SZGHN v Minister for Immigration - [2008] FMCA 217

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGHN v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 217

MIGRATION – Application for review of decision of Refugee Review Tribunal – whether failure by Tribunal to comply with s.424A or s.425 of the Migration Act – whether failure to act judicially.

Migration Act 1958 (Cth) ss.424A, 425

Minister for Immigration and Citizenship v Applicant A125 of 2003 and Another (2007) 163 FCR 285
Minister for Immigration and Citizenship v Le (2007) 97 ALD 112
Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77ALJR 1165
NACB v Minister for Immigration Multicultural Indigenous Affairs [2003] FCAFC 235
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

Applicant:

SZGHN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3544 of 2006

Judgment of:

Barnes FM

Hearing date:

12 February 2008

Delivered at:

Sydney

Delivered on:

12 February 2008

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Ms. Louise Clegg

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application be dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3544 of 2006

SZGHN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 2 November 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Bangladesh, arrived in Australia in April 2004 and applied for a protection visa. The application was refused and the applicant sought review by the Tribunal.
The Tribunal, differently constituted, affirmed the delegate’s decision in March 2005. The applicant sought judicial review of that Tribunal decision. In May 2006 this court set aside the Tribunal’s decision and remitted the matter to the Tribunal for reconsideration. That reconsideration is the subject of these proceedings.
In its findings and reason the Tribunal set out at some length the claims made by the applicant, first in his protection visa application, at the hearing conducted by the Tribunal as originally constituted, as well as claims made in writing after that hearing and also the claims made to the second Tribunal both in writing and at the second Tribunal hearing.
The applicant claimed that he had joined the youth wing of the Awami League (AL) in 1983 and that in 1988 he became the general secretary of a branch of the AL and that he participated in the politics of the AL. He claimed that he had taken part in political protests and had been arrested and detained in 1988 but released by court order. He also claimed that he had worked for the AL candidate in his electorate in the 1991 elections, that during the period in which the BNP was in power he continued to work for the AL and that he led processions against the BNP and was arrested on a number of occasions.
He claimed that he worked for the local AL candidate in the 1996 elections making a “significant contribution” and that he had been attacked by BNP activists, that he was appointed organising secretary of an AL branch and that he influenced many people to join the party. He claimed that he became one of the most popular leaders in the region, that he took part in development programs while the AL was in Government and campaigned again for the local candidate in the 2001 elections.
He claimed that after the 2001 election his home was ransacked and looted and his brother beaten and hospitalised. The applicant also claimed that he was elected as the executive member of an AL district committee in 2002 and that in May 2003 and again in August 2003 he was attacked by BNP activists. On the latter occasion he was injured and spent some days in a clinic. He also claimed that he was attacked and injured in December 2003 when involved in a public gathering where a local AL member spoke. He claimed he was attacked with a hockey stick and an iron bar and admitted to a local hospital. His brother filed a case against the attacker but no action had been taken against the attackers by the police. However he claimed that a false illegal arms case had been filed against him. An agent obtained a visa for him and paid a bribe to the airport authorities to enable him to leave Bangladesh.
At the first Tribunal hearing he claimed that he was a supporter of a liberal group of Muslims. It was later clarified that he claimed to be a member and leading activist in the Ahmadi Muslim community.
However the Tribunal found that the evidence of the applicant in the first and second Tribunal hearings showed no real knowledge or understanding of the Ahmadi sect and its core beliefs or commitment to them. It had regard to the fact that in the two years the applicant had been in Australia he had not even attempted to make contact with the Ahmadi community. It observed that it had put this fact to the applicant seeking his comments and had raised with him that this information may indicate that he was not an active or committed Ahmadi sect member and did not fear persecution on that basis.
It addressed the submission in response from the applicant’s adviser that he had been instructed to say that the applicant was an Ahmadi and would receive full membership after two years. The Tribunal observed that no further evidence of this was provided, such as a letter from the Ahmadi community, whether in Australia or Bangladesh, or from anyone else.
In light of this, and the fact that the applicant had revealed “no real knowledge” of the Ahmadi sect and had not provided evidence to support this claim, the Tribunal found that it was not able to satisfy itself that the applicant was an Ahmadi or that he had been involved with that community in any way. The Tribunal accepted that in the two years the applicant had been in Australia he had not attempted to make contact with the Ahmadi community. The Tribunal did not accept that the applicant was a member of the Ahmadi sect, that he had been in contact with it in Australia or that he would receive full membership in two years. Hence it was satisfied that he did not have a well-founded fear of serious harm amounting to persecution for a Convention reason on this basis. The Tribunal also found that it followed that the applicant had lied to it about this matter. It found that he was not a credible witness.
The Tribunal then considered what it described as the applicant’s main claims, being a fear of persecution on the basis of political opinion due to his claimed affiliation and leadership position with the Bangladeshi Awami League. It summarised his claims.
The Tribunal first addressed the applicant’s claim that he was in a leadership position with the Awami League. It found that it had not been able to satisfy itself “that the applicant was what could be regarded as a genuine and established leader of the Awami League or held any positions of real importance” in the AL. It made that finding despite the fact that it accepted from some evidence he had provided that the applicant had been “associated with” Awami League politics. The Tribunal referred in that context to letters of support that the applicant had provided, including letters from the President of the branch of the Awami League of which he claimed to be organising secretary, from the President of the District Committee of which he claimed to be an executive member and from the General Secretary of the AL.
The Tribunal had regard to the fact that at the second hearing it had asked the applicant exactly what he did as organising secretary of the branch and that he claimed that his job was to look after meetings or organise them. The Tribunal recorded that when asked for more details, the applicant claimed to conduct meetings, arrange venues and organise a program if there was one. The Tribunal accepted these claims, but was not able to satisfy itself that these were the duties of an Awami League leader or that because of these activities the applicant’s political opponents would wish to harm him because he was a threat to them or for any other Convention-related reason.
The Tribunal also had regard to the applicant’s claims about assisting candidates in the 1996 elections. It found that he provided “the most vague and simplistic answers” when it attempted to explore these activities and the reasons for supporting the AL at the hearing were “incompatible with those of a party activist let alone a leader”.
In relation to his claimed involvement in the 2001 elections the Tribunal did not accept the “level of involvement in politics [he had claimed at the hearing] is that of a leader, let alone party activist in Bangladesh”. It accepted that the applicant on occasion undertook “some very limited and menial activity” on behalf of the Awami League, but found that it was not able to satisfy itself “that he held a position in [the Awami League] of any political significance even at the local level”, or that he had a “political profile even in his local area”.
The Tribunal also referred to the fact that it had put to the applicant at the second hearing that he was claiming not just to be a member but also to be a leader of the AL. On that basis it had asked him to tell it in detail about his claim of leadership and the philosophy, goals and manifesto of the Awami League. It had regard to the fact that the applicant was able only to identify four main principles but could not elaborate to any extent on the party philosophy, electoral platform or manifesto.
The Tribunal stated:
“In short, and while the Tribunal accepts that [the applicant] supported the Awami League, it does not accept that he was what could be regarded as a leader of the party even at the local level and the Tribunal does not accept this claim. Nor as a result of his extremely limited knowledge of the Awami League, and indeed politics more generally in Bangladesh, the Tribunal does not accept his claim made in the adviser’s submission dated 22 August 2006 that he has vast knowledge of Awami League politics and was a leader of the Awami League.
It follows that the Tribunal is also satisfied that he has embellished his claims in order to enhance his claims for a protection visa, and again finds that he is not a credible witness.
The Tribunal then considered the applicant’s claims on the basis that, even if he were not a leader, it had accepted that he had a level of involvement with the AL as an ordinary AL supporter. It referred to country information put to the applicant to the effect that despite the violence of politics in Bangladesh the AL was not being persecuted and that Bangladeshis with a pro-Awami League political opinion did not face persecution. It had regard to the applicant’s adviser’s response and to information submitted on behalf of the applicant in relation to particular events in Bangladesh affecting AL activists or supporters.
The Tribunal also addressed the applicant’s claims to have suffered injuries on a number of occasions. It accepted that the applicant “may have on occasions been hurt when he was involved in some activities”. However it observed that there was no medical evidence from either Bangladesh or Australia that these injuries were serious harm amounting to persecution or were for a Convention-related reason.
In light of this and its earlier finding about his credibility, and notwithstanding that one of the letters of support stated that the applicant had experienced a number of unspecified brutal attacks, the Tribunal found that, given the applicant’s “extremely limited involvement in politics in Bangladesh, [it] has not been able to satisfy itself that these were for a Convention-related reason”.
The Tribunal was satisfied that if the applicant’s home had been ransacked in October 2001 and if he had been brutally attacked in May 2003 and admitted to hospital, again injured and admitted to a clinic in August 2003 and tortured as claimed, then he would have immediately left Bangladesh after being issued with a passport in January 2004. However, it accepted that he did not do so for another three months.
Based on his claims and what the Tribunal described as “his previous very limited political activities” and country information the Tribunal concluded that it was not able to satisfy itself that there was a real chance that the applicant would be subject to serious harm amounting to persecution for a Convention reason if he returned to Bangladesh now or in the reasonably foreseeable future because of his past or future involvement in AL politics.
The Tribunal also addressed a claim that there may have been some vote rigging in the 2001 election, such that the election outcome was flawed. Based on country information it did not accept that the applicant had a well-founded fear of serious harm amounting to persecution for a Convention reason on this basis.
It also addressed the applicant’s claim in his protection visa application that “a case of illegal arms” had been filed against him and that it had become so dangerous for him that he had to leave Bangladesh. It referred to his evidence in this respect and a supporting letter which stated that if he returned to Bangladesh he would be implicated in false charges. The Tribunal observed that it had raised with the applicant issues such as the fact that he had been legally issued with a Bangladesh passport and allowed to leave Bangladesh despite the fact that he had had earlier claimed that he obtained the passport by bribery. It also referred to country information in relation to the independence of courts in Bangladesh and to the applicant’s adviser’s reply to this information and the conclusions that might be drawn from it.
The Tribunal accepted that an illegal arms case had been laid against the applicant in the past and could be in the future. However it was satisfied that it was common practice in Bangladesh for political activists to bring false charges against their political opponents and found that the applicant did not have a well-founded fear of serious harm amounting to persecution for a Convention reason because of this, particularly given his very limited political activities and profile. It had regard to the fact that while he claimed that a warrant had been issued against him, he did not claim to have been arrested or to have been denied a passport. It found that notwithstanding that he claimed he had to pay a huge bribe, if a warrant had in fact been issued for his arrest he would not have been issued with a passport and allowed to leave Bangladesh if the false charges were of any significance and did not accept that claim.
The Tribunal found that, in any event, a person in the applicant’s position could rely on the courts in Bangladesh in relation to any false charges. It was not able to satisfy itself that the applicant had a well-founded fear of persecution for a Convention reason on this basis, that there was a real chance that the applicant would experience serious harm amounting to persecution from the police, the courts or his political enemies for a Convention reason or that effective State protection would be denied to him if he sought it for a Convention-related reason.
The Tribunal concluded that, considering all the applicant’s claims and circumstances both individually and cumulatively, it was not satisfied that there was a real chance he would be subject to serious harm amounting to persecution for a Convention reason if he returned to Bangladesh now or in the foreseeable future.
The applicant sought review by application filed in this court on 30 November 2006. He relies on an amended application filed on 29 March 2007 and written submissions filed in court.
The first ground in the amended application is that the Tribunal committed jurisdictional error by not giving the applicant an opportunity to be heard on the issues arising in relation to the decision under review “when it rejected his claim to fear persecution by reason of his being hurt when he was involved in some political activities”.
There are two particulars. The first is that the Tribunal “considered it determinative that there was no medical evidence confirming that the applicant’s injuries were for a Convention-related reason”. The second is that “However, the issues arising on review and which ordinarily are the issues that the original decision-maker identified “as determinative against the applicant” did not include the paucity in medical evidence confirming the Convention related nature of the applicant’s injuries”.
The applicant’s written submissions explain that this ground is intended to raise s.425 of the Migration Act 1958. Reference is made to the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 in support of the proposition that the critical issues on the review should be brought to the attention of the applicant.
Section 425(1) of the Act provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. In SZBEL the High Court addressed the application of principles of procedural fairness. However, in the course of their joint judgment Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ referred to the context of the Migration Act in order to determine the scope of the requirements of procedural fairness. While determined on the basis of procedural fairness principles, SZBEL also canvasses the extent of the Tribunal’s obligations under the statutory scheme in the Migration Act.
In particular, as their Honours stated (at [33]), the Migration Act defines the nature of the opportunity to be heard that is given to an applicant for review by the Tribunal. Their Honours considered the “important” concept “of the issues arising in relation to the decision under review” and indicated that those issues would not be sufficiently identified in every case by describing them simply as whether the applicant was entitled to a protection visa. It was said to be relevant that the Tribunal was reviewing a particular decision of a delegate for which reasons had been given. Their Honours stated (at [35]) that while the Tribunal was not confined to the issues the delegate had considered, if the Tribunal took no step to identify some issue other than those the delegate considered dispositive and did not tell the applicant what that other issue was, the applicant was entitled to assume that the issues the delegate considered dispositive were the issues arising in relation to the decision under review. On that basis that it was suggested that the starting point in identifying issues arising in relation to the decision under review would usually be the reasons given for the decision of the delegate.
It is also relevant to note that in Minister for Immigration and Citizenship v Applicant A125 of 2003 and Another (2007) 163 FCR 285s, the Full Court of the Federal Court found that s.425 did not require the Tribunal to identify the significance of questions that it put to an applicant in a hearing or the ultimate matter or issue to which those questions went. The Court observed that such an approach was not required by SZBEL and was an attempt to import the requirements of s.424A(1) of the Act into s.425 (at [58]).

Their Honours referred with approval (at [87]) to what was said in SZBEL at [47] to the effect that where“there are specific aspect of an applicant’s account that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted”.
Nonetheless, as the Court went on to state (at [89]), the Tribunal is not obliged to provide a running commentary upon what it thinks about the evidence that is given (see SZBEL at [48]) and SZIMM v Minister for Immigration and Multicultural Affairs [2008] FMCA 34 at [41] – [72]).
In this instance the applicant claims that the Tribunal should have raised with him at the hearing that there was no medical evidence confirming that his injuries were for a Convention-related reason. This claim does not refer to any “issue” as to any injuries or whether the applicant was hurt (that is, factual aspects of his claim, such as the factual aspects that were considered by the High Court in SZBEL). It is apparent from the Tribunal reasoning that it did accept that the applicant may have on occasion been hurt when he was involved in some activities, although it observed that he had not provided any medical evidence that such harm was sufficient to constitute serious harm amounting to persecution or that it was for a Convention-related reason. It also took into account its view that if the applicant had been injured and tortured as claimed he would have left Bangladesh immediately after he was issued with a passport, but did not do so.
The applicant’s contention is that the Tribunal should have raised with him its concern about whether there was evidence to satisfy it that an element of the Convention definition was met.
I am not satisfied on the material before me that s.425 extends to requiring the Tribunal to put to an applicant its preliminary reasoning in relation to whether or not an aspect of the Convention definition is met or to provide “a running commentary” upon what it thinks about the evidence that is given.
In any event, there is no transcript of either Tribunal hearing before the Court to provide an evidentiary basis for this claim and it has not been established that there was a failure to comply with s.425 on the basis contended for in the amended application.
Insofar as it is intended in ground 1 to suggest that there was a contravention of s.424A, s.424A does not require the Tribunal to put to the applicant for comment its subjective thought processes. (See SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 and Applicant A125 of 2003).
It was accepted in SZBYR by Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ (by reference to earlier authorities in relation to the scope of section 424A in particular the observations by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477) that the notion of “information” in s.424A(1) 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”.
Accordingly no failure to comply with s.424A is established in relation to the Tribunal’s approach to the applicant’s claims of harm and the absence of medical evidence confirming that the injuries were for a Convention-related reason.
In written submissions it was contended that the Tribunal was required to give particulars of information to the applicant under s.424A. It seems from the applicant’s oral submissions that his concern was with the application of s.424A(1) to country information before the Tribunal.
First, I note that the Tribunal did, in fact, put a number of aspects of independent country information to the applicant for comment in a letter that was sent to him under s.424A. In any event s.424A(3)(a) applies to information not specifically about the applicant or another person and just about a class of person of which the applicant or other person is a member, such as country information. Such information is outside the operation of s.424(1). No failure to comply with s.424A is established in this respect.
The applicant’s contentions take issue with the manner in which the Tribunal dealt with particular items of country information. The weight it attributes to particular items of country information is a matter for the Tribunal. Insofar as the applicant challenges that, he seeks impermissible merits review.
There is nothing in the material before the Court to establish that the conclusions the Tribunal reached were not open to it for the reasons that it gave on the material before it (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10). The fact that it acknowledged that the applicant took issue with this information does not establish jurisdictional error.
This claim raises an aspect of the second ground and, perhaps, reflects part of the applicant’s underlying complaint in relation to this decision which, as counsel for the respondent accurately summarised, appears to be a concern with the fact that while the Tribunal accepted certain aspects of his claims, it nonetheless ultimately found against him. In particular, the Tribunal accepted that he may have been hurt, but was not satisfied that such harm was for a Convention reason. Further, while it accepted aspects of his claims about what he did in connection with the Awami League, it was nonetheless not satisfied that the level of involvement that he had or indeed his level of knowledge was such as to satisfy it that he was a leader (even on a local basis) or a party activist in the manner that he had claimed.
Ground 2 is as follows:
The Tribunal failed to act judicially and thereby committing jurisdictional error when it found that since “the Applicant has not provided any medical evidence … that his injuries were serious amounting to persecution or were for a Convention related reason” the Tribunal could not be satisfied that a number of the unspecified brutal attacks attacks the Applicant has experienced were for a Conventions related reason.
Particulars:
a. While the Tribunal reached a state of satisfaction based on its assessment of the Applicant having “extremely limited involvement in politics in Bangladesh, it nevertheless accepted from some evidence presented (CB 803) that he been associated with Awami League politics.
b. It was irrational and not open to the Tribunal to reach its state of satisfaction about the applicant’s alleged “extremely limited involvement in politics” given the evidence considered at CB 802.
The applicant’s complaint of illogicality in relation to the Tribunal’s treatment of his claims about injuries and the absence of medical evidence, and more generally in relation to his claims about involvement in the Awami League is not such as to establish a jurisdictional error.
The reasoning of the Tribunal is set out above. In relation to the claimed harm it did not simply rely on the absence of medical evidence. It also had regard to the applicant’s lack of credibility and his limited involvement in politics in not being satisfied any attacks were for a Convention-related reason.
It was open to the Tribunal to accept certain aspects of the applicant’s claims but to nonetheless find for the reasons that it gave that he had a limited involvement with Awami League politics which was not such as to give him a well-founded fear of serious harm amounting to persecution for a Convention reason. It gave reasons for its findings that he was not involved with the Awami League at the level at which he had claimed and that he did not have such a fear on the basis of his membership or support for the AL or (for the reasons discussed above) on the basis of the false charge that had been laid against him or the prospect of such on return to Bangladesh. Such factual findings are a matter for Tribunal. In any event want of logic does not itself constitute error of law (see NACB v Minister for Immigration Multicultural Indigenous Affairs [2003] FCAFC 235 at [30] and NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 at [23] – [27]).
The circumstances are not such that the Tribunal decision has been shown to be illogical in a manner constituting jurisdictional error. In reaching this conclusion I have had regard to principles of unreasonableness in the context of the Migration Act (as to which see Minister for Immigration and Citizenship v Le (2007) 97 ALD 112 and the general statement of principle by Kenny J at [63] to [64]). This is of particular relevance insofar as it may be intended to suggest that the Tribunal failed to obtain information on the extent of the applicant’s injuries or to seek medical evidence in that context. This is not a case in which the decision was unreasonable in a manner constituting an improper exercise of power on the principles that were considered in cases such as Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155. Nor more generally, is it a case in which unreasonableness has been established in the sense of a failure to act judicially as discussed by Allsop J in NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [131] –[135] and see Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77ALJR 1165 at [8] and [9] per Gleeson CJ and [34] – [37] per McHugh and Gummow JJ. It has not been established that the Tribunal acted capriciously, arbitrarily or by whim.
Accordingly, as no jurisdictional error has been established on any of the bases contended for by the applicant, the application must be dismissed.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 3 March 2008