SZALU v Minister for Immigration
[2004] FMCA 264
•29 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZALU v MINISTER FOR IMMIGRATION | [2004] FMCA 264 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – application rejected on credibility grounds – extreme similarity of the claim to another application – the other application not disclosed to the applicant – the other application also the subject of proceedings before the Court – consent orders made referring the matter to the RRT due to a lack of procedural fairness – Minister refusing to consent to such orders in this matter – observations on the desirability of consistency in the Minister’s approach – application granted. |
Migration Act 1958 (Cth), ss.424A, 426A
Daihatsu Australia Pty Ltd v Commissioner of Taxation [2001] FCA 588
Dan v Commissioner of Taxation (Cth) (No 2) [2000] FCA 752
Kordan Pty Ltd v Commissioner of Taxation [2000] FCA 1807
Minister for Immigration v Singh (2000) 998 FCR 469
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
NADR v Minister for Immigration [2002] FCAFC 293
NAIY v Minister for Immigration [2003] FMCA 359
NAIY v Minister for Immigration [2004] FCA 455
NAMW & Ors v Minister for Immigration [2004] FMCA 36
O’Toole v Charles David Pty Ltd (1991) 171 CLR 232
SPAB v RRT [2002] FCA 590
WAFV of 2002 v RRT [2003] FCA 16
| Applicant: | SZALU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ694 of 2003 |
| Delivered on: | 29 April 2004 |
| Delivered at: | Sydney |
| Hearing date: | 29 April 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Ms R Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
A writ of certiorari issue, quashing the decisions of the Refugee Review Tribunal.
A writ of mandamus issue, requiring the Refugee Review Tribunal to redetermine the matter according to law.
Each party is to bear their own costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ694 of 2003
| SZALU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 12 March 2003 and handed down on 3 April 2003. The RRT affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa. The relevant background facts are set out in written submissions prepared on behalf of the Minister by Ms Francois. I adopt paragraphs 1.1 through to 3.2 of those written submissions for the purposes of this judgment:
This is an application seeking review of a decision made by the RRT on 12 March 2003 and handed down on 3 April 2002. The RRT affirmed a decision of a delegate of the Minister refusing the applicant a protection visa.
The applicant is a citizen of Bangladesh and arrived in Australia on 15 January 2002 on a transit visa valid for 3 days (court book, page 32). On 17 January 2002 the applicant lodged an application for a protection (Class XA) visa (court book, pages 1-50).
The applicant claimed a well founded of fear of persecution in Bangladesh on the basis of his political opinion as a member of the Awami League. In the statement attached to his protection visa application, the applicant claimed that:
a)he had been working in Fiji as a temporary resident since 1998 and returned to Bangladeshi in December 2001 (court book, page 23, 1st paragraph);
b)he joined the student wing of the Awami League whilst in college and was the General Secretary of the unit in his college between 1989 and 1991 (court book, page 23, 5th paragraph);
c)the Bangladeshi National Party (“BNP”) “led political persecution on the supporters of the Awami League as it protested the misrules of the BNP. Thus [he] has been subject to political persecution … [as he] actively took part in the movements against the misrules of the BNP in 1995 and 1996” (court book, page 23, 6th paragraph);
d)in 1992 he was a member of the youth front of the Awami League and held the positions of Organizing Secretary and General Secretary of the Imampur Union unit of the youth front in Gazaria, Munshiganj. At that time he was actively involved in “face to face clashes” with supporters of the BNP;
e)in 1995 and 1996 he was holding the position of General Secretary and formed close associations with prominent members of the Awami league (court book, page 24, 8th paragraph);
f)in June 1995 he was assaulted in a demonstration and narrowly escaped further harm. A false police case was then filed against him which forced him into hiding (court book, page 24, 9th paragraph);
g)in June 1996 the Awami League gained power and the police case against him “subsided” (court book, page 24, 10th paragraph);
h)in October 2001 the BNP came to power and is “taking revenge” against Awami League supporters (court book, page 25, 12th paragraph); and
i)the applicant returned home in December 2001 to visit his sick mother but could not actually visit her because of threats to his life made by rivals from the BNP. Those rivals also attempted to revive the false charges and the applicant was compelled to flee (court book, page 25, 13th paragraph);
j)another reason the applicant was motivated to return home in 2001 was that he was also subject to persecution in Fiji because he is of Indian origin (court book, page 25, 14th paragraph).
Despite stating in his protection visa application that he would provide further documents, the applicant did not provide any documents in support of his application to the delegate. On 31 January 2002 a delegate of the Minister wrote to the applicant inviting his comment on certain country information, including information that the BNP government is not pursuing a campaign of persecution against its opponents and there is effective state protection as the judiciary is independent (court book, pages 54-57). The applicant’s migration agent responded by letter dated 6 March 2002 (court book, pages 58-76). A delegate of the Minister refused the applicant a protection visa on 29 April 2002 (court book, pages 77-86).
RRT proceedings
On 27 May 2002 the applicant lodged an application for review with the RRT. Amongst other things, the applicant stated in that application that he would provide a statutory declaration and supporting documents “shortly” (court book, pages 87-90). The applicant did not provide any documents in support of his application to the RRT.
On 29 January 2003 the RRT wrote to the applicant and informed him that it was unable to make a decision in his favour on the basis of the material before it and invited him to attend a hearing on 11 March 2003 (court book, pages 93-94). On 17 February 2003 the RRT received a response to the hearing invitation which indicated that the applicant would attend accompanied by his migration agent (court book, page 96).
On 9 March 2003 the applicant wrote to the RRT and informed it that he was unable to attend the hearing due to “physical sickness” and enclosed two medical certificates dated 9 and 10 March 2003 indicating he had a “viral illness”. The RRT sent copies of the certificates to the applicant’s doctor (court book, pages 100-101) spoke to the doctor on the telephone and ascertained that the certificates were not issued for the purpose of the hearing, that they related only to applicant’s capacity for physical work and the doctor did not fault the RRT’s stated position that the hearing should proceed (court book, page 112.2).
The RRT then rang and faxed the applicant’s migration agent and informed him that the RRT had spoken to the doctor and the hearing would proceed.[1] Neither the applicant or his migration agent attended the hearing and the RRT decided pursuant to s.426A of the Migration Act 1958 (Cth) (the “Migration Act”) to proceed to make its decision. On 3 April 2003 the RRT handed down its decision affirming the decision of the delegate to refuse the protection visa (court book, pages 108-117).
The RRT’s decision and reasons
The RRT did not accept that the applicant would face a real chance of persecution in Bangladesh. It did so on four alternative bases:
a)it found the applicant had fabricated his claims given the extreme similarities between his claims and conduct and that of another applicant (court book, pages 113.3, 114.1);
b)the applicant’s claims were implausible on their face as a person with a low profile such as the applicant and who had not been politically active for five years would not be remembered nor immediately targeted upon his return (court book, page 114.5);
c)the BNP government was not now persecuting its political opponents and accordingly people in Bangladesh do not face persecution by reason of the expression of pro-Awami league opinions (court book, pages 114.5-115.4);
d)the judiciary are independent and accordingly the applicant has the protection of the Courts in Bangladesh (court book, page 115.5);
As the RRT found that the applicant would not face a real chance of persecution in Bangladesh, it was not necessary to consider the applicant’s claims in relation to Fiji.
[1] court book, page 103 (letter), court book, page 112.3 (conversation).
The applicant proceeds upon his application filed on 30 April 2003 and his written submissions which were filed in chambers on 27 April 2004. He also presented oral submission(s) which, apart from dealing with the merits of the RRT decision, which I cannot review, went to the issue of the refusal of an adjournment.
Ms Francois deals with the grounds advanced by the applicant in his application and written submissions in paragraphs 4.1 through to 4.8 of her written submissions. I generally agree with and adopt those paragraphs for the purposes of this judgment:
The applicant filed an application in this Court on 30 April 2003. The applicant’s grounds of review are as follows:
(1)The procedures that were required under the Act to be observed in connection with the making of the decision were not observed;
(2)The RRT ignored the merits of the claim;
(3)The RRT did not take into account his medical certificate of physical sickness and did not give him an opportunity to present his oral evidence and give his documentary evidence;
(4)The RRT made errors to decide the fate of the applicant’s claim;
(5)The RRT misjudged the fate of the applicant’s claim;
(6)The RRT did not consider the evidentiary proof of the applicant’s claim; and
(7)The RRT did not act in good faith and acted in bad faith.
The applicant has also provided written submissions which appear raise the following additional matters:
(1)that he “brought” a statutory declaration to the RRT to “ensure it was before the [RRT]”; and
(2)his case is similar to Muinv Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30.
The applicant has not provided any particulars of the procedures that he asserts the RRT failed to observe. Further, grounds 2, 4 and 5 of the application essentially seek impermissible merits review.
With respect to the allegation that the RRT failed to consider unspecified evidence:
a)the RRT clearly considered the applicant’s claims; and
b)the RRT was not obliged to refer to or address all the material relied upon by the applicant to support his claims: Minister for Immigration v Singh (2000) 98 FCR 469.
If the evidence the applicant refers to is the “statutory declaration” mentioned in his written submissions, there is no evidence of such a document having been submitted or “brought” to the RRT. Further, the applicant does not complain that the statutory declaration is not in the court book nor provide a copy of that document.
In so far as the applicant complains that his medical certificate was not taken into account, that is factually incorrect. The RRT spoke to his doctor and informed his migration agent of its the decision to proceed with the hearing. Neither the applicant nor his migration agent attended the hearing or provided further submissions as to why the hearing should not proceed. There is no substance to the challenge to the RRT was not entitled to proceed pursuant to s.426A of the Act.
The applicant’s final ground of review in the application is that the decision was made in bad faith. The applicant has not filed any evidence or submissions in support of this allegation. The absence of bona fides is to be proved other than by perusing the face of the record.[2] Further, proof of bad faith necessitates proof of extreme circumstances[3] such as dishonesty.[4] It is a serious allegation which should not be made lightly.[5] In the circumstances, this ground of review must also fail.
With respect to the suggestion in the applicant’s written submissions that his case is similar to Muin, there is no evidence put forward by him which suggests that he was misled into believing that the RRT had considered particular relevant information and, as a result, he did not ensure that such information was placed before the RRT. These matters need to be established in order to enliven the Muin principle: NADR v Minister for Immigration [2002] FCAFC 293 at [24] and [26].
[2] By a majority in O’Toole v Charles David Pty Ltd (1991) 171 CLR 232.
[3]Dan v Commissioner of Taxation (Cth) [No. 2] [2000] FCA 752 at [34]; Daihatsu Australia Pty Ltd v Commissioner of Taxataion [2001] FCA 588 at [36].
[4] WAFV of 2002 v RRT [2003] FCA 16; SBAP v RRT [2002] FCA 590.
[5] Kordan Pty Ltd v Commissioner of Taxation [2000] FCA 1807.
In particular, there is no substance to the attack on the refusal of an adjournment by the RRT. The presiding member did no more than other courts and tribunals have done in similar circumstances. I have done precisely what the presiding member did myself.
A similar situation arose in the matter of NAIY v Minister for Immigration [2003] FMCA 359 before me and I adopted the course taken by the presiding member. The issue was considered on appeal by the Federal Court in NAIY v Minister for Immigration [2004] FCA 455 at paragraphs [39] to [41]. His Honour Jacobson J found no error in my approach. I likewise find no error in the approach taken by the RRT.
There are however two problems with this decision of the RRT. The first is that the applicant's claims were rejected on credibility grounds significantly because of the close similarity between his claims and those of another applicant. The issue is dealt with by the presiding member on page 113 of the court book. The presiding member noted that the RRT had before it an application by another Bangaladeshi whose history and claims are virtually the same as those of this applicant. The presiding member said (court book, pages 113 – 114) that the claims of the applicant had been fabricated, apparently in concert with the other applicant. Coincidentally, the other application which was referred to by the presiding member was before me yesterday afternoon. That was the matter of SZALT v Minister v Immigration, file reference SZ693 of 2003. The terms of the two decisions of the RRT are effectively identical. In that matter the Minister, through her solicitors, agreed to consent orders that a writ of certiorari issue quashing the decision of the RRT, and a writ of mandamus issue requiring the RRT to redetermine the matter according to law. The Minister also consented to an order that each party bear their own costs.
At the commencement of these proceedings, I drew the situation to the attention of Ms Francois who sought an adjournment in order to obtain instructions. Ms Francois, having obtained those instructions, on instructions, resisted the application on the basis that the RRT had rejected the claims of the applicant on credibility grounds independently of the similarity with the facts of the other application. Ms Francois was, of course, bound to act upon her instructions but I do have some difficulty in understanding the Minister’s approach in the two cases.
The decision of the RRT in both cases was the same. The same words relied upon by Ms Francois in the present case were used by the presiding member in the case of SZALT. In both cases, the presiding member sought to dispose of the claims on credibility grounds both on the basis of the claims themselves and on the basis of the similarity with the other matter.
It is desirable that the Minister act consistently. I cannot oblige the Minister to consent to any orders. The Minister is entitled to oppose as claim should she see fit. However, it does appear to me that in these two matters the Minister has acted inconsistently. The transcript of the short hearing yesterday in the matter of SZALT shows that the Minister's concession was made on the basis of a want of procedural fairness. The Minister, through her solicitors, accepted that the RRT erred in failing to disclose to the applicant the facts supporting the presiding member's conclusion that the applicant had acted in concert with the other applicant to fabricate his claims. This was either a breach of the common law rules of procedural fairness or s.424A(1) of the Migration Act, or both.
I find that the present decision suffers from the same defect. I find that the RRT erred in failing to disclose to the applicant the basis for the presiding member's concerns set out on page 113 of the court book. The RRT is, of course, perfectly entitled to reject claims on credibility grounds. However, where there are important facts giving rise to those credibility concerns unknown to the applicant, they should be disclosed to the applicant. In this case, as in the case of SZALT, they were not.
Ms Francois submits that even if I was satisfied that there was a want of procedural fairness in this case, I should nevertheless reject the application on the basis that the decision on credibility is independently based upon the lack of plausibility of the claims themselves. It sometimes happens that a presiding member is so clear in his or her assessment of a fabrication of claims based upon certain facts that there is no need to go further. The presiding member in this case, as in the case of SZALT, however, was not so convinced that the claims were fabricated by reason of similarity with the other case that he could rest at that point.
The presiding member said on page 114 of the court book:
The claims of political persecution, in any event, lack plausibility. Even if I were to accept that the applicant was an activist with the Awami League I find implausible that someone of his low profile would be noticed and targeted by rivals immediately after re‑entering the country, particularly since he had according to his own evidence been politically inactive for the past five years. I consider that, given the very robust, dynamic nature of Bangaladeshi politics, someone of the applicant's claimed profile would have been forgotten long since and his place taken by others. His evidence does not persuade me otherwise.
The presiding member went on to consider country information which led the presiding member to the view that the present situation in Bangladesh established that the applicant did not have a well-founded fear of persecution. I have no difficulty with that part of the presiding member's analysis. However, the presiding member went on to deal with a part of the applicant's claims concerning false charges allegedly laid against him. The presiding member dealt with this issue on page 115 of the court book.
I note that the applicant claims to have had false charges laid against him. Without being able to question him about this I am not satisfied that the claim is credible. Even if I were to accept it, I find that he has protection from the courts in Bangladesh which are independent and can be relied upon to give justice to those faced with false, politically-motivated charges: a Bangladeshi parliamentary committee report in January 2001 found that 99 per cent of the 69,010 people arrested by governments of the day since 1974 on false charges under the Special Powers Act had been released because the grounds for detention had been judged by the courts to be weak and vague.
The presiding member concluded that the above independent evidence does not support the applicant's claims of persecution. In my view, as sometimes happens, the presiding member has got into difficulty in rejecting the claims on credibility grounds but then proceeding to only partially consider the claims on the basis that they might be true. The issue of false charges came before me in the matter of NAMW & Ors v Minister for Immigration [2004] FMCA 36. In that decision, I dealt with the issue, in particular, at paragraphs 14 to 16. That decision, I understand, is subject to appeal and the appeal has not yet been dealt with by the Federal Court. However, I am not minded to depart from the view I expressed in that case. In my view, where claims of persecution based on false political charges in Bangladesh are made, the consideration of that claim involves a consideration of whether the applicant would be detained pending the hearing of the false charge and the likely circumstances of that detention. It could be characterised as an instance of overlooking a relevant consideration or an instance of the RRT asking itself the wrong question.
Ms Francois put to me that the circumstances of detention are immaterial in that circumstances of detention may be poor even in Australia. The important issue, Ms Francois submits, is the independence of the judiciary and the opportunity to obtain relief through the judicial process. However, in my view, if politically motivated false charges are laid against a person and if the person is detained pending the hearing of those charges and if the circumstances of that detention expose the individual to the risk of serious harm, that issue of persecution needs to be considered. The opportunity for eventual redress through the court system is not a complete answer.
I conclude that the decision of the RRT is infected by jurisdictional error due to the want of procedural fairness in the consideration of the credibility of the applicant's claims by reference to those of the applicant in matter SZALT v Minister for Immigration. In addition, the RRT fell into error in having embarked upon a consideration of the claim of false political charges and not having completed the exercise. For these reasons, the decision of the RRT is not a privative clause decision.
I have concluded that I should make the same orders as were made by consent in the matter of SZALT v Minister for Immigration.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 10 May 2004
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