SZIYN v Minister for Immigration
[2007] FMCA 1564
•3 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIYN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1564 |
| MIGRATION – Findings of fact not open to review – no “Wednesbury unreasonableness” – bias not established – open to the Tribunal to accept or reject evidence as it thinks appropriate. |
| Migration Act 1958 (Cth), ss.36(2), 420, 422B, 424A, 425, 426, 427, 474, 476 |
| NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 |
| Applicant: | SZIYN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 257 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 12 June 2007 |
| Date of Last Submission: | 17 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 3 October 2007 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Ms V. McWilliam |
| Solicitors for the Respondents: | Ms M. Mafessanti of Clayton Utz |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 257 of 2007
| SZIYN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 29 January 2007 for an order to show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
The applicant was born on 2 February 1962 and claims to be from Bangladesh and of Islamic faith.
The applicant’s wife and two children remain in Bangladesh.
The applicant arrived in Australia on 27 August 2005 on a business visa.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs on 4 October 2005. In this application he claimed a fear of persecution because of his political opinion and membership of the Awami League. The applicant claimed that in 1985 he was badly beaten by members of the BNP and his father feared for his life, so his father and uncle arranged for the applicant to go to Dubai on a working visa. In Dubai the applicant found a good job as a driver for a wealthy family. In 1991 the applicant organised an expatriates committee of the Awami League. The applicant was elected as secretary. The committee was dissolved after losing the 2001 election. A new committee was formed, and the applicant became the Joint Convenor. The applicant invested money in his home district in Bangladesh in a housing estate and shops. He continued to visit Bangladesh for his holidays, where he was harassed by the local leader of the BNP. The applicant returned to Bangladesh permanently on 23 July 2005. The applicant found it difficult to resume his life in Bangladesh as he was continually harassed by the BNP. He went to the police who told him to donate money to the BNP. The local BNP leader, Mr.Hafiz, demanded the equivalent of $10,000 for the applicant to live peacefully in Bangladesh (Supplementary Court Book “CB” 5-6).
The applicant claims that on 15 August 2005 the RAB came to his house and served him with a notice alleging that he was involved in illegal human trafficking. When he attended the office of the RAB the next day, the applicant saw the local BNP activists who had been harassing him. An RAB officer gave the applicant an opportunity to comment on the allegation of human trafficking, to which the applicant replied he had only taken his brothers to the UAE, not any other people. Later that day the applicant visited a lawyer, who advised him to leave the country, as there was no security in Bangladesh, especially for a leader of the Awami League. Consequently, the applicant returned to Dubai on 19 August 2005. He approached the Australian Embassy and was given a business visa for Australia on 25 July 2005. He arrived in Australia on 27 August 2005. The applicant fears continued persecution by BNP terrorists and possibly being killed by the RAB should he return to Bangladesh (Supplementary CB 7).
This application was refused by a delegate of the first respondent on 9 November 2005 (Supplementary CB 10).
On 23 November 2005 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant attended a hearing before the Tribunal on 11 January 2006 to give evidence and present oral arguments (CB 68). In a decision dated 26 May 2006, the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. The applicant sought review in the Federal Magistrates Court of Australia, and on 30 August 2006 consent orders were issued by Driver FM granting the application, quashing the decision of the Tribunal dated 26 May 2006, and ordering the Tribunal to determine the matter according to law (CB 127).
A second hearing of the Tribunal was held on 2 November 2006. The applicant attended and gave evidence (CB 195). By decision signed on 21 December 2006 (CB 189) the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 198-200) (highlighting added):
The applicant claims to fear persecution in Bangladesh from members and activists of the BNP and from officers of the RAB for reasons of his involvement in the Awami League. He claims that police and state authorities will not protect him because they support the BNP. He claims that he was mistreated in Bangladesh in 1985 and that when he returned to Bangladesh from Dubai in 2005, his house was raided, he was threatened by BNP activists and falsely accused of illegal people trafficking. As a result of these threats and his fear of further harm he returned to Dubai and obtained a visa to travel to Australia.
I have considered the claims set out in the application for a protection visa and the application for review, the oral evidence given at hearing, the advisor’s submissions and the documents given to the Tribunal in support of the claims.
I am required to determine whether the applicant has a well founded fear and if so whether what he fears amounts to persecution for a Convention related reason. My task is to consider all the evidence, make findings on material questions of fact and then to give reasons for my decision.
I accept that the applicant is a citizen of Bangladesh.
I accept the applicant’s evidence that he was born and educated in Barlekha, Sylhet District, Bangladesh and that he left Bangladesh in 1985 and lived and worked in the United Arab Emirates (UAE) from June 1985 to July 2005. I accept the applicant’s evidence that during this period of time that he travelled to and stayed in Bangladesh from time to time for holidays and to visit family. I accept that the applicant’s employment in the UAE ended in June 2005 and that he returned to Bangladesh in July 2005. I accept that, with his former employer’s assistance, he obtained a temporary business visa for Australia on 25 July 2005 whilst in the UAE and arrived in Australia on 27 August 2005.
I accept the applicant’s evidence given at hearing that he applied for a protection visa in October 2005 and joined the Awami League in Australia on 1 December 2005.
I do not accept that the applicant was ever a member of the Awami League either in Bangladesh or in the United Arab Emirates. I accept that his family supported the Awami League and that he has followed other members of the family as an Awami League supporter and voter however I do not accept that he was ever an office bearer or a member. I consider that he has fabricated this evidence to support his claims for refugee status.
The applicant had no knowledge of Awami League policies or organization and when pressed on these matters spoke in generalities with little or no substantive knowledge of these matters. Despite claiming that he became organizing secretary of a branch when he was 18 years of age and continuing in that role for 4 years he was unable to describe the particular duties of an organizing secretary and was not able to describe how the branch worked or give any substantive evidence on the policies of the party which I would have expected if he had held this position for 4 years. His explanation for his apparent lack of knowledge was that he was quite young at the time however I do not consider this to be a plausible explanation for the lack of knowledge.
I have considered the documents provided by the applicant to support his claims that he was a member of the Awami League and that he donated monies to the Awami League in Barlekha. I have considered the applicant’s response to the invitation to comment on the information obtained by the DFAT post in Bangladesh that the Awami League had no knowledge of the applicant. I accept that the applicant may have had a personal relationship with the member of the Awami League, Md Shahab Uddin, who attested to the applicant’s membership of the party. I consider that the author may have written letters on the applicant’s behalf to assist his refugee application. However in light of the evidence given by the applicant and my finding that he has fabricated evidence relating to his membership of the Awami League I do not accept those documents as corroborating his claims of membership or involvement.
As I do not accept that he was a member or officeholder in the Awami League in Bangladesh I do not accept that he was attacked and injured in 1984 or 1985 for reasons of his involvement in the Awami League or any political opinion.
I do not accept that the applicant joined the Awami League when he was in the UAE or that he was an office bearer in the local branch of the UAE between 2001 and 2005. On his own evidence the Awami League held 2 large gatherings a year but could not explain what issues were discussed at those gatherings other than for general discussions about the contribution made by the Awami League to Bangladeshi independence. I do not accept his claim that he was an organizer of these gatherings and his evidence as to his involvement in the holding of these gatherings was vague and lacking in the sort of detail I would have expected if he had been an organizer. I accept that he may have attended large gatherings of Bangladeshis in the UAE, however, I do not accept that he was an organizer of gatherings or any party activities. I consider that the applicant has fabricated this evidence to support his refugee claims and I do not accept the letter said to be written by an office bearer of the Awami League Committee as corroborating his claims.
As I do not accept that the applicant was a member or office bearer in the Awami League I do not accept he was targeted for harm by local BNP activists when he returned to Bangladesh in July 2005. I found his evidence in relation to threats made by mobile telephone calls to be implausible. I do not accept that there was a raid on the home of his wife’s parents and I do not accept that members of the RAB accused him of people trafficking because of any Awami League connections. There is no evidence that the applicant has been charged with a people trafficking offence. The applicant’s evidence on this issue was confused, illogical and implausible and I consider that he has fabricated this evidence to support his refugee claims. The applicant’s written claims referred to demands for the payment of money to the local BNP branch. As the applicant has given evidence that he earned substantial amounts of money in the UAE and bought shops and properties in Bangladesh I accept that he may have been asked for donations to the BNP in 2005 however I do not accept that the reason for this demand was because of his political opinion but rather the perception of his wealth and thus the demand for money was not Convention related.
I accept that the applicant joined the Awami League after he arrived in Australia and after he applied for a protection visa. I do not accept that the applicant was a member or office bearer of the Awami League before he arrived in Australia and I consider that the sole reason for joining the Awami League in Australia was to strengthen his claims to be a refugee and I am therefore obliged to disregard his conduct in assessing his claims pursuant to s91R (3) of the Act.
I have considered the situation for the applicant if he returns to Bangladesh as a supporter of the Awami League or as a member of a family who have been supporters of the Awami League. There is no evidence before me which suggests that his or his family’s support for the Awami League would put the applicant at any risk of persecution by either state authorities or members of the BNP. There is evidence of significant rivalry between the opposing political parties and evidence of violent conduct during processions and political demonstrations. (US Department of State Report on Human Rights Practices Bangladesh 2005) However, given the background of the applicant I do not accept that he would become involved in such protests and I do not accept he would be at any risk of harm for reasons of his political opinion.
Taking all of the above into account I do [sic not] accept that the applicant faces a real chance of persecution for reasons of his political opinion or any other Convention related reason should he return to Bangladesh now or in the foreseeable future. Accordingly I am not satisfied that he has a well founded fear of persecution for any Convention related reason.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to the Migration Act 1958 (Cth) (“the Act”)
The application
In his application, the applicant set out the following grounds:
(a)The Tribunal did not follow the procedural fairness and natural justice; in so doing he made jurisdictional error and error of law.
(b)The procedures that were required by the Migration Act or the Migration Regulations to be observed in connection with the making of the decision were not observed.
(c)The Tribunal ignored the merits of the review application. Tribunal made its decision on the basis of his imaginary presumption that has sit to his mind before review application hearing. The Tribunal did not follow the direction given by the FM court to rehear the application.
(d)The Tribunal asked all of the unrelated questions at the time of interview to the applicant, to cancel the review application.
(e)The Tribunal failed to take relevant consideration into account in exercising its power to determine the applicant as a refugee.
(f)That the decision of the Tribunal is involved in a jurisdictional error and it led the incorrect interpretation of the applicable law to the fact of the proceeding.
(g)The Tribunal decision was unjust and it’s made without taking in to the account of full gravity of the circumstances, stated in the applicant’s protection visa application.
On the day of the hearing the applicant sought, and was granted, further time to lodge written submissions. They were filed on 19 June 2007. The first respondent elected not to put submissions in reply.
The applicant states in his written submissions that:
(a)The Tribunal relied on independent country information to reject his application.
The Tribunal was entitled to rely on that information: Lee (post) at [27]. As stated in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]:
By s.420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s.424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
(b)The applicant states that he could not convince the Tribunal about the Awami League.
As stated in Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at 596, it remains “for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.”
The Court accepts the following statement by the Tribunal in another matter:
Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v MIEA (1994) 52 FCR 437 at 451.
(c)The applicant complains about the Tribunal not finding him to be credible.
A finding as to credibility is a finding of fact that is not reviewable unless the judge “acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’”: W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64].
(d)The applicant alleges that the Tribunal identified a wrong issue or asked itself the wrong question.
No details were given to support this claim; it has not been made out.
(e)The applicant claimed that he did not provide the country information relied on by the Tribunal and it fell outside s.424A(3)(a).
Country information does not have to be supplied by the applicant to fall within s.424A(3)(a). It has not been established that the country information relied on does not fall within s.424A(3)(a).
(f)The applicant then puts factual material about ransacking, rape and other actions by the BNP and complains that the Tribunal rejected his evidence.
The rejection of evidence is a matter for the Tribunal. The Tribunal is entitled to accept or reject evidence proffered as it considers appropriate: Lee (post) at [27].
(g)The applicant alleges bias.
That allegation is dealt with and rejected in relation to ground (c) in the application. The applicant complains that the Tribunal did not make enquiries about the material the applicant produced. As stated by the High Court in Minister for Immigration Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]:
Secondly, whilst s.427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s.426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.
(h)The applicant complains that the Tribunal accepted some evidence, but rejected other evidence.
It was open to the Tribunal to accept or reject evidence proffered: Lee (post) at [27].
(i)The applicant asserts that his application is covered by three key elements of the Convention definition.
The Tribunal found as a matter of fact that it was not satisfied on key aspects. The applicant claimed torture and membership of a particular social group or political opinion. The Tribunal did not accept the applicant’s evidence of persecution and therefore did not have to consider whether the applicant was persecuted by reason of membership of a particular social group as a separate issue. It did, however, consider the issue and decided (at CB 200.7):
I have considered the situation for the applicant if he returns to Bangladesh as a supporter of the Awami League or as a member of a family who have been supporters of the Awami League. There is no evidence before me which suggests that his or his family’s support for the Awami League would put the applicant at any risk of persecution by either state authorities or members of the BNP. There is evidence of significant rivalry between the opposing political parties and evidence of violent conduct during processions and political demonstrations. (US Department of State Report on Human Rights Practices Bangladesh 2005) However, given the background of the applicant I do not accept that he would become involved in such protests and I do not accept he would be at any risk of harm for reasons of his political opinion.
Taking all of the above into account I do [not] accept that the applicant faces a real chance of persecution for reasons of his political opinion or any other Convention related reason should he return to Bangladesh now or in the foreseeable future. Accordingly I am not satisfied that he has a well founded fear of persecution for any Convention related reason.
(j)The applicant alleges a breach of procedural fairness because of the Tribunal’s decision on relevant evidence including independent evidence.
Decisions of the Tribunal as to which evidence it accepts does not show a breach of procedural fairness. The Tribunal is entitled “to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”: Lee (post) at [27].
(k)The applicant then seeks to put forward new evidence about what the current government of Bangladesh is doing.
If that evidence was before the Tribunal, it has not been shown that the Tribunal did not consider it. If the evidence was not put before the Tribunal, it cannot be accepted by the Court, which must consider whether the Tribunal fell into error on the material before it.
(l)The final six paragraphs of the applicant’s written submissions are covered when the Court considers the grounds in the application.
Findings as to the grounds in the application
Ground (a) alleges a lack of procedural fairness and a denial of natural justice. The applicant was invited to attend the hearing on 2 November 2006 and attended and made submissions (CB 195). A breach of s.425 has not been established.
The Tribunal affirmed the decision of the delegate because it did not believe much of the applicant’s evidence. The Tribunal set out its reasons for rejecting various aspects of the evidence. Those were findings of fact made by the Tribunal after considering the material before it. As found in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]:
In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
Also see Holt v Comcare [2002] FCA 1484 at 21 and Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 36.
The Court does not find “Wednesbury unreasonableness”.
The reason for the Tribunal affirming the decision under review was its adverse credibility finding as to the applicant. It based that finding on its rejection of much of the applicant’s oral evidence at the hearing and a rejection of documents tendered by the applicant in support of his application. All that is covered by the exception in s.424A(3)(b) and was not required to be put in a s.424A letter. A breach of s.424A has not been established. The conduct of the hearing of the matter before the Tribunal was covered by Division 4 of Part 7 of the Act, which is an “exhaustive statement of the requirements of the natural justice hearing rule” (s.422B). No breach of those provisions has been established. Ground (a) is rejected.
Ground (b) alleges that procedures required to be followed by the Act and Regulations were not followed. Nothing has been put to establish this ground. It is rejected.
Ground (c) alleges bias. Nothing has been shown to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The Court accepts also that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
“The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27].
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”: Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. Bias has not been established. This ground is rejected.
Ground (d) alleges that the Tribunal asked the wrong questions in order to “cancel the review”. It has not been established that the Tribunal asked the wrong questions or that it was biased. This ground is rejected.
Ground (e) alleges that the Tribunal failed to take into account a relevant consideration. No particulars have been given of the relevant consideration alleged not to have been considered. This ground has not been established. It is rejected.
Ground (f) alleges an incorrect interpretation of the law. No particulars have been given. This ground has not been established. It is rejected.
Ground (g) claims that the decision is unjust and does not take into account the gravity of the circumstances. The Tribunal rejected much of the applicant’s evidence. Those findings of fact were properly open to the Tribunal on the material before it and are not open to review. The Tribunal considered the applicant’s claims to fear persecution and decided as a matter of fact that it did not accept them. As decided in Lee v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 464 at [27]: “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.” The Tribunal did not accept that the applicant would be at risk because of his political opinion or for any other Convention related reason should he return to Bangladesh now or in the foreseeable future (CB 200). Those findings of fact were properly open to the Tribunal on the material before it and are not open to review. Ground (g) is rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision which has not been affected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 13 September 2007
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