SZHFF v Refugee Review Tribunal

[2006] FMCA 271

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHFF v REFUGEE REVIEW TRIBUNAL & ANOR [2006] FMCA 271

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of Bangladesh claiming well-founded fear of persecution for Convention-related reasons of religion and political opinion – Hindu.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) s.475A

NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744
Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27
Naing v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 336 Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908
Zaw Niang Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212
Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196
Kioa v West (1985) 159 CLR 550
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749
Minister for Immigration & Multicultural Affairs, Ex Parte Durairajasingham (2000) 168 ALR 407
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
SZFEG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1405
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 2006 ALR 471

Applicant: SZHFF

First Respondent: REFUGEE REVIEW TRIBUNAL

Second Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2742 of 2005

Judgment of: Scarlett FM

Hearing date: 1 February 2006

Date of Last Submission: 1 February 2006

Delivered at: Sydney

Delivered on: 1 February 2006

REPRESENTATION

The Applicant: Appeared in person

Counsel for the Respondent: Mr Kennett

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The Application is dismissed.

2. The Applicant is to pay the Second Respondent’s costs fixed in the sum of $5,500.00 and I allow six (6) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2742 of 2005

SZHFF

Applicant

And

REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application for review of a decision of the Refugee Review Tribunal.

2. The decision was made on 17^th August and handed down on

   
   

   6 September 2005. 

Background

1. The Applicant arrived in Australia from his native Bangladesh on

   
   

   5 February 1999, and lodged an application for Protection (Class XA) visa on 19 March that year. A delegate of the Minister refused to grant the visa, and on 7 May 1999 the Applicant applied for a review of that decision by the Refugee Review Tribunal.  The Tribunal, differently constituted, affirmed the delegate's decision on 12 April 2001, and the Applicant subsequently sought judicial review of that decision.

2. On 2 March 2005, consent orders were made in the Federal Magistrates Court, which involved that decision being set aside and the application being remitted to the Tribunal.

3. The decision that is for review before me today arises from the Tribunal hearing that took place subsequently to those proceedings in the Federal Magistrates Court.

4. The Applicant, as I said, who is a citizen of Bangladesh, has claimed a well-founded fear of persecution should he return to that country, on the basis of the fact that he is a Hindu and not a Muslim, and has been involved in various incidents which have brought him under unfavourable attention from members of the Muslim community in that country. 

5. The Tribunal accepted that the Applicant was a Hindu and that there are Hindu and other minority support organisations in Bangladesh. It has been as a result of incidents which occurred in the 1990s that the Applicant says that he left Bangladesh, fearing persecution, should he either remain in the country or return to that country.

6. I note that, on pages 240 and 241 of the Court Book, the Tribunal refers to the fact that the Applicant asked for a non-Muslim Bengali interpreter for the RRT hearing, and in view of the specific facts contained in that case, the Tribunal considered it important to accommodate that request. As there was generally only one English-Bengali interpreter in Sydney who was non-Muslim, that person was unavailable for several weeks, and at the time the Applicant's then adviser lost his or her registration, the Tribunal allowed time for the applicant to make alternative arrangements.  The Tribunal invited the Applicant to attend the hearing on 28 July, and the hearing was conducted with the assistance of a non-Muslim interpreter, who translated from Bengali to English and return.

7. I note, and understand, the Tribunal's actions. It appears to me that, in view of the subject matter of this particular Applicant's claim, there were proper reasons for the Tribunal to have accommodated the Applicant's request in this way.  Indeed, the Applicant no doubt sought such an arrangement so that he would feel more comfortable in giving evidence to the Tribunal.

8. The Applicant attended the hearing, gave evidence and the Tribunal considered that evidence. The Tribunal considered material that had previously been submitted to the earlier Tribunal.

The Tribunal’s findings and reasons 

1. The Tribunal, in its findings and reasons, accepted as reliable independent country information which tended to support the Applicant's claim that some Hindus face discrimination in Bangladesh. 

2. The Tribunal found, however, that the Applicant had not faced any significant ongoing discrimination for being a Hindu per se.  The Tribunal referred to an attack that occurred on the Applicant in 1992, nothing that, in the Applicant's evidence, this was a single instance, although the attack did take place purely because the Applicant was a Hindu. The Tribunal considered that the antiquity, isolation and precise circumstances of the attack had to be considered, and the Tribunal was not satisfied that that attack was evidence of a pattern of Convention-related persecution.

3. The Tribunal noted the Applicant's claim about not being able to conclude his master's degree studies in Bangladesh, because of harassment by Muslim fundamentalists who opposed his activities with Hindu organisations. The Tribunal did not accept that claim, on the basis that an examination of the evidence did not show that the Applicant's activities in the last months that he spent in Bangladesh provided reliable evidence of stress, danger, fear, duress, threat or flight.

4. The Tribunal expressed itself at page 257 of the Court Book as being unimpressed with the Applicant having waited until his father reacted to an attack upon him in 1998 before going along with a plan to escape from Bangladesh, commenting that the Applicant's evidence put him at an implausible distance from the response to the events that were supposedly impinging upon him.

5. The Applicant told the Tribunal that it takes considerably more than merely being a Hindi and/or a promoter of the rights of Hindus to attract persecution in Bangladesh but the Tribunal noted that this Applicant had claimed that, whilst everyone in his group made speeches, he was especially targeted for persecution of the kinds of speeches that he made.

6. The Tribunal referred to the Applicant's evidence about what appeared to be an attack on Muslim women in Bangladesh, referring to an incident where he appears to have been openly derogatory towards Muslim women, which, not surprisingly, attracted a degree of opposition.  Significantly, the Tribunal found, at page 258 of the Court book, that the Applicant's claims about involvement with the groups that he described were fabricated. 

7. The Tribunal went on to find that the Applicant's evidence about an inflammatory speech he said he gave was improvised at the hearing, i.e. the Tribunal hearing. The Tribunal then went on to criticise the Applicant's giving of evidence at the Tribunal in this way:

   He changed his evidence, quite obviously, first saying he only asked the public on the occasion in question why the Muslims could not treat Hindu women with the same respect that Hindus showed for Muslim women.  Then, in the face of the potentially adverse position put to him by the Tribunal, the Applicant changed his account, describing a highly derogatory attack on Muslim women, completely inconsistent with what he had said only a moment earlier. 

   The Tribunal also found itself unable to reconcile this revised claim of such an inflammatory attack on Muslim women with the applicant's claim of none of his outspokenness ever having been recorded.  One would reasonably expect such an attack to have been reported or at least for the person who made it to be fearful of it having been reported or documented somehow.

   See pages 258-259 of the Court Book.

8. The Tribunal was critical of the Applicant's vague, undetailed and often confused evidence to the Tribunal itself, and considered but did not attach weight to three letters that had been tendered to the previous Tribunal hearing. 

9. The Tribunal criticised the Applicant's evidence, at page 261 of the Court Book, saying that the Applicant became confused when he claimed he would be unable to resist joining a Hindu organisation if he returned to Bangladesh. He later said it was not his aim to join any such group.  The Tribunal went on to say:

   "Whichever claim the Tribunal were to consider, leaving aside the fact that they are opposing claims, the applicant was denying the need to be discreet about his support for Hindu causes."

10. The Tribunal was not satisfied that the Applicant faced a real chance of Convention-related persecution in Bangladesh, and found that the Applicant does not satisfy the criterion set out in sub-section 36(2) of the Act for a protection visa.

Application for judicial review

1. The Applicant has filed an Outline of Submissions, which has been prepared in some detail.  In those submissions, the Applicant sets out the background, including referring to the previous Tribunal decision of which the Applicant was very critical. The Applicant says that the Tribunal, in the proceedings before me, made a jurisdictional error, in that the Applicant was denied procedural fairness and denied natural justice.  He says that the Tribunal relied upon country information and inconsistencies in the Applicant's claims as set out in the protection visa application, and the claims made before the Tribunal, as part of the reason for affirming the decision under review. 

2. The Applicant says that the Tribunal failed to put those inconsistencies in writing to the Applicant for comment, and he cites NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744, and also Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27. The Applicant provides extensive particulars of that claim.

3. At page 6 of the Applicant's submissions, he asserts that the Tribunal denied him natural justice, in that the Tribunal was biased or, in the alternative, there was an apprehension of bias in the making of the core decision such that initiated the decision.  The Applicant says:

   The Tribunal has failed to disclose the particular construction it gave to the information from the different independent sources.  Such failure amounted to a denial of procedural fairness and natural justice.

4. The Applicant says that if reliance was going to be placed to this effect on country information about Bangladesh and its uprising of religious and political anarchism which is information from sources other than the Applicant, then the Applicant should be informed in advance of the specific country information to be used against him, and given an opportunity to respond to it.  The Applicant says that he was not given that opportunity.

5. The Applicant goes on to say that the Tribunal was biased and preoccupied by other Bangladeshi refugee claims and did not use the country information as specific. However, the general information gathered by the Tribunal was considered to weigh against the Applicant's case in the final outcome.

6. The Applicant has claimed breaches of s.424A of the Migration Act, and refers to the Court, in particular, to Naing v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 336, Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908, Zaw Niang Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212, Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196, and a considerable quote is given from the decision in that case:

   The Applicant claims the Tribunal has not acted in accordance with the provisions of the 1951 Convention, as amended by the 1967 Protocol.

7. As a result, the Applicant seeks orders quashing the Tribunal's decision and an order remitting the application to the Tribunal for further consideration, according to law.

8. Dealing with the Applicant's submissions, the Respondent's counsel has filed an Outline of Submissions in Reply.  The Respondent says that an allegation of actual bias is a serious one and must be clearly proved, and there is no foundation for such a claim in this case, nor is there anything in the material capable of founding a conclusion that a

   
   

   fair-minded layperson, properly informed of the nature of the proceedings, might reasonably apprehend that the Tribunal might not have brought an open mind to the case.

9. The Applicant had complained of the Tribunal cutting and pasting the earlier Tribunal decision. The Respondent replies to that by conceding that the Tribunal did consider the earlier decision and adopted that Tribunal's summary of the Applicant's claims in evidence but did so after reviewing that material and satisfying itself that the summary was accurate.  The Tribunal did note that the conclusions made by the first Tribunal do not exist in law.  Counsel for the Respondent submits that there is nothing to indicate that the Tribunal was influenced by the Tribunal's earlier decision.

10. Turning to the procedural fairness question, the Respondent submits that the Tribunal did not rely to any significant degree on country information but when it did, a lot of the independent country information was cited as supporting his claims about the existence of discrimination against Hindus and the existence of Hindu organisations. 

11. The Respondent concedes that the application to the Tribunal was made before the commencement of s.422B of the Migration Act, and, therefore, the descriptions and exclusions of common law and natural justice provided by s.422B do not apply in this case. Nevertheless, the Tribunal's noting that the activities of some Hindu organisations appearing to be broader than those activities which the Applicant put was not put forward as a reason for disbelieving the Applicant's claims, and the Respondent submits that any failure to discuss country information with the applicant would not involve a failure to provide procedural fairness or a breach of s.424A of the Act, even if

    
    

    s.424A of the Act did extend to country information.

12. The Respondent submits that procedural fairness does not require the Tribunal to put to the Applicant its impressions of his evidence, including the view that it was internally inconsistent.  The Respondent relies on the well-known decision of Kioa v West (1985) 159 CLR 550 to submit that the Applicant is entitled to support his application by such information and material as he thinks appropriate, and he cannot complain if the authorities reject his application because they did not accept, without further notice to him, what he puts forward. The Respondent submits more generally that procedural fairness does not require the Tribunal to share its thought processes and likely conclusions with the applicant.

13. Section 424A, the Respondent submits, does not assist the Applicant, in that the inconsistencies upon which the Tribunal relied, appeared to relate to internal inconsistencies, within the evidence that the Applicant gave to the Tribunal. In any event, the conclusion that two pieces of evidence are inconsistent is not information within the meaning of sub-section (1) of s.424A, and, in any event, the individual pieces of evidence said they did constitute information that had been given by the Applicant to the Tribunal, and are therefore covered by the exception in s.424A(3)(b).

Conclusion

1. The question of bias is one that is argued from time to time.  The Full Court of the Federal Court has considered bias, bona fides and bad faith in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749. Their Honours made it quite clear that:

   Any allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker.  It should not be lightly made and it must be clearly alleged and proved.

2. Their Honours went on to set out a number of other propositions.  One of them, set out at paragraph 44, is that:

   The circumstances in which the Court will find an administrative decision-maker had not acted in good faith are rare and extreme.  This is especially so where all that the applicant relies upon is the written reasons for the decision under review.

3. Similarly, the fact that the Tribunal does not accept the Applicant's claims, in whole or in part, does not - of itself - constitute evidence of bias.  As the Full Court said in SBBS (supra), at 47:

   The Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do or to the extent to which the reasons disclose how the Tribunal approached its task.

4. In my view, there is no evidence of actual bias in this case. 

5. As to apprehended bias, applying the test set out of the fair-minded layperson, properly informed of the nature of the proceedings, reasonably apprehending that the Tribunal might not have brought an open mind to the case, I am similarly of the view that such a test would not lead to a reasonable apprehension of bias on the part of the Tribunal. True it is that the Tribunal reflected adversely on the credibility of some parts of the Applicant's evidence but credibility is a finding of fact and a finding of fact which remains within the jurisdiction of the administrative decision-maker, as has been set out by McHugh J in the High Court of Australia in Minister for Immigration & Multicultural Affairs, Ex Parte Durairajasingham, in an often quoted passage:

   As long as there is evidence which would support a finding of fact, including a finding as to credibility or the lack thereof, then the decision is not subject to review.

6. The procedural fairness question that applies relates to s.424A issues. The Applicant, in particular, has referred to Al-Shamry and also the decision of NAZY v Minister for Immigration & Multicultural Affairs, which was handed down in June last year. The Respondent has referred the Court to the decision of VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 2006 ALR 471.

7. It is interesting that in a recent appeal decision from this Court, in SZFEG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1405, Jacobson J examines the application of VAF on the part of inconsistency, and, indeed, distinguishes the Federal Magistrates Court decision which was being reviewed in SZFEG from the view that his Honour had reached in NAZY v Minister for Immigration & Multicultural & Indigenous Affairs, to which the Applicant has previously referred me.

8. In SZFEG, at paragraph 31, his Honour followed the decision in VAF, pointing out that:

   The word 'information" does not encompass the Tribunal's subjective appraisals or thought processes.

   which was all that had occurred in that decision. His Honour also referred to the decision of SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306.

1. In SZFEG, the question of inconsistency was not part of the Tribunal's reasons because it was not integral to the decision. In any event, I think it is well established that inconsistency between two accounts does not, of itself, constitute information for the purpose of s.424A(1) if all that it is a comment on inconsistency. In this case, the inconsistency upon which the Tribunal relies is inconsistency within the Applicant's own evidence, as set out, in particular, at pages 258 and 259 of the Court Book.

2. Section 424A does not apply to that evidence at all, because all that the Tribunal is doing in that case is just assessing the Applicant's evidence. It is not a case that the Tribunal has to put that to the Applicant in writing, any more than the Tribunal has to put its thought processes, in assessing the Applicant's evidence, to the Applicant in writing.

3. Dealing with independent country information, where it is used, as long as it relates to matters in general and not to the Applicant or specific persons, in particular it comes within the exceptions set out in sub-s.424A(3)(b).

4. In summary then, I find there is no evidence of bias, either actual or apprehended. I find there is no failure by the Tribunal to deal with information in a way that is contrary to sub-section (1) of s.424A. There is no denial of procedural fairness or denial of natural justice, such as would apply in a case where the application was made prior to the coming into force of s.422B of the Migration Act. That date, as I recall, was in July 2002. The application was lodged before that time.

5. It is significant, as I said, that the Tribunal made some effort to give the Applicant time to arrange his affairs after his then migration adviser lost registration, and also made arrangements to give the Applicant the opportunity to give evidence through a non-Muslim Bengali interpreter.  Those actions are consistent with providing procedural fairness, not inconsistent.

6. I am satisfied that there is no jurisdictional error shown. There is no reviewable error, and the decision is a privative clause decision, as defined by - and that attracts the protection of – s.474 of the Migration Act.

7. I have read the Applicant's Submissions very carefully but I have also read the decision very carefully, mindful of the fact that the Applicant is not legally represented in these proceedings, and I am unable to discern any other jurisdictional error that may have escaped the Applicant's notice.

8. As the decision is a privative clause decision and is untainted by jurisdictional error, it follows that I must dismiss the application. 

9. There is an application for costs on the part of the First Respondent.  It is normally the situation that a successful party of litigation for the Court in this jurisdiction can expect an order for costs and I see nothing which would indicate that such an order should not be made.

10. The Applicant does not have the financial wherewithal to meet the order for costs and whilst that is not a reason for not making such an order, it is a factor that I would take into account in considering whether or not I should allow time to time to pay.  If I do not allow time to pay, the costs would normally be payable within 28 days.

11. I have considered the amount of costs, which are calculated on a party and party basis and include counsels' fees. My understanding of the costs set out in Schedule 1 of the Federal Magistrates Court Rules 2001 would indicate to me that in a matter of this nature the sum of $5,500.00 on that basis would be within the scale and would be an amount that I would consider appropriate.

12. I am of the view that I should allow the Applicant time to pay.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  28 February 2006