SZASY v Minister for Immigration

[2004] FMCA 440

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZASY v MINISTER FOR IMMIGRATION [2004] FMCA 440

MIGRATION – Review of decision of Refugee Review Tribunal – whether lack of procedural fairness – whether non-compliance with s.424A(2) – whether jurisdictional error.

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Kopaipillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547

Kioa v West (1985) 159 CLR 550
Muin v The Refugee Review Tribunal (2002) 190 ALR 601
Applicant NAIK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 161
NACM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 405
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
NADD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1438
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32
NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262
WACO v Minister for Immigration & Multicultural Affairs [2002] FCA 521
NAHV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102
VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32
SAAP v Minister for Immigration & Multicultural Affairs [2002] FCA 577

Applicant: SZASY

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1039 of 2003

Delivered on: 22 June 2004

Delivered at: Sydney

Hearing date: 22 June 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Nil

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 $2,500

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1039 of 2003

SZASY

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 28 May 2003 affirming a decision of a delegate of the respondent made on 10 May 2001 to refuse to grant the applicant a protection visa.  The applicant is a citizen of Bangladesh who claims to fear persecution by reason of his political opinion resulting from with his membership and activities as a member of the Freedom Party.  He claimed to be a member of the party, that he was involved in Party activities and that in December 2000 he had attended a meeting which was raided by the police.  As a result of this raid he claimed that he was hospitalised.  He also faced false charges as a result of his involvement with the Party. 

2. The Tribunal accepted that the applicant had been involved with the Freedom Party at some time in the past.  However it found many of his claims regarding this membership to be lacking in credibility.  It was not satisfied that he left Bangladesh because he was at risk of being imprisoned or facing other serious harm as a result of his membership of the Party.  The Tribunal dealt with claims relating to various periods of time.  It acknowledged that the applicant may have had to have worked quietly as a member of the Party while at University but did not accept the claim that he could not work openly as a Party member between the time he left University and the time the Awami League came to power in 1996 as the Party was legal and members did not generally have problems with the authorities. 

3. The Tribunal detailed in its reasons for decision independent information in relation to the situation of the Freedom Party during this and the subsequent time in Bangladesh.  It did not believe that the applicant was in hiding much of the time after the Awami League came to power (because he feared he would be arrested or killed) as this claim was contrary to his claims of active involvement in public activities in his protection visa application and inherently implausible in the light of independent information in relation to the legality of the Party and about an absence of a general risk of persecution for Party members. 

4. As to the specific claims made by the applicant the Tribunal did not accept that he participated in a Freedom Party demonstration in December 2000 during which he was beaten with a hockey stick and hospitalised.  It gave reasons for this conclusion, including the fact that the Freedom Party had virtually ceased to exist by this time and that it was apparent in the hearing that the applicant had forgotten this claim until he was reminded of it by the Tribunal member.  Further it was not plausible that the Party would have called a public meeting in December 2000 because elections were looming, as the elections were not due until mid 2001.  The applicant had provided medical evidence in relation to hospitalisation at this time.  However, the Tribunal had regard to his oral evidence that he did not require stitches or surgery and found this inconsistent with information on the hospital bill which indicated that he was charged for a blood transfusion and an operation. 

5. The Tribunal was not satisfied that the applicant had any significant involvement in the Freedom Party after it disintegrated following the election of the Awami League and the arrest of Freedom Party leaders.  In these circumstances, and given that the Party had effectively ceased to exist by December 2000, the Tribunal did not accept that politically motivated false charges were laid against the applicant in December 2000 either because of his involvement in a demonstration or because of his past involvement with the Freedom Party.  The Tribunal indicated that it believed that the applicant concocted the claim regarding these charges and that the arrest warrant and charge sheet which he provided to the Tribunal were false documents.  The applicant’s ability to leave Bangladesh legally on his own passport in April 2001 was said to support a finding that he ‘was wanted by the police at the time of his departure from the country.’  (sic).  Reading the decision fairly and as a whole, it is apparent from the context of this statement that there may be a typographical error such as omission of the word ‘not’ before the word ‘wanted’. 

6. The Tribunal concluded that it was not satisfied that the applicant had a well founded fear of persecution for reason of political opinion or for any other Convention reason. 

7. The application for review raises a number of grounds further elaborated upon in written submissions.  In so far as the application seeks merits review and takes issue with the Tribunal findings in relation to credibility, merits review is not available in the court.  Credibility is a matter for the Tribunal par excellence: Re MIMA; Ex parte 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: Kopaipillai v MIMA (1998) 86 FCR 547. In this instance the Tribunal reached its decision as to the applicant's credibility based on independent country information particularly as to the position of the Freedom Party and the political situation in Bangladesh, the substance of which was put to the applicant during the hearing, the implausibility of aspects of the claims in light of such evidence and inconsistencies in his claims and evidence. Based on the evidence before the Tribunal, the applicant's claims and his responses to the Tribunal's questions, it was open to the Tribunal to make the findings that it did make on the material before it. No error is demonstrated.

8. The applicant also claimed that the Tribunal failed to realise the seriousness of the fabricated charges laid against him.  However, the Tribunal considered the claims made by the applicant that charges had been laid against him.  It concluded, for reasons which it gave, that it did not accept that politically motivated false charges were laid against the applicant as claimed.  The reasons record that inconsistencies between the documentation about the claimed charges and the claims of the applicant were put to him in the hearing, as were Tribunal concerns about documentary fraud in Bangladesh and its concerns that the documents provided were probably fraudulent.  It cannot be said in those circumstances that the Tribunal has erred as contended by the applicant in failing to accept that he was charged as claimed, or that it failed to realise the seriousness of those charges.  It took into account the integers of his claims.  A failure to accept his claims does not establish a jurisdictional error. 

9. The applicant also contended that the Tribunal failed to consider the seriousness of the role he played for the Freedom Party during the Awami League regime.  However the Tribunal specifically considered the time prior to and during the time when the Awami League was in power in Bangladesh as well as thereafter, in the light of independent information before it in relation to the situation of the Freedom Party at those times.  It did not fail to consider the applicant's claims in this or in any other respect either about the past or the future.  Having rejected the claims of past involvement (beyond membership) the Tribunal found that he was not at risk of being imprisoned or facing other serious harm as claimed as a result of his membership of the Party.  On this basis it found that he had no well-founded fear of persecution. 

10. The applicant complained generally about the conduct of the Tribunal hearing.  He contended that the methodology adopted by the Tribunal did not help him demonstrate his willingness to express his view on the issue of his persecution, that the hearing was a ‘mere formality’, the set up being more bureaucratic than judicial and that the Tribunal failed to accept his documentation.  The evidence before the court in relation to the conduct of the hearing is that contained in the Tribunal reasons for decision.  There is nothing in the material before the court to suggest that the Tribunal did not provide the applicant with the opportunity to fully present his case and address relevant issues or that he was not made aware of and given the opportunity to address critical issues in the sense required in Kioa v West (1985) 159 CLR 550.

11. Moreover, it is apparent from the Tribunal's reasons for decision that not only was he given the opportunity to present his claims but that the gravamen or substance of adverse country information upon which the Tribunal relied was put to him during the course of the hearing.  There is nothing in the material before the court to suggest that the Tribunal had pre-determined the matter, or that there was any actual or apprehended bias or a denial of procedural fairness in relation to the conduct of the hearing.  The Tribunal has an inquisitorial not a judicial role and has necessarily to put its concerns to the applicant and invite his comment.  On the material before me it is apparent that it did so in relation to the critical issues.  In particular, the Tribunal considered the material provided by the applicant in support of his claims.  It observed that country information and news articles referred only to the general situation in Bangladesh and made no specific reference to the Freedom Party.  The medical evidence provided was found to be contradicted by the applicant’s oral evidence.  The documents relating to charges referred to different charges to those originally claimed by the applicant and on country information put to the applicant were found to be false documents in relation to a concocted claim.  The Tribunal concerns in this respect were also put to the applicant for comment. 

12. In written submissions the applicant develops an argument that he was denied an opportunity to comment on material adverse to his claim.  However, it is apparent from the Tribunal's reasons that the Tribunal put its concerns to the applicant and also put to him the substance of independent information for his comment.  No lack of procedural fairness has been established in relation to this issue. 

13. The applicant also contended that there was a failure to observe the procedures under the Migration Act 1958, in particular, section 418(3). It appears from the applicant's written submissions that this is in essence a submission that the case is on all fours with the decision of the High Court in Muin v The Refugee Review Tribunal (2002) 190 ALR 601. However, the decision in Muin is of no assistance to the applicant because the factual basis for the High Court's decision in that case is not established in this case. 

14. In particular, and contrary to the situation in Muin, there are no agreed facts that the Part B material referred to in the delegate's decision was not provided to the Tribunal.  Nor is there any evidence that that was the case (and indeed at least one item from the Part B material was referred to in the Tribunal reasons for decision).  Furthermore, there is no evidence to show that the applicant was misled or, if he was, how he was misled or what he would have done had he known (if it was the case) that information that he understood to be before the Tribunal was not in fact before the Tribunal (see Applicant NAIK of 2002 v MIMIA [2003] FCA 161, NACM of 2002 v MIMIA [2002] FCAFC 405, NADR v MIMIA [2003] FCAFC 167 and NADD v MIMIA [2003] FCA 1438).

15. The written submissions also repeat the claim that the Tribunal failed to consider all the integers of the applicant's claim and hence fell into jurisdictional error by failing to take into account relevant considerations.  The applicant refers specifically to the Tribunal failing to realise the seriousness of the charges.  As indicated the Tribunal considered the claims made by the applicant but did not accept that there were charges as claimed.  There is nothing to support the general claim that the Tribunal failed to have regard to the claims of the applicant.  Associated with this claim is a claim that the Tribunal erred in failing to make any inquiries in his case in relation to information provided or of other authorities such as the Australian High Commission in Bangladesh.  It is for the applicant to establish his case before the Tribunal.  There is nothing in the material before the court to suggest that the Tribunal undertook to make any inquiries.  There is no general obligation on the Tribunal to conduct inquiries in the manner contended: MIMIA v SGLB [2004] HCA 32.

16. The applicant also contended that the Tribunal failed to comply with section 424A of the Migration Act. It appears that this contention relates to the Tribunal failure to provide him with a letter under section 424A of the Act. Section 424A(1) obliges the Tribunal to give an applicant particulars of any information that it considers would be the reason or a part of the reason for affirming the decision that is under review. Section 424A(2) contemplates the person being told of such matters in writing. The information must be given by one of the methods specified, which in the case of the applicant would be by one of the methods specified under section 441A and in accordance with s424B. In this case there is no suggestion that the Tribunal sought the views of the applicant by way of a letter sent or otherwise given to him. However it is apparent from the Tribunal reasons for decision that the independent information (not only the general country information but also the substance of the information in relation to documentary fraud in Bangladesh) was put to the applicant in the course of the hearing. This is not disputed by the applicant.

17. The general country information falls within the exception to section 424A in subsection (3) as not being specifically about the applicant or another person and as just about a class of persons of which the applicant or another person is a member. No failure to comply with s.424A is established in relation to such material.

18. There is Full Court authority in NARV v MIMIA [2003] FCAFC 262, suggesting that information in relation to documentary fraud in Bangladesh is not within the s.424A(3) exception on the basis that it is not just about a class of persons. While subsequent cases have taken issue with this approach, NARV remains binding on me in that particular respect, although the circumstances of this case may be contrasted with what occurred in NARV v MIMIA [2003] FCAFC 262 and also WACO v MIMIA [2002] FCA 521 where it was held that a Tribunal had denied an applicant procedural fairness by failing to put findings of document fraud to the applicant for comment. No such lack of procedural fairness is established in the present case.

19. On the authority of NARV there is, strictly speaking, a breach of section 424A(2) in relation to the particular category of information relating to documentary fraud in Bangladesh as the information was not put to the applicant in writing in the manner specified in the Migration Act. It is, however, necessary to consider the nature and consequences of such breach. While the information about documentary fraud was not provided by one of the methods referred to in s.441A (all of which require writing), the applicant does not dispute that he was told of the Tribunal concerns and of the essence of the independent information in relation to documentary fraud and given an opportunity to comment in the hearing. In NAHV v MIMIA [2003] FCAFC 102 the substance of adverse information was put to an applicant in a hearing (but was not given to the applicant by way of written notice). The admitted non-compliance with section 424A(2) in circumstances where there was no unfairness or failure to accord procedural fairness was held not to amount to a failure to exercise jurisdiction or to an exceeding of jurisdiction (at [25]). Such reasoning is applicable in this case given the manner in which the information was put to the applicant as indicated in the Tribunal reasons for decision. The failure to comply with section 424A(2) is not jurisdictional (see NAHV at [22] – [25]). Moreover, consistent with VDAU v MIMIA [2004] FCAFC 32, in all of the circumstances of the case taking into account the material before the court, that the essence of the information was conveyed to the applicant, that the applicant had a migration agent, that there was a discussion of the information in relation to documentary fraud in the hearing and that no unfairness is apparent, any breach of s.424A would be at best a technical breach. As Mansfield J observed in SAAP v MIMA [2002] FCA 577 in such a case it would be appropriate to decline relief (also see NAHV at [27] ).

20. In all the circumstances no jurisdictional error in respect of which a remedy should sound is apparent.  The application therefore must be dismissed.  The applicant should pay the respondent’s costs. 

RECORDED   :   NOT TRANSCRIBED

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  27 July 2004