SZBNH v Minister for Immigration
[2008] FMCA 830
•27 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBNH v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 830 |
| MIGRATION – Review of decision of Refugee Review Tribunal – adverse credibility finding – finding open to the Tribunal on the material before it – Tribunal complied with the procedural fairness obligations set out in Division 4 of Part 7 of the Act – no denial of procedural fairness – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 424A, 425, 425A, 426, Division 4 of Part 7 Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) Migration Regulations 1994 (Cth), reg.4.35D |
| Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291; [2006] FCAFC 107 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157 Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZBNH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2806 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 17 March 2008 |
| Date of Last Submission: | 17 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Appearance for the Respondents: | Mr R Baird |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 12 September 2007 is dismissed.
The applicant pay the first respondent’s costs set in the amount $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2806 of 2007
| SZBNH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 12 September 2007 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 15 August 2007, and notified to the applicant on 16 August 2007, which affirmed the decision of a delegate of the respondent Minister to refuse to grant a protection visa to the applicant.
Background
The first respondent has put before the Court a bundle of relevant documents (the Court Book – “CB”) from which the following can be discerned.
The applicant is a citizen of Bangladesh who arrived in Australia on 8 June 2002. On 4 July 2002, he applied for a protection visa (reproduced at CB 3 to CB 47, with annexures). On 12 July 2002, a delegate of the respondent Minister refused to grant a protection visa to the applicant (CB 51 to CB 52).
On 8 August 2002, the applicant applied to the Tribunal for review of that decision (CB 60 to CB 63). On 3 September 2003, the Tribunal handed down its decision affirming the decision of the delegate (“the first Tribunal decision”). On 21 July 2005, orders were made in this Court quashing the first Tribunal decision and remitting the matter to the Tribunal for reconsideration according to law. (Orders of FM Driver reproduced at CB 126.)
On 22 November 2005, the Tribunal, differently constituted, handed down its decision signed on 31 October 2005, affirming the decision of the delegate (“the second Tribunal decision”). (The second Tribunal decision is reproduced at CB 145 to CB 167.) On 18 April 2007, orders were made in this Court quashing the second Tribunal decision, and remitting the matter to the Tribunal for reconsideration according to law. (Orders of FM Raphael reproduced at CB 196 to CB 197.)
On 5 July 2007, the applicant appeared before the Tribunal, again, differently constituted, to give evidence and present arguments (see CB 252.6 and CB 224). The applicant was represented before the Tribunal by a registered migration agent (CB 252.6). On 7 August 2007, the Tribunal wrote to the applicant advising him of the intention to hand down its decision on 16 August 2007 (CB 270.7 and CB 232 to CB 233).
On 7 August 2007, the Tribunal received correspondence from the applicant’s adviser indicating that the applicant proposed to submit further information to the Tribunal for its consideration (CB 270.8 and CB 234). This material was forwarded to the Tribunal under cover of a letter dated 14 August 2007 sent by facsimile communication and received at the Tribunal on 14 August 2007 (CB 270.9 to CB 271.2, CB 235 to CB 245). The Tribunal “recalled” its decision for further consideration, but did not change the date for handing down the decision (CB 270.10).
Applicant’s claims to protection
The applicant’s claims to protection were initially set out in a signed statement attached to the application for a protection visa made in 2002. The applicant claimed to be a Buddhist monk in Bangladesh who participated in politics, and was a leader of the Awami League. As a result of his activities, he was attacked by people from the rival Bangladeshi Nationalist Party (“the BNP”) and by Muslim fundamentalists. When the BNP came to power, he left Bangladesh to seek “political asylum” in Australia.
The Tribunal
In its decision record the Tribunal reviewed the applicant’s evidence given before the first and second Tribunals (CB 254.7 to CB 257.8). The Tribunal noted that the applicant had given certain evidence at the hearing before the first Tribunal, and in the first half of the hearing before the second Tribunal.
During the course of the hearing before the second Tribunal, the applicant gave evidence that some documents provided by his former adviser were not genuine, and that some claims made to the first Tribunal (concerning having false charges laid against him in Bangladesh) were not true. The applicant claimed that his agent had made up those claims. When it was pointed out to him that he had given this evidence orally, he responded: “that if he had said this then most probably he had lied” (CB 159.7 and CB 256.8).
Before the second Tribunal the applicant also withdrew claims made to the first Tribunal that he had been a member of the “Taslima Nasrin ‘fan club’”. He claimed that he had made this claim on the advice of his former adviser (CB 160.4 and CB 256.9).
Despite blaming his former adviser the Tribunal noted: “that each of the claims referred to above as having been denied by the applicant are claims that he appears consciously to have advanced, and elaborated on, in oral evidence to the first Tribunal and, up to a point, in his evidence to the second Tribunal” (CB 256.10 to CB 257.2).
At the completion of the hearing before the second Tribunal, the Tribunal understood the applicant’s claims to be as follows (CB 257.5):
“At the end of the second Tribunal’s hearing, the Applicant’s non-abandoned claims were that he was a Buddhist, and was targeted for abuse for these reasons and for his support of the AL; that he used to be involved in a Buddhist association that attracted harassment; that he sustained a knife wound to his leg in 1993, in an attack by political/religious enemies; that he was the subject of false charges in 1995, that there that there has been no progress in the matter of those charges; that his political involvement ended when he became a monk although small scale harassment continued; that he became become a monk in 1999, or in December 1998; that when he left Bangladesh in January 1999 it was in order to flee persecution; that the temple he stayed in during a visit home in April 2002 was attacked and he was hit on the head by attackers who told him to give up his political involvement.”
The Tribunal’s account of what occurred at the hearing (the third hearing) before it is set out in its decision record at CB 257.8 to CB 261. 3.
Relevantly, I note the following from the Tribunal’s account:
1)He blamed his former adviser for all the false and misleading claims and documents submitted to the previous two Tribunals (CB 257.9).
2)He blamed his adviser for the false claims, even those given by him orally.
3)He stated that “he had another story to tell that he had not told his former adviser” (CB 257.10). The Tribunal asked how it was that he could blame his former adviser for “mistakes” if it was the case that he had not told his adviser the true story. The applicant is reported as not having answered that question (CB 258.1).
4)In response to a question as to which of his earlier claims to the previous Tribunals was false, the applicant confirmed that the claim involving “Taslima Nasrin” was false, but “could not remember which other claims had been false” (CB 258.2).
5)The applicant agreed that up to a certain point during the course of the second Tribunal’s hearing he had given evidence as though the false claims were true (CB 258.3).
6)The Tribunal indicated to the applicant that “one of the problems it now faced was about what weight to give the claims to which he still adhered” (CB 258.4).
7)The Tribunal reported that the applicant gave conflicting evidence, and in answer to asking him to “describe the story he did not tell his former adviser” (CB 258.9), the Tribunal reported that “he went on to refer to facts he appears to have raised with the first Tribunal, about having been involved in a Buddhist Association. He told the presently-constituted Tribunal that he founded that association” (CB 258.10).
8)The applicant then also told the Tribunal a “story” that he said he had not told the former adviser which was about the “dark side of his life”. His evidence was: “he said he was kidnapped and raped by five Muslim men in 1998” (CB 259.3). The applicant also gave evidence that the attack in April 2002 on the temple where he was staying was connected to the 1998 rape, and subsequent knife attack incidents (CB 259.5).
9)The applicant gave evidence that his life was spared in 1998 on condition that he worked for the “BNP”, and explained that the attack in April 2002 was because he had not fulfilled his promise “to join the rapists and work for them” (CB 259.6). The Tribunal reports that it asked the question as to why these people would want him to work for them, and he said “‘maybe’ because they tried to gather new members of the BNP from the membership or support base of the AL” (CB 259.7).
10)In response: “The Tribunal put to the Applicant that it seemed implausible that the BNP would try to recruit new members from amongst their political opponents by raping and stabbing them. The Tribunal put to the Applicant that it seemed implausible that people would imagine they could trust their own abused adversaries to work in support of their party” (CB 259.8).
11)The applicant gave evidence that he had founded an association called the Bangladeshi Buddhist Youth Organisation (“the BBYO”) (CB 260.1).
12)However: “As the Tribunal sought further information about the BBYO, it appeared from the Applicant’s evidence that he was not its leader or its founder” (CB 260.3).
13)Following further evidence from the applicant involving a claimed attack in 1998, which the applicant had earlier said had occurred in 1993, the Tribunal put to the applicant that it “had very great difficulty encouraging the Applicant to give specific details about how these people, who conspired to kill him, tried to turn him into a BNP friend and BNP fund raiser” (CB 260.8).
14)The applicant raised for the first time the claim that his younger brother was in “trouble” in Bangladesh, and had gone into hiding because he also was involved with the AL, and that the “five Muslim rapists were also pursuing him” (CB 260.9).
15)The Tribunal declined to set a period for further submissions as asked by the applicant in order to obtain documents about his brother and to present a doctor’s certificate relating to the attack in 1998. The applicant also said he wanted more time to present a letter from an abbot who could attest to being told of the rape incident. The Tribunal nonetheless said that it would consider any subsequent submissions made by the applicant, and if to do so “required it to recall a decision set for handing down and re-open the matter for a fresh decision” (CB 261.3).
The Tribunal’s Findings
The Tribunal found that the applicant was a national of Bangladesh, of Buddhist faith, who lived in an area in Bangladesh where there was a concentration of Buddhists (CB 271.4). The Tribunal accepted that Buddhists in Bangladesh had been subjected to harassment and that in certain individual cases that treatment “could reasonably be regarded as persecution”. However, it was not satisfied: “on the evidence before it that the Applicant faces a real chance of being persecuted in Bangladesh simply for reasons of being a Buddhist” (CB 271.5).
The Tribunal found that, on the applicant’s own evidence before it, the applicant’s claims to protection were not based “purely on reasons of his religion”, but included claims to fear significant harm for reason of his support for the Awami League, his work with the BBYO, his opposition to the BNP, and his status as a monk (CB 271.6).
The Tribunal had “serious concerns about the Applicant’s credibility…” (CB 271.8), and “overall, the Tribunal [was] not satisfied” as to the applicant’s credibility (CB 272.3). While the Tribunal accepted the applicant’s claim that his adviser had persuaded him to give false evidence to the first Tribunal, it gave “weight” to the fact that the applicant continued to advance these same false claims at the second Tribunal hearing (CB 271.8).
Specifically, the Tribunal did not accept that the applicant had “a significant involvement or profile” with the BBYO (given “his confused and inconsistent claims”), although it accepted that the applicant had been involved with the BBYO (CB 271.9). Nor did the Tribunal accept that the applicant had any significant involvement with the AL (CB 271.10). Nor did the Tribunal accept that the applicant had been the “target of BNP intimidation” (CB 271.10). The Tribunal did not accept the applicant’s claims to have been attacked in 1993 (it specifically noted that the applicant had himself denied that this attack ever occurred); nor did it accept that the applicant had been the subject of false criminal charges, and it found the applicant’s account of having been attacked in 1998 ultimately “unreliable” (CB 271.10 to CB 272.2).
Having found adversely in relation to the credibility of the applicant, the Tribunal did not accept the applicant’s claims to have become a monk in order to avoid persecution (CB 272.4). Although the Tribunal did accept that the applicant had become a monk, as claimed, in late 1998 or early 1999 (CB 272.3). The Tribunal did not accept, however, that being a monk in Bangladesh “of itself” would attract Convention-related persecution (CB 272.5). Further, it found that the applicant was no longer a monk, and given its finding that the applicant did not have “any genuine inclination to be a monk in the future”, it was not satisfied that the applicant would avoid becoming a monk, or otherwise be discreet about the Buddhist faith, in order to avoid Convention-related persecution (CB 272.5).
The Tribunal also considered the evidence of the applicant’s brother submitted after the hearing, but before the handing down of its decision. But in the context of the credibility problems with the applicant’s evidence, it did not give any weight to that evidence, in particular and insofar as it purported to corroborate the applicant’s claims (CB 272.7).
In all, therefore, the Tribunal found that the applicant did not face a real chance of persecution in Bangladesh, and found that the applicant’s claims to fear persecution were not well-founded (CB 272.8). The Tribunal concluded that the applicant was not a person to whom Australia owed protection obligations. It therefore affirmed the delegate’s decision.
Application to the Court
The application to the Court filed on 12 September 2007 puts forward four particularised grounds:
“1.The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration the serious harm amounting to persecutions I experienced in Bangladesh for my religious belief.
2.The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction or denied procedural fairness in that the Tribunal failed to put the adverse materials to me and to enable me to have an opportunity to submit my explanations and material in reply to the alleged adverse materials. If I would be given the opportunity it could have led to a difference decision by the Tribunal.
3.The Tribunal denied the natural justice in determining my review application that the Tribunal biased, or in the alternative, there was an apprehension of bias in the making of the purported decision such it vitiated the said purported decision.
4.The Tribunal in its decision has mentioned without any valid reason ‘the Applicant faces a real chance of being persecuted in Bangladesh simply for reasons of being a Buddhist’ and ignored my claimed discrimination and harassment I suffered prior to my departure from Bangladesh. The Tribunal found that I will have no problem if I return back to my country of residence, Bangladesh. The Tribunal totally ignored my the persecutions as a member of Buddhist religion in spite of providing adequate documents in support of my claims. In fact the tribunal should have given the opportunity to comment on.”
(Errors in original)
Hearing before the Court
At the hearing before the Court, the applicant appeared in person. He was assisted by an interpreter in the Bengali language. Mr Baird appeared for the first respondent.
I also have before me written submissions filed on behalf of the first respondent. I also have before me the applicant’s affidavit of 12 September 2007, to which I will refer below. (I treated some matters raised in the affidavit as being in the nature of submissions.)
At the hearing before the Court, the applicant submitted:
1)The Tribunal made its decision “hurriedly”, without giving him “ample time” to fully provide his evidence. He referred specifically to the difficulty in contacting his brother in the short time that was available, and therefore he could not “prove” that he faced trouble in Bangladesh.
2)He had no money to hire a lawyer, and that he therefore could not “make up what to say” to the Court.
3)He would be persecuted if he were to return to Bangladesh.
Ground One – Failure to Consider Serious Harm
The applicant complains in ground one of the application that the Tribunal failed to consider the “serious harm amounting to persecution” that the applicant experienced in Bangladesh because of his religious belief.
On any plain reading of the Tribunal’s decision record, this ground is not made out. The Tribunal accepted that the applicant was a Buddhist in Bangladesh. Given the independent country information before it which it set out extensively in its decision record (CB 261 to CB 270), it was plainly open to the Tribunal to find that in the applicant’s circumstances, he did not face a real chance of being persecuted in Bangladesh simply for being a Buddhist.
While the Tribunal accepted that the applicant was involved with the BBYO (a Buddhist organisation), it was plainly open to the Tribunal to find that it was not such an involvement that would attract “relevant harm”. Further, it was also open, given the evidence before it, for the Tribunal to find that the applicant did “not even claim for his own part that he faced, or faces, significant harm simply for reasons of his religion” (CB 271.7).
The Tribunal properly understood (and it must be emphasised the difficulty faced by the Tribunal given the changing versions of the applicant’s claims and evidence, and given what the Tribunal described as “confused, vague and inconsistent claims”) his claims to be that he faced, or faces, significant harm amounting to persecution for reasons of his support for the AL, his work with the BBYO, his opposition to the BNP, and his status as a monk.
These matters were clearly addressed in the Tribunal’s analysis. It was clearly open to the Tribunal to be dissatisfied as to the applicant’s credibility, a finding which was open to the Tribunal to make on what was before it, and was a finding made within jurisdiction. Noting of course, that findings of fact, including findings on credibility, are within the ambit of the function required to be exercised by the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J).
What was left of the applicant’s claims, after the Tribunal discounted other aspects due to the applicant either having withdrawn those claims himself, or because of its finding on credibility, is simply that the Tribunal was unable to be satisfied on what was left that such harm as was claimed by the applicant amounted to being able to be satisfied that the applicant faced a real chance persecution in Bangladesh. Importantly, the applicant’s credibility was the significant factor in this regard.
The first ground in the application, therefore, is not made out. What is left of the applicant’s complaint really amounts to no more than a request for this Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”).
Ground Two – Denial of Procedural Fairness
Ground two in the application asserts a denial of procedural fairness in that the applicant complains that the Tribunal did not put to him “adverse materials” to enable him to submit his explanations in reply.
The applicant does not say what “adverse materials” should have been put to him. In any event, I note that this is an application to which s.422B of the Act applies. (The application to the Tribunal was made in August 2002 (see CB 60 and CB 63). Section 422B became operational on 4 July 2002 – see Migration Legislation Amendment (Procedural Fairness) Act 2002 (No 60, 2002).) As such, the matters set out in Division 4 of Part 7 of the Act constitute the exhaustive statement of the natural justice hearing rule (absent bias) as it applies to the applicant’s case (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]).
To the extent, therefore, that the applicant’s ground asserts a breach of s.424A of the Act, I cannot see that such a complaint can be made out. The evidence given by the applicant to the Tribunal was plainly given by him at the hearing for the purposes of the review, and falls within the exception contained in s.424A(3)(b) of the Act from the requirements set out in s.424A(1) of the Act.
Further, the evidence given by the applicant to the earlier constituted Tribunals, to which the Tribunal had regard, was evidence “given to the Tribunal”. That the two earlier decisions of the Tribunal were quashed by this Court does not mean that the Tribunal was not entitled to have regard to the evidence given by the applicant to the Tribunal (even though differently constituted) (see SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291; [2006] FCAFC 107 at [39]).
To the extent that the Tribunal relied on independent country information as set out in its decision record, such information falls within the exception contained in s.424A(3)(a), being non-in personam information (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264).
Although it is not clear, to the extent that it may be said that the Tribunal also had regard to independent information submitted with the applicant’s protection visa application (CB 34 to CB 47), then I agree with submissions made on behalf of the first respondent that such information, including information about the murder of a Buddhist monk in Bangladesh, does not enliven the obligation in s.424A(1) of the Act, given what was said by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) at [17] about the meaning of “information” for the purposes of s.424A. This material “did not contain a … a rejection, denial, or undermining” of the applicant’s claim to be a person to whom Australia owed protection obligations.
Nor are the adverse views formed by the Tribunal, or its appraisals of the applicant’s evidence, “information” for the purposes of s.424A(1) (see SZBYR at [18]).
Given that the applicant’s ground may seek to assert a denial of procedural fairness in terms of being denied a fair hearing pursuant to s.425 of the Act, I note that the applicant was invited to a hearing before the Tribunal, attended and gave his evidence. The letter of invitation (see CB 203 to CB 204) complied with all the relevant statutory and regulatory requirements (ss.425, 425A, 426A, reg.4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”), and the letter was sent to the applicant at the address for service (see CB 207 to CB 210).
Noting what the High Court said SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”) (at [35] and [44]) about procedural fairness obligations pursuant to s.425 of the Act, the determinative issue in this matter was, given the lack of credibility on the part of the applicant, that what was left of his claims was not such as for the Tribunal to be able to be satisfied that the applicant faced a real chance persecution for a Convention reason in Bangladesh.
On the only account before the Court now of what occurred at the hearing (and it must be noted the applicant attended with his adviser – CB 224), the factual basis of the applicant’s account as to why he claimed to fear persecution (noting what was left of this account during the hearing before the Tribunal), reveals that the Tribunal discussed each of the aspects of the applicant’s claims and, importantly, squarely put to him that it had problems with his credibility (see in particular CB 258.4, CB 258.1, CB 258.3, CB 258.8, CB 258.9, CB 259.4, CB 259.7, CB 260.8). I cannot see that the applicant was denied the opportunity at the hearing to address factual matters going to the surviving parts of his claims. Nor that he could have been in any doubt that the Tribunal had concerns about his credibility. In all, therefore, ground two does not succeed.
Ground Three – Bias
I cannot see that the claim of bias is supported by any evidence put before the Court. It is only in extreme circumstances that reliance only on the Tribunal’s decision record will give rise to actual bias (SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 (“SBBS”) at [43]-[44]). In any event, with reference to the relevant authorities (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 (“Ex parte H”), Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157 (“Jia”), Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 (“SBAN”), VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 (“VFAB”)), I cannot see that the Tribunal’s conduct discloses bias.
In relation to whether the well-informed lay observer would reasonably apprehend bias on the part of the Tribunal (Ex parte H, Jia) again, no evidence is apparent before the Court to disclose that either the Tribunal’s conduct of the review, or indeed its analysis, or its reasons, would be such as to cause a well-informed lay observer to apprehend that it did not bring an open, or impartial, mind to the proceedings. This complaint also is not made out.
In amongst the number of assertions contained in the applicant’s affidavit of 12 September 2007 put before this Court (the affidavit was not formally read in evidence before the Court, but given that the applicant is unrepresented I did consider those parts of the affidavit that may be of assistance to the applicant as to whether jurisdictional error may be discerned from what is said in those parts), at paragraph [17] the applicant complains that the Tribunal was not bona fide in making its decision. I understood this to be a complaint that the Tribunal acted in bad faith. Again, there is no evidence before the Court such as to indicate, let alone show, that such a complaint is made out, noting again that this is a serious allegation to make, and requires evidence (SBBS, SBAN, VFAB).
Ground Four – Invalid Reason
Ground four in the application complains that the Tribunal found, it is asserted, “without any valid reason”, that the applicant did not face a real chance of being persecuted in Bangladesh simply for reasons of being a Buddhist. The ground asserts that the Tribunal ignored his claims to have been discriminated against and harassed prior to his departure from Bangladesh.
In that part of the Tribunal’s reasoning from which the quote in the terms of this ground (the relevant reasoning appears at CB 271.6), it can be seen that the Tribunal did not reject the applicant’s claims simply on the basis that he was “a Buddhist”. The Tribunal dealt with each aspect of the applicant’s claims (as they survived before the Tribunal), and found, given the evidence before it, including independent country information, that there was not a real chance that the applicant would face persecution in Bangladesh simply for reason of being a Buddhist. This finding was open to the Tribunal to make on what was before it. The Tribunal did not ignore the applicant’s claims to have been discriminated against and harassed. It rejected some aspects given the adverse credibility finding that it made, and found other aspects to be confused, vague and inconsistent, and considered all aspects of his claims, including his claim to fear harm because of his Buddhist religion, and indeed, considered whether being a Buddhist monk in Bangladesh would of itself attract Convention-related persecution (CB 272.5).
The answer to the applicant’s complaint in this ground is that it was open to the Tribunal to make the finding that it did in relation to the chance of persecution for reasons of his being a Buddhist. Second, the Tribunal did not “ignore” any evidence given by the applicant in this regard. There is of course a distinction between ignoring evidence, and simply not accepting some aspects of it, or making an evaluation that leads the Tribunal to reject the assertion by the applicant that he would face persecution simply for being a Buddhist.
Further, to the extent that the applicant complains in ground four that he should have been given the opportunity “to comment”, it is not clear in to what the applicant refers. In context, it may be that at best, the applicant complains that the Tribunal should have given him the opportunity to comment on its evaluation that he would not face persecution on return to Bangladesh for reason of his being a Buddhist. As such, there is no obligation on the Tribunal to have provided the applicant with a commentary on its reasoning process (see SZBYR at [17]-[18]). Nor is there any obligation on the Tribunal to provide an applicant with a draft copy of the decision record prior to making the decision. At best, this complaint does not rise above a request for impermissible merits review (Wu Shan Liang) and does not succeed.
Matters Raised in Submissions to the Court
Before the Court the applicant complained that the Tribunal made its decision “hurriedly”, and did not give him sufficient time to provide documents from his brother that he says would have proven to the Tribunal that he would face trouble in Bangladesh.
This appears to refer to the applicant’s request at the conclusion of the hearing before the Tribunal, that the Tribunal provide him with “additional time to obtain documents about his brother”, and also for additional time to obtain a doctor’s certificate relating to the attack in 1998, and a letter from an abbot.
The issue relating to the applicant’s brother was raised for the first time before the Tribunal at the hearing on 5 July 2007 (CB 260.9). In relation to the request for more time to obtain documents about his brother (noting of course that any claimed fear on the part of the brother did not necessarily relate to the applicant’s circumstances, or go to the issue of his claim to fear persecution).
In any event, what is clear is that the Tribunal did provide the applicant with an opportunity to submit additional documents, which he did. The hearing was on 5 July 2007 and the Tribunal made it clear that it would consider any further submissions or documents provided by the applicant up to the time that it handed down its decision. The handing down was scheduled for 16 August 2007. The applicant provided additional documents through his adviser by facsimile transmission on 14 August 2007 (see CB 235 to CB 245), and the Tribunal clearly considered these documents (see CB 272.7).
The Tribunal’s finding that it could not give any weight to the documents was clearly open to it given, as it said, the credibility problems with the evidence of the applicant himself. In relation to the documents concerning the brother, it was open to the Tribunal to find that these were documents going to any claims relating to the brother. It could not give weight to these documents, in addition, as they were intended to be evidence in support of the applicant’s claims about himself.
In all, I cannot see that the applicant was denied the opportunity to provide additional material. He did provide this material. The Tribunal, for reasons which it gave, did not give weight to this material. I cannot see error in how the Tribunal approached this issue.
Paragraph [15] of the applicant’s affidavit asserts that the Tribunal failed to take into account his “oral evidence regarding the claims of persecution”. Plainly, this claim cannot succeed. The Tribunal’s decision record reveals that it gave full consideration to the applicant’s evidence, but simply did not believe large parts of what the applicant said. The Tribunal’s finding as to the applicant’s credibility was clearly open to it on what was before it. The applicant’s complaint now really asks this Court to intervene and substitute another finding as to his credibility which this Court is not permitted to do.
To the extent that paragraph [16] asserts that the Tribunal failed to provide him with procedural fairness, and failed to put adverse materials to him, these matters have been dealt with above. No error is revealed on the part of the Tribunal in this regard.
At the hearing before the Court, the applicant complained that he had no money to hire a lawyer to assist him, presumably before the Court. I note in this regard that the applicant did apply to participate in the Court’s legal advice scheme, and was referred to a practitioner on the panel of that scheme. Beyond this, this complaint does not reveal jurisdictional error on the part of the Tribunal as clearly the applicant was represented during the period of the review. (No complaints were made in relation to the adviser who assisted the applicant before the “third Tribunal”.)
Conclusion
I cannot discern jurisdictional error as it is asserted in the application, nor from the matters in the applicant’s affidavit, nor from what the applicant submitted to the Court. (I treated those matters in the affidavit as submissions.) Nor can I otherwise discern jurisdictional error on the part of the Tribunal. For the applicant to succeed, the Court would need to find such error. The application is therefore dismissed.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 27 June 2008
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