S1466 of 2003 v Minister for Immigration
[2006] FMCA 276
•13 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1466 OF 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 276 |
| MIGRATION – Review of decision of RRT – whether Tribunal has a duty to enquire. |
| Migration Act 1958, s.424A(1) Crimes Act 1900 Federal Magistrates Court Rules 2001 |
| R v Watson; Ex parte Armstrong (1976) 136 CLR 248 re Lusink; Ex parte Shaw (1980) 55 ALJR 12 Johnson v Johnson (2000) 201 CLR 488 Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 Minister for Immigration v Jia (2001) 178 ALR 421 Minister for Immigration v SGLB [2004] HCA 32 Tran v Minister for Immigration [2002] FCA 1522 Azzi v Minister for Immigration [2002] FCA 24 SZATG v Minister for Immigration [2004] FCA 1595 SAAP v Minister for Immigration [2005] 215 ALR 162 VAF v Minister for Immigration (2004) 206 ALR 471 SZEIE v Minister for Immigration [2005] FCA 987 Minister for Immigration v Al Shamri (2001) 110 FCR 27 |
| Applicant: | APPLICANT S1466 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG837 of 2004 |
| Judgment of: | Raphael FM |
| Hearing date: | 13 February 2006 |
| Date of Last Submission: | 13 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2006 |
REPRESENTATION
| For the Applicant: | In Person |
| Counsel for the Respondent: | Ms R Pepper |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
Refugee Review Tribunal be joined as Second Respondent.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG837 of 2004
| APPLICANT S1466 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh. He arrived in Australia on 4 September 1998. On 4 December 1998 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs. On 22 December 1998 a delegate of the Minister refused to grant a protection visa. On 12 January 1999 the applicant applied for review of that decision. On 31 March 2000 the Tribunal wrote to the applicant advising him that it had looked at the material relating to his application but was not prepared to make a favourable decision on that information alone. The applicant was invited to a hearing on 31 May 2000 and the applicant attended. On 1 June 2000 the Tribunal determined to affirm the decision not to grant a protection visa. The Tribunal handed that decision down on 22 June 2000.
The applicant claimed to have a well-founded fear of persecution for the convention reason of political opinion. He claimed to have been involved in the Bangladeshi Freedom Party (“BFP”) prior to his departing Bangladesh for the United Arab Emirates in 1994. He claims that he joined the party in 1988 at its Sylhet branch. His duties involved distributing leaflets in sealed envelopes for members of the party to attend meetings. He told the Tribunal that he had been beaten up by Awami League supporters in 1994 but had not reported that action to the police. He left Bangladesh and took up a position as a cook in the UAE. The applicant left the UAE in 1998, returned to Bangladesh for approximately two weeks and then, utilising a visa he had obtained in UAE, travelled to Australia.
The applicant told the Tribunal that if he returned to Bangladesh the Awami League government might kill him. The Tribunal questioned the applicant on a number of matters, including his involvement with the Freedom Party, and sought from him information about that party, its structure and membership. The Tribunal also had before it two letters which the applicant's solicitor had submitted, one of which was in apparent corroboration of his membership of the BFP.
In its findings and reasons commencing at [CB 71], the Tribunal indicates that it did not accept the applicant as a credible or reliable witness. It did not accept that he was a member of the Freedom Party. It found his knowledge of that party to be scanty and his general political understanding to be less than sophisticated. The Tribunal also noted that the applicant claimed to have joined the party at a time when he was only aged 16, and the party did not take members at that age. The essence, gravamen or integer of the Tribunal's decision can be found at [CB 72]:
“As noted above, I do not accept that the applicant was a member of the Freedom Party. However, even if I were to accept his claim in this regard, I am not satisfied that this would give rise to a well-founded fear of persecution in Bangladesh. Whilst the independent evidence indicates the Freedom Party activists have been harassed since the Awami League won the general election in 1996, the evidence does not suggest that all Freedom Party members were at risk. In the applicant's case, he has been outside Bangladesh since 1994. He has not been involved in any political activities either in the Middle East or in Australia. I consider that the chance he would become involved in political activities on return to Bangladesh is remote and insubstantial. Further, on his own evidence at the hearing, the applicant's political activities were apparently limited to delivering invitations to meetings. I consider that the chance a Freedom Party member with a profile such as that suggested by the applicant in his evidence during the hearing would be of any interest to the Awami League is remote and insubstantial.
Furthermore, if the applicant were concerned about harassment by the local Awami League, I am of the view that it would be reasonable for him to relocate within Bangladesh to an area where he would not be known. In this regard, the applicant has lived outside Bangladesh for a number of years. He is therefore accustomed to living independently of his family. As a cook, he has skills and experience that would assist him to obtain employment in cities in Bangladesh outside the Sylhet district.”
Before me today, the applicant stated that he had attempted to provide the Tribunal with two letters. One was from a leader of the Sylhet branch of the Freedom Party and the other was from the chairman of the Union Parishod.
These are the two entities who provided the original letters found at [CB 46] and [47]. The applicant said that the letters at [CB 46] and [47] were not the same as the letters he had offered the Tribunal. He said the Tribunal had refused his letters. I warned the applicant that I had a transcript of the evidence before the Tribunal and that it showed no sign of any offer of letters to the Tribunal which were rejected. I asked the applicant whether he wished to pursue this line. He told me that he did. I then asked the applicant to give evidence in the witness box concerning the matter. I warned the applicant of the serious consequences if he did not tell the truth in the witness box and that this could result in a charge of perjury and, possibly, imprisonment. I asked the applicant whether he wished to proceed with his statement that the Tribunal had been offered letters which it had refused. The applicant said that he did.
The applicant was cross-examined at some length by Ms Pepper and he provided information about the time within the Tribunal hearing that he allegedly offered the Tribunal these letters. That position was able to be fairly clearly identified from the transcript. I then arranged for the interpreter to translate six pages of transcript for the applicant. The applicant confirmed that there was no suggestion of any offer to the Tribunal of documents in the transcript. He could provide no explanation therefore.
The applicant was unable to identify the persons who had written the documents, the dates of the documents, or any details of them. He did not have them in his possession today and he did not give them to his solicitor to whom he had given the other documents, nor asked the solicitor to forward them to the Tribunal. I am satisfied, in my own mind and for the purposes of this hearing only that there were no such documents and no offer was made. The applicant may well have committed an offence under the Crimes Act 1900. I will leave those matters in the hands of the Department to take such action as it believes necessary.
The applicant filed an amended application on 18 August 2004. The amended application suggested that the Tribunal's decision was affected by jurisdictional error in essentially three ways. Firstly, the applicant alleged that the Tribunal was biased. The bias arose out of a discussion between the Tribunal and the applicant found commencing at page 13 of the transcript which is annexed to the affidavit of Andrea Marianne Christie-David. In this conversation, the Tribunal discusses with the applicant the death of Sheik Mujibur Rahman who, together with his family, was murdered by members of the Freedom Party.
The Tribunal queried with the applicant why he would wish to join a party which was responsible for this murder and whether or not he thought they should be punished. Having read the transcript as a whole, I am not satisfied that a reasonable bystander (or fair-minded lay observer) might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question which the decision-maker is likely to decide: R v Watson; Ex parte Armstrong (1976) 136 CLR 248; re Lusink;Ex parte Shaw (1980) 55 ALJR 12; Johnson v Johnson (2000) 201 CLR 488. See also Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at [344].
The references made here are to apprehended bias. I am quite satisfied that there can be no suggestion of actual bias as described by the Chief Justice in Minister for Immigration v Jia (2001) 178 ALR 421 at [72]. The allegations of bias or excessive jurisdiction are found at (a) and (b) of the amended application. Subparagraph (c) of the amended application alleges that the Tribunal erred in law in determining that the documents provided by the applicant were not genuine. The documents referred to in this allegation are the documents which I have mentioned as being found at [CB 46] and [47], but the Tribunal did not find that the documents were not genuine. What the Tribunal said was:
“I note the document provided by the applicant in support of his claim to be a member of the Freedom Party. There are problems with this document. Firstly, the independent evidence, that I accept, is that the Freedom Party has effectively ceased functioning in Bangladesh. In my view, this suggests that official letters would not be issued. Secondly, and more significantly, the independent evidence before me indicates that fraudulent documents are prevalent in Bangladesh. In view of the evidence, and taking into account the unsatisfactory nature of the applicant's evidence concerning his alleged membership of the Freedom Party, I place no weight on the letter provided by the applicant in support of his claim.” [emphasis added]
The applicant also alleges that the Tribunal failed to give him an opportunity to contest the adverse country information about allegations of document fraud. That is also not correct. The Tribunal took up with the applicant the question of document fraud in Bangladesh and gave him an opportunity to respond to it. He did not do so.
Before me today the applicant stated that the Tribunal has made no investigation of the facts in Bangladesh. The Federal Court and the High Court have considered the question of a duty to enquire in a number of matters including Minister for Immigration v SGLB [2004] HCA 32, Tran v Minister for Immigration [2002] FCA 1522, and Azzi v Minister for Immigration [2002] FCA 24, where between [102 and 112] Allsop J reviewed the authorities on the duty to inquire, before saying at [112]:
“It may be, notwithstanding prevailing authority, that a duty to inquire may exist or be seen to arise in certain circumstances, but these are understood as being exceptional or rare: Prasad, supra; Minister v Amani, [1999] FCA 1040; W41/01A, supra; Raheem, supra. Before the High Court's decision in Eshetu it had been said by the Full Court of this Court in Minister for Immigration v Singh, [1997] 74 FCR 553 in relation to s420 that any such duty that might exist would only arise in rare cases; cf McHugh J in Re Minister for Immigration Ex parte Cassim (2000) 175 ALR 209 at [13].”
This case is most certainly not one of those cases which the authorities have identified as being exceptional. The Tribunal was well equipped with independent country information and as Hely J said in SZATG v Minister for Immigration [2004] FCA 1595 at [36]:
“It was for the appellant to put forward the information and materials on which he relied in support of his claims.”
The other matters referred to me by the applicant were purely matters of fact concerning the current situation in Bangladesh. The applicant should be aware that I am unable to take these matters into account as my duty lies solely in considering whether or not the decision which he obtained from the Tribunal was one which the Tribunal came to without falling into jurisdictional error.
Ms Pepper, as would be expected from counsel of her experience, raised with me the possibility that the applicant might have a claim of the type identified in SAAP v Minister for Immigration [2005] 215 ALR 162 in respect of the applicant's statement found at [CB 26] to [28].
I am satisfied that those authorities identified by Ms Pepper in her helpful written submissions, such as VAF v Minister for Immigration (2004) 206 ALR 471 at [22] and SZEIE v Minister for Immigration [2005] FCA 987 at [38] now indicate that these original statements when utilised for the purposes of the Tribunal hearing and accepted by the applicant as part of his case at that hearing are documents submitted for the purposes of the application before the Tribunal and not merely documents submitted for the application to the Minister's delegate, as suggested in Minister for Immigration v Al Shamri (2001) 110 FCR 27 at [17-35], and thus no breach of s.424A(1) Migration Act occurred here.
I would also express strong doubts as to whether the statement itself formed the reason or part of the reasons for the decision of the Tribunal. The reason for the decision of the Tribunal has already been set out by me. The Tribunal did not believe the applicant was a member of the Freedom Party. Once he ceased to be a member of that party, as a matter of fact, he could not have a well founded fear of persecution arising out of such membership and what might occur to him at the hands of enemies of that party should he return to Bangladesh.
In all the circumstances, I am unable to find that the Tribunal erred in law in the manner in which it came to its decision or that it fell into jurisdictional error in so doing. The application is dismissed. The applicant must pay the respondent's costs which I assess in the sum of $5,000.00. The Refugee Review Tribunal will be joined as a second respondent.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM
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