S142 of 2003 v Minister for Immigration
[2008] FMCA 969
•18 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S142 OF 2003 v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 969 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – the execution by Australia of the International Covenant on Civil and Political Rights (“Covenant”) does not, without more, confer rights upon a citizen or person such as the applicant – the Covenant creates rights and obligations through the Human Rights & Equal Opportunity Commission Act 1986 not the Migration Act 1958 – no breach of the rules of natural justice demonstrated – no breach of s.425 demonstrated – apprehended bias cannot be found based only on the sending by the Tribunal of a s.424A notice after the hearing – the fact that the Tribunal may have a tendency of mind or a predisposition does not amount to prejudgment – the question is not whether its mind is blank but whether it is open to persuasion – no breach of s.424A demonstrated – s.420(2)(b) does not impose procedural requirements on the Tribunal or give the Court licence to undertake a review of the merits of the visa application – no miscarriage of discretion shown in relation to the Tribunal’s decision not to extend the time within which the applicant was to respond to the Tribunal’s s.424A(1) notice. |
| Migration Act 1958, ss.420, 422B, 424A, 425 Migration Legislation Amendment (Procedural Fairness) Act 2002 |
| Re Minister for Immigration Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1 SZDFZ v Minister for Immigration and Citizenship [2008] FCA 390 SZBEL v Minister for Immigration Multicultural and Indigenous Affairs (2006) 81 ALJR 515 Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) FCA 324 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 |
| Applicant: | APPLICANT S142 of 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3643 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 3 July 2008 |
| Date of Last Submission: | 3 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 July 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr T. Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3643 of 2007
| APPLICANT S142 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Bangladesh where, he claims, he was a member of the Freedom Party and the Liberal Party. He alleges that while in Bangladesh he was attacked, harassed and generally targeted by the Awami League because of his political activities. He arrived in Australia on 4 March 1998.
The applicant claims to fear persecution in Bangladesh because of his membership of and association with the Freedom Party and/or the Liberal Party and his family’s association with politics.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 16 April 1998. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicants. There was a previous Tribunal decision signed on 9 October 2001 which was quashed by order of this Court dated 30 March 2007 (Court Book (“CB”) pages 89, 170).
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 18 of the Tribunal’s decision (CB 207 – 221). Relevantly, they are in summary:
Protection visa application
In his protection visa application, the applicant made the following claims:
a)in 1994 he joined the Bangladesh Freedom Party. His high political profile within the youth group and close involvement in the Freedom Party was the main reason why he left Bangladesh;
b)he was the prime target of the Awami League in his suburb. He was physically assaulted and harassed by Awami League thugs many times;
c)if he returned to Bangladesh he would be gaoled again without trial and the Awami League would bring false charges against him like they did before in a bid to end his political career. The latest false charge brought against him occurred in June 1997;
d)his father was the organising secretary and a dedicated member of the Muslim League in their local area and always struggled against the Awami League. His father was thrown in gaol without trial in 1973, had false charges brought against him in 1988, was nearly crippled in 1989 and was accused of collaborating with Pakistan in the 1971 war of independence;
e)in 1989 his uncle (his father’s step brother) was brutally killed by a local Awami leader. His father was attacked and warned not to proceed with the murder case. His father reported the incident to the police and the Home Minister but did not receive a satisfactory response or protection;
f)the applicant was forced to go into hiding on a number of occasions;
g)Awami hooligans vandalised and extorted money from his business and in 1996 they fully destroyed it;
h)he was involved in various party activities, including demonstrations, rallies, member collections and the circulation of material. He also organised and motivated his local people to attend public meetings;
i)in August 1995 his party nominated him as a suburban organising secretary but at the same time he became the Awami League’s target and his life was put in danger. In mid-1997 the Awami League branch in his suburb made a false charge against him and, feeling devastated and helpless, the applicant ran away for a while; and
j)based on his previous experience, the Bangladeshi authorities will not be able to give him protection and security.
Tribunal hearing on 21 June 2000
At the hearing before the Tribunal as first constituted the applicant further claimed that:
a)he was active and politically popular in his area;
b)his role as organising secretary for the Freedom Party was a middle position but it was a powerful position for the area;
c)he did not know what happened to the Freedom Party in the 1996 elections because he could not remember and did not need to remember because he had lost everything as a result of his involvement in politics;
d)
his shop was destroyed by the Awami League in July 1996.
He reported this incident to the police who arrested, but later released, one of the political leaders. After this, the applicant was made to leave the country;
e)in July 1997 the shop was attacked again. In addition, members of the local Sramik League and Chatra League, whom he also feared, came to his house, verbally threatened his father and asked his father where he was; and
f)following this incident the applicant then went into hiding. Nothing happened until August 1998 when his father was interrogated in the two weeks before he died by people trying to discover the applicant’s whereabouts.
Hearing on 20 July 2007
At the hearing before the Tribunal as secondly constituted, the applicant made the following claims:
a)the situation in Bangladesh is worse than when he came to Australia as the new government is against all political parties;
b)the Freedom Party now operates underground. It became the Liberal Party from 1975 and the applicant is still a member of the Liberal Party;
c)the Liberal party does not operate in Bangladesh but in other countries. The applicant keeps in touch with the party’s overseas members and his role is to try to get people out of prison;
d)his brothers were not members of the party but fled Bangladesh because of their association with him;
e)he remembered that his father’s shop was destroyed but apart from this, could not remember much about what happened to his father and his father’s brother. He remembered these details at the time he lodged his protection visa application but it was long ago and he had forgotten, had lost his memory and was stressed;
f)after the shop was destroyed he went on the run for periods ranging from ten days to two months but he could not remember the details;
g)he could not recall if the shop was attacked more than once; and
h)his father did not have a step-brother.
The applicant provided to the Tribunal documents which he had downloaded from the Liberal Party Bangladesh website.
Post-hearing
On 22 August 2007 the Tribunal sent the applicant a letter inviting him to provide written comments on information which the Tribunal considered would be the reason or part of the reason for affirming the delegate’s decision.
On 2 November 2007 the Tribunal received a letter from the applicant dated 1 November 2007 which provided a letter dated 31 October 2007 from the Secretary of the Freedom Party.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)there were significant inconsistencies between the information the applicant submitted in his protection visa application and the evidence he provided at hearing, including the following:
i)in his protection visa application and in evidence to the Tribunal at the hearing on 21 June 2000 the applicant stated that he was a member of the Freedom Party, however, at the hearing on 20 July 2007 he claimed that he was a member of the Liberal Party with the Freedom Party having become the Liberal Party from 1975, a claim which the Tribunal noted was contradicted by independent information. The Tribunal considered the letter dated 31 October 2007 from the Secretary of the Freedom Party but concluded that it did not overcome the significant inconsistencies in the applicant’s evidence;
ii)in his protection visa application the applicant made numerous claims relating to harm suffered by his father and his father’s step-brother, but in evidence to the Tribunal the applicant could not recall anything that had happened to his father or his father’s brother. He also told the Tribunal that his father did not have a step-brother; and
iii)at the hearing the applicant did not claim that he was attacked many times by Awami hooligans or that the Awami League extorted money from his family. He also gave inconsistent evidence about whether his family’s business was attacked once or twice;
b)the Tribunal did not accept the applicant’s explanation for these inconsistencies, namely, that at the time he had remembered the incidents detailed in his protection visa application but had forgotten them with the passage of time, nor did the Tribunal accept that the applicant lost his memory or that he was suffering from stress. While the Tribunal accepted that a person may not be able to recall all the details of what has occurred and that there may be inconsistencies with the passage of time, it did not accept that this would result in the significant inconsistencies outlined by the Tribunal or that the applicant would totally forget that significant events had occurred;
c)the Tribunal formed the view that the applicant’s claimed travel to Nepal on business in October 1997 and to Pakistan for political reasons in November/December 1997 was inconsistent with his claim that after July 1997 he was in hiding in Bangladesh and that he had suffered harm in Bangladesh prior to his departure. The Tribunal noted that the applicant did not mention his travel at either hearing and provided no explanation for the inconsistency;
d)in light of these inconsistencies, the Tribunal found that the applicant was not a witness of truth and had not given a truthful account of his or his family’s past experiences in Bangladesh; and
e)as a result, the Tribunal did not accept that the applicant was a member of either the Freedom Party or the Liberal Party, or that he or his immediate family suffered any harm in Bangladesh as a result of his or their involvement in politics or their association with politics, or that the applicant would be targeted or face any persecution in the future on his return to Bangladesh for any of the reasons claimed.
Proceedings in this Court
The grounds of the application commencing these proceedings were:
a)“Constructive failure of jurisdiction going to satisfaction: misconception of duty”.
b)The Tribunal failed to consider material presented by the applicant in violation of Articles 7, 9, and 10 of the International Covenant on Civil and Political Rights. Further, “the Tribunal failed to satisfy itself that nothing in that material could affect its decision”.
c)The Tribunal denied the applicant natural justice.
d)The Tribunal failed to invite the applicant to attend, give evidence and present arguments in relation to issues arising out of the decision under review.
e)There was a reasonable apprehension that the Tribunal member had made up his mind to affirm the decision by the time the Tribunal sent its s.424A letter.
f)The Tribunal did not comply with s.424A of the Migration Act 1958 (“Act”).
g)The Tribunal failed to consider Articles 7, 9 and 10 of the International Covenant on Civil and Political Rights.
In his written submissions the applicant submitted that the Tribunal erred in a number of additional respects, namely:
a)the Tribunal failed to act according to substantial justice and the merits of the case;
b)the Tribunal failed to give the applicant an extension of time within which to provide further comments and documents; and
c)the Tribunal ignored relevant evidence including contradicting country evidence.
Constructive failure of jurisdiction by misconception of duty
The applicant did not provide any particulars of this allegation and consequently it lacks substantive content. Even so, it can be said that the Tribunal accurately identified the law under which it operated and discussed that law at pp.2–4 of its decision (CB 205–207). In that portion of its decision the Tribunal accurately identified the tests it had to apply. Later in its decision record the Tribunal summarised the evidence and arguments which were before it and then proceeded to set out its findings, reasons and its ultimate conclusion. A review of the Tribunal’s decision discloses that it correctly applied the law to the facts and arguments before it. For these reasons, the first ground pleaded in the application is not made out.
Failure to consider material
This allegation is found in paras.2, 3 and 4 of the application. However, it is not particularised in that the applicant does not identify what material presented by him to the Tribunal was not considered by it.
A review of the Tribunal’s decision discloses a detailed recitation of the evidence and arguments which were placed before it by the applicant, as well as particulars of the information sourced by the Tribunal itself. Given the detail contained in the Tribunal’s decision and absent any identification by the applicant of material which he says was not considered, I cannot conclude that the asserted ground of review raised in grounds 2, 3 and 4 of the application is made out.
In any event, the reference to the International Covenant on Civil and Political Rights (“Covenant”) is misconceived. The Tribunal’s duty was to consider the applicant’s review application in accordance with the requirements of the Act. Australia’s execution of a treaty such as the Covenant does not, without more, confer rights upon citizens or persons such as the applicant: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 32–33 [99] per McHugh and Gummow JJ. To the extent that the Covenant does create rights and obligations, it does so through the Human Rights & Equal Opportunity Commission Act 1986, not the Migration Act 1958.
Further, the applicant does not identify what rights the Covenant did or could provide him in respect of his application to the Tribunal.
It appears that he alleges that the Covenant provided him with an enforceable right to have the Tribunal consider material which he submitted to it or, alternatively, a legitimate expectation that the Tribunal would consider material submitted to it. Whichever of these options might be the applicant’s allegation, a consideration of the Tribunal’s decision record demonstrates that any such postulated right or expectation was satisfied and met.
Finally, the applicant’s allegation that the Tribunal failed to satisfy itself that nothing in the material he submitted to it could have affected its decision is no more than a different way of saying what the applicant said in para.3 of the application, namely, that the Tribunal failed to consider the material which the applicant put before it. In any event, its duty is not to “satisfy itself that nothing in [that] material could affect its decision”. Its duty is to consider all the information and arguments placed before it without erecting some preliminary barrier requiring the satisfaction referred to in para.4 of the application.
For these reasons also, the ground represented by paras.2, 3 and 4 of the application is not made out.
The Tribunal denied the applicant natural justice
As the applicant’s application for review was lodged prior to the commencement of the Migration Legislation Amendment (Procedural Fairness) Act 2002, s.422B of the Act did not apply to it and the common law rules of natural justice did. It is not apparent which aspect of the rules of natural justice may possibly have been contravened and no particulars have been supplied. It is apparent that the Tribunal put the applicant on notice of adverse information which was in its possession, invited the applicant to a hearing which he attended, considered the claims which he made and the facts advanced in support of those claims and did not consider matters which were irrelevant to its consideration. Moreover, its decision was a logical and rational one. Absent any specific matter being identified by the applicant as amounting to a breach of the rules of natural justice, there appears to be no basis upon which the Tribunal’s decision could be set aside on this account.
Breach of s.425
Notwithstanding that the applicant’s application for review was made in May 1998, s.425 nevertheless applies to it.
First, as to the applicant’s allegation that the Tribunal failed to invite him to attend to give evidence and make arguments, clearly it has no basis in fact.
Nor could it be said that an issue accepted by the Tribunal as first constituted, such as that the applicant was “harmed in fights with opposing political activists” (CB 97) was rejected by the Tribunal as secondly constituted in the way which was disapproved by Flick J in SZDFZ v Minister for Immigration & Citizenship [2008] FCA 390.
As the High Court said in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515 at 522–523 [47], there may be cases where the Tribunal’s statements or questions during the hearing sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That is the case here. The secondly constituted Tribunal records comments it make to the applicant during the course of its hearing as follows:
The Tribunal indicated that the inconsistencies in his evidence may lead the Tribunal to doubt his credibility more generally. The Tribunal indicated it may lead it to doubt that he had any association with the Liberal or Freedom Party or that he had any current association with the party or that it was currently active underground. (CB 215)
This passage shows that the issue of the veracity of the applicant’s claims in general was clearly put to him during the course of the Tribunal hearing. As a result, the Tribunal’s conclusion that it did not accept his explanations for the inconsistency, represented by him saying in his statement in his protection visa application that he had been attacked many times by Awami League hooligans but not making that claim during the course of his evidence to the Tribunal, was not a finding reached in breach of s.425.
It should also be noted that the applicant placed no evidence or arguments before the Court which would suggest that any issues which were ultimately determinative of his claim were not canvassed with him during the course of the Tribunal’s hearing.
Apprehended bias
The applicant submitted that the s.424A notice which was served after the Tribunal hearing provided the basis for a reasonable observer to conclude that the Tribunal had already made up its mind to affirm the delegate’s decision by the time it sent that notice. Certainly the notice discloses that the matters which it raises would, subject to any comments which the applicant might make in response, be the reason or a part of the reason for affirming the delegate’s decision (CB 142). However, by saying this the notice thereby also demonstrated that the Tribunal had not reached a final view on the matters which it set out. This has the result that it could not be said that the Tribunal had already made up its mind. The fact that the Tribunal may have had a tendency of mind or predisposition on those matters does not amount to prejudgment. The question is not whether its mind was blank but whether it was open to persuasion: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at 531 [71]. For these reasons, without more, the mere fact that the Tribunal has sent a s.424A notice after the conclusion of its hearing is not a basis to make a finding of apprehended bias.
Moreover, the particular facts of this case cannot support the conclusion for which the applicant contends. The applicant provided a substantive response to the Tribunal’s notice by his letter of
1 November 2007. The document reproduced at CB 201 records that following receipt of the information in that letter, the Tribunal recalled its decision and was to prepare a new decision, notwithstanding that it did not change the date on which its decision was to be delivered. Further, the Tribunal’s decision record includes specific reference to the applicant’s 1 November 2007 response and expressly notes that it gave consideration to it. For these reasons as well, the apprehended bias allegation against the Tribunal is unsuccessful.
Breach of s.424A
The applicant alleges that the Tribunal breached s.424A. By letter dated 22 August 2007 (CB 142–148) the Tribunal sent a s.424A notice to him. It was the information set out in that notice together with the applicant’s evidence given to the Tribunal and independent country information which formed the basis of the Tribunal’s decision. As a result, no breach of s.424A is disclosed.
Tribunal failed to consider Arts.7, 9 and 10 of the International Covenant on Civil and Political Rights
For the reasons given above at [18] this ground does not disclose a basis upon which the Tribunal’s decision might be set aside.
Failure to act in accordance with substantial justice and the merits of the case
In his written submissions the applicant says:
In reviewing a decision a Member is required to act according to substantial justice and the merits of the case (s.353(2)(b)/420(2)(b)). The Act also requires that, in applying the procedures set out in the Act for the conduct of a review, Members must act in a way that is fair and just (s.357A(3)/422B(3)). These latter provisions impose an additional obligation on Members to act in a way that is far and just in conducting a review and should be considered when deciding what course to take in respect of the steps prescribed by Division 5 of Part 5 or Division 4 of Part 7.
Section 420 provides:
Refugee Review Tribunal’s way of operating
(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)must act according to substantial justice and the merits of the case.
Section 422B provides:
Exhaustive statement of natural justice hearing rule
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3)In applying this Division, the Tribunal must act in a way that is fair and just.
Turning first to s.420(2)(b), it must be noted that the paragraph imposes no procedural requirements on the Tribunal: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) FCA 324; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. As Gleeson CJ and McHugh J said in Eshetu’s case at 628 [49]:
The relationship, or lack of it, between ss.420 and 476 was correctly explained by Lindgren J at first instance in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs. The history of legislative provisions similar to s.420 was examined in Qantas Airways Ltd v Gubbins They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals…
If s.420(2)(b) has no procedural role then the only alternative purpose it could serve would be as the basis of an allegation that the Tribunal had failed to act in accordance with the merits of the case. However, it is not open to the Court to undertake a review of the merits of the visa application and s.420(2)(b) does not give the Court licence to undertake such a review. Such a conclusion flows from a consideration of the paragraph in its statutory context as explained by Gleeson CJ and McHugh J in Eshetu’s case. Moreover, since 2001 s.474 has provided that Tribunal decisions are final and must not be challenged, appealed against, reviewed, quashed or called in question in any court. This section operates to exclude merits review, even if not judicial review for jurisdictional error.
As to s.422B(3), although that subsection was inserted into the Act in 2007, the section itself does not apply to the application for review which the applicant brought to the Tribunal for the reasons set out above at [22].
Tribunal failed to give the applicant an extension of time
The applicant’s first response to the s.424A notice was his letter of
4 September 2007which requested an additional three months in order to obtain evidence from members of the Bangladeshi Freedom Party to address one of the matters raised in the s.424A notice. The Tribunal’s decision records that it considered that letter but decided not to grant the request. The applicant has not identified why it might be concluded that the Tribunal’s decision not to extend him time amounted to a miscarriage of its discretion. On the material before the Court there is no basis apparent upon which to find that the Tribunal’s discretion miscarried when it declined the applicant’s request for more time to respond to the s.424A notice.
The Tribunal ignored relevant evidence, including contradicting country evidence
For the reasons set out above in relation to paras.2, 3 and 4 of the application, this ground is not made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 18 July 2008
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