SZAQX v Minister for Immigration

[2004] FMCA 108

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAQX v MINISTER FOR IMMIGRATION [2004] FMCA 108

MIGRATION – Application for review of Refugee Review Tribunal decision – oral decision by Tribunal – whether jurisdictional error – application dismissed.

Migration Act 1958

WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171
Muin v Refugee Review Tribunal (2002) 76 ALR 601
Minister for Immigration & Multicultural Affairs v Cho (1999) 164 ALR 339
De Silvav Minister for Immigration & Multicultural Affairs  (2000) 98 FCR 364
Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109
Mohammed v Minister for Immigration & Multicultural Affairs (2001) 101 FCR 434
Minister for Immigration & Multicultural & Indigenous Affairs v NAOS [2003] FCFCA 142
SBBSv Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749
Minister for Immigration & Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural Affairs (1988) 86 FCR 547
W148/000A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: SZAQX

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ910 of 2003

Delivered on: 18 February 2004

Delivered at: Sydney

Hearing date: 18 February 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed.

2. That the Applicant pay the Respondent’s costs set in the amount of $4,200 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ910 of 2003

SZAQX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) which was made on 7 May 2003 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.  The applicant is a citizen of Bangladesh who arrived in Australia on 5 April 2002 and lodged a protection visa application on 1 May 2002.  The delegate refused to grant the protection visa on 1 July 2002 and on 11 July 2002 the applicant sought review by the Tribunal.  The Tribunal held a hearing on 7 May 2003.  It gave an oral decision on that day.  The applicant filed an application in this Court on 23 May 2003 seeking review of that decision. 

2. The applicant claimed to fear persecution for reason of his political opinion in Bangladesh.  Prior to the Tribunal hearing he claimed to have been a leading member of the Chattra League and the Jubo League branches of the Awami League, that members of the rival Bangladesh National Party (BNP) had tried to kill him twice, in 2001 and 2002, that several events (including false charges being laid against him) occurred after the second attack and that he had to leave Bangladesh by illegal means in order to save his life. 

3. At the Tribunal hearing on 7 May 2003, he resiled from a number of claims, in particular the claim that there was an attack on him in 2001 and claimed instead that there was an attempt by BNP supporters to extort money from him.  He did not mention the claim that false charges had been laid against him until he was prompted by the Tribunal.  He claimed to fear further harm from the BNP if he returned to Bangladesh. 

4. The Tribunal found that the applicant's oral evidence was inconsistent with his written claims in numerous respects.  It noted that the applicant had had a number of opportunities to present his case.  The Tribunal considered that at the hearing the applicant had disowned or undercut much of the picture that he painted and what was left was rendered not credible by the country information.  The Tribunal found that some claims first made at the hearing about extortion were not credible.  If they were true it would have been obvious to the applicant and his adviser that they should have been submitted earlier.  The Tribunal dealt with each of the key elements of the applicant’s claims.  It accepted that he may have been a member of the two Awami League organisations although took the view that photographs said to depict the applicant at an Awami League function talking to a prominent Awami League person did not establish the claimed connection.  It detailed the discrepancies in the applicant’s claims and the manner in which he had disowned or down played claims (and blamed his adviser for discrepancies) at the hearing. 

5. The Tribunal found that the applicant had exaggerated or fabricated threats against him based on the account given at the hearing, discrepancies between prior claims and claims at the hearing and the unconvincing way in which certain claims were presented.  He disowned or could not remember written claims, particularly as to events after the supposed January 2002 attack.  The Tribunal concluded that there was no false case against him, but if there were such a case the country information (brought to the applicant’s attention in the hearing) indicated that he would secure justice through the higher levels of the judiciary.  It also had regard to the fact that the applicant departed from Bangladesh on two occasions, in March 2002 and April 2002, without incident and using his own passport. 

6. The Tribunal accepted that discrepancies between the pre-hearing and at-hearing claims could be attributed to the ‘creative’ promotion of the applicant’s case by his adviser.  However when the pre-hearing claims were discounted in light of the matters that the applicant disowned, down played or could not remember at the hearing and when his new claim was discounted as not credible the Tribunal concluded that the applicant was left with a claim that he was a low profile member of two Awami League organisations in part of Dhaka and feared the enmity of the ruling BNP.  Country information suggested that low-level Awami League supporters would not be in danger from the BNP.  The Tribunal found that the applicant had exaggerated or fabricated threats against him and could relocate outside Dhaka if he was threatened. 

7. The Tribunal concluded that there was nothing credible in the applicant's claims to indicate that he had a profile that would lead to him being persecuted by the BNP or the authorities or anyone outside Dacca and perhaps not even in Dacca.  The Tribunal concluded that the applicant did not have a genuine fear of persecution. 

8. In his original application to the Court on 23 May 2003 the applicant claimed that the Tribunal erred in failing to accept his claims.  He complained of the attitude of the Tribunal in the hearing and that it did not take into account his oral evidence. 

9. The applicant attempted to file an amended application on 16 February 2004.  In light of the late filing of such document the Registry did not accept it for filing.  Nonetheless the applicant's written submissions addressed the grounds raised in the amended application and such matters were also addressed in oral submissions by counsel for the respondent.  The applicant is self represented, although it is apparent that he has had some assistance in preparation of his submissions and amended application.  I have considered all of the material before me including the matters raised in his amended application in determining whether any jurisdictional error is apparent. 

10. The applicant claimed that the Tribunal failed to accord him procedural fairness, as required under section 424A of the Migration Act. Section 422B of the Migration Act 1958 is applicable but in the circumstances of this particular case, it is not necessary to engage on a detailed examination of the precise effect of that section.

11. The applicant claimed that the Tribunal did not provide him with particulars of information, (being independent country information the about the subsiding of violence against political parties or groups in Bangladesh) which formed part of its reason for decision. He submitted that there was a failure to comply with section 424A in that respect. However, as submitted by the respondent, such information falls within the exception in section 424A(3)(a), being not specifically about the applicant or another person and just about a class of persons of which the applicant or another person is a member. Furthermore, according to the Tribunal reasons for decision the essence of relevant independent information was put to the applicant in the hearing (in relation to the present situation in Bangladesh and the availability of justice in superior courts). In the absence of any evidence to the contrary (such as a transcript of the hearing) I accept that this occurred. No breach of section 424A is established in this respect.

12. The applicant also complained that the Tribunal did not put to him its doubts about documents containing information personal to him from the Awami League and about the court case brought against him and that those doubts formed part of the reason for the Tribunal decision.  This claim is repeated in the applicant's submissions but there is no particularisation of any such documents.  On the material before the court it is not apparent that any such documents were, in fact submitted by the applicant to the Tribunal, other than photographs of him with members of the Awami League.  These were considered by the Tribunal and the Tribunal also acknowledged receipt of his adviser's submission and of documents relating to the reported loss of his passport in Australia. 

13. On the evidence before me, no documents containing information personal to the applicant from the Bangladeshi Awami League or relating to his claim that false charges were laid against him  were submitted to the Tribunal.  No error in any way has been shown by the Tribunal in its treatment of the material submitted by the applicant (submissions, photographs discussed below and documents relating to loss of his passport in Australia which were not in issue).  Further, there is nothing in the material before me to suggest that there was an issue in relation to the authenticity of particular documents submitted by the applicant to the Tribunal, albeit that in the course of declining the offer of the applicant to provide further documentation after the hearing, the Tribunal did refer to the reputation of Bangladeshi documentation.  The Tribunal did not base its decision on doubts about the authenticity of the photographs submitted by the applicant, but rather indicated that they did not establish his claimed Awami League status.  The Tribunal had indicated to the applicant in the hearing that the pictures of him at Awami League functions and talking to prominent Awami League persons did not indicate his Awami League status but simply proved that he was at a function and had talked to someone (cf WACO v MIMIA [2003] FCAFC 171).

14. Nor was the Tribunal obliged to allow the applicant time to provide further documentation.  The Tribunal may make its own inquiries but it was not under an obligation to do so as submitted by the applicant.  It is for the applicant to put his or her case before the Tribunal. 

15. The applicant also complained that the Tribunal did not make findings as to socio-political changes that might occur in Bangladesh in the reasonably foreseeable future and thus failed to assess whether the applicant’s fears of future persecution were well founded.  To the extent that this claim seeks merits review, merits review is not available in this court.  The Tribunal did make relevant findings, accepting that the applicant was a low-level member of Awami League organisations and in relation to the current situation in Bangladesh and the reasonableness of relocation. 

16. The applicant contended that the Tribunal decision ‘was not based on circumstances giving a rational foundation for the belief entertained’ as the findings when applied to the applicable criteria meant that the Tribunal should have been satisfied the applicant had met those criteria. Again, insofar as this seeks merits review, this does not establish a ground for review. The written submissions claim that this ground does not seek merits review and assert that there was a denial of natural justice. I have considered whether any denial of natural justice, bias, apprehended bias, absence of good faith or a breach of any of the provisions of the Migration Act is established.

17. Despite the provision to the court of detailed written submissions and an amended application, the applicant did not seek to rely upon a transcript of the hearing or any other evidence beyond the reasons for decision to support his claim as to the conduct of the hearing. 

18. The applicant stated that he wanted to show the Tribunal an additional photograph which was not available at the time of the hearing.  He offered to provide such photograph to the court.  However a photograph obtained after the Tribunal decision is not of assistance to the court in determining whether the Tribunal erred in making the decision that it made.  It is not open to the applicant to submit fresh evidence to the court to support his claim to be a refugee. 

19. The Tribunal was aware of and declined the offer of the applicant to submit further information if needed on the basis of the lack of credibility of many of the applicant’s claims, his failure to produce any supporting documents a year after his application and the poor reputation of Bangladeshi documentation (which was drawn to the attention of the applicant).  No lack of procedural fairness or bias is apparent in this respect.  It is for the applicant to present his case to the Tribunal.  He had numerous opportunities to do so, with the assistance of his adviser.  There is no suggestion on the material before me that the provision of specific potentially relevant material was foreshadowed by the applicant. 

20. The applicant also asserted today that he had attempted to submit additional information to the Tribunal and had not been able to do so.  He complained that the Tribunal had not considered additional papers and documents that he had to support his claim.  As indicated above, there is no transcript of the hearing before me and no evidence of what was said before the Tribunal other than the Tribunal reasons for decision.  There is nothing in the Tribunal reasons for decision to suggest that the applicant was prevented from submitting anything at the time of the hearing.  In particular, the applicant’s offer to provide further documentation if needed does not indicate that he was prevented from submitting documents during the hearing.  He had the assistance of an adviser and, indeed, had taken the opportunity prior to the hearing to submit documents through his adviser, in particular, the photographs and information relating to the loss of his passport.  I am not satisfied that his claim in this respect has been established. 

21. Under section 425 of the Act the Tribunal is obliged to invite the applicant to appear before it to give evidence and to present arguments relating to the issues arising in relation to the decision under review.  The Tribunal met its obligation under section 425.  It is also afforded the applicant procedural fairness.  It is not established that the Tribunal conducted the hearing in a manner which denied the applicant the opportunity to give evidence and present arguments.  It is clear from the reasons for decision that the critical issues were canvassed, the applicant was given the opportunity to give evidence on such matters and the Tribunal considered the applicant's comments.  There is no evidence before the Court that the applicant was discouraged from giving a particular line of evidence. 

22. It is not necessary in these circumstances to consider the precise scope of section 425 or the application of procedural fairness in light of s422B as I am satisfied that there has been no contravention of the section or lack of procedural fairness on the broadest view. Compare the decision in the MIMA v Cho (1999) 164 ALR 339 with the later decisions on s425 in its current form (in particular De Silvav MIMA (2000) 98 FCR 364, Tin v MIMA [2000] FCA 1109 and Mohammed v MIMA (2001) 101 FCR 434).

23. In written submissions the applicant referred to a number of provisions in the Act.  Section 424 obliges the Tribunal to consider information that it obtains.  However, it does not impose an obligation on the Tribunal to invite the applicant to give it additional information or to make its own inquiries if it does not accept the claims of the applicant.  As to the claim that the Tribunal was obliged to collect documents from the Department file the Tribunal stated in its reasons for decision that it had before it the DIMIA file.  No breach of s424 is established. 

24. The claim that appears to rely on the decision in Muin v RRT (2002 76 ALR 601 is not made out. Apart from any difficulties that may be caused by s422B, there is nothing in the circumstances of this case to bring the principle in Muin into play.  Nor am I satisfied on the information before me that the Tribunal has failed to have regard to any relevant considerations or to any information which it obtained that it considered relevant. 

25. The applicant took issue in written submissions and also in oral submissions today with the fact that the Tribunal had made its decision orally immediately after the hearing and claimed that the decision was made prior to or during the hearing.  The Tribunal has power to make its decision orally or in writing.  This is apparent from sections 430A and 430B which indicate that there is no need for a handing down if a decision is made orally.  The Tribunal recorded its decision and the findings on matters which it considered material in compliance with section 430.  No contravention of that section is established contrary to the suggestion of the applicant.  Nor is there anything to suggest that the decision was so unreasonable that no reasonable decision maker could make it. 

26. The fact of the oral decision and the conduct of the hearing as indicated by the reasons for decision does not establish that the Tribunal acted in bad faith or was biased or that a reasonable observer would entertain an apprehension of bias on the part of the Tribunal (see SBBS (2002) 194 ALR 749 at 759 and MIMIA v NAOS [2003] FCFCA 142 at 21 in relation to good faith). It is clear that in this case the Tribunal did have regard to what occurred in the hearing. It considered the applicant's claims made prior to the hearing and during the hearing at some length in its reasons for decision and the comparison between those claims was part of the reason for its decision.

27. In those circumstances, this is not a case where it can be said that the Tribunal had prejudged or may have appeared to have prejudged the application.  Nor although it may have confused the applicant as he claimed, does the Tribunal member's reference to a prominent member of his family establish an absence of bona fides or actual or apprehended bias given the context of the Tribunal addressing the evidentiary value of photographs of the applicant talking to prominent Awami League persons. 

28. Furthermore, while the Tribunal reasons do speak somewhat disparagingly of the applicant's adviser, the Tribunal indicates the basis for this is that the applicant himself blamed his adviser for the difference between the original claims and those put in the hearing.  In such circumstances no bias or apprehended bias is established by such references.  Indeed the Tribunal accepted the applicant's explanation and the blame he placed on the adviser in some respects in relation to the discrepancies in the claims made before the hearing and at the hearing.  It then assessed the credible claims not disowned or down played by the applicant. 

1. The Tribunal gave reasons for rejecting the applicant's credibility in other respects in relation to the extent of his claims and the nature of his involvement in the Awami League.  In so far as the findings are based on credibility such findings are a matter of fact for the Tribunal par excellence (MIMA, Re; Durairajasingham (2000) 168 ALR 407 at 67). So long as the Tribunal's credibility findings were open to it no error is demonstrated in such conclusions, (Kopalapillai v MIMA (1988) 86 FCR 547 and W148/000A v MIMA (2001) 185 ALR 703). In this case the Tribunal's findings were open to it for the reasons it gives including the country information to which it referred.

2. As was said in Chan it is unlikely that refugee status is to be granted to a person whose account although plausible and coherent is inconsistent with the Tribunal's understanding of conditions in that person's country of nationality (although in this case the Tribunal did not find the applicant's claims as to his level of involvement with the Awami League to be plausible and coherent).  As indicated above, the Court cannot review the merits of the Tribunal decision, MIEA v Wu Shan Liang (1996) 185 CLR 259.

3. As no error has been demonstrated the application must be dismissed. 

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful and the respondent seeks that he pay costs in the sum of $4,200. The applicant claims impecuniosity and also takes issue with the findings of the Court and its failure to look at the further information that he now wished to submit in relation to his claim to be a refugee. Impecuniosity is not a reason for not making an order of costs although it may be relevant as to when and how the respondent seeks to recover the costs. Nor is the applicant's disagreement with the decision of the Court or wish to now provide further evidence in support of his claim. It is appropriate that the applicant should meet the Respondent's costs. I consider that the amount sought is reasonable and should be set in accordance with the Federal Magistrates Court Rules.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  18 February 2004