S1305 of 2003 v Minister for Immigration
[2007] FMCA 548
•30 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1305 OF 2003 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 548 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Bangladesh claiming fear of persecution for reason of political opinion – credibility – no reviewable error. |
| Migration Act 1958 (Cth) ss.422B, 424, 424A, 474 |
| NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) ALR 494; [2003] FCAFC 262 referred to VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 referred to NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 referred to Kopalapillai v Minister for Immigration and Multicultural Affairs (1998-1999) 56 FCA 547 referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 referred to Minister for immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 referred to Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 referred to Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 referred to VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 referred to WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 referred to W389/01A v Minister for Immigration and Multicultural Affairs (2002) 125 FCR 407 referred to |
| Applicant: | APPLICANT S1305 OF 2003 |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2380 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 December 2006 |
| Date of Last Submission: | 8 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2007 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Ms Johnson |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The title of the first respondent is changed to Minister for Immigration and Citizenship.
The application is dismissed.
The applicant is to pay the First Respondent’s costs fixed in the sum of $3,900.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2380 of 2006
| APPLICANT S1305 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal signed on 13th July and handed down on 3rd August 2006.
The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection (Class AZ) visa.
The applicant seeks an order in the nature of certiorari setting aside the Tribunal’s decision and an order in the nature of mandamus remitting his application for a visa to the Tribunal for determination according to law.
Background
The applicant is a citizen of Bangladesh who arrived in Australia on 18th July 1998 and applied for a protection (Class AZ) visa on
16th October that year. His application was refused on
11th November 1998 and on 15th December he applied to the Refugee Review Tribunal for a review of that decision.
The Refugee Review Tribunal affirmed the delegate’s decision on
4th November 1999, so the applicant sought judicial review of that decision. On 27th April 2006 the Federal Magistrates Court made orders by consent quashing the Tribunal decision and remitting the application to the Tribunal for determination according to law.
Refugee Review Tribunal proceedings
The Tribunal invited the applicant to attend a hearing on 21st June 2006 where he gave evidence with the assistance of an interpreter in the Bengali language. At the hearing, the Tribunal gave the applicant a letter dated 21st June 2006, putting certain information to him and asking him for his comments under the provisions of s.424A of the Migration Act. The applicant replied by means of a letter dated
3rd July 2006.
At the hearing, the Tribunal heard evidence from the applicant about his claimed fear of persecution in Bangladesh because of his political opinion. The Tribunal asked the applicant a number of question about his claims and about the evidence that he and his sister had given to the previous Tribunal hearing.
The Tribunal handed down its decision on 3rd August 2006. A copy of the Tribunal’s decision record appears on pages 195 to 207 of the Court Book. The Tribunal’s findings and reasons can be found on pages 203 to 207.
The Tribunal’s findings and reasons
The Tribunal accepted that the applicant was a national of Bangladesh who had been a secondary school student in Dhaka immediately before coming to Australia. However, the Tribunal did not accept the reliability of the applicant’s evidence about his primary claims.
The Tribunal stated that, even accepting his claims at face value to the fullest extent possible in the circumstances, it would be confident that his claims would face the “real chance” test and that his claimed fear of Convention-related persecution was not well-founded.
The Tribunal went on to say:
However, the Tribunal finds that the overall problem in this case is the lack of reliability of even the first of the Applicant’s claims, the claim form which all other claims stem and on which they substantially depend: the claim to the effect that he was ever a member of either the Freedom Party or its student wing.[1]
[1] Court Book at 204
The Tribunal then set out its reasons for its rejection of this claim.
It then went on to give no weight to a newspaper article that the applicant produced, finding that:
The newspaper article does not help overcome the Applicant’s problem in credibly arguing that he was ever a member of the Freedom party or its student wing.[2]
[2] Court Book at 205
The Tribunal found that the evidence of the claimed cause of attacks on him was “unreliable”, and then found that the rest of the applicant’s claims were significantly affected if the Tribunal could not rely on his primary claim of having been a member of the Freedom Party or its student wing. The Tribunal went on to find:
The Tribunal finds that the rest of the Applicant’s claims are individually damaged by inconsistency and implausibility, and they are not saved by the text of the newspaper article, which the Tribunal considers entirely self-serving and to which it finds that it can give no weight. The Tribunal finds that the Applicant’s case is fabricated…
The Tribunal finds that the Applicant is an unreliable witness in the matter.[3]
[3] Court Book at 205
The Tribunal was not satisfied that the applicant faced a real chance of Convention-related persecution in Bangladesh or that his claimed fear of persecution was well founded. The Tribunal was not satisfied that the applicant was a refugee. Accordingly, the Tribunal found that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and did not satisfy the criterion set out in s. 36(2) for a protection visa. The Tribunal affirmed the delegate’s decision not to grant the applicant a visa.
Application for judicial review
The applicant commenced proceedings for review by filing an application and an affidavit on 28th August 2006. In his application he set out three grounds for review:
(1)The Tribunal exceeded its jurisdiction or constructively failed in its jurisdiction by failing to take his oral evidence into account.
(2)
The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction or denied procedural fairness to him by failing to put adverse material to him and enabling him to submit his explanations in reply. The applicant claims a breach of
s.422B of the Migration Act.
(3)The Tribunal failed to take into consideration his well founded fear of persecution, discrimination, assault and torture.
In his affidavit filed with his application, the applicant makes a number of claims that are more in the nature of a submission than a statement of facts. I will consider the affidavit as a submission.
The applicant makes the following claims:
(a)The Tribunal failed to consider that the political opinion is an essential element in considering the fear of serious harm amounting to persecution of an applicant like me to return to my country of origin.
(b)The Tribunal did not consider all the materials readily available and/or accessible to come to a decision of my application for a protection visa.
(c)The Tribunal erred in not finding the amount of persecution I shall experience on my return back to Bangladesh.
(d)The Tribunal did not consider the risk of harm and persecution I experienced was politically motivated.
(e)The Tribunal erred in finding that the Tribunal failed to exercise its jurisdiction in arriving its decision (sic).[4]
[4] This ground is incomprehensible.
The applicant also claimed that the Tribunal failed to accord procedural fairness under s.424 of the Migration Act[5] and referred to the decision in NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262; (2003) ALR 494:
(I)nsofar as the Tribunal relied on independent evidence as to the prevalence of claims for asylum seekers being based on fraudulent documents.
[5] It would appear that the applicant means s. 424A.
The applicant filed a written outline of submissions on
16th November 2006. In that submission, the applicant claimed that the Tribunal failed to take into account the evidence that he had submitted. He submitted that if the Tribunal overlooked or failed to have regard to any evidence then it would commit a jurisdictional error, claiming, curiously, that s. 424 of the Migration Act imposes an obligation upon the Tribunal to do so. He referred the court to the decisions of the Full Court of the Federal Court in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 AT [77] and NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [205]-[213].
The applicant also submitted that the Tribunal erred in law amounting to jurisdictional error by not taking into consideration the reports of the United States Department of State 1998 (quoted at page 199 of the Court Book) about the Freedom Party. He claims that the report referred to the Freedom Party as “an effectively defunct political entity” and the Tribunal fell into error in that it “failed to consider the reasons to be defunct”.[6]
[6] This appears to be an attempt at merits review.
The applicant further submitted that the Tribunal fell into jurisdictional error in finding that it could not be satisfied that he did not have a real chance of persecution for a Convention reason in Bangladesh for his involvement in Freedom Party politics.[7]
[7] Again, this is an attempt at merits review.
The applicant submitted that the tribunal failed to make due inquiry into:
(a)The obligation to act according to substantial justice;
(b)The political profile as an activist of Freedom Party I had in Bangladesh.
(c)The Tribunal erred in considering me an unreliable witness in this matter as I was too young to be a political activist. The Tribunal looked at my age, not the persecution I experienced which I believe is illogical.
(d)The Tribunal failed to consider the selective harassment I have experienced because of my membership and profile in Freedom Party.
The submission goes on to claim that the Tribunal exceeded its jurisdiction by:
·Failing to take into consideration the threat of my life and/or liberty and the significant discrimination that I would face if I have to return to Bangladesh.
·The Tribunal has not also considered the well founded fear of persecution I shall experience on my return back for my political belief.
The applicant went on to submit that in making alternate findings the Tribunal chose a version of events different to the one that he gave.
He went on to submit:
The tribunal did not accept me as a credible witness due to ‘inconsistencies’ in my evidence, inadequate of knowledge about the party status, structure, operations, policies and ongoing relationship with the government of Bangladesh.
The applicant submits that the Tribunal breached s.424A of the Migration Act when it commented that the documents he supplied were not original documents.
At the hearing of his application, the applicant told the court that the Tribunal failed to take his evidence into account and put more emphasis on his oral evidence rather than the materials he submitted. He complained that the Tribunal did not believe that he had been persecuted, but persecution happens in Bangladesh. He took issue with the Tribunal’s view that his comparatively young age did not support his claim to have been politically active, saying that in Bangladesh, if anyone wants to become a political activist they have to start at school or university.
Submissions on behalf of the Minister
The solicitor for the Minister, Ms Johnson, submitted that the applicant was essentially inviting the court to review the merits of the Tribunal’s decision by attacking the findings of fact made by the Tribunal. She submitted that the Tribunal was not obliged to accept the applicant’s claims. She further submitted that:
a)the Tribunal did consider the applicant’s supporting documents but rejected the authenticity of the letters and the newspaper article because of its findings about the applicant’s credibility, a finding that was open to the Tribunal[8];
[8] Kopalapillai v Minister for Immigration & Multicultural Affairs 9(1998-1999) 56 FCA 547 at [558]-[559]
b)
The Tribunal put its doubts about the applicants documents and the country information about document fraud to the applicant in writing as required by s.424A and the applicant in fact commented on that information, hence there was no breach of
s.424A;
c)The Tribunal did consider the applicant’s documentary evidence but, because of its doubts about its oral evidence, did not give those documents any weight. The weighing of evidence was a matter “quintessentially for the Tribunal” (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [281]-[282], [291]-[292]).
d)The Tribunal did consider the applicant’s claims but rejected them on the basis of adverse credibility findings. It is for the Tribunal to identify such material as it finds relevant to its reasoning and to give it appropriate weight (Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7]).
e)It is for the applicant to make out his or her case before the Tribunal and if the Tribunal cannot be satisfied on the basis of the material presented that the applicant’s claims are genuine it does not have any duty to make further inquiries (see Minister for Immigration & Multicultural Affairs v SGLB (2004) 207 ALR 12).
f)It is not illogical for a finder of fact who is convinced that a witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence even though there is no independent ground for rejection other than the reasons given for disbelieving the witness (see Re Minister for Immigration & Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 at [12] per Gleeson CJ).
g)The applicant’s claim that the Tribunal breached s.424A in relation to its comment that his documents were not originals is misconceived. The Tribunal noted that the documents were not originals only in the context of considering whether it would investigate them and the fact that the documents were not originals did not form the reason, or part of the reason, for affirming the decision under review. The obligation to provide information to the applicant for comment under s.424A does not extend to the Tribunal’s thought processes and subjective assessment of the information (see Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109).
h)The Tribunal was under no obligation to verify or investigate the applicant’s claims. It has no duty to investigate or to consider utilising its permissive statutory powers under s.427(1)(d) (VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277 at [21], [24]-[25]; W389/O1A v Minister for Immigration & Multicultural Affairs (2002) 125 FCR 407 at [74]-[78]).
i)
The Tribunal had concerns about the applicant’s documents and put those concerns to the applicant at the hearing and in the
s.424A letter. The ‘information’ that was a part of the reason for the Tribunal’s decision was the inadequacy of the applicant’s evidence.
j)The Tribunal rejected the applicant’s claims on the basis of its adverse credibility findings, which were open to the Tribunal on the materials, thus there is no reviewable error.
Conclusions
In my view, the submissions on behalf of the Minister correctly state the law and I adopt them as part of my reasons for decision.
The first point to be made is that the main reason for the Tribunal’s decision is the Tribunal’s adverse credibility findings about the applicant’s evidence. The adverse finding went directly to the applicant’s claim to have been a member of the Freedom Party or the student wing of that party. That claim went right to the heart of the applicant’s claim to have a well-founded fear of persecution for the reason of his political opinion, and if that claim was not accepted then it had to follow that the applicant’s entire claim would not be made out. The Tribunal described the claim of membership of the Freedom Party as “The claim from which all other claims stem and on which they substantially depend”.[9]
[9] Court Book at 204
A finding about credibility is a factual finding and is a matter for the administrative decision-maker, in this case the Tribunal. So long as there is evidence upon which such a finding can be made, then there is no scope for judicial intervention. I am satisfied that it was open to the Tribunal to form an adverse view of the applicant’s evidence based on its assessment of his credibility and unreliability as a witness.
There is no breach of s.424A. At the hearing on 21st June 2006, the Tribunal handed to the applicant a letter under the provisions of
s.424A dated that same day. In that letter[10] the Tribunal put to the applicant the information about which it had concerns and set out why the information was relevant. The Tribunal invited the applicant’s comments, which the applicant provided in writing.[11] The Tribunal discussed the applicant’s comments at pages 202 and 203 of the Court Book.
[10] To be found at pages 184 and 185 of the Court Book, and referred to in the Tribunal’s decision at pages 201 and 202
[11] Court Book 188-189
Dealing first of all with the applicant’s grounds in his application for review, the applicant’s first ground is that the Tribunal failed to take his oral evidence into account. Clearly, this cannot be sustained.
The Tribunal considered the applicant’s oral evidence and asked the applicant a number of questions about his case (see Court Book at 200 to 203). The fact that the Tribunal did not accept the applicant’s evidence does not mean that it did not take it into account.
Whilst the applicant’s second ground alleges that the Tribunal failed to put adverse material to him, it is clear that the Tribunal did so.
The Tribunal handed to the applicant at the hearing a letter under the provisions of s.424A, advising him of certain information and seeking his comments. Moreover, the applicant replied to that letter on
3rd July 2006. The Tribunal also records that it put certain material orally at the hearing, at Court Book 200 and 201. There is certainly no breach of s.422B; the applicant may have meant to refer to s.424A. The second ground of review has not been made out.
The applicant’s third ground is that the Tribunal failed to take into consideration his well founded fear of persecution, discrimination, assault and torture. The Tribunal did consider his claims but was not satisfied that the applicant’s claimed fear of persecution was well founded.[12] This ground is really a challenge to the Tribunal’s factual findings. It amounts to a claim for merits review, which is not available on judicial review. The applicant’s third ground fails.
[12] Court Book at 205
The applicant sets out five claims in his affidavit filed with his application. His first claim, set out at 14(a) above, is that the Tribunal failed to consider that political opinion is an essential element in considering serious harm amounting to persecution. This claim must fail, as it is clear that the Tribunal clearly set out its understanding of the definition of “refugee” with reference to ss. 91R and 91S of the Migration Act at pages 197 and 198 of the Court Book.
The second claim, set out at 14(b) above, alleges a failure to consider all the materials readily available and/or accessible. This claim is not particularised, but appears to be either a claim for merits review, which is not available, or a submission that the Tribunal failed to conduct its own inquiries. The Tribunal has no obligation to exercise its powers under ss.424 or 427 of the Migration Act, as these powers are discretionary. If the claim is that the Tribunal failed to consider relevant material, then it is not particularised and there is no evidence that the Tribunal fell into error in this way.
In any event, this claim has not been made out.
The applicant’s third claim, set out at 14(c) above, is that the Tribunal “erred in not finding the amount of persecution I shall experience on my return to Bangladesh”. This is purely a challenge to the Tribunal’s factual findings and, as has been said earlier, merits review is not available on judicial review. The claim fails.
The applicant’s fourth claim, set out at 14(d) above, is that the Tribunal did not consider the risk of harm and persecution the applicant experienced was politically motivated. This claim, again, is an attempt at merits review and clearly fails.
The applicant’s fifth claim, set out at 14(e) above, is that the Tribunal “erred in finding that the Tribunal failed to exercise its jurisdiction in arriving its decision”. The claim is incomprehensible and does not disclose any jurisdictional error.
No jurisdictional error has been made out. The applicant is not legally represented, and I have read the Tribunal decision and supporting documents with a view to ascertaining whether there is any arguable case of jurisdictional error. I am satisfied that no jurisdictional error appears.
The Tribunal decision is a privative clause decision as defined by
s.474(2) of the Migration Act.
A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.[13]
[13] Migration Act 1958, s. 474(1)
The application will be dismissed with costs. The title of the first respondent Minister will be changed to “Minister for Immigration and Citizenship”.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 13 April 2007
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