SZBMC v Minister for Immigration - [2007] FMCA 128

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBMC v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 128

MIGRATION – Review of decision by second differently constituted Refugee Review Tribunal – whether second differently constituted Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A; 424A(1); 424A(3)(a); 424A(3)(b); 430; 430(1)(d); 474; pt.8 div.2

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant:

SZBMC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1844 of 2006

Judgment of:

Emmett FM

Hearing date:

8 February 2007

Date of last submission:

8 February 2007

Delivered at:

Sydney

Delivered on:

16 February 2007

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

Ms Z. Brauer, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1844 of 2006

SZBMC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of a second differently constituted Refugee Review Tribunal dated 18 May 2006 and handed down on 8 June 2006.
The applicant was born on 26 March 1957 and claims to be from Bangladesh and of Bangladesh ethnicity and Muslim faith (“the Applicant”).
The Applicant claims that prior to arriving in Australia he was employed as an artist.
The Applicant has a wife and two sons who remain in Bangladesh.
The Applicant arrived in Australia on 1 September 2001, having legally departed from Zia International Airport on a passport issued in his own name and a visitor’s visa issued on 22 August 2001.
On 5 September 2001, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by Awami League ‘thugs’ because he is an influential leader of the Bangladesh Nationalist Party (“the BNP”). The Applicant claimed that the Awami League threatened him at home and tried to kill him twice in 2001. The Applicant further claimed that the Awami League falsified charges against him, resulting in a warrant being issued for his arrest by the police. The Applicant also claimed to fear persecution by fundamentalist Muslim terrorists because he is a supporter of the feminist author Taslima Nasreen and because he is a performer.
On 18 December 2001, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 15 January 2002, the Applicant lodged an application for review of the Delegate’s decision by the first constituted Refugee Review Tribunal (“the First Tribunal”). Before the First Tribunal, the Applicant maintained the claims made in his protection visa application. On 30 July 2003, the First Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 21 December 2005, Branson J in the Full Federal Court of Australia made orders remitting the matter to a second differently constituted Refugee Review Tribunal for determination according to law. Before the second differently constituted Refugee Review Tribunal (“the Second Tribunal”), the Applicant maintained the claims made in his protection visa application. On 18 May 2006, the Second Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 30 June 2006, the Applicant filed an application in this Court seeking judicial review of the Second Tribunal’s decision.

The Second Tribunal proceeding

The Applicant appeared before the Second Tribunal for a second hearing on 13 April 2006 to give evidence and present arguments. The Applicant gave oral evidence at the hearing and a representative migration agent also attended the hearing.
In the “Claims and Evidence” section of its decision, the Second Tribunal identified with particularity the claims made by the Applicant in his protection visa application and at the First Tribunal hearing. Relevantly, the First Tribunal noted the following claims by the Applicant:
i)That he became an office bearer in his district committee of the Bangladesh Nationalist Party (“the BNP”) and an “influential leader” as a result of which he claimed the Awami League commenced a conspiracy against him;
ii)That the Awami League tried to kill him twice in 2001 and that on another occasion he was attending an open air concert during which he was attacked by Muslim terrorists and people were killed, following which he decided to leave Bangladesh;
iii)That after coming to power in 1996, the Awami League sought revenge on BNP leaders and fabricated a false case against the Applicant;
iv)That he was attacked by Muslim terrorists because he is a supporter of feminist author Taslima Nasrin and, if he were to return to Bangladesh, he would be killed by Awami League members, arrested by police and would remain in custody, be tortured without trial and fundamental terrorists would kill him.
The First Tribunal noted that the Department wrote to the Applicant noting that independent country information indicated that the BNP had won a landslide victory at the last general elections and that the Applicant could seek and attain protection against Alwami League members from the BNP in power and that any charges against him may be dealt with in his favour. The Tribunal noted that the Applicant’s adviser responded that victory of the BNP made no difference to the country’s political situation and the Applicant’s circumstances. The adviser stated that the new Bangladesh Prime Minister would not interfere with judicial procedure regarding charges against BNP workers and confirmed that the Applicant would continue to be threatened by Muslim terrorists because of his support of Taslima Nasrin.
The First Tribunal noted that the Delegate placed weight on the accession to power in Bangladesh of the BNP and their ability to provide reasonable protection against politically motivated harm. The Delegate also found that the Applicant could expect a fair trial in relation to false charges against him. The Delegate expressed doubt about the Applicant’s active support of Taslima Nasrin.
At the First Tribunal hearing, the Applicant was asked about his concerns by reasons of his involvement with the BNP. The First Tribunal noted in great detail the claims made by the Applicant and the matters explored with the Applicant at that First Tribunal hearing.
In particular the First Tribunal noted that it put to the Applicant that the various charges filed against him, whether well founded or not, were consistent with the kind of activity reportedly engaged in by activists both of the BNP and Awami League. The First Tribunal noted that it was hard for it to determine whether the charges were false in the absence of the evidence produced in court.
The First Tribunal noted that, subsequent to the hearing, that it was sent a copy of the judgment of the court case from the Applicant’s adviser. The First Tribunal noted that it stated that the Applicant and others had been convicted and the Applicant had been sentenced to prison in his absence at a trial. The judgment stated there was no scope for appeal as it was now time-barred. The First Tribunal noted that the documents recorded that the Applicant had failed to appear on a considerable number of occasions although evidence had been taken from many witnesses who appeared and were examined and cross examined. The First Tribunal noted that the documents disclosed that statements were taken from both parties and that the Applicant was represented. The First Tribunal noted that the judgment disclosed that the Applicant was a member and supporter of the BNP student wing and had been engaged in a number of criminal activities and had been armed with various weapons when confronted by the police who were then attacked, as well, as causing damage to private and public property. The judgment stated that in the light of the evidence before the court, the offences were found proved and the Applicant convicted.
The Second Tribunal then recorded in detail the claims made by the Applicant at the second hearing. The claims are largely consistent with the claims made at the first hearing.
The Second Tribunal noted in detail the exchanges it had with the Applicant arising out of various aspects of the Applicant’s claims.
The Second Tribunal noted that the Applicant stated that his main fear was that the Awami League would seek to “erase him” were he to return to Bangladesh. The Second Tribunal noted that it put to the Applicant that independent country information disclosed that Bangladesh is a parliamentary democracy and that the Tribunal was having difficulty in accepting that, as a BNP activist and member, he would have any difficulty in Bangladesh at the moment or that any charges previously brought under the Awami League regime would be enforced.
The Second Tribunal also noted that it put to the Applicant why it would not be reasonable for him to live elsewhere in Dakar, or indeed in Bangladesh, and noted the Applicant’s response that he was note safe anywhere.
The Second Tribunal noted that it wrote to the Applicant on 26 April 2006 and 8 May 2006, giving the Applicant particulars of information that would be part of the reason for the Second Tribunal affirming the reason under review. The letters identified the relevance of the information and invited the Applicant to comment. The Second Tribunal’s decision records the text of both letters and the text of the Applicant’s advisor’s response sent on 15 May 2006.
The Second Tribunal found that the Applicant is a national of the People’s Republic of Bangladesh and that his religion is Muslim. The Second Tribunal accepted that the Applicant was an “influential leader” and that he became an office bearer of his district BNP committee. The Second Tribunal also accepted that this may have brought him into conflict with his Awami League opponents.
The Second Tribunal found that the Applicant had embellished his claims about his difficulties in obtaining a passport and leaving Bangladesh for Australia on 31 August 2001, that the Awami League had attempted to kill him on 1 July 2001 and had kidnapped him on

28 July 2001. The Second Tribunal found that, the Applicant was unable to explain why, if the Awami League had wanted to kill him, they did not in fact do so, if they held him for a day on 28 July 2001, rather than release him. The Second Tribunal also rejected the Applicant’s claim that the Awami League are still angry because he had opened a case against them and some members of the Awami League were jailed because of this as he had named them as suspects.
The Second Tribunal found that the Applicant is “not a credible witness”.
In relation to the Applicant’s claim of false charges, the Second Tribunal accepted that the charges had been proven in the courts in 2003 and he had been duly convicted by the courts in Bangladesh. The Second Tribunal was also satisfied that the Applicant’s convictions did not result from false charges brought by the Awami League for political or other Convention related reasons. Rather, the Second Tribunal accepted that the charges and conviction were genuine and found that the Applicant was involved in serious crimes in Bangladesh for which he has been convicted.
The Second Tribunal concluded that in relation to the Applicant’s claim of being attacked by Muslim terrorists because he was a supporter of Taslima Nasrin any subjective fear the Applicant may have was not well founded.
In relation to the Applicant’s claim of persecution by reason of membership of a particular social group, such as performers of traditional folk music or artists who practise traditional Bengali culture, the Second Tribunal noted that it put to the Applicant that it could find no evidence that such persons are mistreated harassed or persecuted in Bangladesh. The Second Tribunal noted that the Applicant’s answers were “evasive”. The Second Tribunal concluded that the Applicant does not have a well founded fear of serious harm regarding to persecution for a Convention reason by reason of membership of a particular social group and did not accept that claim.
The Second Tribunal noted that, it considered all of the Applicant’s claims and circumstances, both individually and cumulatively, and was not satisfied there was a real chance that the Applicant would be subject to serious harm amounting to persecution for a Convention reason if he were to return to Bangladesh, either now or in the foreseeable future.
Accordingly, the Tribunal affirmed the decision under review.

The proceeding before this Court

The Applicant was unrepresented before this Court although had the assistance of an interpreter. The Applicant participated in the Refugee Review Tribunal Legal Advice scheme.
The Applicant commenced his proceeding by way of application filed in this Court on 30 June 2006. The Applicant filed an amended application on 10 October 2006 and submissions in support of his application on 15 January 2007. The Applicant confirmed that he relied on the amended application and his written submissions. The Applicant made no submission in support of his application and simply confirmed he relied on his written submissions. The grounds in the amended application contain meaningless particulars and are otherwise more fully particularised in his written submissions. In the circumstances, each ground is considered in the light of the particulars identified in the Applicant’s written submissions.

Ground 1 – “The applicant claims that the Refugee Review Tribunal (the Tribunal) made a jurisdictional error when it did not follow the obligation according to the s.424A of the Migration Act.”

This ground contains six relevant particulars each of which is dealt with below.

(i) “Issuance of passport: The Tribunal mentioned that, ‘then the Awami League government would not have issued him with a Bangladeshi passport on 31 May 2001.’ (CB-180) but the Tribunal should know the difference between State and the Government because the passport was issued by the order of the President not by the Government (CB-47) Which is the reason or part of the reason to reject his claim but the Tribunal did not include this information in its letter of 28 April 2006 & 8 May 2006.”

This particular appears to complain that the Second Tribunal should have understood that his passport was issued by order of the President and not the government and this information which was incorrect was part of the reason for the Second Tribunal affirming the decision under review.
However, the Second Tribunal did not rely on the asserted fact that the passport was issued by the President and not the government. Accordingly, the information about the issuing of the Applicant’s passport did not form part of the reason for affirming the decision under review. In the circumstances, the obligations of s.424A(1) of the Act were not enlivened.
Accordingly, this particular is not made out.

“The Applicant is not a credible witness: The Tribunal mentioned in its decision that the Applicant is not a credible witness but the Tribunal did not give any specific reason why and how the witness is not credible. So the Applicant did not understand why his claim was rejected.”

The Second Tribunal found that the Applicant had embellished his claim in two respects:
a)The first, related to the Applicant’s claims about being a supporter of Taslima Nasrin. The Second Tribunal noted its exploration with the Applicant about his knowledge of Taslima Nasrin;
b)The second, related to the Applicant’s claim of the Awami league having abducted him for a day and yet not killing him and that five and a half years later they were still angry and liable to persecute him because he had named some members of the Awami League who had been jailed. As stated above, the Second Tribunal observed that it was curious that the Awami league did not kill the Applicant, where the Applicant had alleged they wished to kill him, particularly, when he was kidnapped in July 2001.
As a result of the embellishments the Tribunal found that the Applicant is not a credible witness. Those findings were open to the Tribunal on the evidence and material before it and for which it gave detailed reasons.
The reasons of the Tribunal are expressed with particularity. In the circumstances, a complaint by the Applicant that the Tribunal did not sufficiently explain why it found the Applicant not to be a credible witness is not made out.
Accordingly, this particular is not made out.

iii) “Specific case issue: The Tribunal used wrong independent country information regarding SPA (Special Power Act), this law is a special law for special power under which people are detained without charge for certain period of time in absence of specific case when there is a specific case then that specific case proceeds.”

This particular is misconceived in two respects. The first is that by reason of s.424A(3)(a), the Tribunal is not obliged to give particulars of information relating to independent country information not specifically about the Applicant. The second is that this ground otherwise seeks merits review. It is a question of fact as to whether certain information before the Second Tribunal is true or not true. It is for the Second Tribunal to determine the information it accepts and that it does not (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11]).
Accordingly, this particular is not made out.

iv) “The conviction issue: The Tribunal mentioned that the Applicant was involve in serious crimes in Bangladesh for which he has been duly convicted. (CB-181) But the letter of 28 April 2006 & 8 May 2006 of the Tribunal mentioned that, ‘The above country information indicates that any charges and conviction brought by the Awami League against you, if false, would be thrown out by the courts in Bangladesh.’ (CB-156) The Tribunal did not show any reason why it thought that the Applicant was involve in serious crimes and why it did not ask comment it in its letter to the Applicant. The Tribunal interestedly made this findings without any evidences, prove and without giving any opportunity to the Applicant to comment on it.”

This particular appears to be a complaint that the Second Tribunal did not give any reason why it thought the Applicant was involved in serious crimes. That complaint cannot be maintained in circumstances where the Second Tribunal accepted the information about the Applicant’s claims in accordance with documents provided by the Applicant to the Second Tribunal, being the copy of the judgment from the court in Bangladesh. It was open to the Second Tribunal to accept that the documents placed before it by the Applicant disclosed that the Applicant had been convicted and that the Applicant was involved in serious crimes in Bangladesh for which he was duly convicted.
The Applicant claimed at the second hearing that he did not know how he could prove that the charges brought against him were false. Having raised that issue, it must have been apparent to the Applicant, and the only reasonable inference to draw is, that the Second Tribunal may accept that the charges were not false. In those circumstances, the Applicant had an opportunity to address that issue before the Second Tribunal. In any event, no obligation arose on the part of the Second Tribunal to ask the Applicant to comment on that information because s.424A(3)(b) of the Act excludes from the obligations of s.424A(1) of the Act, information given by the Applicant to the Second Tribunal.

In the circumstances, to the extent that this particular alleges that the Second Tribunal made findings without any evidence, such allegation is plainly incorrect. The Applicant gave the information about his charges and convictions to the First Tribunal and the Second Tribunal accepted the correctness of the information.
Accordingly, this particular cannot be made out.

v) “Embellishment of the claim: The Tribunal mentioned two times in its decision the Applicant has embellished his claims in order to enhance his claims for a protection visa (CB-180). But the Tribunal did not give any thing (sic) written to the Applicant to comment about this reason and even the Tribunal did not give any specific example in support of its findings which is a procedural mistake.”

The findings made by the Second Tribunal in relation to embellishment by the Applicant of his claims are referred to above in these reasons. They are related to the Applicant’s claims about the facilitation of his departure from Bangladesh and the Awami League’s interests in him because he named Awami League members in his criminal case, as a result of which, the Applicant says they were jailed.
The fact that the Second Tribunal found that the Applicant had embellished his claims is a thought process of the Second Tribunal that is it is not knowledge of a fact ascertained by sources. Rather, it is the Second Tribunal’s conclusions of its assessments of the evidence before it. Those findings were open on the material and evidence before the Second Tribunal and for which it provided reasons.
Accordingly, this particular is not made out.

vi) “The Tribunal’s decision: If it is observed then it can be found out that the Tribunal did not follow s.430 of the Act to make its decision. The Tribunal in its decision (CB-179-184) only repeated from the hearing before it, which is not according to s.430 of the Act. On the other hand the Tribunal accepted that the Applicant is a influential leader in the district BNP committee but the it also mentioned that he was involve in serious crimes, which is a contradiction.”

This particular appears to be a complaint that the Second Tribunal “only repeated from the hearing before it” and in doing so breached its obligation under s.430 of the Act. However, the Second Tribunal was doing no more than ensuring those parts of the First Tribunal hearing’s decision that were relevant to the Second Tribunal’s decision were set out. The Second Tribunal’s decision sets out in detail the evidence and material before it, including the relevant evidence from the First Tribunal.
As stated above, the Second Tribunal made findings and conclusions based on the material and evidence before it and for which it gave reasons.
In any event, a breach of s.430 of the Act is not a jurisdictional error (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323).
To the extent that s.430(1)(d) requires a tribunal to set out in its decision the material to which it has regard, the Second Tribunal set out that material in detail, together with all other material and evidence which it considered.
To the extent this particular alleges that it was not open to the Second Tribunal to accept that the Applicant is an influential leader in the district BNP and that he was also involved in serious crimes, there is no obvious inconsistency in those findings. The finding about the Applicant being a leader in the BNP was consistent with the Applicant’s claims.
In relation to the Second Tribunal’s finding that the Applicant was involved in serious crimes, again, that finding was made from documents provided by the Applicant to the Second Tribunal for the purposes of the review, namely the judgment recording his conviction and the reasons for that conviction.
Accordingly, the particular is not made out.

Ground 2 – “The Tribunal denied the applicant natural justice and it also contradicts its own decision.”

To the extent that this ground alleges that the Second Tribunal denied it natural justice by a failure to comply with s.430 of the Act, such allegation is misconceived and incorrect.
As stated above, a breach of s.430 of the Act is not jurisdictional error. In any event, in the proceeding before this Court, the Second Tribunal plainly complied with its obligations under s.430 of the Act. The Second Tribunal carefully considered all claims by the Applicant. It accepted some and rejected others. It made adverse credit findings in respect of the Applicant’s evidence about some of his claims. Those findings were open to it on the material and evidence before it and for which it provided reasons.
As referred to above in these reasons, the Second Tribunal found a number of the claims were embellished and inconsistent with independent evidence before the Second Tribunal. In respect of the Applicant’s complaint that the Second Tribunal concluded the Applicant was an influential leader, as stated above, that information was given to the Applicant by the Second Tribunal and it made a finding in accordance with that information. In the circumstances, that finding was open to the Tribunal.
In relation to the conclusion that the Applicant was involved in serious crimes, this particular does no more than disagree with the findings and conclusions made by the Tribunal and otherwise seeks merits review. As stated above in these Reasons the Tribunal’s findings in respect of the Applicant’s involvement in serious crimes were open to it on the evidence and material before it and for which it gave reasons.
Accordingly, Ground 2 is not made out.

Conclusion

The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 12 February 2007