SZJIJ v Minister for Immigration
[2007] FMCA 1686
•26 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJIJ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1686 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no jurisdictional error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 422B, 424A, 425, 476 FederalMagistrates Court Rules 2001 (Cth), rr.44.11(c), 44.12 |
| Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 2 Tin v Minister for Immigration and Indigenous Affairs [2000] FCA 1109 WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 Win v Minister for Immigration and Indigenous Affairs (2001) 105 FCR 212 |
| Applicant: | SZJIJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2546 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 8 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 October 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Bengali interpreter |
| Counsel for the Respondents: | Mr Wigney |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the first respondent be amended to read "Minister for Immigration & Citizenship".
The application filed on 11 September 2006 is dismissed.
The applicant is to pay the first respondent's costs of disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2546 of 2006
| SZJIJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZJIJ”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act, filed in the Sydney Registry of the Federal Magistrates Court of Australia on 11 September 2006 for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal decision was made on 31 July 2006 and the applicant was advised by letter dated 22 August 2006 affirming a decision of the delegate of the first respondent made on 10 May 2001, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief from the form of constitutional writs against the decision of the Tribunal.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in the exercise of the Court's jurisdiction under s.476 of the Migration Act.
Pursuant to r.44.11(c) of the Federal Magistrates Court Rules 2001 (Cth), I dispense with a hearing under r.44.12 and set the matter down for a final hearing.
A Court Book ("CB") was prepared by the first respondent and filed on 12 October 2006. I have marked it Exhibit "A" and it was read into evidence.
Background
The Tribunal decision of J Silva, reference 060431988, provides the following background information:
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 26 April 2001 and applied to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa on 2 May 2001. The delegate decided to refuse to grant the visa on 10 May 2001, and notified the applicant of the decision and his review rights. The applicant sought review of the delegate’s decision and the Tribunal, differently constituted (referred to in this decision as the ‘first Tribunal’), affirmed the delegate's decision on 22 June 2003. The applicant sought review of the Tribunal’s decision by the Federal Court, and on 29 July 2004, the Court made consent orders setting aside the Tribunal’s decision and remitting the matter to the Tribunal to determine according to law. The Tribunal, also differently constituted (referred to in this decision as ‘second Tribunal’), affirmed the delegate's decision on 23 February 2005. The applicant sought review of the second Tribunal's decision by the Federal Court, and on 27 April 2006, the Court made consent orders, setting aside the second RRT decision and again remitting the matter to the Tribunal to be determined according to law (CB 122).
The applicant's visa application sought refugee status on the basis of his anti-government political activities and claims to be an active member of the Bangladesh Freedom Party (BFP). During his studies he was the general member of the BFP in his local area of East Raja Bazar, Dhaka. The applicant's roles were numerous, including giving speeches to large crowds. On 26 March 2001, the BFP held a large meeting to commemorate Victory Day. The speeches that day criticized certain Acts, and the military and police attacked the crowd to disperse it. The applicant claims he suffered serious injuries, lost consciousness and was treated by a local doctor: CB 125.
Two days later, the applicant learnt that he faced charges and was subject to an arrest warrant because of his attendance at the meeting. The following day, he learnt that the police had requested the issue of an arrest warrant against him. He immediately left the family home and went into hiding. He found out that the arrest warrant was issued on 29 March 2001 and served at the family home on 30 March 2001. The applicant travelled with his brother to Bogra. The applicant learnt that a drama group was travelling to Sydney in April 2001 and he seized the opportunity to travel to Australia with the group.
The written submissions prepared by Mr Wigney for the first respondent contain a convenient summary of the Tribunal decision. I adopt the following paragraphs of those submissions:
3.1On 22 August 2006, the Tribunal handed down its decision to affirm the delegate's decision to refuse the applicant's application for protection visas[1].
3.2The essence of the Tribunal's decision was that it concluded that the applicant was not a witness of truth[2], that documents that he presented to the Tribunal in support of his claims were not genuine[3] and that the applicant had fabricated evidence relating to certain incidents of past harm. Having analysed the applicant's evidence in support of his claims in detail, the Tribunal concluded that it did not accept the applicant is or had ever been associated with the Freedom Party, or that he would be perceived by anyone as being associated with the Freedom Party[4]. This claim was central to the applicant's claim to fear persecution in Bangladesh. The Tribunal also found that the incidents of past harm in Bangladesh that were part of the applicant's evidence did not occur[5].
3.3The Tribunal's conclusion was as follows:
The Tribunal does not accept that the applicant has any association with the FP [Freedom Party], and finds that he will therefore not attract the adverse attention of the (now oppositional) AL, other political parties, the authorities or anyone for reason of any such link. The material before the Tribunal does not suggest that he has any other political opinion, or any other attributes that might give rise to a real chance of serious harm for any Convention-related reason. The Tribunal is therefore not satisfied that he has a well-founded fear of persecution for a Convention reason, now or in the reasonably foreseeable future, if he returns to Bangladesh. He is not a refugee.[6]
[1] CB 121-143
[2] CB 142.5
[3] CB 142.8
[4] CB 142.5
[5] CB 143.4
[6] CB 143.5
Application for review of the Tribunal's decision
On 11 September 2006, the applicant filed an application for review under s.39B of the Judiciary Act.
At first Court date directions on 26 September 2006, the applicant indicated that he wished to participate in the Court sponsored legal advice scheme. He was allocated a panel adviser and, although the adviser could not contact the applicant, advice was prepared from the Court Book and hearing tapes and sent to the applicant by mail. The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 16 November 2006.
The applicant complied with the order by that date and filed an amended application which contained the following grounds:
1. The applicant claims that the Refugee Review Tribunal (the Tribunal) made a jurisdictional error not following the obligation according to s.424A of the Migration Act 1958 (The Act).
Particulars:
(i) The Tribunal found the applicant's evidence regarding his family circumstances education and past employment to be obscure, hesitant and in part improvised. For instance, it found unconvincing the applicant's claim that his only paid employment in Bangladesh had been occasion income from the drama group, of whose finances he had only the vaguest idea. He later added that he also obtained money from his parents, who owned property in the country. The Tribunal is not satisfied that the applicant has provided a complete and accurate account of his employment history. This, in turn, casts doubt on the reliability of his claimed political engagement, considered in detail below. (CB-140, 2nd paragraph)
(ii) The Tribunal does not accept his claims to have suffered harm for procession occurred at all - given the FP's small size, a gathering of more than 5,000 in central Dhaka could be excepted to be recorded in some form, if not in the media then at least in some FP archival material accessible by a genuine member. The Tribunal does not accept that the applicant was targeted and injured; that he was hospitalised; that he was subject to false charges and a corresponding arrest warrant was served on his home; that he went into hiding - or any related events. (CB-142, 4th paragraph).
(iii) The Tribunal has considered the medical certificates tendered to demonstrate the claimed consequences of the now-dismissed 26 March 2001 incident. Leaving aside that they do not identify the cause of the alleged incidents, and therefore provide only indirect evidence to support the applicant's claims, the Tribunal does not accept - for the reasons outlined above - that any of the documents the applicant has presented are genuine. (CB-142, 5th paragraph).
(iv) It follows from the Tribunal's finding that the alleged incidents of harm in Bangladesh (including the false charges and police action against the applicant and his family) did not occur, that it also does not accept that there has been any follow-up action since the applicant's departure from that country. The Tribunal specifically does not accept that the police have approached his family or that they are looking for him anywhere, for any reason. Nor does the Tribunal accept that the applicant has been tried and convicted in absentia. (CB-143, 2nd paragraph).
(v) The Tribunal does not accept that the applicant has any association with the FP, and finds that he will therefore not attract the adverse attention of the AL, other political parties, the authorities or anyone for reason of any such link. The material before the Tribunal does not suggest that he has any other political opinion, or any other attributes that might give rise to a real chance of serious harm for any Convention-related reason. The Tribunal is therefore not satisfied that he has a well founded fear of persecution for a Convention reason, now or in the reasonably foreseeable future, if he returns to Bangladesh. (CB‑143, 3rd paragraph).
2. The applicant claims that the Tribunal denied him natural justice not to give him sufficient opportunity to explain his position on the findings and reasons which the Tribunal made to reject his claim.
Particulars:
(i) The applicant rely on the particulars (i-v) of the ground-1, and the applicant also claims that he did not understand the decision of the Tribunal and why his claim was rejected.
Submissions and reasons
The applicant appeared in person with the assistance of a Bengali interpreter. The applicant confirmed that he had filed an amended application but had not prepared any written submissions in support of those grounds. When invited to make oral submissions, he complained that the country information relied on by the Tribunal was old and out of date. He also stated that the documentation which referred to his employment was not correct. The applicant did not explain what he meant but this does not appear to be significant in respect of his claims. The applicant stated that the Tribunal conclusion that he was not a member of the BFP was not true. He stated that the false cases that had been instigated against him remained outstanding, that the police were actively looking for him and he would be arrested if he returned to Bangladesh.
Mr Wigney indicated that he would substantially rely on his written submissions and make a number of supplementary oral submissions in support.
The first ground of the amended application claims a failure by the Tribunal to comply with s.424A of the Migration Act. However, the applicant has not attempted to identify any specific information that the Tribunal considered was the reason, or part of the reason, for affirming the decision under review that was not given to the applicant as required by s.424A. Mr Wigney submits that the Tribunal’s findings turned on “information”, being knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration & Indigenous Affairs [2000] FCA 1109 at [3]; Win v Minister for Immigration & Indigenous Affairs (2001) 105 FCR 212 at [19]-[22]. That information was either:
a)information that the applicant gave for the purpose of the application before the Tribunal: Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27; SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 2. The applicant primarily gave oral evidence during the Tribunal hearing, which was information subject to s.424A(3)(b);
b)information, in the form of country reports, that was excluded by reason of s.424A(3)(a) of the Migration Act;
c)information that was, in accordance with s.424A of the Act, “given to” the applicant in the Tribunal’s letter of 30 June 2006, with an explanation of the relevance of the information and an invitation to comment on it, and was subject to response by the applicant.
Particular (i) of the first ground restates a paragraph from the Tribunal’s reasons: CB 140.3. Mr Wigney submits that Tribunal finding in this paragraph was based entirely on its assessment of the applicant’s oral evidence at the hearing and does not suggest any information that ought to have been provided to the applicant pursuant to s.424A. It is submitted that the applicant’s oral evidence at the hearing is excluded by reason of s.424A(3)(b). “Information” for the purposes of s.424A does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [95].
Particular (ii) of the first ground again restates a paragraph from the Tribunal’s reasons: CB 142.6. Mr Wigney submits that the finding in this paragraph was based on the absence of any corroborative material and on the assessment the Tribunal made of the credibility of the applicant’s evidence generally. This paragraph does not reveal any information that ought to have been but was not given to the applicant pursuant to s.424A. “Information” for the purposes of s.424A does not encompass gaps, defects or lack of specificity in evidence, or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to such gaps: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [282]-[284].
Particular (iii) of the first ground is also a restatement of a paragraph of the Tribunal’s reasons: CB 142.8. The Tribunal in that paragraph rejected certain documentary evidence which the applicant relied upon. The evidence related to an assessment of the applicant’s evidence relating to the 26 March 2001 incident (see particular (ii) above), the Tribunal’s assessment of the contents of those documents, on information in country reports relates to document fraud in Bangladesh, on information relating to a Bangladeshi lawyer who had assisted the applicant to obtain the documentation. The first two matters are not information for the purposes of s.424A of the Migration for reasons set out in particulars (i) and (ii) above. In respect of the third matter, country information relating to document fraud is excluded from the operation of s.424A of the Migration Act by reason of s.424A(3)(a). The fourth matter comprises information that was given to the applicant in the Tribunal’s letter of 30 June 2006 in accordance with s.424A of the Migration Act.
Particular (iv) restates a paragraph of the Tribunal’s reasons.(CB 143, para 2) This passage states a conclusion, based on the findings expressed earlier in the Tribunal’s reasons, to the effect it did not accept the applicant’s claims relating to past harm. This paragraph does not reveal any information that ought to have been, but was not, given to the applicant pursuant to s.424A of the Migration Act. The Tribunal’s rejection of the applicant’s claims arose from adverse credibility findings and from other findings based on the applicant’s own oral evidence given at the hearing.
Particular (v) restates a paragraph of the Tribunal’s reasons (CB 143, para 3). It is submitted that like particular (iv), this paragraph expresses the Tribunal’s conclusions, based on detailed findings of fact referred to earlier in the reasons and does not reveal any information that ought to have been, but was not, given to the applicant pursuant to s.424A of the Migration Act.
I agree with the submissions made by Mr Wigney that ground one and its associated particulars do not identify any breach of s.424A of the Migration Act for the reasons set out above. Essentially, the Tribunal’s adverse credibility findings and its consequent rejection of the applicant’s claims, is a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. I am satisfied that the Tribunal’s findings in this respect were open to it on rational grounds and on the material before it. They disclose no error in its treatment of the applicant’s credibility. The Tribunal’s reasons for decision, which is the only evidence before the Court in relation to the conduct of the hearing, indicate the concerns it had about aspects of the applicant’s evidence which it raised with him during the hearing. The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, its finding that he was not credible.
The second ground of the amended application claims a denial of natural justice. The applicant relies on the same particulars given in relation to the first ground and the claim of a breach of s.424A. Mr Wigney submits that s.422B provides that Division 4 of the Migration Act, which includes s.424A, is taken to be an exclusive statement of the requirements of the natural justice hearing rule in relation to matters that those provisions deal with. Section 424A of the Migration Act provides an exhaustive statement of the requirements of natural justice in relation to the Tribunal’s obligation to provide adverse information to the applicant for comment. Mr Wigney submits that the Tribunal complied with s.424A and is not required to observe any other general law natural justice requirement over and above s.424A, or other provisions of Division 4 of the Migration Act.
The other issue raised in the second ground was that the applicant “did not understand the decision of the Tribunal and why his claim was rejected”. Mr Wigney submits that this is misconceived and cannot support a finding of denial of natural justice or procedural fairness. It is not sustainable because the Tribunal’s reasons disclose that the applicant was, in accordance with s.425, invited to and attended a hearing and was given every opportunity to “explain his position.”
I agree with the submissions of Mr Wigney in respect of ground two. The parts of the Tribunal decision reproduced by the applicant as particulars (i) to (v) of the first ground do not identify or indicate that the Tribunal has failed to comply with s.424A but, rather, appear to be where the applicant disagrees with the Tribunal’s conclusions. Similarly, the particulars relied upon by the applicant in the claim of denial of procedural fairness disagree with the Tribunal’s conclusions and do not identify where the Tribunal failed to comply with the requirements of Part 7, Division 4 of the Act. This ground cannot be sustained.
Conclusion
The applicant appeared at the hearing as a self-represented litigant assisted by a Bengali interpreter. It also appears that he received assistance in preparing the original and amended applications filed in these proceedings. Unfortunately, the applicant did not understand the contents of those documents and could only make very general and unrelated submissions in support of his claims. The person who assisted him attempted to apply recent decisions in migration law without a full understanding of their application or relevance. This places an obligation on the Court to independently consider whether any argument based on the material could have been made out. Mr Wigney, for the first respondent, assisted the Court with written and oral submissions in respect of the amended application. I am satisfied that the amended application does not identify any valid ground of judicial review. Neither is it apparent that any other ground of review exists to suggest that the Tribunal made a jurisdictional error in its decision-making process. The applicant’s claim should be dismissed.
I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 26 October 2007
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