SZGCO v Minister for Immigration & Anor
[2007] FMCA 11
•16 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGCO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 11 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Bangladesh claiming fear of persecution for reason of political opinion – whether Tribunal failed to consider the evidence – bias – bad faith – credibility – merits review – natural justice – procedural fairness – country information – whether Tribunal complied with Migration Act 1958 (Cth) s.424A – whether Tribunal failed to investigate the applicant’s claim – whether Tribunal failed to comply with Migration Act 1958 (Cth) – irrationality and illogicality – rational or logical foundation – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.425 – no duty to investigate claims – obligation to provide information under Migration Act 1958 (Cth) does not extend to the Tribunal’s thought processes or assessments – Tribunal under no obligation to canvass matters of country information with the applicant – want of logic does not constitute an error of law – whether Tribunal failed to consider an integer of the applicant’s claim – no reviewable error. |
| Migration Act 1958 (Cth), ss.91R, 422B, 424, 424A, 425, 474 |
| SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 followed Webb v R (1994) 181 CLR 41 followed Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALJR 992 followed Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 referred to VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 referred to VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 referred to SFGB v Minister for Immigration and Multicultural Affairs (2003) 77 ALD 402; [2003] FCAFC 231 referred to SZIBR v Minister for Immigration and Multicultural Affairs [2006] FMCA 1490 distinguished Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 80 ALD 568 referred to NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52 followed M153 of 2004 & Ors v Minister for Immigration [2006] FMCA 42 referred to NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 followed SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546 followed |
| Applicant: | SZGCO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 975 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 31 October 2006 |
| Date of Last Submission: | 31 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 16 January 2007 |
REPRESENTATION
| Counsel for the Applicant: | Dr Azzi |
| Counsel for the Respondents: | Mr Kennett |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Refugee Review Tribunal is joined as a Respondent to the application.
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $9,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 975 of 2005
| SZGCO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal signed on 3rd March 2005 and handed down on 24 March 2005. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
By his amended application filed on 25th July 2005 the applicant seeks the following orders:
i)a writ of certiorari to quash the Tribunal’s decision; and
ii)A writ of mandamus remitting the application to the Tribunal for determination according to law.
Background
The applicant is a citizen of Bangladesh who arrived on 29th June 2004. On 15th July 2004 he applied for a protection (class XA) visa on the ground of political opinion, having been suspected of involvement with persons who assassinated President Ziaur Rahman.
The application for a visa was refused on 12th October 2004, so the applicant applied to the Refugee Review Tribunal for review of that decision.
Application for Review by the Refugee Review Tribunal
The applicant attended a hearing of the Tribunal accompanied by his migration adviser and a witness. He also provided written submissions and other documents in support prior to the hearing.
At the hearing the applicant essentially repeated the claims he had made in his earlier submissions. The Tribunal asked the applicant a number of questions about his case, including questions about the “false case” that the applicant said had been brought against him by or at the instigation of his political rivals in the BNP.
The Tribunal consulted a number of independent sources of information about the situation in Bangladesh and asked the applicant about the matters contained in some these sources. The applicant’s migration agent, Mr Mollah, asked the Tribunal for time to provide written submissions after the hearing, to which request the Tribunal agreed.
The applicant’s witness gave evidence and, as the tribunal said, essentially repeated claims made by the applicant. It transpired, however, that the witness had left Bangladesh and emigrated to New Zealand in 1986. Because the witness had not lived in Bangladesh for almost twenty years and had not witnessed any of the difficulties described by the applicant, the Tribunal commented at the hearing that it did not find the witness’s evidence to be compelling.
The applicant’s migration adviser submitted a written submission on 14th February 2005, which quoted from a number of sources, including the 2002 World Refugee Council Report on Bangladesh. The applicant also provided a number of documents in Bengali complete with English translations relating to certain legal proceedings in Bangladesh.
The Tribunal considered independent country information on a number of matters, including the Special Powers Act 1974, the Jatiya Party and human rights and political violence in Bangladesh.
The Tribunal’s findings and reasons
The Tribunal accepted the applicant’s claim to have been in the Army in 1981 when President Zia was assassinated. The Tribunal also accepted that:
·The applicant was detained for four months.
·The applicant was investigated and dismissed from the Army.
·The applicant was a member of the JP Uttara Branch and suffered physical attacks by political opponents while participating in political activities.
·The applicant spent fourteen months in prison during 1999 and 2000.
The Tribunal was not satisfied that these claims by the applicant were credible:
·That the applicant had been targeted by the BNP since 1981;
·That the applicant was targeted by the Awami League and the BNP government through a politically-motivated false case; and
·That the authorities did not accept his case because they refused to take action against government supporters.
The Tribunal proceeded to give reasons for not being satisfied about those parts of the applicant’s claims. The Tribunal referred to a number of different sources of country information in its reasons for not accepting the applicant’s claims.
The Tribunal was satisfied that JP members are not commonly targeted by either the BNP or the Awami League, which will be the only parties of any significance in Bangladesh in the reasonably foreseeable future. The Tribunal found that the JP does not pose a threat to either of the major parties and is not, therefore, a particular target for them. Accordingly, the Tribunal was not satisfied that the applicant would be a person of particular interest or concern to BNP or Awami League governments or others in the reasonably foreseeable future so the applicant’s fear was not well-founded.
The Tribunal was also satisfied that the attacks suffered by the applicant in the past were “unique and random” and that the applicant would be able to express his political opinion in Bangladesh without adverse interest from political opponents or the authorities. Accordingly, the Tribunal found that the applicant did not have a well-founded fear of persecution in Bangladesh for reasons of political opinion and affirmed the delegate’s decision not to grant a protection visa.
Application for judicial review
The applicant commenced proceedings by filing an application on
19th April 2005. He filed an amended application on 25th July 2005.
In that amended application the applicant adopted the grounds of relief in his earlier application and added another ground. He has recently obtained legal representation and his counsel has filed a written submission in which he addresses what he describes as “Grounds 1 & 2” together, “Grounds 3 & 4” together, and does not press “Ground 5”.
Unfortunately, this characterisation by the applicant’s counsel was not much help, as the applicant, or whoever drafted his application and amended application (apparently not the applicant’s counsel) did not see fit to number the grounds. On one view, the applicant’s original application contains five grounds and the amended application includes another ground, making a total of six. On another view, the “particulars” in the amended application (there are two sets) contain another six grounds that I can discern. The written submissions by the applicant’s counsel refer in paragraph 2 to “the myriad grounds of review pleaded”.
Counsel for the applicant is therefore either of the view that there are “myriad” grounds (i.e. an indefinitely great number) or five, the fifth of which is not pressed. I can identify either six grounds, or twelve.
To add to the confusion, counsel for the Minister identifies a total of four.
I will set out what appear to be the grounds and deal with them in order.
The grounds in the application and amended application
In his application filed on 19th April 2005 the applicant sets out five grounds (which I have numbered):
(1)The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction by asking itself the wrong question regarding my persecution and did not take into considering (sic) of the oral evidence that was given by the RRT hearing.
The applicant has not established that the Tribunal asked itself the wrong question about his claim of persecution. The Tribunal decision in its preamble considers the definition of persecution as involving serious harm to the applicant by reference to s. 91R of the Migration Act. The Tribunal notes that:
·Persecution implies an element of motivation on the part of those who persecution for the infliction of harm.
·The persecution which the applicant fears must be for one of the reasons enumerated in the Refugees Convention – race, religion, nationality, membership of a particular social group or political opinion.
·An applicant’s fear of persecution for a Convention reason must be a well-founded fear.
There is no error demonstrated in the Tribunal’s explanation of persecution.
Similarly, the Tribunal does not appear to have failed to consider the applicant’s oral evidence. As counsel for the Minister submitted, the Tribunal summarised the applicant’s oral evidence, as set out at pages 160 and 161 of the Court Book, and clearly accepted parts of his evidence relating to his involvement in politics and his detention in 1981. In disagreeing with other aspects of the applicant’s claims the Tribunal referred specifically to at least one aspect of his oral evidence. In any event, the Tribunal was under no obligation to set out in detail the evidence that it did not find convincing and no inference can be drawn that the Tribunal failed to consider the applicant’s oral evidence. This ground has not been made out.
(2)The Tribunal denied the application (sic) natural justice in determine the appeal in that the Tribunal was biased, or in the alternative, there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision.
There is no evidence of denial of natural justice. The applicant was invited to attend a hearing and duly did so. He gave evidence which was considered by the Tribunal. In any event, the natural justice hearing rule is circumscribed by the provisions of s.422B of the Migration Act, which applies in this case.
The only reason why the applicant claims to have been denied natural justice is that he says the Tribunal was biased, but he has provided no particulars of that allegation. An allegation of bias or bad faith on the part of the Tribunal is a serious matter involving personal fault on the part of the decision maker. It is not to be lightly made and must be clearly alleged and proved. The circumstances in which the court will find an administrative decision maker had not acted in good faith (or has shown bias) are rare and extreme, especially where all that the applicant relies upon is the Tribunal’s decision record (see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [43] – [44]).
The core of the test for bias for decision makers exercising public power is whether the relevant circumstances are such as would give rise, in the mind of a fair-minded and informed member of the public, to a reasonable apprehension of a lack of impartiality on the part of the decision maker.[1] This test was confirmed by the High Court of Australia in Webb v R (1994) 181 CLR 41. In my view, there is no evidence of any circumstance that would give rise, in the mind of a fair-minded and informed member of the public, to a reasonable apprehension of a lack of impartiality on the part of the Tribunal member in this case. This ground of review has not been made out.
[1] See Aronson, M., Dyer, B. & Groves M, Judicial Review of Administrative Action (Third Edition) at 565
(3)The Tribunal in its decision ‘findings and reasons’ has harshly mentioned that my history does not inspire confidence in my persecution. I do not accept this comment.
This claim appears to be no more than a challenge to a conclusion reached by the Tribunal about the credibility of the applicant’s evidence of having been persecuted. It would appear to be an attempt to engage in a review of the merits of the Tribunal’s decision, which is not available in proceedings for judicial review. It is not a ground of review.
(4)The Tribunal has denied the procedural fairness by ruling out my claim as fabricated without proper investigation. If the reliance was going to be placed to this I was not given an opportunity to contest at any time prior to the RRT decision.
In so far as the applicant criticises the Tribunal for rejecting his claim “without proper investigation” the applicant appears to be contending that the Tribunal had an obligation to investigate his claim. There is no positive duty to investigate claims on the part of the Tribunal (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALJR 992 at [43]). Whilst s. 424 of the Migration Act provides that, in conducting the review, the Tribunal may get any information that it considers relevant, there is no obligation on the Tribunal to do so. The Tribunal has the power to obtain further information but it does not have a duty to investigate the applicant’s claims.
Counsel for the Minister in his written outline of submissions characterises this claim by the applicant as a claim that the Tribunal failed to give him “an opportunity to address the possible finding that his claims were fabricated”.[2] He goes on to submit, correctly in my view, that the obligation of the Tribunal fairness was limited by s.422B of the Migration Act to complying with the express provisions of Division 2 of Part 7 of the Act. The obligation to warn the applicant about potentially adverse material was exhaustively provided for in
[2] Respondent’s Written Submissions at [9]
s.424A (see Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61). The obligation that arises under s. 424A is limited to certain “information” and does not extend to the Tribunal’s thought processes or assessments of the evidence (see VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]).
(5)The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome.
The Tribunal used all the information for matter of reasoning and evaluation of my case for the protection visa. The Tribunal was preoccupied and did not have a fresh look.Counsel for the Minister, in his written outline of submissions, characterised this ground as “failure to give the applicant particulars of, and an opportunity to address, the country information upon which the Tribunal relied”.[3] The subject matter of this claim is covered by
ss.422B and 424A. He submitted, correctly, that the Tribunal was under no obligation to canvass matters of country information with the applicant (see VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178). This ground of review has not been made out.
[3] Respondent’s Written Submissions at [10]
The amended application contains a further ground and, in its particulars, what may appear to be further grounds (or sub-grounds), which I will number and set out as follows:
(6)That the RRT decision was effected 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
This may be the ground that counsel for the applicant indicated in paragraph 30 of his written submission as “Ground 5” that the applicant did not press. The ground is quite meaningless, as I have indicated in earlier decisions. It is an example of “pseudo law” or perhaps “lawbabble”, i.e. a statement in legalese purporting to be a proposition of law but in reality devoid of meaning.
(7)The Tribunal did not properly consider in assessing the chance of my persecution and persecuted on my return to Bangladesh based on the member of a political party of Jatiyo Party in Bangladesh. I was persecuted because of my political opinion. Because of my political popularity I was persecuted by the BNP & Awami League. If I (were) persecuted by the BNP & Awami League it is not possible for me to safely stay in Bangladesh. I will be persecuted if I return back to Bangladesh because of my political opinion. It is a convention based persecution. I have sufficient documentary evidences to establish my persecution.
But unfortunately tribunal overlook that and made a decision in bad faith.This ground, if it is a ground, is essentially a restatement of the applicant’s factual claims and a claim that the Tribunal failed to consider the applicant’s documentary evidence. As a challenge to the Tribunal’s factual findings, this ground must fail as being an attempt at merits review, which is unavailable in judicial review proceedings. There is no evidence of any bad faith other than a bald assertion to that effect.
As to the claim that the Tribunal failed to consider the applicant’s documentary evidence, the Tribunal in the “Claims and Evidence” section of its Decision Record refers to a number of documents submitted by the applicant including:
·Mr Garrett MP.
·A submission on 4th February 2005 including a photocopy of a photograph of himself and a number of items of correspondence.
·A submission on 10th February 2005.
·A post-hearing submission on 14th February 2005.A submission on 1st February 2005 including a letter from
The applicant does not identify any document not considered.
This ground of review has not been made out.
(8)Tribunal finding of my review application of refugee claims was not based upon reasoning which provided a rational or logical foundation for this belief.
The applicant’s counsel submits that the Tribunal fell into jurisdictional error in circumstances where there was no evidence to support its findings that all suspects in President Zia’s assassination (either ‘serious’ or ‘mere’ suspects) were killed and that the applicant was not seriously suspected of being involved in the assassination in circumstances where each finding was a critical step in its ultimate conclusion (see SFGB v Minister for Immigration and Multicultural Affairs (2003) 77 ALD 402; [2003] FCAFC 231 at [19]; SZIBR v Minister for Immigration and Multicultural Affairs [2006] FMCA 1490 at [44]-[50]). It was not reasonably open, he submitted, to the Tribunal to draw the inference that the applicant was not seriously suspected of the assassination because he survived to tell the tale.[4]
[4] Applicant’s Outline of Submissions [8] – [9]
It was submitted that the Tribunal committed jurisdictional error of law because its particular finding about the applicant’s involvement in the assassination was not ‘based on some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding …is …logically self-contradictory’ (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 312 at 356-357 and 367; WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 80 ALD 568 at [22]). The applicant submitted that the Tribunal’s finding implies that to have a well-founded fear of persecution by reason of being suspected of involvement in the assassination of President Zia the applicant would have to be dead.[5]
[5] Applicant’s Outline of Submissions [10] – [11]
True it is that the Tribunal made the statement that “if indeed the applicant was seriously suspected of involvement in the assassination, in any capacity, he would have been killed either at the time of the assassination or soon thereafter.” However, it is of no assistance to the applicant to rely on the decision in SZIBR v Minister for Immigration and Multicultural Affairs (supra) in support of the proposition that the Tribunal fell into jurisdictional error by making findings that were irrational, illogical or not based upon findings of fact supported by logical grounds. In SZIBR, a decision of mine, I specifically rejected this ground, saying at [41] – [42] that want of logic does not of itself constitute an error of law and the Full Court of the Federal Court has held that there is nothing that a departure from the earlier line of decisions in the Federal Court that illogical reasoning does not in itself constitute an error of law or jurisdictional error (see NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52; M153 of 2004 & Ors v Minister for Immigration [2006] FMCA 42; NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [29] and [30]; SZEEO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 546). SZIBR was decided on another ground (a “no evidence” ground).
In any event, the Tribunal’s finding did not show a lack of rationality or logicality.
The applicant’s claim of illogicality or irrationality or not making a finding based on reasoning which provided a rational or logical foundation does not establish a jurisdictional error and therefore fails.
(9)The Tribunal did not observe Migration Act 1958 properly to making the decision.
The applicant does not specify in what way the Tribunal did not observe the Migration Act nor which section or sections were not followed. In the absence of particulars this ground fails.
(10)The Tribunal fail to consider my documentary evidences with the proper way which the Migration Act 1958 provided in my claims.
This ground has already been considered and dismissed at 21 (7) above.
(11)The Tribunal did not provide me adequate particulars of the independent information. The Tribunal did not provide me an adequate opportunity to respond to the substance of the information.
This ground has already been considered and dismissed at 21 (5) above.
(12)My witness did not get an opportunity to provide his oral evidence properly.
If this ground is a complaint that the Tribunal failed to comply with
s.425 of the Migration Act in not providing a proper hearing, it does not particularise any way in which the applicant’s witness was hindered or prevented from giving evidence. The Tribunal decision record shows that the witness’s evidence was given little or no weight because the witness had resided in New Zealand since 1986 and was merely restating the applicant’s claims. The applicant has not led any evidence to show that there was any defect in the way that the hearing was conducted. This ground of review has not been made out.
Grounds identified by counsel for the Minister
Counsel for the Minister, in his written submission[6], submitted that the original application contained an extensive critique of the reasoning leading to certain factual conclusions by the Tribunal which does not give rise to any basis upon which the Court could set aside the Tribunal’s decision. He then proceeded to identify three allegations of procedural error and one further complaint, namely:
(1) Failing to consider ‘the oral evidence’
This ground has been considered and dismissed at 20 (1) above.
[6] at [9]
(2) Bias or an apprehension of bias.
This ground has been considered and dismissed at 20 (2) above.
(3)Failure to give the applicant an opportunity to address the possible finding that his claims were fabricated.
This claim has been considered and dismissed at 20 (4) above.
The further complaint identified by counsel for the minister was this:
(4)Failure to give the applicant particulars of, and an opportunity to address, the country information upon with the Tribunal relied.
The above ground was considered and dismissed at 20 (5) above.
Grounds in the Applicant’s Outline of Submissions
Counsel for the applicant submitted that there was no evidence to support the Tribunal’s findings that all those suspected of involvement in the assassination of President Zia were killed and that, therefore, the applicant was not “seriously suspected” of being involved in the assassination. In my view there was evidence upon which the Tribunal was entitled to rely for this finding, being the information from external sources provided by the applicant, being a letter from Amnesty International dated 3rd February 2005. Whether that evidence supported a finding that a person genuinely suspected of involvement in the assassination would be killed was a matter for the Tribunal.
In paragraphs 13 to 29 of the Applicant’s Outline of Submissions, it is contended that the Tribunal fell into jurisdictional error in two ways:
(a)By failing to consider important elements of the applicant’s claims, i.e. whether or not initiating charges under the Penal Code as a pretext for political activities could constitute persecution;[7] and
(b)By failing to act judicially and in accordance with substantial justice and the merits of the case by not considering whether initiating criminal charges against the applicant was a pretext for his previous political activities.[8]
[7] Applicant’s Outline of Submissions at [28]
[8] Ibid at [29]
The evidence before me shows that the Tribunal did indeed consider these claims in its findings and reasons under the heading Politically Motivated False Case. The Tribunal was not satisfied, on the basis of the documents that the applicant provided, that the case against the applicant was either politically motivated or false.
In my view, the Tribunal did not fail to consider an integer of the applicant’s claim. It is not required of the Tribunal to consider whether initiating politically motivated false charges can amount to persecution when the Tribunal has already rejected the applicant’s claim that the charges against him were either politically motivated or false.
Conclusions
No jurisdictional error has been made out. The Tribunal decision is therefore a privative clause decision as defined by s.474(2) of the Migration Act and is not, therefore, subject to orders in the nature of either certiorari or mandamus (s.474(1)).
The application will be dismissed.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 8 January 2007
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