SZFMD v Minister for Immigration & Anor
[2007] FMCA 1578
•20 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFMD v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1578 |
| MIGRATION – Credibility – finding of fact – bias not established – conclusions of Tribunal not “information” within s.424A – all issues were put to the applicant – procedural requirements complied with – no denial of natural justice |
| Migration Act 1958 (Cth), ss.36(2), 424A, 425, 474 |
| Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Denissenko v Hasket and Minister for Immigration & Ethnic Affairs (unreported, Federal Court of Australia, Foster J, 29 May 1996) W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Devries v Australian National Railways Commission (1993) 177 CLR 472 Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 Chen Xin He v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, RD Nicholson J, 23 November 1995) Re Minister for Immigration and Multicutlural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 Minister for Immigration and Multicultural Affairsv Jia Legeng (2001) 205 CLR 507 |
| Applicant: | SZFMD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1329 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 20 August 2007 |
| Date of last submission: | 20 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 August 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr G. Johnson |
| Solicitors for the Respondents: | Ms G. Broderick of Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1329 of 2007
| SZFMD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 26 April 2007 for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 6 March 2007 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
The applicant sought an adjournment of four weeks in order to submit a translation of the transcript of the hearing before the Tribunal. Orders were made by consent on 15 May 2007 about the presentation of that transcript. The applicant has had since 15 May 2007 to obtain a transcript and has not done so; the Court therefore refused the application for an adjournment.
The applicant tendered a medical certificate in support of his application for an adjournment. The Court did not consider that the certificate showed that the applicant is incapable of conducting the proceedings. The hearing therefore proceeded.
The applicant was born on 2 October 1976 and claims to be from Bangladesh and of the Islamic faith (“the applicant”).
The applicant arrived in Australia on 3 May 2004 on a visitor’s visa issued in Dubai.
On 8 June 2004 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed that he feared for his life and safety because of his involvement and family history with the Awami League. The applicant claimed that his family had long been associated with the Awami League and that as a young man he had been responsible for organising the League’s youth wing. The applicant claimed that when the BNP came into power they filed “malicious cases” against him because of his involvement in the Awami League. The applicant claimed that fearing for his safety he fled to Dhaka, where after a short time the BNP member who had been harassing him tracked him down. The applicant claimed that he then fled to Dubai, but left after he was exploited by those who initially helped him (Court Book “CB” 27-9)
This application was refused by a delegate of the first respondent on 11 June 2004 (CB 30-38).
On 8 July 2004 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal (CB 39). By decision on 23 November 2004 the Tribunal affirmed the decision of delegate not to grant the applicant a protection visa (CB 81). The applicant sought judicial review by this Court, and on 10 November 2006, the Court set aside the decision and remitted the matter to the Tribunal to be determined according to law (CB 95).
The applicant attended a hearing before the second Tribunal on 1 March 2007 to give evidence and present oral arguments (CB 145). By decision signed on 6 March 2007, the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 172-9) (highlighting added):
The applicant’s credibility
It is reasonable that applicants whose claims are plausible and credible should, unless there are good reasons not to do so, be given the benefit of the doubt (UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Re-edited, Geneva, January 1992, paras. 196‑197 and 203‑204).
However, it is appropriate that The Tribunal assess the specific claims advanced in support of an Applicant's case, bearing in mind that:
A decision‑maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out (Selvadurai v The Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal, Heerey, J, 20 May 1994, p.7).
It is clear that the Tribunal is not required to accept uncritically all claims made by applicants. In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, Beaumont J observed (at page 16) that a liberal attitude concerning proof of persecution in the context of an application for refugee status “should not, however, lead to ‘an uncritical acceptance of any and all allegations made by suppliants”.
It was also stated in Chan (per McHugh at 428) that under the 1951 Convention: It was unlikely ... that a State party was expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State's understanding of conditions in his or her country of nationality.
Generally speaking it is inappropriate to speak of onus in administrative law decisions. However:
“it must remain the position that the applicant for refugee status carries the overall onus of establishing to the satisfaction of the decision‑maker that the relevant chance or possibility exists.” ‑ Denissenko v Hasket and Minister for Immigration & Ethnic Affairs (unreported, Federal Court, Foster J, 9 May 1996) at p22.
The Tribunal is satisfied that the applicant, Mr [applicant name], is a national of Bangladesh, and is supported by the applicant’s passport, issued by the Bangladeshi authorities and sighted at hearing. The Tribunal will therefore assess his claims against Bangladesh.
The Tribunal is not satisfied with the applicant’s credibility. The Tribunal finds the applicant’s claims and evidence to be implausible, completely lacking in credibility and found the applicant, at hearing, to have been mendacious in the extreme. It finds that he manufactured claims that are so far-fetched as to be fanciful. The Tribunal finds that the applicant has not been truthful with the Tribunal and cannot be satisfied that he has a well founded fear of persecution for any Convention reason upon return to Bangladesh.
Specifically, the Tribunal does not accept as credible or plausible:
· The applicant’s claims to have been a member of the Awami League
· The applicant’s claims to have had in his possession or to have read books by Taslima Nasreen including “Lajja”
Fear of harm for reason of political opinion: the applicant’s claims to have been a member of the Awami League
The applicant’s claims and evidence at hearing was to the effect that he was an active member of the Awami League having joined in 1995. He stated at hearing that he held an official position in the Awami League, namely that of “Organising Secretary” the tasks of which included motivating people to join the party. The applicant’s claims and evidence at hearing were to the effect that he was an active member of this political party.
In light of the applicant’s claims and evidence regarding his involvement in the Awami League, his official position as “Organising Secretary” and his role of encouraging people to join the party, the Tribunal asked the applicant a number of questions at hearing about the background and history of the party, its ideology, its structure and organisation, and general questions about the Awami League. The applicant’s knowledge about the party of which he claimed to be an active and office-holding member was negligible. For example:
· The Tribunal asked the applicant when the Awami League was founded. The applicant’s response was that “forgets everything” and he had forgotten this. The independent evidence indicates that the Awami League was founded on June 23, 1949.
· The Tribunal asked the applicant who founded the Awami League. The applicant stated that it was Shaikh Mujibur Rahman. The Tribunal asked who else was involved when it was initially created. The applicant stated that he was the only one. The independent evidence indicates that at the time of its inception there were three General Secretaries, and that Sheikh Mujibur Rahman was an assistant General Secretary.
· The Tribunal asked the applicant about the ideology of the Awami League – what does it advocate. The applicant stated that it is to motivate people to join. The independent evidence indicates that it advocates a socialist economy, but with a private sector, and a secular state.
· The Tribunal asked the applicant how many members it has overall. The applicant stated initially that there are “too many to count” and the stated that nationwide there are 1135 members. The independent evidence indicates that the Awami League has about 1,025,000 members.
· The Tribunal asked the applicant when it was first in opposition after independence. The applicant stated that it was 1974. The independent evidence indicates that it was actually out of government from 1975 following the killing of its leaders on 15 August 1975, and that the Awami League fared poorly in the 1979 parliamentary elections held under a military government.
· The Tribunal asked the applicant where the Awami League National Headquarters are located – what is the address. The applicant stated that they are in Dhakka but that he has “forgotten the exact address”. According to the independent evidence thay are located at Bongobondhu Avenue, Dhaka.
· The Tribunal asked the applicant to describe the national structure (organisation) of the Awami League. The applicant asked for clarification, and the Tribunal used its own structure to explain what it meant, for example: the RRT has a Principal Member, Senior Members, Members, Staff etc. The applicant’s only response was to the effect that “his friend introduced him to a big leader”. The independent evidence indicates that the structure includes: President, Presidium Members, General Secretary, Secretaries, and members.
· The Tribunal asked the applicant how Awami League’s Constitution is laid out. The applicant stated that he cannot remember he has forgotten. The independent evidence indicates that the Constitution of the Awami League is laid out with various headings and sub-headings, for example: Name, Aims and Objectives, Fundamental Principles, Commitment.
· The Tribunal asked what the aims and objectives of the Awami League are as listed in its own Constitution. The applicant responded that it is “development of the country” and “to work for the country and lead a peaceful life”. According to the Awami League’s own website, their aims and objectives are very detailed and specific, namely: To consolidate the independence of the People’s Republic of Bangladesh and to uphold its sovereignty as well as territorial integrity; To establish and protect the people’s constitutional rights since all powers in the Republic belong to the people; To ensure political, economic, social and cultural freedom and welfare of all citizens; To build a Secular, democratic society and state-system imbued with the spirit of Liberation War.
· The Tribunal asked about the fundamental goals as listed in the Constitution. The applicant responded that he “has forgotten all of this”. The Tribunal asked how many there are. The applicant stated that there are 11. The independent evidence indicates that there are 24 fundamental goals.
· The Tribunal asked the applicant the name of the Awami League when it was established – it had a different name. The applicant stated that he forgot. The independent evidence indicates that the Awami League was founded on June 23, 1949 as the “All Pakistan Awami Muslim League”.
The Tribunal finds the applicant’s almost complete lack of knowledge regarding the background and history, the structure, the ideology and general knowledge of the Awami League to infinitesimal. In light of the applicant’s lack of knowledge about these matters, the Tribunal cannot be satisfied that the applicant has ever been involved in the Awami League, and it follows therefore that it cannot be satisfied that the applicant has ever been charged with any activities or charges arising from the Awami League.
The Tribunal notes that there were other inconsistencies that arose within the Tribunal’s hearing with the applicant on 1 March 2007, for example:
· The applicant gave evidence at the beginning of the hearing regarding his residences in Bangladesh. The applicant gave evidence that he was born at No.41 Pakiala Street, Pakiala, and that he resided there until the year 2000 when he went to Dhakka for one month (November 2000). He stated that he returned to No.41 Pakiala Street, Pakiala after a month and resided there from 2000-18 December 2002 when according to his passport (sighted at hearing) he departed Bangladesh for Dubai. The applicant gave evidence that while he was at No.41 Pakiala Street, Pakiala he slept, ate, bathed and resided there physically and continuously, he stated that he was “always there”.
· Later in the hearing the applicant gave evidence that in 2001 he got a position in Moulavi Bazar as an “Organising Secretary”. The applicant gave evidence that Moulavi Bazar is 200km’s from the applicant’s home. The Tribunal asked the applicant how he managed his organising given that Moulavi Bazar was such a long way away. The applicant in response gave evidence that he was living in Moulavi Bazar for a year. The Tribunal pointed out the applicant’s contradictory evidence asked the applicant to explain. The applicant’s explanation was to the effect that he “was not living in Moulavi Bazar permanently he would go back to the village every fortnight” and that he “may not have understood the Tribunal’s question”. On the contrary, the Tribunal finds, that in order to overcome a perceived “dilemma” in his story (namely, the difficulty in conducting the position of Organising Secretary for the Awami League in a location 200 kilometres from his home) the applicant has simply changed his evidence - (namely, where he was residing during the period 2000-2002) at will – to make his story more convincing. In light of the applicant’s mendacity, the Tribunal cannot be satisfied that the applicant is a reliable witness.
The applicant also gave evidence regarding an alleged assault that took place in November 2000. The Tribunal attempted to have the applicant to be very specific about this incident and asked exactly what happened on this occasion. The applicant gave the following evidence that:
He was “returning from a procession” on a motor cycle and members of the BNP and Jamat they tried to “catch the applicant and they did”. The applicant stated that his father saw the incident (as it occurred) and he came to help the applicant and he was assaulted and his index finger was broken. The applicant gave evidence that the attack took place “outside a marketplace” and that he had slowed down at an intersection. The applicant gave evidence that it occurred 200 feet from his father’s shop. He stated that the market place was crowded.
The following inconsistencies, justifications and alterations were made by the applicant in regard to the details of this claimed assault:
· The Tribunal noted that it appears coincidental that his father happened to be there when this incident occurred. The Tribunal then asked if the attack took place in a secluded area. The applicant then stated that the attack occurred “in a narrow street” on the way to his house (not, as he had earlier stated “at an intersection”).
· The applicant then stated that it was secluded, quiet, and “out of the way”, which contradicts his evidence that the attack took place in front of a “crowded marketplace”.
· The Tribunal asked how his father was able to see the attack if it took place in a secluded place at which point the applicant made another alteration to his evidence stating that “his father suddenly saw five BNP coming to that area and after ten minutes he knew the applicant was coming that way and came looking for him”.
· The Tribunal asked again, how his father could see the applicant at which point the applicant made yet another modification stating that his father saw him as he was driving by the shop.
· The Tribunal noted that the applicant stated that the attack took place 200 feet away and asked how he could be by the shop and 200 feet away at the same time. The applicant did not answer this question but rather stated: his father was a strong Awami League member and he knew the BNP members and he knew about the meeting (earlier described as a procession) on that day and when he saw them (the BNP members) going to that quiet street and he saw the applicant driving towards that direction he knew something was wrong. The applicant then made another modification namely that his father was following the applicant and then the incident started.
When questioned on specific aspects of his story, the applicant simply altered his story as he told it, in order to overcome any perceived weaknesses. The Tribunal finds that the applicant has been untruthful to the Tribunal about this assault and the Tribunal cannot be satisfied he is witness of truth.
In light of the applicant’s complete lack of knowledge about the Awami League – the party of which he claims to have been a member and office holder; his mendacity about his residences (to overcome perceived problems with his Awami League activities) and his untruthfulness about the claimed assault against him, the Tribunal cannot be satisfied that the applicant has ever been involved in the Awami league in any manner or that he has faced any harm arising from the Awami League. Further, the Tribunal finds that there is no on-going interest in the applicant by anyone in Bangladesh now or in the reasonably foreseeable relating to the Awami League.
Taslima Nasreen
The applicant made a claim at hearing that he fears harm because he has “read a few books by Taslima Nasreen including a book entitled “Lajja”, that he was discovered reading “Lajja” and that he was threatened with death.
In light of the applicant’s claims to have read a “few books” by Ms Nasreen, including her most well-known work “Lajja”, the Tribunal asked the applicant a number of questions regarding Ms Nasreen and “Lajja”.
The Tribunal asked the applicant where Ms Nasreen was born – the applicant stated that “he forgot”.
The Tribunal asked how long “Lajja” it is. The applicant stated it is 163 pages. The independent evidence indicates that it is 282 pages.
The Tribunal asked the applicant what stated ideology Ms Nasreen ascribed to. The applicant initially stated that “she talked about sex in her book” he then stated that “she has fled to another country” and finally, after the Tribunal re-stated its question, the applicant admitted “he does not know”. The independent evidence indicates (in her own words) that Ms Nasreen is committed to protesting against the discriminatory treatment of women in her society (Bangladesh) and protested “against this cruelty and barbarity” in her writing.
The Tribunal asked the applicant what happened to him relating to this writer. The applicant stated that when a member of Jamat saw him reading the book they said he was blaspheming. The Tribunal asked how he got the book. The applicant stated that he bought it from a library. The applicant stated that it was banned later. The applicant stated that he obtained the book from a Library and was caught reading it in 2001. The independent evidence indicates that Ms Nasreen’s book have been banned in 1993 (Lajja, and 1999 Amar Bella in 1999). The Tribunal also asked the applicant when she went into hiding. The applicant stated that he forgot.
The Tribunal asked the applicant a précis of the book “Lajja” – what is it about? The applicant stated that she wrote a lot about sex. The applicant added that it has been “five years and he cannot remember”. The independent evidence regarding “Lajja” describes the book thus:
“In Lajja, Taslima Nasreen depicts the agony and pain of being a woman when hatred spreads or the virus of communalism rears its ugly visage. It's the women who suffer, who become the victims. Assaulted not only physically but also emotionally, her motherhood becomes a target. After molesting her, the goondas proclaim execution of the "honourable" pledge to save an entire generation, and by their act convert the ones to be born to their religion. The story of the Hindu girl in Lajja is similar to the predicament of the heroine of Sadat Hasan Manto's short story, "Kali Sarwar," written in the backdrop of the partition. Every time the goondas molest her they convert her to their faith, satisfied that they have fulfilled their responsibility. At times the girl falls in the hands of Hindus, and at times sexually assaulted by the Muslims of Pakistan. At the end, the hapless girl is reduced to just a bundle of flesh. The story is a gruesome example of what religious fanaticism can do. Then what was true of Kali Salwar was repeated in 1993 Sonar Bangla in Lajja”
In light of:
· The applicant’s complete ignorance about Ms Nasreen ideas – which reason dictates, would lead a person to read her books;
· The fact that the applicant’s claims regarding the timing of its banning are inconsistent with the independent evidence and;
· Most importantly the applicant’s complete ignorance about the actual content of the book that he claims to have read and that led to his being threatened with death,;
The Tribunal cannot be satisfied that the applicant has ever read any of Ms Taslima Nasreen’s books, or that he would face any harm in Bangladesh in the reasonably foreseeable future for this reason. The Tribunal finds the applicant to be a completely unreliable witness in regard to this claim and gives it no weight.
The Applicant’s Documents
The Tribunal has found the applicant to be completely lacking in credibility with regard to his claims to have been involved with the Awami League, his residence, his alleged assault, and his claims to have read Taslima Nasreen books (in regard to Ms Nasreen, the Tribunal has further found that his claims are contradicted to the independent evidence). The Tribunal has found the applicant to have been untruthful to the Tribunal and gives no weight to his claims.
In light of the applicant’s lack of reliability as a witness, it cannot rely on any of the documents submitted by him.
In summation
At the conclusion of the hearing (1 March 2007), the Tribunal pointed out to the applicant that there were numerous contradictions in his claims at hearing and noted the overall implausibility of his claims and their lack of credibility. The applicant was given the opportunity to comment. The applicant’s response was to the effect that it has been a long time and he has forgotten “a lot of stuff”. The Tribunal has considered this explanation, but cannot be satisfied that that it clarifies or explains the significant and numerous contradictions and implausibilities in any meaningful way.
Considering the applicant’s mendacity on not only the essential elements of his claim, but other aspects of his claims discussed above, the Tribunal finds that the claims of harm, and threats of harm, by the BNP, Jamat, his neighbour or anyone else in Bangladesh, to be a fabrication. Given the significant adverse findings on credibility in relation to the applicant, the Tribunal cannot be satisfied that the applicant has a real chance of being persecuted for a convention reason in Bangladesh in the reasonably foreseeable future, and is therefore not satisfied that the applicant’s fear of persecution for a Convention reason is well founded.
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. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).
The applicant sought to tender an affidavit in Court containing material that was not before the Tribunal. The Court refused to accept that material.
The application
In his application, the applicant set out four grounds as follows:
(1)The applicant claims that the Refugee Review Tribunal (the Tribunal) made a jurisdictional error when it had relied upon alleged inconsistencies regarding his address and inconsistencies regarding the assault to the Applicant.
(2)The Tribunal made a jurisdictional error when it did not give to the applicant particulars of information as requested by section 424A of the Migration Act (the Act).
(3)The Tribunal mad (sic) a jurisdictional error when it asked the wrong questions to the applicant to reject the claim such as many questions regarding the Awami League and its back ground (sic) and history, where the Applicant has left Bangladesh for almost five years before and the Tribunal knew that so the Tribunal was interested to reject the claim.
(4)The Tribunal made a jurisdictional error when the Tribunal did not give the applicant enough opportunity to explain on those observations which were made by the Tribunal to reject his claim.
Particulars
(1)When questioned on specific aspect of his history, the applicant simply altered his story as he told it in order to overcome any perceived weakness.
(2)His mendacity about his residence and his untruthfulness about the claimed assault against him.
(3)The Tribunal comments regarding Ms Taslima Nasreen’s Book Lajja which the Tribunal made it without giving any opportunity to explain the inconsistencies.
(5)The applicant claims that the Tribunal denied him natural justice when the review was not fair and just and the Tribunal did not act according to substantial justice and the merits of the case.
Findings of the Court in relation to the grounds in the application
The Tribunal’s decision is based on the following findings that it was not satisfied with the applicant’s credibility (CB 173.8):
The Tribunal is not satisfied with the applicant’s credibility. The Tribunal finds the applicant’s claims and evidence to be implausible, completely lacking in credibility and found the applicant, at hearing, to have been mendacious in the extreme. It finds that he manufactured claims that are so far fetched as to be fanciful. The Tribunal finds that the applicant has not been truthful with the Tribunal and cannot be satisfied that he has a well founded fear of persecution for any Convention reason upon return to Bangladesh.
The Tribunal then set out extensive reasons for concluding that the Tribunal cannot be satisfied that the applicant is a reliable witness (CB 173.8-178.10). The Court applies the following statement of the law in W148/00A vMinister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]:
The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
The Court refers also to the following statement in Chen Xin He v Minister for Immigration and Ethnic Affairs (Unreported, FCA, RD Nicholson J, 23 November 1995 at [24]):
It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible.
The Court refers also and adopts the following submission to it in another matter.
The Tribunal’s conclusion that the Applicant was not credible and his claims untrue are findings of par excellence: Re MIMA; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v MIMA (1998) 86 FCR 547 (FC) at 558-559; W148/00A v MIMA (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and RD Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: MIEA v Wu Shan Liang (1996).
The adverse findings on credibility are very firm (CB173.8) and are supported by an extensive examination of the evidence by the Tribunal. The finding of fact as to credibility must not be set aside: Devries (ante) at [646].
As stated in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]:
To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
All findings of fact by the Tribunal as to the evidence and the claims were properly open to it on the material before it, and must stand. As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
Ground one seeks to challenge the reliance of the Tribunal on inconsistencies in the evidence of the applicant. That is an essential function of the Tribunal. The Court refers to the following passage in Chen Xin He v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, RD Nicholson J, 23 November 1995, unreported) at [24].
It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible.
Ground one is rejected.
Ground two alleges a breach of s.424A. The Tribunal rejected the applicant’s claim of membership or involvement in the Awami league on the basis of the evidence given by him. Such information is covered by the exception in s.424A(3)(b). The Court accepts the following submission for the first respondents:
With respect to the bases for the Tribunal’s findings to the effect that it was not satisfied as to the applicant’s claims that he had read books written by Ms Nasreen and would face harm for that reason, the Tribunal ultimately based its conclusions upon the matter stated in the three dot-points at CB 178.2. An argument might be available that the Tribunal, in that part of its reasons, relied upon information about Ms Nasreen personally that did not fall within either of the exceptions contained in subsection 424A(3) and which should (applying SZEEU v MIMIA (2006) 150 FCR 214) have been the subject of an invitation under section 424A. In the light of the High Court’s decision in SZBYR v MIAC [2007] HCA 26…any such argument should not succeed.
In SZBYR at [17], the joint judgement of Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ held that “the use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s.424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case”. That suggests, contrary to the path previously taken by the Federal Court (including SZEEU and VAF), a prospective rather than a retrospective approach to deciding what (information) “would be the reason, or part of the reason, for affirming the decision that is under review” for the purposes of section 424A(1).
Some facts about Ms Nasreen personally were taken into account by the Tribunal in its assessment of the applicant’s credibility, but, viewed prospectively (i.e. before the applicant gave evidence), those facts would be seen as neutral – neither sustaining nor tending against the criteria for a protection visa – or, at least, as not of themselves tending against the grant of a protection visa. Applying SZBYR, those matters were not information that would be the reason, or part of the reason, for affirming the delegate’s decision because, looked at prospectively in advance of the hearing, they were not “in their terms a rejection, denial or undermining of (the applicant’s) claims to be (a person) to whom Australia owed protection obligations” (SZBYR at [17]).
The Court finds no breach of s.424A. Ground two is rejected.
Ground three alleges bias and that the Tribunal asked the wrong questions regarding the Awami League. The Tribunal was entitled to ask questions it did about the Awami League as that was a very relevant issue in the matter before it. The Tribunal is required to find the facts. It has not been shown that the Tribunal had regard to irrelevant matters. As to the allegation of bias, no particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairsv Jia Legeng (2001) 205 CLR 507. The Court accepts also that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27].
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; (2000)176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
Bias has not been established. Ground three is rejected.
Ground four alleges that the Tribunal did not give the applicant enough opportunity to answer the observations of the Tribunal that led it to affirm the decision of the delegate. The particulars of ground four are:
(1)When questioned on specific aspect of his history, the applicant simply altered his story as he told it in order to overcome any perceived weakness.
(2)His mendacity about his residence and his untruthfulness about the claimed assault against him.
(3)The Tribunal comments regarding Ms Taslima Nasreen’s Book Lajja which the Tribunal made it without giving any opportunity to explain the inconsistencies.
The observation in particular (1) that the applicant altered his story to overcome any perceived weakness was a conclusion reached by the Tribunal. The observations in particular (2) about mendacity and untruthfulness were conclusions and subjective reasoning by the Tribunal. Particular (3) complains about the Tribunal concluding that it “cannot be satisfied that the applicant has even read any of Ms Taslima Nasreen’s books” (CB 178.4). That conclusion was part of the subjective reasoning of the Tribunal. None of the matters referred to in the particulars were “information” for the purposes of s.424A.
The Court applies the following statements in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]:
Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
No breach of s.424A has been established.
The applicant was invited to appear before the Tribunal by a s.425 letter (CB 119) and did appear (CB 157). The decision of the Tribunal shows that it raised the applicant’s claims and its doubts about them with him. The decision of the Tribunal makes specific reference to all matters in the particulars (the applicant’s residence: CB 160.7-161.3; the alleged assault: CB 164.2-169.3; the Awami League: CB 162.10-163.10, 166.1; Ms Taslima Nasreen’s books: CB 166.1-167.3). The applicant had adequate opportunity to put his case and respond to the relevant issues. Section 425 was complied with. Ground four is rejected.
Ground five alleges a denial of natural justice. Division 4 of Part 7 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the hearing before the Tribunal (s.422B).
No breach of s.424A, nor of s.425, nor of any other provision in Division 4 has been established. The issues in contention and the doubts held by the Tribunal were put to the applicant. Procedural requirements were complied with. He was not denied natural justice.
The Tribunal rejected the applicant’s credibility, as it was entitled to do on the material before it. The applicant failed to establish his case to the satisfaction of the Tribunal. It is not for this Court to review the merits of the case.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision and has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 25 September 2007
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