SZBDW v Minister for Immigration
[2005] FMCA 891
•25 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBDW & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 891 |
| MIGRATION – Review of decision of Refugee Review Tribunal – Bihari from Bangladesh – procedural fairness – genuineness of documents – credibility –obligation to disclose information – alleged failure to deal with serious political charge – alleged failure to deal with physical torture – privative clause Judiciary Act 1903 (Cth), s.39B Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 |
| Applicants: | SZBDW, SZBDX, SZBDY, SZBDZ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1572 of 2003 |
| Delivered on: | 25 May 2005 |
| Delivered at: | Sydney |
| Hearing date: | 25 May 2005 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Ms M Allars |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be dismissed.
The first and second applicants pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1572 of 2003
| SZBDW & ORS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from a transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 21 June 2003 and handed down on
17 July 2003.
The applicants come from Bangladesh and arrived in Australia on
17 January 2001. On 15 February 2001 they applied for protection visas. The second, third and fourth applicants – the first applicant’s wife and two daughters – were also applicants for protection visas but made no independent claims on their own. They relied on the claims of the first applicant who for the present purposes I will refer to as “the applicant”.
On 27 June 2001 a delegate of the Minister refused the applications and on 24 July 2001 all applicants applied to the Tribunal to have the matter reviewed. Each of them gave oral evidence before the Tribunal at a hearing on 4 December 2002. On 21 June 2003 the Tribunal affirmed the decision of the Minister’s delegate to refuse to grant protection visas. The Tribunal’s decision was handed down on
17 July 2003. The applicants sought judicial review in this Court on
9 August 2003.
Claims before the Department and the Tribunal
The following claims were principally made in a statutory declaration attached to the protection visa applications and sworn on
15 February 2001 by the applicant. He claims to be a stateless Bihari refugee who was born in Bangladesh. He says that he is a victim of ethnic rivalry which began in the 1990s. At the time of the liberation of Bangladesh the Bihari lost lives, belongings, homes, jobs and businesses and women were raped and kidnapped by the local Bengali population as the Bihari were on Pakistan’s side and did not support the independence movement.
The applicant could not find work because of discrimination against the Bihari. Hence he started a business in Khalishpur which included overseas business ventures. He joined some welfare organisations and from 1990 was involved in Bihari repatriation programs to Pakistan. He stated that some families, his included, merged with mainstream society, established businesses and took Bangladesh nationality “directly or indirectly”.
He says that in 1991 his niece was kidnapped by a local “terrorist” and held for several days. He and his brother went to the police and the police arrested two “suspects”, but they were not charged. He felt that they did not have “proper judgment”, or rather punishment, because of their ethnicity. He said this positive discrimination was a common occurrence. Despite the Bangladeshi Cruelty to Women Act 1983 crimes such as this went unpunished.
In 1991 Bihari leaders asked him to join a committee which protested against human rights abuses in the refugee camps. In July 1991 he organised a large procession for human rights in Bihari refugee camps and was attacked as the main target by “Awami league terrorists”.
He was injured with a knife and received stitches and was in hospital for two weeks.
The applicant heard that the police blamed him for being the organiser. He says that the police filed a case against him under the Special Power Act 1974, searched his office and home, beat his supporters in the camp and also forced a written statement from them. The applicant took fright, left the area and stayed in Dhaka.
He went to the Maldives in 1992 and then to Singapore. In January 2000 he returned to Bangladesh. In July 2000 was picked up and taken to an army camp in Jessore where he was questioned about his involvement with the Bihari community and its organisations.
The army and the Special Forces then threatened his family. The applicant’s brother received calls from members of the Awami League saying they would kill the applicant.
The applicant also fears police harassment because of the “long tradition” of killing people in detention. He claims that he and his family are also fearful of the mainstream Bengalis and that he will be severely persecuted and even killed if he returns to Bangladesh.
These claims were further developed in a submission to the Tribunal and at the oral hearing on 4 December 2002.
At the hearing he further stated that he had been a member of the Baha’i faith since 1985. He only made this claim in his submissions to the Tribunal in November 2002 and had said he was a Muslim in his protection visa application.
Tribunal decision
The Tribunal decision is accurately summarised in the respondent’s submissions at paragraphs 2.2 and 2.3:
2.2The Tribunal found that the first applicant was a citizen of Bangladesh. In relation to the first applicant’s claims concerning particular incidents, the Tribunal:
(i) found most aspects of the claims were inconsistent, contradictory, implausible and unconvincing to such an extent that the Tribunal could not establish the facts;
(ii)found that even accepting the applicants may be ethnic Biharis, it was unable to accept they were persecuted as a result;
(iii)found that their claim to have been residents of the Geneva camp in Dhaka was inconsistent with the claim that they had always lived in Khulna;
(iv)found that the date of December 1992 on the census receipt for the Geneva camp was inconsistent with the first applicant’s evidence that he left Bangladesh in February 1992;
(v)found that two letters from the SPGRC dated May 2001 contained assertions which were inconsistent with the first applicant’s other claims and which on their face not plausible;
(vi)found that the date of the ration card was inconsistent with other evidence and the card on its face did not appear genuine;
(vii)in light of (iii) – (vi) above, was not satisfied the applicants were stateless Biharis;
(viii)did not accept that the first applicant was a member of the SPGRC;
(ix)found that the document stating the first applicant was convicted of murder was on its face not genuine;
(x)found that a letter from a lawyer submitted by the first applicant was not genuine;
(xi)was not satisfied that the first applicant was an activist for Bihari rights in Bangladesh, or the victim of false cases being filed, or convicted of murder or that Awami League terrorists wanted to kill him;
(xii)did not accept the first applicant’s claim that he was taken from Khulna to Jessore for questioning by the army intelligence on 10 July 2000;
(xiii)found that extensive travel by the first applicant on a Bangladeshi passport indicated he was not of adverse interest to the Bangladeshi authorities; and
(xiv)did not accept his claim that he is now a Baha’i and would be harmed by fanatical Muslims if he returned to Bangladesh; and in any event his claim to be a refugee sur place would be excluded by s 91R(3) of the Act.
2.3The Tribunal concluded that the first applicant was not a person to whom Australia has protection obligations.
Consideration
The amended application filed on 2 February 2004 contains two grounds and associated particulars with which I propose to deal in turn. The applicant only elaborated on two particulars in oral submissions at the hearing before me. These were that if the Tribunal had concerns about the genuineness of documents it could have and should have investigated those concerns. Similarly it should have investigated when the applicant became a Baha’i and the genuineness of his participation in the Baha’i faith.
Ground one is:
The Tribunal exceeded its jurisdiction, in failing to accord the Applicants procedural fairness as required under section 424A(1) of the Migration Act 1958.
The application provides no particulars of the material or information which the applicant alleges should have been disclosed to him under s.424A of the Migration Act 1958 (Cth) (the Act).
In ground 2(a) the applicant refers to
Australian embassy reports or any other adverse materials, which form part of the reasons of the Tribunal’s decision dated
21 June 2004.
It appears from the Tribunal decision there were two sets of specific documents on which it relied in relation to document fraud. The first was a series of cables from the Australian Department Foreign Affairs and Trade and the second from the US State Department Bureau of Democracy, Human Rights and Labour (see Court book pages 213-214). The Tribunal also referred to a US State Department document and a further document identified as CX44109 when considering the issue concerning Biharis in Bangladesh.
If this is the country information to which the applicant is referring in ground one, subs.424A(3)(a) excludes information:
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 …
The country information referred to by the applicant is not required to be disclosed under s.424A: see Minister for Immigration v NAMW [2004] FCAFC 264 and SZANH v Minister for Immigration [2004] FCA 1280.
Ground two says:
The Refugee Review Tribunal did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed.
Certain particulars are provided in relation to ground two but as the respondent suggested they could more properly be treated as separate grounds of review. I will deal with each particular separately.
Ground 2(a):
The Tribunal did not provide the Applicant with particulars of information to the Applicant, in the Australian Embassy reports or any other adverse materials, which formed part of the reasons of the Tribunal’s decision dated 21 June 2002.
I have already referred to the documents about which it appears the applicant is concerned. They relate to document fraud and the position of Biharis in Bangladesh. For reasons given above I do not consider that there has been any breach of s.424A. Was there any procedural unfairness at common law?
Turning to the question of document fraud, the Tribunal examined the documents which were provided by the applicant. At the hearing in December 2002 it put to the applicant in some detail its concern about the inconsistencies in his evidence and about the genuineness of the documents he provided to the Court.
It was particularly concerned about inconsistencies between the information contained in the documents and other evidence which the applicant had given to the Tribunal. The documents included letters from the SPGRC, an identity card and ration card, a census receipt and a letter from a lawyer.
In Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at [28] and [29] the Full Court of the Federal Court said:
Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject’s case.
…
The general propositions set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson J in Somaghi (supra) at 108-109: 1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it … The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material ...
It is plain from the Tribunal’s reasons that it put to the applicant its difficulties with these documents during the hearing in December 2002. The applicant was put on notice as it was evident from the nature of the questions that the Tribunal had real doubts about the genuineness of the documents. Having regard to the authorities to which I have referred it is apparent the applicant was not denied procedural fairness in respect of these documents at common law. There was certainly no practical injustice as envisaged by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6.
It is also evident from the Tribunal’s findings and reasons that the country information on the position of Biharis in Bangladesh was not material to its decision.
Grounds 2(b) is:
The Refugee Review Tribunal Member erred in not finding the delegate of the respondent had not dealt with, or not dealt in applicant’s substantive way with, a key component of the applicant’s claim, that the serious persecution will face on his return to Bangladesh in foreseeable future. Applicant is facing a serious political charge and there is a likelihood of applicant’s serious persecution upon his returns. By not dealing with this matter, there was a constructive failure to exercise jurisdiction on the part of the Tribunal and or lack of procedural fairness.
It is not obvious which serious political charge it is which the applicant alleges the Tribunal failed to consider. In the statutory declaration to the Department there are a number of references to false charges. Later the applicant referred to a murder charge and provided a document to the Tribunal which purported to be a judgment in relation to this murder charge.
The applicant’s claim that the Tribunal failed to consider this issue is incorrect. Paragraphs 76 and following in the Tribunal’s reasons refer specifically to false charges being brought against him. In particular the Tribunal notes that the applicant claims he had been charged with the offence of illegal assembly and charged, convicted and sentenced for murder.
Ground 2(c) states:
The Tribunal did not put to the Applicant its doubts about documents containing information personal to the Applicants from the Bangladeshi Authority and Bangladeshi Local court, and the other court case brought against him, and those doubts formed part of the reason for the Tribunal’s decision.
This is something that I have already covered. It seems clear to me from the decision of the Tribunal that its doubts about the genuineness of documents were made patently obvious to the applicant at the Tribunal hearing.
In ground 2(d) the applicant claims:
The RRT did not complete the exercise of its jurisdiction as it made no findings as to what sociopolitical changes might occur in Bangladesh in the reasonably foreseeable future and it thus failed to assess whether the applicants’ fears of being persecuted by the Bangladeshi government were well founded in the reasonably foreseeable future.
But as the respondent points out the Tribunal was not satisfied the first applicant had a subjective fear of persecution. The Tribunal had considerable doubts about the veracity of the claims made by the applicant. It was thus not necessary to proceed to consider whether the objective component of the Refugee Convention test was met.
Nevertheless, having regard to the regular travel by the members of the family who held Bangladeshi passports, it did reach a conclusion that there was no reasonable fear of persecution. In that context the Tribunal also considered country information about the position of Biharis in Bangladesh, although as I have said this was not necessary as the Tribunal had already concluded that the applicant did not have a genuine fear of persecution.
Ground 2(e) is:
The honourable member of the Refugee Review Tribunal did not consider applicants physical torture by the opponent. Neither, RRT accepts that claim nor investigate the matter through Australian High Commission, Bangladesh. By not dealing with this matter, there was a constructive failure to exercise jurisdiction on the part of the Tribunal, and or lack of procedural fairness.
There are two components to this ground: first that the Tribunal did not consider the applicant’s physical torture claim and second that it did not investigate the prevalence of torture.
None of the documents before the Tribunal refer to physical torture of the applicant. The applicant does refer in his statutory declaration to an incident in July 1991 when he organised a big procession against local oppressors and the law enforcement authority in Khulna. He says that some Awami League terrorists attacked the procession and he was the main target. He was hit on the head with a sharp knife and underwent an emergency operation and received several stitches. He was hospitalised for about two weeks.
It is clear again from the Tribunal’s reasons at Court book pages 204 and 208 that it did consider this incident. The Tribunal also expressed great doubts about the applicant’s evidence. It found that the inconsistency in his evidence and the doubts the Tribunal had about the genuineness of documents tended to undermine the applicant’s claims of mistreatment.
The second aspect of this claim relates to the failure of the Tribunal to further investigate this matter. This can be considered with the major concern of the applicant at the hearing that the Tribunal failed to investigate further the genuineness of the documents provided by the applicant to the Tribunal. The applicant also referred to the failure of the Tribunal to investigate his membership of the Baha’i faith.
In this respect the applicant misunderstands or misconceives the role of the Tribunal. Certain provisions in the Act such as ss.424 and 427 empower the Tribunal to either request the Secretary of the Department to arrange for investigations or to itself obtain information that it considers relevant. The Courts have made it clear that these provisions are permissive and not mandatory. In general there is no obligation on the Tribunal to conduct further investigations. As Gummow and Hayne JJ have said in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] although the Tribunal has certain powers to obtain additional evidence “the Act does not impose any duty or obligation to do so”.
It was open to the applicant to provide the Tribunal with information in support of his claims, which he did. There is no basis in the Act or common law for his contention that the Tribunal had a duty to do more than it did in obtaining the country information. No error is established.
Ground 2(f) states:
The RRT’s decision on 21 June 2003 was not based upon circumstances giving a rational foundation for the belief entertained as the RRT’s findings, when applied to the applicable criteria, meant that the RRT should have been satisfied that the applicant had met those criteria.
I am uncertain what this means. If it is just an expression of disagreement with the outcome of the review by the Tribunal it must be rejected.
In the written submissions the applicant took exception to a number of findings of the Tribunal. In many cases this was purely on the basis that the applicant disagreed with the findings. In effect the applicant sought to have the Court take a different view of various issues of fact from that taken by the Tribunal.
As the Full Court said in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10] said:
To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.
The respondent said in her Supplementary Outline of Submissions:
The first applicant failed to make out a case which satisfied the Tribunal that he was entitled to a protection visa. He made claims which were contradictory and implausible. The Tribunal is not required to accept without question the allegations made by an applicant. The Tribunal may conclude that it is not satisfied of factual matters, even though there is no rebutting evidence as to those matters.
Even if the ground questions whether the Tribunal’s decision is a rational or logical one I would have to disagree with the applicant’s submissions and agree with the respondent’s. As the Tribunal had considerable doubts about the credibility of the applicant’s evidence it made the only decision that it really could in the circumstances.
The applicant also disputes the Tribunal’s findings about when he took up the Baha’i faith. Once again the applicant is seeking review of the merits of the decision with which this Court cannot interfere.
Conclusions
Counsel for the Minister has submitted to me that the application must be dismissed as no reviewable legal error has been disclosed. I agree. It is apparent that the dominant reason for the Tribunal’s rejection of the applicant’s claim was the large number of inconsistencies in his evidence. It thus concluded that the applicant’s accounts were not credible. Added to this, the Tribunal had real doubts about the genuineness of the documents that the applicant had provided.
The findings made by the Tribunal were reasonably open to it on the material before it. I am not satisfied that the Tribunal made any legal error going to jurisdiction in coming to its decision. I find that the decision of the Tribunal is privative clause decision having regard to the High Court authority in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers. It clearly related to the subject matter of the Act and to the powers conferred on the Tribunal.
In the circumstances the application must be dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: K Thynne
Date: 5 July 2005
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