SZFBJ v Minister for Immigration & Anor

[2006] FMCA 1472

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFBJ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1472

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – first RRT decision quashed by consent – second RRT relying upon applicant’s evidence given at the first RRT hearing – second RRT’s disclosure obligations under s.424A considered – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.422B, 424A

Attorney-General (NSW) v Quin (1990) 170 CLR 1
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1993) 49 FCR 576
Fernando v Minister for Immigration (2000) 97 FCR 407
Lay Lat v Minister for Immigration [2006] FCAFC 61
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration v Jia (2001) 205 CLR 507
Minister for Immigration v NAMW (2004) 140 FCR 572
Minister for Immigration v Yusuf (2001) 206 CLR 323
Minister for Immigration v Rajalingam (1999) 93 FCR 220
NADH of 2001 v Minister for Immigration 214 ALR 264
NAOA v Minister for Immigration [2004] FCAFC 241
Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539
R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd (1979) 144 CLR 45
Re Minister for Immigration; Ex parte Applicant S 154/2002 (2003) 77 ALJR 1909
Re Refugee Review Tribunal;ex parte H (2001) 75 ALJR 982
SCAA v Minister for Immigration [2002] FCA 668
SZBQS v Minister for Immigration [2005] FMCA 1066
SZCIJ v Minister for Immigration [2006] FCAFC 62
SZDMO v Minister for Immigration [2006] FCA 989
SZECD v Minister for Immigration [2006] FCA 31
SZGNY v Minister for Immigration [2006] FMCA 1142
VAF v Minister for Immigration (2004) 206 ALR 471
VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102
WABC of 2002 v Minister for Immigration [2002] FCAFC 286

Applicant: SZFBJ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1660 of 2006

Judgment of: Driver FM

Hearing date: 4 October 2006

Delivered at: Sydney

Delivered on: 4 October 2006

REPRESENTATION

The applicant appeared in person

Counsel for the Respondents: Mr J Mitchell

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, including any reserved costs, fixed in the sum of $3,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1660 of 2006

SZFBJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”). The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on 18 May 2006. The applicant sought review of that decision by application filed on 9 June 2006. I accept that that application was made within time. When the matter first came before me on 11 July 2006, I was satisfied that the application merited a final hearing. I dispensed with the requirement for a preliminary hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

2. The background facts relating to this matter are otherwise set out in the Minister’s written submissions.  I adopt as background for the purposes of this judgment paragraphs 2 through to 5.3 of those written submissions:

   The applicant:

   a)was a citizen of India;

   b)arrived in Australia on 25 April 2004; and 

   c)lodged an application for protection visa on 11 May 2004: court book, page 118.

   On 20 May 2004 a delegate of the Minister refused to grant the Applicant a protection visa: court book, page 118.

   On 26 October 2004 the RRT handed down its decision to affirm the decision under review (the “first RRT decision”): court book, page 75.

   On 10 February 2006 the Federal Magistrates Court of Australia, with the consent of the parties, issued writs of certiorari and mandamus quashing the first RRT decision and directing the RRT to reconsider and determine the applicant’s application for review: court book, page 99.

   On 27 April 2006 the RRT held a further hearing and the applicant appeared and gave evidence.  The RRT handed down its decision on 18 May 2006 (the “second RRT decision”).

   Evidence before the RRT

   In respect to the second RRT hearing, the RRT had before it the Department’s file including the application for protection visa, the delegate’s decision record and the first RRT decision: court book, page 120.

   The applicant appeared and gave evidence at the RRT hearing on 27 April 2006: court book, page 120.

   Applicant’s claims

   At the RRT hearing on 19 August 2004 the applicant claimed (court book, pages 84-5):

   a)He had helped Bangladeshi Hindu refugees since 1991.  Specifically his job was to ensure that the refugees did not get persecuted once they arrived in India, find them accommodation and help them settle in India.

   b)The BJP were opposed to these activities.

   c)BJP party people tried to get hold of him and pursued him from Calcutta to Dehli.  He was beaten twice at the beginning of 2002 in Dehli, assaulted seven times in Calcutta and threatened countless times in Calcutta and Dehli.

   At the RRT hearing on 27 April 2006 the applicant claimed (court book, page 124):

   a)It was not safe for him to return to India because he had been involved with an organisation helping Hindu Bangladeshi refugees in Calcutta called Purba Bangla Shangati.

   b)In late 2003 and early 2004 he had been attacked by groups of Bengali and Hindi-speaking men.

   Second RRT decision

   The RRT member concluded that he had no confidence in any of the applicant’s claims other than his citizenship.  This was based on the following findings:

   a)The applicant’s evidence before the RRT as previously constituted was not consistent with his evidence before the RRT at the second hearing.

   b)The applicant demonstrated an ignorance of matters that he would have been expected to know about.

   c)The applicant’s claim that Hindu nationalists were hostile to welfare organisations working with Hindu refugees from Bangladesh conflicted with readily available published information on the subject.

   The RRT member did not accept the applicant’s claim that he was attacked or threatened by anyone for reason of his support of Hindu Bangladeshi immigrants.

   Quite apart from the above findings, the RRT member did not believe that the applicant’s behaviour was consistent with him fearing for his life.  Specifically, the length of time he took after acquiring his passport and after leaving Calcutta led the RRT member to being satisfied that the applicant did not in fact fear persecution of any kind before leaving India.

3. The applicant now relies upon an amended application filed on 31 August 2006.  The grounds in that application are conveniently summarised in paragraph 6.1 of the Minister’s written submissions.  I also adopt that paragraph for the purposes of this judgment:

   In the applicant’s amended application for judicial review filed on 31 August 2006 the applicant claims the following grounds of review:

   a)The RRT failed to disclose the particular construction it gave to the information from different independent sources and such failure amounted to a denial of procedural fairness and natural justice.

   b)The RRT failed to give any benefit of doubt to the applicant in respect to any of the claims made by the applicant and failed to take into account the personal circumstances of the applicant and the difficulties in obtaining evidence in support of his claims.

   c)The RRT failed to provide the specific independent country information to the applicant and the applicant was not given any opportunity to respond to that information.

   d)The RRT misjudged the applicant’s claim and did not take a fresh look at the claim.

   e)The applicant was not given any adverse information referred to in the RRT decision and the issues that would be raised with the applicant were not given to the applicant prior to the hearing.

   f)The RRT asked itself the wrong question.

   g)The RRT failed to have a fresh look into the applicant’s protection visa claim, failed to take into account relevant considerations and failed to “maintain” procedural fairness.

   h)The RRT was biased.

   i)The RRT took into account irrelevant considerations and relied upon findings made in the first RRT Decision.

   j)The RRT wrongly weighed and judged his claim and did not have a full grasp of the definition of ‘refugee’ as defined by the Convention.

4. The application is supported by an affidavit of the applicant filed on 29 September 2006 to which is annexed a transcript of the second hearing conducted by the RRT.  I received that affidavit as evidence for the purposes of today’s hearing.  I also received the court book filed on 7 July 2006 as evidence. 

5. The applicant failed before the second RRT because he was not believed.  In fact, the RRT rejected all of the applicant’s claims other than that he is a citizen of India.  It is apparent that the RRT disbelieved the evidence given by the applicant at the second RRT hearing. 

   
   

   A factor in that reasoning was inconsistency between the evidence given by the applicant at the first RRT hearing and his evidence given at the second RRT hearing. A question in that case is whether there was an obligation on the part of the RRT to disclose information derived from the first RRT hearing to the applicant pursuant to s.424A of the Migration Act. It is clear that the RRT had regard to the extensive description of the applicant’s evidence before the first RRT reproduced on pages 120 to 124 of the court book.

6. In SZECD v Minister for Immigration [2006] FCA 31 at [32], her Honour Bennett J identified the likelihood of jurisdictional error where a second RRT adopted reasoning applied by a first RRT in the same matter. Her Honour found that in that circumstance, there would be an obligation of disclosure arising pursuant to s.424A. This case can be distinguished from the scenario considered by Bennett J in SZECD.  The second RRT did not rely on the reasoning or conclusions of the first RRT.  It merely relied on the evidence given by the applicant to the first RRT.

7. This Court in SZBQS v Minister for Immigration [2005] FMCA 1066 at [14] and in SCGNY v Minister for Immigration [2006] FMCA 1142 at [21] has adopted the position that disclosure under s.424A is not required where the information is information derived from the applicant’s evidence given at a first tribunal hearing in respect of a single review application. I agree in particular with the views expressed by Smith FM in SZGNY at [21].

8. Where the RRT conducts a lawful review of a delegate’s decision, the RRT becomes functus officio and a second review application cannot be made: SZDMO v Minister for Immigration [2006] FCA 989 at [6] and [8]. Where the RRT commits a jurisdictional error so that the review process must be repeated, there remains only one review application. The obligation on the RRT is to reconsider that application. A second review application could not be made because it would be out of time. See Fernando v Minister for Immigration (2000) 97 FCR 407 at [31]. Where an applicant puts information to a review tribunal for the purposes of his or her review application, that information is not withdrawn where the tribunal falls into jurisdictional error. Unless the information is specifically retracted by the applicant, it remains available to the tribunal on a reconsideration of the review application. Further, it does not lose its character as information presented to the tribunal for the purpose of the review application: see s.424A(3)(b) of the Migration Act.

9. I otherwise agree with and adopt, for the purposes of this judgment, the Minister’s written submissions set out in paragraph 7:

   The first respondent submits:

   a)In respect to the claimed breaches of procedural fairness and s 424A(1) as summarised in paragraphs 6.1(a), (c), (e) and (g):

   i)The RRT was excepted from compliance with s.424A(1) in respect to:

   (A) the independent country information because it was not specifically about the applicant: s.424A(3)(a); Minister for Immigration v NAMW (2004) 140 FCR 572 at [138];

   (B)     its own subjective appraisals, thought processes or determinations which are not information: VAF v Minister for Immigration.

   (C) the applicant’s evidence given to the RRT in respect to the first RRT decision. That evidence was information that the applicant gave for the purpose of his application for review: s.424A(3)(b).

   ii)The natural justice hearing rule did not apply to the applicant’s application for review as it was filed after the commencement of s.422B. Section 422B constitutes Part 7 Division 4 of the Migration Act as a procedural code for the RRT review and excludes the natural justice hearing rule at common law: Lay Lat v Minister for Immigration [2006] FCAFC 61 at [66]; SZCIJ v Minister for Immigration [2006] FCAFC 62 at [8]. In any case, common law procedural fairness does not require an administrative decision maker to put their thought processes to an applicant: Re Minister for Immigration; Ex parte Applicant S 154/2002 (2003) 77 ALJR 1909 at [54]; [85] – [86]; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at [61] – [70]; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1993) 49 FCR 576 at 591. Further, there is no evidence as to what occurred at the RRT hearing and accordingly no inference can be drawn in the absence of such evidence as to whether the applicant was given an opportunity to respond to the critical issues arising from the independent country information: NAOA v Minister for Immigration [2004] FCAFC 241 at [21].

   b)In respect to the grounds summarised in paragraphs 6.1(b), the RRT member was not in any doubt as to his conclusions and accordingly was not required to ask the question “what if I am wrong?”: Minister for Immigration v Rajalingam (1999) 93 FCR 220 at [66] - [67]. Further, it was for the applicant to satisfy the RRT of his claims and the RRT was under no obligation or duty to give the applicant the benefit of the doubt. Further, there is no evidence that the RRT failed to appreciate the difficulties faced by the applicant in obtaining evidence in support of his claims.

   c)In respect to the claims of bias, as summarised in paragraphs 6.1(d), (g) and (h), there is no evidence:

   i)that the RRT member had a pre-existing state of mind which disabled him from undertaking or rendered him unwilling to undertake any proper evaluation of the relevant materials before him which were relevant to the decision to be made (see Minister for Immigration v Jia (2001) 205 CLR 507 at [35] and [72]); or

   ii)upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the RRT member may not have brought an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal,; Ex parte H (2001) 75 ALJR 982 at [27]; NADH of 2001 v Minister for Immigration 214 ALR 264 at [115].

   The only evidence before the Court as to the RRT member’s openness to persuasion is the RRT decision.  In that decision the RRT member referred to evidence that was not before the RRT as previously constituted and made adverse credibility findings that were based in large part on that evidence.  In these circumstances it cannot be said that the RRT did not “take a fresh look” at the applicant’s claims or that the RRT prejudged those claims.  Further, no inference of bias or prejudgment can be drawn from the mere fact of adverse findings in the RRT reasons: VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3].

   d)In respect to the grounds summarised in paragraph 6.1(f) and (j), the RRT set out the test for whether an applicant had a well-founded fear of persecution for a convention reason: court book, pages 188-120.  There is no evidence that the RRT failed to apply that test, or that it asked itself the wrong question or did not fully grasp the convention definition of ‘refugee’.

   e)In respect to the grounds summarised in paragraph 6.1(i), the applicant’s credibility was assessed in light of his earlier evidence before the RRT and an assessment of the independent country information.  These matters were clearly relevant to an assessment of the [applicant’s] claim to have suffered persecution.  In respect to the claim that the second RRT decision relied on factual findings made in the first RRT decision that is not the case.  The second RRT decision was based on inconsistencies between his evidence given before each RRT hearing, the inconsistency between that evidence and the independent country information and his ignorance of the politics of West Bengal.  Further, there was an independent reason for rejecting his claims, that being his behaviour which was inconsistent with his claim to fear for his life.  These findings were based on an assessment of evidence, a large part of which was not referred to in the first RRT decision.  Accordingly, the claim that the RRT simply relied on the former decision is misconceived.

   f)In respect to the ground summarised in paragraph 6.1(j), this ground invites the Court to review the merits of the applicant’s claims and the weight given to various pieces of evidence.  Such an exercise is beyond the jurisdiction of the Court: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6.

   g)In respect to the claim that the RRT failed to take into account relevant considerations, as summarised in paragraph 6.1(g), the applicant has not particularised any matters that the RRT was bound to consider and which it failed to consider: Minister for Immigration v Yusuf (2001) 206 CLR 323 at [70]ff; R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49-50; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. Accordingly this claim is misconceived.

10. I find that the RRT decision is free from jurisdictional error.  It is therefore a privative clause decision and the application must be dismissed.  I will so order.

11. Costs should follow the event in this case.  The Minister seeks an order for costs fixed in the sum of $3,700.  Pursuant to the Federal Magistrates Court’s scale of costs, the Minister would be entitled to receive costs in the sum of $5,000 but the Minister properly seeks a lesser amount.  The applicant did not wish to be heard on costs.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, which I fix in the sum of $3,700.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  11 October 2006