SZBLY v Minister for Immigration
[2007] FMCA 204
•5 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBLY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 204 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Bangladesh claiming fear of persecution by Islamic extremists – credibility – where Tribunal made adverse findings about the credibility of the applicant – duty to inquire – whether Tribunal had a duty to inquire – logical grounds – irrational, illogical and not based upon findings of fact or inferences of fact supported by logical grounds – Migration Act 1958 (Cth) s.427 does not impose any legal obligation on the Tribunal to make inquiries – where there is no legal obligation to make inquiries there is no legal obligation to consider whether to exercise the power to make inquiries – want of logic does not constitute jurisdictional error. |
| Migration Act 1958 (Cth), ss.424A, 427, 474 |
| Azzi v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 426 not followed. M159 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 426 referred to. Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 referred to. Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 77 ALJR 1165 referred to. Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCR 719 referred to. WAGJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 followed. W389/01A v Minister for Immigration & Multicultural Affairs (2002) 125 FCR 407; [2002] FCAFC 432 followed. NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 followed. NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 followed |
| Applicant: | SZBLY |
| First Respondent | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1717 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 November 2006 |
| Date of Last Submission: | 9 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Zipser |
| Counsel for the Respondent: | Ms McWilliam |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Citizenship.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,300.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1717 of 2006
| SZBLY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal signed on 9th May and handed down on 23 May 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.
Background
The Applicant is a citizen of Bangladesh who arrived in Australia on
5 February 2001. He applied for a protection visa on 20 March 2001, but this was refused. He sought a review of that decision by the Refugee Review Tribunal, but the Tribunal affirmed the delegate’s decision on 29 July 2003.
The Applicant sought judicial review of that decision, and on 6 July 2005 the Federal Magistrates Court set the Tribunal’s decision aside and remitted the application to the Tribunal for determination according to law.
Further review by the Refugee Review Tribunal
The Tribunal invited the Applicant to attend a further hearing. The Applicant’s migration advisor submitted a number of documents to the Tribunal. The hearing was originally scheduled to take place on
20 September 2005, but due to problems in interpreting, the Tribunal Member decided to adjourn the hearing in order to ensure that adequate interpreting services were available.
The hearing eventually place on 10 November 2005. The Applicant attended on that day and gave oral evidence. His advisor submitted further documents in support of the Applicant’s case, including a CD from Human Rights Watch containing a report “Ravaging the Vulnerable” and some press reports about violence by fundamentalist Islamic groups.
The Applicant gave evidence that he feared to return to Bangladesh because he had been an active political member of the BNP and had also developed an organisation to help people who were bisexual. He claimed to have been attacked by members of the group “Jamaat e Islami” and that they had threatened to kill him if he were to return to Bangladesh.
After the hearing, the Tribunal wrote to the Applicant on several occasions, inviting him to comment on certain information, as required by s.424A of the Migration Act. Those letters were dated 24 November and 8 December 2005, and 21 February 2006.
The Tribunal handed down, or purported to hand down, a decision on 23 March 2006. However, the Applicant’s advisor contacted the Tribunal after the decision was handed down, advising that he had not received the s.424A letter of 24 November 2005. It transpired that the letter had not been faxed to the Applicant’s advisor, due to an internal technical error.[1] The Tribunal Member recalled the decision and reissued the original s.424A letter dated 24 November 2005. On 18 April 2006 the Applicant’s advisor made a written submission to the Tribunal in answer to that letter. The Applicant’s advisor provided copies of three further documents from Bangladesh in support of the application.
[1] The circumstances of that error are set out on pages 260 and 261 of the Court Book.
The Tribunal handed down its decision on 23 May 2006.
The Tribunal decision
A copy of the Tribunal decision is set out on pages 243 to 288 of the Court Book. The decision sets out the Applicant’s history and the details of his application. The decision also refers to independent country information about Bangladesh. The information refers specifically to political parties, including the Jamaat e Islami, false documents, and people called hijras, who claim to be hermaphrodites, of indeterminate gender. Such people have traditionally been discriminated against.
The Tribunal’s findings and reasons appear on pages 275 to 288 of the Court Book. The Tribunal accepted that the Applicant is a citizen of Bangladesh, that he was married with children and that he had completed a course of tertiary education and was involved in a fisheries business in a city of Bangladesh prior to his departure. The Tribunal did not, however, find the Applicant to be a truthful or credible witness on matters that were material to his claims.
In particular, the Tribunal made this finding:
I do not accept that the applicant was a member of the BNP or that he was a leading BNP activist. I do not accept that the applicant left Bangladesh because he feared harm from members of the Awami League or Awami League government authorities. I do not accept that the applicant faces any false cases brought against him in 1997 or 1998, that his home was ransacked or that he was under constant surveillance prior to his departure. I have made these findings on the basis that the applicant is not a credible witness and that his evidence is wholly unreliable on material matters of fact.[2]
[2] Court Book at 277 – 278
The Tribunal considered various documents provided by the Applicant in support of his claim. The Tribunal found that two documents submitted on behalf of the Applicant, purportedly from the Bangladesh Nationalist Youth Party, had been fabricated:
I accept that country information indicating that fraudulent documents are easily obtainable in Bangladesh does not necessarily lead to the conclusion that the documents the applicant has provided are fraudulent. With respect to the documents he has provided I have carefully considered them individually and in the context of all the evidence and information available to the Tribunal. However, taking into account the oral evidence, the information from the post together with general country information put to the applicant that fraudulent documents are easily obtainable in Bangladesh, I find the documents have been fabricated to support the applicant’s refugee claims.[3]
[3] Court Book at 279
The Tribunal also considered an undated letter purporting to be from Sheik Hasina, the Leader of the Opposition and the President of the Awami League, written on behalf of the applicant and went on to say:
I consider that the letter was fabricated to support the applicant’s refugee claims. I do not accept that the applicant was not aware of the fabrication. This letter was provided with little regard to his previous claims of BNP activism and the inherent implausibility of Sheik Hasina writing such a letter on his behalf if he had been a leading BNP activist.[4]
[4] Court Book at 280
The Tribunal did not place any weight on the documents provided to corroborate the Applicant’s claims of membership of the BNP and false and politically motivated cases against him, finding that the Applicant was prepared to fabricate documents and use them to support his claims of persecution. The Tribunal found the Applicant’s evidence wholly unreliable and therefore did not place any weight on the documents.
The Tribunal did not accept that the Applicant was ever a member of the BNP or suffered any mistreatment by members of the Awami League. Consequently, the Tribunal did not accept that he had any subjective fear or that there was any basis for any fear of returning to Bangladesh because of his political opinion. The Tribunal also did not accept that the Applicant founded any social organisation which advocated for the rights of Bangladeshi hijras and provided services to them. Further, the Tribunal did not accept that the Applicant was targeted by members of Jamaat e Islami or other Islamic extremists or that he had been attacked and injured.
The Tribunal found that the Applicant did not face any risk of harm for reasons of:
a)his political opinion;
b)his religion; or
c)membership of a group advocating the rights of hijras.
The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for any Convention related reason and affirmed the decision not to grant a protection visa.
Application for judicial review
The Applicant commenced proceedings in this Court for judicial review by filing an application and affidavit on 16 June 2006. The Applicant, who was represented by counsel at the hearing, obtained leave to file an amended application on the day of the hearing.
The Applicant seeks orders:
a)that the Tribunal decision be quashed; and
b)that the application be remitted to the Tribunal differently constituted for determination according to law.
The Applicant relies upon the following grounds:
i)The Applicant provided to the Tribunal contact details of people who could corroborate aspects of the Applicant’s claims. The Tribunal could have contacted these people to corroborate the Applicant’s claims, but failed to do so. In the circumstances, the Tribunal fell into jurisdictional error.
ii)The Tribunal based its decision on some findings of fact which were not supported by logical grounds, giving rise to jurisdictional error, specifically the findings that the Applicant “did not appear to be able to adequately explain how the hijra members paid their membership dues”.
Submissions
The Applicant submitted that there were two issues that arose. His counsel described the first as the “failure to inquire issue” and described the second as the “no logical grounds issue”.
The “failure to inquire” issue
Counsel for the Applicant submitted that there may be cases in which the Tribunal has a duty to inquire. Allsop J stated in Azzi v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 48 at [112]:
It may be, notwithstanding prevailing authority, that a duty to inquire may exist or be seen to arise in certain circumstances, but these are understood to be exceptional or rare.
Again, Weinberg J stated in M159 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 426 at [21]:
It can be accepted for present purposes that there will be cases of an exceptional or special character whereby the tribunal will be obliged to make further inquiries in relation to matters raised by an applicant in support of his or her claim.
The Applicant’s counsel, Mr Zipser, submits that this is such a case, as the Applicant supplied to the Tribunal contact details of people who could corroborate aspects of the Applicant’s claims. He submits that this obligation to inquire arises from the Tribunal’s duty to act reasonably where it exercises a discretion concerning practice and procedure, for example, as in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 per Gaudron and Gummow JJ at [40].
He went on to submit that, before making findings against the Applicant, the Tribunal should have contacted one or more of the people who were the signatories to the letters submitted by the applicant. He also submitted that the exceptional or rare circumstances that gave rise to a duty to inquire included:
a)It was not difficult for the Tribunal to make those inquiries; and
b)The inquiries would have assisted the Tribunal in determining whether the applicant’s claims were true.
With respect, it is difficult to see how either of the matters raised by counsel for the applicant could be described as “exceptional” or “rare”.
The “no logical grounds” issue
Mr Zipser submitted that there was no evidence to support the following findings of fact made by the Tribunal:
(a)That the Applicant “did not appear to be able to recount any personal experience of contact with hijras”[5]; and
(b)That the Applicant “was not able to adequately explain how the hijra members paid their membership dues”.[6]
[5] Court Book 282.7
[6] Court Book 283.6
He submitted that the Tribunal did not ask the Applicant to recount his personal experience of contact with hijras so there was no evidence that the applicant did not appear to be able to recount his personal experiences. Again, Mr Zipser submitted that the Tribunal’s record of discussions with the Applicant refers at page 255 of the Court Book to the Applicant’s explanation of how the hijra members paid their membership dues. Thus, he submits, there is no evidence that the Applicant did not adequately explain the matter.
Mr Zipser cited the decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [34] and [37], to the effect that where a determination of the Tribunal is “irrational, illogical and not based upon findings of fact or inferences of fact supported by logical grounds” there may be jurisdictional error. He submitted on behalf of the Applicant that the findings above were not supported by logical grounds and so the Tribunal fell into jurisdictional error.
In oral submission, Mr Zipser referred to the decision of Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam and Others [1999] FCR 719, particularly at [60], where his Honour said:
It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. The result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a “real substantial basis” for the fear. The RRT must not foreclose reasonable speculation about the chance of the hypothetical future event occurring.
He went on to submit that the Tribunal has a separate obligation to act reasonably.
First respondent’s submissions
The Applicant’s written submissions were not filed until two days before the hearing, after the First Respondent’s written submissions had already been filed. The First Respondent’s written submissions addressed the grounds contained in the original application. The amended application was not in fact filed until the date of the hearing. Fortunately, counsel for the First Respondent had been made aware of the contents of the amended application and made oral submissions in reply.
Ms McWilliam, counsel for the First Respondent, submitted that the Tribunal had no duty or legal obligation to make inquiries from the writers of the letters provided by the applicant in support of his case, relying on WAGJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24] and [25], where Heerey, Nicholson and Mansfield JJ did not follow the decision in Azzi v Minister for Immigration and Multicultural Affairs (supra), and W389/01A v Minister for Immigration & Multicultural Affairs (2002) 125 FCR 407; [2002] FCAFC 432 at [61]. In any event, the Tribunal did make some inquiries (see Court Book 278 – 230).
Counsel for the First Respondent also submitted that it is well established that want of logic does not constitute jurisdictional error, relying on NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [29] and [30], and NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 at [125]-[127]. Ms McWilliam also submitted that there was some evidence that the Applicant had had personal contact with hijras at page 252 of the Court Book, but this did not establish that the Tribunal had fallen into jurisdictional error. There was also some evidence (at page 255 of the Court Book) about the hijras paying their monthly fees, but this did not necessarily mean that the Tribunal had fallen into jurisdictional error when stating that the Applicant could not adequately explain how the hijra members paid their membership dues.
Conclusions
I am not persuaded that the Applicant has established that the Tribunal had any duty to inquire about the matters contained in the letters provided by the Applicant. The Tribunal did, in fact, have inquiries made by the DFAT post in Dhaka, and these inquiries did not support the Applicant’s claim.
Again, even if the court were to follow the decisions in Azzi at [112] and M159 at [21], I am not satisfied that the circumstances in this case are “exceptional”, “rare” or “special”. At best, the Applicant submitted that it would not have been difficult for the Tribunal to make those inquiries and the inquiries would have assisted the Tribunal. The circumstances are anything but rare or exceptional and, in any event, those inquiries that were made by DFAT tended to show that the letters were not genuine.
In WAGJ of 2002, the Full Court of the Federal Court (comprised by Heerey, Nicholson and Mansfield JJ) held at [24] and [25]:
[24] But in any event it is clear that s.427(1)(d) does not impose any legal obligation on the Tribunal. It is not a procedure “required by the Act” within the meaning of s.476 (1)(a)[7]. In Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [86] the Full Court said:
“If, as his Honour in our view correctly held, s.427(1)(d0 does not impose any duty on the Tribunal to make further enquiries, it is difficult to see how the Tribunal could have erred in law by assigning what is said to be a reason that is factually incorrect (that such enquiries would not assist) for not doing something it was not legally obliged to do.”
[25] By a parity of reasoning, it seems to us that if there is no legal obligation to make enquiries, there is no legal obligation to consider whether one should exercise that power. Moreover, there is either a legal obligation to exercise the power or there is not. If there is not, we do not agree that there could be some “confluence of circumstance and claim” which somehow enlivened some dormant residual obligation under s.427(1)(d). To that extent we would respectfully disagree with the proposition advanced by Allsop J in Gomez and Azzi. It is conceivable that failure by the Tribunal to make some particular enquiry might be relevant to a finding by the Court on review that there was a lack of good faith and that as a consequence the Tribunal’s decision was beyond jurisdiction. But in such event the error would be lack of good faith and not the breach of any legal obligation under s.427(1)(d). No such obligation exists.
I am not satisfied that there was any obligation on the Tribunal to make any more inquiries than it did. The Applicant’s first ground fails.
As to the second ground, want of logic does not constitute jurisdictional error (NACB v Minister for Immigration & Multicultural & Indigenous Affairs (supra) at [29] and [30]; NATC v Minister for Immigration & Multicultural & Indigenous Affairs (supra) at [125]-[127]). I am also not satisfied that there was no evidence upon which the Tribunal made the findings that it did. The Applicant’s second ground fails.
There is no jurisdictional error. The Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act and is not subject to orders in the nature of certiorari or mandamus.
The application will be dismissed with costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 26 February 2007
6
7
1