SZHMM v Refugee Review Tribunal & Anor - [2006] FMCA 932

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHMM v REFUGEE REVIEW TRIBUNAL & ANOR

[2006] FMCA 932

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – applicant a citizen of India – applicant does not have a well founded fear of persecution.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R, 422, 424A

NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744
Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 211 CLR 475
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361

Applicant:

SZHMM

First Respondent:

REFUGEE REVIEW TRIBUNAL

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number:

SYG 3186 of 2005

Judgment of:

Scarlett FM

Hearing date:

16 June 2006

Date of Last Submission:

16 June 2006

Delivered at:

Sydney

Delivered on:

16 June 2006

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondents:

Mr Smith

Solicitors for the Respondents:

Clayton Utz

ORDERS

The title of the Second Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the Second Respondent’s costs fixed in the sum of $4,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3186 of 2005

SZHMM

Applicant

And

REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent

REASONS FOR JUDGMENT

Application

This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 22nd September 2005 and handed down on 18th October 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is a citizen of India who arrived in Australia on

16th January 2005. His application for a Protection (Class XA) visa, which was made on 3rd February, was refused on 11th May 2005.

On 7th June in that year the applicant applied to the Refugee Review Tribunal for a review of that decision.
The applicant submitted a one and a half page letter to the Tribunal to accompany his application for review. In that letter he set out that he was a Hindu by faith, but his parents were from Bangladesh where he was born. He said that his parents were compelled to leave Bangladesh and take refuge in India and it appears that he acquired Indian citizenship. He referred in that letter to activities of ultra-nationalist people and the Communist Party Marxist in West Bengal and he believed they are people who would harm and mistreat him.
The Tribunal wrote to the applicant by means of a letter dated

4th August 2005 and invited him to attend a hearing to take place on

1st September. The applicant replied to the hearing invitation indicating that he did wish to attend and give evidence and would require the assistance of an interpreter. He submitted a further statement to the Tribunal and drew the Tribunal’s attention to the mistakes made in the primary application to the department.

He informed the Tribunal that those mistakes were made by his former migration agent, one Zahirul Mollah.
The applicant also provided to the Tribunal copies of other documents, being certificates in culinary practice that he had obtained from the Manukau Institute of Technology in New Zealand. The applicant attended the hearing of the Tribunal and gave oral evidence on

1st September 2005. The Tribunal noted at p.77 of the Court Book that the Tribunal had sought to establish the applicant’s activities in New Zealand prior to his arrival in Australia and explained to the applicant that his application could fail because he had resided in New Zealand, which is a signatory to the Refugees Convention, but did not apply for refugee status while in New Zealand. This could suggest to the Tribunal that the applicant did not have a subjective or genuine fear of persecution.
The applicant told the Tribunal that he had returned to India on

6th December 2003 because he had found out that his brother had been seriously injured in a motor vehicle accident. He returned to New Zealand in February 2004 and enrolled in a Christian Bible college to obtain a second student visa.
The Tribunal asked the applicant whether he had specifically inquired about refugee status while in New Zealand and the applicant answered in the negative, but later said that he had asked a New Zealand lawyer about obtaining such a visa but was advised to continue with his studies. The applicant then told the Tribunal that he had spent time arranging to enter into Australia.
The Tribunal set out its findings and reasons on pp.78 through to 80 of the Court Book. The Tribunal had found at p.75 of the Court Book that it was satisfied that the applicant was a citizen of India and he was therefore assessed against that country. In the Tribunal’s findings and reasons the Tribunal set out that on the basis of the evidence before it the Tribunal was not satisfied that the applicant met the definition of a “refugee”. The Tribunal set out five reasons why it was not satisfied.
First, the Tribunal was satisfied that the applicant could have sought protection while living in New Zealand. On the basis of his evidence the Tribunal concluded that the applicant’s primary interest was to qualify for residency in New Zealand on completing his cooking course. The Tribunal was not satisfied at the applicant’s explanation as to why he did not apply for refugee status in that country.
The Tribunal noted from the applicant’s passport, which had been tendered to the Tribunal, that the applicant had made a number of visits to Bangladesh as well as two visits to New Zealand. On all occasions he had returned voluntarily to India. The Tribunal noted that at no stage had the applicant sought refugee status either in Bangladesh or New Zealand.
The third reason given by the Tribunal concerned the applicant’s claims that he had been threatened by the Communist Party of India which has governed Bengal for the past 25 years, and that he was threatened by ultra-Hindu nationalists and the leader of the Student Federation of India. The Tribunal consulted independent country information which did not mention any recent incidents of violence towards Bangladeshi immigrants to the Kolkota region, although there are incidents in neighbouring states. The country information indicated there had been a huge influx of mainly Muslim Bangladeshis over the border and for many years the Communist Party had provided Bangladeshi refugees with ration cards and placed them on the voter roll to its advantage.
The fourth reason again dealt with independent information, being a report in July 2005 from the Hindustan Times about a ruling of the Supreme Court of India telling concerned states to set up Tribunals to deal with cases of foreigners who have illegally entered India from Bangladesh. Again the hindrance to detection of illegal migrants is that they had already obtained ration cards and got their names registered on the electoral rolls on behalf of local political leaders.
The fifth reason given by the Tribunal was that the applicant provided no specific evidence to support any of his allegations. On the other hand, the applicant was able to travel freely between India and Bangladesh on numerous occasions. While the Tribunal did not rule out the possibility of discrimination against Indians of Bangladeshi background, as the applicant claimed to be a Hindu and not a Muslim, the Tribunal did not accept that he was at risk of persecution in India within the meaning of the Convention or s.91R of the Migration Act. The Tribunal was not satisfied that the applicant had a genuine fear of persecution or a well-founded fear of serious harm or mistreatment on his return to India and affirmed the decision not to grant a protection visa.
The applicant filed an application under s.39B of the Judiciary Act in this Court on 1st November 2005 seeking review of that decision and orders in the nature of certiorari, prohibition and mandamus.

The applicant in that application sets out four grounds.
First, that the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction by asking itself the wrong question in deciding the applicant’s claim.
Second, that the Tribunal denied the applicant natural justice in determining 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.
Three, the Tribunal has completely ignored the applicant’s claim.

The Tribunal did not make any inquiry of the applicant’s claim with the Department of Foreign Affairs and Trade in New Zealand, which also the department did not. It is also clear that the Tribunal has failed to have a fresh look into the applicant’s protection visa claim and to take the relevant legal issues into consideration in reviewing his appeal application. The Tribunal failed to maintain procedural fairness.
Fourth, the applicant referred to cases of NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744 and the decision of Plaintiff S157/2002 v Minister for Immigration & Multicultural & IndigenousAffairs (2003) 211 CLR 476.

The applicant also filed a written outline of submissions on 2nd June in which at pp.2, 3 and 4 he sets out four errors that he claims in the Tribunal’s decision.
Ground (1) “Help by the Communist Party.” This related to the Tribunal’s comment about the influx of mainly Muslims being Bangladeshis over the border and assistance provided by the Communist Party in providing ration cards and placing them on the voter roll. The applicant submits that this was adverse information about which he should have been notified in fact under s.424A of the Migration Act.
Second, the applicant claims the Tribunal acted in excess of its jurisdiction in respect of, first, the issue about the Communist Party providing Bangladeshi refugees with ration cards and placing them on the voter roll, and second, in its comments about its belief it was only when the applicant was unable to obtain residence in New Zealand that he decided to seek a protection visa in Australia.
Third, the applicant claimed that the Tribunal failed to ask material questions in that it did not ask him any questions about his assistance with Bangladeshi Hindus.
Fourth, that the Tribunal ignored his claims in that it did not realise why he had visited Bangladesh.
I have heard oral submissions from the applicant and from counsel for the respondent and I have read the outline of submissions not only from the applicant but also from counsel for the respondent.
I turn now to the four grounds set out in the applicant’s application. The first ground, alleging the Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction by asking itself the wrong question in deciding the applicant’s claim, is not particularised. It is vague; it is no more than an assertion of certain errors. As it stands, it is not made out.
In dealing with the applicant’s claim of a denial of natural justice relating to bias or an apprehension of bias, I would comment that an allegation of bias against a decision-maker is a serious matter which needs to be specifically set out and strictly proved. There is no evidence of bias and it has been well-established in cases such as SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 that where the only evidence relating to bias or bad faith appears from the decision of the Tribunal, it is rare to say the least that such matters can be established. In this case there is no evidence of bias. The applicant was invited to attend the hearing.

He attended the hearing, he gave evidence, he provided written submissions, tendered certain documents and it is clear from the text of the decision that they were considered. There is no denial of natural justice and there is no evidence of bias. That ground must be dismissed.
Turning to the third ground, the Tribunal ignoring the applicant’s claim, not making any inquiries with the Department of Foreign Affairs and Trade in New Zealand, failing to have a fresh look into the claim in the applicant’s protection visa, failing to maintain procedural fairness, it is clear that the Tribunal in its decision set out the applicant’s claims and it cannot be maintained that the Tribunal has completely ignored them. There is no obligation on the Tribunal to make any specific inquiries of its own motion in respect of the applicant’s activities in New Zealand from the Department of Foreign Affairs and Trade or from any other authority.
The claim that the Tribunal failed to have a fresh look into the applicant’s protection visa claim cannot be made out in that evidence appears from the decision that that is exactly what the Tribunal did. There is no evidence of a failure to provide procedural fairness.

The applicant was given the opportunity to attend at the hearing and give evidence and present evidence. He took that opportunity and the matters were taken into account.
The fourth ground contains references to the cases NAZY v Minister for Immigration & Multicultural Affairs (supra) and Plaintiff S157/2002 v Commonwealth (supra). There is nothing that I can see that makes either of those cases relevant to the applicant’s application. NAZY was a case dealing with s.424A(3)(b) of the Migration Act and in this case it is clear that the Tribunal relied on information that was given by the applicant or on independent country information, both of which are well covered by the exception under s.424A(3).
The decision of the High Court in Plaintiff S157/2002 concerned the proper construction of the term “privative clause decision”. While that case is authority for the proposition that a decision infected by jurisdictional error is not a privative clause decision, it does not identify any error in this decision.
Turning to the applicant’s grounds set out in his written submissions, the applicant was given the opportunity to make oral submissions in support of those submissions. His oral submissions dealt solely with factual matters which do not constitute grounds for judicial review.
Dealing with the written submissions and the four grounds, the first ground, as I have said, was that the applicant was not notified about adverse information in that he was denied natural justice and the Tribunal did not comply with s.424A of the Migration Act. It is

well-established that s.422B of the Migration Act provides that the natural justice hearing rule is limited to those matters contained in Div.4 of Pt.7 of the Act. There was no obligation under s.424A of the Migration Act because information from independent country information was not specifically about the applicant or another person but rather of a general nature. The Tribunal in particular relied on material provided to it by the applicant, either at the hearing or in the applicant’s written submissions which were made either with the application for review or submitted with the response to hearing invitation. There is no breach of s.424A of the Migration Act. There is no breach of natural justice.
Dealing with the applicant’s claim in the submission that the Tribunal acted in excess of its jurisdiction, the matter relating to the Communist Party providing Bangladeshi refugees with ration cards and placing them on the voter roll is purely a factual matter. The applicant takes issue with the Tribunal’s finding on that point, the Tribunal having relied on the independent country information. The factual questions are matters for the decision-maker and are not subject to judicial review provided that there is evidence upon which such factual decisions can be made. In my view there was.
Dealing with the Tribunal’s concern that the applicant could have sought a protection visa or its New Zealand equivalent in New Zealand, it is quite clear that this is an issue that did exercise the mind of the Tribunal and was a matter that the Tribunal discussed with the applicant during the hearing. This is set out at p.77 of the Court Book. It was a matter that was material to the Tribunal’s consideration and the information came from the applicant himself and it was discussed by the Tribunal at the hearing. In my view, there is no jurisdictional error revealed there.
Counsel for the respondent submits, correctly in my view, that the applicant’s claim of failure to ask a material question by the Tribunal misconstrues the meaning of that phrase. Counsel submitted that this showed a misunderstanding of what is meant at law because at law the phrase means not addressing an issue the Tribunal was required to address. It does not mean that the Tribunal was obliged to ask the applicant any questions about his factual evidence. There is no specific obligation to do that and no jurisdictional error is revealed by the fact that the Tribunal did not ask the applicant about those parts of his evidence.
Turning, finally, to the applicant’s submission that the Tribunal ignored his claim, it is quite clear on the text that the Tribunal did not ignore the applicant’s claim. The Tribunal concentrated on the issues that the applicant raised. The applicant’s visits to Bangladesh are relevant only for the fact that it is clear that when the applicant visited Bangladesh he on each occasion voluntarily returned to India. The Tribunal used that as evidence to indicate to it that the applicant did not consider that he is at risk of serious harm if he were to return to India because he chose to return to India from Bangladesh on more than one occasion.
The Tribunal found and was satisfied on the basis of the applicant’s passport that he was a citizen of India and assessed his claims against India and not against Bangladesh. The applicant has also in his submission said that his persecution is genuine and continuing and that if he were forced to return to India the ultra-Hindu Indian nationalists would kill him if they found that he was involved with the welfare of displaced Bangladeshi Hindus in India. These comments are, with respect, no more than a reiteration of the applicant’s claim that he should be considered as a refugee.
In short, the applicant has demonstrated no jurisdictional error.

My independent perusal of the Tribunal decision does not indicate any jurisdictional error not raised by the applicant. I am satisfied that as there is no jurisdictional error the application should be dismissed.
In this case I note that the Minister for Immigration & Multicultural Affairs is in fact the second respondent. There is an application for costs set out in the amount of $4,700.00. The applicant, as he is entitled to do, has inquired as to how those costs have been made up and how that figure has been arrived at. I am satisfied, having heard counsel’s explanation, that the figure of $4,700.00 claimed, which is inclusive of counsel’s fees and refers to the preparation and the two earlier appearances, is in fact an appropriate figure. In fairness to the applicant, he also indicated that he was satisfied as to the explanation.
I note also that when the proceedings were commenced that the Minister was referred to as Minister for Immigration & Multicultural & Indigenous Affairs, but the Minister’s title has changed. I will make an order noting the fact that the Minister’s title has changed to Minister for Immigration & Multicultural Affairs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 28 June 2006