SZEVE v Minister for Immigration
[2005] FMCA 1434
•30 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEVE v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1434 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.51A, 91X, 422B, 474
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597
Minister for Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 81 ALD 565
Kioa v West (1985) 159 CLR 550
WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323
Singh v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 109 FCR 18
VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965
| Applicant: | SZEVE |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG2072 of 2004 |
| Delivered on: | 30 September 2005 |
| Delivered at: | Sydney |
| Hearing date: | 1 August 2005 |
| Last submission received: | 8 August 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondents: | Ms K Morgan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2072 of 2004
| SZEVE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 6 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 18 May 2004 and handed down on 10 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on
19 November 2002 to refuse to grant the applicant a protection (Class XA) visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEVE”.
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 10 July 2002 on a Temporary Business Visa (Subclass 456). On 8 August 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.3-36) (“CB”). On 19 November 2002 the delegate refused to grant a protection visa (CB pp.37-48) and on 3 December 2002 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.49-52).
In his visa application, the applicant stated he was born in June 1963 in Netrokona, Bangladesh. He claimed he is a Muslim and speaks, reads and writes both Bengali and English. The applicant stated he is a citizen of Bangladesh by birth and has never married. He claimed he had no close relatives in Australia and that his family consisting of six siblings were in Bangladesh. Prior to his arrival in Australia, the applicant claimed he had exited Bangladesh for Brunei and had no difficulties with travel documentation permitting his exit.
The applicant stated he had completed fourteen years of education in Dhaka and graduated as a Bachelor of Commerce in 1988. In his visa application he stated his occupation as “private service”.
The applicant’s claim
The applicant claimed to fear persecution in Bangladesh because of his political affiliation with the Awami League (CB pp.27-29) and his specific claims included:
a)in 1987 he was elected as the president of the college committee Chattra League and he led many demonstrations against the then autocratic rule of Bangladesh;
b)he experienced extreme harassment by the police during this time and on a number of occasions was arrested in picketing against the ruling regime;
c)in 1990 he was elected as the joint secretary of the Jubo League Dhaka South City Committee and participated in all democratic movements initiated by the Awami League;
d)in February 1991 the BNP formed a government in Bangladesh and during this regime the applicant was arrested on a number of occasions, specifically on 23 April 1992 he was arrested by the police and later released from Dhaka Magistrate Court;
e)on 21 July 1993 he was attacked by a group of BNP ‘hoodlums’ who beat him and he became seriously injured as a result of the attacks although he reported this attack to the police they didn’t take any action (CB p.28.5);
f)during the October 2001 election he worked for Mr Chowdhuri a leading business man of the country who was a candidate for the elections from the Awami League and he ran a number of election campaign offices in Khilga and he was threatened many times by the BNP terrorists (CB p.29.3);
g)the BNP formed a government in October 2001 and commenced massive scale oppression towards the leaders and activists of the Awami League including the minority of the country (CB p.29.8);
h)on 6 October 2001 his house was ransacked and looted by BNP activists and members of his family were abused and insulted;
i)a number of false cases have been filed against him “to oppress me” (CB p.29.9)
The applicant alleged his life is not safe in Bangladesh and he was compelled to leave the country (CB p.29.9).
The Tribunal’s findings and reasons
The applicant attended a hearing before the Tribunal on 14 August 2003. The hearing was conducted with the services of an interpreter in the Bangla-English medium. The applicant was represented by an adviser who attended the hearing except for the preliminary introductory session. The applicant brought forward no witnesses.
Ms K Morgan, for the respondent, prepared a convenient summary of the Tribunal’s decision which I have adopted and reproduced as follows:
a)The Tribunal set out the legislative requirements for protection visa (CB pp.265.5-267.2), the applicant’s written claims (CB pp.267.5-270.8), the additional material provided to the Tribunal (CB pp.271.9-272.7) and the evidence in the oral hearing (CB pp.272.8-280.9). The Tribunal also detailed the independent information that it had taken into account in relation to Bangladesh (CB pp.282.3-294.8).
b)The Tribunal made the following findings.
i)that the applicant was not a credible witness, based on the inconsistencies and errors in his application form, statutory declaration, his own statement, his oral evidence and the supporting papers;
ii)it accepted that the applicant may be the son of a freedom fighter and as such, he is a member of that particular social group but that there was no evidence that the particular social group suffer as a result of their status (CB p.296.9);
iii)it accepted that the applicant is or was a supporter of the Awami League as is or was a very large number of Bangladeshis (CB pp.296.10-297.9);
iv)it was unable to accept the supporting evidence the applicant provided in the form of the four letters purporting to be from the Awami officials as proof of the offices the applicant claims to have held on the basis of the similarity of the texts (CB p.297.3);
v)it did not accept that the applicant has or has ever had any particular political profile or that he held the political offices held for the periods the applicant claims on the basis of the applicant’s inability to provide any supporting evidence of his claimed high profile and his ignorance of the fate of his party in the 2001 elections and other gaps in his political knowledge (CB p.297.8);
vi)it rejected the claim that the BNP had pursued the applicant to Brunei on the basis that the independent information does not support an international interest by that party in a relative low level former Awami functionary (CB pp.297.9-298.1);
vii)it did not accept the applicant’s claim that his employer in Brunei obtained a temporary business visa for Australia for him to avoid the BNP operatives (CB p.298.3);
viii)it accepted that there were charges filed against the applicant in 1992 however the Tribunal was not prepared to accept that the charges were reactivated when the BNP returned to power in 2001 (CB pp.298.7-298.8);
ix)it accepted that the applicant was assaulted on 21 July 1993 and that the injuries were from BNP hoodlums, however the Tribunal did not accept the harm as sufficiently serious “for the applicant to leave his country for 10 or more years” (CB pp.298.9-299.1);
x)it was unable to accept that an attack occurred on 6 October 2001 on the basis of its credibility finding in relation to the applicant and its doubt as to the purpose of the attack being a political one (CB p.299.2-299.5);
xi)it did not accept that the false charges in relation to the October 2001 event existed because the documentary evidence did not correspond with his oral evidence and the Tribunal found that, contrary to the documentary evidence, if police wished to do so they could have found him (CB p.299.5-299.8).
xii)it did not accept that the false charges alleged in relation to an incident in 8 October 2001 existed because of the short time for politicly inspired charges to be laid against a relatively minor opposition political figure (two days after the BNP’s return to power) as well as the likelihood of false documents in Bangladesh and the applicant’s general lack of credibility (CB p.299.8-299.9);
xiii)it was also unable to accept that there were false charges existing in relation to an incident on 15 December 2001 on the same basis as those in the previous paragraph with the additional reason that the applicant was “immigration cleared” after the charges were laid in relation to his Brunei visa (CB pp.299.9-300.1);
xiv)that the applicant was not leaving Bangladesh for Brunei because he feared the Awami League might lose the election but that he was leaving Bangladesh to work (CB p.300.4); and
xv)that the applicant was not a person of adverse interests to the authorities at the time of leaving Bangladesh for Brunei (CB p.300.9).
c)The Tribunal did not accept therefore that the applicant had a well-founded fear of persecution for reasons of political opinion as a result of the applicant’s experiences in Brunei or Bangladesh up to time of his departure in February 2002 (CB p.301.5).
d)The Tribunal went on to consider the situation in Bangladesh as it existed at the time of its decision and the situation at the time which might prevail in the reasonably foreseeable future. The Tribunal:
i)accepted the independent information in relation to Bangladesh and concluded that whether or not the BNP or the Awami League remained in power the country information indicated that some of the systematic problems in the conduct of politics in Bangladesh were changing and such measures should have the effect or reducing the popularity of politically inspired charges; and
ii)found that the information provided by the applicant portrays a situation “more of general lawlessness, than oppression of the applicant’s claimed political party, the Awami League” (CB p.302.1).
e)In addition, the Tribunal found that given the combination of the applicant’s language skills, tertiary education, well-off family, overseas work, travel experience, party organisation skills and his low, if any, political profile, the chances of the BNP devoting the necessary effort to find the applicant and target him elsewhere in the country are so low as to make them not a realistic claim. The Tribunal found therefore that relocation within Bangladesh was practical for the applicant should he wish not to return to his own area (CB p.302.2).
f)The Tribunal concluded therefore that there was no well-founded fear for the applicant in the recently foreseeable future for reasons of political opinion, membership of particular social group or any other Convention reason (CB 302.4).
Application for review of the Tribunal’s decision
On 6 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 1 December 2004 the applicant filed an amended application. On the day of the hearing, Counsel for the applicant sought leave to file a further amended application setting out the following grounds:
1.The Tribunal relied on some country information adverse to the applicant without putting the information to the applicant and giving him an opportunity to comment. In these circumstances, the Tribunal denied the applicant procedural fairness.
2.The applicant submitted to the Tribunal four sets of documents concerning false charges laid against him. The Tribunal ignored one set of documents. In the circumstances, the Tribunal fell into jurisdictional error.
3.The applicant claimed that ‘because of the false charges and his fear of the BNP … he was required to pay bribes to secure his passport and his safe exit to Brunei”. The Tribunal fell into jurisdictional error in rejecting this claim.
The Law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Submissions
Counsel for the applicant sought the leave of the Court to file a further amended application which contained a re-drafted initial ground contained in the amended application and two additional grounds. Leave was granted on the condition that the respondent was provided with a further seven (7) days to file any written submissions to address the issues raised in the applicant’s further amended application.
The applicant claimed the Tribunal fell into jurisdictional error in the following ways:
a)The Tribunal relied on some country information adverse to the applicant without putting the information to the applicant and giving him an opportunity to comment. In these circumstances, the Tribunal denied the applicant procedural fairness (the “Country information issue”).
b)The applicant submitted to the Tribunal four sets of documents concerning false charges laid against him. The Tribunal ignored one set of documents. In the circumstances, the Tribunal fell into jurisdictional error (the “False charges issue”).
c)The applicant claimed that “because of the false charges and his fear of the BNP … he was required to pay bribes to secure his passport and his safe exit to Brunei”. The Tribunal fell into jurisdictional error in rejecting this claim (the “Passport issue”).
d)The Tribunal found the applicant could relocate to another part of Bangladesh. The applicant says that, if the Tribunal fell into jurisdictional error in one or more of the above ways, the Tribunal’s relocation finding cannot stand (the “Relocation issue”).
The respondent had previously filed written submissions which were supported orally at the hearing. Further written submissions were filed on 8 August 2005 in response to the applicant’s further amended application filed on the day of the hearing.
Reasons
In respect of the applicant’s first ground (“the country information issue”), it was submitted by Counsel for the applicant that the Tribunal “had regard to” a large amount of country information (CB p.282.3). The information was set out at CB pp.282.3-294.7. The Tribunal discussed the information with the applicant and gave him an opportunity to comment - see for example CB p.274.10 (pro and anti liberation forces), p.275.1 (freedom fighters), p.276.3 (2001 election), p.276.10 (2001 election), p.277.3 (passport issue and exit controls), p.278.3 (document fraud) and p.279.5 (BNP-Awami League violence). However, the applicant contended there was one piece of country information the Tribunal relied on which it did not discuss with the applicant. The country information was in relation to the law and order situation in Bangladesh as noted by the Tribunal:
“The Tribunal has taken account of the independent information on the law and order situation in Bangladesh at the time … “ (CB p.299.3)
The Tribunal then went on to find that it was unable to accept that there was an attack on the applicant’s house on 8 October 2001 (CB p.299.7). Counsel for the applicant submitted that the Tribunal decision did not reflect that this piece of country information was ever put to the applicant, however, it was relied upon to dismiss the applicant’s claim. The Tribunal noted:
“The independent country information on that country, which the Tribunal accepts, is to the effect that violence is a feature of the rough and tumble of Bangladesh politics. Further, that government’s in power have traditionally used the police, the lower courts and the machinery of government, to suppress their political opponents. The independent information is also clear, that that ability ceases when government changes hands, which last occurred in the country in October 2001.” (CB p.301.6)
The Tribunal further noted:
“The independent information, which the Tribunal accepts, does however indicate that some of the systemic problems in the conduct of politics in Bangladesh are changing …” (CB p.301.9)
Where the Tribunal relies on country information adverse to the applicant without giving the applicant an opportunity to comment on the information, there is a denial of procedural fairness: WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs per Lee, Hill and Marshall JJ at [34]:
“It is clear that the RRT relied on country information in the course of dismissing the appellant’s claims. In doing so, without advising the appellant of its intention to rely on that material and without offering him an opportunity to comment upon it, the RRT denied the appellant procedural fairness.”
The applicant’s claim was that the Tribunal relied on country information adverse to the applicant to dismiss his claim without first offering him the opportunity to comment upon that material. The independent country information related to the law and order situation in Bangladesh and the propensity for gangs to mask robberies and assaults as political activities. This information was not the reason the Tribunal rejected the applicant’s claim. The issue was the attack on the applicant’s house on 6 October 2001 which resulted in allegedly false claims being laid against him by the BNP. The applicant claimed he complained to the police about this attack which led his political opponents instigating false charges against him. In the report to the police the applicant blamed the attack on the BNP but the police did not pursue the matter because of the identity of the attackers. Independent country information provided background on the law and order situation in Bangladesh at the time of the alleged attack and the involvement of gangs in robberies and assaults.
The reason the claim of this attack was not accepted by the Tribunal was that there was no collaborative evidence by way of police report, witness statements, media items or medical reports which indicated the attack actually took place. There was no evidence that the attackers were members of the BNP as opposed to common criminals masking their activity as political in nature. Finally, the only support for the alleged attack was the applicant’s own assertion. The Tribunal rejected the allegation on a finding of credibility of the applicant. The independent country information was not a determining factor in the Tribunal’s consideration in its decision making process. Procedural fairness is subject to s.422B of the Act. This provides that the statutory procedures of Division 4 of Part 7 of the Act are “taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters it deals with”. There is now well established authority that the Tribunal has no duty to provide an applicant an opportunity to address every piece of general country information relevant to an assessment of a refugee claim. This is because it is a matter dealt with by s.424A of the Act and the duty is expressly excluded by s.424A(3)(a): see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW.
The applicant relied on the analysis in Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (“Moradian”) of s.51A (identical to s.422B but in Part 2 Division 3) of the Act. Counsel for the applicant also contended there is clear authority that argument based on denial of procedural fairness beyond the case is set out in Part 7 of the Act as to how the Tribunal is to conduct its proceedings here is not precluded.
Counsel for the respondent did not concede that there was any breach of the common law duty to afford procedural fairness as the applicant had not identified how there was such a failure. Merely failing to put specific independent country information to an applicant during a hearing is not sufficient to identify a denial of procedural fairness as defined by the High Court in Kioa v West (1985) 159 CLR 550.
The respondent submitted, s.422B precludes the application of any common law duty imposed upon the Tribunal to raise country information, not about the applicant, with the applicant. The applicant relies upon the decision of Gray J in Moradian. That decision, along with a similar decision of French J in WAJR v Minister for Immigration & Multicultural & Indigenous Affairs, interpret the application of s.422B so as to apply only to those “matters” within the particular provisions of Division 4. The respondent did not concede that either of these two cases is correctly decided, but accepted that they are binding on this Court. However, it is clear from the terms of s.424A that country information need not be put to the applicant for comment if that information is not about the applicant. The applicant’s claim in relation to lack of procedural fairness is therefore a “matter” within the provisions of Division 4. Other than complying with s.424A there is no further obligation on the Tribunal to raise those matters with the applicant: s.422B. Counsel for the respondent submitted that the first ground of review in the further amended application should be rejected.
In respect of the applicant’s second ground, the “False charge issue”, Counsel for the applicant submitted:
a)At the commencement of the hearing on 14 August 2003 the applicant provided some additional material to the Tribunal (CB pp.197-258). Most of the documents are listed by the Tribunal at CB pp.271.10-272.6. However, one document was neither listed nor considered by the Tribunal. Specifically, the applicant gave the Tribunal three records of court proceedings, first information reports for 2001, as follows:
i)
GR Case No 56/01 involving an alleged incident on
15 December 2001 (CB pp.207-220);
ii)
GR Case No 46/01 involving an alleged incident on
2 November 2001 (CB pp.221-234); and
iii)
GR Case No 123/01 involving an alleged incident on
8 October 2001 (CB pp.235-248).
b)However, the Tribunal only listed and considered the documents for two records of court proceedings, first information reports for 2001 (see CB p.272.2 and CB p.299.6). Hence, the Tribunal ignored considering material submitted by the applicant. Where the Tribunal ignores material which it is required to consider, it may fall into jurisdictional error. A leading recent case on this point is VAAD v Minister for Immigration & Multicultural & Indigenous Affairs (“VAAD”) per Hill, Sundberg and Stone JJ at [77]:
“…whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document”.
The applicant relied on the Full Court decision of VAAD which involved a very specific factual matrix where the applicant submitted a document with her protection visa application which established her association with a political organisation, the UMP. In VAAD the Court concluded that it was not possible to say in that case whether a consideration of the matter would have affected the outcome. The Tribunal in VAAD had reached a conclusion that a certain document was a forgery because the applicant had not provided the document to the delegate or prior to her response to the Tribunal’s s.424A letter. The Tribunal’s failure to accept the document as genuine was the result of the incorrect conclusion by the Tribunal as to when the document was provided by the applicant. No such conclusion was reached in this case, the consideration of the false charges did not rely on a false conclusion of fact.
Counsel for the applicant submitted that three sets of false charges, namely #36/1992, #123/2001 and #46/2001, had been made against the applicant. In respect of charge #36/1992, which was the earliest of the charges, the Tribunal accepted those claims. The applicant’s position was that even though the Tribunal rejected the two charges of 2001, it was open to the Tribunal, if it had properly looked at and made findings on the third set of charges, to have found that the third set of charges did occur. It was submitted that the Tribunal’s failure to make findings in relation to the third set of charges #46/2001 meant that it overlooked documents of importance to the applicant’s case and, on the basis of the principle contained in VAAD, there was jurisdictional error.
The applicant relied on the failure of the Tribunal to detail its consideration and findings in relation to the third false charge in its decision as a jurisdictional error. Firstly, the applicant’s evidence referred to two charges in 2001 and secondly, the applicant claimed the Tribunal did not consider that document. The decision of the Tribunal was very thorough and dealt with each aspect of the applicant’s claim. As noted in Minister for Immigration & Ethnic Affairs v Wu Shan Liang in the words of the High Court, a court should be reluctant, “to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law”. The respondent submitted that this is a situation of the kind to which Mason J referred in Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 40, where the factor was so “insignificant that failure to take it into account could not have materially affected the decision”.
Counsel for the respondent submitted that the Tribunal concluded that the charges in 2001 were not genuine, based on:
a)its findings on the credibility of the applicant;
b)its finding that the attack which precipitated the charges (CB p.278.8), on 6 October 2001 did not occur; and
c)in relation to the two charges examined in detail:
i)they did not correspond to his oral evidence;
ii)the Court records described him as absconding and unable to be found whereas he was at the same residential address for ten years or more and held office, he claims, in a legal political party; and
iii)the Tribunal finds that had the Police wished to do so, they could have found him.
It was submitted by the respondent that the applicant in this case provided documentary evidence of four charges but referred to only three in his evidence. One was in 1992 in relation to which the applicant’s evidence was that it was dismissed (CB p.278.1), hence the lawyer’s letter warning him that there were four outstanding charges was an error (CB pp.258, 278.1-4). The remaining two charges were described and were laid after the house attack on 6 October 2001 (CB p.278.8). The Tribunal made specific findings in relation to the 1992 charge and two of the 2001 charges (1992 case CB p.298.5) (2001 case CB pp.299.5-300.2). The charge in relation to events on 2 November 2001 was not expressly dealt with by the Tribunal. However, all the factors present in relation to the remaining two charges are also present in relation to that charge:
a)the Tribunal’s credibility finding;
b)the finding that the event precipitating the false 2001 charges did not occur;
c)that there is no suggestion in the applicant’s oral evidence (“damaging public property, robbery, disturbing the peace” (CB p.278.5) that is consistent with the significant allegation supporting the charge: “Burning, breaking destruction of Govt properties and anti state activities” (CB p.233); and
d)that the charge sheet indicates the accused has absconded which is inconsistent with the applicant’s evidence of his residential address in the period.
To the extent there was no express consideration of the second 2001 charge, it would have made no difference to the findings of the Tribunal and as such no jurisdictional error has been identified.
In respect of the applicant’s third ground, the “passport issue”, Counsel for the applicant submitted that on the basis of the applicant’s claims, there were charges (albeit false) laid against him by his political opponents at the time he left Bangladesh for Brunei in February 2002. In light of the charges, the Tribunal discussed with the applicant how he was able to leave Bangladesh. The discussion appears at CB p.277.2-277.6. The applicant explained:
“He said that whatever processes existed in Bangladesh, it was possible to pay to get around them. He had paid bribes to get his passport and to leave the country.” (CB p.277.5)
The Tribunal then found:
“The applicant claims that, because of the false charges and his fear of the BNP now in power, he was required to bribe to secure his passport and his safe exit to Brunei. The independent information on passport and departure processes in Bangladesh, which the Tribunal accepts, does not support this claim. Passports are cheap and easy to obtain in Bangladesh. True, bribes may sometimes be paid to facilitate processing, but the independent information on exit and passport clearance is that persons with arrest warrants or charges against them are denied passports and exit. His passport was obtained in his own name and used his address and date of birth. There was thus no attempt at deception. He said in his application form that he left his country legally and that there were no travel documentation difficulties. While he changed this in his evidence, the Tribunal finds that his claim as to travel documentation is not true.” (emphasis added) (CB 300.5)
The relevant country information on passport issue and exit controls is at CB pp.293.7-294.3. The country information indicated that, contrary to the statements of the Tribunal, Bangladeshi citizens with arrest warrants or charges can leave Bangladesh by bribery. Specifically, “an agent can circumvent ordinary checks on proof of identity/security checks” and “immigration officials at international airports are bribed”. In relation to arrest warrants, people with arrest warrants on them are not permitted to leave the country, but there are two exceptions. The first exception is where the borders with India are porous and the second exception, which Counsel for the applicant submitted may apply to the applicant’s situation, is where immigration officials at international airports are bribed. Counsel for the applicant submitted that country information purports the point that a person from Bangladesh, even if they have arrest warrants in relation to false charges, may still obtain a passport and leave the country through bribery. The applicant claimed he was required to pay bribes to secure his passport and safe exit to Brunei (CB p.300.5). In relation to this issue, the Tribunal stated:
“True, bribes may sometimes be paid to facilitate processing, but the independent information on exit and passport clearance is that persons with arrest warrants or charges against them are denied passports and exit.” (CB p.300.5)
Counsel for the applicant submitted that the Tribunal was using country information to support a reasoning process, that because the applicant was able to leave the country, this was the reason for believing the applicant’s claim that arrest warrants had been issued for him. It was further submitted that the country information, contrary to what the Tribunal stated, indicated that a person through bribery as the applicant claimed, can leave Bangladesh even if an arrest warrant has been issued. Counsel for the applicant relied on the High Court decision of Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf where the passages indicate the types of jurisdictional error and in particular, the Tribunal failure to have regard to information which the decision maker was required to have regard to and secondly, having regard to irrelevant information or taking into account information which the decision maker was not permitted to consider. Counsel submitted that the Tribunal had taken into account information which it was not permitted being information that was not correct and was contrary to country information and therefore it was a jurisdictional error.
Counsel for the respondent submitted that the applicant’s argument on this ground, and any jurisdictional error is difficult to identify. The Tribunal engaged with the applicant extensively in relation to obtaining a passport in his own name and leaving the country in his own name in circumstances where there were outstanding arrest warrants. The applicant claimed he had paid bribes to get his passport and to leave the country. The Tribunal reproduced the relevant country information which established that it is possible to circumvent ordinary checks on proof of identity and immigration officials at international airports are bribed. The Tribunal concluded however that the applicant, in obtaining a passport in his own name and leaving the country using his own name, in light of the country information it had considered, had not needed to bribe anyone to secure a passport and leave Bangladesh. This is a finding of fact which the Tribunal reached after a consideration of the applicant’s inconsistent protection visa application and its general finding that the applicant was not a credible witness. The applicant has not identified a jurisdictional error in relation to the findings based on the passport.
In respect of the “relocation issue”, Counsel for the applicant submitted the Tribunal found that the applicant could relocate within Bangladesh. The Tribunal discussed the matter with the applicant (CB p.279) and then noted its findings:
“In relation to re-location, from his evidence the applicant had language skills, a tertiary education, a well off family, overseas work and travel experience and party organizational skills. With his low if any political profile, the chances of the BNP devoting the necessary effort to find him and targeting him elsewhere in the country are so low as to make that not a realistic claim. From this information, the Tribunal finds that relocation within Bangladesh is practical for him, should he wish not to return to his home area.” (CB p.302.2)
Counsel for the applicant submitted that there are decisions of the Federal Court that have noted the interconnectiveness between findings such that if jurisdictional error is found in relation to one matter, there is an independent finding that makes the Tribunal decision immune from being set aside. Counsel argued that the Court needed to look at the interconnectiveness between the findings. In Singh v Minister for Immigration & Multicultural & Indigenous Affairs (“Singh”) the Tribunal made various findings against the applicant in rejecting his claim for a protection visa, including that he could relocate within the country. In that case His Honour Merkel J found that a report of a Foundation provided to the Tribunal was ignored because the report arrived shortly before the Tribunal had completed its reasons for decision and the Tribunal thought it was functus officio but Merkel J held that it was not. His Honour found that, as a result, the Tribunal’s failure to consider the report involved jurisdictional error. At [39] His Honour noted:
“It was also submitted that relief should be refused in any event as the Foundation’s report did not disclose any new material and therefore did not deny the applicant ‘the possibility of a successful outcome’.”
At [40] His Honour noted that it is appropriate to consider the relevance of the Foundation report to the issues before the Tribunal. At [46] His Honour noted that the report was also material to the issue of relocation. It was the Tribunal’s finding that its reason for relocation was based in part upon other matters. Counsel for the applicant acknowledged the facts of each case were unique. However, if the Court was to find that there was a jurisdictional error in relation to one or more of the matters submitted, the relocation finding would be effective. It was argued that if the Tribunal had looked at the set of charges in the Court documents, which it appears not to have looked at, and if it had made a finding in relation to those documents, then it may have found that there was one charge in 2001 which had been issued against the applicant. If the Tribunal had made that finding then it would obviously have had an effect on whether the applicant was able to relocate within Bangladesh.
Ms Morgan for the respondent submitted that regardless of what happened in relation to the other grounds, the issue of relocation is an alternative basis of the Tribunal’s findings and would therefore eliminate the need to remit the matter. The issue in Singh was a submission or report received by the Tribunal between the date of the Tribunal signing off on its decision and the date of the Tribunal handing down the decision formally. The Tribunal decided it was functus officio because it had signed off on the decision. Unfortunately, in that submission, the issue of relocation was raised and if the Tribunal had taken that document into account, which His Honour Merkel J found it should have, it would have necessarily had to consider the relocation point. The interconnectiveness to which Counsel for the applicant referred was a direct interconnectiveness which is not present in the current case. Ms Morgan argued that it could not be said that considering the false charge was interconnected to the finding on relocation and that the relocation issue stands alone. It is not affected by any of the other pleaded jurisdictional errors and even if one of the other jurisdictional errors is found, it does not affect the finding. Counsel referred to the Court to VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (“VBAP of 2002”) per North J where His Honour considers the relocation issue and whether a point was found in relation to procedural fairness so infected the finding on relocation. His Honour did not make this finding and noted that there were four findings of the Tribunal and they all stood independently.
The respondent noted that the applicant does not challenge the finding on relocation. Rather the applicant relies on the decision of Merkel J in Singh to assert that a jurisdictional error validly found on any of the other bases of the Tribunal’s decisions, necessarily means the first respondent may not rely on the alternative relocation ground. The applicant’s reliance on this decision is misplaced. Firstly, Singh involved the application of an earlier version of the relevant provisions of the Act, not applicable in this case. Secondly, Singh does not support the proposition put by the applicant: that the alternative finding on relocation falls along with any procedural fairness finding. The facts in Singh were very specific: a submission had been forwarded and received by the Tribunal after the decision was ‘made’ but prior to the decision being handed down (and therefore ‘made’ within the statutory framework). The Tribunal did not consider the submission. His Honour held that the Tribunal’s decision that it was functus officio after a decision was ‘made’ but prior to it being handed down was an error. His Honour also held that the submission dealt with matters in relation to relocation, so the same finding affected the alternative finding on relocation. Therefore there was “interdependence” between the relocation ground and the more substantive ground.
Counsel for the respondent submitted that this factual scenario may be distinguished from the current matter. The Tribunal has made two separate findings. The first is that it does not believe the applicant and his claims of a well-founded fear of persecution. The second is that the applicant has relocation available to him. These findings are not related in any way and the decision of Singh is not applicable. More applicable is the decision of VBAP of 2002 per North J at [33], where his Honour identified four bases for the Tribunal’s decision and accepted that relocation was an independent basis and a successful finding of jurisdictional error in relation to procedural fairness did not affect that part of the decision.
Conclusion
For the reasons set out above, I have been unable to identify any ground that the Tribunal has committed jurisdictional error. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 30 September 2005
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