S1366 of 2003 v Minister for Immigration
[2005] FMCA 369
•11 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1366 of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 369 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – citizens of Bangladesh – internal relocation – procedural fairness – actual or apprehended bias – section 424A of the Migration Act – adverse material – no error of law – application dismissed. Migration Act 1958 (Cth) Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 |
| Applicant: | APPLICANT S1366 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1550 of 2004 |
| Delivered on: | 11 March 2005 |
| Delivered at: | Sydney |
| Hearing date: | 11 March 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Mr Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The adult applicants are to pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1550 of 2004
| APPLICANT S1366 of 2003 |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from a transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 15 September 1999 and handed down on 30 September 1999.
The first applicant is the husband and father of the other two applicants respectively. I will refer to him as “the applicant” for convenience because the other claims are directly relevant to his claims.
The applicant is a citizen of Bangladesh who arrived in Australia with his wife on 11 August 1998. On 21 September 1998 they both applied for protection visas, which applications were refused by a delegate of the Minister on 2 December 1998. On 30 December 1998 they sought review in the Tribunal. On 26 February 1999 the applicants submitted a protection visa application for their baby who had been born in Australia on 24 December 1998. That application was refused on
7 April 1999 by a delegate on the basis that his claims were those of the parents and the parents had had their visas refused. On 20 April 1999 an application was filed with the Tribunal for review on behalf of the baby.
The claims were considered together by the Tribunal which conducted a hearing on 30 August 1999 attended by the applicant but not by his wife. As I have said, on 15 September 1999 the Tribunal affirmed the decision of the Minister’s delegate and that decision was handed down on 30 September 1999.
The applicants appealed to the Federal Court on 29 October 1999. That application was dismissed by consent by Tamberlin J on
29 March 2000. At the hearing, the applicant indicated to me that he had to concede to the consent orders because of his financial position at the time.
The applicants then became part of the Muin and Lie class actions (Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601) and the proceedings were eventually remitted to the Federal Court. On 20 February 2004 Emmett J refused to make an order nisi. His Honour considered several matters together and as Jacobson J said in Applicant S1198/2003 & Anor v Minister of Immigration and Multicultural and Indigenous Affairs [2004] FCA 577
His Honour said that it was patent that the material filed in each of the proceedings did not demonstrate an arguable case for relief.
The applicants filed an application for leave to appeal along with an application for an extension of time in the Federal Court and Jacobson J dismissed the extension of time and application for leave to appeal on 4 May 2004.
On 25 May 2004, the applicants filed in this Court.
Claims before the Department and the Tribunal
The applicant’s claims before the delegate and the Tribunal rested upon his concern that he might be persecuted because of political opinion and imputed political opinion arising from the brutal killing of a young man called Rubel. The applicant says he was travelling to his brother-in-law’s house in a suburb of Dhaka, Bangladesh, on 23 July 1998 when he saw a young man being beaten. The young man’s relatives were pleading with the people performing the violent acts but could not stop them. The applicant asked the group what had happened and what the young man had done to be so brutally attacked. He left the scene and went to the police to report what he had seen.
He claims that the police officer ignored what he was saying and referred the matter to another officer who took the applicant’s details and made a note of what had happened, only after some insistence on the part of the applicant. The next day the applicant read in the paper that a young student named Rubel had died after being tortured and beaten while in police custody. The applicant assumed the person he had seen being beaten was this student and he decided the police had been the attackers.
On 28 July 1998 his wife informed him that two or three unknown men had come looking for him. Similarly on 30 July 1998 when there was a strike in honour of the murdered student the same persons returned seeking the applicant. At about 5.30 pm on 6 August 1998 the same men came back and she asked what they had come for. They said they were from the detective branch of the police and asked for the applicant’s office address. He thought they might be looking for him for reporting what he assumed was Rubel’s attack. He went to his sister’s house until 10 August when the family flew to Australia, a trip that they had already been planning. He submitted some telegrams to the Tribunal in which certain of his associates stated that he should not return to Bangladesh.
The Tribunal decision
As I have already stated, only the applicant husband attended the Tribunal hearing and the Tribunal noted that the applicant had said that he did not think his wife had anything significant to add to his own evidence. The Tribunal found that the applicant’s account of events appeared to have altered over the life of the application. He said initially that he thought it was an innocent person being attacked, then he thought it was rival gangs. In the applicant’s submissions to the Court at this hearing, he has also raised for the first time the possibility that he had been ill-treated because of his political association with the pro-independence BNP political party. As far as I can gather this is the first time that this concern has been raised.
The Tribunal found it incongruous that the applicant asked a perpetuator of the attack what was going on without asking one of the onlookers who were apparently pleading with the perpetrators to stop. The Tribunal was not satisfied that the applicant witnessed the attack personally, nor was it satisfied that he reported it to the police. Even if he had witnessed it, he was obviously one of hundreds who actually saw the whole attack.
The Tribunal thought it odd that the applicant’s wife was not called to give evidence given that she had been the only person to talk to the police officers who allegedly came looking for the applicant. The Tribunal had asked the applicant about whether the wife was going to give evidence and sent the usual form requesting the applicant to nominate witnesses. With a lack of evidence about these occasions, the Tribunal did not accept that the wife was ever visited by police officers.
The flavour of the Tribunal’s finding can be gauged from the following paragraph under “Findings and reasons” at Court Book page 205:
The Applicant’s evidence as to what he saw and did at the site of the fatal assault on the student is rife with incongruities, revisions, internal inconsistencies and overwhelmingly significant oversights of publicly reported facts. The Tribunal concludes that it is not satisfied that the Applicant personally witnessed the attack on that youth. Consequently, it is not satisfied that he was in any position to report the incident to the police.
After this passage comes the findings and reasons of the Tribunal which I have summarised above. The Tribunal concluded that it was not satisfied that the applicants in the two matters – that is the husband, wife and child – faced a real chance of Convention related persecution in Bangladesh. It found that they are not refugees.
Consideration
The respondent asserts that most of the claims made by the applicant are subject to res judicata or Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589). I do not propose to deal with those submissions because I think it is more satisfactory that I deal with the claims on their merits. As I will explain below, I am clear that the application fails on its merits. I am aware, however, that the applicant has had proceedings before the Federal Court, the High Court, Federal Court again and the Full Federal Court and for various reasons has been unsuccessful in all those proceedings.
Having regard to the applicant’s amended application filed on
15 November 2004 and his outline of submissions filed on 2 March 2005, it seems to me that the three principle grounds on which he seeks to rely relate first to internal relocation, secondly to procedural fairness – alleging actual or apprehended bias – and thirdly to breach of the obligation provided under s.424A of the Migration Act 1958 (Cth) (the Act) to be given the opportunity to consider adverse material relied on by the Tribunal.
Internal relocation
The amended application refers to relocation as an important issue which the Tribunal had not raised at all during the hearing. The applicant says that
given to [sic] the particular circumstances of my refugee claim internal relocation is not an option for anyone like me in Bangladesh.
This ground is misconceived. It is clear from the Tribunal’s decision that it was not satisfied that the applicant witnessed the attack on Rubel or reported it to the police. It further was not satisfied that the police had visited the applicant’s wife. Having made these findings there was no need for the Tribunal to consider whether or not the applicant could relocate to somewhere else in Bangladesh.
The Tribunal had reached the view on the evidence before it that the applicant had no well-founded fear of persecution in Bangladesh so the relocation issue had no relevance.
Bias
The amended application and the outline of submissions mentioned bias a number of times. It is unclear on what basis the applicant alleges bias. He says, for example:
The applicant claims that the Tribunal was influenced by any biased [sic] and has drew [sic] a wrong perception of their persecution and intimidation that his family and himself has undergone in his country of nationality which [is] now regarded as the most corrupted country in this earth.
He also says:
The applicant claims that they were denied natural justice and procedural fairness when the Tribunal member formed the view about the applicant before the hearing.
In his submissions in the context of whether or not his wife should attend the hearing the applicant says:
Unfortunately, I was not given that opportunity [to bring my wife to the hearing]; instead it has uttered grave disappointment for my wife’s absence. It is my understanding that it has happened to me just because of the tribunal’s biasness and preoccupation against my claim.
At the hearing before me the applicant said that the Tribunal should have further investigated matters raised by him. Further, he said that because the Tribunal had the documents that are referred to in the delegate’s decision and had not provided them to the applicant, this also indicated bias.
The test for actual bias is set out in the Full Federal Court decision Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 by Wilcox J as follows:
[Actual bias] requires an applicant to show that “the Tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant’s case”.
This approach had been followed by Lockhart J in Sarbjit Singh v Minister for Immigration & Ethnic Affairs [1996] FCA 902 where he made three points. First
That the member concerned has formed a preliminary conclusion about a particular issue involved in an inquiry is not sufficient to establish actual bias, and so to disqualify a tribunal member from hearing a matter … Even where a decision-maker is shown to have expressed or otherwise formed strong views about an issue involved in an inquiry prior to the giving of evidence, actual bias will be established only where the evidence shows that these views were incapable of being altered because the decision-maker had unfairly and irrevocably prejudged the case.
Second
It is important to keep in mind, when actual bias is alleged, that the matters upon which reliance is placed to establish bias must be considered in the context of the whole of the hearing before the decision-maker …
Third
It is not sufficient to show that a decision-maker has displayed irritation or impatience or even sarcasm during a hearing; regrettable though these manifestations may be, whether the relevant states of mind approach the level required to support a finding of actual bias remains a question of fact in each case.
The material that the applicant put before me at the hearing does not come anywhere near demonstrating that the Tribunal had a closed mind to the issues and was not open to persuasion by the applicant’s case. Although the way the Tribunal handled the evidence in the Court Book at pages 202-205 might be regarded as somewhat idiosyncratic, it does not suggest to me that this Tribunal member had a closed mind.
The test for reasonable apprehension of bias from the High Court decision of Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 434 is:
whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided
Again, on the material that has been presented in the applicant’s amended application, his outline of submissions and his brief oral submissions at the hearing, this test is just not satisfied. The grounds of bias whether actual or apprehended must be rejected.
Provision of adverse material to the applicant
The third of the more significant or substantive claims made by the applicant relates to the provision of adverse material for consideration by the applicant. Section 424A of the Act provides that:
1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
There are exceptions to this in s 424A(3) which provides
This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.
The applicant alleges that the Tribunal relied on country information about Bangladesh and he was not given an opportunity to comment on that material.
Again, this claim is misconceived. The essence of the Tribunal’s decision is that it did not believe the claims made by the applicant.
It did not rely on any country information to reach that conclusion. The only independent country information referred to in the decision is a report of the US State Department on human rights practices for 1998 for Bangladesh, regarding the lack of accountability to which the authorities in Bangladesh are subject.
First, it is worth noting that the Tribunal says that this information adds nothing significant to the present matter, especially since the facts asserted in this application are found to be so unreliable. Thus the Tribunal did not consider this information to be the reason or part of the reason for affirming the decision under review - the test within s.424A and at common law. Just as importantly, this information was not specifically about the applicant or another person and therefore it falls within the exception in s.424A(3)(a).
If it were argued that this material should have been provided to the applicant under common law procedural fairness, this is answered by the failure of the Tribunal to rely on this information. This ground must also be rejected.
The remaining grounds
It is unclear from the amended application and the outline of submissions provided by the applicant, what other grounds of review are being asserted. Much of the material in the filed documents is irrelevant. Some of it seems to have been prepared for other proceedings. Some of it clearly is directed at asking this Court to second guess the fact finding of the Tribunal, something that this Court is not empowered to do.
I can discern no other grounds which have any merit in an application for judicial review.
Conclusion
The respondent has submitted that the application must be dismissed as no reviewable legal error has been disclosed. I agree. It is apparent that the Tribunal formed an adverse view about the credibility of the claims being made by the applicant. This is something which is peculiarly within the role of the Tribunal (Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1). The Tribunal’s conclusions were open to it on the evidence before it. I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision.
I have read the decision carefully because the applicant is unrepresented. Although, as I have said before, I find the decision reasons and the approach of the Tribunal member somewhat idiosyncratic, that does not point to any legal error which can sustain a claim in this Court. In the circumstances, the application must be dismissed.
I noted earlier that the applicant has had matters before both the High Court and the Federal Court relating to the decision under review which was made by the Tribunal on 30 September 1999 - five and a half years ago. I have not relied on the doctrines of estoppel and res judicata in this decision but it is clearly time this litigation came to an end.
The application will be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 7 April 2005
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