SZEZJ v Minister for Immigration - [2005] FMCA 745

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEZJ v MINISTER FOR IMMIGRATION

[2005] FMCA 745

MIGRATION – Visa – protection visa – refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of Bangladesh – procedural fairness – no failure to grant procedural fairness – no reviewable error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.425; 475A

Abebe v Commonwealth (1999) 197 CLR 510
Craig v South Australia (1995) 184 CLR 163
Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural & Indigenous Affairs ex parte; S20/2002 (2003) 198 ALR 59 at [49]
Re Minister for Immigration & Multicultural & Indigenous Affairs ex parte; Durairajasingham (2000) 168 ALR 407
R v Hickman ex parte; Fox and Clinton (1945) 20 CLR 598
R v Murray; ex parte Proctor (1949) 77 CLR 387
R v Commonwealth Rent Controller ex parte; Theiss Repair Pty Ltd (1948) 77 CLR 123
Walton v Phillip Ruddock [2001] FCA 1839

Applicant:

SZEZJ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2366 of 2004

Judgment of:

Scarlett FM

Hearing date:

20 May 2005

Date of Last Submission:

20 May 2005

Delivered at:

Sydney

Delivered on:

20 May 2005

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondent:

Mr McInerney

Solicitors for the Respondent:

Phillips Fox

ORDERS

The application is dismissed.
The Applicant is to pay the Respondent’s costs fixed in the sum of $4,600.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2366 of 2004

SZEZJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

This is an application for a review of a decision of the Refugee Review Tribunal. The decision was made on 8 June and handed down on

30 June 2004.
The decision of the Tribunal was to affirm the decision of the delegate of the Minister not to grant a protection visa to the applicant.
The applicant is a citizen of Bangladesh. He arrived in Australia on

29 March 2003, and applied for a protection visa on 2 April.

A delegate for the Minister refused the application on 20 May 2003 and on 18 June the applicant sought a review by the Refugee Review Tribunal.
The applicant attended a hearing of the Tribunal on 25 May 2004 where he gave oral evidence. He said that he was an actor by profession, having appeared regularly on television in Bangladesh.
The Tribunal heard oral evidence and the Tribunal member asked the applicant a number of questions. The applicant submitted video recordings of various productions in which he has performed and submitted a number of documents showing his qualifications and history as an actor.
He also included documents relating to his political activities for a political party known as the Awami League. He also provided some Court documents.
The applicant claimed that he had a well founded fear of persecution for a convention reason arising out of his political beliefs and activities. He told the Tribunal that he was a leading activist for the Awami League. He described how he had been the subject of a false accusation which led to false criminal charges against him. He told the Tribunal that he had gone into hiding for about four or five months. This was in order to avoid being falsely prosecuted.
He told the Tribunal that as a result of his political activities, he had in fact been kidnapped and tortured around the time of the general election in 2001.
He also told the Tribunal that he feared harm if he were to return to Bangladesh. He was concerned that the false case that had been lodged against him could well be revived by his political enemies. He was also fearful of being targeted by Islamic Fundamentalists.
He told the Tribunal that he was disfavoured by the current government and that he could not expect any help from the police. The Tribunal asked him about his life as an actor, and raised with him issues as to how he had been able to leave Bangladesh travelling on a lawful passport without being apprehended.
The Tribunal also expressed disbelief that he could continue to be employed and appear regularly on television on a government television station, some 18 months after he had failed to appear in Court on a criminal charge.
The Tribunal made findings and gave reasons. The findings were not favourable to the applicant's case. The Tribunal member, at page 183 of the Court Book, said, and I quote:
I had the benefit of observing the applicant give oral evidence for a considerable period of time. His evidence was at times confused and confusing, evasive and non-responsive.

One accepts that there is some difficulty for applicants in these circumstances, and particularly with the use of interpreters. However, I drew the clear impression that the applicant was not telling the truth. I find his evidence unreliable. Indeed, I am satisfied his claims are fabricated.
The Tribunal member said, at page 184, that he drew support for his findings from the fact that the applicant, who was a favourite actor in Bangladesh, could have his passport renewed by authorities, and then use it to leave the country without coming to the attention of the security authorities. The Tribunal member also said that he found it implausible that the government controlled Bangladesh television would continue to broadcast a regular television program which provided a vehicle for the applicant, as a leading member of the opponent political party, the Awami League, and continue to pay him for the privilege.
The Tribunal member said that he accepted the independent country information, which showed that there was some community violence following the elections in October 2001. He went on to say that much of the reports of violence were exaggerated, but the situation still returned to normal.
The Tribunal was not satisfied that the applicant has a well founded fear of persecution for a convention reason.
The applicant has filed a detailed submission in which he sets out the grounds upon which he relies. I have read that document and I have asked the applicant a number of questions about the contents of the document. The applicant has also made an independent submission.
I am satisfied that the applicant has explained clearly the points which he seeks to make in his submission.
I have also read the written submission prepared by counsel for the respondent, Mr McInerney. I have also heard a brief oral submission from Mr McInerney, in which he replies to the various points made by the applicant this morning.
The applicant's claim for relief relies on the following points, which I will summarise. First, he says that the Refugee Review Tribunal did not follow the proper procedure as required by the Migration Act. Second, he said that the decision of the Refugee Review Tribunal was affected by an error of law amounting to jurisdictional error and issues of procedural fairness.
Third, the applicant says that the letter of invitation to hearing forwarded to him by the Tribunal on 9 September 2003 was misleading. It was misleading to the extent that he relied on that letter to his detriment.
Fourth, the applicant said that his application had not been taken into consideration properly, and that this amounted to a denial of procedural fairness.
Fifth, the applicant says that the Tribunal did not rely on the part B documents which had been considered by the delegate of the Minister in making the decision under review and did not have access to them.
Sixth, the applicant says that the Tribunal ignored relevant evidence and made a finding in the face of contradictory independent evidence, and that this constitutes a jurisdictional error, being a breach of procedural fairness.
The applicant has given a number of examples of evidence which he says supports his claims. He has also referred the Court to a number of decisions of the High Court of Australia. He has referred the Court to the decision of the Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2.
He has referred to Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 and to the decisions in

Walton v Phillip Ruddock
(2001) FCA 1839, and Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602, and Craig v South Australia (1995) 184 CLR 163.
He has also relied on the decision of Abebe v Commonwealth (1999) 197 CLR 510, and the well known case of R v Hickman;
ex parte Fox and Clinton (1945) 70 CLR 598.
I am referred to the work of Mark Aronson and Bruce Dyer on administrative law, and to the decisions in R v Commonwealth Rent Controller; ex parte Theiss Repair Pty Limited (1948) 77 CLR 123, and R v Murray; ex parte Proctor (1949) 77 CLR 387.
In respect of the applicant's claims generally, Mr McInerney of counsel makes the following submissions:
(1)The applicant has provided no evidence of what actually occurred before the Refugee Review Tribunal.
(2)There is no evidence that the Refugee Review Tribunal did not have the part (B) documents previously referred to.
(3)There is no evidence that the applicant indicated to the Tribunal that he had further documents that he wished to submit.
(4)He went on to say there was nothing to support the applicant's claim that there was a denial of procedural fairness.
(5)He pointed out that the decision of the Refugee Review Tribunal showed that the applicant's case failed on a credibility basis.
In his outline of submissions, Mr McInerney reiterated his submission that the applicant's claims had been unsuccessful on the basis of credibility, and said that an adverse finding as to credibility is a finding of fact par excellence. In that he referred to the decision of Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407. Being a decision of McHugh J.
He went on to say that the applicant's evidence lacked such credibility that to quote McHugh and Gummow JJ in Re Minister for Immigration & Multicultural & Indigenous Affairs ex parte; S20/2002 (2003)

198 ALR 59 at [49], that the well had been poisoned beyond redemption.
Turning to the applicant's claims in detail. The applicant said that the proper procedure had not been followed by the Tribunal. It appears to me that the evidence of what went on at the Tribunal is contained in the Court Book, which includes, of course, the Tribunal decision itself. The applicant said that if the Court were to listen to the tape of the RRT hearing, that the Tribunal's failure to follow proper procedure and in fact a denial of procedural fairness would become apparent.
The applicant said he did not have the funds either to be legally represented or to prepare a transcript of the RRT hearing. He set out the reasons why the proper procedure had not been followed, and why, for that matter, that there had been a denial of procedural fairness.
He said that he had furnished documents at the Refugee Review Tribunal and believed that the Tribunal member had either not read them at all or had only read parts of them, and he relies on the fact that only read parts of that material were in fact referred to by the Tribunal member. He claims that the Tribunal member did not investigate all of his claims.
Any part of the material that the Tribunal member quoted was either irrelevant, or against him.
Against that, it should be put that there is no requirement on a decision maker to quote every part of all the material presented in evidence.

If relevant evidence has been ignored, that will become clear. Or, if a finding is made which is not open on the evidence, clearly that will be referred to. But the obligation to discuss every point is not one that a decision maker has to make.
The question of the part B documents, or their absence, is a matter that concerns the applicant. The part B documents are referred to on page 48 of the Court Book. The fact that the Tribunal did not refer to those in any detail is not evidenced, to my mind, that the Tribunal did not have those documents or had not read those documents. In my mind, that claim must fail.
The claim of procedural fairness, or its lack, relies on not only the applicant's claim of the Tribunal not having the part B documents, and the applicant's claim that the Tribunal member did not peruse his documents with any care, but also on the fact that he takes exception to the terms of the letter forwarded to him by the Refugee Review Tribunal inviting him to a hearing. That letter was sent on

9 September 2003.
I pointed out to the applicant that the letter that was sent was in fact a letter that is a standard form letter for the Refugee Review Tribunal, and it fulfils the requirements set out in s. 425 of the Migration Act.
The particular letter sent on 9 September referred to a hearing which was scheduled to take place on 16 October 2003. As it turned out, that did not happen and a later hearing was scheduled, which was the matter under review.
The applicant takes issue with the statement in the letter, which I quote:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
Section 425 of the Migration Act is the section which requires the Refugee Review Tribunal to invite the applicant to appear at a hearing in certain circumstances. It should be made clear that s.425 does not provide that a hearing will be held in every case. It is only in certain classes of cases that there is a necessity for a hearing.
I will read s. 425 onto the record, so that I may make it quite clear:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if:
(a)The Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it, or
(b)The applicant consents to the Tribunal deciding the review without the applicant appearing before it, or
(c)Subsection 424(c)(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of the section apply, the applicant is not entitled to appear before the Tribunal.
In this case the letter was being used to invite the applicant to attend the hearing because the Tribunal had done as it said in the letter. It had considered the material submitted by the applicant in support of his claim for a review.
The Tribunal, on reading that material was not satisfied that it could make a decision in favour of the applicant, in other words, granting his application, without hearing further evidence from the applicant. What they wanted the applicant to do was to attend the hearing and provide further evidence and answer certain questions to resolve some doubts that may have been in the Tribunal's mind. And in due course, that is what happened.
The applicant also took advantage of the opportunity, by pointing out that he wished to attend a hearing, he required a Bengali interpreter. He also made a detailed submission to the Tribunal setting out his claims and providing a considerable amount of material in the forms of newspaper and magazine reports.
Some of this information was indeed quite graphic, and showed that there have been incidents of violence in Bangladesh concerning the political process.
There is no evidence upon which I can infer anything other than the fact that the Tribunal had this material and considered it. There is no evidence upon which I can find that the letter of invitation to the Tribunal hearing was other than the standard form letter to comply with s. 425 of the Migration Act, and I am not satisfied that there is any evidence that that letter is misleading as such, or mislead the applicant.
If the applicant was misled, to my mind it can only have arisen because he himself misconstrued the letter. I am mindful of the fact that English is not his first language, and that he has required the assistance of an interpreter in the Bengali language, both for the Refugee Review Tribunal hearing and the hearing of this Court.
He is clearly an intelligent man and clearly a well educated man.

I accept that there are always language difficulties, and the Court and the Refugee Review Tribunal do what they can to provide assistance with the aid of qualified interpreters, and these interpreters provide a valuable service, certainly to the Federal Magistrates Court.
But in my view the applicant has misread or misunderstood the letter of invitation.
The applicant is of the view that the Tribunal ignored relevant evidence. I am not of the view that there is evidence before me today which would allow me to draw that conclusion. I am not of a view that there is evidence before me today to show that the Tribunal did not consider the applicant's documentation.
The applicant did say that he had indicated that he had wished to submit further documents, and in reply he said that he had told his lawyer at the time that he had a few more documents that he wished to submit. He said that the lawyer said to him:
Perhaps that is not possible, because the time had expired.
If the applicant relied on that advice and did not submit documents because it was too close to the hearing, then in my view that is a matter entirely between the applicant and his then adviser.
The applicant did raise a point about a finding of fact which indicates to him that the Tribunal member misunderstood a part of his evidence. That finding is referred to on page 181 of the Court Book in the first paragraph. I quote:
I told the applicant I had some difficulty accepting that a wanted political activist of the opposition AL -
meaning Awami League, presumably:
- would continue to be employed and featured regularly in programs on the government controlled television station, some 18 months after failing to appear in Court on a criminal charge. He said, 'It depends on the producer'.
The applicant takes the view that the Tribunal member misunderstood the meaning of his evidence. The applicant says that he did not ever represent to the Tribunal that whilst he appeared on television programs during that period of time, that these programs went out live to air.
What he says is that these programs had been pre-recorded, and the television station continued to run those programs, even though they may well have been filmed or recorded 12 or 18 months beforehand.
In my view, that is an acceptable explanation, and it may well be that the Tribunal member made a mistake of fact. It is understandable how a Tribunal member would have difficulty accepting that if the applicant was wanted for failing to appear at Court in respect of proceedings, which the applicant said had been falsely laid, that he could hardly go on appearing live on national television without being apprehended by the police.
To my mind, the applicant's explanation that the programs had been pre-recorded, but were run anyway, even if the applicant was out of favour with the government, appears to be the more likely scenario.
That said, at best this is an error of fact. It is a factual error made by the Tribunal member. But it is quite clear, on the authorities, and in particular Abebe v Commonwealth (supra) that an error made in a finding of fact does not of itself constitute the jurisdictional error.

Findings of fact are the province of the decision maker, not of the Court preparing a judicial review.
To my mind the fact that the applicant has pointed to what appears clearly to be a finding of fact by the decision maker, does not indicate any jurisdictional error. It does not take away from the fact that as counsel for the respondent has pointed out, the reason why the Tribunal did not accept the applicant's claim is that the Tribunal did not accept the applicant's evidence.
It was a finding of credibility.
I refer again to the paragraph at that point, at the beginning of about point 7 on page 183 of the Court Book, in which the Tribunal member said:
I had the benefit of observing the applicant give oral evidence for a considerable period of time. His evidence was at times confused and confusing, evasive, and non-responsive.

One accepts that there is some difficulty for applicants in these circumstances, and particularly with the use of interpreters. However, I drew the clear impression that the applicant was not telling the truth.
That section of the decision of the Tribunal illustrates quite clearly why it was that the applicant's claim did not succeed. The decision maker heard his evidence, not just briefly but heard his evidence over a considerable period of time, and the Tribunal member was not persuaded that the applicant's evidence was credible. That is entirely the function of the decision maker. It is not the function of the Court exercising judicial review to second guess the decision maker, who has taken oral evidence in those circumstances. And I refer to MIEA v Wu Shan Liang (1996) 185 CLR 259.
Unfortunately for the applicant, that appears quite clearly to me why his claim was unsuccessful. There is no jurisdictional error, there is no reviewable error. The application must be dismissed.
This is a matter where it is appropriate to make an order for costs. The applicant is to pay the respondent's costs. The respondent is seeking the sum of $4600 in a lump sum. That is clearly within the scale as set out by the Federal Magistrates Court rules.
I am of the view that the schedule 1 of the Federal Magistrates Court rules apply for proceedings of this nature.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 31 May 2005