SZANI v Minister for Immigration
[2004] FMCA 362
•4 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZANI v MINISTER FOR IMMIGRATION | [2004] FMCA 362 |
| MIGRATION – Review of RRT decision – where applicant failed to file amended application – whether applicant denied natural justice as a result of not receiving legal advice under the Minister’s scheme – whether adjournment should be granted to allow advice to be provided – where applicant claims to have a well-founded fear of persecution on the basis of his political opinion – where originally he had also claimed persecution on basis of homosexuality but later withdrew this ground – where Tribunal reached adverse conclusion about the applicant’s credibility – where applicant failed to particularise his claims – where applicant declined to address the court and relied instead on written submissions – whether Tribunal had pre-determined view of applicant’s case which was incapable of alteration – whether the findings and reasons of the Tribunal evidences jurisdictional error or denial of procedural fairness. |
Abebe v The Commonwealth [1999] 197 CLR 510
Waterford v The Commonwealth [1987] 163 CLR 54
MIMA v Jia [2001] 205 CLR 507
Muin v The Refugee Review Tribunal; Lie v The Refugee Review Tribunal [2002] HCA 30
S157/2003 v The Commonwealth [2003] HCA 2
| Applicant: | SZANI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 748 of 2003 |
| Delivered on: | 4 June 2004 |
| Delivered at: | Sydney |
| Hearing date: | 4 June 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms R Francois |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant pay the respondent's costs assessed in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 748 of 2003
| SZANI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a national of Bangladesh. He arrived in Australia on 10 May 2001. On 22 June 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.
On 30 April 2002 a delegate of the Minister refused to grant a protection visa and on 27 May 2002 the applicant sought review of that decision by the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal on 9 April 2003. The Tribunal made its decision on that day but provided written reasons on or about 15 April 2003. The Tribunal determined to affirm the decision of the delegate.
On 5 May 2003 the applicant filed an application in this court seeking review of the decision of the Tribunal. The matter received a directions hearing on 2 July 2003. The applicant was ordered to file and serve an amended application on or before 30 October 2003 and the matter was listed for hearing today, almost one year later. The applicant did not comply with those orders.
When the matter came before me for hearing today the applicant informed me that he had not received any legal advice and that he wished to take legal advice before he could present his case properly. An investigation of the file and a discussion with the respondent's solicitors indicates that although the applicant was scheduled to receive advice under the Minister's scheme in all probability he did not. This is unfortunate but it is not fatal.
Advice under the Minister's scheme is a privilege, not a right. There is no denial of natural justice if the applicant does not receive such advice. The purpose of such advice is to attempt to explain to an applicant whether or not he has an arguable case. Furthermore, the respondent's solicitors wrote to the applicant on 26 May 2003 providing him with details of a number of organisations to whom he could apply for legal advice. The letter clearly stated that the Minister would resist any application for an adjournment in order to seek such advice at the hearing. The applicant had not taken advantage of that information but he had approached a community friend who had prepared for him an outline of submissions that was filed with the court on 31 May 2004.
I advised the applicant that I was not disposed to grant him an adjournment. I felt that he had almost a year in which to seek advice and that his failure to do so should not provide him with an opportunity for a further adjournment. I informed him that I was happy to accept the outline of submissions as his submissions in the matter.
Ms Francois, who appears for the Minister, also addressed me. She indicated that there would be no utility in providing the applicant with an adjournment to seek legal advice because the Tribunal decision was not one in which jurisdictional error could be readily identified.
When I informed the applicant that I was not prepared to grant him an adjournment he told me that he did not have anything to say in relation to his case other than what was written in the outline of submissions, and although he was offered the opportunity of having Ms Francois make an oral submission and then responding to it, he declined. This decision is made therefore on the basis of the representations made by both parties in writing.
The applicant claimed to have a well-founded fear of persecution for the Convention reasons of political opinion and membership of a particular social group. His political opinion arose out of his membership of the Bangladesh National Party and the particular social group to which he belonged was that of homosexuals in Bangladesh.
The applicant claimed that he had joined the BNP and was elected to one of its district committees in the same month around May 1997. He had previously been a member of the Freedom Party. He claimed that attempts were made on his life by local Awami League agents and that he was also the target of attacks from disaffected members of the Freedom Party. He claimed that the General Secretary who had got him into the District Committee was murdered in the middle of 2000. Although he first claimed to be in the country when that occurred, he later agreed that he had been abroad on one of a number of absences from Bangladesh which were the subject of considerable discussion with the Tribunal. He told the Tribunal that even though he was not in the country he was still a member of the Committee.
Between [CB 157] - [CB 160], the Tribunal documents the applicant's peregrinations between Bangladesh and other countries in the region. At [CB 160] the Tribunal says:
“ The chronology of journeys made by the applicant appear to the Tribunal to be consistent with one thing: the career of an individual for whom commercial business, over the years, started to improve. It did not appear to be consistent with much else; it certainly did not appear at all consistent with what the applicant was claiming: that he had to get out of Bangladesh in order to save his life from violent and repressive political opponents.”
At [CB 161] the Tribunal notes that the applicant then introduced a new claim, that of having travelled on a false passport in respect of which the Tribunal stated:
“Firstly, he could not explain in detail how he became the bearer of a fraudulent passport or by what process it was contrived. Secondly, he said that he had the same surname in his alias which means that it was not much of an alias at all. Thirdly, after the Tribunal put it to him that all officials who scrutinise his passport over the years must have been able to link its number to their system, or else they would have impounded it, he said he bribed them, which was another new claim. Then he said that his current passport had the same number as his previous passport and that this is why there were no hiccups at airports etc, however, there should have been no need to bribe anyone if that had been the case. It struck the Tribunal as being utterly implausible that the applicant would have been repeatedly passed off as a different individual if his current passport number showed up as belonging to someone else, even if the surname was the same. If the applicant were being pursued by the authorities, or on behalf of the AL, then the eventual cross-reference to his original name should have exposed him. It is odd that this never happened in any of the dozen or more times he surrendered his passport to Bangladeshi officials since 1998.”
The Tribunal then continues:
“The applicant also told the Tribunal that his previous passport was lost. This and the claim about the previous passport having the same number as the current one are explicitly negated by stamped and validated information found inside the passport itself. On page 4 of his passport, the authorities have certified that the applicant's previous passport had a different number rather than the same one and to their satisfaction it was not lost but merely damaged. The applicant had no satisfactory explanation of the assertions made in the endorsement on page 4 of his passport.”
The applicant then made certain allegations concerning false cases which had been lodged against him. The Tribunal considered the evidence relating to those assertions to be vague, contradictory and persuasive. The Tribunal then dealt, at [CB 163] – [165] with the applicant's claim about membership of the social group of homosexuals in Bangladesh. The applicant had withdrawn his claim on this basis, advising the Tribunal that he was no longer "gay". The Tribunal considered this concession to be somewhat unrealistic [CB 164]:
“The Tribunal pointed out to the applicant that it did not make sense, in all these circumstances, that he was no longer afraid of the fundamentalists persecuting him for being homosexual. In reply, the applicant said that he does still apprehend that he could be persecuted by aggressive Islamists over their perception of his being a homosexual. The Tribunal's then said that it could not understand why the applicant wanted to withdraw his “homosexuality” claims.”
The Tribunal's findings and reasons commence at [CB 165] with the following:
“The evidence before the Tribunal supported the impression that his claims about homosexuality started and ended as ill-considered and unresearched fictions. It therefore became impossible for the Tribunal, in the course of considering the present case, to avoid the impression that the applicant was capable of playing with any fact, if he so desired, in order to secure residence in Australia.”
The Tribunal went on to express its disbelief at the claims made by the applicant in respect of his political opinions and the possibility of persecution for them. It noted that in any event the BNP was now in power in Bangladesh and in those circumstances it was likely that any false charges that may have been laid against the applicant could be disposed of.
In his application the applicant cites six grounds for seeking review of the decision. The first is: "The Tribunal did not take into account the conviction of court case against me in Bangladesh although Convention based reason". There was no evidence provided to the Tribunal that the applicant had been convicted of anything in Bangladesh only that some false charges had been laid against him. The Tribunal considered the veracity of his evidence concerning the false charges and the likely effect of them even if that evidence was considered to be true. It cannot therefore be said that the court cases against the applicant were not taken into consideration by the Tribunal.
The second ground is: "The Tribunal made its decision in bad faith". Particulars of fraud or bad faith, if alleged, are required under order 54B rule 2 of the Federal Court Rules to be particularised. This did not happen. In his outline of submissions the applicant says: "On the evidence as a whole the findings of the Tribunal member as to the following matters demonstrated actual bias: The Tribunal does not accept that I was persecuted in my previous country of residence. The Tribunal also rejects my claims because my written evidence was inconsistent in relation to major issues".
Neither of these matters is an indicator of actual bias. It is an indicator that the applicant seeks from this court a review of the facts and a different decision upon those facts which, of course, is outside its jurisdiction. Later at page 3 of the submissions he says: "Bad faith is very easy to find in the RRT decision. This means that the decision-maker got the facts wrong, took into account irrelevant matter, did not take certain matters into consideration and the decision-maker did not make an honest attempt to come to the right decision, also the decision-maker intentionally made a wrong decision, in other words acted in bad faith".
There is no error of law in making a wrong finding of fact, Abebe v The Commonwealth [1999] 197 CLR 510; Waterford v The Commonwealth [1987] 163 CLR 54 at 77 per Brennan J. Unfortunately, the applicant has not illuminated his submission that the Tribunal took into account irrelevant matters and did not take certain matters into consideration. Without knowing what these matters are it is difficult to pass judgment upon them. Likewise, there are no particulars of the manner in which the decision-maker failed to make an honest attempt to come to the right decision or that he intentionally made a wrong decision. In MIMA v Jia [2001] 205 CLR 507 at 531 it was said:
“ A party alleging actual bias on a decision-maker's part carries a heavy onus. The allegation must be distinctly made and clearly proved.”
It was also explained in Jia that bias in the form of prejudgment occurs where the decision-maker is so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented. It is fair to say that a reading of the Tribunal's decision in this case clearly indicates that the Tribunal only moved to the conclusions which it did after serious questioning of the applicant upon matters that had concerned it.
Although it is not clear what the wrong decision the applicant refers to actually is, one can guess that it is probably the decision that the applicant is not entitled to the protection of Australia. That decision is not made wrong merely by being against the interests of the applicant.
The fourth ground was that, "The Tribunal denied the evidentiary proof of my claim". I am in two minds whether to say that this phraseology is incapable of proper comprehension or to have a guess at what the applicant may have meant by it. The problem about undertaking the latter is that I may be wrong and any views that I express would at best be otiose. I will therefore pass over that ground.
The fifth ground is, "The Tribunal's decision did not reflect the material facts of my claim". What the Tribunal's decision did do was to consider all the facts of the applicant's claim, indicate how they were discussed with him and set out the findings which the Tribunal made upon those facts and discussions. This seems to me to be the very job that the Tribunal was requested to do by the legislation and I can see no jurisdictional error in the manner in which it carried it out.
The sixth ground is, "The Tribunal has given a decision which was preset in the back of its mind". This is, of course, no more than a recasting of the allegation of bad faith with which I have previously dealt. I am not satisfied that there was any suggestion that the Tribunal acted in this manner at all.
The seventh ground is, "The Tribunal mixed up many facts with this decision which affected the decision". Regrettably, the applicant has not sought to provide the court with any assistance as to which facts he is referring to but, as I have said before, to the extent that this indicates that the Tribunal made a wrong finding of fact it does not constitute a jurisdictional error.
Finally, the applicant alleges that "The Tribunal concentrated in particular fact, while ignoring many other facts in this condition". Again, this ground borders on the incomprehensible and has not been particularised in any way. I do not believe that it requires comment save to say that this is not the first time that I have come across these grounds. One can only hope that their author reads the judgments of this court and of the Federal Court of Australia and will endeavour in future to amend them so that they can be properly understood and argued.
In all the circumstances I can find nothing within the decision of this Tribunal that would give grounds for review. I appreciate that the applicant is self represented and that he has not even had the advantage of the Minister's scheme. For that reason I looked carefully through the green book to see whether there were any matters which a reasonably instructed legal practitioner might have found that could constitute error. I have been unable to do so.
The application is dismissed. I order that the applicant pay the respondent's costs which I assess in the sum of $4,750 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
Following my giving of this judgment I was advised by Ms Francois that I appeared to have ignored the submissions which raised a claim based upon the decision of the High Court in Muin v The Refugee Review Tribunal; Lie v The Refugee Review Tribunal [2002] HCA 30. This claim was not raised in the original application. The problem with which I'm faced here is that once again there are no particulars provided of the manner in which this case was similar to those cases. In the absence of those particulars I do not believe it is appropriate for the court to try and guess what breach of the rules adumbrated in those judgments is alleged to have occurred.
Finally, in those same submissions the applicant makes a claim of a failure to provide him with procedural fairness. The decisions in Muin and Lie are really decisions concerning procedural fairness. As is the decision in plaintiff S157/2003 v The Commonwealth [2003] HCA 2 which the applicant refers to on page three of his submissions. It would have been much easier to deal with this point if the applicant had indicated in what manner the Tribunal had treated him unfairly. One suspects it was in finding against him. But as I have previously said, to make reflections on what the applicant may or may not have meant would, I believe, lead me into error. I do not propose to make any further comment about this submission other than it has not been particularised and is therefore impossible to deal with.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 11 June 2004
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