SZBPO v Minister for Immigration
[2005] FMCA 1255
•2 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBPO v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1255 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Bangladesh – whether the RRT breached s.424A or s.425 of the Migration Act 1958 (Cth) or constructively failed to exercise its jurisdiction considered. |
| Evidence Act 1995 (Cth), s.79 Migration Act 1958 (Cth), ss.424A, 425 |
| Randhawa v Minister for Immigration (1994) 52 FCR 437 S273 of 2003 v Minister for Immigration [2005] FMCA 983 SZBRR v Minister for Immigration [2005] FMCA 1218 SZCJH v Minister for Immigration [2005] FCA 1660 |
| Applicant: | SZBPO |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2112 of 2003 |
| Judgment of: | Driver FM |
| Hearing dates: Date last submissions received: | 22 July, 1 September 2005 14 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 2 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr A B Slattery |
| Counsel for the Respondent: | Mr A McInerney |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2112 of 2003
| SZBPO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
CORRECTED JUDGMENT
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 9 September 2003 and handed down on 2 October 2003. The RRT affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.
The background to this matter is as follows. On 1 February 2003, the applicant, a citizen of Bangladesh, arrived in Australia. On 28 February 2003, he lodged an application for a protection visa. On 21 March 2003, a delegate of the respondent refused to grant a protection visa. On 15 April 2003, the applicant applied to the RRT for a review of that decision. The applicant alleged that he had a well‑founded fear of persecution for reasons of his religion as a member of the Ahmadiyya Jamat religious sect.
The applicant put his claim to the RRT on two bases. First, he alleged that he had suffered two specific incidents of persecution in the past which gave rise to a well-founded fear of persecution in Dhaka [court book, pages 264.2-264.8].
Secondly, the applicant alleged that he had a well-founded fear of persecution as a member of the Ahmadiyya sect anywhere in Bangladesh, as no Ahmadiyyan could live in Bangladesh openly [court book, page 274.1].
The RRT rejected the applicant’s claims on three bases. The first was that the RRT was satisfied that the applicant did not have a well-founded fear of persecution for a Convention reason in respect to the specified incidents of past persecution, in circumstances where, if the applicant had truly believed that there was a real chance he would be persecuted in Bangladesh following those incidents, he would not have travelled to Thailand, Malaysia, Singapore and Indonesia in 2001, and then returned to Bangladesh [court book, pages 272.9-273.1].
The second was that, in any event, the RRT found that it was satisfied that, if for any reason the applicant did not wish to return to Dhaka, it would be reasonable for him to live elsewhere in Bangladesh [court book, page 273.8].
The third was that, accepting that the applicant had experienced from time to time some low level discrimination, the RRT did not accept the applicant’s claims that an Ahmadiyyan could not live in Bangladesh openly, in circumstances where there was no evidence in the country information to indicate that there was any adverse treatment of Ahmadiyyas in Bangladesh under the current government [court book, pages 274.5-274.8].
The RRT made a number of adverse findings of fact in respect to the applicant’s claims, and had serious doubts about the applicant’s credibility [court book, page 272.1].
As part of his application for review to the RRT, the applicant expressly placed reliance on his statutory declaration dated 27 September 2003 [court book, pages 25-30; 47; 262.3-262.6]. The RRT preferred the evidence given by the applicant at the hearing to that contained within the statutory declaration [court book, page 271.8].
The RRT made the following findings of fact:
a)it accepted that the applicant was not an Ahmadi priest or Imam [court book, page 271.9].
b)it did not accept that the applicant’s claims flowed from the applicant holding a position as an Ahmadi priest, Imam, or from carrying out preaching activities [court book, pages 271.9-272.1].
c)it found, having held that the applicant was not a priest or Imam, that the amount of time that the applicant had available to be involved with the Ahmadiyya sect was of necessity limited [court book, page 272.3].
d)it accepted that the applicant went to Saudi Arabia with a group of Ahmadiyya on an official visit in September/October 2000 because he was well educated and able to assist the other Ahmadiyya in his group but did not accept that he went there because he was an Ahmadiyya leader [court book, page 272.5].
e)it found that since the applicant’s arrival in Australia on 1 February 2003 he had not in any way participated in the Ahmadiyya sect activities [court book, page 272.6].
f)it found that while the applicant had been associated with the Ahmadiyya sect, he did not hold a position of responsibility and did not have a public profile as a leading Ahmadiyya Jamat member [court book, page 272.6].
g)it accepted the applicant’s claims that he was attacked on or around 10 April 1997 and on or about 26 March 2000 [court book, pages 272.7-272.8].
h)it accepted that the applicant travelled to Thailand, Malaysia, Singapore and Indonesia, leaving on 2 May and returning to Bangladesh on 12 May 2001 and then again visited India after those incidents on 9-11 June 2000 and 29 December 2000-10 January 2001 [court book, page 272.8].
i)it was satisfied that if the applicant had believed that there was a real chance he would be persecuted in Bangladesh he would not have returned to Bangladesh after any of those visits and was further satisfied that, as the applicant chose to return to Bangladesh, he did not have a well-founded fear of persecution for a Convention reason at that time [court book, pages 272.9-273.1].
j)it was satisfied that, if for any reason the applicant did not wish to return to Dhaka, it would be reasonable for him to live elsewhere in Bangladesh [court book, page 273.9].
k)it had not been able to satisfy itself that the essential and significant reason for any difficulties (if any) the applicant may have if he lived in another part of Bangladesh would be Convention related [court book, page273.9].
l)while giving the applicant the benefit of the doubt and accepting that he had experienced from time to time some low level discrimination, it did not accept the applicant’s claims that no Ahmadiyyan could live in Bangladesh openly, in circumstances where there was no evidence and country information to indicate there was any adverse treatment of Ahmadiyyas in Bangladesh, and was not, therefore, satisfied that the applicant had a well-founded fear of serious harm amounting to persecution for a Convention reason [court book, page 274.8].
m)it was satisfied that there was not a real chance that the applicant would experience serious harm amounting to persecution for a Convention reason if he returned to Bangladesh now or in the foreseeable future, and found that he was not a refugee [court book, page 274.9].
The application and evidence
These proceedings began with the application for judicial review filed on 9 October 2003. The application has gone through several iterations since then. The applicant ultimately relied upon a second further amended application filed in court by leave on 1 September 2005. That application asserts the following grounds of judicial review:
Ground 1
The RRT breached s.424A of the Migration Act 1958 (Cth).
Particulars
(a) The RRT did not make written disclosure of information that would have and was part of the reason for it to reaffirm the decision of the delegate.
(b) The information was specifically about the applicant.
(c) The information was not provided by the applicant.
The information was that the applicant:
(i) was not a priest or Imam.
(ii) gave inconsistent statements.
(iii) was not credible.
Ground 2
The RRT breached s.425 of the Act
Particulars
(a) The RRT failed to conduct a hearing of the type contemplated by s.425.
(b) Issues in relation to the genuineness of the applicant’s evidence was raised by the Tribunal in its decision without giving the applicant prior notice nor an opportunity to comment on it before making its decision.
The information was that the applicant:
(i) had given an inconsistent statement in relation to whether or not he was an Imam.
(ii) could not have had time to be involved in the Ahmadiyya as claimed when regard is had to the time consumed by his work and study commitments.
(iii) did not have a subjective fear as he did not seek international protection at the time of the alleged attacks and returned to Bangladesh after leaving it.
Ground 3
Alternatively, the RRT constructed a failure of its jurisdiction by breaching the requirements of procedural fairness in the circumstances of the case.
Particulars
(a) The Tribunal failed to raise an issue with the applicant and invite the applicant to comment upon it.
The information was that the applicant:
(i) had given an inconsistent statement in relation to whether or not he was an Imam;
(ii) could not have had time to be involved in the Ahmadiyya as claimed when regard is had to the time consumed by his work and study commitments.
(iii) did not have a subjective fear as he did not seek international protection at the time of the alleged attacks and returned to Bangladesh after leaving it.
Ground 4
The RRT misunderstood the law that it had to apply to the case.
Particulars
(a) The RRT used a wrong concept of the subjective element of fear in asking the question of refugee status.
(b) The subjective element used was not within the keeping of its purpose.
(c) The RRT subjective element was based on trepidation not apprehension, was not based on a forward looking expectation of risk and was objectified.
The application is supported by affidavits by Mr Farooque Khan, filed in court on 1 September 2005 and by Glennis May Elizabeth Nalder, filed in court on the same day. Ms Nalder introduces a transcript of the RRT hearing. Mr Khan describes himself as a “linguist” and his affidavit introduces his version of an important part of the transcript, derived from the audio tape of the RRT hearing. At the request of Mr McInerney, I conducted a voir dire to satisfy myself that Mr Khan was qualified to give opinion evidence. He is a NAATI accredited interpreter and I satisfied myself that he was qualified to give opinion evidence as to the meaning in English of statements made in the Bengali language, and vice versa.
Mr Khan gave oral evidence in chief in relation to his interpretation of the relevant part of the audio tape and was also cross-examined. In chief, Mr Khan said that the tape was difficult to translate because sometimes the sounds were indistinct. He believes that his transcript is accurate. He could not recall whether he heard the applicant speak in English at any stage.
In cross-examination, Mr Khan said that he was asked to compare the audio tape with a typed transcript but he no longer had the typed transcript. He said that he listened to the tape several times and prepared a transcript that he no longer has. He said that he was contacted by an associate of his company who put to him some difficulties the applicant had with the transcript he had prepared. He said that in the light of those comments he revised his transcript. He was aware that it was a relevant issue whether the applicant did or did not say that he was an “Imam”. He could not recall how the transcript he ultimately relies upon differed from his first attempt. Mr McInerney showed Mr Khan a transcript of the same passages prepared by another NAATI accredited interpreter, Mr Iqbal Hye Chowdhury. Mr Khan agreed that Mr Chowdhury’s transcript was more accurate than his own. He maintained, however, that his transcript was also accurate. Mr Khan, in response to a question from me, agreed that it was possible that the interpreter spoke twice in purporting to say to the presiding member what the applicant had said in relation to him being an “Imam”. Mr Chowdhury’s transcript contains two statements by the interpreter, whereas Mr Khan’s transcript contains only one.
I received an affidavit by Mr Chowdhury filed on 30 August 2005 to which was annexed his version of the transcript. I also received as evidence the court book, filed on 12 January 2004.
Submissions
Mr Slattery, for the applicant, made both written and oral submissions. Relevantly, Mr Slattery submits as follows:
·the RRT breached s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) by not giving written notice to the applicant and inviting his comment upon information received from the interpreter at the hearing that the applicant had not been an Imam in Bangladesh;
·the RRT breached the rules of procedural fairness under the general law in not giving the applicant the opportunity to deal with adverse information, namely that he had not been an Imam in Bangladesh;
·the general law fair hearing rule is not excluded by s.422B of the Migration Act in the circumstances of this case;
·the RRT also breached s.425 of the Migration Act by not raising plainly and clearly with the applicant at the hearing the critical issues upon which the application might depend so that the applicant had a real opportunity to be heard;
·the RRT misunderstood and misapplied the subjective element of the test of a well founded fear of persecution in the Refugees Convention;
·the applicant stated that he feared for his life in a statutory declaration made in support of his protection visa claims. The RRT found that he did not have any subjective fear in the past. In so finding, the RRT failed to apply a forward looking objective test to possible persecution in the future if the applicant returned to Bangladesh;
·the reason given for why fear in the past was not well founded was because international protection was not sought at the time and the applicant chose to return to Bangladesh after leaving on overseas visits. This finding treats fear as trepidation and not apprehension;
·relief should not be refused on a discretionary basis.
I invited written submissions from the Minister. In his written submissions filed on 14 September 2005. Mr McInerney submits as follows:
These written submissions have been prepared on behalf of the respondent in reply to the applicant’s further and amended written submissions dated 31 August 2005.
On the respondent’s reading of the applicant’s further and amended written submission, the applicant seeks to make good the following propositions:
a)there was an error in the translation of the hearing with the effect that the applicant did not state to the Tribunal, in effect, that he was not a priest or Imam of the Ahmadiyya. The failure by the Tribunal to provide the applicant particulars of that “information”, that is, that the applicant had told the Tribunal that he was not a priest or Imam of the Ahmadiyya, was a failure by the Tribunal to comply with s 424A(1) of the Migration Act 1958 (Cth) (“the Act”).
b)the Tribunal failed to comply with s 424A(1) of the Act in that the Tribunal failed to advise the applicant of its subjective thought process in relation to its assessment of the applicant’s credibility.
c)the applicant contends that the judgment of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] is wrong, and should not be followed by the Federal Magistrates Court.
d)the Tribunal failed to comply with s 425(1) of the Act in that it failed to raise with the applicant for his comment during the hearing:
i)that the applicant had told the Tribunal that he was not a priest or Imam of the Ahmadiyya.
ii)that if consideration is given to the time spent by the applicant on his business and study, he would not have had time to participate in the Ahmadiyya to the extent he claimed.
iii)that the applicant did not have a subjective fear arising out of his claimed experience of previous persecution as he returned to Bangladesh after leaving it and did not seek international protection at that time.
iv)the issue of relocation.
e)the Tribunal misunderstood the subjective fear element in its application of the “real chance” test: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
There is a complete answer to the applicant’s claim. The Tribunal found that, it was satisfied that if for any reason the applicant did not wish to return to Dhaka, it would be reasonable for him to live elsewhere in Bangladesh [CB273.8].
The Tribunal’s finding is an alternative and independent basis for the Tribunal’s decision. In respect to the Tribunal’s relocation finding no error is asserted by the applicant. In the absence of any error attending the Tribunal’s reasoning in respect to that issue, the decision will not have been vitiated by jurisdictional error (in the event that the applicant can make good that the Tribunal’s decision was otherwise infected by jurisdictional error, which is denied): see Minister for Immigration and Multicultural and Indigenous Affairs v VFAY [2003] FCAFC 191 at [61]-[62]; VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33] per North J; NAIF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 114 at [16]-[17], per Madgwick J; NAUW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1086 at [24], per Moore J.
The applicant makes a complaint that the interpreter at the hearing made an error in his translation. The applicant’s case is that he did not say words to the effect that he was not a priest or Imam (Transcript, p. 22). The applicant contends that he did not say anything to that effect to the interpreter and, furthermore, that the interpreter incorrectly answered a question from the Tribunal on behalf of the applicant.
The applicant’s case requires this court to make a finding of fact in respect to what occurred during the course of the Tribunal’s hearing. The applicant’s case is premised on evidence put forward in an affidavit from Mr Farooque Khan. The respondent challenges the expertise of Mr Khan to give the evidence set out in the transcript of audio tape which forms Annexure “B” to his affidavit sworn 18 August 2005. The applicant has failed to establish that Mr Khan has a requisite expertise, by reason of his education, training or experience, to give opinion evidence pursuant to s 79 of the Evidence Act 1995 (Cth).
In any event, the respondent submits that Mr Khan’s evidence is incorrect. The court would prefer the evidence given by Mr Chowdhury as to what occurred during the course of the Tribunal’s hearing. Mr Khan readily conceded that Mr Chowdhury’s translation was more accurate than his. The court would prefer the evidence of Mr Chowdhury for that reason. The court would accept that, during the course of the Tribunal’s hearing, the applicant said to his interpreter in Bengali “No, I have not been like that” in response to the Tribunal member’s question that he “had great difficulty accepting that [the applicant was] a priest or Imam in Ahmadiyya sect?”.
Mr Chowdhury’s transcript of the audio tape is supported by, and consistent in all relevant respects with, the evidence of Ms Nalder [at p. 22]. To the extent that there is any discrepancy, as to the transcript of the relevant part of the audio tape, between the affidavit of Mr Chowdhury and the affidavit of Ms Nalder, that discrepancy is explicable by reason of the fact that each of Mr Chowdhury and Ms Nalder transcribed different copies of the same audio tape; an audio tape which, in any event, was, in various respects, poor in quality.
Any “information” upon which the Tribunal relied in its reasons for decision, was “information” that the applicant gave to the Tribunal for the purpose of his application for review. The applicant raised in his statutory declaration the fact that he had visited several countries such as Thailand, Malaysia, Singapore, Saudi Arabia and India before he made his way to Australia [CB26.7]. The applicant was put on notice by the delegate’s decision that there was a real issue as to whether or not the applicant’s evidence would be accepted that he had a well-founded fear of persecution for a Convention reason in circumstances where he had “previously departed and returned to Bangladesh during the period that he claimed he had a fear of Bangladesh. The applicant’s willingness to re-enter the country indicates that the claimed fear is not well-founded” [CB41.6]. That issue in respect to the applicant’s credibility was “obvious” on the known material before the Tribunal. It was “obvious” to the applicant and it was incumbent on the applicant, therefore, in those circumstances to address that issue.
It is clear that the applicant caused to be placed before the Tribunal, for the purpose of the proceeding before it, the “information” contained within his original protection visa statement [CB52.9], and his original statutory declaration [CB53.8]. Furthermore, in the applicant’s migration adviser’s submission to the Tribunal, the applicant expressly relied on the fact that “before coming to Australia he [had] visited several south and south east Asia as well as middle eastern countries” [CB54.9].
In its reasons for decision, the Tribunal recorded that:
a)in his application for review, the applicant claimed he relied on his previous statement [CB47.3], [CB262.3]; and
b)the applicant, by his migration adviser, submitted to the Tribunal on two occasions a copy of the applicant’s statutory declaration [CB262.5-CB262.7].
It is clear that by his expressed adoption and incorporation into, his application for review to the Tribunal, s 424A(3)(b) of the Act was enlivened. In this respect, the respondent relies on the decision of Gray J in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131, and the decision of Dowsett J in SZERV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1221.
The respondent makes two submissions in this respect. First, there was no “prior inconsistent statement”. There could only be a “prior inconsistent statement” if an error had been made by the interpreter in respect to his translation of what the applicant had said to him. The applicant has not discharged his onus of proof in respect to this issue.
The applicant’s contention that he has demonstrated that there was an error in translation on the part of the interpreter during the course of the Tribunal’s hearing must fail for the following reasons:
a)Mr Khan conceded that Mr Chowdhury’s translation was more accurate than his. Having regard to Mr Khan’s evidence, the court would prefer the evidence given by Mr Chowdhury, as supported by the transcript prepared by Ms Nalder.
b)the applicant has not adduced evidence from the interpreter who provided the translation during the course of the Tribunal’s hearing that he made the error attributed to him by the applicant.
c)he has not called any evidence from the applicant to establish that such an error had been made. It is clear from a reading of the whole of the transcript that the applicant had an understanding as to some English. There is no evidence to indicate that the applicant did not understand what the interpreter had said to the Tribunal member in English.
d)the applicant has failed to comply with the rule in Brown v Dunn. The applicant did not require Mr Chowdhury for cross-examination. It was not put to Mr Chowdhury that his translation, and transcription, of the audio tape was, in any respect, an error.
In summary, the applicant has failed to establish that any error was made in the translation during the course of the Tribunal’s hearing.
Secondly, any “prior inconsistent statement” made to the Tribunal, by an incorrect translation made by the interpreter of what he had been told by the applicant, was “information” that the applicant “gave” to the Tribunal for the purpose of the proceeding before the Tribunal, that is, the application for review made to the Tribunal by the applicant. It follows, therefore, that the exclusion clause provided by s 424A(3)(b) of the Act was enlivened.
A decision maker is not obliged to expose his or her mental processes or provisional views to comment before making a decision in question: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 127 ALR 699 at 715. There is no obligation under s 424A(1) of the Act imposed on the Tribunal to provide particulars of the Tribunal’s subjective thoughts or processes in relation to the credibility of an applicant. An obligation to provide particulars only arises under s 424A(1) in respect to “information” which is, or would be, part of or the reason for the decision of the Tribunal. The applicant has not identified any “information” in respect to the Tribunal’s assessment of the applicant’s credibility.
Finally, this court is bound to apply the judgment of the Full Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]. Even if the court were to conclude that the relevant passage of the reasons for judgment of Finn and Stone JJ (at [24]) was dicta, the court should find it highly persuasive and should follow it.
In further answer to any issue raised by the applicant in reliance on a decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, the respondent makes the following further submissions.
First, the Tribunal’s subjective thought processes about, or qualitative assessment of, information provided to the Tribunal, pursuant to s 418(3) of the Migration Act 1958 (Cth) (“the Act”), is not “information” for the purposes of s 424A(1) of the Act: Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 at 53 per Sackville J; Paul v Minister for Immigration and Multicultural Affairs (2001) 64 ALD 289 at [95], per Allsop J. An impression formed by the Tribunal in respect to the material otherwise put before the Tribunal pursuant to s 418(3) of the Act is not “information” within the meaning of s 424A(1): see Branson J in NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1010 at [4]-[9]. Particular reliance is placed by the respondent on the decision of the Full Court of the Federal Court of Australia in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24(iii)], per Finn and Stone JJ.
Secondly, the applicant incorporated by reference, the respondent submits, into the application for review the information contained within his protection visa application by his comment made during the Tribunal’s hearing to the Tribunal to the effect that “he confirmed that everything he had stated in his protection visa application, application for review and other statements were correct in every respect” [CB263.3]. In this respect, the respondent relies on Gray J in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131.
Thirdly, the respondent submits that information provided by an applicant in answer to a question from the Tribunal about a document (ie. the protection visa application) otherwise before the Tribunal pursuant to s 418(3) of the Act is “information” provided by the applicant for the purpose of the application and, therefore, s 424A(3)(b) of the Act was enlivened. To the extent that NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 suggests to the contrary, that decision is wrong. The respondent relies on SZFKL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 931 at [7]-[8], and SZEIE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 987 at [40].
Fourthly, in any event, the respondent contends that “information” which an applicant gives for the purposes of the application or review to the Tribunal includes the protection visa application, any document attached to it, and any other document put before the Tribunal by an applicant: see Finkelstein J in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 18 at [19].
Finkelstein J’s view did not find favour with the judgment of the majority (Finn and Stone JJ) in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [19].
At [20], Finn and Stone JJ in VAF observed, in respect to what Finkelstein J had said at first instance:
“This, with respect, is a misapplication of Al Shamry. Whatever else may be said of all the information supplied by an applicant prior to an application for a review by the Tribunal, it cannot be said that the applicant gave that information as in the order ‘for the purpose of the application’ to the Tribunal”.
There is a respectable argument that, having regard to s 418(3) of the Act, the information given by an applicant for the purpose of his application for a protection visa can also be information given by an applicant for the purpose of his application for review by the Tribunal.
The argument works this way.
The purpose for which information is given is not fixed.
The information contained within the original protection visa application, and any documents which were attached to it or otherwise provided to the Department by an applicant, are given to the Department by the applicant for the purpose of the application made by the applicant for a protection visa.
Once, however, the application for a protection visa has been refused by a delegate, the applicant then gives the same information, to which I have just referred, to the Tribunal for the purpose of his application for review by the mere lodgement of his application for review to the Tribunal.
The initiation of an application for review to the Tribunal triggers the operation of s 418(3) of the Act.
Having regard to the obligations of the Tribunal to undertake a review of the merits of the delegate’s decision, and to stand in the shoes of the respondent carrying out its function pursuant to s 65(1) of the Act, the applicant gives to the Tribunal for the purpose of his application for review by the Tribunal, the information contained within his original protection visa application, and any documents attached to it, or other documents provided to the Department by the applicant, by operation of s 418(3) of the Act.
In other words, by initiating an application for review to the Tribunal by the lodgement of that application, the applicant is taken to have given to the Tribunal for the purpose of his application for review, the information he had previously given to the Department described above, having regard to the operation of s 418(3) of the Act.
Fifthly, the observation made by members of the Full Court in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 at [17]-[35] that “the application” referred to within s 424A(3)(b) of the Act refers to the application to the Tribunal rather than the application for a protection visa, is strictly dicta: see VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [22] and SZEIE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 987 at [38], per Sackville J. Contrary views have been expressed by Finkelstein J in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 18, Branson J in NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1010 and Gray ACJ in Minister for Immigration and Multicultural and Indigenous Affairs v Awan (2003) 131 FCR 1. The better view is that “the application” refers to the composite process of the application for a protection visa and the process of an application and the application for review to the Tribunal, that is, the proceeding before the Tribunal.
There was no contravention of s 425(1) of the Act. There was no obligation imposed on the Tribunal to raise with the applicant that:
i)he had given an inconsistent statement in relation to whether or not he was an Imam;
ii)he could not have had time to have been involved in the Ahmadiyya as he claimed having regard to the time consumed by his work and study commitments;
iii)he did not have a subjective fear as he did not seek international protection at the time of the alleged attacks and returned to Bangladesh after leaving it.
As to each of (i) to (iii), there was no obligation on the part of the Tribunal to raise those matters with the applicant. An applicant is entitled to put in his application such information and material as he thinks appropriate and he cannot complain if his application is rejected because the Tribunal does not accept, without further notice to him, what he puts forward: see Mason J in Kioa v West (1985) 159 CLR 550 at 587.
The decision maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 127 ALR 699 at 715.
The decision maker is not, however, required to draw the attention of an applicant to material which would be obvious “on the known material” put before the decision maker. In the circumstances it was incumbent on the applicant to address the effect of the independent country information to which reference had been made: see Muin v. Refugee Review Tribunal (2002) 190 ALR 601 at 633 [131]-[133] per McHugh J, 664 [276] per Hayne J (with whom Gummow J agreed: see [171] at 640 and 670 [301] per Callinan J; cf Gleeson CJ at 610-612 [26]-[31], Gaudron J at 618 [64] and Kirby J at 653-655 [226]-[236].
In the present case, each of the matters referred to in (i) to (iii) was obvious on the known material before the Tribunal.
It is for an applicant to advance whatever evidence or argument he wishes to advance in support of a contention that he has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out: Abebe v Commonwealth (1999) 197 CLR 510 at 576, per Gummow and Hayne JJ.
Section 422B applied to the present case. To the extent that the court is minded to follow the decision of French J in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624, the respondent formally submits that that decision is wrong and should not be followed.
Even if the court were to adopt the approach favoured by French J in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624, a Tribunal is not obliged to put an applicant on notice of every detail of his or her claims that the Tribunal is minded to reject.
In this respect, the respondent relies on the judgment of Federal Magistrate Raphael in SZATB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 512 at [12]; see also SZBFD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 139 at [12], and SZBKE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1032.
Neither s 424A nor s 425 required the Tribunal to keep the applicant informed of its opinions about the quality of his evidence and the inferences likely to be drawn from it. All that s 425 required was that the applicant be given a proper opportunity to present evidence and arguments to the Tribunal. That section does not require the Tribunal to point out what it sees as the gaps or weaknesses in the applicant’s case. Having raised an issue with an applicant by way of a question, procedural fairness does not require the Tribunal to tell an applicant that his response is inadequate or invite him to improve on it: see, eg., Commissioner of ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591.
The final complaint made by the applicant about the Tribunal’s decision is that the Tribunal misunderstood the test to be applied. The Tribunal had regard to the relevant authorities which identify the correct law to be applied [CB258-CB260]. The Tribunal applied the correct test, that is, whether or not there was a real chance the applicant would suffer harm amounting to persecution for a Convention reason if he returned to Bangladesh in the foreseeable future [CB274.9].
The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations [CB275.1].
The Tribunal’s reasons clearly indicate that the Tribunal understood the test to be applied and correctly applied that test, having regard to the adverse findings made by the Tribunal in respect to the applicant’s credibility, and its finding as to relocation.
The approach urged upon the court by the applicant is one which relies leading the Tribunal’s decision with an eye finely attuned to the perception of error: Minister for Immigration and Ethnic Affairs v. Wu Shan Liang (1996) 185 CLR 259 at 281-282, 291-292. Such an approach ought not be followed by the court. Properly considered as a whole, the Tribunal understood the task it was to perform, and carried out that task conscientiously and in accordance with law.
The application should be dismissed with costs.
I invited written submissions in reply from the applicant by 30 September 2005. No further submissions were received.
Reasoning
I do not accept the Minister’s submission that the RRT’s relocation finding provides a complete answer to the judicial review application. It is true that a relocation finding can be a complete answer where the finding independently supports the decision of the RRT and is not impugned[1]. In this case, however, the relocation finding cannot truly be said to independently support the RRT decision. The relocation finding occupies only a few lines in the RRT decision[2]. It is little more than an aside, based only on the observation that the applicant is “well travelled” and “not uncomfortable about new environments”. In my view, this does not meet the test for a serious consideration of relocation established by the Full Federal Court in Randhawa v Minister for Immigration (1994) 52 FCR 437, especially at 442 and 450. I will proceed to consider the legal merits of the grounds contained in the second further amended application.
[1] SZCJH v Minister for Immigration [2005] FCA 1660
[2] court book, page 273
In its decision the RRT noted significant differences between the claims made by the applicant in support of his protection visa application and the claims made in support of the review application and at the RRT hearing. The presiding member considered that these inconsistencies gave rise to doubts about the applicant’s credibility. Nevertheless, the RRT proceeded to consider the claims advanced by the applicant to the RRT.
A critical point was reached in the consideration of the applicant’s claims in the consideration of whether he was a priest or Imam of the Ahmadiyya sect. The presiding member said:[3]
The applicant claims that since 1985 he has been an “active worker” for the Ahmadiyya. However, he also claims and the Tribunal accepts that the Applicant completed a Masters degree at night from 1991 until 1993 while being employed full time as a manager in a travel agency, and then in 1995 he became a partner in another travel agency where he again worked full time as the marketing director. In view of this, and the Applicant’s claims that he was not a priest or Imam, the Tribunal finds that the amount of time he had available to be involved with the Ahmadiyya sect was of necessity limited. It also accepts that he went to Saudi Arabia with a group of Ahmadiyya on an official visit in September/October 2000 because he was well educated and was able to assist the other Ahmadiyya in his group, but does not accept that he went there because he was a Ahmadiyya leader. Moreover, the Tribunal accepts that since the Applicant’s arrival in Australia on 1 February 2003 he has not in any way participated in Ahmadiyya sect activities, drawing into question his level of commitment and indeed involvement in the Ahmadiyya sect. In short, the Tribunal accepts that while the Applicant has been associated with the Ahmadiyya sect, he has not [been in a] position of responsibility and does not have a public profile as a leading Ahmadiyya Jamat member.
[3] court book, page 272
It was a significant element of this finding that the presiding member understood the applicant to say at the hearing that he was not a priest or Imam. There are three alternative versions of the part of the transcript bearing upon this question. Ms Nalders’ and Mr Chowdhury’s versions are similar. The version prepared by Mr Khan is different. Ms Nalder is a legal secretary but has no language interpretation qualifications. Mr Chowdhury and Mr Khan are both NAATI accredited translators although Mr Chowdhury is accredited to a slightly higher level than Mr Khan. Mr Khan conceded in cross-examination that Mr Chowdhury’s version of this part of the transcript was more accurate than his own. In the light of that concession, I prefer Mr Chowdhury’s version. On his version the presiding member stated:
…I had great difficulty accepting that, were you a priest or Imam in the Ahmadiyya sect?
The interpreter translated this to the applicant in Bengali as follows:
Hmmm (pause) have you understood (pause) you were “priest”[4] (pause) like “father”[5] (pause) Imam (pause) our Imam (pause) in one part/section you had said that you had been, have you ever been, or what you call that?
[4] the English word was used
[5] the English word was again used
The applicant responded in Bengali:
No I have not been like that.
The interpreter responded in English:
I was never been, like a priest or Imam.
The presiding member indicated he wanted this repeated by saying “Sorry?”. The interpreter then said in English:
I was not been a priest or Imam, no.
Although the presiding member’s question was put to the applicant by the interpreter in a rather garbled fashion, he appeared to understand what he was being asked. His response was more clearly and unequivocally put by the interpreter in English than it had been by the applicant in Bengali but the effect of the response was the same. The applicant was stating that he had not been an Imam of the Ahmadiyya sect in Bangladesh.
On the basis of this factual finding I find that there is no substance to the asserted breach of s.424A of the Migration Act. The information upon which the RRT relied was information given by the applicant himself. It therefore fell within the exception to the obligation of disclosure in s.424A(3)(b) of the Migration Act.
I also find that there was no breach of s.425 of the Migration Act. I am satisfied on the material before me (including the transcript) that the applicant understood the essential and significant issue on which his case turned of the extent of his role in the Ahmadiyya sect.
Neither was there any breach of the common law fair hearing rule in the failing to give the applicant the opportunity to comment upon this information. It was the applicant’s own evidence.
It is not entirely clear whether the applicant asserts any other breaches of ss.424A or 425 or the general law fair hearing rule. The issue argued at the hearing before me I have dealt with above. To the extent that the second further amended application seeks to rise other concerns about reliance by the RRT on inconsistencies between the applicant’s protection visa claims and what he said at the hearing conducted by the RRT, the short answer is that the applicant put his protection visa claims three times, including at least twice to the RRT. The last occasion was on 5 September 2003. In his review application signed on 14 April 2003 the applicant stated that he relied upon his previous statement. He thereby adopted his protection visa claims for the purposes of his review application. Section 424A(3)(b) of the Migration Act therefore applies and there was no obligation on the RRT to give notice of any information in the protection visa application to the applicant. Neither did any notification obligation arise from s.425 or the general law.
I note also, in passing, that I agree with the Minister’s submissions concerning the distinction to be drawn between “information” and the RRT presiding member’s mental processes. I do not agree with the Minister’s more general proposition that a review application necessarily incorporates anything put in support of a prior protection visa application. Neither do I agree with the Minister’s apparent proposition that a protection visa application can be said to anticipate a later review application.
The final challenge to the decision of the RRT is that it misunderstood the test to be applied to determine whether the applicant is a refugee. The Minister’s submissions on this point are not directly on point. The challenge is not that the RRT misunderstood the “real chance” test. The challenge is that the RRT misunderstood that the applicant did not have to establish a subjective fear of persecution in the sense of “trepidation”. There is academic and (at least in this Court) some judicial support for the proposition that such a failing by a tribunal could be indicative of error: S273 of 2003 v Minister for Immigration [2005] FMCA 983 at [11]; SZBRR v Minister for Immigration [2005] FMCA 1218 at [5]. However, in this case I see no such error. The RRT did not find that the applicant needed to establish a subjective fear of persecution based on “trepidation”. The RRT had doubts about the credibility of several of the applicant’s claims, and doubted that the applicant’s conduct in repeatedly returning to Bangladesh at a time when he was allegedly being persecuted was consistent with a genuine fear of persecution. The RRT found that any subjective fear that the applicant may have had at the time was not well founded[6]. I see no error in that finding.
[6] court book, pages 272-273
I find that the RRT decision is free from jurisdictional error. I further find that in consequence the decision is a privative clause decision.
I will dismiss the application.
Costs should follow the event in this case. The case was one of at least average complexity. The hearing extended over two days. The Minister’s actual costs are in the vicinity of $13,000. A costs order of more than $5,000 is called for. I will order that the applicant pay costs fixed in the amount of $7,500.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 2 December 2005
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