SZBHT v Minister for Immigration (No.2) - [2005] FMCA 769

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBHT v MINISTER FOR IMMIGRATION (No.2)

[2005] FMCA 769

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 – claim of a well-founded fear of persecution because of homosexuality.

Federal Magistrates Act 1999 (Cth), ss.3,15,45
Judiciary Act (Cth), s.39B
Migration Act 1958 (Cth), s.424A
Australian Citizenship Act1948 (Cth)
The Constitution (Cth), ss.51, 61

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

Applicant:

SZBHT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG1714 of 2003

Judgment of:

Scarlett FM

Hearing dates:

2 & 5 May 2005

Date of Last Submission:

5 May 2005

Delivered at:

Sydney

Delivered on:

23 May 2005

REPRESENTATION

Counsel for the Applicant:

Mr Levet (pro bono)

Solicitors for the Applicant:

Bharati Solicitors

Counsel for the Respondent:

Mr Johnson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $10,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1714 of 2003

SZBHT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal which was made on 5 February 2002 and handed down on 17 July 2002. There had been a previous matter which has already been dealt with. The applicant was formerly resident in Bangladesh he arrived in Australia on 13 February 1999 and on 21 January 2000 lodged an application for a protection class XAN visa. A delegate for the Minister refused that application and the applicant sought a review from the Refugee Review Tribunal.
A hearing took place on 25 June 2002, the applicant attended and gave oral evidence on that day. The applicant claims that he has a well founded fear of persecution in Bangladesh. The reasons that he gave the Tribunal were first of all that the main fundamentalist party in Bangladesh known as the Jam’at Islami was trying to harm him because of his actions in 1997, that he had tipped off two well known people that the Jam’at Islami was going to harm. Second, that he was a homosexual and Jam’at Islami had become aware of this and had made the news of his sexuality public and had threatened to harm him. Third, when the news of his homosexuality had become public this had caused great distress with his family who had given him problems. Fourth, that he could not go home and live safe from political harm even now the BMP was in power because he faced harm from a particular branch of that party.
The Tribunal was not satisfied that the applicant’s evidence was credible; quite the reverse in fact. At page 59 of the court book at about point 8, the Tribunal member said under findings and reasons:
I have reached the firm view that the applicant has concocted a series of claims to support his protection visa application. I am not satisfied that any of his claims are credible.
The Tribunal member then goes on at page 59 through to 62 to show why she does not consider that the applicant’s evidence was credible either about his political activities or about his homosexuality. At page 60 of the court book at about point 2, in the middle of the first paragraph, the Tribunal member said:
Given his ignorance of these matters I consider the he has either invented or greatly exaggerated the extent of his activities and profile in the BMP and therefore I am not satisfied that he had attracted significant adverse attention from political enemies. To be specific, I am not satisfied that he had faced serious harm or that he had had many false charges laid against him.
The Tribunal member went on to say at about point 7 on page 60 of the court book:
For the sake of completeness I will add that if at any time the applicant were to be threatened with harm over his political views either from within or without the BMP he could avail himself of the protection of the Bangladeshi authorities.
The Tribunal member was no more convinced about the applicant’s other claims. At about point 4 on page 61 of the court book she says:
I am not satisfied that the applicant’s late claims that being homosexual or facing harm from Jam’at Islami or facing harm from an anti independent BMP wing are credible. I am of the firm opinion that these claims have been invented in an attempt to give an alternative base to his protection visa application now that the BMP is in power and claims of facing persecution for being a BMP supporter sound distinctly hollow.
The Tribunal goes on to give reasons as to why she is of that view.
The Tribunal member did say at page 62:
Further there is no country information before me that supports the claim that Jam’at Islami takes violent action against homosexuals with or without impunity and for this reason too I find that the applicant’s claim lacks credibility.
The Tribunal member goes on to say:
There is no country information that supports the claim that gays are persecuted in Bangladesh.
The Tribunal was not satisfied the applicant has a well founded fear of persecution in terms of the Convention in Bangladesh. It can be seen that the reasons for the Tribunal’s findings relate to an issue of credibility that the Tribunal member was just not satisfied that the applicant was telling the truth.
There have been proceedings whereby I heard an interim application for discovery and on 5 May 2005 I handed down my decision dismissing that application. I am informed today that there may well be leave sought for an appeal against that decision but at this stage no application for leave is on foot before the Federal Court. In my view the appropriate course for me to take is to proceed to decision today.
The applicant filed an amended application giving a number of grounds:
1)that s.61 of the Australian Constitution imposes on the respondent an in excludable requirement of due process including procedure of fairness;
2)that s.424A(3)(a) of the Migration Act is in breach of such requirement of due process and therefore ultra vires s.61 of the Australian Constitution;
3)that there were actions or failures to take action on the part of a Tribunal that constituted procedural unfairness amounting to jurisdictional error. Particulars of those were:
a)that the Tribunal had regarded selected independent country information in relation to Bangladesh in circumstances where country files in their entirety held by the respondent and available to the Tribunal were not available to the Tribunal;
b)that the second respondent failed to consider all relevant material including independent country information in its possession but not available to the application as to the persecution of homosexuals in Bangladesh;
c)further that the Tribunal’s member assertion at page 4 of the transcript about the task of the Tribunal constituted an error of law;
d)and in the alternative procedural unfairness amounting to jurisdictional error;
e)that a reasonable person might have apprehend that the second respondent Tribunal in determining the issues before it including the issue of whether or not the applicant was a homosexual was biased against the applicant.
Some of those issues I considered in my earlier decision of 5 May and I do not depart from those matters.
In submissions on behalf of the applicant prepared by Mr Levet of counsel, the applicant asserts that there is no constitutional head of power that would justify the enactment of s.4214A(3) of the Migration Act. The submission goes for the purpose of power which undermines the Act as a whole is to be found in the Immigration and Naturalisation and Aliens Powers found respectively in ss.51, 27 and 29 of the Constitution. The submission is that this is not a law validly passed pursuant to either of those powers but seeks to trespass on the ability of a Chapter III Court, to do justice according to law in respect of litigation to which the Commonwealth is itself a party. The practical effect was to permit the Tribunal to assert falsely that there was an absence of independent country information supporting of the application’s case.
The respondent submits that this is incorrect. The Refugee Review Tribunal is an administrative decision-maker and a creature entirely of statute, there is no Constitution obligation on the Commonwealth to provide any merits review of decisions made by the respondent or the respondent’s delegate under the Act. Much less is there an obligation to impose upon that creature of statute an obligation to provide to an applicant every piece of paper or every item of electronic information pertaining to the applicant’s homeland or conditions (indistinct).
The respondent takes issue with the applicant’s contention that

ss.51(27) and (29) are purposive powers. Mr Johnson, of counsel, submits that that is not correct. He says the naturalisation and aliens power contained in s.51(29) is a very wide power, relevantly to make laws with respect to aliens. An alien includes anyone who entered Australia after the commencement of the Australian Citizenship Act1948 which commenced on 26 January 1949 and people who are born out of Australia of parents who are not Australian citizens and who have not been naturalised.
He went on to submit that as long as the law deals with that subject matter it is within power even though it may also touch, at least incidentally upon persons who are not aliens. The respondent also submits, in particular subsection, does not trespass upon the ability of a Chapter 3 Court to do justice according to law. This section does not touch at all upon the exercise of judicial power by this Court or by any other Court. What it does do is focus upon limiting what would otherwise be a substantive right flowing from s.424A (1) and it thereby shapes the statutory obligation that a Chapter 3 Court might later be called upon to adjudge. There is nothing novel, he submits, about statutes altering or imposing rights or obligations. The role of the Court in this case, and in matters of this nature, is to discern the lawfulness of the administrator’s actions which will often depend upon the terms of the statute being administered.
Section 424A (3) says nothing about how the Courts perform their judicial function. At most it affects the underlying rights or obligations, the observance of which the Courts ultimately decide. I am of the view that the respondent’s submission was correct.
Turning to the misleading assertion by the second respondent that was alleged, the applicant says that the Tribunal member said:
The Tribunal has to establish that there is no safety for this person in Bangladesh. Okay, if the Tribunal thinks that there is safety for you in Bangladesh it must be prepared to make this decision on the basis of how conditions are in Bangladesh now.
The applicant says that this constitutes an error of law and that the Tribunal member should have spoken about the test was whether the applicant had a well founded fear of persecution. He submits that it was too late for the Tribunal member to formulate the test correctly when actually handing down the decision and that the applicant’s responses would have been tainted by this misdirection of the Tribunal.
As I said I gave some consideration to that point in the earlier proceedings. In my view it was unfortunate for the Tribunal member to have used in the proceedings the phrases that she did. It seems to me unlikely that her rather infelicitous use of the language would have misled the applicant and in my view the fact that the Tribunal member used the correct test in approaching her decision cures any defect that there may be. So that ground must fail.
The other matter of significance is the question of bias on the part of the second respondent. That was the matter where I considered the question of bias in the earlier proceedings. I was referred to the well known decision of Von Doussa J in the Federal Court in SCAA v Minister for Immigration Multicultural and Indigenous Affairs [2002] FCA 668. At paragraphs 50, 51, 52, 53, 54 and 55 of my decision of 5 May I dealt with the issue of bias and I adopt those paragraphs in my decision today. I am not satisfied that bias has been shown. At paragraph 67 of my earlier decision I said I am aware that a finding of bias is a grave finding. In my view a Court should be reluctant to ascribe to bias that which can be as easily attributed to error. I am not satisfied that there was bias shown.
The other point was the inexplicable statement by the Tribunal member that there is no country information that supports a claim that gays are persecuted in Bangladesh. This does seem to me to be extraordinary. In the circumstances, however, the finding was that the Tribunal was not satisfied that the applicant was a homosexual or is a homosexual. As such the failings on the part of the Tribunal as far as country information in respect of gays in Bangladesh, if such they be, is not relevant. This is a matter that was decided on credibility. The Tribunal made strong findings about the applicant’s lack of credibility.
Credibility is a finding that is a matter for the Tribunal par excellence to quote McHugh J, in paragraph 67 of Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Durarajasingham (2000) 168 ALR 407. This is a matter that was decided on credibility. The Tribunal was not satisfied as to the applicant’s credibility and on that basis the application to my mind must fail.
I find that there is no reviewable error – the application is dismissed.
In my mind this is a matter for costs and I note the concessions made by Mr Levet of counsel which seem to me to be a very responsible approach by counsel for the applicant in the circumstances. The applicant is to pay the respondent’s costs fixed in the sum of $10,000. I require a transcript of my reasons for this decision. Applicant removed from the list of cases awaiting finalisation.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 6 June 2005.