SZFJE v Minister for Immigration

Case •

[2006] FMCA 339

•

2 March 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFJE v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 339

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 – credibility.

PRACTICE & PROCEDURE – Delay – where decision handed down on
27 July 2000 but application for review not filed until 31 December 2004 – where applicant had been part of representative proceedings – order nisi refused on 20 February 2004 – whether unexplained delay sufficient to warrant discretionary refusal of relief.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.474

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132
R v Australian Broadcasting Tribunal; Ex parte Fowler & Ors (1980) 31 ALR 565
Re Commonwealth of Australia; Ex parte Marks (2000) HCA 67.
SZDPD vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1272
SKEIK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 777

Applicant: SZFJE
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE  REVIEW TRIBUNAL
File No: SYG 3794 of 2004
Delivered on: 2 March 2006
Delivered at: Sydney
Hearing date: 2 March 2006
Judgment of: Scarlett FM

REPRESENTATION

Applicant: In Person
Solicitor  for the Respondent: Ms Watson
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. Leave to join Refugee Review Tribunal as a party.

  2. Refugee Review Tribunal is joined as Second Respondent to the application is dismissed.

  3. The Application is dismissed.

  4. The Applicant is to pay the costs of the First Respondent now known as the Minister for Immigration and Multicultural Affairs, fixed in the sum of $6,800.00. 

  5. I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3794 of 2004

SZFJE

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal.  The decision was made on 14th July 2000 after a hearing that took place on 23rd May 2000.  The Refugee Review Tribunal handed down its decision on 27th July 2000.

  2. The Tribunal affirmed the decision of the delegate of the Minister not to grant a protection visa to the Applicant. 

Background

  1. The Applicant is a citizen of Bangladesh who arrived in Australia on 13th January 1999. On 8th February 1999 he applied for a protection (class AZ) visa but this was refused on 25th February 1999. On


    17th March 1999 the Applicant sought a review of that decision by the Refugee Review Tribunal. 

  2. On 23rd May 2000 the Applicant attended a hearing of the Tribunal and gave oral evidence. He told the Tribunal that he had arrived in Australia on a false Indian passport after having worked as a cook in Calcutta from 1993 to 1998.

  3. The Applicant said that he is a Hindu and that there has always been tension in his district between Hindus and Muslims. Many Hindus had left at the time of the partition of India in 1947 and others had left after the war in 1971, which led to the creation to the state of Bangladesh.  He claimed that he and his brothers had been attacked and threatened by groups of Muslims and there had been anti-Hindu communal riots in Bangladesh in 1992.  He said that he fled to India in February 1993.  He stated to the Tribunal that his sister and other relatives made inquiries and found out that it would be unsafe for him to return to Bangladesh. Instead, he obtained an Indian passport and travelled to Australia on that document.

The Tribunal’s findings and reasons:

  1. The Tribunal made findings that the Applicant was a citizen of Bangladesh. The Tribunal, at page 129 of the Court Book, expressed considerable doubt about the credibility of the Applicant's evidence. The Tribunal said:

    The Applicant had difficulty stating his date of birth at the hearing, claimed that he was not convicted of a crime in his application and then sought at the hearing various documents indicating otherwise, and failed in his application to list the languages which he claimed at the hearing he speaks. Such inconsistencies give rise to a question of credibility in regards to his claims.

  2. The Tribunal did not accept that the Applicant continued to be of interest to the authorities in Bangladesh and noted that he had not lived in Bangladesh for approximately seven years from the date of the hearing. The Tribunal noted that the Applicant's wife and children were apparently in India, although other members of the Applicant's family were still living in Bangladesh at the time of the hearing. The Tribunal did accept on the basis of the country information, that there was discrimination against minorities in Bangladesh, including those who are of the Hindu religion. The Tribunal went on to accept, however, that the independent evidence said that minority religious communities in Bangladesh have generally been able to live and worship with relatively few difficulties.

  3. Whilst the Tribunal accepted that the Applicant is a follower of the Hindu religion, the Tribunal could not be satisfied that the Applicant had a well founded fear of persecution on that basis. In summary, the Tribunal found that there was insufficient evidence to satisfy the Tribunal that the Applicant was persecuted for a religious or political reason, nor that the authorities would have condoned such persecution, nor that the authorities were unwilling or unable to protect the Applicant. Having considered the evidence as a whole, the Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention.

  4. The Applicant became a party to proceedings in the High Court of Australia in 1999. Those proceedings were commenced by one Nancy Lie as representative of a number of plaintiffs including the Applicant.  The High Court made orders on 25th November 2002 in those proceedings and the solicitors for the Applicant filed a draft order nisi in that Court on 20th June 2003. Following the orders made by Gaudron J in the High Court, that application was remitted to the Federal Court of Australia. On 20th February 2004 in the Federal Court, Emmett J refused the applicant's order nisi application. The citation for that decision is Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289.

Application for judicial review

  1. The Applicant commenced proceedings in this Court on 31st December 2004. He filed an Amended Application on 11th April 2005. In that application he seeks writs of certiorari and mandamus. The Applicant gives a number of grounds in his Amended Application.

  2. The first ground given is one that is commonly seen in applications to this Court:

    That the RRT decision was effected [sic] to take into account a relevant consideration when it assessed weather [sic] the delegate of the Minister raised reasonable grounds for not granting a protection visa.

  3. I have previously held that it is not clear what that ground actually means and I am still of the view that it is meaningless. More helpfully, however, the Amended Application sets out particulars of what the Applicant means by that ground. He says on the second page of the application that the Tribunal did not properly consider in assessing the chance of his persecution and being persecuted on his return to Bangladesh. He goes on to say that he was persecuted because of his political opinion and religious beliefs. He said that religious minorities are being targeted in Bangladesh and it is not possible for him to relocate to any other place in India. He said that he would be persecuted if he were to return to Bangladesh because of his political opinions.

  4. Whilst I have no doubt that those particulars set out the factual basis of the Applicant's claim, the particulars do no more than challenge the factual findings made by the Refugee Review Tribunal. It is well established that a Court conducting judicial review of an administrative decision does not have the jurisdiction to undertake what is known as a merits review. In other words, the Court does not have the power to consider the factual basis of the Applicant's claims and substitute its own decision for that of the Tribunal. So long as there is evidence upon which it is open to an administrative decision maker to arrive at a particular factual conclusion, then no jurisdictional error will be found.

  5. The Amended Application goes on to say that the Tribunal's satisfaction that the Applicant is not a refugee was not based upon reasoning which provided a logical or rational foundation for this belief. The Tribunal decision, upon my reading of it, shows that the Tribunal did consider the factual evidence provided by the Applicant but unfortunately for the Applicant, came to a decision which was not favourable to the Applicant's case. In my view, there was evidence available to the Tribunal to enable the Tribunal to form that conclusion. 

  6. The Amended Application says that the Tribunal did not observe the provisions of the Migration Act in making its decision. I asked the Applicant at the hearing to advise the Court why he said that the Tribunal had not observed the provisions of the Act. The Applicant gave, in effect, two reasons; first, that the Tribunal did not accept that there was a problem for Hindus in Bangladesh, and second, that the Tribunal did not consider the evidence of witnesses whose evidence the applicant had asked the Tribunal to consider.

  7. Dealing with the first part of that answer, the Applicant's claim is in effect a challenge to a factual finding of the Tribunal. In any event, at page 131 of the Court book it is clear that the Tribunal accepted on the basis of the country information that there was discrimination against minorities in Bangladesh including those of the Hindu religion. The ground given in the Amended Application that the Tribunal failed to consider the Applicant's evidence in the way provided by the Migration Act, is no more than a restatement of the earlier ground given and there is no basis for making such a finding.

  8. The Amended Application goes on to say that the Applicant would provide more details to support his judicial review application in his Outline of Submissions. The Applicant did not file a Written Outline of Submissions but made oral submissions instead. 

  9. The Applicant went on to say that the Tribunal did not provide him with adequate particulars of the independent information and did not give him an adequate opportunity to respond to the substance of the information. That submission has been met by the lawyers for the Respondent in the Outline of Submissions filed on 29th November 2005. The Respondent Minister notes the decision was made prior to the coming into force of s.422B of the Migration Act. That section came into force on 4th July 2002.  The Minister concedes that there was an obligation upon the Tribunal to afford the Applicant an opportunity to deal with information that was adverse information that was credible, relevant and significant to the decision to be made. The reference to the authority relied upon, and there are two, is first Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [99] and also [140] and [194], and also Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 at [140] – [145].

  10. The Minister submits that the Applicant had an opportunity to deal with the independent information. The Applicant had access to the delegate's report and in fact made a detailed submission on 17th March 1999. The Applicant was invited to attend the hearing, having been placed on notice that the Tribunal was unable to make a favourable determination based on the information before the Tribunal alone.


    A transcript of the hearing before the Tribunal will show that the substance of the independent information was in fact put to the Applicant by the Tribunal.

  11. Whilst the Applicant said in his application that he would endeavour to provide the transcript of the hearing, it was in fact provided by the Minister annexed to an affidavit of Brooke Marie Griffin filed on


    30th November 2005. I am satisfied that on reading the transcript, the Tribunal Member did put the substance of the material to the Applicant.

  12. The Minister also submits that the independent information fell within the province of s.424A(3), being information of a general nature and not specifically about the Applicant. In my view, that submission is correct. Section 424A commenced on 1st June 1999 and was certainly in force at the time of the Tribunal decision.

  13. The Applicant goes on to say in his Amended Application that he takes issue with the Tribunal finding that the totality of the country information does not show that Hindu minority and Awami League politicians are not persecuted in Bangladesh. This is, to my mind, no more than a request for a merits review, and to some extent at least, is not in any event borne out by the Tribunal findings at page 131 of the Court Book. The Applicant says in his Amended Application, and correctly, that he attended the Tribunal hearing and gave oral evidence to support his claims. He takes issue with the fact that the Tribunal did not accept the credibility of his argument

  14. It is well accepted that a finding about credibility is a factual finding.  As such, it falls within the province of the administrative decision maker so long as there is evidence upon which the decision maker can rely to make such a finding. The decision maker is not obliged to provide the reasons for not so being satisfied with a witness' credibility, but the question of credibility of a witness is a matter than remains within the province of the administrative decision maker and is not thereby subject to judicial review. The authority is Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham in the judgment of McHugh J at para.67.

  15. The Applicant made oral submissions about a denial of procedural fairness in that the Tribunal did not hear the evidence of witnesses who he said were important to his case. The Applicant did indicate to the Tribunal in his response to hearing invitation that he wanted three people to give evidence on his behalf. He provided the names of those people and indicated that two of them would require the assistance of a Bengali interpreter.  The fact is that none of those people attended, for various reasons.

  16. I have had the opportunity of reading the transcript of the hearing that is annexed to Ms Griffin's affidavit. On page three of the transcript the Tribunal Member asked the Applicant of the three people listed as witnesses, which of the three was coming. The Applicant told the Tribunal that one of those persons was coming but the other two were not. The Applicant told the Tribunal that one witness was not coming because he had a taxi course that he had to go to and was starting his classes that day.

  17. The Applicant told the Tribunal that another witness was not able to attend the hearing because he had another appointment. The third witness was going to be available but he had left the Tribunal building to go to move his car because he was in a limited parking space.

  18. The Tribunal said at page four of the transcript that when that witness returns the Tribunal would then swear him in as a witness and the Tribunal would hear what that man had to say, but in the meantime they would go ahead with the hearing while that witness was moving his car. That indeed was what the Tribunal did. The Tribunal did not refuse to hear the evidence of the man who was moving his car, but proceeded to hear the evidence of the Applicant, which in my mind, is the appropriate way for the Tribunal Member to have acted. It is usually appropriate for the Applicant to give evidence first in these proceedings.

  19. Now, at page 58 the Tribunal after the Applicant's evidence, raised a concern with the Applicant by saying:

    Okay, now I have some concern in that we have three witnesses who are coming for the hearing today and we haven't got any of them. 

  20. The Applicant is recorded as saying:

    Please don't mind, it doesn't matter.  So I inform them.

  21. The Tribunal Member however went on to say:

    Right.  But I am worried for you, are you concerned that they haven't come? In other words, what I am saying is you are hoping to have your witnesses here to speak on your behalf, to speak for you and they haven't come.  Should we do anything about that or are you happy that we have all the information?

  22. The Applicant is recorded as saying through the interpreter:

    Sorry, the witness has got some things on and knows everything about my case to support.  They are he – whoever will come or would be here saying the same story about me persecution of what Hindus and the problem.

  23. The Tribunal Member went on to ask:

    Now, there is nothing that the Tribunal has done that has made it difficult for your witnesses to be here, is there?

  24. The Applicant is recorded as saying "No". The Tribunal Member then asks:

    So you are not concerned by the fact that they haven't been able to give evidence?

  25. And the Applicant is recorded as saying:

    No sir, everything I tell you that is all.

  26. Yet again, the Tribunal Member checked:

    So you are happy enough if we now finish the hearing without hearing from the witnesses?

  27. And the Applicant is reported as saying "Yes, sir". Even then the Tribunal Member asks:

    Are you sure?

  28. And the Applicant said:

    Yes, sure.

  29. The Tribunal said:

    Because I don't want you to regret or be disappointed by the fact that the witnesses weren't able to speak on your behalf.  Is that all right?

  30. The transcript makes it clear that the Tribunal Member went to some trouble to inquire from the Applicant about the witnesses who the Applicant said he wanted to be called, but in the event none of them appeared. The Tribunal Member inquired about that, raised this question with the Applicant and at all times on the evidence before me, expressed not only a willingness to hear the evidence of those witnesses but expressed concerns about the Applicant's dilemma in not having those witnesses available.

  31. To my mind, the procedural fairness requirements were well and truly met by the Tribunal Member, and it cannot be said that on the question of witnesses that the Tribunal failed in the duty to provide procedural fairness. Accordingly, that ground of review must fail.

  32. The Applicant also told the Court that the main mistake made by the Tribunal was that the Tribunal did not give him a chance to say anything. The fact is that the Applicant did give oral evidence. The transcript shows that he gave evidence and was asked questions about his case by the Tribunal Member.

  33. The Applicant also gave an explanation of the delay between the decision being made in the Federal Court to dismiss his application for an order nisi and the commencement of these proceedings. He indicated that it took some time for him to be made aware of the Federal Court decision and during a ten month period he did not get time to prepare his matter. There was difficulty about the availability of an interpreter and that what he wants is to go back to the Refugee Review Tribunal and bring his witnesses. He also raised concerns about the fate of his wife and children whom he had not seen for seven years, or certainly at the time of the Tribunal hearing were still leaving in India.

  1. It is established that delay is a ground for discretionary refusal of relief by way of a constitutional writ where that delay is lengthy and unexplained. I have been referred to a number of decisions on that subject, including M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132, and R v Australian Broadcasting Tribunal; Ex parte Fowler & Ors (1980) 31 ALR 565 and Re Commonwealth of Australia; Ex parte Marks (2000) HCA 67. I have also been referred to a couple of my own decisions, of SZDPD vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1272, and SKEIK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 777.

  2. The explanation for the delay is not particularly satisfactory, although I accept the fact that it may well have taken some time for the Applicant to have been made aware of the decision by Emmett J on 20th February 2004. The delay in this case between the Federal Court decision and commencement of proceedings in this Court is approximately ten months. I am certainly of a view that the authorities, particularly Re Commonwealth of Australia; Ex parte Marks, make it quite clear that unexplained delays or unsatisfactory explained delays in excess of 12 months will normally justify a Court in refusing relief on discretionary grounds even if jurisdictional error has been established.

  3. In this case, I am not of a view that the delay of ten months, whilst lengthier than I would think appropriate, would be such to justify withholding relief if I were satisfied that jurisdictional error had been made out. The fact is, as I think I have made clear during this decision, is that I am not so satisfied. I am not satisfied that there has been any breach of s.424A of the Migration Act. I note that s.422B did not apply, but I am not satisfied that there has been any denial of procedural fairness. I would in fact go further and say that from the transcript of the proceedings, the Tribunal member seems to have conducted the hearing in a very fair way indeed. I note that the main reason for the Tribunal not being satisfied as to the sufficiency of the evidence on behalf of the applicant was due to the Tribunal's serious concerns about the Applicant's credibility. And in my view, there was material available upon which the Tribunal could form that view.

  4. It is not a situation where the Tribunal has to provide reasons for not granted an application. Section 65 of the Migration Act makes it clear that unless the Tribunal is satisfied, then a visa will not be granted, or unless the Minister is satisfied, the visa will not be granted. Here it is clear that the Tribunal was not satisfied and the main reason for lack of satisfaction was insufficient evidence of a credible nature.

  5. There is no jurisdictional error shown. I have conducted my own independent reading of the Tribunal decision as I am mindful of the fact that the Applicant is not legally represented in these proceedings.  My own independent reading of the decision does not show any jurisdictional error.  As there is no jurisdictional error,  the application must be dismissed.

  6. I will also indicate that I not only proposed to grant leave to join the Refugee Review Tribunal as a party, but I will make an order joining the Tribunal as Second Respondent.

  7. I note that the Applicant will be seeking to appeal against this decision, which is his right. In the circumstances, I will make an order that I will allow six months to pay. I am satisfied that the amount of costs sought is otherwise reasonable in the circumstances.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  9 March 2006

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