SZBEU v Minister for Immigration

Case •

[2006] FMCA 437

•

22 March 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBEU v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 437
MIGRATION - Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – applicant a citizen of Bangladesh claiming a fear of persecution for reason of political opinion.

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

NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744

Applicant: SZBEU
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 3344 of 2005
Delivered on: 22 March 2006
Delivered at: Sydney
Hearing date: 22 March 2006
Judgment of: Scarlett FM

REPRESENTATION

Counsel for the Applicant: Mr Young
Solicitors for the Respondent: Ms Pownall
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. That the title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.

  2. That the Application is dismissed.

  3. That the Applicant is to pay the First Respondent’s costs fixed in the sum of $4,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3344 of 2005

SZBEU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 13th October 2005 after a hearing that took place on 2nd August 2005. The Tribunal handed down its decision on 20th October 2005.

  2. The decision of the Tribunal was to affirm the decision of the delegate of the Minister for Immigration and Multicultural Affairs (to use the Minister’s new title) made on 26th March 2002 not to grant a protection visa to the Applicant.

  3. The Applicant has a litigation history which is relevant to the proceedings. The decision by the Minister's delegate was made on


    26th March 2002 and the Applicant applied for a review of that decision from the Refugee Review Tribunal on 14th April 2002. A Tribunal differently constituted affirmed the decision not to grant a protection visa on 23rd June 2003. On 13th August that year, the Applicant filed an application for judicial review in this Court and on 13th May 2005 the Court set aside the Tribunal decision and made an order in the nature of mandamus requiring the Tribunal to redetermine the matter according to law. This the Tribunal duly did and it is this second decision where the Tribunal redetermined the matter that is for review today.

Background

  1. A brief background is that the Applicant is a citizen of Bangladesh. He arrived in Australia on 1st October 2001 and sought a protection (Class XA) visa, claiming a well founded fear of persecution by reason of political opinion. He claimed to have been involved with one of the main parties in Bangladesh, namely the Awami League. I note that the Awami League is currently in opposition in Bangladesh and was in fact in opposition, to my understanding, at the time of the Tribunal hearing.

  2. The facts so far as they are relevant are that the Applicant had made a claim to have been a full time politician and by that he meant that he had been involved in politics full time. He said that he had persuaded the head of a non-government organisation in Bangladesh, the ODPUP - the Organisation for Development Programs for Underprivileged People, to certify falsely that he had been a member of that organisation and that was for the purpose of apparently obtaining a visa to enter Australia.

The Tribunal’s findings and reasons

  1. The Tribunal in its findings and reasons expressed some doubt about the credibility of the Applicant in respect of certain parts of his account. In particular, it is clear from the transcript of the Tribunal hearing that was admitted into evidence that the Tribunal Member actually arranged to telephone the office of the ODPUP in Bangladesh and was able to speak to a person there. The telephone call and both sides of it appear on the transcript.  As a result of the telephone call, the Tribunal received information that the Applicant had for some time worked for the ODPUP.

  2. The Tribunal also noted written material that had been submitted by the Applicant in support of his claim, including a letter from the ODPUP saying that he had not worked for that organisation. The Tribunal was not satisfied that the Applicant had ever been a full time politician or had held any position in the Awami League and that he had been a supporter of the party. The Tribunal noted the inconsistency of the Applicant's evidence about whether or not he had worked for the ODPUP and that was certainly a factor that the Tribunal took into account in assessing the credibility of the Applicant's claims.

  3. The fact of being a full time employee of the ODPUP was considered to be inconsistent with the Applicant's claim of having been a full time politician and a leader in the Awami League. The Tribunal did accept that the Applicant had had some involvement with the Awami League, certainly as a young man in the 1996 elections. The Tribunal was not satisfied about the Applicant's claims that he had suffered physical harm from political opponents and the Tribunal was not satisfied that the Applicant faced a real chance of harm if he were returned to Bangladesh.

  4. As far as a claim of facing false charges is concerned, the Tribunal noted that facing false charges which potentially at least represented an ongoing prospective risk if the Applicant were to return, the Tribunal noted the inconsistency and the anomalous account given of these charges, and at page 179 of the Court Book referred to what the Tribunal described as an improvised and later a haphazard account of as to why it was he was able to leave Bangladesh notwithstanding the fact that he faced charges brought by the police. The Tribunal felt that his explanation lacked credibility. As a result, the Tribunal was not satisfied the Applicant was subject to politically motivated false charges of any sort.

  5. The Tribunal accepted that the Applicant had some knowledge of some political developments in Bangladesh but was not satisfied that the Applicant had the level of knowledge of the Awami League that would have been expected. The Tribunal found the Applicant was a low level supporter of the Awami League, not an office bearer or activist or in any other manner an active member.

  6. The Tribunal considered a letter from one Mr Alam about the Applicant's involvement in the Awami League but whilst having regard to the letter, did not choose to alter its conclusions. Basically, the Tribunal accepted that the Applicant was a supporter of the Awami League and had a low level interest in the party, was not satisfied that the Applicant had suffered past harm, and if he were to return to Bangladesh, the Tribunal was satisfied that the Applicant faced no more than a remote and insubstantial possibility, which the Tribunal described as no real chance, of persecutory or other harm if he should wish to pursue his political interests. The Tribunal affirmed the decision not to grant a protection visa.

The application for judicial review

  1. I note that the application filed by the Applicant in this Court leaves a lot to be desired. Indeed, in fairness, the Applicant's counsel Mr Young described the grounds of the application as being unsatisfactory in form and although complain of jurisdictional error, give no particulars as to the nature of the jurisdictional error.

  2. The solicitors for the Respondent Minister filed a Written Outline of Submissions which I have read. Counsel for the Applicant belatedly provided Written Submissions which were in fact filed in Court this morning. Counsel for the Applicant acknowledged and expressed regret about the fact that the Court's directions had not been complied with, and indeed, no Amended Application was filed and served by


    10th February or at all.

  3. Counsel for the Applicant having been briefed late, as I understand it, has certainly appeared to have done hardship best to put the situation right so far as he could in order to avoid an adjournment of the hearing.  I understand that he advised the solicitors for the Respondent Minister of the matters which he would seek to argue and provided a hard copy of his Submissions to the solicitor for the Respondent this morning.  There was no objection to the filing of the Written Submissions and the solicitor for the Respondent, Ms Pownall, conceded that she did not regard herself as being taken by surprise by the contents of the document. She sought to address the Court orally in reply to matters that may have arisen, and in fact both she and counsel for the Applicant did address the Court.

  4. The areas that counsel for the Applicant considers are grounds for the Court to find that the Tribunal fell into jurisdictional error do not bear any relation to what was set out in the original application, and I see no point in making any further reference to that document. He did raise concerns about the fact that the Tribunal had referred to the evidence of the earlier Tribunal hearing and I will go into that in some detail.

  5. He referred also to the Tribunal's findings about whether or not the Applicant had worked for the ODPUP and how that impacted upon his claims to have been a full time politician. He raised concerns about the Tribunal's findings of the extent of the Applicant's knowledge of the Awami League and illustrated that by reference to the transcript of the hearing. He referred also to the Applicant's answers to the questions asked of him about the false charges issue, and took issue with the method used by the Tribunal for asking questions about this issue in a speculative way. The difficulty with asking speculative questions, to summarise his argument, is that it produces speculative answers. And if a person in reply to a speculative question provides a speculative answer, it can hardly be a criticism because that is what the Applicant was asked.

  6. Now I will go into some of these matters in more detail. I am referred to the decision of the High Court of Australia in NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77, a decision which was handed down in December last year. The particular reference is at paragraph 65 in the judgment of Kirby J. At 65, his Honour said:

    However, as Gummow and Hayne JJ pointed out in Abebe v The Commonwealth, falsehoods and embroidery of such claims do not of themselves justify a conclusion that all aspects of an applicant's case are false.  It remains for the Tribunal to consider any evidence that is not discredited or disbelieved.

  7. The Tribunal, of course, had rejected the Applicant's evidence that he did not work for the ODPUP and clearly there was a basis for the Tribunal to do so. There was conflicting evidence as to whether or not the Applicant had worked there and if so, for what length of time and this was the foundation of an adverse finding as to the Applicant's credibility by the Tribunal. The situation, as counsel for the Applicant's submits, is that the Tribunal had principally rejected the Applicant's claim of being a full time politician because he was working for the ODPUP but that does not lead to a denial of his core claim that he was a political leader or an activist in the Awami League. It may go to the extent of his involvement with the particular party, but it does not of itself go to the question of whether or not a person was politically active in support of a political party, and as a result, can claim a well founded fear of persecution by reason of his activism in that party.

  8. The position and involvement of the Applicant in the Awami League was, perhaps unkindly, characterised by Ms Pownall for the Respondent as the Applicant's seniority in the Awami League, although her meaning was quite clear. Her view was that what the Applicant was in effect doing was seeking a merits review. It is noteworthy that the Tribunal did accept the Applicant's involvement with the Awami League, but did not accept the fact that he had engaged in an increasing level of political activity on behalf of the League, which culminated in his election as vice president of a particular committee in the year 2000, the year before he came to Australia.

  9. The question of credibility, as I said, is a factual question.  In my view, it was open to the Tribunal to make a finding that the Applicant's seniority in the League or his involvement in the League, or the extent of his work as an activist with the League was not as great as the Applicant put it. To my mind, this is, as Ms Pownall submitted, a merits review question and it is not a matter that is therefore susceptible to judicial review.

  10. Similarly, Ms Pownall submitted for the Respondent that the false claims and embroidery issue, to quote from their Honours in Abebe as quoted by Kirby J in NAIS, was also a merits review question.  I am of the view that that is also correct.

  11. There are issues which require a little bit more consideration than those which I have dealt with in a relatively brief fashion. Basically, these relate to application of s.424 and in particular s.424A of the Migration Act. Counsel for the Applicant referred me to the statement in the findings and reasons of the Tribunal at page 178 of the Court Book about the consideration of the evidence, of not only the hearing in which the Tribunal Member was involved, but the earlier hearing. A particular passage which has attracted the concern of counsel for the Applicant appears at the top of page 178:

    The Applicant's evidence at both hearings, including his political knowledge and past activities, and his presentation, leave the Tribunal not satisfied that he is a person of any political standing, locally or nationally.

  12. The first concern raised about that particular passage is that the Tribunal Member is referring to the Applicant's evidence at both hearings and his presentation.  It is one thing to consider evidence from an earlier hearing, but there is more that needs to be said about that.  It is another to take into account an opinion of another Tribunal Member at an earlier hearing and the Applicant's presentation at the earlier hearing.

  13. Mr Young quite correctly drew my attention to the question of demeanour. He submitted and again, correctly, that the opinion or impressions of the previous Tribunal are irrelevant to this Tribunal's decision. He submitted that the question of demeanour is subtle and is not entirely capable of description. With respect, I agree. If the Tribunal wished to have regard to these particular matters they, he submitted, were caught by s.424A of the Migration Act. He refers to the recent decision of the Full Court of the Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2, a decision which was handed down on 24th February 2006.

  14. The point relating to the consideration of the Applicant's presentation or demeanour at the earlier hearing was met by the Respondent with the submission that this is not an issue that was caught by s.424A of the Migration Act. I have read the particular sentence myself to which counsel for the Applicant refers and in my view, with respect, the interpretation placed on it by counsel for the Applicant is not the interpretation which I am satisfied is appropriate. It is fair to say that there is a degree of ambiguity in the sentence because it is capable of misleading a reader as to what is meant. Clearly, counsel for the Applicant has formed the view that the Tribunal is relying on the Applicant's evidence at both hearings, which included his evidence of his political knowledge and past activities, and also his presentation at both hearings.

  15. In my view, however, that is not the correct interpretation. What the Tribunal is referring to, in my view, is two separate matters. First, the Tribunal is referring to the Applicant's evidence at both hearings including his political knowledge and past activities, and second, the Tribunal is referring to his presentation or demeanour, which can only, in my respectful opinion, refer to his presentation or demeanour at the hearing before the Tribunal Member.

  16. It is noteworthy that the Tribunal made other reference to the Applicant's answers at page 179 of the Court Book and criticised the method of the Applicant's answers as an indication of the Applicant's presentation at the hearing. And in fact, I am supported in that view by the reference in the final paragraph at page 179 of the Court Book where the Tribunal says:

    The Applicant said that the police had sought him but suggested – in an improvised fashion – that they must have been handling the matter locally only. The Tribunal finds that this haphazard account – taking into account its earlier findings about the Applicant's minimal political involvement – lacks credibility. 

  17. This is clearly a reference to presentation, just as an earlier reference by the Tribunal to a question asked of the Applicant which the Applicant could not answer. In my view, the correct interpretation of the decision is that the Tribunal was relying on the Applicant's presentation or demeanour at the hearing before the Tribunal Member, which is indeed, as Mr Young submitted, the only demeanour that the Tribunal could rely on.

  18. As to the evidence of the earlier Tribunal hearing, it is submitted that the Tribunal can make use of evidence of an earlier hearing in order to obtain information from an applicant about particular subject matters.  Indeed, the Tribunal did just that in asking the Applicant about his involvement in the Awami League and asking the Applicant for the Tribunal's own benefit, as to what was the past history and achievements and policies of the Awami League, and the Tribunal then relied on that answer in the hearing before the Tribunal as a means of forming a view that the applicant's knowledge of the League was not as great as he, the Tribunal member, would have expected.

  19. As to the other point made by counsel for the Applicant about the speculative question producing a speculative answer, I am not satisfied that a great deal of weight can be placed upon it.  It is my view that the questions that were asked were appropriate bearing in mind the nature of the hearing conducted by the Tribunal.

  20. Dealing with s.424A of the Migration Act, Ms Pownall submitted that neither the decision in SZEEU, nor the decision referred to there, the decision of Jacobson J in NAZY vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744, were relevant and that no breach was shown.

  21. The Tribunal did write to the Applicant on 5th August 2005, three days after the Tribunal hearing, giving certain information about the Applicant's involvement with ODPUP and drawing to the Applicant's attention the inconsistencies and explaining why that information was relevant. I am satisfied that that letter does comply with s.424A of the Migration Act.

  22. In reply, Mr Young of counsel pointed out that there are two questions about information before the Tribunal. He referred to the fact that the evidence at the earlier Tribunal and the evidence at this Tribunal was part of a continuance process. He submitted that there are two questions that should be asked: is the information caught by s.424A, is it accepted by s.424A (3), in particular (b). He submits that the earlier evidence is caught by s.424A (1) and is not excepted by subsection. (3)(b). I am not satisfied that that is in fact the case. I am of a view that SZEEU has not been breached and that there is in fact no breach of s.424A of the Migration Act. I am not satisfied that the Tribunal Member referred to the Applicant's demeanour before the earlier Tribunal, and I am not satisfied that the Tribunal Member relied on an opinion of the earlier Tribunal Member about the Applicant's evidence. In my view, there is no jurisdictional error and the application will be dismissed.

  1. There is an application for costs. The amount of $4,500.00 is sought.  In my view, that is an appropriate figure and it is certainly appropriate that a costs order should be made. Costs usually follow the event and I see no reason to depart from that.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  30 March 2006

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Cases Citing This Decision

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SZBEU v Minister for Immigration [2007] FMCA 2093