SZAPT v Minister for Immigration - [2004] FMCA 315

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAPT v MINISTER FOR IMMIGRATION

[2004] FMCA 315

MIGRATION – Review of RRT decision – where applicant claims to have well-founded fear of persecution for Convention ground of political opinion – where applicant not found to be a reliable witness given inconsistencies in his oral and written evidence – whether there was actual or imputed bias by the Tribunal – where applicant alleged that he did not receive pro bono legal advice as promised under the Minister’s scheme – whether it is appropriate in the circumstances to grant an adjournment to allow applicant to obtain this advice.

SBBS v MIMIA [2002] FCAFC 361
SBAU v MIMIA [2002] FCA 1076
SAAG v MIMIA [2002] FCA 547
SCAA v MIMIA [2002] FCA 668
VFAB v MIMIA [2003] FCA 872
Re RRT;Ex parte H (2001) 179 ALR 425
Re MIMA; Ex parteDurairajasingham [2000] 168 ALR 407
NAOL v The Minister [2003] FCAFC 243

Applicant:

SZAPT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 842 of 2003

Delivered on:

6 May 2004

Delivered at:

Sydney

Hearing date:

6 May 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in Person

Counsel for the Respondent:

Mr G Johnson

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to 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 842 of 2004

SZAPT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL INDIGENOUS &AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh. He arrived in Australia on

1 September 2001. On 5 September 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 18 December 2001, a delegate of the Minister refused to grant a protection visa and on

21 January 2002, the applicant applied to the Refugee Review Tribunal for a review of that decision. The Tribunal advised the applicant that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone.
The Tribunal invited the applicant to a hearing on 13 April 2003. The applicant agreed to attend the hearing and did so. The Tribunal provided the applicant with details of its reasons for decision by letter dated 17 April 2003. The applicant claimed to have a well-founded fear of persecution for the convention reason of political opinion. He told the Tribunal that he was a well-known activist in the BNP student wing, known as the Chatra Dahl. He had been involved with this organisation at his college which was in a town some distance from Dhaka.
He claimed that the Awami League conspired against him, that they had placed his life in danger, that they shot at him and that cases were filed against him. In his original application he had indicated that he had lived in the same house in his town from the date of his birth until the date upon which he left Bangladesh but at the Tribunal hearing he indicated that he had lived in Dhaka from the beginning of 2001. The applicant also indicated that he had been involved with the Taslima Nasreen Supporters Club from February 2001 and that had incurred the wrath of some fundamentalists.
The applicant told the Tribunal that he was an artist and appeared in a group of musical performers. He told the Tribunal that he had appeared with that group at a New Year celebration in Dhaka on 14 April 2001 when some explosions occurred and he had been injured. The applicant told the Tribunal about a case arising out of an incident that occurred on 1 June 2001. This was when he said he was shot at. The applicant claimed that if he returned to Bangladesh, three lots of people - the Awami League leaders, the BNP leaders and fundamentalists – would want to kill him. He also told the Tribunal that he had left Bangladesh on his own passport without any difficulty.
The Tribunal questioned the applicant about his submissions and about the inconsistencies between the matters raised with the Tribunal and his original statement. The Tribunal came to the view that the original statement was the best indicator of a truthful application. The Tribunal was sceptical about many of the applicant's claims. It did not believe any false cases were filed against him and discussed with the applicant the problems of documentation emanating from Bangladesh. But it noted that even if the documents were genuine, it had put to the applicant that the independent country information, which it preferred to the applicant's evidence, indicated that at the higher level of court these type of charges were generally thrown out.
The Tribunal did not accept that the applicant was a supporter of the feminist Taslima Nasreen. It considered that this claim was inconsistent with the other claims made by the applicant who appeared to be a supporter of a conservative organisation in the BNP. The Tribunal gave three other reasons why it did not accept this evidence. The Tribunal criticised the applicant's demeanour in the witness box which led it to conclusions critical of him on the question of his credibility.
At [CB 111] the Tribunal says:
“It is clear from the above that I do not believe that the applicant ever had a profile in any of his claimed fields of endeavour which would have attracted Convention related persecution to him outside of Dhaka or Lakshmipur districts. That profile would now be considerably lower in view of his 20 months absence.
Apart from the matters I have dealt with above, there are three other matters which indicate that the applicant did not fear persecution in Bangladesh: He obtained a passport in his own name without difficulty in January 2001 but did not leave Bangladesh for Australia until almost eight months later, which shows that he was not in fear of his life.
I was not afraid of detection and was in no hurry to leave even after the supposed threat of 14 April 2001 bomb blast.
He was at one of two addresses except for a very brief period and he did not leave Bangladesh for four and a half months, which shows that he was in no hurry to escape supposed danger. When he left Bangladesh he left legally and by using the passport in his own name which again shows he did not fear detection.”
The applicant provided the court with an outline of his submissions. He argued that the Tribunal had shown actual bias. He was concerned that in the standard letter which came from the Tribunal asking him to attend a hearing, it requested that he bring with him his bank statements. I am sure there is some bureaucratic reason for this, although one escapes me. Perhaps it has to do with whether or not the applicant should be charged with a Tribunal hearing fee. In any event, it seemed to upset the applicant. He did not consider it a relevant document for purposes of considering his application for asylum.
However, the fact that his bank statements for the previous 12 months were requested does not indicate that the presiding member’s intention to review his claim was, as he suggested, made in bad faith. Before me today, the applicant submitted that the first thing that the Tribunal did when he arrived was to ask him for his bank statements which confused him. He said that the Tribunal was reluctant to believe anything he said and kept on telling him that everything he said was false. He suggested that because the Tribunal gave its decision immediately, it was predetermined, that the Tribunal had already made up its mind.
He felt that the Tribunal should have investigated what he had told it before coming to a conclusion. He did not believe that the Tribunal gave sufficient consideration to his oral evidence, nor did it give him an opportunity to explain himself. He felt upset and scared.
I have not had the benefit of listening to the tape which the applicant did not bring with him today but I have read carefully the reasons for decision put out by the Tribunal. It is quite obvious from that document that the Tribunal did question the applicant carefully and did put to him those matters which concerned it about his credibility.
Perhaps the best assessment of what constitutes a lack of bona fides on the part of the Tribunal is contained in the judgment of the full court in SBBS v MIMIA [2002] FCAFC 361. The full bench set out nine matters of importance and it is not necessary to go through them all. They repeat the oft quoted remarks that an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker and is therefore an allegation not likely to be made and must be clearly alleged and proved.
I also note that the circumstances in which a court will find an administrative decision maker has not acted in good faith are rare and extreme and that this is especially so where all the applicant relies upon are the written reasons for the decision under review: SBAU v MIMIA [2002] FCA 1076 at [28] citing SAAG v MIMIA [2002] FCA 547 per Mansfield J at [35] and SCAA v MIMIA [2002] FCA 668 at [38].
A further consideration of what constitutes both actual and apprehended bias was provided in VFAB v MIMIA [2003] FCA 872 where the court, quoting from Re RRT;Ex parte H (2001) 179 ALR 425 at 435 said:
“When, as in the present case, credibility is an issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously.”
I am not satisfied that the applicant has made out a case of either actual or apprehended bias in respect of this decision.
Apart from a reference to a lack of legal advice which I will discuss later, the balance of the applicant's submissions appear to deal either with matters of fact or to be a rehearsal of submissions concerning the effect of a privative clause. The applicant did raise in his submissions the fact that he had not been provided with legal assistance under the Minister's scheme although it had been promised to him. This was a matter of some concern, not because the applicant is entitled to such assistance, but because the papers in the court file indicated that the applicant had received such assistance and a charge had been made for it.
I therefore asked the applicant to go into the witness box to give sworn evidence about this matter. I explained to him how serious this was and gave him an opportunity to leave the matter and not go into the witness box if he wished. He determined to do so. In response to questions from me he indicated that he had not received any telephone calls or other communication from the barrister chosen. He told me that he had not received any advice from that barrister. He told me that he had been at the address which he gave to the court and which was being used at all relevant times in the month of August, when the advice was meant to have been delivered.
The applicant was then questioned by Mr Johnson. Mr Johnson asked him about a copy of the green book, which had been sent to him in June 2003 to the address which he claimed that he was at. The applicant said that he did not receive it and Mr Johnson showed him an envelope, which is now Exhibit 1, indicating that the document had been returned to sender. The applicant could provide no reason why this might be so. Mr Johnson cross-examined the applicant upon why he had not made any complaint to the court that his promised adviser had not arrived. The applicant said that he was hoping that he would arrive, until very shortly before the hearing when, more in answer to a question from me, he had indicated that he had approached a legal advice centre. Certainly there is a complaint made in his outline of the submissions.
Following on Mr Johnson's cross-examination, a letter which I had seen in the file appeared to me to become more relevant. This was a letter from the court to the applicant, telling him that the first chosen adviser was unable to assist him and referring him to a second adviser. I asked the applicant whether he had received this letter but he told me that he had not. The letter was addressed to the address previously noted. That document has become Exhibit 2.
I had previously referred to the account rendered by the barrister who claimed that he had given the applicant legal advice. That document has become Exhibit 3. I asked Mr Johnson and the applicant whether I should adjourn the matter. Mr Johnson strongly opposed such an adjournment. He made it clear that in his view there was no real prospect of success in the applicant's claim, whoever represented him. He made it clear that there was no entitlement to legal advice and that the Minister's scheme was only something provided ex gratia by the Government.
Mr Johnson reminded the court that the applicant had an opportunity to present his case to this court and had done so and that he had had a long time to have saved up sufficient funds to be able to obtain legal advice if that was what he wanted. Mr Johnson pointed out the improbability that three or four documents sent to the applicant at an address which he admitted he resided at would not be received. The applicant was really unable to answer the submissions. He explained to me that if he did receive legal advice he would be better able to present his case. That, of course, assumes the legal advice was favourable.
He then requested me to give further consideration to his application so that I could send it back to the Tribunal where it might be reheard and he would have another opportunity to persuade a decision-maker of the genuineness of his case. I am determined not to grant the applicant any adjournment in order to obtain legal advice. The claim made by applicant concerning the provision of such advice concerns me and I propose to forward the transcript to the Registrar in this court for further investigation, but I am not satisfied from the evidence which I have heard that the applicant was not provided with some benefit from the scheme.
With regard to the applicant's request for review, I am afraid that that must be declined. The reasons for the decision of the Tribunal seem to me to be clear, based upon evidence that was before it and a reasonable deduction concerning the applicant's credibility. It is unnecessary, I think, to repeat the statement of McHugh J in Re MIMA; Ex parteDurairajasingham [2000] 168 ALR 407 at [67] that is referred to in NAOL v The Minister [2003] FCAFC 243 at [7]. In NAOL the full bench at [10], accepts the trial judge’s comment that:
“There is nothing to suggest that the RRT’s mind was closed. The mere fact that the decision was given at the conclusion of a hearing cannot possibly give rise to such a finding in any event.”
Given all the circumstances this application must be dismissed. I do dismiss it. I order 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.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 18 May 2004