SZFQB v Minister for Immigration

[2007] FMCA 1518

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFQB v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1518

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – preliminary conclusions or views expressed in a s.424A(1) notice do not, without more, indicate prejudgment supporting an inference of bias – second Tribunal can rely on s.424A notice sent by first Tribunal.

Migration Act 1958, ss.91X, 424A

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507
Johnson v Johnson (2001) 201 CLR 488
SZEPZ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 107
Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1

Applicant: SZFQB

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 785 of 2007

Judgment of: Cameron FM

Hearing date: 26 June 2007

Date of Last Submission: 26 June 2007

Delivered at: Sydney

Delivered on: 14 September 2007

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr J. Mitchell

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 785 of 2007

SZFQB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application dated 7 March 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 21 January 2007 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 14 May 2004 refusing the applicant’s application for a protection visa.

2. The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant.  There was a previous Tribunal decision signed on 20 December 2004 which was quashed by order of this Court dated 9 October 2006 (Court Book (“CB”) page 660).

3. Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.

Background facts

1. The Tribunal described the applicant as follows:

   The Applicant is aged in his early forties.  According to the details in his original application he completed 12 years of education in Chittagong in 1985.  He gave no employment history.  He said that he had lived at the same address in Dhaka from 1992 until March 2004. … since 1986 he had ‘assimilated with the family’s business’ in Dhaka which he said was an electronics business.  (CB 699).

2. The applicant claims to fear persecution in Bangladesh because of his political beliefs.

3. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-20 of the Tribunal’s decision (CB 699-715). Relevantly, they are in summary:

   a)in 1987 the applicant joined the Awami League.  He participated in demonstrations against General Ershad and had been arrested on a number of occasions in 1988.  Police had put him in custody and beaten him but he had always been released by the court;

   b)at the election in 1991, the applicant worked for Mr Paltu, the candidate of the Awami League.  Their opponent had been Mirza Abbas from the Bangladesh Nationalist Party (“BNP”).  The applicant had attended election rallies, but in the end Mr Abbas won the election and the BNP won the majority in Parliament and formed a government with the help of the Jamaat-e-Islami;

   c)in 1992, the applicant was elected as the organising secretary of the Motijheel Thana Awami League. He claimed that he had gradually become “one of the Awami League leaders in the region”. At the 1996 election, the applicant’s role had been “to unite the young forces and campaign from door to door”. The applicant arranged many street meetings where the Awami League candidate delivered speeches. The Awami League won a majority and formed a government with the help of the Jatiya Party;

   d)the applicant attended various seminars and day-to-day political activities arranged by the Awami League.  In the October 2001 election, he again worked for the Awami League.  The applicant delivered speeches at public meetings and campaigned from door to door.  The BNP won a majority and formed a government with the Jamaat-e-Islami;

   e)on 12 December 2001, a group of BNP activists led by Mirza Khokon ransacked the applicant’s family’s shop and beat the applicant mercilessly in broad daylight. They had taken away “nine lacs taka (Bangladeshi currency equivalent to 20 thousands [sic] dollars in Australia)”. The applicant’s father went to Dhanmondi police station but the police officer did not list the case because Mirza Khokon was “a power thugs [sic] of the BNP” and the brother of Mirza Abbas who was a Minister in the government at the time;

   f)the applicant began attending every public meeting held by the Awami League in Dhaka and led a procession encouraging leading activists to protest against the BNP government regime. The applicant received many threats from BNP hoodlums but he had “hoped that their days would be finished very quickly”;

   g)on 23 October 2002, the applicant led a procession towards Bangabandhu Avenue when the police began making baton charges into the procession. The applicant was slapped in the face and beaten with sticks. A fight broke out between the police and the Awami League activists. The applicant was taken to a private clinic and released a week later;

   h)after this incident the police began targeting the applicant. In 2002, the applicant was elected as the executive member of the Dhaka City Awami League. On 12 December 2003, the applicant was attacked by a group of BNP cadres at Fakirapool Bazaar, who had thrown a bomb into a shop where the applicant had been helping a friend. Both the applicant and his friend had been injured and had been admitted to a private clinic. The applicant had gone to the police station to register the case, but the police had refused to register any complaint against BNP activists “as there was high command order”;

   i)on 16 January 2004, the applicant had “brought out” a procession in Motijheel to support Awami League programs to oust the government. The police had disrupted “these processions” and had injured “many of us”. When the applicant returned home, his wife had informed him that a group of plain clothes police had come to their home as there was a police case against the applicant;

   j)after this incident, the applicant ultimately found his way to Australia.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:

   a)the inconsistencies in the applicant’s evidence with regard to what positions, if any, he held in the Awami League cast doubt on his claims regarding his involvement in the Awami League. The Tribunal found this information was also relevant to his overall credibility;

   b)the applicant gave evidence with regard to the candidates in his constituency at the 2001 election which was both internally inconsistent and inconsistent with the independent evidence available to the Tribunal, which cast doubt on his claim that he was engaged in campaigning for the Awami League candidate in his constituency at that election. The Tribunal considered that this information also cast doubt on the applicant’s claims regarding his involvement in the Awami League and that it was relevant to his overall credibility;

   c)inconsistencies in the applicant’s evidence in relation to attacks on his business and an assault on him led the Tribunal to doubt whether he was telling the truth about those events. Again, the Tribunal considered the information relevant to the applicant’s overall credibility;

   d)inconsistencies in the applicant’s evidence concerning an attack on him either by BNP supporters or by the police and the year when this occurred cast doubts on whether the applicant was telling the truth about the incident and also raised questions as to the applicant’s overall credibility;

   e)the fact that the applicant obtained a visa to travel to Australia on 1 February 2004 but did not leave Bangladesh to come to Australia until 31 March 2004, coupled with his improbable explanation for travelling to India and returning to Bangladesh in March 2004, cast doubt on whether he feared being persecuted in Bangladesh and the Tribunal again found it relevant to the applicant’s overall credibility; and

   f)the letter from a Mr Jahidul Islam Tipu tendered to the Tribunal in support of the applicant’s review application contained details which suggested that it was based on the applicant’s statement which accompanied his protection visa application and thus cast doubt on the weight to be attached to the letter.

2. The Tribunal rejected the applicant’s factual allegations saying:

   … I do not accept that the Applicant is a witness of truth.  … Since for reasons given above I do not accept that the Applicant is telling the truth regarding his past involvement in the Awami League, I do not accept that there is a real chance that he will become involved in the Awami league, or in political activity of any sort, if he returns to Bangladesh now or in the reasonably foreseeable future.  (CB 722).

Proceedings in this Court

1. The grounds of the application can be summarised as follows:

   a)prejudgment by the Tribunal, as at the time it sent its s.424A letter dated 19 December 2006 to the applicant, can be inferred from the contents of that letter and the Tribunal’s decision;

   b)the Tribunal breached s.424A by not advising the applicant of information received by the Tribunal that many members of the Awami League are prepared to offer letters of support, such as those tendered by the applicant to the Tribunal, at the request of applicants.

2. At the hearing the applicant also made a challenge to the Tribunal’s findings as to his credibility.

3. Dealing with each of these grounds in turn:

Apprehended bias

1. Section 424A provides:

   (1)  Subject to subsection (3), the Tribunal must:

   (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

   (c) invite the applicant to comment on it.

   (2)  …

   (3)  This section does not apply to information:

   (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b) that the applicant gave for the purpose of the application; or

   (c) that is non-disclosable information.

   The statutory code contained in that section requires the Tribunal to provide to the applicant the information described in s.424A(1), unless it falls within the exceptions contained in s.424A(3).

2. One consequence of that requirement which has been seen in practice is that information may come to the Tribunal’s knowledge during the course of its hearing, or at least discrepancies between the evidence given by the applicant at the Tribunal hearing and information given by the applicant at a prior time become apparent, which lead the Tribunal to serve a s.424A(1) notice. To do so inevitably tends to disclose the Tribunal’s thought processes and suggests that it has reached preliminary conclusions, even though the concept of “information” under s.424A does not encompass such things: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18].

3. All the applicant has identified as supporting an inference of prejudgment is the s.424A(1) notice dated 19 December 2006 and the Tribunal’s ultimate findings. He ignores the fact that he made no response to the Tribunal notice – as recorded at CB 715. Absent a response by the applicant to the notice, there is nothing upon which to base a conclusion that the Tribunal’s mind was closed. If the applicant did nothing to address the matters raised by the Tribunal in its s.424A(1) notice as being of concern to it, it is unsurprising that those matters ultimately formed at least part of the reason why it affirmed the delegate’s decision.

4. The fact that the s.424A(1) letter disclosed a predisposition on the part of the Tribunal is not indicative of a closed mind. In Minister for Immigration & Multicultural  Affairs v Jia (2001) 205 CLR 507 at 531-2 [71] and [72] Gleeson CJ and Gummow J said in the context of a claim of actual bias:

   Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.

   The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this Court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. (footnotes omitted).

   The same principles apply here, where the claim is that an inference can be drawn that an impartial mind is not being brought to the determination of the application or that there was no evidence which the applicant could have given which would change the Tribunal’s view:

   Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (Johnson v Johnson (2001) 201 CLR 488 at 493 [13] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.)

5. The contents of the s.424A(1) notice do not support an inference of prejudgment on the part of the Tribunal and, as a result, this ground is not made out.

Breach of s.424A

1. The Tribunal sent two s.424A(1) letters to the applicant, the first dated 9 November 2004 (CB 599) and the second dated 19 December 2006 (CB 677). In the first of those letters the Tribunal advised the applicant of the following advice received from the Australian High Commission in Dhaka:

   A reliable senior Awami League member has advised us that the Awami League documents attached to these referrals are genuine.  However, our contact further advised that the content of these documents are worded in such a way as to offer this applicant support to obtain economic refugee status abroad, rather than to verify any particular status within the Awami League.  He said many members within the Awami league are prepared to offer such documents on request from such applicants, in a humanitarian attempt to help their former supporters

   and then went on to say:

   The highlighted information could, subject to any comments you make, be part of the reason for deciding that you are not entitled to a protection visa.  The information is relevant because it could indicate that the letters, although apparently genuine, may have been written by persons who are well-known to you and who may have been motivated to assist your refugee application in Australia  (CB 599)

2. The fact that the s.424A(1) letter of 9 November 2004 was sent by the Tribunal prior to the hearing which preceded the decision which was quashed does not diminish or restrict the letter’s application to the review application on the second occasion when the Tribunal considered it: SZEPZ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 107.

3. Clearly then, the Tribunal is not guilty of the breach of s.424A alleged against it by the applicant and this ground is not made out.

Credibility finding

1. At the hearing in this Court the applicant indicated that he wished to challenge the Tribunal’s adverse credibility findings in respect of him. However, a credibility finding is part of the fact-finding function reserved to the Tribunal and, indeed, is a matter par excellence for the Tribunal: Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1. As a consequence, this issue does not disclose a basis for judicial review of the Tribunal’s decision.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently the application will be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date:  14 September 2007