S1507 of 2003 v Minister for Immigration & Anor
[2006] FMCA 1378
•29 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1507 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1378 |
| 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 – whether the authenticity of documents was in issue – whether there is an obligation on the Tribunal to inquire – no reviewable error. PRACTICE & PROCEDURE – Competency – objection to competency – notice of objection to competency – where decision handed down on PRACTICE & PROCEDURE – Delay – whether unwarrantable delay – total delay of two years and one month – even if jurisdictional error had been made out a delay in excess of two years with no explanation would disentitle the applicant to relief on discretionary grounds. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.430, 477 |
| WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511 Abebe v Commonwealth (1999) 197 CLR 510 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Li v Minister for Immigration and Multicultural Affairs (No.2) [2000] FCA 172 Abedi v Minister for Immigration and Multicultural Affairs [2001] FCA 1430 Re Minister for Immigration and Ethnic Affairs; Ex parte Lam (2003) 195 ALR 502 distinguished Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1 QAAR v Refugee Review Tribunal [2005] FCA 1818 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 62 ALD 225 SZEJF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 724 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 followed R v Australian Broadcasting Tribunal; Ex parte Fowler & Ors (1980) 31 ALR 565 Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 followed |
| Applicant: | APPLICANT S1507 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 726 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 June 2006 |
| Date of Last Submission: | 13 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 29 September 2006 |
REPRESENTATION
| Counsel for the Applicant: | Dr. Azzi |
| Counsel for the Respondents: | Mr Izzo |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The Refugee Review Tribunal is joined as Second Respondent to the application.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 726 of 2004
| APPLICANT S1507 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
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 made on 22nd January 1998. The Tribunal handed down the decision on 23rd January 1998. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
By his originating application, the applicant seeks an order remitting the application for a protection visa to the Refugee Review for further consideration.
Background
The applicant is a citizen of Bangladesh. He arrived in Australia on
28th May 1995. On 14th June in that year he applied for a protection visa. A delegate of the Minister refused the application for a visa on 28th February 1996. The applicant sought a review of that decision from the Refugee Review Tribunal on 12th March 1996.
Application for Review by Refugee Review Tribunal
The applicant lodged an application on 12th March 1996. The application, in the section marked “Reasons for this application”, said:
See Solicitors Submission to follow after access is given to my file under F.O.I
The Tribunal wrote to the applicant on 30th October 1997, inviting him to attend a hearing to give oral evidence on 26th November 1997.
The applicant’s then solicitors replied on 12th November 1997, enclosing the request for hearing form completed by the applicant.
The applicant himself then wrote to the Tribunal on 23rd November 1997, enclosing a copy of a statutory declaration in which he set out his involvement in the Keranigonj Thana Jatio Party[1]. He described how on one occasion in 1995 he was set upon by a group of “thugs” from the Bangladesh National Party (BNP) and tortured. He stated that he was hospitalised for 10 days. Fearing for his personal safety and aware that a “large number of false cases” had been brought against him, the applicant left the country.
[1] The Jatio Party is also known as the Jatya Party.
The applicant attended the hearing on 26th November 1997, where he gave evidence with the assistance of a Bengali interpreter. The applicant told the Tribunal that his original application had been completed by a friend, and he had not had to bribe his way out of Bangladesh. He said that he had experienced an incident in May 1995 when he was set upon, injured and hospitalised. The Tribunal queried the date of the incident, as he had arrived in Australia in May 1995. The applicant then told the Tribunal that the matter may have occurred in March of that year. When asked about a charge sheet produced to the Department the applicant told the Tribunal that he did not know exactly what it was, as he had not had the chance to look at it, but he was not involved in the matter referred to.[2]
[2] See Court Book at page 73
The Tribunal asked the applicant about the leaders of the Jatio Party and what sort of activities he undertook in order to recruit new members. The applicant also told the Tribunal that he had come to Australia for two reasons. One reason was to support his family so that they could finish their studies, and the other reason was because he was in fear of his life.[3]
[3] See Court Book at page 74.
The Tribunal’s decision
The Tribunal set out the applicant’s claims in the decision and those claims are set out on pages 70 to 74 of the Court Book. The Tribunal considered certain independent country information, set out on page 71.
The Tribunal noted that the applicant had produced to the Department at an interview in December 1995 some documents from a lawyer in Dhaka indicating that the applicant’s case was pending and that he should not return to Bangladesh without the lawyer’s consent. He also produced a letter from the Secretary General of the Jatio Party stating that he was politically active and a “victim of the present government”.[4] The applicant also produced several charge sheets about an incident in late February 1995.
[4] See Court Book at page 72.
The Tribunal’s findings and reasons are set out on pages 74 to 76 of the Court Book. The Tribunal found the applicant not to be a credible witness, and considered that the applicant had largely exaggerated and fabricated his story. The Tribunal said it was apparent from the answers and detail given by the applicant that his story was contrived and, on the whole, “not reasonable to believe”. The Tribunal noted the following:
·The applicant’s version of when things happened and what happened to him in the 1995 incident is vague and unclear…
The Tribunal does not accept as reasonable that the applicant can on one occasion give an exact date of the incident (as in his Statutory Declaration dated 24 November 1997), and when its impossibility is pointed out that he then seeks to change his mind to a more suitable date.·The applicant claims to be a high profile member of the Jatio Party in various parts of his application. At hearing however, and when he was questioned as to his knowledge of the party and his involvement it became apparent that his knowledge was minimal, and involvement (if indeed any) was minimal.
·The applicant claims at different parts of his application that he was continually harassed and threatened by his political opponents and had many false claims against him. At hearing when questioned for detail it became apparent that these general claims were not true.[5]
[5] See Court Book at page 75
The Tribunal went on to find that, overall, “The applicant did not present as a person with anything other than a rudimentary knowledge of the Jatio Party and its history”.[6]
[6] Court Book, also at page 75
It was for those reasons that the Tribunal found the applicant not to be a credible witness and did not accept as truthful his claims of involvement in the Jatio Party, of having been attacked and injured, or of false charges being brought against him. The Tribunal did accept that the applicant’s father was dead and that he was supporting his mother and two siblings, but stated that this claim did not relate to the Refugees Convention.
The Tribunal found that the applicant did not have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion and affirmed the decision not to grant a protection visa.
Application for judicial review
The applicant commenced proceedings in this Court by filing an application under s.39B of the Judiciary Act 1903 (Cth) on 15th March 2004. The solicitors for the Minister filed a Notice of Objection to Competency on 3rd June 2004, saying that the court has no jurisdiction to review the decision as sub-s.477(1A) of the Migration Act 1958 (Cth) provides that an application to the Federal Magistrates Court must be made within 28 days of the notification of the Tribunal decision.
The applicant filed an amended application on 20th September 2004, seeking writs of certiorari and mandamus. He set out a ground of denial of procedural fairness, on the basis that the Tribunal did not raise with the applicant its concerns about the authenticity of documents that the applicant provided to the Tribunal or give him an opportunity to comment.
The applicant is now represented by counsel. On 7th June 2006, the applicant filed an outline of submissions.
The applicant submits that there can be a jurisdictional error of law by denying procedural fairness to the applicant where he was not given notice of the Tribunal’s concerns about the authenticity of documents and was not afforded an opportunity to comment. The applicant refers to the decision of the Full Court of the Federal Court in WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511, at [58] where their Honours found that the Tribunal had failed to afford procedural fairness by finding that letters central to the applicant’s claim were not genuine without giving the applicant an opportunity to be heard on that issue.
The applicant submits that, although the Tribunal is not obliged to embark on inquiries (Abebe v Commonwealth (1999) 197 CLR 510), in limited circumstances, such as when the subject matter of the inquiry is material to the Tribunal’s assessment of the applicant’s prospective risk of persecution and the information is readily available, there may be an obligation to inquire (see Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 170). This obligation to inquire may be more readily enlivened when the authenticity of documents is in issue (see Li v Minister for Immigration & Multicultural Affairs (No.2) [2000] FCA 172 at [8]).
The applicant submits that the Tribunal must have regard to the material before it (Abedi v Minister for Immigration and Multicultural Affairs [2001] FCA 1430 at [28]). The Tribunal is not entitled to exclude material before it without having a proper basis for doing so, such as that the material was not credible or relevant.
The applicant also referred to Re Minister for Immigration and Ethnic Affairs; Ex parte Lam (2003) 195 ALR 502 in submitting that the provision of documents in support of the application for a protection visa gave rise to a legitimate expectation that the Tribunal would at least warn the applicant that it would place no weight on the documents. The applicant legitimately expected that the Tribunal would at least consider the authenticity, which the applicant equated to the corroborative value, of documents tendered in support of his claim before deciding not to give them any weight. By not doing so, and by its silence, the Tribunal did not conduct its review in accordance with the Migration Act.
The applicant submits that it could not be said that his credibility was “so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence of no weight because the well has been poisoned beyond redemption” (Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S20/2002 (20030 73 ALD 1 at [49]). The reason given is that the applicant was never tested on the specific evidence of the documents submitted in support of his claim (see QAAR v Refugee Review Tribunal [2005] FCA 1818 at [80]).
The applicant also contends that he was denied procedural fairness in circumstances where he says that the Tribunal did not turn its mind to the issue of whether the documents were either insignificant, insubstantial or inauthentic, so that by failing to do so the Tribunal did not form his satisfaction according to law (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 AT 31).
The applicant also submits that the Tribunal erred by not providing reasons for rejecting the documents tendered in support of the application for a protection visa, and refers the Court to Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 268, where it was held that a duty to provide reasons in respect of findings of fact is satisfied by the giving of grounds for and not the detailed reasoning in support of findings of fact.
It is also submitted that the Tribunal failed to prepare a written statement as dictated by s.430 of the Migration act as to why it did not give the documents any weight. As a result, the applicant contends that the Tribunal constructively failed to exercise jurisdiction, which is an error of law (see QAAR v RRT (supra) at [76]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 62 ALD 225 at [69]).
In a further submission, counsel for the applicant drew the court’s attention to the decision of Rares J in SZEJF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 724, a decision on appeal from the Federal Magistrates Court. In that case at [59], his Honour found that the Tribunal had fallen into jurisdictional error by dismissing the objective evidence in two newspaper articles which resulted in its ignoring relevant material.
In a written submission, the first respondent submits that the applicant was unsuccessful because of the view that the Tribunal took of the facts, particularly in its finding that the applicant’s claims were untrue. Those findings are matters of fact for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]). So long as the Tribunal’s findings were open to it, there would be no error in those conclusions (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559).
The first respondent also submits that the Tribunal did consider the applicant’s documents (including the charge sheet) it did not make any finding in relation to the authenticity of those documents. The Tribunal’s findings turned on its adverse credibility finding about the applicant’s evidence.
The first respondent also submits that although there is no jurisdictional error in the Tribunal decision, in any event relief should be refused on discretionary grounds because of unwarrantable delay. The first respondent submits:
Over one year and four months elapsed between the decision of the Tribunal on 22nd January 1998 and the applicant joining the Muin/Lie class action on 10th June 1999. Over nine months elapsed between the dismissal of the applicant’s application in those proceedings on 29th May 2003 and the filing of the current application for judicial review on 15th March 2004.
The first respondent submits that delay, waiver, acquiescence or unclean hands are all relevant matters for the court to consider when determining whether the conduct of the applicant disentitles him to the relief sought (see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 at [84]). The court has power, where it finds there has been unwarrantable delay, to refuse relief with or without embarking upon consideration whether there has been jurisdictional error in the Tribunal decision (R v Australian Broadcasting Tribunal; Ex parte Fowler & Ors (1980) 31 ALR 565 at 569 and 570; Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at [498]).
For the first respondent, Mr Izzo of counsel submitted that authenticity of the documents was not an issue. He referred the court to the decision of the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46] - [47], saying that it is not necessary to refer to every piece of evidence and every contention made by an applicant in the Tribunal’s written reasons. Again, it may be unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality.
Conclusions
The Tribunal’s decision in this case was based on its negative assessment of the applicant’s credibility. The Tribunal did not find the applicant to be a credible witness[7] and did not accept as truthful his claims going to the heart of his assertion of a fear or persecution for reason of political opinion[8]. The Tribunal quite correctly found that the applicant’s other ground, a desire to support his mother and his siblings, was not related to the Refugees Convention.
[7] Court Book page 75
[8] Court Book page 76
The finding that the applicant was not a credible witness was based largely on the applicant’s evidence to the Tribunal, and the Tribunal set out its reasons for forming that view on page 75 of the Court Book. These findings were open to the Tribunal on the evidence before it, and there is no jurisdictional error arising from that finding.
This is not a case where the Tribunal did not accept the authenticity of the documents adduced by the applicant in support of his claim, despite the claim in the applicant’s amended application.
The documents referred to were:
a)The letter from the lawyer in Dhaka.
b)The letter from the Secretary General of the Jatio Party.
c)The charge sheets.
All three of these documents need to be considered in the light of the Tribunal’s finding that the applicant was not a credible witness about the very basis of his claim, his fear of persecution for political opinion based on his membership of the Jatio Party. In my view the two letters did not require a specific finding to be made because of the Tribunal’s findings on the applicant’s claim about the 1995 incident and the extent of his involvement of the Jatio Party. As the Full Court of the Federal Court said in Applicant WAEE (supra) at [47]:
It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
The lawyer’s letter and supporting documents referred to the incident in February 1995 to which the Tribunal referred at page 73 of the Court Book. At page 75, the Tribunal considered from the evidence as a whole that the incident did not occur. It was therefore unnecessary to make a specific finding about the lawyer’s letter and the other documents.
The letter from the Secretary General of the Jatio Party referred to the applicant’s active membership of the Jatiya (or Jatio) Party. At page 75 the Tribunal, relying on the applicant’s evidence at the hearing, rejected his claim of being a high profile member of the party, finding his knowledge and involvement to be “minimal”. Accordingly, it was unnecessary to make a specific finding about the Secretary General’s letter.
As to the charge sheet, the Tribunal asked the applicant about it and was told that the applicant did not know what it was about, as he had not had a chance to look at it.[9] The applicant cannot be said to have been relying on a document whose contents he did not know. Once it had been established that the applicant did not know what was in the charge sheet it was unnecessary for the Tribunal to make any finding on it.
[9] Court Book pages 73 and 75.
The Tribunal did not make any finding about the authenticity of any of the documents. It did not need to. Thus, the Tribunal did not need to give the applicant any opportunity to comment on the authenticity of the documents and there was no denial of procedural fairness in this regard.
It must follow that, contrary to the applicant’s counsel’s submission, there was no obligation on the Tribunal to embark on any inquiry about the authenticity of the documents. Their authenticity was not in issue and it could not by any stretch of the imagination be described as a material issue, i.e. one that could affect the outcome of the decision.
The Tribunal did not, contrary to the applicant’s submission, exclude the applicant’s documents, with the exception of the charge sheet, about whose contents the applicant said he had no knowledge.
The document was clearly not relevant in the circumstances.
In my view the decision in Re Minister for Immigration and Ethnic Affairs; Ex parte Lam (supra) can be distinguished. There was no ground for any legitimate expectation that the Tribunal should warn the applicant that it would place no weight on the documents.
Similarly, there was no basis for any legitimate expectation that the Tribunal would consider the authenticity of the applicant’s documents, especially the charge sheet. It is also a misconception to equate “authenticity” of documents with “corroborative value”. A document about whose authenticity there is no doubt may still have no corroborative value.
Similarly there was no need for the applicant to be tested on the specific evidence of the documents, except for the charge sheet, about which the Tribunal did ask the applicant. Once the applicant had admitted that he did not know what was in it, there was no need for the Tribunal to pursue that line of inquiry any further. Again, it was the applicant’s evidence to the Tribunal hearing that caused the Tribunal to find that he was not a credible witness, so that there was little point in any specific analysis of the documents.
The applicant was not denied procedural fairness by the Tribunal not turning its mind to the question of whether the lawyer’s letter and the Secretary General’s letter were insignificant, insubstantial or inauthentic. On the applicant’s own evidence, the charge sheet was irrelevant.
Again, as the Tribunal did not reject the lawyer’s letter or the Secretary General’s letter, there was no need for the Tribunal to provide reasons for rejecting them. The Tribunal did not reject the charge sheet; it found that the applicant, on his own evidence, did not know what was in it. Similarly, there was no need for the Tribunal to prepare a written statement as to why it did not give the two letters any weight and so there is no breach of s.430 of the Migration Act. The Tribunal’s decision as a whole complies with s.430.
There is no evidence of any failure to exercise jurisdiction. There is no jurisdictional error. The decision is a privative clause decision as defined in s.474(2); it is final and conclusive and is not subject to prohibition, mandamus, injunction, declaration or certiorari (s.474(1)).
Even if I were satisfied that there a jurisdictional error had been made out, and I am not satisfied, I would be of the view that the delay in bringing these proceedings, totalling more than two years, would be sufficient to refuse relief on the discretionary ground of unwarrantable delay. The applicant did not produce any evidence, or make any submissions, about the delay in bringing the application to this court. The delay is clearly a relevant matter for the court to consider when determining whether the conduct of the applicant disentitles him to the relief that he seeks (SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (supra) per McHugh J at [84]).
The application will be dismissed with costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S. Polley
Date: 14 September 2006
0
17
2