SZAQS v Minister for Immigration

[2004] FMCA 427

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAQS v MINISTER FOR IMMIGRATION [2004] FMCA 427

MIGRATION – Application to review decision of Refugee Review Tribunal – whether lack of procedural fairness or other jurisdictional error.

Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (1999) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Kioa v West (1985) 159 CLR 550
Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109
Muin v The Refugee Review Tribunal (2002) HCA 30
NADR v Minister for Immigration & Multicultural Affairs [2002] FCA 361
Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17
Re Refugee Tribunal;  Ex parte H (2001) HCA 28
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Kamal v Minister for Immigration & Multicultural Affairs [2002] FCA 818

Applicant: SZAQS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ900 of 2003

Delivered on: 10 June 2004

Delivered at: Sydney

Hearing date: 10 June 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr D Jordan

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. That the application is dismissed.

2. That the Applicant pay the Respondent’s costs set in the amount of $4,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ900 of 2003

SZAQS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 29 April 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant is a citizen of Bangladesh who claimed to fear persecution for reason of political opinion arising particularly because of his activities as a claimed leading member of the Chatra Shibir, the student wing of Jamaat-e-Islami (JEI).  He claimed to have been subject to violence at the hand of his political opponents, particularly the Awami League, and that he had been the subject of a false charge of murder. 

2. The Tribunal did not accept, on the evidence before it, that the applicant had ever had anything to do with the JEI or with its student wing.  It concluded that he was never a member of the Chatra Shibir or the JEI and was never a target for harassment by the Awami League.  It dismissed the evidence in support of his substantive assertions as vague, inconsistent, confused and grossly unreliable.  It detailed at some length the inconsistencies, vagueness and lack of knowledge of the applicant on critical relevant issues. 

3. Numerous deficiencies in the applicant's evidence were addressed.  The Tribunal found that the applicant’s evidence of his activities for the student wing of JEI was vague and showed ignorance of the organisation's formation, structure and use of violence.  He claimed that he feared harm in Bangladesh, yet made repeated visits home to Bangladesh while living in the Middle East or Singapore.  His evidence as to where he was living was inconsistent with his claim (added at the hearing) to be a branch leader of JEI.  The Tribunal found that in response to questions the applicant showed ignorance of party processes and little knowledge of politics in Bangladesh. 

4. The Tribunal also found that documentary evidence which the applicant had submitted was a self-serving fabrication.  The applicant had submitted a medical certificate which he said related to treatment for injuries sustained in an assault on 15 July 2001.  His passport, however, showed that he was not in Bangladesh at that time.  Associated with this, he made confused claims in relation to why he had come to Australia, relating to concerns about an Awami League candidate for elections in 2001 who had lost his seat and taken revenge on him (despite the fact that the events complained of preceded the 2001 election).  The applicant also submitted documentation relating to a claim of a false charge of murder against him which stated that the offence was committed on 15 September 2001.  Again, this event preceded the elections which the applicant said had led to his opponent seeking revenge.  Moreover the Tribunal found it implausible that his opponents would choose this date for any false charge given that the offence would have been committed after the applicant's arrival in Australia on 7 August 2001. 

5. The Tribunal did not accept that the applicant espoused fundamentalist Islamic principles.  It had regard to his presentation at the Tribunal hearing with western grooming and appearance and the confused and inconsistent evidence that he gave when this issue was raised with him.  He initially claimed that he had changed his appearance after coming to Australia.  He later modified that claim.  It was in contradiction to his appearance in his passport photograph several years before he came to Australia.  The Tribunal also had regard to his decision to go to other countries to seek work rather than to stay in Bangladesh to pursue his political beliefs. 

6. The Tribunal concluded that this was a case of attempted deception and that the applicant was patently not a political leader at any level, let alone a committed pro-Islamic one.  It expressed itself to be overwhelmingly confident in its findings, hence it did not go on to consider what if it were wrong.  The Tribunal found that the applicant was not at all a reliable witness.  It was not satisfied that he faced a real chance of Convention-related persecution in Bangladesh.  It found that he was not a refugee. 

7. The application filed in this court on 22 May 2003 raises a number of grounds for review which are unparticularised.  The applicant also provided an outline of written submissions.  I have considered the claims raised in the application and in the written submission and all of the material before me in determining whether any jurisdictional error is apparent.  First, in relation to the Tribunal's adverse credibility finding and consequent rejection of the applicant's claims, credibility findings are a matter for the Tribunal par excellence:Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1999) 168 ALR 407. I am satisfied that the Tribunal findings in this respect were open to it on rational grounds on the material before it and that no error is disclosed in its treatment of the applicant's credibility: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547. The Tribunal detailed at length the vagueness, inconsistency, confusion and unreliability of the applicant's evidence in a number of respects. The Tribunal reasons for decision, which is the only evidence before the court in relation to the conduct of the hearing, indicate that concerns that the Tribunal had in relation to aspects of the applicant’s evidence were raised with him in the course of the hearing.

8. The applicant claimed that the Tribunal did not take into account the ‘conviction base’ persecution in Bangladesh.  I take that to be a reference to Convention-based persecution in Bangladesh.  However, the Tribunal did have regard to the applicant's claims.  It accurately summarised and dealt with those claims in the manner that I have outlined.  It cannot be said that it did not take into account any elements of the applicant's claims in a manner constituting jurisdictional error. 

9. The applicant claims in the application and in written submissions that the Tribunal made its decision in bad faith.  The written submissions provide no basis for such an assertion.  There was no particularisation of the assertion of bad faith.  An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker.  Such an allegation is not to be made lightly and it must be clearly alleged and proved.  It will rarely be made out where, as here, all that the applicant relies on is the written reasons for decision.  Errant fact finding (which appears to be what the applicant complains of in that the Tribunal rejected his claims) without more, does not demonstrate bad faith.  Reading the Tribunal decision as a whole, there is no basis to infer bad faith.  The Tribunal thoroughly analysed the claims advanced by the applicant and on rational grounds identified a series of inconsistencies and other difficulties with his evidence which ultimately cast doubt on the truthfulness of the applicant.

10. The application complains generally that the Tribunal deprived him of natural justice.  In a very general sense, this was also raised in his oral submissions.  The applicant has not adduced an evidentiary basis for the assertions he has made and there is nothing in the Tribunal reasons for decision and the summary of the Tribunal hearing to suggest that there was anything which constituted a lack of procedural fairness.  The Tribunal reasons indicate that it did raise its material concerns for comment in the hearing, thus making the applicant aware of the critical issues in the sense considered in Kioa v West (1985) 159 CLR 550. It is not necessary for the Tribunal to bring its thought processes to the attention of the applicant in the manner in which he appears to be submitting. (Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109). There is nothing in the material before me that establishes that either in the conduct of the hearing or in any other manner there was a denial of natural justice.

11. In particular, and contrary to the assertion of the applicant, there is nothing to establish that the principles in Muin are on all fours with this case as is submitted.  The decision of the High Court in Muin v The Refugee Review Tribunal (2002) HCA 30 was based on a statement of agreed facts which is not present in this case. The applicant has not established the factual matrix on which his claim is based as is necessary. Apart from the absence of any agreed facts, the applicant has not established that he was misled into thinking that the Tribunal had considered particular information and that as a result he did not ensure that any such information was placed before it. Nor is there any indication of what steps he would have taken had he been told, if that were the case, that the Tribunal had not been provided with any of the documents relied on by the Department. The applicant does not identify any particular information that he believed the Tribunal had taken into account and that he would have ensured was placed before it had he been advised that this was not the case (NADR v Minister for Immigration & Multicultural Affairs [2002] FCA 361).

12. The applicant also claims that the Tribunal “denied the evidentiary proof of his claim”.  The Tribunal did reject the documentary evidence submitted in support of the applicant's claims for the grounds that I have outlined above.  It gave reasons for so doing which were open to it on the material before it.  The court cannot review the merits of the Tribunal decision (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272]). Similarly, the claim that the decision did not reflect the material facts of the applicant's claim to some extent seeks unavailable merits review. In so far as it is a complaint that the Tribunal did not take into account relevant considerations, it is not established on the material before the Court.

13. The applicant also contends that the Tribunal gave a decision which was preset in the back of its mind.  In the written submissions he contends that there was actual bias, apparently on the basis that the Tribunal did not accept his claim of persecution and found his written evidence inconsistent in relation to major issues.  I have considered whether either actual or apparent bias is apparent on the material before me.  There was nothing in the material before me to suggest that the Tribunal was dishonest in its task or reckless in the manner of its decision making or that its conclusion suggested a lack of impartiality.  Nor is there anything to suggest that the Tribunal member had pre-determined the matter.  The Tribunal reasons for decision, indicate that the Tribunal properly raised matters of concern with the applicant and considered his explanations.  The Tribunal findings were open to it on the material before it for the reasons that it gave.  On the material before me, I am not satisfied that there is any real likelihood that a reasonable observer might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to resolution of the application (Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17). As was stated in Re Refugee Tribunal;  Ex parte H (2001) HCA 28 at [5] the principle of apprehended bias, when applied outside the judicial system (as here), must take account of the different nature of a Tribunal and the different character of the proceedings consistently with the approach taken by Mason J in Kioa v West (1985) 159 CLR 550 to 585. The Tribunal has an inquisitorial role. The credibility of the applicant was clearly in issue. The decision-maker in such circumstances had necessarily to test the applicant's evidence and confront him with adverse matters and inconsistencies as the Tribunal did.

14. I am not satisfied that the manner in which the Tribunal conducted the hearing as reflected in the Tribunal reasons for decision establishes hostility, intimidation or indicates a possibility of a lack of impartiality.  Neither actual nor apprehended bias has been established on the material before the court. 

15. The applicant complains, without elaboration, that the Tribunal mixed up many facts with this decision which affected the decision.  This contention is not particularised and is not established.  It is not for the court on reviewing a decision of the Tribunal to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal or upon any such view to conclude that the Tribunal's assessment of the applicant's claims should not have been made.  As was said in Kamal v Minister for Immigration & Multicultural Affairs [2002] FCA 818 at [36]: “Such evaluative processes are for the Tribunal.”

16. Insofar as the applicant complains that the Tribunal concentrated on particular facts and ignored many others, the weight to be given to particular items of evidence is a matter for the Tribunal.  There is nothing in the material before me to suggest that the Tribunal failed to take into account any integers of the applicant's claims.

17. The applicant submitted generally that he did not understand legal points and had not had the opportunity to engage a barrister.  Such contentions do not establish any reviewable error in the Tribunal decision or procedures.  As the applicant is self-represented I have considered all of the material before me but no jurisdictional error is apparent.  Accordingly, the application must be dismissed. 

RECORDED   :   NOT TRANSCRIBED

1. The respondent seeks that the applicant pay the costs of these proceedings. It is appropriate that the unsuccessful applicant meet the costs of these proceedings. Bearing in mind the nature of this and other similar matters I consider that the amount of $4250 is appropriate and that costs should be set in accordance with the Federal Magistrates Court Rules.

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

Associate: 

Date: