearly an attempt by the applicant to assert on the part of the Tribunal in his case, the type of errors identified by the High Court in Muin v RRT & Ors and Lie v RRT & Ors [2002] HCA 30.
Firstly, in relation to s.418(3) the majority of the High Court, in the cases raised by the applicant, held that it was unnecessary, inappropriate or both, to decide whether there had been a failure to comply with s.418(3). Gleeson CJ, did not give reasons for finding that it was inappropriate to decide this issue, but stated that the failure to comply with the section had not been made out. Callinan J, in relation to Ms Lie, stated that it was also unnecessary to deal with the matter, but added that if there was a breach of the section, its extreme technicality would not provide a ground for relief in the circumstances of the case. His Honour, Gummow J, with whom his Honour, Hayne J, agreed on this point, found it was unnecessary to decide this issue as relief was available on other grounds, but that it was also inappropriate to decide it because the relief sought would not be available for such non-compliance. Gaudron J also found it was inappropriate to grant the relief sought. Two Justices, his Honour, McHugh J and his Honour, Kirby J, made positive findings on this issue, but even McHugh J said there was no breach because, by identifying the “Part B” documents so they could be accessed by the Tribunal, the Secretary had fulfilled his duty. There is nothing that the applicant has put before me, nor can I find anything on the material before me in this case, to show how the High Court Judgment can assist this applicant in relation to this ground. In any event any failure by the Secretary of the Department to provide these documents is not a failure of the Tribunal.
As to the ground that the Tribunal did not consider the relevant materials in the applicant's “Part B” documents, which were before the delegate, and the assertion that the Tribunal failed to collect all relevant documents and thereby fell into error, the majority of the High Court found that the Tribunal had misled the plaintiffs about the documents it had before it, and which it had considered in conducting a review “on the papers”. This outcome, it should be noted, was to a large extent determined by the facts, which the parties to those proceedings had agreed to. I note there are no such agreed facts before me in the current matter.
Central to the High Court's finding, was that the Tribunal needs to be careful that it does not misrepresent, or appear to misrepresent, to applicants before it, as to the information it has before it, and to which it has regard in making its decision. In the case before me, beyond mere assertion and some broad mention in an affidavit filed by the applicant on 27 September 2004, the applicant has not produced evidence to show, as the respondent has submitted in written submissions, that the Tribunal did not consider the “Part B” documents.
But even more significantly there is no evidence before me that he was misled into believing that the Tribunal had considered any particular relevant information, that is the applicant was unable to identify the particular information he was misled into thinking would be considered, and therefore would have been unable to make sure that such information was put before the Tribunal. I agree with the respondent's counsel, that beyond assertion, the applicant has not established any necessary factors to enliven the Muin principle. He has not been able to show that the Tribunal did not consider the “Part B” documents, that he was misled into believing the Tribunal had considered any relevant information and denied the opportunity to ensure that such information was placed before the Tribunal or of making submissions on the issue.
On what is before me the application, in so far as it relies on the matters asserted above has already been the subject of litigation by the parties before the Federal Court. To the extent that those matters were raised before the Court in earlier proceedings the principle of res judicata would apply. The applicant has not put forward anything, nor is anything evident, to explain why the matters he now asserts were not raised in the earlier proceedings, and in the absence of any exceptional circumstances it would be open to this Court to dismiss the application on this basis.
The applicant filed written submissions in this Court on 15 November 2004. There was some doubt before me today as to whether these were served on the respondent. The applicant claimed to have sent them at the address for service. The respondent claimed they had not been received. A copy was provided to the respondent at the hearing before me today and after a short adjournment, the respondent made no objection to my proceeding with the hearing of this matter.
In these written submissions, the applicant makes 11 points and I will deal with each of those:
1)The Tribunal did not give the applicant an opportunity to comment on adverse information.
No details are provided nor, despite the Court’s attempts to provide an opportunity at the hearing before me for expansion, was the applicant able to provide any further detail. As best this appears to be no more than re-asserting the matters in his application.
2)That the Tribunal ignored the fact that he had been tortured by police in a detention centre.
There is no evidence before me that this claim was raised by the applicant before the Tribunal and further at the hearing before me today the applicant said he had not been in detention. By way of explanation the applicant said that the submissions had been drafted by a “friend”.
3)That the applicant was denied an opportunity to respond to the Tribunal after the hearing and prior to the Tribunal's decision.
There is no evidence before me to show that the applicant sought, or was told that such an opportunity was to be provided. Nor is there anything before me to show that such an opportunity should have been provided and that he was not given an opportunity to present his case.
4)That the Tribunal did not properly consider the issue of relocation.
The only possible reference that can be found to this issue was the Tribunal's comment at CB 101.1 where the Tribunal records that it asked the applicant if it was unreasonable for him to live in another area other than his home town. This was put to him in the context that neither the Awami League nor the police had located him when he lived with friends outside his area. In any event, this was not central to the Tribunal's decision. The applicant's application did not succeed because of the view the Tribunal took of his lack of credibility. It was the finding on credibility which grounded the Tribunal’s conclusion that his fear of persecution was not well-founded. In these circumstances it was not necessary for the Tribunal to consider the issue of relocation.
5)That the Tribunal's decision was supported by unspecified vague evidence by DFAT reports and the Tribunal member's own experience.
Before me today the applicant said that the Tribunal had a preconceived idea and did not believe his documents, that is, the documents that he had submitted. The applicant was unable to support this assertion by way of any argument or evidence, and has not established any basis for bias on the part of the Tribunal if this is what he means.
6)The Tribunal failed to warn the applicant about the view that it was going to take that, presumably, his documents were not going to be treated as genuine in his case. At the hearing before me the applicant said that he did not think that he had said to the Tribunal that a false document had been obtained for him as reported by the Tribunal at CB 104.9.
From the Tribunal’s decision record the Tribunal reports that it put its concerns about the documents submitted by the applicant, (see CB 101 – paragraph “a”), and records the applicant’s response which then led to the Tribunal’s finding at CB 104.9 regarding the “BNP letter”. Further, the Tribunal also records it put to the applicant the existence of independent evidence about the ease of obtaining fraudulent documents in Bangladesh. The applicant has put no evidence forward to contradict this.
7)The applicant’s narrative in his submissions contains various allegations regarding a failure on the part of the Tribunal to put doubts about documents to the applicant and a breach of statutory provisions. These appear to repeat matters already alleged by the applicant. To the extent that the applicant is attempting to asset additional matters again, no particulars are provided, nor can I find anything in the materials before me to support the applicant's claims.
8)Points (8), (9) and (11) are statements of belief and to the extent that they may go to support any ground of review are totally devoid of particularity.
9)That the Tribunal failed to collect his “Part B” documents, and a failure to comply with s. 418(3). I have already dealt with this.
The applicant failed before the Tribunal because of the view the Tribunal took of the applicant's credibility. On the material before it I can find no reason to say that the Tribunal was not entitled to reach such a finding. Findings of fact, including findings on credibility are of course matters for the primary decision maker “par excellance”. Re: The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1. I can find no error let alone jurisdictional error in what the Tribunal has done and on that basis this application should be dismissed. I should also note that the Tribunal decision which is the subject of this application before this Court has already been considered by the Federal Court where His Honour, von Doussa J, found that the Tribunal findings of fact were open to it on the evidence and that it was open to the Tribunal to disbelieve the applicant's evidence. His Honour dismissed the application for review after hearing from the applicant. The same Tribunal decision, with the same parties, has already been litigated. To the extent that the applicant is now seeking to raise additional grounds there is no evidence before me to answer the respondent’s assertion that they should have been raised earlier. [This includes, that it is as the respondent submits, no answer that Muin had not been decided at the time: Applicant A210/2002 v Minister for Immigration Multicultural & Indigenous Affairs [2004] FCA 286]. To bring another application to another Court in these circumstances, without explanation over 5½ years later would be an abuse of process. In any event the applicant has not made out, nor is any jurisdictional error evident. The application should be dismissed on this basis.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Wagma Aziza

Date: 9 March 2005