SZANH v Minister for Immigration

[2004] FMCA 385

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZANH v MINISTER FOR IMMIGRATION [2004] FMCA 385

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – assertions of actual bias and procedural unfairness by the RRT – no reviewable error found – application dismissed.

Applicant: SZANH

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ747 of 2003

Delivered on: 17 June 2004

Delivered at: Sydney

Hearing date: 17 June 2004

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Ms A Nanson
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ747 of 2003

SZANH

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 9 April 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Bangladesh and made claims of political persecution in that country by reason of his involvement with the Bangladesh Nationalist Party.  The background facts and circumstances are set out in paragraph 1 through to paragraph 13 of written submissions prepared on behalf of the Minister by Ms Nanson.  I adopt those paragraphs for the purposes of this judgment:

   The applicant is a citizen of Bangladesh. He was born in Dhaka in 1965 where he lived until 2001.  His passport was issued in Dhaka on 10 January 2001 and his Australian visa was granted on 22 August 2001.  He left Dhaka legally on 31 August 2001and arrived in Australia on 1 September 2001.   His occupation is recorded as ‘artist’ (court book, pages 13-16).  He has no record of employment in Dhaka nor any crimes or convictions recorded against his name or pending (court book pages 17 and 25).

   The applicant applied for a protection (class XA) visa on 4 September 2001, which was refused by a delegate of the Department of Immigration and Multicultural and Indigenous Affairs pursuant to the Migration Act 1958 (Cth) (“the Migration Act”) on 17 December 2001 (court book, page 70). He then applied for a review of that decision with the RRT on 21 January 2002.

   The applicant was invited to attend a hearing before the RRT which invitation was accepted (court book, page 81).  On 7 April 2003, the applicant, through his adviser, migration agent Zahirul Hoq Mollah, provided documents in support of his claims that a number of false cases had been filed against him and that he had incurred injury from his assailants (court book, pages 82-109). 

   On 9 April 2004, the applicant attended a hearing before the RRT together with his adviser (court book, page 111) and provided a further document in support of his claim that he had participated in a performance on 14 April 2001 at which there was a bomb blast (court book, page 113).

   At the conclusion of the hearing, the RRT affirmed the decision not to grant the applicant a protection visa (court book, pages 115-138).  A copy of this decision was forwarded to the applicant on 16 April 2003 (court book, page 114).  The applicant applied for a review of the RRTs decision on 5 May 2003. …

   Nature of applicant’s claims for refugee status

   The applicant’s claims and evidence are fully and extensively summarised in the decision of the RRT (court book, pages 118-125).  In brief, the applicant claims that he was active in, and an officer bearer of, the Bangladesh Nationalist Party (BNP) student wing from 1989 until 2001.  He also claims to be a supporter of the feminist Taslima Nasreen and to be an artist.  He claims these activities have attracted the enmity of the Awami League and other Muslim fundamentalists who have threatened to kill him should he return to Bangladesh.  The applicant also claims that the authorities want him in connection with a false case fabricated by the police.

   The RRT’s findings

   The RRT accepted the applicant might have been involved in the BNP student wing in the period 1989-2001.  The RRT did not accept he was elected to hold office in 2000-2001.   The RRT also considered sufficient time had elapsed for any political profile to have faded and noted the applicant’s political activities had been confined to the Dhaka district (court book, pages 132-133).

   The RRT did not accept the applicant had been wanted by the police in connection with a false case and that he had been subjected to attack  for the following reasons:

   a)the applicant had lived at the same address in Dhaka for the majority of the time during which the false charge was laid and the assaults occurred;

   b)the applicant gave conflicting evidence in relation to the claimed false   charge,  stating in his application that there was no record of any criminal charge or conviction (court book, page 25) but in his statement claiming a warrant had   issued against him on a false and fabricated case (court book page 36);

   c)the applicant had left Bangladesh legally, on his own passport and without difficulty;

   d)country information relied upon referred to the unreliability of documentary proof (a matter which was brought to the applicant’s attention during the hearing (court book, page 125.5).

   The RRT went on to consider the alternative proposition that, should there be a false case against him, then he would receive justice in the superior courts and, as the applicant’s party was now in power, this would undoubtedly  assist him. (court book, pages 134-135).

   The RRT noted all three claimed attacks occurred in Dhaka and considered that it would be reasonable for the applicant to relocate to another district noting that he was  clearly capable of doing so (court book, pages 135-136).

   The RRT did not accept the applicant would be in danger from fundamentalists because of his claimed support for Taslima Nasreen for the reasons that his claims and oral evidence were brief and unrevealing, that it was not credible that an active member of a conservative and Pro-Islamic political party would also be a public supporter of a woman whose “… agenda is at the opposite end of the political spectrum” and that, in any event, he would be able to obtain protection from the authorities (court book, pages 124.5, 129 and 136.5).

   The RRT did not accept the applicant would be in danger from fundamentalists as a result of his profession as an artist because of a lack of credible evidence relating to his involvement in that profession or to any attack on him for that reason.  The RRT also considered the applicant would be able to obtain protection from the authorities (court book, pages 136-137).

   Finally in further support of its findings above, the RRT noted other matters which indicated that the applicant did not fear persecution in Bangladesh:  that he had lived at the same address, except for a short period in July 2001,  that he obtained a passport in his own name in January 2001 but did not leave Bangladesh until 31 August 2001;  that he left legally and under his own name and that he did not leave for four months following the 14 April 2001 bomb blast in April 2001.

2. The applicant relies upon his application filed on 5 May 2003.  That application purports to set out eight grounds of review.  However, the grounds are generally expressed and are not particularised.  The applicant filed written submissions in support of his application on 15 June 2004.  That submission appears to deal primarily with the assertion of bad faith in ground 2 of the application.  However, I am prepared to accept that the written submissions also raise the issue of an asserted breach of the rules of natural justice or procedural fairness.

3. There is no substance to the other grounds contained in the application which are not particularised.  I agree with and adopt paragraphs 16, 19, 20, 21, 22 and 23 of Ms Nanson's submissions in relation to those grounds:

   Ground 1

   The applicant claimed a number of false cases were filed against him in Bangladesh (court book, page 122.8) despite his earlier assertion that there were no criminal charges pending against him (court book, page 25).  The RRT did not accept this claim as credible for the reasons set out above.   The RRT was entitled to reach the conclusions it did on the evidence.

   Ground 4

   The applicant contends the RRT “denied the evidentiary proof of my claim”.  The RRT considered all the evidence put before it and was entitled to reach the conclusions it did in relation to that evidence for the reasons clearly expressed.

   Ground 5

   The applicant contends the RRT’s decision “did not reflect the material facts of my claim”.  The precise nature of the contention cannot be ascertained other than to observe that the RRT’s reasons extensively reviewed the applicant’s evidence and documentary material and that it was open to the RRT to reach the conclusions it did.

   Ground 6

   The applicant claims the RRT pre-determined his application.  There is no evidence to support this claim and the RRT’s careful and detailed reasons speak to the contrary.

   Ground 7

   The applicant contends the RRT “mixed up many facts”.  No particular facts are identified and, in any event, a mere error of fact (if any are identified) is not [of itself] sufficient for the application to be upheld.

   Ground 8

   The applicant contends the RRT concentrated on particular facts and ignored many other facts.  No facts said to have been ignored by the RRT have been identified.

4. I also reject the assertion of bad faith.  I reject that assertion whether it is based upon the particulars of actual bias set out in the applicant's written submission or otherwise.  This is an allegation which is too regularly and lightly made by applicants in this Court.  An allegation of bad faith or actual bias is a very serious matter requiring particulars and evidence in support of it.  There is nothing in the material before me which indicates, let alone establishes, bad faith or actual bias.

5. The applicant's written submissions appear to seek to draw support from asserted breaches of ss.424A, 414, 427(1)(d), 422B(1) and 430 of the Migration Act. It is not apparent what, if any, significance those sections would have to an assertion of actual bias even if they had been breached. However, it is obvious that there was no breach of ss.414, 427(1)(d) or 430. The issue of a breach of s.422B(1) makes no sense. The section, if it applies, seeks to constrain the application of the common law rules of procedural fairness. Ms Nanson submitted that, having regard to the timing of the applicant's application to the RRT, the section does not apply.

6. As to section 424A of the Migration Act, the only issue which potentially might arise in this matter is whether country information relied upon by the RRT was disclosed to the applicant. If there was a non disclosure of country information, then it is at least arguable that there was a breach of s.424A(1) independently of any allegation of actual bias. In that event, there probably would also be a breach of the common law rules of procedural fairness. However, it appears that country information relied upon by the presiding member in this case was raised orally by the presiding member with the applicant at the hearing before the RRT.

7. The relevant country information concerned false charges laid for political reasons in Bangladesh and the issue of document fraud. The presiding member states at paragraph 25 of his decision (court book, page 125) that he raised the country information concerning the laying of false cases and access to justice through the superior courts with the applicant. I find that that disclosure was sufficient to discharge any obligation that may have arisen pursuant to s.424A(1) or the general law in relation to that country information.

8. At paragraph 24 of the decision on page 125 of the court book the presiding member says:

   I noted the poor reputation of Bangladeshi documents and my familiarity with the adviser’s [that is, the applicant's adviser’s] methods from other cases.

   It is not clear how much detail the presiding member went into in relation to that issue.  However, whether or not the disclosure made by the presiding member was sufficient to discharge a statutory or common law obligation on disclosure, it does not appear to me that the country information concerning document fraud was ultimately significant to the RRT’s decision.  The issue arose first in relation to a document referred to at the top of page 133 of the court book.  In that regard, while the presiding member referred to country information concerning document fraud he went on to say:

   In the present case it is not necessary to argue this matter further because, even if he did hold the position and had provided credible evidence for it, his involvement finished years ago, long enough for most political profiles to fade considerably, and he has not claimed to have engaged in political activities anywhere but Dhaka district, just one of the 64 districts of Bangladesh.

9. In other words, the presiding member did not regard the document, whether reliable or not, as assisting the applicant in his claims of persecution. 

10. The issue of document fraud was also considered in relation to the asserted false case laid against the applicant.  That issue is discussed on page 134 of the court book by the presiding member.  It appears from that discussion that the issue of document fraud was the fourth and a relatively minor consideration in rejecting the asserted false case.

11. In addition, the presiding member went on to consider what the position would be if, indeed, there was a false criminal case laid against the applicant. It follows that if there was a breach of any common law obligation of disclosure concerning the country information about document fraud there was no practical unfairness. Alternatively, if there was a breach of s.424A(1) in relation to that country information the Court should, in the exercise of its discretion, refuse relief.

12. The manner in which the presiding member dealt with the possibility of a false case against the applicant merits some further comment.  In NAMW and Ors v Minister for Immigration [2004] FMCA 36 I set aside a decision of the RRT upon the basis, in part, of a failure by the RRT to consider whether the applicant would be detained pending the hearing of a false case and, if so, the likely conditions of that detention.

13. My decision in that case is distinguishable from this one for two reasons.  The first is that the presiding member in this case had a much higher degree of certainty as to the non-existence of a false case against the applicant than was the case in NAMW.  The second is that in contrast to NAMW, there was information before the presiding member in this case that the applicant would be unlikely to be detained if a false charge had been laid, because of amendments to the relevant Bangladeshi legislation, providing for bail (court book, page 130).  For those reasons I would not set aside the decision of the RRT in this case on the basis which I did in NAMW.

14. Although the applicant was unable to substantiate a claim of actual bias I indicated to him that because he had asserted a breach of procedural fairness I would consider whether there was a reasonable apprehension of bias.  It is apparent from the decision and reasons of the RRT that the presiding member was quite firmly of the view that there was no substance to the applicant's claims of persecution based upon his asserted political profile.  The presiding member also regarded the applicant's claims of political involvement with the BNP as inconsistent with his support for a noted Bangladeshi feminist.

15. However, the applicant's claims were considered in some detail and rationally discussed by the presiding member and the rejection of them is not, in my view, indicative of a reasonable apprehension of bias.  Some parts of the presiding member's reasons might have been better expressed.  The presiding member was reluctant to accept that the applicant had been involved with the student wing of the BNP 10 years after he had ceased to be a student.  On page 132 of the court book the presiding member said:

    Although I find it somewhat surprising that an adult in his thirties would wish to prolong his mental adolescence by continuing to remain involved in student politics for a whole decade after he had ceased to be a student, for the purposes of this decision I accept that he was so involved because I have seen nothing to indicate that mere membership of the BNP student wing in the period 1989 to 2001 would lead to persecutory consequences in the Convention sense.

16. Taken at face value this might be regarded as a statement by the presiding member that he was only prepared to accept the applicant's claim because it did not assist him.  Such an approach might be indicative of at least a reasonable apprehension of bias.  However, a fairer analysis of the presiding member's statement is that the presiding member was simply saying that it was unnecessary to make an issue out of the non‑acceptance of a claim which was ultimately of little significance.

17. It would probably also have been better if the presiding member had referred specifically to the issue of the availability of bail when considering the issue of the possibility of a false case being outstanding against the applicant.  Rather, on pages 134 and 135 of the court book, the presiding member referred to the fact that the applicant's chosen political party was now in power, which the presiding member thought might assist him in dealing with any false case.  It appears inconsistent to find on the one hand that the rule of law prevails in Bangladesh and on the other that the outcome of a criminal trial might be influenced by the governing party.

18. In addition, the applicant, through his adviser, had presented information to the RRT which appeared to establish that the ruling party had espoused respect for the rule of law (court book, page 121).  This indicated an unwillingness to interfere in the judicial process even when the ruling party's own members were the subject of prosecution.  The presiding member, at the hearing, appeared to accept this (court book, page 125).  However, while I may quibble with the presiding member's reasoning, that does not establish jurisdictional error whether by reason of procedural unfairness or otherwise.

19. It is possible that the applicant was not assisted by his choice of migration agent.  Mr Hoq Mollah was specifically identified by the presiding member and other claims pursued by him were referred to in passing (court book, page 125).  This particular migration agent is a man of some notoriety and his actions have been commented on adversely before.  See for example SZAJS v Minister for Immigration [2004] FMCA 68. Although the applicant apparently came to Australia as part of a group of artists (court book, page 123) there is nothing to indicate to me clearly that this applicant is a member of the class of applicants referred to by me in that case. Neither, however, is there anything in the presiding member's reasons to indicate that he had any particularly jaundiced view of this applicant's application simply by reason of his choice of migration adviser. The applicant was particularly concerned that the RRT made an oral decision immediately after the hearing before it. He was also concerned that the presiding member had chosen not to further investigate the reliability of the documents he presented. He invited me to listen to the tape recording of the RRT hearing to establish these facts. I decided that it was unnecessary for me to do so because it is clear from the decision record that an oral decision was made immediately after the hearing. It is also clear that the RRT did not consider it necessary to conduct any further investigation into the applicant's documents.

1. However, there is nothing wrong with the RRT giving its decision orally.  It is a relatively common occurrence both in the RRT and indeed in this Court, including on this occasion.   Further, while the RRT was empowered to make further inquiries in relation to the applicant's documents it was not obliged to do so.  The fact that the RRT chose not to do so is not indicative of jurisdictional error. 

2. After considering the issues raised by the applicant, and after my own examination of the book of relevant documents, I have come to the view that an assertion of a reasonable apprehension of bias cannot be sustained.  The RRT proceeding was fair.  No other jurisdictional error was committed by the RRT. 

3. In the circumstances, I must dismiss the application.

4. On the question of costs, as the application has been dismissed, costs should follow the event.  Ms Nanson submits that a costs order on a party party basis fixed in the sum of $3,000 would be appropriate.  The applicant tells me that he may require time to pay costs.  That is a matter that he can take up with the Minister and her Department and legal advisers.  I will not require costs to be paid within any particular time.  I agree that the sum of $3,000 sought is appropriate. 

5. I will order that the application be dismissed and that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  22 June 2004