SZEWH v Minister for Immigration
[2005] FMCA 965
•1 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEWH v MINISTER FOR IMMIGRATION | [2005] FMCA 965 |
| MIGRATION – RRT decision – Bangladeshi feared false charges of terrorism and murder – disbelieved by Tribunal – no error found |
| Migration Act 1958 (Cth), ss.474(1), 483, Part 8 Judiciary Act 1903 (Cth), s.39B Evidence Act 1995 (Cth), s.135 |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZEWH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 2113 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 1 July 2005 |
| Delivered at: | Sydney |
| Delivered on: | 1 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr J Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2113 of 2004
| SZEWH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth), which challenges the decision of the Refugee Review Tribunal dated 26 May 2004 and handed down on 16 June 2004. The Tribunal affirmed a decision of the Delegate refusing to grant a protection visa to the applicant.
Mention is made in the Court Book to an application for a protection visa by the applicant's wife, and to her appeal which was “dealt with” by the same Tribunal member. However the present Tribunal decision concerned only an application by the husband, and the present judicial review proceeding concerns him only.
The applicant arrived in Australia on a three months visitor's visa from Bangladesh in August 2002. On 24 September 2002 an application for a protection visa was lodged on his behalf by a firm of solicitors, Adrian Joel and Company. The application itself did not contain a statement by the applicant nor attach one, but the solicitors’ covering letter set out brief circumstances which they said had been provided on instructions. The solicitors also forwarded some material in support of the claims, including what purported to be documents concerning charges against the applicant arising out of his involvement in Bangladesh politics as a member of the Awami League.
Some further material was subsequently forwarded to the Tribunal in the course of its proceeding, and the Tribunal received further evidence from the applicant in the course of two hearings held on 1 September 2003 and 11 November 2003.
On the material before me I consider that the Tribunal sufficiently identified from all of that material the applicant's claims for refugee protection in Australia as follows:
The Applicant husband states that he is a Bangladeshi national. He was born in 1971. He arrived in Australia in August 2002. He travelled on his Bangladeshi passport. He had been granted a visa in June 2002. He had previously travelled to India, Thailand, Nepal, and China.
The Applicant states that in Bangladesh he conducted a business in importing spare machine parts from China. It was a successful business.
The Applicant states that he is unwilling to return to Bangladesh as he fears that he will be persecuted for reasons of his political opinion. He claims that he will be arrested at the airport and imprisoned on false charges which have been brought against him by the BNP government. He claims that the government will seek to harm him because he had been an Awami League supporter. He expects that he would be seriously mistreated in prison.
The Applicant states that he has been charged with detonating a bomb at an Awami League office in June 2001. The bomb killed several people. The Applicant states the charge was laid against him in June 2002. The Applicant has submitted a document which purports to be a police report confirming that charge.
The Applicant states that in June 2002 he was also charged with blocking a road and terrorism in 1998. The Applicant has submitted a document which purports to be a police report confirming that charge.
The Applicant has also submitted two other documents which purport to be warrants for his arrest. The documents were apparently signed in September 2002.
The Applicant has submitted a letter from a district official of the Awami League stating the Applicant had been an active member of the Awami League. The letter also stated that the Applicant was personally known to the official and was a devoted leader, pious and peace loving. The official stated that it is reported that the Applicant is now living abroad to avoid police action.
The Delegate refused the claim in a decision made on 10 December 2002, and the applicant's appeal to the Refugee Review Tribunal was brought by Adrian Joel and Company on 24 December 2002.
In its statement of reasons the Tribunal identified the applicant's claims as set out above, and then referred to some of the questioning of the applicant at the two hearings. According to the Tribunal and to what the applicant has said to me today, it questioned him about how he had been able to leave Bangladesh while he was the subject of charges in relation to such serious matters. The applicant gave his explanations.
The Tribunal also said that it put to the applicant other aspects of his case which were of concern to it. It also records the applicant making general statements concerning what he feared if he returned to Bangladesh:
The Applicant states that he did not commit the offences for which he has been charged. It was put to the Applicant that he was suggesting that the Bangladeshi authorities were sticklers for following legal niceties, at least for people like the Applicant. In view of that and his stated innocence, then surely he would be acquitted of any charges.
The Applicant stated that the government will not treat him fairly as the situation has now changed. He states that he would never get to trial. He would die in jail first. By the time he got a fair trial it would be ten years and he would be dead already. He says that anyone arrested for these sorts of offences cannot get bail they must stay in jail for six months.
Although there is no reference in the Tribunal’s statement of reasons, from what the applicant has told me today it seems that the Tribunal also put to him in the course of the hearing its concern that documentation presented to support claims of persecution in Bangladesh may not advance an applicant's case, due to the prevalence of fabricated documents. On the present evidence before me, I am not satisfied that this concern was not put to the applicant in the course of the hearing.
The Tribunal extracted a lengthy passage from a United States Department Country Report released in March 2003 concerning human rights practices in Bangladesh. This provided a long analysis of the general situation facing members of opposition parties in Bangladesh, and included reference to criminal charges being laid and how they were dealt with in particular cases. The Tribunal also referred to Amnesty International information on fraudulent documentation presented in support of refugee applications concerning Bangladesh.
Plainly, on all of this material, the assessment of claims and documents such as were presented by the present applicant is not an easy matter for an administrative decision-maker such as this Tribunal.
Under the heading ‘Findings and Reasons’ the Tribunal referred to the country information, and accepted that “there undoubtedly are people in Bangladesh at risk of persecution. This would include some opposition political figures.”
The Tribunal said it was satisfied that the applicant was a Bangladeshi citizen and that he may have been an Awami League supporter. However, the Tribunal did not accept the claims of the applicant that he would be arrested on return to Bangladesh on the basis that he had been charged with serious offences, including terrorism and murder. It said:
I do not accept that the Applicant has been charged with any serious offences. I found the Applicant’s evidence regarding these charges to be unconvincing. I found his explanation as to how he managed to avoid arrest and leave Bangladesh despite facing such serious charges to be unconvincing and internally inconsistent. That explanation was also at odds with country information. It is clear that from the country information that far from being unwilling to arrest suspects while waiting for the paperwork the authorities use arrests and detention as a weapon against their political opponents. It is inconceivable that the Applicant could have avoided arrest as he claims if he had been charged with these offences.
I note that there is evidence of document fraud in relation to applications for asylum from Bangladesh. In view of the evidence around the documents I am not persuaded that the documents are genuine.
I do not accept that the Applicant is at any risk of arrest should he return to Bangladesh. While he has been a supporter of the Awami League he has come to no harm as a result of his political opinion. Indeed he came to no harm at a time when the new government was actively seeking to harm it’s political opponents in the period following the election. Many of the government’s opponents were arrested and detained. The Applicant was not. This would indicate that he was not considered by the new government to be a target.
I am not persuaded that there is any real chance, in the foreseeable future that the Applicant will come to any serious harm for reasons of his political opinion.
I do not accept that there is a real chance that the Applicant will be persecuted should he return to Bangladesh.
I am not satisfied that the Applicant has a well founded fear of persecution. I am not satisfied that he is a refugee.
CONCLUSION
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
I have carefully considered the Tribunal's reasoning, and am unable to find in it any misapprehension as to the relevant law to be applied, and am not satisfied that the Tribunal's decision was affected by jurisdictional error.
It is necessary for me to be able to make such a finding before I have power to make the orders sought by the applicant, which is that his case should be sent back to the Tribunal. This arises from the nature of the Court's jurisdiction.
Section 483A of the Migration Act gives the Court: “The same jurisdiction as the Federal Court in relation to a matter arising under this Act.” The Federal Court's jurisdiction to give the relief sought by the applicant is under s.39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 and subsequent cases, the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affection by jurisdictional error. I do not have the power myself to decide whether the applicant should be believed or qualifies for a refugee visa.
The applicant has not been represented in his proceedings in this Court, but has endeavoured to find arguments that he thinks will allow the Court to make the orders he seeks. These are contained in an application filed on 9 July 2004, in an affidavit filed on the same date, in an amended application filed on 26 November 2004, and in a document headed “Applicant's Submission on Appeal” filed on 16 June 2004.
These documents state innumerable grounds for the application. For example, in the original application the grounds of the applications are recorded in paragraphs (a) through (n), which has three particulars, and then there are a further three grounds. The amended application contains five grounds with multiple particulars, and within some of those grounds there are rolled up complaints. The “submissions on appeal” contains further diffuse arguments which are not expressly related to his applications.
I endeavoured at the start of today's hearing to induce the applicant to give focus and content to his grounds for review, by firstly seeking his explanation of the general and unparticularised grounds that appear in paragraphs (a) through (e) of his original application. Without particulars, these grounds cannot meaningfully be considered by the Court. I also invited him to think whether there was duplication between the grounds in his various documents and whether he wished to maintain all of them. He said he did.
My efforts to obtain explanation for unparticularised grounds were fruitless, since the applicant's mind was focussed on explaining to me why he fears harm if he returns now to Bangladesh, and on arguing factual points going to the merits of his case which he thinks the Tribunal did not properly appreciate. I concluded that the applicant could not understand what I pointed out to him: that these are not matters that advance his application in this Court.
I have considered all the matters raised in writing and orally by the applicant, but I do not propose myself to address separately in these reasons each of the complaints made in his documents. Mr Potts, for the Minister, has attempted an analysis and consolidation of the applicant’s grounds for review. I think he has made a thorough effort in this respect, and I adopt and accept his analysis and his submissions on why no jurisdictional error has been made out. I attach the relevant parts of his submission in the Schedule to these reasons.
Generally, I am not persuaded that the Tribunal has failed to consider any claim for refugee status made by the applicant. I consider that it did identify and address his claims insofar as it was required to by law. Notwithstanding the relative terseness of the Tribunal’s reasoning, I am not persuaded that it has failed to address the arguments and evidence put forward by the applicant in support of his refugee claims. I consider that the applicant's submissions and grounds directed at heads of jurisdictional error based on the failure to have regard to relevant matters is not made out.
I expressly raised with the applicant unparticularised contentions in his documents claiming that he was denied an opportunity to present his claims and to answer adverse matters, and in particular that the Tribunal erred by “not permitting me to give evidence in accordance with s 425 of the Act”. I invited the applicant to give some particularity to these contentions. He was not able to point to any adverse matter that was considered without being put to him by the Tribunal, and he did not maintain a claim that this had happened or such a failure had occurred in the course of the hearing.
He did however maintain that the Tribunal: “did not give me a chance to talk”, and that “the only thing he asked is how I crossed the border.” When I pointed out to him that he had not presented evidence to allow me to assess whether there was a failure in this respect by the Tribunal in the course of its hearing, he said that he had the tapes of the hearings with him, and implicitly tendered these for me to listen to. I declined to receive the tender, and gave the following reasons.
The applicant had been on clear notice since the first Court date on 12 October 2004 that evidence of what happened at the hearing could, and should, be put before the Court by way of a transcript attached to an affidavit. The applicant reads English and signed short minutes of orders made on that occasion, when he also had the assistance of a Bengali interpreter. Paragraph 2 directed him to file and serve:
Any affidavit containing additional evidence relied upon, including a transcript of the Tribunal hearing, by 7 December 2004.
In view of the vagueness of the applicant's complaints about the hearing, I considered that my listening to the whole of the tapes myself would not be an appropriate proceeding, and indeed would: “cause or result in undue waste of time” within s.135 of the Evidence Act 1995 (Cth). It would have been necessary to have conducted such a listening in the presence of the Minister's representatives as well as the applicant, and their submissions on what they had listened to would probably have been of little assistance in the absence of a written record to refer to, or would have become protracted by difficulties of referring back to relevant parts of the tapes.
Moreover, I considered that on the material and submissions made by the applicant to me there was little prospect of the applicant being able to make out his contentions, in particular because the Tribunal itself in its reasons has referred to evidence being given by the applicant which was not “only about how he had crossed the border”. When I pointed this out to the applicant he had no relevant response.
Finally, I offered the applicant a last opportunity to obtain a written transcript and to put it before the Court, indicating that I would allow one month for this, but the applicant indicated that it would be too expensive for him to obtain a transcript, and said that he had already made his point to me about how he had left Bangladesh and feared to return.
In all the circumstances, I decided not to adjourn the proceedings, and have made my decision today on the material before me. Nothing in the material suggests to me that there is any basis for a contention that the Tribunal conducted its hearing in a manner giving rise to an apprehension of bias, or lack of good faith, or without affording the applicant reasonable opportunities to give his evidence.
For the above reasons, including the submissions of the Minister's counsel set out in the Schedule which I accept, I have been unable to identify jurisdictional error affecting the Tribunal’s decision. It is therefore a “privative clause decision” for which relief is precluded by s.474(1) of the Migration Act, and I must dismiss the application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 21 July 2005
Schedule
The applicant filed an application in this Court on 9 July 2004 seeking judicial review of the Tribunal’s decision. He filed an amended application on 26 November 2004. It raises five lengthy and narrative grounds of review. The applicant filed written submissions on 16 June 2005. They do not appear to be submissions solely in relation to grounds of review advanced in the amended application, and indeed, stray beyond the bounds of the grounds articulated in the amended application.
Findings of fact and the merits of the Tribunal’s decision
Each of the grounds of review articulated in the amended application and also parts of the written submissions, to a greater or lesser extent, involve a challenge to the Tribunal’s findings of fact and the merits of its decision. To engage in fact finding about the merits of the applicant’s case is no part of the function of the Court in dealing with an application for relief under s 39B of the Judiciary Act 1903 (Cth). Whatever be the boundaries of jurisdictional error, they do no comprehend errors of fact as to the merits of the case put to the Tribunal: NAHI v MIMIA [2004] FCAFC 10 at [10]. It is necessary for the applicant to establish jurisdictional error.
Failure to investigate/make inquiries
The applicant alleges that the Tribunal failed to investigate the applicant’s claims (ground 1) or to make “due enquiry” (ground 2). The Tribunal was under no duty to investigate the applicant’s claims nor is it under any duty to consider utilising such permissive statutory powers as it had which might enable it to investigate: see s 427(1)(d), VCAK of 2002 v MIMIA [2004] FCA 459 at [27]; WAGJ of 2002 v MIMA [2002] FCAFC 277 at [21], [24]-[25]; W389/01A v MIMA (2002) 125 FCR 407 at [74]-[78].
Failure to consider documents
The applicant asserts that the Tribunal failed to consider “the documents I have provided at the Tribunal in support of my claims alleging irregularities of such documents” (ground 1). The Tribunal plainly considered the applicant’s documents. It did not regard them as genuine.[1]
[1] CB at 176.2.
Made its decision based on the US State Department Country Report
The applicant asserts that this report “cannot be regarded as independent”, and that “[t]hese reports are influenced by the government (ground 1). The weight to be given to the country information was a matter for the Tribunal. As the Full Court said in NAHI v MIMIA [2004] FCAFC 10 at [11] (emphasis added):
“The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”
Failed to consider politically motivated case against me and warrant of arrest and charges
The applicant has alleged (grounds 2 and 5) that the Tribunal failed to consider the false cases, warrants and charges made against him. That is simply untrue. The Tribunal considered these matters.[2] It simply did not accept the applicant’s claims in this regard.
[2] CB at 175.7-176.5.
Failure to consider my failure to leave Bangladesh on my first attempt
It is alleged that the Tribunal failed to consider the applicant’s failure to leave Bangladesh on his first attempt (ground 2). The Tribunal referred to the applicant’s claims that he had failed to leave Bangladesh on the first attempt.[3] It plainly did not fail to consider this matter.
[3] CB at 155.7-156.5 and 175.10-176.2.
Denial of procedural fairness
The applicant asserts that he was denied procedural fairness because the Tribunal did not give him the opportunity to respond to any adverse material that it possessed prior to making a decision (ground 4). The applicant does not identify the material to which this allegation refers, or how the Tribunal relied upon it.
Section 422B applied in this case. By virtue of that section, Division 4, Part 7 of the Act exclusively prescribed the requirements of the natural justice hearing rule in relation to the matters that Division 4 Part 7 deals with. The operation of s 422B, and the presence of s 424A in the Act, meant that s 424A covered the field in relation to the Tribunal’s obligation to disclose adverse information to an applicant for comment. In this case, s 424A did not apply to independent country information as it fell within the exception in s 424A(3)(a): MIMIA v NAMW [2004] FCAFA 264; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [26]-[30]. It also did not apply to information provided by the applicant to the Tribunal. There was no breach of s 424A. There was no other common law obligation to afford natural justice in relation to this information: QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [11]; SZECH v MIMIA [2005] FCA 246 at [34].
In his written submissions[4] the applicant submits that it was not put to him during the hearing that his evidence was vague, inconsistent and unconvincing. The Tribunal was under no obligation to do so. The Tribunal is not obliged to expose its reasoning process or subjective determinations for comment to the person affected: Re Minister for Immigration; Ex parte S154/2002 (2003) 201 ALR 437 at [54]; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1993) 49 FCR 576 at 591. Nor was the Tribunal required by the rules of procedural fairness to give the applicant a running commentary on his prospects of success so that there was a full warning of all possible reasons for failure: Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57 at [31].
[4] At 4, paragraph numbered 3.
Tribunal did not permit the applicant to give evidence
The applicant asserts that the Tribunal did not permit him to give evidence in accordance with s 425 (ground 5). This is demonstrably wrong. The applicant attended a hearing and gave evidence.[5]
[5] CB at 154.6.
Actual bias and lack of bona fides
The applicant asserts that the Tribunal member failed to make proper attempts with an open mind to clarify alleged inconsistencies and resolve any contradiction in a further hearing or grant an opportunity to give an explanation (ground 5(c)). The applicant also asserts that the decision was not a bona fide attempt to act in the course of the Tribunal’s authority (ground 5).
In MIMIA v Jia (2001) 205 CLR 507 Gleeson CJ and Gummow J observed that a party asserting actual bias on the part of a decision-maker carries a heavy onus. The allegation must be “distinctly made and clearly proved”: Gleeson CJ and Gummow J at [69]; and Kirby J at [127].
Bias in the form of pre-judgment occurs where the decision-maker’s mind is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia at [71]-[72]; and MIMIA v SBAN [2002] FCAFC 431 at [10] per Keifel J.
An allegation of actual bias concerns the state of mind of the decision-maker. As von Doussa J observed in SCAA v MIMIA [2002] FCA 668 at [37] a finding of actual bias is a grave finding and cannot be made lightly. The question is whether the decision-maker’s mind is open to persuasion.
There is nothing in the facts of this case to justify a finding of actual bias.
There is nothing on the material before the Court to suggest that the Tribunal’s decision was not a bona fide attempt to exercise the jurisdiction conferred on it.
Failure to consider socio-political changes in the foreseeable future
The Tribunal was plainly concerned with the risk into the foreseeable future. It found that there was no risk of serious harm for reasons of the applicant’s political opinion into the foreseeable future.[6] That was all that it was obliged to do.
[6] CB at 176.5.
Illogical findings
In his written submissions[7] the applicant submits that the Tribunal’s findings as to “the nature of the evidence” were not based on probative evidence and were illogical. This is plainly an allegation without substance. There was clearly a rational and logical process of reasoning involved in the manner in which the Tribunal dealt with the evidence and the applicant’s claims. The material on which its conclusions were founded was logically probative in the sense that the conclusions are able to be seen to follow, as a matter of logic, from the premise.
[7] At 3, paragraph numbered 4.
Failure to consider possibility that it was wrong
In the applicant’s written submissions,[8] the applicant submits that the Tribunal should have considered the possibility that its findings of primary fact were wrong before reaching an affirmative conclusion that the applicant did not have a well-founded fear of persecution.
[8] At 3, first dot point after paragraph numbered 4.
Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong: MIEA v Guo (1997) 191 CLR 559; MIMA v Rajalingam (1999) 93 FCR 220 at [56] and [140].
Failure to properly consider whether non-violent harassment can fall within notion of serious harm under s 91R
In his written submissions[9] the applicant asserts that the Tribunal, having received evidence about “non-violent harassment”, did not properly consider whether “non-violent harassment” could fall within the notion of serious harm under s 91R(1) of the Act. The only so-called evidence of “non-violent harassment” was an assertion in the covering letter to his visa application that “members of the Bangladesh Nationalist Party (BNP) harassed him and did so physically and psychologically”.[10] The example that the letter went on to provide however, was the false charges that the applicant claimed had been brought against him - a matter which the Tribunal plainly considered. At the hearing, the applicant told the Tribunal what he feared might happen to him in Bangladesh.[11] The Tribunal plainly considered those matters as well. There is no indication on the face of the Tribunal’s reasons that it failed to consider an integer of the applicant’s claim or that it misapplied the notion of persecution.
[9] At 4.
[10] CB at 2.
[11] CB at 154.10-155.1.
No Reviewable Error
The Tribunal’s decision does not otherwise disclose any reviewable error. The applicant has not demonstrated any error that would lead to the conclusion that the Tribunal failed to exercise or exceeded its jurisdiction, or that it breached any of the Hickman provisos.[12] The applicant has not therefore demonstrated any entitlement to relief.
[12]R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598.
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