SZAPC v Minister for Immigration - [2007] FMCA 819

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAPC & ORS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 819

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming religious and political persecution in Bangladesh – principal applicant not believed in relation to the claim based on religion – no Convention related political claim – whether the Tribunal failed to consider corroborative evidence, breached s.424A of the Migration Act 1958 (Cth) or whether there is an apprehension of bias considered – no reviewable error found – application dismissed.

Migration Act 1958 (Cth), ss.424A, 422B

Minister for Immigraiton v Lay Lat [2006] FCAFC 61; 151 FCR 214
Minister for Immigration v WAKK [2005] FCAFC 225
Paul v Minister for Immigration (2001) 113 FCR 369
Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225
Re Minister for Immigration; Ex Parte S20/2002 (2003) 198 ALR 59
SBBS v Minister for Immigration (2002) 194 ALR 749
SZEPZ v Minister for Immigration [2006] FCAFC 107
VFAB v Minister for Immigration [2003] FCA 872
WAEE v Minister for Immigration [2003] FCAFC 184

First Applicant:

SZAPC

Second Applicant:

SZAPM

Third Applicant:

SZAPN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3884 of 2006

Judgment of:

Driver FM

Hearing date:

30 May 2007

Delivered at:

Sydney

Delivered on:

30 May 2007

REPRESENTATION

The First and Second Applicants appeared in person

Counsel for the Respondents:

Ms L Clegg

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3884 of 2006

SZAPC

First Applicant

SZAPM

Second Applicant

SZAPN

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

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 Tribunal”). The decision was handed down on 23 November 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicants protection visas. There are three applicants, a mother and her two sons. They are all adults.

A separate application by the first applicant’s husband was dealt with separately by the Tribunal. The background to the present applicants’ claims and the Tribunal decision on them are conveniently summarised in the Minister’s written submissions filed on 24 May 2007. I adopt with necessary amendments for the purposes of this judgment as background paragraphs 2 through to 12 of those written submissions:
The applicants, citizens of Bangladesh, arrived in Australia on 6 May 1996.[1]
[1] CB 19
It was not until 28 December 2001 that the then Department of Immigration and Multicultural Affairs (Department) received applications for protection visas from the applicants.[2]
[2] CB 7
On 30 September 2002 a delegate of the Minister refused the applications for protection visas. [3]
[3] CB 45
On 23 October 2002 the Tribunal received an application for review of the delegate’s decision.[4] The matter has twice been remitted by a Court to the Tribunal for consideration of the applicants’ claims according to law.[5]
[4] CB 62
[5] CB 340, 506
The decision which is the subject of the present application for judicial review was made by the Tribunal 8 November 2006.[6]
[6] CB 505
The applicants filed the application for judicial review in this Court on 22 December 2006. An amended application was filed on 5 April 2007.
The applicants are a mother and two sons. The applicant children did not assert any separate claims. Thus, a reference to the applicant is a reference to the primary applicant, the first applicant.
Applicant’s claims
The applicant set out some claims in an attachment to her protection visa application: see court book (CB) 2-6. It is evident from the decision of the Tribunal that the applicant supplemented these claims with further oral claims at the various Tribunal hearings she attended.
The Tribunal’s detailed summary of those claims sets out the procedural history of this matter. In summary, the applicant claimed:
a)she and her family are Ahmadiyya Muslims;
b)she grew up in a traditional Sunni muslim district in Bangladesh;
c)she became an ‘active priest’ of the Ahmadiyya Muslims and developed followers who regularly attended her religious meetings;
d)she began to face problems in the 1980s as a result of anti Ahmadiyya Muslim propaganda. She began to be attacked and in 1992 she was attacked with a sharp weapon by local fanatics. Her followers were tortured;
e)from 1992 she faced serious death threats and between 1992 and 1996 she was forced to go underground;
f)she has even faced threats from some Bangladeshis in Sydney who knew of her arrival;
g)if she is forced to go back to her country she will be killed and her children will become orphans.
The Tribunal’s decision
The Tribunal extracted the Tribunal’s summary of evidence given by the applicant at the first hearing: CB 513.9 - 515.2. The Tribunal also noted that the variously constituted Tribunals had written to the applicant inviting her to comment upon information received by the Tribunals from the Ahmadiyya Muslim Association of Australia that the applicant’s claims to be an Ahmadiyya Muslim were not true: CB 515.2 (see CB 339), 518.5 (see CB 442). On both occasions the applicant responded to these invitations.[7]
[7] It is noted that there is no issue with respect to any reliance by the Tribunal upon invitations and information provided by the applicant pursuant to s 424A before the previously constituted Tribunals: SZEPZ v Minister for Immigration [2006] FCAFC 107
The Tribunal:
a)noted it had considered the independent country information provided by the applicant which indicated that Ahmadiyya Muslims experienced difficulties in Bangladesh;[8]
[8] CB 510.6
b)accepted the applicant and her sons were Bangladeshi nationals;
c)noted it had considered all of the evidence provided by the applicant and her witnesses to the three Tribunals to date;[9]
d)was not satisfied that the applicant’s demonstrated knowledge of the practices and beliefs of Ahmadiyya Muslims was different to any other mainstream Muslims in Bangladesh;[10]
e)did not attribute any weight to statements provided by the applicant’s ‘friends’ as the applicant was the ultimate source of the content of the statements and the Tribunal found her to be unreliable;[11]
f)noted there were many inconsistencies in the applicant’s evidence before the Tribunal and also between the presently constituted Tribunal and a previously constituted Tribunal;[12]
g)found that the applicant was not an Ahmadiyya Muslim;
h)found that the previous claim that the applicant feared harm on account of her husband’s political opinions (a matter which was focused upon at the second hearing) was not Convention related and also dismissed it as ‘unsubstantiated, inconsistent and ultimately lacking in credibility’ (and proceeded to provide reasons for its finding);[13]
i)noted that the assessment of the applicant’s claims had not in any way been influenced by the reported outcome of applications in the husband’s applications;
j)concluded that the applicant was simply not a witness of truth, noting that the overwhelming bulk of her claims were inconsistent and unsupported;[14]
k)concluded that the applicant does not have a well founded fear of Convention related persecution in Bangladesh.
[9] CB 520.8
[10] CB 520.9
[11] There is no difficulty with the Tribunal adopting such an approach: Minister for Immigration v WAKK [2005] FCAFC 225 at [70]; Re Minister for Immigration: Ex Parte S20/2002 (2003) 198 ALR 59 at [12] per Gleeson CJ
[12] CB 521.1
[13] CB 521.4
[14] CB 521.7
These proceedings began with a show cause application filed on 22 December 2006. That application asserted actual notification of the Tribunal decision on 27 November 2006. On that basis I find that the application was filed within time.
The applicants now rely upon an amended application filed on 5 April 2007. That application is supported by an affidavit filed on 22 May 2007 which annexes a partial transcript of a hearing conducted by the Tribunal on 22 September 2006. The Minister raised no objection to the receipt of the transcript as evidence with the qualification that the transcript is incomplete.
A court book was filed on 6 February 2007 and a supplementary court book was filed on 24 April 2007. I received both of those as evidence. Both parties also took the opportunity to file written submissions, those of the applicant being filed on 22 May 2007 and those of the Minister being filed on 24 May 2007. The first and second applicants also appeared today and made oral submissions as did Ms Clegg, for the Minister.
The amended application asserts three jurisdictional errors made by the Tribunal. First, the applicants contend that the Tribunal fell into error by failing to consider evidence presented by the applicants being a declaration by a relative of the applicants. Secondly, the applicants contend that the Tribunal failed to comply with its obligations under s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to information about the first applicant’s husband’s application which was dealt with by a different Tribunal. Thirdly, the applicants contend that they were denied procedural fairness in that there was a reasonable apprehension that the presiding member was biased. The particulars are that during the hearing, the presiding member overbore the first applicant and stopped her from giving evidence to support her claim of persecution on the basis of her husband’s political opinion.
The Minister contends that there is no substance to any of these grounds of review. The Minister’s submissions in relation to ground 1 are set out in paragraphs 14 to 17 of the written outline of submissions as follows:
The first ground alleges the Tribunal failed to give weight to the ‘declaration’ provided to the Tribunal on 19 September 2006, which is alleged to have corroborated the applicant’s claim to be a Ahmadiyya Muslim: see CB 458.
The Tribunal found that the applicant was not a witness of truth and considered her claims highly unreliable. This finding was made based upon an assessment of all the evidence given by the applicant. It gave no weight to ‘the statements of the applicant’s friends who say she told them she was an Ahmadiyya’: CB 520.9. Further the Tribunal noted it had considered all of the evidence provided by the applicant: CB 520.8. These comments can be taken as including a reference to the declaration dated 14 September 2006 made by the applicant’s cousin in Bangladesh.
It was entirely open to the Tribunal to conclude that the ‘well had been poisoned’ by the applicant’s own unsatisfactory evidence, so that it was in a position to discard other corroborative evidence provided by her on that basis: Re Minister for Immigration: Ex Parte S20/2002 (2003) 198 ALR 59 at [12] per Gleeson CJ. It is clear that this is precisely the approach taken by the Tribunal in this case.
Further, it is trite to submit that it is not necessary for the Tribunal to refer to and itemise every piece of evidence before it.[15] That is particularly so in a case such as this where the Tribunal was provided with a significant quantity of documents by the applicant during the review period.
[15] Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [46]; see also Paul v Minister for Immigration (2001) 113 FCR 369 at [79].
The evidence the subject of this ground is a declaration from a person described as a cousin of the first application. The declaration is reproduced on page 458 of the court book. In my view, it may go too far to say that the evidence was rejected by the Tribunal on the basis that the applicant’s credibility had been utterly destroyed. This is not a case for the Tribunal declining to consider altogether corroborative evidence presented by an applicant. The Tribunal said in relation to this evidence at page 520 of the court book:
The Tribunal gives no weight to the statements of the Applicant’s friends who say that she told them that she was an Ahmadiyya. The ultimate source of the information in these documents is the Applicant herself and the Tribunal considers her an unreliable one. The Tribunal gives weight to the many inconsistencies and gaps in the Applicant’s evidence, in particular the evidence provided to the present Tribunal and the Tribunal in RRT case …. None of the evidence provided to the presently-constituted Tribunal helps add any weight to the Applicant’s claims about ever having been an Ahmadiyya Muslim, let alone an Ahmadiyya preacher.
The Tribunal went on to reject the applicant’s claims to have been an Ahmadiyya Muslim. That statement by the Tribunal reflects an analysis of corroborative evidence presented by the applicant, including the document reproduced on page 458 of the court book. On its face that declaration was virtually worthless. Relevantly, the declarant merely stated having observed the first applicant talking about her Ahmadi faith. In those terms, the declaration had no more value than the applicant’s own evidence which was rejected. In my view, the Tribunal was entitled to give no weight to the declaration on page 458 of the court book on the basis of its analysis of it, whether or not the applicant’s credibility was utterly destroyed.
In relation to the second ground, the Minister’s contentions are set out in paragraphs 18 to 20 of the written submissions as follows:
The second ground alleges an error of law by failure to comply with s.424A in connection with the evidence given by the applicant’s husband in separate protection visa application proceedings.
Section 422B excludes the requirements of common law natural justice: Minister for Immigration v Lay Lat [2006] FCAFC 61; 151 FCR 214. The only remaining procedural fairness obligation is that contained in s.424A.
This ground has no merit because s.424A did not apply to the information. That is because the Tribunal specifically noted that it had not taken into account and ‘was not in any way influenced by the reported outcomes of the applications of the applicant’s husband’: CB 521.5. Therefore, there is no sound basis for suggesting that such information was part of the reason for deciding the review adversely to the applicant for the purposes of invoking s.424A(1) obligations.[16]
[16] See also SZEPZ v Minister for Immigration [2006] FCAFC 107 in connection with any reliance on s.424A information by previous Tribunals.
I accept that the Tribunal’s disclosure obligations arise from s.424A of the Migration Act rather than from the general law in the light of the operation of s.422B of the Migration Act. In any event, it is a breach of s.424A which is alleged. As the Minister’s submissions note, the Tribunal in its decision stated that it had not relied upon the separate Tribunal decision in relation to the application by the first applicant’s husband. The presiding member said on page 521 of the court book:
The Tribunal’s assessment of this application is not in any way influenced by the reported outcomes of the applications by the Applicant’s husband. The Applicant had an opportunity to argue why her husband’s claims might still have relevance to her own case, but she failed to provide consistent, plausible, reliable evidence in the matter.
Further, in his description of what occurred at the Tribunal hearing, the presiding member recites discussion with the applicant about her husband’s claims and how they related to her own claims. It is apparent from a fair reading of the Tribunal decision as a whole that the Tribunal considered the applicant’s claim that she was at risk of harm in Bangladesh in part because of the political opinion of her husband and rejected it based upon the information presented by the applicant to the Tribunal about her husband’s political opinions and his experiences at the Bangladesh High Commission in Australia. Importantly, the Tribunal found that whatever harm may have become or befallen the applicant’s husband was not Convention related and that there was not any real risk that the applicant would suffer harm as a result.
The partial transcript at page 7 at about line 52 records the presiding member saying at the hearing that he was entitled to agree with the findings of the Tribunal which dealt with the first applicant’s husband’s case. If, in his decision, the presiding member had followed that approach, it would certainly have been arguable that the Tribunal may have failed to meet an obligation under s.424A to invite comment on discloseable information. However, the Tribunal in its reasons has expressly stated that it did not follow that approach. Even though the transcript at page 7 provides some support for the proposition that the presiding member was then contemplating that approach, there is nothing to cause me to believe that the Tribunal’s statement that it did not ultimately follow that approach was anything other than an honest statement of what occurred. A Tribunal decision may be based on different factors than what are discussed at a Tribunal hearing. Further, the transcript before the Court is incomplete and I do not know what may have been discussed with the applicant about her husband’s claims at a later stage of the hearing. I reject the second ground of review.
The Minister’s contentions in relation to the third ground are reproduced in paragraphs 21 to 24 of the written as follows:
The third ground of review alleges a failure to provide ‘natural justice in circumstances where what was said and done at the hearing it appears the decision was affected by apprehended bias.
Neither a complaint about natural justice nor apprehended bias has any merit on the facts of this case.
As stated above, s.422B applied to this decision, the application for a review of the delegate’s decision having been made on 23 October 2002.[17]
The applicant has just filed a partial transcript. There is nothing in that transcript which could from the basis for an allegation of apprehended bias.[18] There is nothing on the face of the decision or the transcript of hearing to suggest that a fair minded lay observer would believe that the Tribunal had not properly and fairly applied itself to its task.[19]
[17] Section 422B excludes the requirements of common law natural justice: Minister for Immigration v Lay Lat [2006] FCAFC 61; 151 FCR 214.
[18] SBBS v Minister for Immigration (2002) 194 ALR 749 at [56] – [59]. see VFAB v Minister for Immigration [2003] FCA 872 at [81] per Kenny J.
[19] Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225, at 230
The applicants’ assert that the first applicant was overborne and prevented from providing evidence about her husband’s claims. The only support for that assertion is on page 7 of the transcript at about line 42. At that point the first applicant appears to have been cut short by the presiding member in discussing her husband’s claims. The presiding member appears to have been looking at the earlier Tribunal decision on the applicant’s husband’s claims on a computer screen and noted that the applicant had been reciting her husband’s claims to the presiding member. The presiding member then said:
That case is dead. Okay, now, that is a dead matter, it is filed away and finished. It’s finalised?

Taken in isolation, that statement may indicate a reluctance by the Tribunal to consider the applicant’s claim based upon her husband’s claims. Again, however, the transcript available to the Court is incomplete and in the circumstances I could not be satisfied that that is where the matter rested. I find that the applicant has failed to discharge her onus of proof of a reasonable apprehension of bias on the part of the presiding member.
It is apparent from the Tribunal decision that the applicants failed essentially because the first applicant was disbelieved. The Tribunal was not willing to accept that there was any truth in the applicant’s claims to have been an Ahmadiyya preacher or even an Ahmadiyya follower. The applicant’s other claim, based upon her husband’s asserted political opinion, was rejected for the reasons given by the Tribunal, in particular the lack of any Convention nexus. The findings made by the Tribunal were open to it on the material before it.
I find that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
The application having been dismissed, costs should follow the event. Scale costs in this instance would be $5,000. The Minister seeks an order for costs fixed in the sum of $4,000. I accept that costs of not less than that amount have been reasonably and properly incurred on behalf of the Minister on a party and party basis. The first applicant was concerned about the dismissal of her application but did not make any submissions on costs. Neither did the second applicant. It appears that only the first applicant has signed the amended application. Both she and the second applicant appeared and made submissions in support of the application. The third applicant has not appeared. I am told he is only 19 years of age. In the circumstances, I do not think I should make a costs order against the third applicant. I will order that the first and second applicants pay the first respondent’s costs and disbursements of and incidental to the application which I fix in the sum of $4,000.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 5 June 2007