SZCCA & Ors v Minister for Immigration & Anor

Case •

[2008] FMCA 1362

•

8 October 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCCA & ORS v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1362
MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizens of Bangladesh claiming fear of persecution for reasons of political opinion and religion – credibility – whether the Tribunal failed to comply with the requirements of Migration Act 1958 (Cth) s.424A – no evidence of bad faith.
Migration Act 1958 (Cth) ss.36, 422B, 424A, 425, 474
SZIAI v Minister for Immigration & Anor [2007] FMCA 1479 not followed.
SZHXF v Minister for immigration & Anor [2007] FMCA 1491 not followed.
NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 203 ALR 494; [2003] FCAFC 262
Minister for Immigration and Citizenship v SZHXF [2008] FCAFC 36 followed
SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 followed.
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 followed.
SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 followed.
First Applicant: SZCCA
Second Applicant: SZCCB
Third Applicant: SZCCC
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3702 of 2006
Judgment of: Scarlett FM
Hearing date: 2 September 2008
Date of Last Submission: 2 September 2008
Delivered at: Sydney
Delivered on: 8 October 2008

REPRESENTATION

First and Second Applicants: In person
Third applicant Appeared by way of his litigation guardian
Counsel for the First Respondent: Mrs Sirtes
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The First Applicant is appointed the litigation guardian of the Third Applicant.

  2. The Application is dismissed.

  3. The First and Second Applicants are to pay the First Respondent’s costs fixed in the sum of $7,500.00.

  4. I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3702 of 2006

SZCCA

First Applicant

SZCCB

Second Applicant

SZCCC

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. The Applicants are citizens of Bangladesh. They are a husband, wife and child. They ask the Court to set aside a decision of the Refugee Review Tribunal made on 21st November 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant protection visas to the Applicants.

  2. As the Third Applicant is a child, the First Applicant, who is his father, is appointed his litigation guardian.

Background

  1. The Applicants arrived in Australia on 3rd December 1998. They applied for Protection (Class XA) visas on 16th April 2003, claiming a fear of persecution for reasons of political opinion. The First Applicant claimed to have been a supporter of the Awami League and feared that his stepbrothers were members and supporters of the BNP.

  2. A delegate of the Minister (then the Minister for Immigration and Multicultural and Indigenous Affairs) refused their application for protection visas on 28th April 2003.

Application for Review by the Refugee Review Tribunal

  1. The Applicants sought a review of that decision from the Refugee Review Tribunal. The Tribunal affirmed the delegate’s decision on 23rd October 2003, so the Applicants then sought judicial review of that decision. On 27th April 2006 the Federal Magistrates Court made orders by consent quashing the Tribunal’s decision and remitting the matter to the Tribunal for determination according to law.

  2. The Tribunal invited the Applicants to attend another hearing on 20th July 2006. The First and Second Applicants attended the hearing and gave oral evidence with the assistance of an interpreter in the Bengali language. The Tribunal signed its decision on 31st October 2006 and handed the decision down on 21st November 2006.

The Refugee Review Tribunal Decision

  1. The Tribunal affirmed the decisions not to grant the Applicants Protection (Class XA) visas.

The Tribunal’s Findings and Reasons

  1. The Tribunal found that the First Applicant was either a citizen of Bangladesh, as he claimed, or, if he had lost his Bangladeshi nationality because he had not continued to reside in Bangladesh since he arrived in Australia in 1998, had become a stateless person whose country of former habitual residence was Bangladesh. The Tribunal went on to find:

    Whichever is the case, the country against which the first named applicant has made claims is Bangladesh and thus the Tribunal must assess his claims against that country.[1]

    [1] See Court Book Volume 2 at page 811

  2. The Tribunal noted the First Applicant’s claims of persecution in Bangladesh for reasons of political opinion and religion. However, the Tribunal did not find the First Applicant to be a truthful witness and found that his claims were not credible. The Tribunal proceeded to set out its reasons for this finding.

  3. The Tribunal then went on to find:

    Having found the first named applicant not to be a truthful witness the Tribunal gives no weight to the other evidence he has submitted in support of his claims including the letters, affidavits and court documents, or to the second named applicant’s evidence. In addition to not giving weight to the second named applicant’s evidence because the first named applicant was not a credible witness, the Tribunal also found much of her oral evidence very general even when she was asked for specific details and her account of the attack which allegedly occurred whilst her husband was in Switzerland seemed rehearsed. The Tribunal thus did not find her to be a compelling witness. The Tribunal has given no weight to the photographic evidence said to be of the first named applicant’s right leg because even if it is of his right leg it does not indicate that the scarring on the leg was (the) result of an attack as alleged by the first named applicant.[2]

    [2] Court Book at 815

  4. On the basis of its finding that the First Applicant was not a truthful witness, the Tribunal did not accept that the Applicant:

    ·Was ever a member of the Chattra League or the Awami League;

    ·Engaged in any political activities;

    ·Expressed any religious or other views that were disapproved of by the JNP, JI, any religious group or persons, fundamentalists or any other group or persons in Bangladesh.

  5. The Tribunal was not satisfied that the Applicant’s claims of business-related problems or of a dispute with his siblings over his father’s estate were true because the Applicant was:

    …such an untruthful witness[3]

    [3] Court Book 815

  6. The Tribunal did not accept that:

    ·False cases had been brought against the First Applicant

    ·The First Applicant or any member of his family had been harassed by the police or the Bangladeshi authorities; or

    ·That the First Applicant or any member of his family was threatened, harassed or harmed in the past for any of the reasons that he claimed. 

  7. The Tribunal found that the First Applicant did not have a well-founded fear of persecution reasons of political opinion, religion, particular social group or any other Convention reason in Bangladesh. The Tribunal noted that no specific Convention claims had been made by or on behalf of the other Applicants other than those made by the First Applicant, saying:

    The fate of their applications therefore depends on the outcome of the first named applicant’s application.[4]

    [4] Ibid

  8. The Tribunal found that the First Applicant did not satisfy the criterion set out in s.36(2) for a protection visa. As he could not be granted a protection visa, the Second and Third Applicants could not satisfy the alternative criterion in s.36(2)(b) and therefore could not be granted protection visas.

Application for Judicial Review

  1. The Applicants commenced proceedings in this Court by filing an application and affidavit in support on 12th December 2006. They filed an amended application and an affidavit by the First Respondent on 21st May 2007 and a further amended application on 17th December 2007. This further amended application was prepared for them by counsel, although they were not represented at the hearing.

  2. In their further amended application the Applicants claim that the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth). They rely on two decisions of this Court, SZIAI v Minister for Immigration & Anor[5] and SZHXF v Minister for Immigration & Anor[6].

    [5] [2007] FMCA 1479

    [6] [2007] FMCA 1491

  3. The Applicants provide these particulars of their claim:

    a)The Tribunal relied upon independent evidence that the Bangladeshi National Party (BNP) was in power from 1979 until General Ershad seized power in March 1982 and General Ershad remained in power until 1990. General Ershad did not establish the Jatiya Party until 1986.

    b)The Tribunal relied on the independent evidence to conclude that the First Applicant was not a truthful witness and his claims were not credible. First, the Tribunal noted that the Applicant was uncertain about who was in power whilst he was politically active in Bangladesh and that his evidence was inconsistent with independent evidence. Secondly, the Tribunal noted that, given the Applicant ceased to be a Chattra League member before 1986, he could not have been harmed by the Jatiya Party.

    c)As the independent evidence was the reason, or part of the reason, for the Tribunal affirming the decision under review, the Tribunal was required by s.424A(1) to give written particulars of this information to the First Applicant.

    d)The independent evidence does not fall within the exception in s.424A(3) as the information that is specifically about another person, General Ershad (here the Applicants referred to the decisions in SZIAI and SZHXF).

    e)The Tribunal erred in law by failing to give written particulars of the independent evidence to the Applicant.

    f)Accordingly, the Tribunal fell into jurisdictional error.

The Applicants’ Submissions

  1. The Applicants filed a written outline of submissions on 10th April 2008. The submission deals largely with factual matters going to the merits of the Tribunal decision, which cannot be the subject of judicial review. The claims in the submission can be summarised in this way:

    a)The Tribunal denied the Applicants procedural fairness.

    b)The Tribunal made its decision on the basis of misinformed and unsupported information.

    c)The Tribunal did not give reasons as to why it found the Applicant to be an “incredible” witness.

    d)The Tribunal wrongly interpreted the Applicants’ case and failed to understand the evidence.

    e)The Tribunal identified a wrong issue to ask itself a wrong question to make an erroneous finding.

    f)The Tribunal failed to comply with s.424A of the Migration Act, as the Independent Country Information fell outside the ambit of s.424A(3) (see NARV & Ors v Minister for Immigration and Multicultural and Indigenous Affairs[7]).

    [7] (2004) 203 ALR 494; [2003] FCAFC 262

    g)The flat rejection of the Applicants’ evidence and materials produced at the hearing amounts to bad faith on the part of the Tribunal.

    h)The Tribunal ignored the merits of the Applicants’ claim.

    i)The Applicants’ application for a protection visa covered three key elements of the Convention definition (s.91R of the Act).

    j)The Tribunal failed to identify the elements of subjective and objective fear of persecution in the Applicants’ claim.

    k)The Tribunal failed to take a relevant consideration into account.

    l)The Tribunal made an incorrect interpretation of the applicable law to the facts of the case.

    m)The Tribunal decision was unjust and made without taking into account the full gravity of the circumstances.

    n)The Tribunal decision was not justified by the evidence.

    o)The Applicants were denied natural justice.

    p)The Court should order that the Tribunal rehear their application with a new Tribunal Member appointed.

  2. The First Applicant made a short oral submission, pointing out that he had lived in Australia for ten years and now has two children.

The First Respondent’s Submissions

  1. Mrs Sirtes, who appeared for the Minister, submitted that the ground of review in the further amended application is no longer available, as the decision in SZHXF has now been overturned on appeal by the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZHXF[8]. As a result, the decision in SZIAI, which took a similar approach, must now be regarded as a doubtful authority.

    [8] [2008] FCAFC 36

Conclusions

  1. The only ground of review pleaded in the further amended application is the claim of a breach of s.424A of the Act, relying on the decisions at first instance in SZIAI and SZHXF, both of which are decisions of mine.

  2. The Applicants claim that the independent information about the BNP and the date when General Ershad formed the Jatiya Party and came to power was part of the Tribunal’s reasoning when it concluded that the First Applicant was not a credible witness. This information, it was submitted, did not fall within the exception in s.424A(3)(a) of the Migration Act and therefore should have been the subject of an invitation to comment under s.424A (1).

  3. The part of the Tribunal’s finding that forms the subject of the Applicants’ claim is:

    Although the first named applicant correctly named Sheikh Hasina as the leader of the Awami League at the July 2006 hearing he (was) very unsure about this. If he had been a member of the party’s student wing for two to three years and a member of the party since 1988 the tribunal expects that he would have been more confident about who the party’s leaded was during that period. Further, he could not describe his party’s flag. He was also very uncertain about who was in power whilst he was politically active in Bangladesh and his evidence about this was not consistent with independent evidence. He stated, without confidence, that during the time he was a member of the Chattra league the BNP and then the Jatiya Party were in power. If it was true, as he later claimed in the hearing, that he had been harmed by the BNP and Jatiya Party because of his Chattra League activities then the Tribunal expects he would have been more certain about whether these parties were in power during the time he was a Chattra League member. Further, the independent evidence indicates the BNP was in power in Bangladesh from 1979 until General Ershad seized power in March 1982 and General Ershad remained in power until 1990. Although the independent evidence indicates that General Ershad formed the Jatiya Party that was not until 1986 after the first named applicant ceased being a Chattra League member.  Thus, he could not have been harmed by Jatiya Party members if he was a Chattra League member prior to 1986.[9]

    [9] Court Book 812

  4. As Mrs Sirtes submitted, the Applicant himself mentioned General Ershad to the Tribunal:

    The Tribunal put it to him that according to information it had General Ershad was in power during that time. The first named applicant responded that he had mentioned that General Ershad was in power…

    …Asked who he was armed harmed by, he replied he was harmed by “people against us”. Asked who they were he replied that it was the BNP, JI, and Ershad’s party, the Jatiya Party.[10]

    [10] Court Book 803.

  5. This information appears to be about events rather than General Ershad as a person.

  6. In any case, the decision of the Full Court in Minister for Immigration and Citizenship v SZHXF means that the Applicants can no longer rely on the first instance decisions in SZHXF on, in my view, SZIAI. The Full Court (Tamberlin, Gyles and Stone JJ) held at [19] that:

    In considering whether certain information is specifically about an applicant or another person for the purposes of s 424A(3)(a) of the Act, it is not necessary for the Tribunal, as a separate requirement, to make a finding that the relevant “information’ is “just about a class of persons of which the applicant or other person is a member”.

  7. At [20] their Honours went to say:

    The first respondent submits that the “information” concerning the reliability of the AMJB’s advice as to whether a person is a genuine Ahmadi is specific information “about” the first respondent himself because it impacts on his credibility. In our view, this submission is incorrect. The Tribunal’s attitude towards the reliability of a particular source of information only relates to the soundness and dependability of information from that source; it is not an attitude, nor a piece of “information” for the purposes of s 424A of the Act, “about” the particular applicant. In this case, the degree of connection between the “information” acquired from the AMJB and the first respondent is not sufficiently close to be properly characterised as being information “about” him.

  8. Finally, at [22], their Honours referred to “oblique and tangential references” to religious leaders as not being information about another person within the meaning of s.424A(3)(a). It must follow that oblique and tangential references to political leaders would be regarded the same way.

  9. I am satisfied that the decision in Minister for Immigration and Citizenship v SZHXF, which is binding on this Court, means that the information referred to by the Tribunal does fall within s.424A(3)(a) and so s.424A(1)does not apply. The Applicants’ ground of review fails.

  10. The grounds referred to in the Applicants’ submission, and summarised in [19 (a) to (p)] above, are not particularised.

  11. The Tribunal invited the Applicants to a hearing, at which the First and Second Applicant gave evidence with the assistance of an interpreter. There is no breach of ss.424A or 425. Section 422B of the Act effectively provides that Division 4 of Part 7 of the Act is an exhaustive statement of the natural justice hearing rule in relation to the matters with which it deals. Thus, there is no scope for finding a breach of procedural fairness or a denial of natural justice [19(a) and (o)].

  12. The claims that the Tribunal made its decision on the basis of “misinformed and unsupported information”, ignored the merits of the Applicants’ claim, that their application covered all the elements of the Convention, that the Tribunal failed to identify the elements of subjective and objective persecution, made an unjust decision without taking into account the full gravity of the circumstances and made a decision not justified by the evidence [19 (b), h), (i), (j) (m) and (n)] are no more than variations on a theme of merits review and do not show any jurisdictional error.

  13. Contrary to the Applicants’ claim, the Tribunal did give reasons as to why it did not find the applicant to be a credible witness, at pages 812 to 814 of the Court Book [19 (c)].

  14. The Tribunal clearly identified that the Applicants were claiming a fear or persecution based on political opinion and religious belief. Consequently it did not interpret the Applicants’ case wrongly or fail to understand the evidence [19 (d)].

  15. The Applicants do not particularise what wrong issue they claim the Tribunal identified or what relevant consideration it failed to take into account [19 (e) and (k)].

  16. The Applicants claim that the Tribunal’s “flat rejection” of their evidence and materials produced at the hearing amounts to bad faith. It is well established that bad faith is a serious allegation which must be strictly alleged and proved. It has been held by the Full Court of the Federal Court in SBBF v Minister for Immigration and Multicultural and Indigenous Affairs[11]that:

    It is likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision-maker will be apparent by reference only to the reasons for the decision themselves.[12]

    [11] [2002] FCAFC 358

    [12] SBBF per Tamberlin, Mansfield and Jacobson JJ at [16]

  1. There is no evidence of bad faith on the part of the Tribunal [19 (g)].

  2. The Applicants claim that the Tribunal made an incorrect interpretation of the applicable law to the facts of the case [19 (l)] but provide no particulars. Unless this is an oblique reference to the claim of a breach of s.424A of the Act, I am not able to identify any way that the Tribunal made an incorrect interpretation of the law. This, after all, was a decision based on a rejection of the First Applicant’s credibility, which is a matter for solely for the Tribunal (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham[13] at [67] per McHugh J).

    [13] (2000) 168 ALR 407; [2000] HCA 1

  3. Finally, the Applicants submit that the Court should order that the Tribunal rehear their applications with a new Tribunal Member appointed [19 (p)]. Even if an order in the nature of mandamus were to issue, which is not to be the case here, it is doubtful if the Federal Magistrates Court has the power to order that the Tribunal should be differently constituted (see SZEPZ v Minister for Immigration and Multicultural Affairs[14]).

    [14] [2006] FCAFC 107

  4. The Applicants have not made out any jurisdictional error. The Tribunal decision is a privative clause decision as defined by s.474(2) and it is final and conclusive.

  5. The application will be dismissed with costs. I note that the Third Applicant is a child who has played no separate part in the proceedings, and I do not consider it appropriate to make an order for costs against him. The order for costs will be made only in relation to the First and Second Applicants.    

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  2 October 2008


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Cases Citing This Decision

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Cases Cited

7

Statutory Material Cited

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SZIAI v Minister for Immigration [2007] FMCA 1479
SZHXF v Minister for Immigration [2007] FMCA 1491
Minister for Immigration and Citizenship v SZHXF [2008] FCAFC 36