SZBPW v Minister for Immigration
[2005] FMCA 1076
•12 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBPW v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1076 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – whether there was a failure to consider the applicant’s claims considered – whether there is a reasonable apprehension of bias considered – no reviewable error found – application dismissed. |
| Migration Act 1958 (Cth), s.422B |
| Avon Down Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088 Htun v Minister for Immigration (2001) 194 ALR 244 Minister for Immigration v Jia (2001) 205 CLR 507 NABE v Minister for Immigration [2004] FCAFC 263 NAVK v Minister for Immigration & Anor [2005] FCAFC 124 NBGV v Minister for Immigration [2005] FCA 690 R v Watson; ex parte Armstrong (1976) 136 CLR 248 Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982 Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 694 |
| Applicant: | SZBPW |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2137 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 2 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 12 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Mr J D Smith |
| 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 $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2137 of 2003
| SZBPW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 24 March 2003 and handed down on
11 April 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and made claims of political persecution. Relevant background facts are contained in written submissions prepared on behalf of the applicant by Mr Karp. I adopt as background paragraphs 1-8 of those written submissions as follows:
The applicant, a citizen of Bangladesh, arrived in Australia for the second time on 13 January 2001 (court book, page 19), and lodged an application for a protection visa on 13 February of that year (court book, page 1). Attached to his application was a comprehensive statement setting out his claims (court book, pages 30-40).
In essence the applicant claimed that his father was a former politician in Bangladesh, having been elected to the national parliament as a candidate of the Jatiya Party in 1988 (court book, page 31.7). He was not re elected but continued to be politically active (court book, pages 31.9 – supported by documentation at court book, pages 43, 94). The applicant himself claimed to have been in an organising position within the Jatiya Party in Dhaka, and to have been attacked, arrested and goaled several times because of this involvement.
His primary concern, stated in the application, was that he had had several false charges laid against him (court book, page 8). He later produced voluminous documentation to support that claim (court book, pages 70-90).
The application was rejected on 16 May 2001 (court book, page 46-54). On 1 June 2001 he applied to the RRT for review of that decision. This was prior to the commencement date of s.422B Migration Act1958 (Cth) (“the Migration Act”), and so natural justice applies to his application for review without any restriction that may be imposed by that section. A hearing was held on 20 March 2003 and the RRT decision, the subject of this application, was handed down on 11 April 2003. .
The RRT decision
The RRT commenced its findings and reasons by accepting that the applicant is a citizen of Bangladesh, and that his father was a Jatiya Party member who served one term in parliament in the late 1980s (court book, page 126.7). I note at this point that the RRT did not state the basis upon which it found that the applicant’s father who is still alive and living in Bangladesh (court book, page 11) was a member of parliament.
That said, the RRT found that the applicant was an unimpressive witness. It noted several instances where his evidence changed from that given previously in response to the question currently being asked (court book, page 126-128). As a result, the RRT did not accept that he had ever been a member of the Jatiya Party, or active within it, that he had ever been arrested or harmed because of his involvement in the Jatiya Party.
The RRT also made specific findings about the documents and the prospects of persecution in the future. Of the documents produced it said,
“The applicant provided documents in support of his claims. The independent evidence before me indicates that there is a high level of document fraud in Bangladesh, with documents such as those provided by the applicant easily obtained with the assistance of the police. In view of the independent evidence, I do not place any weight on the documents provided by the applicant.”
As to the possibility of future persecution, the RRT said,
“I am not satisfied that he [the applicant] would become involved with the party if he returned to Bangladesh. Nor am I satisfied that the applicant has ever been arrested, goaled or otherwise harmed because his father was once a Jatiya Party politician. There is no independent evidence before me that to suggest that the family members of former politicians are at risk of persecution in Bangladesh because of their relative’s political affiliations or activities. As I am not satisfied that the applicant has ever been arrested or goaled in the past, I am not satisfied that there are outstanding charges against him.” (court book, page 129)
The application and evidence
The applicant relies upon is amended application filed in court by leave on 2 August 2005. The amended application contains two grounds, namely that the RRT constructively failed to exercise its jurisdiction under the Migration Act in that it failed to address claims made by the applicant, and secondly, that there is a reasonable apprehension of bias. The particulars of the first ground are:
a)the RRT failed to address the applicant’s claim that he would be persecuted because of his father’s current, rather than his past, involvement in politics.
b)the RRT failed to address the applicant’s claim that there are outstanding, politically contrived, criminal charges against him.
The particulars of the second ground are:
there would be a reasonable apprehension on the part of a hypothetical impartial observer that the [RRT] had predetermined the reliability of documentary evidence adduced by or on behalf of the applicant, being those documents that were submitted as evidence of outstanding criminal charges against him.
The amended application is supported by the affidavit of Nigel James Dobbie filed on 29 July 2005, which annexes a transcript of the hearing conducted by the RRT. I also received as evidence the court book filed on 11 February 2004.
Submissions
Mr Karp submits, on behalf of the applicant, that the applicant had articulated a claim that his father had been a member of Parliament in Bangladesh and had continuing political involvement. He notes that the RRT accepted that the applicant’s father was indeed a member of Parliament and a Jatiya Party politician. Mr Karp notes that that finding must have come from either the applicant’s own evidence[1] or the documents reproduced at pages 43 and 94 of the court book. Simply put, Mr Karp submits that the finding by the presiding member[2] that she was not satisfied that the applicant was ever arrested, gaoled or otherwise harmed “because his father was once a Jatiya Party politician” and “there is no independent evidence before me to suggest that the family members of former politicians are at risk of persecution in Bangladesh because of their relative’s political affiliation or activities” misconstrues the applicant’s claim by confining it to the former role of the applicant’s father as a member of Parliament. The finding takes no account of the applicant’s father’s ongoing political activity. Mr Karp submits that in so confining the claim the RRT failed to address a clearly articulated claim and fell into jurisdictional error: Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088; NABE v Minister for Immigration [2004] FCAFC 263; Htun v Minister for Immigration (2001) 194 ALR 244; NBGV v Minister for Immigration [2005] FCA 690.
[1] see court book, page 31
[2] court book, page 129
Secondly, Mr Karp submits that the presiding member’s finding[3] that “as I am not satisfied that the applicant has never been arrested or gaoled in the past, I am not satisfied that there are outstanding charges against him” is illogical. It does not follow from the finding that the applicant had not been gaoled or arrested in the past that there were not then outstanding charges. Mr Karp submits that the illogical reasoning points to jurisdictional error, namely a failure on the part of the RRT to address the question which the RRT was required to address: Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360.
[3] court book, page 129
Thirdly, Mr Karp submits that the decision by the presiding member set out at the bottom of page 128 of the court book, that she would place no weight on the documents provided by the applicant in view of country information indicating a high level of document fraud in Bangladesh, gives rise to a reasonable apprehension of bias. Mr Karp submits that the finding indicates a pre-determined attitude to the veracity of any documents the applicant might submit giving rise to a reasonable apprehension of bias: R v Watson; ex parte Armstrong (1976) 136 CLR 248; Re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982. Mr Karp notes that there was no apparent attempt by the presiding member to examine the documents actually submitted by the applicant in order to determine their veracity.
Mr Karp also took up a suggestion from me to submit that the adverse finding concerning the documents supports the submission of a failure to address in any meaningful way the applicant’s claim of being subjected to outstanding false charges.
Mr Smith, on behalf of the Minister, submits that the applicant made no claim that he suffered a well-founded fear of persecution because of any ongoing political involvement by his father. The claim was based upon his father’s term as a member of Parliament. Mr Smith submits that the RRT properly addressed that claim in its reasons.
Mr Smith deals with the second particular of the first ground of review in the following way:
The second particular of the first ground relies on a narrow, pedantic approach to the findings made by the [RRT]. It is argued (submissions paragraph 12) that the relevant finding “lacks logic”. It is not clear what this means. The submissions suggest that it means that:
It does not follow from the finding that the applicant has not been gaoled or arrested in the past that de does not now have outstanding charges.
If the argument is that it does not follow, as a matter of logical necessity, that the applicant has no outstanding charges because he has not been gaoled in the past, then there is no dispute. However, it is not necessary to find a logical necessity before making a factual finding with some logical basis. In this instance, the [RRT] clearly finds the applicant to have fabricated his claims. One instance of the fabrication is the previous arrests and detentions. These are found to be fabricated because the applicant now admits to having had no political involvement since 1995 and also gave inconsistent evidence regarding the arrests and detention. Once a fabrication has been established, that fact alone can give rise to a reasonably available inference that a similar claim has been fabricated: see Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 at 694 per Gibbs J.
Accordingly, even if it does not “follow” as a matter of necessity, that one lie follows another, it is open to the [RRT] to conclude from one lie that another has been told. In other words, the well may have been poisoned by the earlier fabrication: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1174, [49] per Gummow and McHugh JJ.
As to the second ground, Mr Smith submits that the finding made by the RRT was open to it on the material before it. He further submits that the finding was also supported by the applicant’s own evidence and the adverse credibility views formed by the presiding member. Mr Smith notes that the presiding member had concerns about two documents in particular that were discussed with the applicant at the hearing[4]. The presiding member also referred to her concerns about those documents in her reasons[5]. Mr Smith submits that, while the presiding member probably formed a preliminary adverse view about the applicant’s documents, such a preliminary view does not establish a reasonable apprehension of bias: Minister for Immigration v Jia (2001) 205 CLR 507 at 531 [71] per Gleeson CJ and Gummow J.
[4] court book, pages 121 and 122
[5] court book, page 127
Mr Smith stresses that the Court must consider the proceedings before the RRT as a whole and the reasons need to be given a fair reading in proper context.
Reasoning
The applicant failed before the RRT because he was not believed. The presiding member accepted that the applicant’s father was a Jatiya Party member who served one term as a member of Parliament in the late 1980s. However, the presiding member did not accept that the applicant was ever involved in political activities himself. The presiding member found that the applicant’s evidence was confused, internally inconsistent and inconsistent with the independent evidence. The presiding member made a series of adverse credibility findings in relation to the applicant’s evidence, at pages 126-128 of the court book.
The presiding member also rejected documents produced in support of his claims by the applicant on the basis of country information that is summarised on page 125 of the court book.
The presiding member concluded, on the basis of her adverse credibility findings, that the applicant was not a member of the Jatiya Party as he had claimed. She was not satisfied that the applicant had ever been arrested or gaoled. It followed that she was not satisfied that he was ever harmed because of his asserted political activities.
The applicant has no quarrel with the rejection of his claims based upon his own asserted political activities. However, the applicant does claim that there was a constructive failure to consider his claim of a well-founded fear of harm based upon his father’s political activities. The presiding member construed that claim as a claim that the applicant was harmed because his father was once a Jatiya Party politician and a former member of Parliament. The presiding member only accepted that the applicant’s father was a Jatiya Party member who served one term as a member of Parliament in the late 1980s[6]. That, in my view, can be taken to be an acceptance of what the applicant said in paragraph 6 of his statutory declaration in support of his protection visa claims[7]. I do not think that the presiding member’s finding can be based upon any of the documents put forward by the applicant because the presiding member stated clearly that she did not place any weight on those documents[8].
[6] court book, page 126
[7] court book, page 31
[8] court book, page 128
At the hearing, the applicant did not assert that he had been harmed because of any ongoing political activity by his father. On the contrary, the transcript at pages 9[9], 22[10] and 58[11] supports an interpretation of the applicant’s claim that he had been harmed because his father was a former member of Parliament. It is true that on page 23 of the transcript[12] the applicant said that his father always had police looking after him and that he has got some very good friends who helped to look after him, but that does not necessarily point to a claim of any ongoing political activity by his father. It may equally point to his father’s status as a former member of Parliament.
[9] see the answers to questions 40 and 41
[10] see the answers to questions 125 and 127
[11] see the answer to question 312
[12] see the answer to question 129
The RRT is entitled to deal with an applicant’s claims as they are articulated. The RRT does not have to make an applicant’s case for him. The applicant’s claim, as put at the hearing, was that he had experienced harm because his father was a former politician. There was nothing in the applicant’s statutory declaration in support of his protection visa application that required further inquiry by the RRT. In my view, this case is indistinguishable from NAVK v Minister for Immigration & Anor [2005] FCAFC 124. The first ground, insofar as it is based on the first particular, fails.
As to the second particular, the presiding member said:
As I am not satisfied that the applicant has ever been arrested or gaoled in the past, I am not satisfied that there are outstanding charges against him.
The presiding member could have better expressed herself at this point but the Court should not approach the interpretation of Tribunal reasons with an eye too finely attuned to find error. The presiding member’s finding must be read in the context of the decision as a whole. The presiding member had rejected entirely the applicant’s claims of political activity. This was the principal basis of the applicant’s claim to have been subject to arrest and gaoling in the past. The other basis was the applicant’s claim that his father’s political enemies were harming him as they were unable to harm his father. Once the presiding member had disposed of the claim of political activity, and the asserted link with the applicant’s father, the claim of arrest or gaoling fell away with it. So did the applicant’s claim that there were outstanding charges still pending against him. At this point, the presiding member was rolling up the consequences of the series of adverse credibility findings that she had made. In terms of its placement, the finding appears to flow from the rejection of the applicant’s claim to have suffered harm because of his father’s former political activity, and it would have been better if the presiding member had made a clear finding, before her conclusions, on the applicant’s claims of arrest and gaoling. Nevertheless, when read in combination with first, what the presiding member says on page 127 of the court book about the unsatisfactory evidence given by the applicant concerning his arrest and gaoling, and secondly, what the presiding member says on page 128 of the court book on the document fraud issue, it is plain enough that the claim was rejected on credibility grounds as well as on the basis of the independent evidence before the presiding member.
The applicant had presented a substantial body of documents in support of his claims to have been arrested and gaoled as well as his claim to be subject to outstanding false charges. It is surprising that the presiding member rejected those documents, apparently only on the basis of country information concerning document fraud in Bangladesh. However, the presiding member had more specific credibility concerns about the two documents she referred to on page 127 of the court book. Further, the presiding member did not believe anything the applicant said concerning his own political activity. While the presiding member could have better expressed herself in dealing with the applicant’s documents at the bottom of page 128 of the court book, it is implicit in that finding that the documents were being given no weight not simply because the country information points to document fraud, but also because the applicant’s evidence was disbelieved. Once the well is poisoned, the presiding member did not have to continue drinking from it.
Read in context, there was no illogicality in the presiding member’s finding concerning the applicant’s claim of there being outstanding charges. There was adequate consideration of that claim.
I also reject the claim of apprehended bias. This is a very different case from that of Ex parte H. In that case, the applicant was overborne or intimidated by the questioning from the presiding member. The same cannot be said in this case, by reference to the transcript of the hearing. Indeed, no such claim is made by the applicant. The assertion of apprehended bias is based upon the rejection of the applicant’s documents by reference to country information. In the first place, the country information referred to by the presiding member pointed to a high risk of document fraud. Secondly, that risk was discussed with the applicant at the hearing conducted by the RRT. Thirdly, the presiding member rejected the applicant’s claims of political activity in their entirety. The reference to the documents in the presiding member’s reasons follows the adverse credibility findings about the applicant’s claims. The two cannot be considered in isolation. This was not a case of the presiding member rejecting apparently plausible claims simply by reference to country information about document fraud. On the contrary, the presiding member regarded the applicant’s claims of political activity as fabricated. In the circumstances, the documents he presented were unlikely to assist him. It would have been preferable if the presiding member had said something about her view of the documents themselves, apart from the two documents specifically referred to in her reasons. It would have been better if the presiding member had specifically linked her rejection of the documents to her earlier adverse credibility findings. However, when read as a whole and on a fair reading the presiding member rejected the applicant’s documents, not simply because of the risk of document fraud in abstract, but because of the risk of document fraud in the case before her, involving an applicant who was not believed.
The transcript reveals that the presiding member had concerns about the applicant’s documents and discussed those concerns with the applicant at the hearing conducted by the RRT. It is fair to assume that the presiding member had formed a preliminary adverse view about the documents. However, I accept Mr Smith’s submission that a preliminary adverse view is not in itself indicative of bias, or even a reasonable apprehension of it. In my view, a fair reading of the presiding member’s reasons indicates that the adverse credibility findings made against the applicant influenced the rejection of his documents and not the other way around.
I find that the decision of the RRT is free from jurisdictional error and is therefore a privative clause decision. It follows that the application must be dismissed.
Costs should follow the event in this case. I put to the representatives at the hearing before me that a fair assessment of costs would be in the sum of $5,000, whichever party was successful. Neither Mr Karp or Mr Smith wished to be heard in opposition to that assessment. I will order that the applicant pay the Minister’s costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 August 2005
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