S1747 of 2003 v Minister for Immigration
[2005] FMCA 913
•21 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1747 of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 913 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – Tribunal’s decision is more than 11 years old – applicant a citizen of Bangladesh – no reviewable error. |
| Migration Act 1958 (Cth), s.417 Federal Magistrates Court Rules 2001 |
| Abebe v Commonwealth (1999) 197 CLR 510, 576 and 577 Commissioner for ACT Revenue v Alphaone Pty Limited [1994] 49 FCR 576 and 572 Queen v Australian Broadcasting Tribunal ex parte Fowler & Ors (1981) 31 ALR 565, 568 and 570 Re: Minister for Immigration & Multicultural Affairs & Anor ex parte Miah (2001) 206 CLR 57 S1174 of 2002 v Refugee Review Tribunal & Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 325 |
| Applicant: | S1747 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3529 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 21 June 2005 |
| Date of Last Submission: | 21 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ower |
| Counsel for the Respondent: | Mr Johnson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4,500.00 and I allow two (2) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3529 of 2004
| S1747 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an application for review of a decision of the Refugee Review Tribunal made on 11 January 1994. The decision of the Tribunal was to affirm the decision of the primary decision maker that the applicant was not a refugee under the convention relating to the status of refugees done at Geneva on 28 July 1951, as amended by the protocol relating to the status of refugees at New York on 31 January 1967.
The applicant is a citizen of Bangladesh. He claims to have arrived in Australia illegally in early 1988, after having left Bangladesh with a false passport and travelling to Indonesia. He claims that he travelled from Indonesia to Australia by fishing boat. He said that he no longer had the false passport. He has been issued with a new passport through the Bangladeshi consulate in Australia.
The applicant applied for a protection visa, claiming to have a well founded fear of persecution arising from his support of a political party in Bangladesh called the Awami League. He claims that in 1987 he was arrested and detained for several days and subjected to torture, which he described as having water poured on his head.
A delegate of the Minister refused his application for a protection visa, so he sought a review of that decision by the Refugee Review Tribunal. He attended a hearing of the Tribunal on 8 November 1993 and gave evidence to the Tribunal through an interpreter. The Tribunal's decision made on 11 January was to affirm the decision that he is not a refugee.
This application was filed at the Court on 2 December 2004.
The application upon which the applicant relies however on is his amended application filed on 28 February 2005. There is, however, as can been seen, a considerable lapse of time between the handing down of the decision of the Refugee Review Tribunal in January 1994 and the commencement of these proceedings in December 2004.
The applicant by means of an affidavit which was affirmed on the day of the hearing and filed in Court, over objection by the counsel for the respondent, goes some way towards setting out the applicant's explanation as to why these proceedings have taken so long to reach the stage that they have. Interestingly enough, the applicant refers to a further application made on 9 June 1995, an application made offshore in Auckland, New Zealand. That application was refused on 14 August 1996.
The applicant deposed in his affidavit that he made an application to the Minister at the time to exercise the Minister's discretion under
s.417 of the Migration Act. That application was made on 22 January, and refused on 7 July 1997. The applicant also joined a class action called the Rosco class action in 1997 and was informed on
23 June 1999 that that class action was unsuccessful.
He did, in 1999, join another class action known as the Lie class action on 16 July of that year. That class action finally came to an end, as far as the applicant's involvement was concerned when the proceedings were remitted to the Federal Court and dismissed by orders of the Honourable Emmett J, on 20 February 2004. The applicant asked for those proceedings to be discontinued on 27 April 2004.
On 14 May 2004, the applicant again sought ministerial discretion pursuant to s.417 of the Migration Act and this application was refused on 25 November 2004. It was after that that the applicant commenced these proceedings.
The respondent opposes the application in two ways, not only does the respondent oppose the application on the basis that the applicant has not shown any jurisdictional error on the part of the Tribunal, but also because of what the respondent's solicitors describe as the gross delay that occurred over two periods of time, from the time of the Tribunal's decision until 16 July 1999 when the applicant became a part of the Lie class action, and also between April 2004 until the filing of these proceedings in December 2004. The respondent is not making any submission in respect of the period during which the applicant was involved in the Lie class action.
I note that the respondent gave certain undertakings to the Federal Court in February 2004 about the position of such applicants.
I am indeed indebted to Mr Ower of counsel for providing me with a copy of his Honour's judgment in Applicant S1174 of 2002 v Refugee Review Tribunal and the Minister for Immigration & Multicultural & Indigenous Affairs 80 ALD 325. In paragraph 29 of that decision his Honour said:
The second possible matter of prejudice was a concern that delay might be advanced as an answer to any claim for relief.
The Minister has assured the Court that she will not make the submission in any future proceeding that there is no satisfactory explanation for the applicant's delay from the time when the applicant was joined as a representative party in the High Court to the time of refusal of an order nisi. Any delay in the time of the making of the decision by the Tribunal and the joinder of the applicant in the High Court proceeding would still remain to be explained. So would any delay from the time of the refusal of the order nisi until the commencement of any fresh proceeding.
It can been seen that the delay upon which the respondent seeks to rely is a delay that fits entirely within the parameters of the Minister's assurance, as set out by Emmett J in paragraph 29 of S1174 of 2002 (supra), i.e. between the handing down of the Tribunal decision and the joinder of the class action, and between the refusal of an order nisi, or otherwise the determination of the Federal Court proceedings until the commencement of these proceedings. As Mr Johnson of counsel for the respondent points out in his written submissions, the delay in total, adding those two periods together, is more than six years.
It is, in fact, conceded that the Rosco class action, to which the applicant was a party, was not a challenge to the RRT decision. It was in fact undertaken on other grounds.
In the amended application filed on 28 February, the applicant sets out four grounds:
(1)the applicant was denied natural justice in that the country information preferred by the Tribunal was not sufficiently put to the applicant and he was not given sufficient opportunity to present evidence to counter the adverse nature of this information;
(2)the Refugee Review Tribunal's failure to give due weight to the applicant's documentary evidence constituted a failure to exercise jurisdiction;
(3)the Refugee Review Tribunal dismissed the applicant's documentary evidence as speculative and not corroborated without giving reasons for this conclusion and without raising with the applicant any issue as to the authenticity of the documents, constituted a denial of procedural fairness and a failure to exercise jurisdiction;
(4)the Refugee Review Tribunal misapplied the law by limiting the concept of persecution to actual arrest or violence.
The applicant has also forwarded a written submission in which his counsel expands on the particulars of the four grounds that are set out. I have read that and I have also had the benefit of hearing oral argument from the applicant's counsel.
Counsel for the respondent, Mr Johnson, has also provided the Court with a detailed written submission, which I have had the advantage of reading and I have also had the advantage of hearing oral submissions from Mr Johnson in support of his submission.
The Refugee Review Tribunal, as Mr Ower pointed out, did not accept that the applicant played a significant role in politics in Bangladesh and found that the chance of persecution by the applicant's political enemies was remote. What the Tribunal did do, in other words, was to assess the applicant's case and decide that it was not persuaded by it.
The applicant, of course, is not making a submission that the matter should be reconsidered on its merits, and indeed the arguments advanced by counsel for the applicant very carefully avoid any suggestion of any sort of a merit's review. It is the methods used by the Tribunal, in arriving at its decision, which have attracted the applicant's criticism.
In his submission on behalf of the applicant, counsel has grouped the arguments into three pieces of subject matter: ground 1 relates to denial of natural justice in respect of country information; grounds 2 and 3 are dealt with in the one submission relating to the applicant's documentary evidence. Having read the grounds set out in the application, and the decision, I am of a view that is a sensible and economical way to deal with those two points because they are, in effect, part and parcel of the one overall point.
The third branch of the submission relates to the fourth ground, an allegation that the Tribunal did not annunciate or apply the proper test for the meaning of "persecution".
Dealing first of all with the claim of denial of natural justice in respect of country information, it is true that the Tribunal did, indeed, rely on country information which was to the effect that there had been a substantial change in the political climate since the applicant had left Bangladesh. The situation is that there had been a change in Government and certainly it is accepted that the political situation in Bangladesh is somewhat more volatile than in this country and a change of Government is not an unusual circumstance.
What did happen was that the applicant had been involved in one form or other in certain clashes in the streets and which had involved the burning of two motor vehicles: one of them a police jeep; and one of them a vehicle belonging to a political opponent. And the applicant was of the view that this political opponent in some way held him responsible and would seek to exact his revenge upon him if the applicant were to return to Bangladesh.
The change in circumstances, Mr Ower submitted, was not put to the applicant that he had not been given an opportunity to respond or answer it, and was therefore denied natural justice. In the circumstances, the applicant relies on the decision in Re: Minister for Immigration & Multicultural Affairs and Anor ex parte Miah (2001) 206 CLR 57.
In reply to that Mr Johnson of counsel submits that the decision of the High Court in Miah (supra) is plainly distinguishable from decision that was before the Tribunal in this case. He points out that on the facts Miah (supra) was concerned with reliance by a decision maker upon changes in the country from which the applicant claimed to be a refugee, but had occurred after the decision and which had not been put to the applicant at all.
Against this, Johnson submits that the changed circumstances relied upon by the Tribunal had all occurred before the application to the Tribunal had been brought and the substance of the matters that were relied on was part of what had already been brought to the applicant's notice, certainly by the record of the decision that the applicant was asking the Tribunal to review, in other words the decision of the delegate of the Minister.
The submission is quite strong that the changes in Government referred to by the Tribunal had been referred to the applicant and the substance of those changes was recorded in the decision of the delegate and that, if nothing else, would certainly suffice. See for example Abebe v Commonwealth (1999) 197 CLR 510 576 and 577.
Counsel for the respondent submits, and in my view correctly, the Tribunal was not obliged to bring to the notice of the applicant issues that were obvious from the known material of which the decision that was under review by the Tribunal was a part, or from the nature of the decision to be made. See Commissioner for ACT Revenue v Alphaone Pty Limited [1994] 49 FCR 576 572. Mr Johnson submits that on this ground there has been no denial of natural justice.
The documentary evidence referred to in the second branch of the submission relates to three letters that were tendered in support of the applicant's case. Those letters were given little weight. At page 94 of the Court book at point 7, the Tribunal member says:
In reaching these conclusions I have noted the letters supplied by the applicant. However with the exception of the information relating to the cancellation of charges against the applicant, they are speculative and not corroborated by other evidence before the Tribunal. I have therefore given them little weight.
Mr Ower submits that apart from taking them into account as far as the dismissal of pending charges is concerned, he submits that it is clear that the Tribunal did not give this evidence any weight at all. There was no suggestion that the evidence was forged or fabricated, and a dismissal of pending charges was consistent with the country information, therefore the balance of the evidence should have been given some weight at the very least. But he submits that in reality the RRT chose simply to ignore the contents without cogent reasons. He submitted both in writing and orally that the gravity of the issues raised by the documents granted closer consideration for there to have been a proper exercise of jurisdiction.
With respect, I am not satisfied that I agree with that point. It is clear that the Tribunal had regard to the three letters. It is not necessary for documents to be shown or even suspected to be forged or fabricated for the contents of the documents to be given little weight. The documents may well appear on their face not to take the applicant's case any further, or to be at odds with other evidence to which the Tribunal attaches significant weight. The fact that the Tribunal has referred the letters and at least part of their content and indicates that she has given them little weight, to my mind can be taken as evidence of a consideration of that material.
Considering material does not bring about an obligation to give any weight, or any significant weight to that material. There is clearly evidence which supports another contention and the decision maker has preferred that other contention. And her decision, on the face of it, appears to be, looking at the face of the documents concerned, she has decided that they are not of great weight and other evidence is of greater weight. To my mind there is evidence that the Tribunal has considered the material, but has not given it great weight. This does not accord with a failure to exercise jurisdiction.
It is not, as I see it, a situation where the credibility matters were raised. It is not a situation where the applicant's credibility himself, or the credibility of the witnesses themselves has been called into contention.
The Tribunal has given reasons. Whether they are good reasons or bad reasons, they are reasons, and that she says that the letters from their content are speculative and not corroborated by other evidence before the Tribunal. In my view, the applicant's contention that the Tribunal has not considered the documentation cannot be sustained.
Looking at the question of persecution, the applicant submits that the Tribunal discussed the appropriate principles at page 87 of the Court book, but then when applying them on page 94; it has applied a more narrow test. The Tribunal says at page 94 about point 5:
In these circumstances I find the chance that the applicant will be arrested on return, or experience violence amounting to persecution at the hands of his political enemies, to be remote.
The submission goes that the Tribunal is applying a more narrow test by confining itself to assessing the chances of the applicant being arrested or experiencing violence amounting to persecution. By taking this narrow view, the Refugee Review Tribunal, it is submitted, failed to fully consider the chances of police harassment and threats of violence.
Quite clearly the Tribunal member has referred to a specific circumstance, namely "being arrested" which itself is something of which the applicant has complained. The balance of the phrase:
experience violence amounting to persecution at the hands of his political enemies
is, to my mind, a description which should be taken in a broad way rather than a narrow way. It is certainly not a requirement to show that persecution must itself include actual violence. Persecution can include such things as police harassment, as counsel suggests, and threats of violence. It is not necessary for any violence to be carried out for a person to suffer a well founded fear of persecution. The violence can always be in the wings or just over the horizon, but provided threats are real enough, such behaviour can amount to persecution, and in my view, with respect, the learned Tribunal member did no more than describe the persecution feared as:
experiencing violence amounting to persecution.
So a threat of violence or harassment, falling short of actual violence, is most certainly still persecution. My belief is that the Tribunal turned their mind to it, especially bearing in mind the description of the media persecution set out at page 87 of the Court book.
Turning back to the question of delay. Mr Johnson of counsel was concerned to take issue with the Court that delay need not wait to be considered until a finding was made as to whether there were grounds for relief. He submitted that on the authority of The Queen v Australian Broadcasting Tribunal ex parte Fowler and Ors (1981) 31ALR 565 568 and 570, that the Court may in its discretion dismiss an application on grounds of unwarrantable delay with or without finding that there is jurisdictional error. If a delay is gross delay the Court may decline to grant the relief sought which is, after all, discretionary on the basis that too much time has been let go. Quite clearly, the decision in Australian Broadcasting Tribunal ex parte Fowler and Ors (supra), is binding on this Court.
I am of the view that it is not necessary to consider the cart before the horse argument because it appears quite clear that the substantive application is not one which has merit if there is no reviewable error and accordingly there is no ground for relief.
I am not of the belief that the Tribunal has misconstrued the question of persecution. I am not of the belief that the applicant's documentary evidence in respect of being the three letters was disregarded, as opposed to being given little weight, and I am of the belief that the Tribunal did consider the material but chose to prefer other evidence, which is the right of the Tribunal.
I am also of the view that the country information did not, in the circumstances, have to be put to the applicant and for the reasons given by Mr Johnson in his submission, that Re: Minister for Immigration & Multicultural and Ors ex parte Miah (supra), can be distinguished. As there is no reviewable error there is, in fact, no need for me to consider whether or not there was an unwarrantable delay.
It would however appear to me that as the Rosco class action, it is conceded, was not a class action relating to the decision of the Refugee Review Tribunal it would be difficult to explain the extraordinary period of delay between the handing down of the RRT decision and the applicant's joining the Lie class action on 16 July 1999.
The application will be dismissed.
In this jurisdiction costs normally follow the event. The applicant has been unsuccessful. There are no extraordinary circumstances which, to my mind, would justify the Court in not exercising its jurisdiction.
It is a matter where I propose to make an order that the applicant is to pay the respondent's costs. The amount sought is $4,500.00, which takes into account the briefing of counsel.
It was appropriate to brief counsel in the circumstances. The applicant was represented by counsel, and indeed the arguments presented to Court by both counsel were certainly sufficient for me to give serious consideration to the issues raised, and I certainly was not in a position where I could have handed down an off the cuff decision on the hearing day, as I knew it was certainly necessary for me to take time to consider the strength of the submissions on both sides. And I am indeed indebted to counsel for their arguments and for the way in which the proceedings were conducted.
In my view $4,500.00, bearing in mind the fact that I can certify for counsel, is within the range envisaged by the scale in schedule 1 of the Federal Magistrates Court Rules. I am mindful of the fact that the applicant himself, as he is entitled to do, was represented by counsel. And, of course, the applicant is going to have his own costs as a consideration.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 29 June 2005