SZEHP v Minister for Immigration
[2005] FMCA 874
•30 May 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEHP v MINISTER FOR IMMIGRATION | [2005] FMCA 874 |
| MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal did not believe the applicant – actual bias – alleged failure to allow applicant to call witness – proper consideration – procedural fairness – credibility – privative clause decision – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 426 |
| Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 |
| Applicant: | SZEHP |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2702 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 30 May 2005 |
| Date of Last Submission: | 30 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 30 May 2005 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | JAC Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed on 31 August 2004 be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $4,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2702 of 2004
| SZEHP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from a transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 12 July 2004 and handed down on
4 August 2004.
The applicant, who is a citizen of Bangladesh, arrived in Australia on 26 April 2001. On 2 May 2001 he applied for a protection visa which was refused by a delegate of the Minister on 10 May 2001. On
29 May 2001 he lodged an application in the Tribunal for review of the delegate’s decision.
It appears that the Tribunal affirmed the decision of the delegate on
15 April 2003 but that on 2 April 2004 this decision was set aside by the Federal Magistrates Court. A hearing was held by the second Tribunal on 21 June 2004. On 12 July 2004 the Tribunal affirmed the decision of the Minister’s delegate and handed down its decision on
4 August 2004.
Claims before the Department and the Tribunal.
The applicant claims that between 1986 and March 2001 he was a member of the Bangladesh Freedom Party. He says that the Awami League sought to oppress such opposition in Bangladesh.
He says he was an active member of the Freedom Party and became a close friend of a Mr Abdul Latif who was then a member of the central committee of the party. The applicant says that his duties included organising rallies.
In the statement attached to his original application for a protection visa, the applicant says that on 16 November (no year is given) on the “Victory Day of Bangladesh” there was a rally at which Mr Latif spoke about injustice in the military system. Without provocation the police started attacking the people at the rally. The applicant says that he sustained injuries to his head and was carried to hospital by other Freedom Party members. As a result of his attendance at this rally he says charges were laid against him. He says that these charges against him were fabricated and the result of a corrupt system.
He left home after hearing about the charges which had been laid on
25 November 2000. From then on he moved around not staying in any one place for too long.
The applicant had also been a member of the “famous” City Nattayam Group as a make-up artist. He was told that he had been selected to go to Australia to assist with some theatre performances and he seized this opportunity.
Tribunal consideration and decision
The Tribunal decision is accurately summarised in the respondent’s submissions:
8. The Tribunal made significant adverse credibility findings about the applicant. It was not satisfied that the applicant had a well-founded fear of persecution should he return to Bangladesh. It could not be satisfied of the credibility of the applicant’s claims. It accepted that the Freedom Party was a virtually spent force at the time of the demonstration. The police and court documents the applicant submitted, which he claimed arose from his activities in that demonstration, actually pre-dated the demonstration and the Tribunal found that those documents were fabricated. It was strengthened in its finding by independent evidence that fraudulent documentation was easily obtained in Bangladesh. In light of this, the Tribunal had no confidence that the letter purportedly from a “Former Secretary, Jubo Command” was genuine and it placed no weight on this letter.
9. In light of this lack of credibility with respect to the documentary evidence submitted by the applicant, the Tribunal was not satisfied that any of the claims made by the applicant with regard to his political activities, including that he was an organiser of a demonstration in December 2000, or that he was hospitalised, were true. The Tribunal was strengthened in this regard due to the ability of the applicant to depart legally using a passport in his own name.
10. The Tribunal could not be satisfied that the applicant in fact engaged in any political activities prior to his departure from Bangladesh, and therefore found that there was no real chance he would be persecuted in the reasonably foreseeable future for reason of his political opinion. The Tribunal did not accept that he was facing false charges.
As is apparent from the Court Book at page 142, the Tribunal was not satisfied on the totality of the evidence before it that there was a real chance the applicant would be persecuted now or in the foreseeable future. The Tribunal was not satisfied the applicant had a well-founded fear of persecution for a Convention reason.
Consideration
The amended application filed on 30 November 2004 contained a series of grounds. In addition at the hearing before me the applicant raised a number of grounds orally and in a written document headed “Applicant’s Written Argument”. The counsel for the respondent did not object to me considering those grounds and I have accordingly done so. I will take the grounds in the order addressed by the respondent’s counsel at the hearing.
Grounds raised orally at the hearing
First ground: Tribunal did not believe the applicant
The applicant said essentially that his claims to the Tribunal that he had been persecuted and would be persecuted were true. He said that a claim that he had been in trouble was true. These statements if they can be considered grounds for review amount to no more than an attempt to have the Court engage in merits review of the Tribunal decision. This is not something that the Court is empowered to do. The Court cannot re-examine the factual issues and make its own findings of fact. That would usurp the role of the Tribunal. As the Full Court said in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]:
To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. … Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.
Second ground: difficulty with memory
The second issue raised by the applicant related to the difficulty he had in remembering things. He said that his memory “had gone down”. Clearly this does not identify any particular error by the Tribunal.
Third ground: Tribunal did not allow the applicant to call a witness
The third and more substantive issue related to the applicant’s request for a witness to give evidence on his behalf before the Tribunal. If the Tribunal handled this request incorrectly, it could amount to a breach of s.426 of the Migration Act 1958 (Cth) (the Act) or of the requirements of procedural fairness at common law. Section 422B of the Act does not apply to this matter as the application to the Tribunal was made before it took effect.
The applicant was invited to the hearing at the Tribunal and asked if he wanted to call any witnesses. The applicant’s response to the Tribunal is reproduced at pages 97 and 98 of the Court Book. The applicant stated that he wanted a Mr Abdul Nassar, who he says was a secretary of the Jubo Command, to give oral evidence about the applicant’s involvement in the Command and persecution in Bangladesh.
The transcript of the Tribunal hearing on 21 June 2004 was accepted into evidence at the request of the applicant without objection from the respondent. Pages 16 to 18 of the transcript record the applicant’s request to have evidence taken from Mr Nassar and the Tribunal’s response. At page 16 the applicant said:
If the Honourable Member please give me some time as I had arranged for the witness. I don’t know why he could not make it here today. If he were able to give his evidence, I think it would have helped me.
The applicant said to the Tribunal member that the witness was
Mr Nassar, who was General Secretary of the Jubo Command, which was part of the Freedom Party. The Tribunal asked when Mr Nassar came to Australia: The applicant responded:
Applicant (through interpreter): As one of my friends have arranged for this, for him to give the evidence, I don’t know whether he will be able to come to Australia. But if I were given some time, I would be able to.
Member: Is he, is Abdul Nassar, in Australia at present?
Applicant (through interpreter): No, he could not come to Australia. I don’t know why he couldn’t.
Member:You were saying on Friday that you were hoping he would be here.
Applicant (through interpreter): Yeah, because he told his – his friend. He informed that maybe within one month he is able to come. Just put the name.
Member:This – I’m not prepared to wait another month for the chance that this person might come to Australia. If it had been important, I believe, given the very long time that this case has been developing, your advisor might have suggested getting a statutory declaration from him. Is there anything else that you would like to say to me before I talk to your advisor?
Applicant (through interpreter): I just request to you, honourable member, to give me some time.
Member: What do you need the time for?
Applicant (through interpreter): If the witness could have come,
I would have been – then it would have been beneficial for me.
Member:I realise that. But I am not prepared for this case to wait on the off chance that within a month or so someone might turn up to give some evidence. Is there any submission you would like to make?
Applicant’s advisor: Yes, actually, I have been very busy. If you give me one week’s time and I will give some submission like that. In the meantime, if possible,
I talk with my client and I send a statutory declaration from the witness if possible.
Member:If you can organise it within one week, I am prepared to wait for a week for submissions. But I – I believe one week is sufficient given the amount of time you have taken.
Applicant’s advisor: We can fax it, it’s all right now
Then followed some discussion about when the submission should be sent to the Tribunal.
The Tribunal also refers to the issue of the witness at Court Book page 136:
The applicant stated he wanted the Tribunal to adjourn the hearing for a month so a witness might testify. He said his witness was hopefully coming from Bangladesh and could testify to the applicant’s party role and activities in Bangladesh. The Tribunal pointed out there had been ample time to get a statutory declaration from the witness and that the Tribunal was not prepared to adjourn its proceedings on the chance that the witness might arrive in a month. …
The applicant’s adviser asked for a little over a week until
29 June 2004 to prepare a submission and this was granted.
The question is whether the handling of this matter by the Tribunal amounted to a breach of the provisions of the Act or of procedural unfairness at common law.
As will become obvious it is unnecessary for me to consider whether the applicant complied with the time limitation for a request for a witness as provided in s.426(2). Section 426(3) provides:
If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.
This provision makes it very clear that the Tribunal must have regard to the applicant’s wishes. But the Tribunal has the discretion to decide whether it will obtain evidence from a person nominated by the applicant.
In this particular matter the Tribunal handled the request by the applicant for a witness in an unexceptional way. As is obvious from the transcript of the Tribunal hearing and the decision record of the Tribunal, the Tribunal member listened to the applicant’s wishes. It considered those wishes and considered other relevant matters such as the fact that the witness was outside Australia, that the applicant had no indication when the witness might arrive in Australia, and that the applicant had had ample time to obtain a statutory declaration from the witness. The Tribunal also allowed the applicant through his adviser a limited time to submit further material, including, if possible, a statutory declaration from the witness.
Having regard to the obligation on the Tribunal in s.420 of the Act that it must provide a mechanism of review that is fair, just, economical, informal and quick, it is my view that the Tribunal exercised its discretion under s.426(3) in a perfectly legitimate manner. I can find no breach of s.426 of the Act.
As I have stated there was also an obligation on the Tribunal to act with procedural fairness in this matter. Noting the matters that I have referred to above, I can discern no breach of procedural fairness at common law. In my view the Tribunal did not fall into any jurisdictional error in its handling of the applicant’s request for a witness, Mr Abdul Nassar, to give evidence on his behalf.
Applicant’s written arguments
The applicant’s written argument handed up in Court on the day of the hearing contains a number of further grounds for review.
Ground one: actual bias
The first ground alleges that the decision was induced or affected by actual bias. The submissions refer to s.476(1)(f) of the Act which is long since repealed. Nevertheless if the decision was infected by actual bias it would amount to jurisdictional error.
The applicant has listed a number of matters which he says demonstrate the Tribunal fell into actual bias. He says the Tribunal did not properly observe the Act. He says that the transcript submitted into evidence indicates that the Tribunal fell into actual bias. He says that the way the Tribunal handled errors in the applicant’s recall of dates was a further indication of actual bias, particularly because the applicant told the Tribunal that he was a victim of extreme torture and could not remember the old dates. He says the way the Tribunal rejected his claim because of inconsistencies between various pieces of evidence and the fact that the Tribunal did not treat the matter as a s.424A issue were further indicators.
The test for actual bias is set out in the Full Federal Court decision Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 by Wilcox J as follows:
[Actual bias] requires an applicant to show that “the Tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant’s case”.
His Honour referred to the decision in Sarbjit Singh v Minister for Immigration & Ethnic Affairs [1996] FCA 902 where Lockhart J emphasised three points. These were summarised by Wilcox J in Sun Zhan Qui:
First, the fact that a decision maker has formed a preliminary conclusion about an issue is not sufficient to indicate bias. There will be actual bias only when preliminary views are incapable of alteration. Second, any particular matter relied on as showing actual bias must be considered in the context of the whole hearing. Third, it is not enough that the decision maker displayed irritation or impatience or even used sarcasm.
Is there anything in the claims made by the applicant in his written argument which suggest that the Tribunal had a closed mind to the issues raised in his case and was not open to persuasion?
The applicant provides no detailed particulars on a number of these points. He does not say how the Tribunal failed to observe the Act.
He does not say how the Tribunal’s transcript shows actual bias. His claims about the inconsistency between the written evidence and oral evidence are unclear, as is his point about s.424A. I will deal with the s.424A point in a different context later.
As to the errors in the dates, it is obvious that the Tribunal placed some weight on the inconsistent evidence provided by the applicant.
It pointed out that the charge documents set out at page 128 and 129 of the Court Book relate to an incident that occurred on 12 October 2000; that is before the two dates the applicant had provided of 16 November and 16 December. It is true also that the applicant insisted that the demonstration took place on 16 December at the hearing. The Tribunal questioned the applicant on a number of occasions about this date, and this then provided the basis for the Tribunal’s findings. At page 141 it concluded
Moreover, the police and court documents submitted by the applicant, which he claimed arose from his activities in that demonstration, actually pre-date the demonstration and the Tribunal therefore finds that these documents were fabricated for the applicant to provide evidence for his claims.
There is nothing on the transcript nor on the face of the documents before the Court, including in particular the Tribunal’s reasons for decision, which would suggest at all that the Tribunal had a closed mind to the issues raised before it and that the Tribunal was not open to persuasion by the applicant’s case. The submission on actual bias must be rejected.
Ground two: Tribunal did not accept the applicant’s claims for persecution
The second ground raised in the written argument suggests that:
Despite numerous opportunities to mention my fear of persecution and the Tribunal dose not accept my genuine and true claims.
The first matter mentioned here is that:
The grounds and relief is very similar with a High Court judgment – Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002).
There is no evidence here that the applicant was told the Tribunal had regard to particular information about the applicant’s case nor that the Tribunal did not in fact consider that information. The Muin and Lie ground (see Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601) must be rejected.
The applicant also submitted several paragraphs which suggest that the Tribunal did not act in good faith. He suggested the decision maker got the facts wrong, took into account irrelevant matters, did not take certain matters into consideration, the decision-maker did not make an honest attempt to come to the right decision, but acted intentionally to make a wrong decision.
The applicant has not put before the Court anything which would support any of these claims. Some of them merely request the Court to engage in merits review. There are no particulars on the matters the Tribunal failed to take into account, or the matters it took into account when it should not have.
There is no basis on which any claims of bad faith on the part of the Tribunal can be upheld. This ground must be rejected.
Ground three: Tribunal did not give proper consideration to genuine claims
In the written argument there is a suggestion that the Tribunal did not give proper consideration to and that it ignored or failed to consider genuine claims. The transcript of the hearing and the Tribunal’s reasons in relation to the material before it, including the applicant’s claims in his submissions to the Tribunal and his statement to the Departmental decision maker, do not suggest in any way that the Tribunal failed to properly consider and assess the applicant’s claims. The fact that the Tribunal did not reach the conclusions that the applicant sought and that it did not believe his claims and rejected them, is not a basis from which to draw a conclusion that it ignored or failed to consider his claims. It did consider those claims and, as it was entitled to do, it rejected them.
Grounds in the amended application of 30 November 2004
Grounds one and two: denial of procedural fairness
The amended application of 30 November 2004 contains further grounds, the first and second of which relate to denial of procedural fairness or breach of s.424A of the Act. The essence of the applicant’s claim is that he was not given a proper opportunity to deal with independent country information concerning the prevalence of document fraud in Bangladesh. This he says would amount to a denial of procedural fairness at common law and a breach of s.424A of the Act.
It is patent from the transcript that the Tribunal did give the applicant a proper opportunity to comment on the issues of document fraud.
It expressly raised it with the applicant:
Member:My suspicion is that these documents are fraudulent. There is a lot of evidence from Australia Foreign Affairs, from British, and from other sources about how easy it is to get court and police documents – false police and court documents in Bangladesh. Indeed, there is an organisation called Transparency International, and they rate Bangladesh as in fact the most corrupt country in the world in terms of access to false documents. Because the dates on the documents don’t accord with your claims that it related to events in December, and that you were able to leave the airport even though ostensibly a warrant was out for your arrest for an important matter, and the fact that you in fact submitted these documents after you’d already had a Tribunal hearing some three years after the documents were purportedly issued, this leads me to have the suspicion that in fact you organised to have these documents made to support your position. Would you like to comment on that?
At page 135 of the Court Book the Tribunal indicates that it raised with the applicant the independent evidence with regard to the ease with which fraudulent documents could be obtained in Bangladesh. It was stressed to the applicant that the Tribunal had reservations as to the genuineness of the police and court documents.
Clearly this matter was raised with the applicant and there was no denial of procedural fairness at common law.
Furthermore having regard to the provisions of s.424A(3)(a), there was no breach of the requirements set out in the Act. The authorities, in particular Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264, SZBGG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 59 and SZANH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1280, indicate that the information relating to fraudulent documents referred to by the applicant in his amended application, was general country information which was not required to be provided to the applicant under s.424A and on which, under that particular provision, the applicant was not required to be given notice.
Other grounds
The other grounds set out in the amended application, grounds three to nine, provide no particulars. I will deal with them briefly.
Ground three says that the Tribunal failed to observe the procedures required by the Act. The applicant does not identify which procedures were not observed.
Ground four says that the Tribunal ignored the merits of his claim and that the Tribunal based its decision on dated information without any investigation. I have already indicated my view that the Tribunal clearly considered all the elements of the applicant’s claim. And as the High Court in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 has made clear, the Tribunal is under no obligation or duty to further investigate applicants’ claims. This ground appears to be one directed at merits review. The applicant does not identify any dated information to which the Tribunal should not have had regard.
Ground five says that the Tribunal failed to take into account a relevant consideration but does not identify what that relevant consideration was.
Ground six says that the Tribunal’s decision involved an incorrect interpretation of applicable law. It does not identify how the law was wrongly applied or misunderstood.
Ground seven says the Tribunal decision was unjust and did not take into account the gravity of the applicant’s circumstances. This ground merely cavils with the merits of the Tribunal’s decision. As I have said before this Court cannot review the merits of that decision.
Ground eight says the decision was not justified by the evidence used in the decision and that the Tribunal ignored its own information in deciding the case. Again this appears to be a dispute with the Tribunal’s fact finding. Even if it was not, there was clearly evidence available to the Tribunal to justify the decision it made.
Ground nine suggests, without any particulars, that there was an improper exercise of the power conferred on the Tribunal by the Act and regulations. No impropriety is evident to me.
Ground nine also asserts that the applicant was deprived of natural justice. I have already considered natural justice in relation to the first and second grounds and to a number of matters raised at the hearing. No further particulars have been provided, and having regard to the transcript and the record of the Tribunal’s decision, I am not able to discern any denial of natural justice.
In the result, the applicant has not been successful on any grounds providing a basis on which I could set aside the Tribunal decision.
Conclusions
Counsel for the Minister has submitted to me that the application must be dismissed as no reviewable legal error has been disclosed. I agree. It is apparent that the Tribunal formed an adverse view about the credibility of the claims made by the applicant. As McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 findings on credibility are the function of the decision maker par excellence. The Tribunal’s credibility findings were open to it and no error is demonstrated in its conclusions (see Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547).
I am not satisfied the Tribunal made any legal error going to jurisdiction in coming to its decision. I find that the decision of the Tribunal is a privative clause decision having regard to the High Court authority in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers. The decision clearly related to the subject matter of the Act and related to the powers conferred on the Tribunal.
The application must be dismissed.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: K Thynne
Date: 5 July 2005
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