SZBGB v Minister for Immigration - [2005] FMCA 233

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBGB v MINISTER FOR IMMIGRATION

[2005] FMCA 233

MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visa – applicant claiming political persecution in Bangladesh – asserted procedural unfairness – asserted non disclosure of country information – the substance of the relevant information was disclosed or the applicant could be taken to have been aware of it, or it was not determinative of the outcome.

Applicants M1015 of 2003 v Minister for Immigration [2004] FCA 1309
BAIG v Minister for Immigration [2002] FCA 380
Minister for Immigration v NAMW [2004] FCAFC 264
Muin v Refugee Review Tribunal & Ors (2002) 190 ALR 601
NAOA v Minister for Immigration [2004] FCAFC 241
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82
Singh v Minister for Immigration (2001) 109 FCR 18
WAEJ v Minister for Immigration (2003) 76 ALD 597
WAIA of 2002 v Minister for Immigration [2003] FCA 868

Applicant:

SZBGB

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG1649 of 2003

Judgment of:

Driver FM

Hearing date:

4 March 2005

Delivered at:

Sydney

Delivered on:

4 March 2005

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

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 $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1649 of 2003

SZBGB

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 30 June 2003 and handed down on 25 July 2003. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and had made claims of political persecution. He arrived in Australia on 26 April 2001 and was admitted on a temporary resident visa granted on 19 April 2001 in Dhaka and valid until 7 May 2001. On 4 May 2001 he lodged an application for a protection visa with the Minister's Department. The application was refused by the delegate on 10 May 2001 and on 13 June 2001 the applicant sought review of that decision by the RRT.
Mr Reilly provides further relevant background to this matter in paragraphs 3 and 4 of his written submissions. I adopt those paragraphs as background for the purposes of this judgment:
The applicant claimed to fear persecution for reason of his political opinion in Bangladesh. He claimed to be a leading member of the Bangladesh National Party (BNP) and to have been harmed for this reason on a number of occasions by members of the rival Awami League, and was the subject of false charges. In addition he claimed at the hearing that an “anti freedom fighter” faction within the BNP itself. See generally court book, pages 26-27, 45-48, 57-65. The RRT summarises the applicant’s claims at court book, page76.8 in terms with which the applicant agreed.
The RRT noted that the applicant’s oral evidence was evasive, vague and contradictory and implausible, and found that he was of low credibility: court book, pages 77.3, 77.8. The RRT was prepared to accept for the purpose of considering his claims that the applicant was a BNP member as he claimed: court book, page 77.4, but rejected all his claimed fears, noting the vague and unsubstantiated nature of his claims and their inconsistency with independent country information. The RRT also found it was reasonable for the applicant to relocate: court book, page78.7. See generally court book, pages 77-78.
I have before me the court book which was filed on 24 October 2003.

I also have before me a transcript of the hearing before the RRT which I have accepted as exhibit A1. That is the only evidence that I have before me.
The applicant relies upon an amended application that was filed in court today by leave. In that application a single ground of review is raised, that is that the RRT relied on country information in the course of dismissing the applicant's claims without advising the applicant of its intention to rely on that material and without offering him the opportunity to comment on it. This is said to be a denial of procedural fairness, having regard in particular to the decision of the Federal Court in WAEJ v Minister for Immigration (2003) 76 ALD 597.
Mr Zipser, who appeared for the applicant, prepared written submissions and also made oral submissions. I accept Mr Zipser's general proposition that a failure to disclose to an applicant country information which is adverse to the applicant's claims and which is in whole or part determinative of the application before the RRT can in particular circumstances be procedurally unfair. As well as WAEJ, already referred to, Mr Zipser took me to several other decisions of the Federal Court including WAIA of 2002 v Minister for Immigration [2003] FCA 868 and BAIG v Minister for Immigration [2002] FCA 380.
Mr Zipser also took me to the decision of the High Court in Muin v Refugee Review Tribunal & Ors (2002) 190 ALR 601, in particular at paragraph 140. There, McHugh J noted that not every departure from the rules of natural justice automatically invalidates a decision adverse to the party affected by the breach. Nevertheless, once a breach of natural justice is proved a court should refuse relief only when it is confident that the breach could not have affected the outcome of the case. Mr Zipser also took me to the judgment of Kirby J in Re RRT; ex parte Aala (2000) 204 CLR 82 to similar effect. Mr Zipser noted that the general principles had been applied in several cases including Singh v Minister for Immigration (2001) 109 FCR 18, in particular at paragraphs 39 to 47.
Mr Zipser took me the court book[1] where the presiding member identifies the country information referred to for the purposes of the RRT decision. Mr Zipser also noted three references by the presiding member to country information which were in whole or part determinative of the outcome of the proceedings at pages 77 of the court book at point 5 and also point 10 and at page 78 of the court book at point 3. The first reference was to country information relating to the position of the BNP and minor parties in the Bangladeshi Parliament following the Bangladeshi national elections in October 2001. The presiding member said:
In relation to his claim of being liable to harm from two minor parties in his area that he named as in coalition with the government, the Tribunal has noted and accepts the independent information which follows. Those parties have low representation in the Parliaments and the view is that, as a consequence they will have little influence on the BNP in government. Further, the past practice for Bangladesh governments of any persuasion is to use the machinery of government and the police to suppress the opposition - not their own members. There is also the matter of the party from which the applicant's local Member of Parliament comes.
[1] page 66, point 1
The presiding member concluded at that point:
The applicant has also produced no evidence of harm or threats to others in his branch since the elections from those parties.
The presiding member did not accept that the applicant was at real threat of any harm from those sources.
The second reference at the bottom of page 77 is as follows. The presiding member says:
As to his claims of being targeted as a member of the freedom fighter BNP faction, and noting the advisers submission, the Tribunal is not satisfied on the evidence, about that part of his claim either.
In reaching this conclusion the Tribunal accepts the independent information on the October 2002 of Army operation Clean Heart. That information is that, while some BNP were indeed targeted, the numbers were very low in comparison to those of the Awami League. The BNP chosen were of relatively high profile as compared to the applicant and the justification given for arrests etc was involvement in criminal acts, practices of which the BNP has its share. There is also the absence of evidence, other than his assertions, that party peers of the applicant in his freedom fighter faction (if there is one) and in his area, were so targeted.
On page 78 of the court book the presiding member then dealt with the issue of alleged false charges. The presiding member expressed credibility concerns about that claim and continued:
The Tribunal accepts the independent information on the willingness of the Bangladesh High Court to quash unjustified charges under the various security acts, should he return to face trial. Further the Tribunal accepts the independent information that the BNP, like the Awami League before it, uses the machinery of government, including the police, to target its political opponents. The likelihood of proceedings continuing against a long term BNP office holder is thus very low.
The presiding member continued:
On the basis of this information, the Tribunal does [not][2] accept the veracity of that element of his claim, indeed it does not accept that there are any false charges at all.
[2] The omission of the word “not’ in the RRT decision is an obvious typographical error.
Mr Zipser contends that the court book when read with the transcript (exhibit A1) establishes that there was either no disclosure or insufficient disclosure of the relevant country information. Mr Reilly, for his part, submits that in the absence of evidence that the hearing was in fact unfair the application must fail. He notes that the applicant has not produced any evidence of the unfairness he may have suffered as a result of any want of disclosure of the country information. Mr Reilly submits that in any event the substance of the relevant country information was disclosed. He took me to the decision of the Full Federal Court in NAOA v Minister for Immigration [2004] FCAFC 241, in particular at paragraphs 23 to 26 which establishes that provided that the substance of the information in issue is disclosed the obligation of procedural fairness arising under the general law will be met. The decision of the Federal Court in Minister for Immigration v NAMW [2004] FCAFC 264 reinforces that point.
Further, Mr Reilly submits that this is a case in which some evidence of unfairness from the applicant was required. He submits that the case is not distinguishable from that of Applicants M1015 of 2003 v Minister for Immigration [2004] FCA 1309.
In reply, Mr Zipser disputes that any evidence from the applicant of practical unfairness was required. Once again he relies on WAEJ. Mr Zipser, while conceding that the applicant was assisted at the RRT hearing by an experienced migration agent, cautioned me against drawing conclusions from the presence of the applicant's agent that I was invited to draw by Mr Reilly. Mr Zipser, while conceding that some reference was made to relevant country information on the transcript, maintains that the disclosure of the country information was inadequate. He also submits that while the RRT made credibility findings or had credibility concerns, the credibility finding was influenced by the country information and general credibility concerns were not determinative.
A difficulty in this case is that the presiding member does not provide a comprehensive account in his reasons of what occurred at the hearing and while those assisting Mr Zipser have done their best the transcript provided to the Court is not as clear as it might be. Nevertheless, it is apparent from the transcript that a number of references were made by the presiding member to country information. At pages 6 and 7 of the transcript the presiding member alerted the applicant to the fact that he would be having regard to country information, without being specific. Further incidental reference was made on page 10 of the transcript. On page 12 of the transcript at about the middle of the page the presiding member raised squarely with the applicant the consequences of the October 2001 election, in particular by reference to the position of the BNP in government and the position of minor parties who seemed in the applicant's view to present a threat. I accept Mr Reilly's submission that the disclosure at that point was sufficient disclosure of the country information referred to in the middle of page 77 of the court book, which was determinative of the presiding member’s rejection of the applicant's claim of being at risk from two minor parties. In my view, the applicant was quite clearly put on notice by the presiding member of the substance of the relevant information.
The disclosure of the information concerning Operation Clean Heart is not so clear cut. It is, however, relevant in my view that it was the applicant's legal adviser who raised the issue in oral submissions at the RRT hearing. The issue was dealt with at some length in discussion between the presiding member and the applicant's adviser commencing at page 19 of the transcript and continuing through to page 22. The adviser was putting to the Presiding Member that Operation Clean Heart presented a risk to the applicant because of a factional dispute within the Bangladesh National Party. The adviser submitted that there was a risk of the factional opponents of the applicant using Operation Clean Heart to target him through false charges. The presiding member expressed doubt to the adviser about the significance of this concern. In particular, the presiding member put the view to the adviser that Operation Clean Heart appeared to be targeting members of the Awami League. It is strongly arguable, in my view, that this was sufficient disclosure of the substance of the country information ultimately relied upon by the presiding member[3] to dismiss this aspect of the applicant's claims.
[3] court book, pages 77-78
There are two other answers to this particular part of the application before me. The first is that the applicant's claim failed not so much on adverse country information but upon the presiding member's conclusion that the applicant was not a high profile member of the BNP. Even the applicant's adviser in his submissions to the presiding member drew attention to the fact that leaders of the BNP were being targeted. The country information was consistent. The country information led the presiding member to the view that high profile members of the BNP had been targeted in Operation Clean Heart. The conclusion drawn by the presiding member that the applicant was not at risk appears to me to have been based more on the lowly status of the applicant than on the country information itself.
Further, the presiding member ultimately concluded that there had been no false charges laid against the applicant. While it is true that this conclusion may have in some way been influenced by the country information about the BNP in government, that information was in my view adequately disclosed to the applicant and his adviser. In addition, the applicant, who claimed to be a leading figure in the BNP, could be expected to have a general understanding of Bangladeshi politics and the position of the BNP in government following the October 2001 elections.
In my view, the country information concerning Operation Clean Heart and the status of the BNP in government and its lack of predilection to target its own supporters was either adequately disclosed to the applicant and his migration adviser, or the applicant could have been taken to be sufficiently aware of it. In any event, I do not think that the outcome would have been any different if the information had been disclosed, given the serious credibility concerns on the question of false charges held by the presiding member in relation to the applicant's claims.
While the issues raised by the applicant were certainly arguable, and were well argued on the applicant's behalf by Mr Zipser, the conclusion I draw is that there was no procedural unfairness in the RRT proceedings by reason of the reliance by the presiding member on country information. The applicant's position may have been assisted had he led evidence of what unfairness he in fact suffered, but I do not draw any adverse inference from the applicant's failure to give evidence. In my view the applicant's claim fails by reference to the court book and transcript material. I also place no weight on the RRT’s finding that, notwithstanding anything else the applicant could have relocated. This was an issue raised by the Full Federal Court in Minister for Immigration v NAMW [2004] FCAFC 264 from paragraph 146. The relocation finding in this case is unsatisfactory as it contains factual errors. It is very much an afterthought and the errors in it indicate that the presiding member gave it very little thought.
I find that the decision of the RRT is free from jurisdictional error. In consequence the decision is a privative clause decision and the application must be dismissed.
On the question of costs, I am satisfied that costs should follow the event. Mr Reilly seeks an order for costs fixed in the sum of $5,000, noting the additional work required to deal with the amended application and the submissions in support of it which meant that the submissions originally prepared by Mr Reilly, based upon an earlier application, were wasted. I accept that submission. In my view $5,000 has been reasonably and properly spent on behalf of the respondent Minister when assessed on a party/party basis. Mr Zipser conceded that costs in the range of $4,000-$5,000 in this case would be reasonable.
I will order that the application be dismissed and that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 11 March 2005