SZDHF v Minister for Immigration and Citizenship
[2007] FCA 803
•30 May 2007
FEDERAL COURT OF AUSTRALIA
SZDHF v Minister for Immigration and Citizenship [2007] FCA 803
SZDHF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 207 OF 2007
MANSFIELD J
30 MAY 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 207 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZDHF
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MANSFIELD J
DATE OF ORDER:
30 MAY 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The title of the first respondent be changed to Minister for Immigration and Citizenship.
2.The appeal is dismissed.
3.The appellant pay to the first respondent costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 207 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZDHF
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MANSFIELD J
DATE:
30 MAY 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
The appellant is a national of Bangladesh. He arrived in Australia on 30 October 2002 as a merchant seaman. On 8 November 2002 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act). He claimed to have a well-founded fear of persecution if he were to return to Bangladesh for reasons of his political beliefs, as an active and prominent member of the Awami League. His application was refused by a delegate of the first respondent on 17 December 2002.
There is a slightly complex procedural history since then.
The appellant unsuccessfully sought review of that decision by the Refugee Review Tribunal, which affirmed the delegate’s decision on 3 March 2004. However, on 8 May 2006, the Tribunal’s decision was set aside by consent for jurisdictional error and the matter was remitted to the Tribunal for reconsideration. It was agreed on behalf of the first respondent that the Tribunal in the course of its decision failed to comply with the requirements of s 424A of the Act.
On 7 August 2006, the Tribunal again affirmed the decision of the delegate of the first respondent (the second Tribunal decision). The appellant again applied to the Federal Magistrates Court to quash the second Tribunal decision. On 29 January 2007, a Federal Magistrate dismissed that application. The appellant was represented before the Federal Magistrates Court on that occasion. His notice of appeal was amended by abandoning claims that the Tribunal demonstrated ostensible bias in making the second Tribunal decision, that is that there was a reasonable apprehension of bias in the way it had addressed the appellant’s claims. The notice of appeal was also amended by withdrawing a claim that the Tribunal had taken into account an irrelevant consideration, namely how it would have been affected if it had been attacked as the appellant claimed he had been attacked in November 2001 and April 2002. The ground of jurisdictional error which was argued was that the Tribunal made findings of fact in the absence of evidence probative of those facts. The particular findings which were attacked were findings that certain written evidence apparently corroborative of the appellant’s claims and provided by people in Bangladesh and in Australia was written:
… out of a general wish to assist someone who is known to the writers as a member or supporter of the Awami League, rather than as a genuine reflection of his political role.
It was claimed that there was no evidential foundation at all for those conclusions.
The Federal Magistrate rejected those contentions. His Honour was satisfied that it was open to the Tribunal in the second Tribunal decision not to be satisfied that the corroborative material tendered in support of the appellant’s claims contained reliable opinions and information concerning the appellant’s political profile in Bangladesh. Hence, the Federal Magistrate found, the Tribunal’s reasoning in relation to the documents it was required to consider and the weight it decided to give to that evidence did not involve any finding of fact which was simply not open to it. He declined to set aside the second Tribunal decision as he did not consider it was brought about by jurisdictional error.
There was no attack upon any of the findings of the Tribunal under s 424A before the Federal Magistrate.
THE APPEAL
This is an appeal from the orders of the Federal Magistrate, and necessarily also asserts jurisdictional error in the second Tribunal decision. The notice of appeal identified three matters which the appellant sought to argue on the appeal. In essence, he sought to re-activate the two matters abandoned before the Federal Magistrate, and to introduce a complaint that the Tribunal in making the second Tribunal decision had failed to comply with s 424A(1) of the Act. The appellant, who appeared in person, also provided written submissions which developed the complaint that the Tribunal had breached s 424A(1) of the Act in its conclusion that his claims as to the laying of false charges against him were unlikely, and in any event that he had been of no particular interest to the authorities or his particular opponents in Bangladesh since the early 1990s. The written submission identified two pieces of information which, it was contended, were information about which he should have been given a notice under s 424A(1) of the Act, which were described as employment history information, and similar claims information.
The written submissions did not address the two other grounds in the notice of appeal, but the appellant in his oral submissions said he wished to maintain them, even though he did not really develop them in any meaningful way.
In his oral submissions, the appellant (who appeared with the aid of an interpreter) also added complaints that the Tribunal was confused as to the place where his passport had been issued, that the Tribunal had misunderstood one of the corroborative letters which he identified as a letter from his former headmaster (he said the Tribunal had therefore treated it as unhelpful in going to the involvement he had had at a political level with the Awami League when in fact that person had had a role both as his headmaster and as the chairman of the particular section of the Awami League), and that the documents upon which the Tribunal had placed little weight contained contact details which the Tribunal should have pursued. I shall call those contentions the miscellaneous complaints.
Consequently, the appellant sought to argue on the appeal that the second Tribunal decision was infected with jurisdictional error by reason of
(1)Failure to comply with s 424A(1) of the Act;
(2)ostensible bias on the part of the Tribunal;
(3)taking into account irrelevant information, namely its own anticipated reaction to the attacks asserted by the appellant; and
(4)the miscellaneous complaints.
As counsel for the first respondent pointed out, those contentions extend well beyond the matters which the appellant could legitimately raise under his notice of appeal. He requires leave to raise them, as none were argued before the Federal Magistrate. Rather than to debate the issue of leave, in my view it is appropriate to consider the merits of each of those points now sought to be raised by the appellant, and in the light of a determination about the extent of merits which each of them holds, to determine then whether to grant leave to him to raise those issues and to the extent necessary to amend his notice of appeal.
THE TRIBUNAL’S REASONS AND THE CLAIMS
The appellant claimed that he and his family had been active supporters of the Awami League since at least 1970. His father had been a “great freedom fighter in the Liberation War of 1971”. The appellant said he himself had worked for the Awami League since 1978, and had been appointed a joint secretary of the Sandvip Thana Committee of the Awami League from 1979. In 1998, he had been appointed an executive member of the Chittagong District Committee of the Awami League, and in 2001 had been an active campaign worker for the Awami League candidate in the Chittagong 3 electorate.
Over that period of time, the appellant claimed that he had been identified as a promising Awami League leader, to the extent that opposition parties including the BNP and the Jamat-e Islami group had threatened to kill him if he did not reduce his political activities. Since he had campaigned so vigorously for an Awami League candidate in the 2001 election, he claimed to have been the subject of two false charges generated by the authorities, to have been attacked by BNP activists which he said had occurred on 10 November 2001 and 20 April 2002 (the latter occasion leading to him being admitted to hospital briefly), and thirdly that his family home at Sandvip had been partly burned down on 5 October 2001 so that he was forced to move to Chittagong. He said that vengeful conduct on the part of the BNP, which generally won the 2001 election, followed because he was perceived as a leading activist on behalf of the Awami League and so is a target of the current regime.
The appellant also said that he had donated 25% of his earnings to the Awami League from 1982, from which time he had worked as a merchant seaman working more or less one year on and one year off, and when not working as a merchant seaman had been active in politics on behalf of the Awami League. He said that on occasions he had worked more frequently to avoid the political attacks of his opponents.
The Tribunal, having the benefit of the appellant’s claims as expressed from time to time and at the hearing before the Tribunal, regarded the appellant as an unsatisfactory witness. It described his evidence as vague at many points, confused and at times self-contradictory. It said he appeared evasive and fully prepared to vary his evidence as the hearing progressed. Consequently, it was not satisfied as to the truth of his claims concerning his political activities in Bangladesh or the harm he says he suffered as a consequence of those activities. The Tribunal said that it was not satisfied that the appellant’s personal circumstances, as he claimed them to be, were consistent with his claims to have been a political activist in Sandvip in the years before he left Bangladesh, including intensive campaigning there in the 2001 election. The Tribunal then addressed his various claims in more detail.
It accepted certain of his claims. It accepted that his cousin was a parliamentarian in the Awami League from the early 1970s, and that his father was a freedom fighter in the war of independence. It accepted that the appellant and his family may have been supportive of the Awami League, and may have been identified as Awami League supporters by their community. It also accepted that the appellant may have been involved in a general sense in supporting Awami League activities, including at the elections in 1996 and 2001, and that the appellant may have formally joined the Awami League at some point subsequent to 1972. However, it was not satisfied that the appellant had ever held leadership positions in the Awami League, that he ever held a decision-making role in that party, or that he ever did anything beyond providing some essentially limited practical support. It did not accept his claim to have provided significant financial support to the party, and considered his claimed contribution of 25% of his salary as a seaman to be far-fetched.
Consequently, the Tribunal was not satisfied that the appellant had any particular political profile in Sandvip or elsewhere at the time he left Bangladesh, either because of his own political activities or because of his family background. It was not satisfied that the appellant was ever in a position to provide consistent or active support for the Awami League since the 2001 election on the basis of his own evidence as to his activities and personal circumstances after that election. It was also not satisfied that the appellant’s contacts in Australia indicate that he now has a higher political awareness or profile than he had when he was living in Bangladesh, or that he would take a more active role in politics if he were to return to Bangladesh.
As to the various apparently corroborative letters provided by the appellant and said to have been written by Awami League figures in Bangladesh and in Australia, the Tribunal observed that the letters:
… are notably devoid of detail about what it is that the Applicant actually did for the party … and they appear to have been written as general references for him, apparently in connection with his application for review. Given their content and tone I am not satisfied that they have not been written out of a general wish to assist someone who is known to the writers as a member or supporter of the Awami League, rather than as a genuine reflection of his political role. As such I have placed little weight on these letters in my assessment of the Applicant’s political profile in Bangladesh.
The Tribunal then referred separately to the appellant’s claims of false charges having been made against him, of past attacks having been made upon him, and of the burning down of the family house. It was not satisfied as to the truth of the claim that false cases had been brought against him. It was not satisfied that the appellant was assaulted on the two occasions he claimed, and it thought that the claims he had made raised doubt as to the credibility of other claims he had made to have suffered physical harm. Finally, it was not satisfied that his family house was burnt down as he claimed. It concluded:
Given my lack of satisfaction as to the credibility of the Applicant’s claims in this area I am not satisfied that he has suffered other physical harm in connection with any political activities in which he may have been involved.
It also rejected his claim to have been living in hiding in Chittagong following the 2001 election until he was able to leave for Australia.
It summarised its conclusions in the following way:
On the evidence presented to the Tribunal by the applicant I am not satisfied that he had any particular political profile in Bangladesh or that he ever suffered harm for his political opinions or activities or that false cases have been brought against him. I am not satisfied that anything has changed since he has been in Australia or that there is now a real chance that he would suffer serious harm for these reasons if he were to return. I am not satisfied that the applicant has a well-founded fear of persecution for reason of his political opinion, or for any other Convention-related reason, should he return to Bangladesh now or in the reasonably foreseeable future and I am not satisfied that he is a refugee.
CONSIDERATION
Section 424A of the Act obliges the Tribunal, in certain circumstances, to give to a visa applicant particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. It is also obliged to ensure, as far as is reasonably practicable, that the applicant understands why that information is relevant to the review and it must invite the applicant to comment on that information.
As noted above, the first category of information which the appellant claims was not the subject of notification and invitation under s 424A(1), although it should have been, was the appellant’s “employment history information”.
The appellant, upon questioning, was unable to identify any piece of information regarding his employment history which had not been provided to him by the Tribunal in the course of its hearing, so as to enliven s 424A(1) at all. I suspect that is because his written submission (as he acknowledged) was taken from the written submission which was made on his behalf at the previous hearing before the Federal Magistrates Court and upon which the earlier decision of the Tribunal was by consent set aside on 8 May 2006. I have briefly referred above to the Tribunal’s references to the employment history of the appellant. It is clear that, to the extent to which the Tribunal had regard to the appellant’s employment history, that was information provided by the appellant in the course of the hearing before the Tribunal. Consequently, it was not information which attracted the operation of s 424A(1) of the Act: see s 424A(3)(b). It is sufficient to conclude, as I do, that the appellant has not shown that there was any information about the appellant’s employment history which the Tribunal took into account, or which it considered would be the reason or part of the reason for affirming the decision of the delegate of the first respondent, and which was not provided to the Tribunal for the purpose of the application.
Those comments apply more forcefully to the second category of information to which s 424A(1) is said to have been attracted. It is described as the “similar claims information”. There is no reference to similar claims information in the Tribunal’s reasons. Indeed, the appellant acknowledged that that reference was a reference to the decision of the earlier Tribunal.
Consequently, the appellant’s claims that the Tribunal failed to comply with s 424A of the Act are simply not made out.
Nor is there any merit in his claim that the Tribunal was ostensibly biased in its consideration of his claims. He did not point to any process of the Tribunal, other than its reasons for decisions, which might have made out a reasonable apprehension of bias on its part: see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.
The ostensible bias, according to the notice of appeal, emerged from the Tribunal having given insufficient weight to the corroborative evidence, and from the Tribunal having had regard to its own view about how it (or another person) might have reacted to the attacks which the appellant gave evidence about. In essence, in my judgment, the appellant is simply complaining that the Tribunal did not place weight on the documentary evidence which was adduced to it to the extent to which he considered it should have been given weight. Indeed, in his oral submissions, he claimed simply that the material was “not properly considered” by the Tribunal. The Tribunal did consider that material, both in its context and in its terms, to reach the view which it did. That view was reasonably open to it. Its observations about the content of that material, and its form and terms, and about the failure of the appellant to have requested the calling of the Australian sources, were all matters upon which it could properly have expressed those views. In assessing the reliability of evidence about an attack, there may be a range of factors to be taken into account. They may include the assessment of the presentation of the witness, the consistency of the evidence, the inherent plausibility of the events claimed and of the reaction of the person to the attack, any independent verification and other matters. The Tribunal does not demonstrate ostensible bias by considering the way the appellant responded to the attacks he spoke of, or in considering whether that response was one which it may have regarded as a commonsense one.
It is difficult for an applicant to demonstrate ostensible bias on the part of a Tribunal such as the Refugee Review Tribunal simply by reference to its reasons for decision. No such inference can possibly be drawn in the present matter. The Tribunal’s reasons demonstrate that it was at pains to identify the allegations or claims made by the appellant as to why he had a well-founded fear of persecution if he were to return to Bangladesh, to accurately identify the evidence upon which he relied in support of those claims, to assess the reliability of those claims, and to reach its conclusions. Its reasons demonstrate why it reached those conclusions. The appellant’s arguments do no more than, in essence, disagree with certain conclusions of the Tribunal. But disagreement goes no way to demonstrating ostensible bias on the part of the Tribunal. That claim is not made out.
The matters referred to in [27] above are sufficient to indicate why the appellant’s third contention must also fail. The acceptance or otherwise of evidence of a particular event can properly be made in the context of surrounding circumstances and the inherent probability of that event in its reported context having occurred. Consequently, the Tribunal did not take into account an irrelevant consideration.
The appellant’s miscellaneous complaints can be addressed together. In my judgment, they do not demonstrate jurisdictional error but are simply an attempt to re-argue the merits of the case.
The fact that the appellant is simply seeking to re-argue the merits of the case is illustrated by his focus upon the letter from the headmaster of A.K. Academy, Gachua. As that is the only letter of commendation apparently signed by a person identified as a headmaster, I take it that that is the letter to which the appellant was referring. He did not himself identify any particular document within the materials before the Court to which he was otherwise referring. It merely certifies that the appellant was a student at the school, and passed class nine and was promoted to class ten. It attests to his good moral character, and to the best of the knowledge of the headmaster that the appellant was not found “involving in any activity subversive either of the state or of discipline.” It is dated 3 November 2002. That letter does not advance the appellant’s claim in any event, but there is nothing in the Tribunal’s reasons to indicate that it misunderstood the tenor of that letter or its meaning, or to indicate that it did not think that the headmaster was able to express what he had expressed. It was a matter for the Tribunal to attribute such weight to that letter as it chose. The assessment of the reliability of evidence, and the weight to be attributed to it, is a matter for the Tribunal. It was open to the appellant to bring to the Tribunal the witnesses within Australia who provided written statements about the threats which he might experience in Bangladesh. He had the opportunity, in response to the notice under s 425A of the Act, to indicate to the Tribunal that he wished to bring other persons to the Tribunal but he did not do so. He did not ask the Tribunal to arrange for those persons’ attendance. At the hearing and prior to the hearing, he had been represented by a migration agent who had made extensive submissions on his behalf. The Tribunal listed and described the contents of each of the items of corroborative evidence. It did not overlook or misunderstand them. In those circumstances, and given the Tribunal’s reasons for attributing to the material weight which it attributed to it, in my judgment there is nothing to indicate either that it did not approach its task conscientiously or that it was obliged to do more than it did in the circumstances before making its findings of fact.
Finally, I mention the complaint about the Tribunal’s alleged misunderstanding of the place where his passport was issued. The Tribunal recorded, accurately, that the current passport shows that the appellant’s address at the time of its issue was Barisal. He was asked about that at the hearing. He denied having lived at that address for some time, and said that it was the address of a relative. He said it was simply an address used in documents. The Tribunal used that information also to cast doubts upon the appellant’s claims. There is nothing to indicate that it was confused as to where the passport was issued. What it did was make use of certain information in the passport, and the appellant’s responses to its questions about that information, in weighing up his credibility. It was entitled to do so.
In my judgment, no jurisdictional error on the part of the Tribunal is made out. As I have indicated, the issue argued before the Federal Magistrate was different from any of the matters argued before the Court, other than a general suggestion that there was no evidence to support the conclusion that the confirmatory documents were of generally sympathetic but non-persuasive character. The appellant did not in fact set out to demonstrate error on the part of the Federal Magistrate.
Accordingly, as I have found no merit in any of the matters argued by the appellant, either based upon his notice of appeal, based upon his written submissions, or based upon his oral submissions, I would not give him leave to amend his notice of appeal to assert the matters which otherwise he sought to argue. I would dismiss the appeal. The appellant should pay to the first respondent costs of the appeal.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate:
Dated: 23 May 2007
Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: Mr J Smith Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 10 May 2007 Date of Judgment: 30 May 2007