SZATG v Minister for Immigration

[2004] FMCA 476

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZATG v MINISTER FOR IMMIGRATION [2004] FMCA 476

MIGRATION: Application for review of decision of Refugee Review Tribunal – whether lack of procedural fairness or breach of s.424A Migration Act 1958.

Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437
NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494
NAHV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 102
NANF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 292
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134
Minister for Immigration & Multicultural Affairs, Re; Ex parte Miah (2001) 206 CLR 57
Minister for Immigration & Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: SZATG

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1057 of 2003

Delivered on: 16 July 2004

Delivered at: Sydney

Hearing date: 16 July 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr JD Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed.

2. That the applicant pay the respondent's costs fixed in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1057 of 2003

SZATG

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) made on 2 June 2003.  The Tribunal affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant is a citizen of Bangladesh who first arrived in Australia on 16 October 1998.  He made an application for a protection visa on 9 November 1998 which was unsuccessful and he returned to Bangladesh.  In his initial application, he made claims regarding his background and political activities in Bangladesh and claimed to have been beaten by a group of Awami thugs and severely wounded in 1997.  The claim that false cases had been filed against him by his political opponents and that in 1988 he had been arrested and detained for three months.  He subsequently visited a number of other countries.  He returned to Australia most recently on 25 June 2001 and lodged a further application for a protection visa on 27 June 2001.  That application was refused. 

2. The applicant sought review by the Tribunal.  He claimed to fear persecution in Bangladesh as a result of his political activities and membership of the BNP. 

3. In his 2001 application he expanded on his earlier claims.  There were also some differences between his first and second applications.  In particular he did not mention the 1988 incident.  In the later application he claimed that as a successful businessman he had aroused the interest of the policy and Awami supporters who had started chasing him to kidnap him for monetary gain, that charges had been issued against him and that he had been arrested in October 2000 and tortured severely and that he continued to be chased by Awami league leaders who saw him as a threat to their local political success.  The applicant’s migration agent sent submissions and a number of supporting documents to the Tribunal.  He made new claims, in particular that the applicant had received death threats from the leader of the Jamaat-e-Islami and that he had been beaten severely in April 2000. 

4. The Tribunal conducted two hearings.  It commenced a hearing on 1 May 2003 which had stopped after an hour, according to the reasons for decision when it became clear that the applicant was not well enough to proceed.  After confirmation from his doctor that he should be able to attend a hearing in June 2003 and answer questions the hearing resumed on that date and continued for some considerable time, the applicant says some four to four and a half hours. 

5. At the conclusion of the hearing the Tribunal made an oral decision. On 6 June 2003 the Tribunal sent a letter to the applicant enclosing a copy of its decision and its reasons for decision.  In its reasons for decision the Tribunal first set out its concerns with the applicant's claims noting the numerous opportunities the applicant had to make his claims in a complete form, new and varied claims were made by him and by his migration agent from time to time.  The Tribunal set out inconsistencies in the claims made by the applicant and described the similarity of his claims to claims made by other applicants for whom the applicant's migration agent had acted. 

6. The Tribunal reasons for decision indicate that the Tribunal concerns in relation to the additional late but significant claims, the inconsistencies in the claims and the similarities with other claims were put to the applicant during the hearing.  The explanations provided were considered by the Tribunal but found not to be credible.  The Tribunal found that the reason for the expansion of the claims in and after June 2001 (mostly relating to an earlier time) was the involvement of a new migration agent, the use of the agent’s ‘template’ and a desire to provide false claims (including documents with false information) to fill in the deficiencies in the case identified by the Department of Immigration. 

7. The Tribunal concluded that while it did not know if the applicant had ever been involved in BNP politics, it found him to be ignorant about certain fundamental matters.  The significant late additions to his claims in particular in relation to political activity and office holding in the BNP after 1998 and the variations in his claims led the Tribunal to conclude that the applicant had not held office in recent years and that his political prominence was much less than he had claimed.  The Tribunal did not accept, given the applicant’s lack of political prominence, that he was specifically targeted because of his political affiliation.  It did not accept the claims about false cases because of the implausibility and timing of the claims. 

8. However the Tribunal went on to consider the claims on the basis that the applicant did hold a position in the BNP or its youth wing in Dhaka in recent years and was targeted, assaulted, subject to extortion and charged as claimed.  On that basis it found that all the harm that the applicant claimed to have faced had taken place in Dhaka as had all his political activity of recent years, the attacks and threats complained of, the cases he claimed to have been lodged against him and all related matters.  The Tribunal found that for all practical purposes it was clear that Dhaka was the focus of the claims in the applicant's case, it being where he lived and worked and supposedly faced or faces various forms of threat from political opponents, extortionists or the police. 

9. The Tribunal found that the applicant’s repeated failure to take himself away from Dhaka and the nearby area of Tongi was because he did not in fact feat persecution and was not wanted as claimed.  Moreover, the Tribunal found that if he did return to Dhaka or Tongi the most that could be said was that he might face some danger from old opponents or the police who may wish to speak to him in relation to a false case or cases and that this was unlikely as because of the time that had elapsed the authorities would have other priorities.  The Tribunal did not believe that he had already been sentenced.  Nonetheless the Tribunal went on to find that it was satisfied on the basis of independent information that the applicant would secure justice through the higher levels of the judiciary. 

10. Importantly, the Tribunal concluded that it would be reasonable to expect the applicant and his family to relocate to an area outside Dhaka or Tongi and that if he did so, there would be no real chance that he would be persecuted for any Convention reason.  In making its findings in relation to relocation the Tribunal had regard to the issues raised by the applicant (see in particular Randhawa v MILEA (1994) 52 FCR 437 to which it referred). On the basis of these findings the Tribunal concluded that the applicant was not a refugee and was not a person to whom Australia owed protection obligations under the Refugees Convention.

11. In these proceedings the applicant filed an amended application on 31 December 2003 and written submissions. He also made oral submissions. The first ground relied upon in the amended application was that the Tribunal exceeded its jurisdiction ‘in failing to accord the applicant procedural fairness as required under section 424A(1) of the Migration Act 1958’. In the written submissions the applicant referred specifically to the application of section 424A in relation to documents he had submitted relating to the claimed imprisonment and charges and also to the Tribunal reliance on material in relation to documentary fraud in Bangladesh and its failure to put such material and its concerns to the applicant. Section 424A of the Migration Act requires the Tribunal to invite the applicant to comment on information that would be the reason or part of the reason for affirming the decision under review.

12. The applicant claimed first, and he repeated this claim in oral submissions, that the Tribunal erred in failing to take necessary steps to verify any of his documents.  However, it is for the applicant to establish his case before the Tribunal.  There is nothing in the material before me to suggest that the Tribunal undertook that it would take any further steps to verify the applicant's documentation or that this was a situation in which it was necessary for the Tribunal to do so. 

13. Insofar as the applicant claims that as a matter of procedural fairness the Tribunal was obliged to put its concerns or information in relation to documentary fraud in Bangladesh to him, it has not been established that this did not occur during the course of the hearing.  To the contrary, the Tribunal reasons for decision record that the Tribunal raised with the applicant how impressive his supporting documents were and referred to the reputation of Bangladeshi documentation as well as a reference to the experience of the applicant's migration agent.  The applicant has not established the factual basis for such a claim. 

14. The information provided by the applicant for the purpose of the application is not subject to the s.424A disclosure obligations (see s.424A(3)(b)). There is authority, in NARV v MIMIA [2003] ALR 494 as to the obligation of a Tribunal under s.424A in relation to information in relation to documentary fraud. Sections 424A(2) and 441A require an invitation to comment under s.424A to be given in writing. There is nothing to suggest that such material was put to the applicant by letter. However it has been held that where the substance of information is put to an applicant by a Tribunal but not in the form mandated by 424A(2) there is no jurisdictional error: NAHV v MIMIA [2003] FCA 102, NANF v MIMIA [2004] FCA 292.

15. In this case, the Tribunal reasons indicate that the Tribunal put to the applicant the substance or gravamen of information in relation to documentary fraud in the hearing.  The applicant does not dispute this.  Hence any failure to comply with 424(2) would not amount to jurisdictional error.  The obligation to give the applicant an opportunity to comment on information was provided, albeit not in writing. 

16. Nor is any more general claim based on natural justice rules in relation to this information established.  It is not disputed that the information was put to the applicant.  Moreover the Tribunal considered the possibility of relocation on the basis that the applicant’s claims in relation to the false charges were in fact true.  The information about the independence of the higher levels of the judiciary was information known to the applicant having been provided to him by the Department of Immigration.  In these circumstances no lack of procedural fairness is established. 

17. The second ground raised in the application was that the Tribunal did not complete the exercise of his jurisdiction as it made no findings as to what socio political changes might occur in Bangladesh in the reasonably foreseeable future and thus fail to assess whether the applicant's fears of being persecuted for being a member of a political party were well founded in the reasonably foreseeable future. 

18. However, there is nothing in the material before me to suggest that the applicant claimed that there would be a relevant socio-political change in Bangladesh in the reasonably foreseeable future.  His claims were based on past events, including the fact that charges had been laid against him and were likely to result in conviction.  Such claims and the likely future prospects were considered by the Tribunal in its consideration of the prospect of cases coming to court and the consequences. 

19. The Tribunal is not required to speculate on possible future events but rather to address or deal with the case actually raised by the material or evidence before it:  Htun v MIMA (2001) 194 ALR 244 and Applicant WAEE v MIMIA (2003) 75 ALD 630. Moreover the applicant could not succeed in his claim to be a refugee if it were not established that he feared persecution and in this instance the Tribunal found that he did not fear persecution.

20. The third ground raised is that the decision was not based upon circumstances giving a rational foundation for the belief entertained by the Tribunal.  It is claimed that the Tribunal findings when applied to the applicable criteria meant that the Tribunal should have been satisfied that the applicant had met those criteria.  This claim is neither particularised nor clarified by the written submissions and appears to seek merits review which is not available from the court.  It cannot be said on the material before the court that there was no rational foundation for the Tribunal findings.  The Tribunal considered the applicant’s claims.  It made findings based on the material put forward by the applicant and gave reasons for it decision open to it on the material before it.  While it was not satisfied of the applicant’s credibility it went on to consider his claims on the ‘what if I am wrong’ basis and no error is established in this consideration. 

21. The fourth ground raised in the amended application was that the Tribunal did not provide the application with specified information which it is contended formed part of the reason for the Tribunal decision (namely that violence against BNP supporters/leaders had subsided) and there was a failure to comply with section 424A in relation to that particular information. It is submitted that the exemption from the section 424A obligation in subsection 424A(3) is not applicable.

22. As indicated above, section 424A of the Migration Act obliges the Tribunal to give the applicant particulars of any information it considers would be the reason or a part of the reason for affirming the decision that is under review. Subsection (3) provides that:

    The section does not apply to information, inter alia, that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.

23. There are a number of difficulties with this ground.  First, there is no further clarification of precisely what information is referred to other than ‘that violence against BNP supporters/leaders had subsided’.  On a narrow view of what is encompassed in such information it is apparent that the Tribunal did not reject the applicant's claims simply because of information in relation to the change of government in Bangladesh.  Its reference to and reliance on information about changes in Bangladesh in the findings and reasons part of its decision consists of reference to the fact that the applicant's original concern was with the Awami League, the traditional enemy of the BNP, that the Awami League had been out of office for 20 months and no longer had the use of the organs of state.  Such information is not the information that violence against BNP supporters had subsided.  However, the Tribunal does go on to find that if the applicant wished to pursue politics in Bangladesh in a manner not involving the past claimed violence and criminality, country information (referred to in the reasons for decision) led it to conclude that he would be able to do so and have little fear from rival political groups especially if he did so outside Dacca or Tongi. 

24. Despite the fact that no particular material is identified by the applicant, on the broader view of the country information before the Tribunal and relied on by it, I am satisfied that such general country information is within the exception in section 44A(3)(a).  First it is clear that the general country information referred to in the decision is not specifically about the applicant or another person.  An issue arises as to whether it is ‘just about’ a class of persons of which the applicant is a member.  As Kenny J indicated in VHAJ v MIMIA [2003] FCAFC 186 at 55:

    Information does not cease to be information just about a class of persons merely because it can be characterised in more than one way. For the purpose of s424A(3) information is just about a class of persons (even though for another purpose it could bear some other characterisation) if it is relevant to the Tribunal’s decision only because it is about this class of persons.

25. In this case the information referred to in ground four of the application concerned BNP supporters and leaders. It was relevant only because it was about supporters or leaders of the BNP that being a class of persons of which the applicant claimed to have been a member. Hence, the s.44A(3)(a) exception applied and there was no obligation on the Tribunal to raise it expressly with the applicant under s.424A(1).

26. Insofar as this ground raises broader natural justice issues in relation to this claim, section 422B of the Migration Act is not applicable to the Tribunal decision, and it is necessary to consider whether a lack of procedural fairness or denial of natural justice has been established. However the applicant has not established a factual basis for such a claim. This is not a case (unlike the situation in Miah (Minister for Immigration & Multicultural Affairs, Re; Ex parte Miah (2001) 206 CLR 57), where a decision maker relied on a change of circumstances not put to or known by an applicant. The only evidence of what occurred in the Tribunal hearing indicates that the Tribunal put to the applicant and that he was aware of the change of government in October 2001. It is apparent that he was aware of this change, albeit that he lacked the detailed knowledge that might have been expected by someone as prominent as he claimed to have been in the party. The applicant has not established a denial of natural justice in relation to the material referred to in ground four of the amended application.

27. The fifth ground in the amended application, is that the Tribunal did not put to the applicant its doubts about documents containing information personal to the applicant (being information personal to the applicant from different sources of Bangladesh) and that those doubts formed part of the reason for the Tribunal's decision.  This ground is not particularised.  I have addressed the specific issues raised by the applicant in this respect in the written reasons for decision.  The claims in relation to the Tribunal doubts about the documents concerning claimed charges and imprisonment and its concerns about and information about documentary fraud in Bangladesh do not establish jurisdictional error.  The applicant has not provided a factual basis for this ground.  These claims are contrary to the Tribunal record of what occurred in the Tribunal hearing.   

1. The applicant also made a complaint today about the fact that the Tribunal made its decision at the conclusion of a lengthy hearing.  As indicated the Tribunal commenced the first hearing in May 2003.  It was adjourned because of the applicant's ill health until 2 June 2003.  Before the first hearing the applicant had been notified that he was invited to attend a hearing because the Tribunal was unable to make a favourable decision on the material before it.  Whether or not the Tribunal gave full reasons for its decision on the date of the hearing it is clear that on 6 June 2003 it sent to the applicant a copy of its decision and its reasons for decision. 

2. The Tribunal reasons for decision consist of a 30 page document which addresses in considerable detail all of the applicant's claims and also the conduct of each of the hearings.  The Tribunal finding and reasons address the specific claims including the material raised by the applicant and addressed during the course of the Tribunal hearings.  It cannot be said that the Tribunal did not consider the applicant’s claims and evidence.  The Tribunal reasons for decision is a detailed document which examines and addresses each of the applicant's claims. 

3. The applicant claims that the Tribunal procedure indicated actual bias or gave rise to a reasonable apprehension of bias.  Such claim is not established on the material before the Court.  A person alleging bias has a heavy onus.  The only material before me as to the conduct of the hearing is the Tribunal reasons for decision.  There is nothing in those reasons to suggest that there was anything in the conduct of the hearing to indicate that the Tribunal had a closed mind or had reached pre-judgment in the sense of being unable or unwilling to change its mind.  Rather it is apparent that, particularly in the second hearing, the Tribunal gave the applicant the opportunity to address its concerns with his case and to address the critical issues.  The fact that the Tribunal then delivered an oral decision does not establish actual or apprehended bias.   No jurisdictional error whether consisting of a denial of procedural fairness or otherwise is established from the fact of the oral decision. 

4. For the sake of completeness I mention also that the applicant took issue in oral submissions with the Tribunal findings and addressed briefly the present situation in Bangladesh.  This is not a re-hearing.  Merits review is not available.  The applicant's claims about the present situation in Bangladesh do not assist in determining whether the Tribunal made a jurisdictional error at the time of its decision.  Nor does the fact that the Tribunal did not believe the applicant established a jurisdictional error.  Creditability is a matter for the Tribunal par excellence: Durairajasingham (Minister for Immigration & Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407). The Tribunal findings in relation to creditability, the alternate basis for its conclusions, were open to it on the material before it.

5. No jurisdictional error has been established.  Accordingly, the application must be dismissed. 

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful. It is appropriate that he meet the respondent's costs. The amount sought by the respondent is appropriate in light of the nature of this and other similar matters and costs should be fixed under the Federal Magistrates Court Rules.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  9 August 2004