S1865 of 2003 v Minister for Immigration
[2006] FMCA 645
•2 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1865 of 2003 v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 645 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – asserted procedural unfairness – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424A |
| A v Minister for Immigration [2000] FCA 183 Applicant S1174 of 2002 v RRT & Anor [2004] FCA 289 |
| Applicant: | APPLICANT S1865 OF 2003 |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG563 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 2 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2006 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms S Hanstein Australian Government Solicitor |
ORDERS
The Refugee Review Tribunal is joined as the second respondent to the proceedings.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG563 of 2004
| APPLICANT S1865 OF 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The RRT affirmed a decision of a delegate for the Minister not to grant the applicant a protection visa. The decision was made on 21 April 1999 and communicated to the applicant by letter dated the following day. Relevant background is set out in the Minister's written submissions filed on 1 May 2006. I adopt as background paragraphs 2 to 8.5 of those written submissions:
The applicant, a citizen of Bangladesh, arrived in Australia on 18 August 1996. On 26 September 1996, he lodged an application for a protection visa but, on 17 February 1997, that application was withdrawn. The applicant lodged an application for a subclass 126 visa with the Australian mission in Thailand and, unsuccessfully, applied for a bridging visa on the basis of that application. The applicant was detained as an unlawful non-citizen on 17 November 1998 and lodged the protection visa application that relates to the present proceedings on 20 November 1998.[1]
[1] Relevant Documents (“RD”) 116-117
The protection visa application was refused by a delegate of the Minister on 10 December 1998[2] and, on 5 January 1999, the applicant applied to the RRT for review[3]. The RRT affirmed the decision of the delegate to refuse the protection visa application on 21 April 1999.[4]
[2] RD 60-67
[3] RD 69-73
[4] RD 111-135
The applicant applied to the Federal Court for judicial review of the RRT’s decision, which application was dismissed in default of the applicant’s appearance at the hearing on 4 August 1999.[5] An application by the applicant to have the dismissal set aside was unsuccessful.[6] On about 13 August 1999, the applicant became a member of the Lie class action (High Court proceedings S89/1999). Pursuant to orders made in the class action, the applicant filed an individual application for an order nisi which was remitted to the Federal Court and refused, along with approximately 700 similar applications, by Emmett J on 20 February 2004.[7]
[5] RD 136
[6] A v Minister for Immigration [2000] FCA 183, RD 137 ff
[7] Applicant S1174 of 2002 v RRT & Anor [2004] FCA 289
The present proceedings were filed on 4 March 2004 and an amended application was filed on 5 October 2004.
RRT’s decision
The applicant claimed to fear persecution on return to Bangladesh from Awami League members for reason of his BNP membership and activities. He claimed to have an organisational role with the BNP, and that he obtained a degree of fame through activities with the Boy Scout movement and was subsequently enlisted to actively campaign on behalf of the local BNP candidate in the 1996 elections. As a result, he became a prime target of the Awami League, with his house being ransacked and false charges being laid against him. Also, the applicant claimed to have attended meetings of anti-Awami League political groups in Australia. [8]
The RRT found that the applicant was a member of the Boy Scout movement and had undertaken various activities in that role, but that he did not have any significant political profile and was prepared to assist in welfare or social activities for any political group. It further found that the applicant had constructed a set of false claims to support his application, and that he did not have a well founded fear of persecution from the Awami League in Bangladesh. [9]
These conclusions followed a number of adverse findings by the RRT as summarised below:
a)The applicant’s failure to make any claims for protection from 1996 until after he was taken into immigration detention in 1998. That delay, particularly in light of his receipt of professional migration advice and his period as an unlawful non-citizen, led the Tribunal to have serious doubts about the genuineness of the applicant’s claimed fear.[10]
b)The applicant’s low political profile. The RRT, on the bases of lack of detail in aspects of the applicant’s oral evidence and the absence of documentary evidence in support of some of his claims, found that the applicant did not have an organisational role with the BNP and that he was not a figure of any significance in the 1996 elections. It concluded, therefore, that the applicant’s house was not ransacked as a result of his political involvement with the BNP.[11]
c)The applicant’s close association with the head of Bangabondhu Parishad (a group associated with, and which supports the political aims and philosophies of, the Awami League) in Australia. The RRT found that the applicant’s association with this group demonstrated that he did not fear persecution at the hands of members of the Awami League.[12]
d)The applicant’s failure to provide documentary evidence of his involvement with the BNP, in circumstances where he had the resources to, and had agreed he could, obtain such evidence and was given an opportunity to do so. This failure demonstrated that the applicant did not have the political profile he claimed.[13]
e)The nature of the documentary evidence provided by the applicant. These documents included documents relating to claimed false charges, and letters purporting to be from the applicant’s local BNP president and the applicant’s lawyer in Bangladesh. The Tribunal rejected these documents on the bases of inconsistencies between them and the applicant’s claims, independent country information about the provision of such documents, and the late stage of provision to the RRT.[14]
[8] See generally RD 57-58, 80-82, 92-93, 110, 116-127
[9] RD 22-23
[10] RD 130
[11] RD 131-132
[12] RD 132-133
[13] RD 133
[14] RD 134-135
These proceedings began with the judicial review application filed on 4 March 2004. An amended application was filed on 5 October 2004. Despite some initial uncertainty, after I gave him the opportunity to inspect it, the applicant adopted that amended application. No evidence has been filed in support of it. The only evidence I have before me is the book of relevant documents filed by the Minister on 17 August 2004.
The applicant sought a three month deferral of this hearing by letter dated 17 April 2006. He supported that request orally at today's hearing. The applicant is concerned about his lack of legal representation and lack of financial resources. He says that he is hopeful of obtaining money from overseas. He also told me that he was hopeful of obtaining further documents relating to circumstances in Bangladesh. He is concerned that he is at a severe disadvantage in the absence of legal representation.
I refused the application for an adjournment. I took into account that the present proceedings had been on foot for more than two years. Directions were given by a registrar on 1 February 2005. The applicant has been aware since then of today's hearing. He has had plenty of time to prepare for the hearing.
I accept that the applicant is not permitted to work. The circumstances of people like him on bridging visas without the right to work have been the subject of recent publicity. That, however, is a matter beyond the control of this Court. It is a matter for the Minister.
The amended application only names a single respondent, the Minister for Immigration. The Refugee Review Tribunal should be joined as the second respondent. I will so order.
The application asserts that the RRT erred in law in making its decision and that it constructively failed to exercise its jurisdiction. The particulars points to asserted procedural unfairness by the RRT in forming an adverse credibility view about the applicant. In particular, the application points to asserted procedural unfairness in relation to the RRT’s concern about the applicant's initial making, then withdrawal, and then re-making of protection visa claims. I gave the applicant the opportunity to make oral submissions in support of his application. He stressed his difficult personal and financial circumstances. He also sought to explain his response to the RRT’s credibility concerns. He repeated what is apparent from the record of the RRT decision that he sought to make to the presiding member the same explanations as he had made to me.
It is noteworthy that the RRT decision in issue has been the subject of earlier judicial proceedings. However, the earlier proceedings were conducted under a different legislative regime, as is apparent from what Lehane J says in his decision dismissing a motion for reinstatement of an earlier judicial review proceeding on page 3 of the unreported judgment. In those proceedings the applicant was unable to advance arguments of procedural unfairness. That is what the applicant is now seeking to do and the earlier Federal Court proceedings are not a barrier to that attempt.
The Minister deals with the judicial review application on its legal merits in her written submissions. I agree with and adopt the Minister's contentions as set out in paragraphs 10 to 12 of those submissions:
Ground in amended application
Neither s.422B nor s.424A of the Migration Act 1958 (Cth) apply to the RRT’s review. Any obligation to afford procedural fairness is to be found at common law, and relevant legal principles include those set out in the following case extracts:
a)In Kioa v West (1985) 2159 CLR 550 at 629, the High Court stated:
in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.
b)In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592, the Full Court of the Federal Court stated:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
The respondent contends that the denial of procedural fairness ground set out in the Court application is not made out, for the following reasons.
The RRT’s finding was, in essence, a finding that it appeared that the applicant did not have a genuine fear of persecution because he did not press a claim for protection until after he was taken into immigration detention in 1998. The factual bases of the RRT’s finding were matters personal to the applicant and matters of which he was aware. It was not therefore necessary for those matters to be put to him expressly by the RRT.
The applicant has not provided evidence to establish that he was not given an opportunity to address these matters at the RRT hearing. Therefore, the claim must fail.
In any event, it is apparent from the RRT’s reasons for decision that the RRT did specifically ask the applicant why he had withdrawn his first protection visa application if he genuinely feared persecution in Bangladesh[15], indicated that his explanation that he was confused and did not know what to do was doubted as he had had an experienced adviser[16] and informed him that it had doubts about his credibility for a number of reasons including the withdrawal of his first protection visa application.[17] The applicant was therefore on notice that his failure to press a claim for protection at a stage earlier than by the making of the protection visa application in 1998 was a matter which the RRT considered reflected adversely on his credibility. Therefore, the RRT discharged any obligation it might have had to provide the applicant with an opportunity to comment on the basis for its finding outlined at paragraph 8.1 above.
No jurisdictional error
No jurisdictional error is apparent in the RRT’s decision. It is noted that the adverse country information relied upon was provided to the applicant for comment.[18] Also, in the respondent’s contention the RRT properly considered the applicant’s claims and made findings that were open to it on the material before it.
[15] RD 117
[16] RD 117
[17] RD 124
[18] RD 107-108, 124-127
In the absence of supportive evidence, the assertion of procedural unfairness cannot succeed. I am unwilling to draw an inference that what is set out in the court book at pages 116 to 124 is an exhaustive statement of the discussion between the applicant and the presiding member at the hearing. However, what is set out in those pages establishes tolerably clearly that the presiding member did discuss with the applicant his credibility concerns, including the applicant's apparently inconsistent conduct in his various visa applications.
I find that the decision of the RRT is free from jurisdictional error. It is therefore a privative clause decision. The application must be dismissed.
The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $4,500. I accept that that is an appropriate assessment of costs on a party and party basis. I forestalled any submission from the applicant based upon impecuniosity. He did not wish to make any other submission.
I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application fixed in the sum of $4,500.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 May 2006
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