SZBJL v Minister for Immigration and Anor

Case •

[2007] FMCA 459

•

23 March 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBJL v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 459
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 fear or persecution for reason of political opinion – no reviewable error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 425A, 474
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358
SZHXW v Minister for Immigration & Citizenship [2007] FCA 368
Applicant: SZBJL
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File number: SYG 3294 of 2006
Judgment of: Scarlett FM
Hearing date: 23 March 2007
Date of last submission: 23 March 2007
Delivered at: Sydney
Delivered on: 23 March 2007

REPRESENTATION

Applicant: In Person
Counsel for the Respondent: Mr Lloyd
Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration & Citizenship.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00. 

  4. I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3294 of 2006

SZBJL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application for review of the decision of the Refugee Review Tribunal. The decision was signed on 26th September 2006 and handed down on 17th October.  The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) Visa. 

  2. The Applicant seeks judicial review of that decision and in particular seeks orders in the nature of certiorari, quashing or setting aside the Tribunal decision. He also seeks a declaration that the decision is null and void and of no effect.

  3. He seeks an order in the nature of mandamus to remit the application to the Tribunal in accordance with law to re-hear the application by appointing a new Tribunal Member and he seeks a writ of prohibition directed to the Minister, restraining the Minister from acting on the decision until this application has been determined. In the alternative he seeks an order restraining the Minister from serving the removal order upon the Applicant pending the determination of his application.

  4. From a procedural point of view it appears to me that the application for an order in the nature of mandamus is perhaps misconceived in respect of the relief that it seeks. On my understanding, if the Court were persuaded that an order should be made, the order is more properly expressed to be an order to re-determine the application according to law rather than directing the Tribunal to re-hear the application or appoint a new Tribunal Member. 

  5. If this decision were in fact quashed and the matter remitted to the Tribunal it would be entirely a matter for the Tribunal to decide whether a hearing was appropriate by applying the provisions of s.425 of the Migration Act, and the constitution of the Tribunal is strictly a matter for the Principal Member of the Refugee Review Tribunal rather than the Court.

  6. In any event I am satisfied that the application seeks relief and I will consider what orders should be made after a consideration of whether or not jurisdictional error has been made out.  It should be made clear that the Court does not reconsider the merits of the application based on the factual material that came before the Tribunal. As Gyles J succinctly put it, with respect, in SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 at [3]:

    Insofar as the Federal Magistrates Court is concerned it has no role to second guess the Tribunal on matters of fact or judgment.  The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed.

  7. The background to this matter is that the Applicant is a citizen of Bangladesh.  He arrived in Australia on 15th March 2002 and applied for a Protection (Class XA) Visa on 26th April in that year.  A delegate of the Minister refused his application on 18th June 2002. The Applicant sought review of that decision from the Refugee Review Tribunal and the Tribunal, differently constituted, affirmed the Delegate's decision on 17th June 2003. The Applicant then sought judicial review of the Tribunal decision from the Federal Magistrates Court.

  8. The Court dismissed the application on 10th May 2005 but on appeal to the Federal Court on 2nd December 2005 the decision was set aside and remitted to the Tribunal to be determined according to law. The Tribunal invited the Applicant to attend a further hearing. The Applicant appeared before the Tribunal on 25th September 2006 and gave evidence and presented arguments. The Tribunal hearing was conducted in English.

  9. The Applicant speaks very good English although as he is not legally represented an interpreter skilled in the Bengali language has been made available for the purpose of these proceedings. The Applicant filed an amended application on 29th January 2007. The amended application is comprehensive and in fact contains elements which would normally be found in the submission, but nevertheless, the amended application is a comprehensive document which sets out the Applicant's case for review and the Applicant has relied on it for the purpose of these proceedings.

  10. The Applicant claims that the Tribunal decision was made totally on bad faith and included denial of natural justice and jurisdictional errors.  The application refers to the fact that Australia is a party to the 1951 Refugee's Convention and sets out matters of definition relating to what constitutes a refugee and what constitutes persecution. The Applicant sets out that he did not have funds to obtain legal advice.

  11. He sets out a brief history of the fact that he was a political activist in Bangladesh and was threatened with death and was subject to torture, and he claims that the Tribunal in making its decision failed to give weight to the material matters of his case.  With respect this appears to relate more to a claim about the factual merits of the Applicant's claim rather than any jurisdictional error. 

  12. The Applicant sets out matters that relate to the Applicant's history and his appearance at the Tribunal. In the document however, the Applicant states that the Tribunal did not have any attention and sympathy regarding his serious hand injury and that the Tribunal did not have any investigation about his documents. He reiterates his criticism of the Tribunal for not conducting its own investigation. In point number 1, under the heading "Arguable Points from the  Tribunal's Decision" where he says of the Tribunal Member:

    The Tribunal ignored my oral evidence when considering my claims. She did not intend to do any investigation itself and decided to rely on the Country Information made by the Department of State and from the downloaded part from the internet about the Awami League.

  13. The Applicant also complains that the Tribunal ignored his oral evidence and in point 2:

    The Tribunal absolutely ignored the credibility, the good reasons of my application and the interview did not accept the truth. 

  14. He went on to criticise the limited information upon which the Tribunal relied and on parts of the decision which he claimed to be totally irrelevant. The Applicant claimed that the Tribunal Member showed bad faith about certain material parts of the Applicant's claim.  Further in point 6 he claims that:

    The Tribunal took itself beyond jurisdiction by failing to deal with a matter that was critical to the function that the legislation stipulates it was to perform.

    There is no particularisation of this claim. 

  15. The Applicant goes on in point 7 to attack the Tribunal's decision as:

    Constituted an excess of jurisdiction to include acting in bad faith, denial of procedural fairness, making a decision which was outside the power granted to the Tribunal, misconstruing the legislation and refusal to take into account consideration which it was required to take into account and basing the decision on a matter it ought not to have taken into account.

  16. These latter points are not particularised. The Applicant took issue with the Tribunal's questioning of him in respect of whether he was involved in political activities in Australia in support of the Awami League and made the comment in point 9:

    In the Tribunal's whole interview and review, only positive material she found was that the applicant was a Bangladeshi citizen.

  17. That point does not of itself raise any jurisdictional error and appears to be a complaint that the Tribunal disbelieved the bulk of the Applicant's evidence.  If anything that is a request for merits review. The Applicant then included a quote from a book, ‘Making Sense of the Rule of Law’ by Dr Mary Crock and Catherine Chang relating to jurisdictional error.  It is unnecessary for me to quote the passage relating to jurisdictional error but the passage quoted contains an authoritative academic definition of jurisdictional error which cannot be argued with.

  18. The point, from the Applicant's point of view, is whether the Court does find that the Tribunal made jurisdictional error. The lawyers for the Minister filed an outline of submissions drafted by Mr Stephen Lloyd of counsel.  In his comprehensive submission he refers to the ten grounds contained in the amended application and replied to them one by one. As to the ground that the Tribunal ignored the Applicant's oral evidence when considering his claim and that the Tribunal did not do any independent investigation but relied on Country Information, Mr Lloyd submits that:

    The Tribunal is entitled to consider Country Information which it considers relevant from external sources and detetermined what weight to give that information. 

    The Tribunal was performing its function in assessing the applicant's claims both as to their inherent credibility and as to their consistency with other information known to the Tribunal.

  19. He submitted, correctly in my view that the support for this approach can be found in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] –[12].

  20. As to the ground that the Tribunal ignored the credibility, the good reasons of his application and did not accept the truth, Mr Lloyd submits that:

    The Tribunal did not believe the applicant's evidence and that the findings of fact that the Tribunal made were largely based on its rejection of the applicant's credibility.

  21. He submits that the Tribunal was entitled to make those findings and refers the Court to ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67], which is from the judgment of McHugh J. As to the third ground which Mr Lloyd characterises as the Tribunal relying on limited information from the internet and not trying to find out about the torture against Awami League members and leaders, Mr Lloyd submits that this overlaps with the first ground of the amended application and points out that:

    The Tribunal is not obliged to make extensive independent enquiries.  The choice and assessment of Country Information is a matter for the Tribunal.

    The Tribunal's conclusion was open on the basis of the material before it and as such performed its function.

  22. He referred again to NAHI at [13]. As to the claim in the fourth ground that certain paragraphs in the Tribunal's decision are irrelevant to the Applicant's application, those paragraphs recorded questions put to the Applicant by the Tribunal which Mr Lloyd submits:

    Were designed to assist in determining the extent of the applicant's knowledge about the Awami League and were relevant to the Tribunal's assessment of his credibility.

  23. As such, he submits that it was open to the Tribunal to conduct proceedings in that way.  As the fifth ground that:

    The Tribunal showed a bad faith about my accident happened during political activities, targets on me by BNP thugs and false case in Bangladesh Court regarding carrying explosive.

  24. Mr Lloyd submits that:

    The ground is unclear but appears to allege bad faith.

  25. In my view that is exactly what the ground alleges and Mr Lloyd refers the Court to the well-known decision of SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [43]. As to the 6th, 7th and 10th grounds of the amended application Mr Lloyd submits that they are not particularised, which is true, and refers the Court to the decision in Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 at [13]- [14] and submits that they are in fact not proper grounds. In that case the Full Federal Court had concluded that:

    The grounds set out in the application are not grounds at all…  They provide no basis for understanding what are the reasons for challenging the Tribunal's decision.

  26. The 8th ground, he submits:

    Refers to the Tribunal's enquiry about whether the applicant was involved in political activities inside Australia.

  27. He submits that that is not a proper ground. The 9th ground he similarly dismisses as not being a proper ground and refers to other complaints made - first that the Tribunal attributed specific comments in response to the Applicant that he did not make during the hearing and tried to misrepresent him, second that the Tribunal did not have regard to his claim that he had recently suffered memory loss and stress and third that the Tribunal did not have regard or sympathy for the fact that he had suffered a serious hand injury.

  28. In my view those matters go more towards the factual issues insofar as there is a complaint about not having regard to his claim of memory loss, Mr Lloyd submits that:

    There is no evidence that the applicant complained of memory loss in any coherent or relevant matter at the hearing or gave that as an explanation for why he could not recall, or didn't know the answer to various questions.

    Even if the issue had been raised the Tribunal was not under any obligation to enquire. 

  29. The submission is, in summary, that the majority of the complaints the Applicant made are no more than disagreements with the findings of the Tribunal and are tantamount to an attempted merits review. The counsel for the Respondent submits that the application should be dismissed. In my view the submissions on behalf of the Respondent set out the law correctly, and I adopt those reasons.

  30. At the same time I should, and will, refer to certain matters which have been raised and are repeated throughout the amended application.  First of all there is the claim of bad faith.  This appears on several occasions and it is a matter at which the Full Court of the Federal Court looked quite seriously in the decisions of  SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 and 194 ALR 749. Their Honours also looked at this matter in SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358.

  31. In each case the Full Court was constituted by Tamberlin, Mansfield, Jacobson JJ.  In SBBF their Honours said at [16]:

    It is likely to be a rare and extreme circumstance that a lack of good faith on the part of the administration decision maker will be apparent, by reference only to the reasons for decision themselves.

  32. Their Honours reiterated that point in SBBS at [44] where they said:

    The fifth proposition is that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme.  This is especially so when all that the applicant relies upon is the written reasons for the decision under review.

  33. Their Honours had also pointed out in SBBS at [43] that:

    An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker.  The allegation is not to be lightly made and must be clearly alleged and approved.

  34. I am not satisfied that bad faith has been proved in this case even though it has been alleged but not particularised. Recently Jessup J commented on allegations of bias in SZHXW v Minister for Immigration & Citizenship [2007] FCA 368 on appeal from this Court where his Honour said at [8]:

    I have seen this allegation of bias in a number of notices of appeal and proceedings arising under the Act recently and I regret to say that one gets the impression that allegations of this kind are resorted to much more liberally than the circumstances ever seem to justify and without an apparent consciousness of the seriousness of the accusation involved in them.

  35. It is clear to me, on my reading of the decision and the supporting documents that there is no evidence of bias or bad faith and it, in my view, is a matter that applicants should approach with caution. The Full Court of the Federal Court has made it very clear that an allegation of bad faith is a serious matter and it should not be lightly made. With the greatest of respect I agree with their Honours that such allegations are made to readily in applications for review of decisions of Tribunals under the Migration Act.  There is no such evidence in this case. 

  36. The other matter that appears on several occasions in the amended application is a complaint that the Tribunal did not conduct its own investigations. The Tribunal has a power to seek further information either from the Applicant or from other people under s.424 or, in fact, ask the secretary of the Minister's Department to conduct investigations on certain aspects, or even to make a medical examination under s.427 of the Migration Act. 

  37. In each case, however, there is no obligation on the Tribunal to conduct its own investigations or to seek further material either from the Applicant or from anyone else.  These are matters that appear regularly in applications before this Court and in each case have been the subject of recent decisions on appeal from this Court. In SZIRO & Others v Minister for Immigration & Citizenship [2007] FCA 260 Heerey J said at [12]:

    The Tribunal’s power under s.424 is clearly discretionary. The Tribunal does not have a duty to investigate the appellant’s claims: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 42-43. No jurisdictional error is made out.

  38. Again in relation to s.427 Tamberlin J had this to say in SZBVM v Minister for Immigration & Citizenship [2007] FCA 332, again a decision on appeal from this Court. His Honour said at [16]:

    The third ground of appeal relates to an asserted duty of the Tribunal to make inquiries under s.427. The reason why the Tribunal did not make inquiries in this case are set out in the reasons and I can see no error in them.

  39. His Honour went on to say:

    There is no general obligation on the Tribunal to make further enquiries and in my view the circumstances of this case were not such as to generate an obligation on the Tribunal to make further investigations in the absence of any indication that enquiries would be futile.

  40. In my view, with respect, their Honours have set out the position, the Tribunal has the power to make or request further investigation to be made but there is no obligation, certainly no general obligation, on the Tribunal to do so. In this case I am satisfied that the Tribunal had no such obligation and no jurisdictional error has been disclosed.  The fact is that in this case the findings and reasons which appear at page 248 through to 253 of the Tribunal indicate that the reason, or the principal reason why the Tribunal affirmed the Delegate's decision, was that it was not satisfied about the Applicant's credibility.  That point is made in detail on pages 248 and 249 and 250 of the Court Book. The Tribunal concludes its discussion on the Applicant's credibility by saying at [252]:

    In the light of its grave adverse credibility findings about the applicant it finds that he is an unreliable witness and it cannot give any weight to those claims.

  1. As to documents submitted to the Tribunal the Tribunal again refers to its findings of credibility by saying:

    The Tribunal has found the applicant to be lacking in credibility with regard to his claims to have been a member of the Awami League.  The Tribunal has found the applicant to have been untruthful to the Tribunal and gives no weight to his claims.  In light of the applicant's lack of reliability as a witness it cannot rely on the documents submitted by him.

  2. The question of credibility is a factual matter. The Tribunal makes credibility findings on the evidence which is before it which, in most cases, comes from the Applicant's oral evidence to the Tribunal.  That is entirely a matter for the Tribunal. So long as there is evidence upon which the Tribunal can make a finding then there is no role for the Court on judicial review to interfere. No doubt it is unpalatable to an Applicant for a Tribunal to express in clear and even blunt terms its views that the Applicant was not a reliable witness and was not a witness whose credibility was accepted.

  3. Whilst that is unpalatable it is a factual decision for the decision and it is none in which the Court will not interfere. In my view no jurisdictional error has been disclosed.  I am mindful of the fact that the Applicant is not legally represented. I have read through the material independently of the submissions of either the Applicant or the Respondent. I am unable to discern any arguable case for a jurisdictional error that has not been mentioned by either party.

  4. I am satisfied that no jurisdictional error has been made out. In the absence of jurisdictional error the Tribunal decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act.  As such under sub-s.474(1) it is not subject to orders in the nature of certiorari and mandamus or prohibition; it is not subject to a declaration in any Court. It follows that the Application must be dismissed.

  5. I am mindful of the fact that since the application was commenced the Minister's title has changed. The Minister's title has changed on several occasions and the Minister is currently known as the Minister for Immigration & Citizenship. I will make an order to reflect that. In dismissing the application I note that the First Respondent Minister is legally represented and I will hear submissions on the question of costs.

  6. There is an application for costs in the sum of $6,000.00. The Applicant has been unsuccessful in his claim and this is an appropriate matter for the Court to make a costs order. The amount sought is $6,000.00.  The Applicant take issue with the amount of costs sought by pointing out that it is a lot of money, which it is, and he says that he does not have the funds to meet it; he is not working at present and he would not be in a position to pay it.

  7. Whilst the amount of costs and the party's financials situation is not a matter relevant to whether a costs order should be made, it is a matter to take into account when considering whether time to pay should be allowed.  I also note that the amount sought is $6,000.00, which is higher than the amounts normally ordered. The reasons given is that the application involved a lot of grounds, which it did, and I am mindful of the fact that the written submission on behalf of the Minister comprehensively met those grounds and is, if I may say so, a comprehensive and well researched document.

  8. Nevertheless, I am of the view that the amount sought is higher than usual and I am not satisfied that, despite the high quality of the work, that the amount of $6,000.00 should be allowed. I am prepared to allow $5,000.00 and I will order that the Applicant is to pay the First Respondent's costs in the sum of $5,000.00. I allow six months to pay the costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  4 April 2007

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