SZCLP v Minister for Immigration
[2005] FMCA 1471
•29 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCLP v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1471 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – Applicant a citizen of Bangladesh claiming a well-founded fear of persecution for reason of religion and political opinion – credibility – bias – allegation of actual bias – application rejected on credibility grounds – extreme similarity of the applicant’s claim to another application – where Tribunal drew applicant’s attention to other claim and invited comment. |
Judiciary Act 1903 (Cth), s.39B.
Migration Act 1958 (Cth), ss.422B (1), 424A, 430, 475A.
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24.
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
R. v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361.
SZALU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 264 distinguished
Abebe v The Commonwealth (1999) 162 ALR 1.
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407.
| Applicant: | SZCLP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 76 of 2004 |
| Delivered on: | 29 September 2005 |
| Delivered at: | Sydney |
| Hearing date: | 29 September 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr McInerney |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
Leave to join Refugee Review Tribunal as a Second Respondent in these proceedings.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 76 of 2004
| SZCLP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 24th November and handed down on 17th December 2003. The decision of the Tribunal was to affirm a decision of a delegate of the Minister not to grant a protection visa to the Applicant. The Applicant seeks a review of that decision from the Court.
Background
The Applicant is a citizen of Bangladesh. He left Bangladesh in October 2001. He arrived in Australia on 3rd October 2001. On the 24th of that month, he applied for a protection visa, claiming a well founded fear of persecution for reasons of his political opinions.
He claimed that he had been working for the Awami League since 1990. The Awami League is a major political party in Bangladesh.
He claimed that he had been subjected to violence and threats of violence by the supporters of another party, the BNP. He also claimed that he was a supporter of a Bangladesh writer named Taslim Nasreen. He claimed that he feared harm from Muslim terrorists because of this.
On 25th February 2003, a delegate of the Minister refused his application for a protection visa. On 24th March in that year, he applied to the Refugee Review Tribunal for a review of that decision. The Tribunal heard his application on 1st September 2003. In its decision, the Tribunal rejected his application largely on the basis of the Applicant's credibility. At page 155 of the Court book, the Tribunal said that it found the Applicant's claims to be unconvincing. The Tribunal gave a number of reasons on that page and on the following page as to why it found the Applicant's claims to be unconvincing.
The reasons included a finding that the Applicant's claims with regard to false charges and visits by the authorities to the Applicant's home had been fabricated, that the Applicant had obtained fraudulent documentation in an attempt to support and substantiate false claims and that significant parts of his claims reproduce verbatim the claims lodged by two other applicants before the Tribunal. Overall, the Tribunal stated that it was not satisfied that the Applicant had a well founded fear of persecution for a Convention reason.
In his Amended Application filed on 22nd June 2004, the Applicant sought a writ of certiorari to quash the RRT decision and a writ of mandamus to compel the RRT to reconsider his application. Quite clearly, this application has been made under s.39B of the Judiciary Act 1903 (Cth). The ground given in the Amended Application is a ground that has frequently been seen in applications to this Court. It is the following:
That the RRT decision was effected [sic] to take into account a relevant consideration when it assessed weather [sic] the delegate of the Minister raised reasonable grounds for not granting a protection visa.
As I said, this ground has been seen previously on a number of occasions in this Court. I have previously held, and I do so today, that it is virtually meaningless, and it is not a ground for judicial review.
The Applicant gives the following particulars:
a)The Tribunal to consider in assessing the chance of the applicant being arrested and/or persecuted on his return to Bangladesh based on the fact that he was political activist in Bangladesh.
b)The Tribunal satisfaction that the applicant is not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
Particulars (a) contain no more than a request for a merits review of the factual findings made by the Tribunal. It is well established that a Court conducting judicial review of a decision of the Refugee Review Tribunal does not conduct a merits review. I refer to Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Particulars (b) contain something more, to my mind, than a request for a merits review, but it is difficult to see what is meant in the circumstances.
The Applicant filed an outline of submissions on the 26th of this month. In that outline of submissions, the applicant sets out several grounds which are not referred to in the Amended Application.
A summary of the grounds set out in the outline of submissions is as follows:
1)The findings of the Tribunal showed actual bias on the part of the decision maker.
2)The Tribunal did not follow the requirements of s.424A of the Migration Act 1958.
3)The Tribunal breached ss.414 and 427(1) (d) of the Migration Act.
4)Without any investigation having been conducted, the decision cannot be regarded as a decision coming within the terms of s.422B of the Act.
5)Under s.430 of the Migration Act an oral decision made by the Tribunal is only valid if that decision is positive.
6)The Tribunal did not ask the Applicant for any comment about document fraud in breach of s.424A of the Migration Act.
7)The Court should listen to an audio tape of the proceedings.
8)A Court may conduct judicial review of a privative clause decision under s.39B of the Judiciary Act 1903 if the decision complies with four factors set out in R. v Hickman; Ex parte Fox and Clinton.
9)The decision maker acted in bad faith.
10)The Court should have regard to the decision of the Federal Magistrates Court decision in SZALU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 264.
11)The decision involved a breach of the rules of natural justice.
The Applicant in oral submissions added that he could not make any further comment about the submissions of law as he was not legally represented. He did say that if he were obliged to return to Bangladesh he feared that he would be killed because the party that he supports is not in power. He asked the Court to return his case to the Refugee Review Tribunal.
The counsel for the Respondent, Mr McInerney, filed written submissions in which he pointed out that the Tribunal had made adverse findings of fact in respect of the Applicant's claims and that these findings of fact were open to the Tribunal on the material before it. He pointed out that the Tribunal rejected the Applicant's claims on the basis of credibility and that the making of findings as to credibility is a function of the primary decision maker. He further submitted that the Tribunal having found that the Applicant's claims had been fabricated, there was no factual basis upon which the Tribunal could be satisfied that the Applicant was a person to whom Australia had protection obligations under the Refugees Convention.
In considering the application before me, I note that the first claim is that the Tribunal showed actual bias. I refer to the decision of the Full Court of the Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 361; (2002) 194 ALR 749. In that case their Honours pointed out at paragraph 43 that an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. The allegation is not to be lightly made and must be clearly alleged and proved. At paragraph 44 their Honours said that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme. This is especially so where all that the Applicant relies upon is the written reasons for the decision under review.
In the decision for review before me, I note that there is no other evidence except the terms of the decision itself. I am unable to discern any evidence of actual bias.
Turning to the claim that the Tribunal did not comply with the requirements of s.424A of the Migration Act, I note that the Applicant complains that the Tribunal found his written evidence which included a lengthy statement from his migration adviser, was inconsistent in relation to major issues. In my view, s.424A does not apply as the written evidence is clearly information that the Applicant gave for the purpose of the application and is covered by the exception in subsection 424A (3) (b) of the Migration Act.
The Applicant claims breaches of ss.414 and 427(1) (d) of the Migration Act. Section 414 of the Act requires the Tribunal to review an RRT reviewable decision if a valid application is made under s.412 of the Act. Contrary to the Applicant's submission, that is exactly what the Tribunal has done. The Tribunal wrote to the Applicant's migration adviser seeking comments about certain information before the Tribunal. The Tribunal considered material provided by the migration adviser and the Tribunal held a hearing at which the Applicant gave oral evidence. The Tribunal then issued its decision in which it reviewed the matters before it and affirmed the decision of the delegate not to grant a protection visa. Section 414 of the Migration Act does not appear to have been breached.
Similarly, the claim that the Tribunal breached s.427 (1) (d) cannot be made out. That subsection empowers the Tribunal to require the secretary of the Department to arrange for the making of any investigation or any medical examination that the Tribunal thinks necessary. The Applicant was not able to tell the Court why any investigation or medical examination was necessary and it does not appear that any request was made to the Tribunal to exercise that power. There is no breach of s.427 (1) (d).
The Applicant claims a breach of subsection 422B (1) of the Migration Act. That subsection says in full, and I quote:
This subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
It is clear that the Tribunal made inquiries of the Applicant about certain information that would not assist the Applicant's case insofar as his credibility is concerned, gave him the opportunity to comment upon it in writing, took notice of the written reply, and held a hearing at which the Applicant was able to give evidence. The statement that "without any investigation" the Tribunal's decision is not a decision for the purpose of s.422B (1) is not a correct statement of the law. There is no breach of s.422B (1).
The Applicant's claim that s.430 of the Migration Act only makes an oral decision valid if that decision is positive, is a misstatement of the law. The proposition that a decision made on the day of the hearing is evidence of bad faith and a denial of natural justice is misconceived. Section 430 of the Migration Act requires the Tribunal to produce a written decision which sets out the reasons for the decision, findings on any material questions of fact, and refers to evidence or other material on which those findings of fact are based. The Tribunal decision clearly complies with that requirement. There is no breach of s.430 of the Migration Act.
I turn now to the claim that s.424A of the Migration Act was not complied with regarding a finding of document fraud. The Applicant claims that the Tribunal did not ask for any comment on that issue.
In my view, a letter forwarded to the Applicant's migration adviser on 22 September 2003, a copy of which was also forwarded to the Applicant, refers to that very issue and invites the applicant to comment upon it. To my mind, that claim cannot be made out.
Turning to the request to the Court to listen to the audio tape of the proceedings, I note that no audio tape was tendered, nor was any transcript of the tape sought to be tendered. There is no indication as to what any playing of the audio tape of the proceedings would show and in any event, the Applicant has made no complaint about the conduct of the hearing. Accordingly, no ground for error is demonstrated there.
The Applicant goes on to refer to an opportunity to review a privative clause decision under s.39B of the Judiciary Act if four factors are met. Those four factors are the following:
c)The decision maker acted in good faith.
d)The decision is reasonably capable of reference to the power granted to the decision maker.
e)The decision relates to the subject matter of the legislation, that is, the Migration Act.
f)Constitutional limits are not exceeded.
These four factors are known as the "Hickman Principles". They refer to the decision of the High Court of Australia in R. v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. The submission cites the opposite of the case. If the four Hickman principles are met, then the decision is a privative clause decision and is not reviewable under s.39B of the Judiciary Act.
Turning to the claim that the Tribunal made its decision in bad faith, I refer again to the decision of the Full Court of the Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (supra).. In my view, there is no evidence of bad faith that appears on the face of the Tribunal decision. There is no evidence that the decision maker got the facts wrong, even if that were a ground for judicial review, which it is not. It is well established that a factual error on the part of a decision maker does not of itself constitute jurisdictional error and I refer to the decision of Abebe v The Commonwealth (1999) 162 ALR 1. Again, there is no evidence that the Tribunal a) took into account irrelevant matters; b) did not take certain matters into consideration; c) did not make an honest attempt to come to the right decision; or d) intentionally made a wrong decision. Accordingly, this ground for review fails.
The applicant also refers the Court to a decision of the Federal Magistrates Court in SZALU v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FMCA 264. SZALU is a decision of Driver FM made on 29 April 2004. In that decision, his Honour was dealing with an applicant in a similar position to this applicant. The Applicant was claiming political persecution in Bangladesh and indeed, claimed to have joined the student wing of the Awami League. The Court noted that the Tribunal had noted the extreme similarity of the Applicant's claim to another application before the Refugee Review Tribunal. His Honour noted at paragraph 6 that the Applicant's claims were rejected on the credibility grounds significantly because of the close similarity between his claims and those of another applicant. The presiding member had found that the claims of the applicant in SZALU had been fabricated, apparently in concert with the other applicant.
The Court found at paragraph 10 that the Refugee Review Tribunal had erred in failing to disclose to the applicant the basis for the presiding member's concerns. His Honour said:
The RRT is, of course, perfectly entitled to reject claims on credibility grounds. However, where there are important facts giving rise to those credibility concerns unknown to the applicant, they should be disclosed to the applicant. In this case, as in SZALT, [meaning SZALT v Minister for Immigration & Multicultural & Indigenous Affairs, a previous decision of the Federal Magistrates Court] they were not.
Accordingly, the Court issued a writ of certiorari quashing the decision of the Refugee Review Tribunal and issued a writ of mandamus requiring the Tribunal to redetermine the matter according to law.
The Applicant argues that the decision in SZALU (supra) is relevant to the matter before this Court. Indeed it is. Whilst a decision of a single Federal Magistrate would not be binding upon me, I would regard such a decision as persuasive unless I were satisfied that it had been wrongly decided or the case could be distinguished in some way. I am certainly not satisfied that SZALU has been wrongly decided. In my view, however, the case can be distinguished on its facts. On 22nd September 2003, the Refugee Review Tribunal wrote to the Applicant and his migration adviser. A copy of that letter appears at pages 122 to 125 of the Court book. At page 124 at about point 5, the Tribunal draws the Applicant's attention to the fact that his claims are virtually identical with those of other cases currently before the Tribunal. I quote:
The Tribunal is further strengthened in its findings that the Applicant's claims are complete fabrications by the fact that there are two cases currently before the Tribunal (this case and case No3-46047) as well as a case already decided (No3-46028) which have virtually the same claims and which are expressed in virtually verbatim terms. Thus the claims of all three cases contain the following common wording, punctuation and spelling errors, although the claims represent three different people who lived in three different places in Bangladesh.
At page 125 of the Court book, the letter invites the Applicant to comment on that information. On 4th November 2003, the Applicant's migration adviser, Mr Mohamed Zahirul Hoq Mollah, wrote to the Tribunal setting out a lengthy reply to the Tribunal's letter. The Tribunal refers to the migration adviser's letter, at pages 148 and 149 of the Court book. In my view, the Tribunal decision shows that the similarity between the Applicant's claims and those of other applicants has been brought to the Applicant's attention and he has been given the opportunity to comment on it. Furthermore, the adviser's comments in reply have been taken into consideration by the Tribunal. For that reason, I am satisfied that the decision in SZALU v Minister for Immigration can be distinguished on the facts.
The final point that the Applicant makes is that the decision involves a breach of the rules of natural justice. In my view, that submission cannot be sustained for the following reasons:
g)The Tribunal drew the Applicant's attention to matters which caused it concern regarding the Applicant's credibility and invited the Applicant to comment.
h)The Tribunal considered the reply given by the Applicant's migration adviser in making its decision.
i)The Tribunal held a hearing to which the Applicant was invited.
j)The Applicant attended the hearing and gave oral evidence.
In my view, no breach of natural justice is disclosed.
It appears to me that the main reason why the Tribunal dismissed the Applicant's claim was that the Tribunal was not convinced about the credibility of the applicant's evidence. As has been submitted by counsel for the Respondent, a finding on credibility which is a finding as to whether the Applicant should be believed in his claim is a function of the primary decision maker. As McHugh J said in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; (2000) HCA 1, at paragraph 67:
If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence.
In this case, it appears that the Tribunal has rejected the Applicant's evidence on the basis of credibility and has provided a number of reasons for doing so at pages 155 and 156 of the Court book. In my view, it was open to the Tribunal to make such a finding.
I note that the Applicant is not legally represented. I have examined the decision of the Tribunal in order to satisfy myself that no other jurisdictional error appears. In my view, there is no reviewable error. The decision is a privative clause decision that attracts the protection of s.474 of the Migration Act. Accordingly, the application will be dismissed.
There is an application that the Applicant should be responsible for the First Respondent's legal costs. Those costs have been estimated on a party/party basis at $4,000.00. The first matter to be decided is whether or no the Court should make an order for costs.
In this case, I am satisfied that as the Applicant has been unsuccessful in his claim, the Respondent should receive the benefit of an order for costs. The amount sought is $4,000.00 inclusive of counsel's fees assessed on a party/party basis. That is an amount that is within the range envisaged by the Federal Magistrates Court Rules 2001.
It appears to me to be an appropriate figure in the circumstances.
I certify that the preceding thirty-six (36), paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 6 October 2005
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