SZBCP v Minister for Immigration - [2005] FMCA 38

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCP v MINISTER FOR IMMIGRATION

[2005] FMCA 38

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91X, 422B, 424, 424A, 474
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Minister for Immigration & Multicultural & Indigenous Affairs v Jia [2001] HCA 17
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
Singh v Minister for Immigration & Ethnic Affairs (1996) 42 ALD 271
Minister for Immigration & Ethnic Affairs v Singh (1997) 144 ALR 284
Meadows v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 370
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510

Applicant:

SZBCP

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG1525 of 2003

Delivered on:

11 February 2005

Delivered at:

Sydney

Hearing date:

16 December 2004

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an interpreter.

Counsel for the Respondent:

Miss R M Henderson

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1525 of 2003

SZBCP

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 22 June 2003 and handed down on 22 July 2003, affirming the decision of the delegate of the respondent (“the delegate”) made on 26 February 2002 to refuse to grant the applicant a protection visa.

Background

The applicant in these proceedings is not to be identified pursuant to the provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given a pseudonym “SZBCP”. The applicant, who claimed to be a citizen of Bangladesh, arrived in Australia on

3 October 2001. On 30 October 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 26 February 2002 the delegate refused to grant a protection visa and on 12 March 2002 the applicant applied for a review of that decision.
The applicant was born on 5 October 1969 and is a Muslim, has never married and his parents and brother continue to live in Bangladesh. Form birth the applicant lived and subsequently attended school in Dhaka. He gave his occupation as “private service” but provided no details of any previous employment. When the applicant arrived in Australia he was travelling on a Bangladeshi passport with an Australian temporary business visa (Court Book pp.264-265) (“CB”).
The applicant indicated in a statutory declaration which accompanied his application that he feared persecution because of his political activities in the Chattra League (CB pp.31-35). The applicant claimed that:
a)He was the Vice President of the Jumbo League, Ward No. 89;
b)In November 1999 some Bangladesh Nationalist Party (BNP) terrorists tried to kill him because of his involvement in a business dispute; as a result he left Old Dhaka and hid in various places in new Dhaka throughout 2000;
c)Throughout 1999-2001 BNP supporters banned his political activities in old Dhaka and forced him to leave “his locality”;
d)In September 2000 while he was on his way to a rally, BNP terrorists attacked him and tried to cut his tendon; he was left unconscious on the road and had to admit himself to a clinic for first aid;
e)In retaliation, his supporters attacked a Chattra Dal rally, wounding one of their number, who later died; Chattra Dal held the applicant responsible and began searching for him;
f)A few days later he learned that Chattra Dal ‘filed a murder case’ against him; and
g)
The BNP killed at least 100 Awami League supporters after

1 October 2001 election; he learned on 22 October 2001 that they were still searching for him.
The applicant also stated in his statutory declaration that he would provide further documentation in favour of his claim, but no further documents were submitted.

The Tribunal’s findings and reasons

The applicant lodged an appeal to the Tribunal on 12 March 2002. The applicant attended the Tribunal hearing on 5 May 2003 and gave oral evidence (CB p.266). In the course of that evidence, the Tribunal member invited the applicant to comment on aspects of the delegate’s decision (CB pp. 268-269) as follows:
a)The applicant’s ability to leave Bangladesh legally despite an alleged case against him;
b)The prevalence of violence in party politics in Bangladesh; and
c)The capacity of the judicial system to provide protection from false cases.
On 16 May 2003 the applicant’s representatives forwarded to the Tribunal some supporting documents which they said the applicant had recently received from Bangladesh.
Set out in its “Findings and Reasons” section of the decision, the Tribunal made the following findings:
a)The applicant was a supporter and member of the Awami League, who took part in processions and protests organised by the Awami League.
b)He was not a vice president of a local branch. He did not demonstrate the knowledge of party activities and policies consistent with that role.
c)The letters from Awami League officials submitted to the Tribunal before and after the hearing were to be given little weight in the context of the applicant’s evidence.
d)The applicant was not targeted by the BNP and was not forced to live in hiding.
e)A robbery which took place at a business which the applicant part owned may have been perpetrated by members of a local BNP branch, but the crime was not politically motivated.
f)There was no murder case – if there were, the applicant could not have left Bangladesh legally.
g)Documents relating to a second alleged false charge were not authentic.
h)If the documents were authentic, the applicant could resist the false charges in the judicial system.
i)The applicant may have been injured in a political protest, but he was not obliged to be involved in such protests; the injuries did not result from systematic discriminatory conduct by the BNP or the BNP government, and there was no failure of state protection.
j)Low profile Awami League members are not targeted.
k)The applicant could relocate within Bangladesh.
l)If the applicant returned and resumed his prior activities, his chance of persecution would be less than remote. (CB pp.279-285)

Application for review of the Tribunal’s decision

On 5 August 2003 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following grounds:
“1.Tribunal was acted on bad faith. They made error of law, procedural fairness and denial of my protection visa by not accepting me as a genuine refugee.
2.Tribunal did not investigate my claim and document. I believe that there must be some error of law in my case. I would request the RRT to consider my case and grant my protection visa according to law.” (Errors included)
On 6 December 2004 the applicant filed written submissions which included “Further Amended Grounds” as follows:
“a)The Refugee Review Tribunal exceeded its jurisdiction in failing to accord the applicants (my) procedural fairness as required under section 424A(1), section 418(3) of the Migration Act 1958.
b)That the tribunal denied the applicant’s procedural fairness/natural justice.
c)Tribunal’s decision was affected by actual bias and apprehension.
d)The applicant relied upon ‘Country Information’ without providing the applicant with a real opportunity to comment on that information.
e)The tribunal failed to act in a bona fide manner in relation to the making of the decision.
f)The tribunal relied upon general information about Bangladesh and failed to find the real picture, torture on the political party members, which is fully convention based persecution the application relied upon.
g)The tribunal relied upon outdated reports to determine the state of affairs in Bangladesh.” (Errors included)

The law

The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

The applicant filed written submissions prior to the hearing and in the text of those submissions he claimed that:
a)The Tribunal was bound to particularise its potential findings on the authenticity of documents and on dishonesty.
b)The Tribunal was obliged to verify the authenticity of documents.
c)The adverse findings were not supported by positive evidence.
d)The Awami League documents were not taken into account.
e)The applicant’s subjective state of mind was not considered.
f)There was no need to have high profile political involvement.
g)The delegate did not give the Tribunal the Part B documents.
Miss R M Henderson of Counsel, appearing for the respondent, filed written submissions prior to the hearing supported by oral submissions during the hearing.

Reasons

The applicant in these proceedings was self represented and appeared with the assistance of a Bengali interpreter. The grounds in the original application were vague and unparticularised. However at the hearing, the applicant filed extensive written submissions identifying new grounds which are supported in part by particularisation and legal argument. Where an applicant is self represented the Court must independently consider whether any arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors. The manner in which the grounds have been drafted and presented to the Court resulted in some overlapping of issues mixed with bald statements which were unsupported by any evidence. I will address each ground or issue in turn in an endeavour to ensure that each is satisfactorily addressed.
The applicant’s first issue was the claim of bias and bad faith. The applicant’s submissions did not point to any material to support the allegation of bias. The party asserting actual bias on the part of the decision maker carries a heavy onus and the allegation must be distinctly made and clearly proved: Minister for Immigration & Multicultural & Indigenous Affairs v Jia per Gleeson CJ and Gummow J at [69], Kirby J at [127].
The applicant’s second ground related to the claim of denial of procedural fairness and natural justice. The applicant contended the Tribunal was bound by s.424A of the Act to particularise its potential findings on the authenticity of documents and evidence supplied by the applicant and give the applicant an opportunity to comment on these findings. The applicant submitted that s.422B was not effective in excluding from the Act administrative law requirements of natural justice and accordingly, the failure of the Tribunal to give the applicant an opportunity to respond to its concerns in relation to the documents constituted a denial of procedural fairness and/or natural justice. The notion of basic fairness required that the Tribunal, before making a finding of dishonesty that would be destructive to a party’s case, give that party the opportunity to address the issue in their evidence and submissions. These contentions were not supported by authority as the Tribunal was not required to notify an applicant in advance of any adverse findings which it may make, and to invite the applicant to make submissions on them: Re Refugee Review Tribunal; Ex parte Aala per Gaudron and Gummow JJ at [76]:
“There is no universal proposition that before the Tribunal ever makes a finding adverse to an applicant, it is necessary for the Tribunal to put to the applicant the concerns which are inclining the Tribunal towards such an adverse finding. The procedure is inquisitorial and not adversarial. The requirement of procedural fairness did not require the Tribunal when, pursuant to par (a) of s.425(1), it gave the prosecutor the opportunity to appear before it to give evidence, to treat what transpired ‘as though it were a trial in a court of law’.”
The applicant contended that the Tribunal was obliged to put to the applicant the country information which it cited when it determined that the documents relating to the second false charge were not authentic (in the statutory declaration the applicant claimed a false murder charge, the second charge was raised during the Tribunal hearing). The applicant submitted these documents (CB pp.241-257) under cover of a letter dated 15 May 2003 (CB p.240). The Tribunal discussed these documents in its decision (CB pp.282-283). The Full Court decision in Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (“NAMW”) has resolved the question of whether s.424A of the Act imposes an obligation on the Tribunal to give the country information to the applicant and invite him to comment on it. On the reasoning in NAMW, procedural fairness does not demand that every item of country information that is mentioned in a Tribunal decision must be disclosed to an applicant and that he must be invited to comment on it. It is necessary to consider, in each individual case, what role the information played in the decision making process. An examination of the decision (CB pp.282-283) show that the two items of country information played a minor role amongst the range of considerations which the Tribunal took into account. The Tribunal specifically addressed the possibility that the documents may be authentic. It made a finding that if the documents were authentic, the applicant would be able to resist any false charges through the Bangladeshi judicial system. The availability of recourse to the judicial system was a matter which the Tribunal member ventilated with the applicant during the hearing (CB p.269).
The applicant contended the Tribunal was obliged to verify the authenticity of the documents and evidence provided by the applicant or from third parties before calling those documents into question. The applicant relied on the authority of Singh v Minister for Immigration & Ethnic Affairs. The relevant passage from Minister for Immigration & Ethnic Affairs v Singh per Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ at page 291, line 5:
“These provisions show that the Tribunal’s role, in cases that come before it for review is not a passive one, although the circumstances in which the Tribunal could be found to be under an obligation to make a particular inquiry will no doubt be rare …”
Whoever assisted the applicant in the preparation of his written submissions failed to demonstrate that the circumstances in the applicant’s case placed the Tribunal under that unusual obligation. No oral submissions were made in this respect.
The applicant contended the Tribunal’s adverse finding in relation to his claimed political activities and false persecution were not supported by any positive evidence by the Tribunal. As such, the rejection of the applicant’s claim for refugee status was barred by a failure to follow proper procedures as required by law. This contention was supported by the authority in Meadows v Minister for Immigration & Multicultural Affairs. The Tribunal’s decision clearly demonstrated there was no lack of positive evidence to support its finding. The Tribunal’s proceedings are inquisitorial in nature and each of the applicant’s claims were raised with him during the oral hearing and evaluated. It was not the Tribunal’s role to be the contradictor of the applicant’s case. In order words, the Tribunal was not required to call evidence against the applicant before deciding whether it would accept his evidence. The inconsistencies in the applicant’s claimed responsibilities as the alleged vice president of the local Awami League branch was sufficient for the Tribunal that it did not accept that he held this claimed role (CB p.280). It was not the responsibility of the Tribunal to obtain positive evidence that the applicant ever held the post of vice president of the local Awami League branch.
The applicant contended the Tribunal failed to take into account the documents provided by the “Central Leaders of the Bangladesh Awami League” and that it did not refer to those documents. To the contrary, the Tribunal made an explicit finding on this matter (CB p.281):
“The Tribunal has considered the contents of the letters from Awami League officials submitted by the applicant prior to and post hearing. The Tribunal notes that the post hearing letter purports to be from the Convenor of the Central Committee of the Awami League but he does not set out his name in print although a signature which is illegible has been affixed. The Tribunal gives little weight to the information in these letters considering the overall context of the evidence given by the applicant at hearing.”
The applicant contended the Tribunal erred at law in failing to consider the applicant’s subjective state of mind in considering whether or not the applicant had a well-founded fear of persecution. On the contrary, it was unnecessary for the Tribunal to make a finding about the applicant’s subjective state of mind, in light of its findings that the objective elements necessary to establish a well-founded fear of persecution had not been established.
The applicant based his claim for a protection visa on the assertion that he was a leader of a local branch of the Awami League, and he was subjected to persecution because he was perceived as a leader by opponents of the League. However, the applicant’s submissions asserted that it was not necessary for him to have a high profile political involvement. The question of whether the level of an individual’s political involvement would affect the likelihood that he or she would be persecuted was a question of fact for the Tribunal and it is not for this Court to review the merits of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang. Nor is it for this Court to determine whether the Tribunal had made a wrong finding of fact: Abebe v Commonwealth of Australia at [137].
There was no evidence to support the applicant’s claim that the material referred to in Part B of the delegate’s decision (CB p.44) was not before the Tribunal. The evidence was to the contrary. The Tribunal stated:
“The Tribunal also had regard to the material referred to in the delegate’s decision.” (CB p.264).

Conclusion

The applicant’s written submissions raised a number of grounds not formally pleaded. However, each of these have been considered and addressed. No jurisdictional errors have been identified. Many of the authorities quoted by the applicant have been misunderstood and inappropriately applied. The applicant is dismissed.
I am satisfied that an order for costs should be made in this matter. I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 11 February 2005