SZBDL v Minister for Immigration
[2005] FMCA 58
•11 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBDL v MINISTER FOR IMMIGRATION | [2005] FMCA 58 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Bangladesh – asserted procedural unfairness – applicant claiming illness but adjournment refused – hearing allegedly perfunctory and biased – no reviewable error found – application dismissed. |
Judiciary Act 1903(Cth), s.39B
Migration Act 1958 (Cth), s.36
Azzi v Minister for Immigration (2002) 120 FCR 48
Muin v Refugee Review Tribunal (2002) 190 ALR 601
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SBBS v Minister for Immigration [2002] FCAFC 361
Stead v State Government Insurance Commission (1986) 161 CLR 141
WAGJ v Minister for Immigration [2002] FCAFC 277
| Applicant: | SZBDL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1565 of 2003 |
| Delivered on: | 11 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 31 January 2005 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr M Wigney |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
CORRECTED JUDGMENT
The words “revised from transcript” have been deleted from page 1 of the reasons for judgment, as this was a reserved judgment.
I certify that the preceding paragraph is a true copy of the Corrected Judgment to the Reasons for Judgment of Driver FM
Associate:
Date: 15 February 2005
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1565 of 2003
| SZBDL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(CORRECTED JUDGMENT)
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 20 June 2003 and handed down on 16 July 2003. The RRT affirmed a decision of a delegate of the respondent Minister not to grant the applicant a protection visa.
The applicant is a national of Bangladesh. He is one of three seamen who jumped ship from the Iranian vessel MV Iran Jamal on the night of 13 July 2001, when it was docked in Sydney. All three applicants lodged separate applications for protection visas with the Minister’s department. All three applicants used the same migration agent. The application by this applicant was considered separately by the delegate and the RRT. The applicant applied for a protection visa (class XA) on 19 July 2001[1]. The applicant claimed to be at risk of religious persecution in Bangladesh. The background to that application and the examination by the RRT of it is set out in paragraphs 1.3-3.3 of written submissions prepared on behalf of the Minister by Mr Wigney. I adopt those paragraphs by way of background:
[1] The visa application is at court book, pages 2-27
The basis of the applicant’s claim to entitlement to a protection visa were initially set out in a statement that accompanied his visa application[2] and was the subject of oral evidence before the RRT. The substance of the applicant’s claim is that he fears returning to Bangladesh on the grounds of his religion. He claims to be a member of the “Ahmedi Sect” in Bangladesh and that, as a result, he was subject to various discriminatory and violent incidents when he resided in Bangladesh.
[2] court book, pages 26-27.
On 22 April 2002 the applicant’s visa application was refused by a delegate of the respondent.[3] The delegate was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention.[4]
[3] court book, pages 64-71.
[4] This being the relevant criterion for the grant of a protection visa: s.36(2) of the Migration Act 1958 (Cth) (“the Migration Act”).
RRT proceedings
On 16 May 2002, the applicant applied to the RRT for a review of the delegate’s decision. A hearing was convened on 19 June 2003. The applicant had requested that the hearing be postponed because he was ill,[5] however the Tribunal denied this request and the hearing proceeded on the scheduled date. The applicant gave oral evidence at the hearing with the assistance of a Bengali interpreter.
On 16 July 2003 the Tribunal handed down its decision affirming the decision of the delegate refusing the applicant’s visa application.[6]
The RRT’s decision and reasons
The RRT’s decision to affirm the delegate’s refusal of the applicant’s visa application was based on the following two critical factual findings:
a)the RRT found that the applicant was not an Ahmadiyya, nor that he was committed to living as an Ahmadiyya and did not accept that he had suffered persecution for reasons of being identified by others as an Ahmadiyya;[7]
b)the RRT found that even if the applicant was an Ahmadiyya, it was not satisfied that there are any “ongoing matters of serious concern” involving Ahmadiyya Muslims and therefore the applicant did not face a real chance of persecution in Bangladesh.[8]
The RRT set out the basis for these two critical findings in its reasons. The first finding was based on the RRT’s assessment of the applicant’s evidence as being “variously inconsistent, self-contradictory, vague and sensationalist.”[9] The second finding was based largely on “country information” that was before the Tribunal in relation to the situation of Ahmadiyya in Bangladesh.
As a result of these factual findings, the RRT concluded that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention and that therefore he did not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
[5] court book, pages 93-94
[6] court book, pages 100-115.
[7] court book, page 113.1.
[8] court book, page 113.7.
[9] court book, page 113.5.
The application for review
Mr Wigney accurately identifies the grounds of review advanced by the applicant in paragraph 4.1 of his written submissions. I adopt that paragraph:
On 8 August 2003 the applicant filed an Application in this Court seeking a review of the RRT’s purportedly pursuant to s.39B of the Judiciary Act 1903 (Cth). The application contains seven grounds of appeal which may be summarised as follows:
(1)The decision was an improper exercise of power because there was “no material to justify” it.
(2)The RRT failed to accord the applicant “substantial justice”.
(3)The RRT “failed to investigate the authenticity of documents filed by the applicant” and made the decision based on country information.
(4)The RRT did not provide the applicant with an opportunity to comment on material the RRT relied on and therefore denied the applicant procedural fairness.
(5)The RRT’s findings in relation to the Ahmadis’ situation in Bagladesh was inaccurate.
(6)The decision was made in bad faith.
(7)The RRT made a jurisdictional error.
Evidence and submissions
I received the court book as evidence for the purposes of proceedings in this Court. For reasons which appear later, I also received as evidence the audio tape of the RRT hearing. Both parties prepared written submissions and also made oral submissions.
The applicant also asked me to look at two sets of documents. The first was a bundle of papers relating to the situation of adherents of the Ahmadiyya sect in Bangladesh. The applicant told me that the bundle included documents appearing on pages 55, 61,169, 170, 171 and 209 of the court book. I declined to look at those documents on the basis that they were already before me in the court book. The applicant told me that the balance were documents that had come into his possession in the last two weeks and which he believed showed the risk faced by Ahmadi adherents in Bangladesh currently. I declined to receive those documents on the basis that they could not assist me in identifying any jurisdictional error in the decision of the RRT. I suggested to the applicant that he might like to draw these documents to the attention of the Minister’s department if he considered that they supported a more favourable decision than the one made by the RRT.
The other document was a letter of advice from the applicant’s panel adviser to the applicant. I declined to look at that letter until the applicant had formed a considered view whether he wished to waive legal professional privilege in it. Upon reflection, the applicant said that he only wanted me to look at one paragraph. In that paragraph, the solicitor stated:
We indicated to you at our meeting that if you were able to provide more evidence it might be possible to argue that the RRT member did not approach your hearing with an open mind, and therefore exhibited bias against you, and also that the member failed to give you an adequate opportunity to be heard. You instructed us that your hearing lasted approximately 30 minutes, at which point the member stopped the hearing saying “I don’t believe you. I’m going to stop the hearing now”. You also instructed that you wished to give further evidence, but were unable to do so. However you did not bring this to the member’s attention, although you did ask if you could add more pages to your statement. Your Green Book also shows that the member sent you correspondence stating that “the Tribunal does not have many questions to ask. [The hearing] will take not much longer than the Applicant’s visit to the doctor”. You instructed that at the hearing the member also informed you that the hearing would not take very long.
These assertions are set out in the applicant’s written submissions. He had, up to the time of the hearing before me, provided no evidence to support the assertions. In his oral submissions, the applicant invited me to listen to the tape recording of the RRT hearing. Given the serious allegations made by the applicant and the asserted perfunctory nature of the hearing I agreed to listen to the tape. I listened to portions of the tape during the course of the hearing in order to give the parties the opportunity to make appropriate submissions. Those portions established that the hearing lasted for somewhat less than an hour and probably more than 30 minutes[10]. Contrary to the applicant’s assertions, the presiding member did not say at the end of the hearing “I don’t believe you. I’m going to stop the hearing now”. Rather, the applicant said to the presiding member, in relation to a question asked by the presiding member about the authenticity of a document relied upon by him, that he did not have anything else to say if the presiding member did not believe it. The presiding member then terminated the hearing. The full tape recording shows that this was on the basis that the presiding member had earlier said that there were no more questions that he wanted to ask.
[10] The full tape recording establishes that the hearing lasted 50 minutes.
In his submissions in reply, the applicant also asserted that there was a discussion about his state of health at the beginning of the hearing which might appear on the tape. This was confirmed by my playing of the beginning of the tape during the course of the trial. The tape establishes that the presiding member discussed with the applicant his state of health and satisfied himself that the applicant was fit to proceed with the hearing. The applicant had complained of a sore neck and shoulder and the presiding member formed the view that this would not prevent the applicant listening to questions and answering them. The presiding member asked the applicant if he was taking medication. The applicant said that he was but was not able to say what medication it was. He did not have the tablets or the prescription with him. The applicant appeared lucid and this apparently caused the presiding member to form the view that the hearing could proceed.
The applicant also asserted, for the first time in his submissions in reply, that the tape would also disclose that the presiding member refused a request by him for the opportunity to put before the RRT material that had been overlooked by his migration agent. I listened to the entire tape after the hearing in order to see whether this claim could be verified from the audio recording. Towards the end of the hearing the applicant told the presiding member that if he were given more time, he could produce material that he had left out of his protection visa application relating to “two or three incidents”. The applicant did not say what those incidents were and put the reason for the omission down to fear, rather than a mistake by his migration agent. The presiding member refused the applicant’s request, on the basis that he had had plenty of time to put before the RRT whatever he wished and he had been assisted by two different migration agents.
Reasoning
Mr Wigney deals comprehensively with the grounds raised in the application in paragraphs 6.1-6.12 of his written submissions. I agree with those submissions and adopt them for the purposes of this judgment:
The applicant has not demonstrated that the RRT’s decision involved any error which would justify intervention by this Court, let alone a jurisdictional error in the light of s.474 of the Act.
Ground (1)
Both of the critical findings made by the RRT were open to it to make on the basis of the material that was before it. The first finding was based on what the RRT considered to be inconsistencies, contradictions and other inadequacies in the applicant’s evidence and his performance as a witness. Whilst some of the matters relied on by the RRT in rejecting the applicant’s evidence may appear to be tenuous and may not have been persuasive to another decision-maker, other matters were significant and clearly provided a proper basis for the adverse credibility finding. Judgments as to the credibility of an applicant’s evidence are matters for the RRT and are not open to challenge on review. The contention that there was no material before the RRT to justify this finding must be rejected.
The second critical finding by the RRT was based on country information that was before the RRT and referred to in its reasons. That country information plainly supported the finding. The delegate had made a similar finding based on largely the same material. The contention that this finding was not supported by evidence must be rejected.
Grounds (2) and (4) - procedural fairness
The applicant’s primary contention is that the RRT did not give him the opportunity to comment on material that it relied on in making its decision.
The RRT’s adverse credibility finding was based largely on inconsistencies and problems with the applicant’s evidence. It is apparent from the RRT’s reasons that most of these inconsistencies and problems were taken up with the applicant at the hearing. There was no denial of procedural fairness in relation to this finding.
The second finding by the RRT was based on information that was in substance the same as information relied on by the delegate in making effectively the same finding.[11] The applicant was clearly on notice of this information and had the opportunity to address it at the hearing before the RRT. To that extent the information was “obvious” and the applicant had adequate opportunity to comment on it even if it was not specifically adverted to by the RRT in the course of the hearing.[12] It is not in any event conceded by the respondent that this information was not adverted to during the hearing. It is for the applicant to demonstrate to this court that he was not given the opportunity to comment on the information. He has not satisfied that burden in this case.
[11] See court book, pages 69.9-70.7.
[12] Cf. Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [128]-[134].
Nor has the applicant demonstrated that any opportunity may have been given to comment on the evidence relating to the second finding could have made any difference to the outcome of the matter. Clearly it could not have changed the outcome of the matter because the RRT would in any event have affirmed the delegate’s decision based on its first finding (that the applicant’s evidence lacked credibility). On that basis relief should be refused in the exercise of the court’s discretion even if the applicant demonstrates that he was denied procedural fairness in relation to the second finding.[13]
Ground (3)
The RRT was not obliged to “investigate the authenticity of the documents.”[14] The problems with the document were apparent on their face and the applicant was given the opportunity to comment on these problems. The applicant had nothing to say about these problems.[15] It was open to the RRT to find that the documents were not authentic for the reasons given by it.
As for the suggestion that the RRT erred because its decision was based on country information that “is not comparable with the present situation,” this amounts to nothing more than a challenge to the merits of the decision. It cannot amount to a jurisdictional error.
Ground (5)
This ground amounts to nothing more than a challenge to the merits of the decision. Even if substantiated, it cannot amount to a jurisdictional error.
Ground (6)
The allegation of bad faith has no substance and must be rejected. An allegation of bias or bad faith is a serious allegation involving personal fault on the part of the decision-maker and is not to be made lightly or without proper proof. Cases in which the allegation has been made out are “rare and extreme”, particularly where reliance is placed on the decision-maker’s reasons alone.[16] There is no basis for a finding of bad faith in this matter.
Ground (7)
This ground is merely an assertion of jurisdictional error. The RRT made no jurisdictional error. The RRT’s reasons clearly show that the RRT considered the applicant’s visa application and all of the evidence and other material put forward by him, correctly addressed the relevant visa criteria and relevant law and reached a state of non-satisfaction concerning the criteria. The RRT’s non-satisfaction concerning the relevant criteria was based entirely on factual findings that were open to the RRT on the evidence and materials before it.
[13] Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [131].
[14] WAGJ v Minister for Immigration [2002] FCAFC 277; cf. Azzi v Minister for Immigration (2002) 120 FCR 48 at [112].
[15] court book, page 111.6.
[16] SBBS v Minister for Immigration [2002] FCAFC 361 at [42]-[48].
At the time of the hearing on 31 January 2005 Mr Wigney had not seen the applicant’s written submissions. There is nothing in those submissions to support the assertion of bias and bad faith but the assertion of a want of procedural fairness required further consideration. On 17 June 2003 the applicant’s migration agent wrote to the RRT to advise that the applicant was sick and unable to attend the hearing scheduled for 19 June 2003. A medical certificate from the Bunnerong Road Medical Centre was attached[17]. On 17 June 2003 the RRT wrote to the applicant and his migration agent to advise that the request for an adjournment had been refused[18]. It is apparent from that letter that the RRT took the view that the medical certificate did not point to an inability to attend a tribunal hearing (as opposed to work), that the hearing was anticipated to be an hour or less and that it would be contrary to the public interest to adjourn the hearing. The audio recording confirms that the presiding member at the commencement of the hearing asked the applicant questions about his condition and any medication that he might be taking. The applicant complained of soreness in the neck and shoulder but there was no obvious reason why he could not attend a relatively brief hearing in order to answer questions and put whatever he wished before the RRT orally. In my view, the presiding member properly satisfied himself at the commencement of the hearing that the applicant was fit to proceed.
[17] court book, pages 93-94
[18] court book, pages 95-96
It is apparent from the decision and reasons of the RRT that the applicant failed because he was disbelieved. The presiding member took an adverse view of the applicant’s credibility based significantly on the applicant’s performance at the hearing. The audio tape confirms that the presiding member’s credibility concerns were justified. The applicant’s answers to questions put to him gave the strong impression that he was simply making up facts as he went along. The presiding member concluded[19] that the adverse view he had formed about the applicant’s credibility could not be explained by the applicant’s illness. It follows that the presiding member considered whether an adverse credibility finding was appropriate in the face of the claim of illness by the applicant. I find that the presiding member approached the assessment of the applicant’s medical condition properly and there was no procedural unfairness in the approach taken by him.
[19] court book, page 113
There is no special significance in the brevity of the hearing. The hearing was nearly twice as long as the applicant claimed. The presiding member asked the applicant all the questions that he wished to and gave the applicant ample opportunity to respond. The applicant had an opportunity to explain his protection visa application more fully than he had in writing. Contrary to the applicant’s assertion, there is nothing to substantiate his claim that the presiding member refused the applicant the opportunity to overcome any gaps in the presentation of his claims by his migration agent. The presiding member did refuse to give the applicant more time to bolster his claims by reference to more unspecified “incidents”. That refusal was justified and was not procedurally unfair. The applicant’s claims were lies and were seen to be lies. I agree with the presiding member that the applicant had had ample time to put his claims to the RRT. The request for time to add to his claims was no more than a ploy to achieve delay.
There was no procedural unfairness in the conduct of the hearing by the RRT. There was no jurisdictional error in the decision of the RRT. The decision of the RRT is a privative clause decision and the application to this Court must therefore be dismissed.
On the question of costs, it is appropriate that costs should follow the event. The amount of preparation required of the Minister in this case supports an assessment of costs on a party/party basis fixed in the sum of $4,000.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 February 2005
5
6
0