SZJKU v Minister for Immigration
[2007] FMCA 1254
•21 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJKU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1254 |
| MIGRATION – Gaps in evidence are not “information” covered by s.424A – subjective appraisals are not “information” – bias not shown – in conducting a review the Tribunal may get any information it considers relevant – personal experience of Tribunal can be taken into account. |
| Migration Act 1958 (Cth), ss.36(2), 422B, 424A, 425, 474 |
| Tin v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 SZHSE v Ministerfor Immigration and Multicultural Affairs [2006] FCA 1459 SZJVG v Minister for Immigration and Citizenship & Anor [2007] FMCA 718 |
| Applicant: | SZJKU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2740 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 18 May 2007 |
| Date of Last Submission: | 18 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr B.Levet |
| Counsel for the Respondents: | Mr B.D. O’Donnell |
| Solicitors for the Respondents: | Ms K. Lockeby of Sparke Helmore |
ORDERS
The application and amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2740 of 2006
| SZJKU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 25 September 2006 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 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. An amended application was filed on 14 December 2006.
The applicant was born on 1 January 1977 and claims to be from Bangladesh and of Islamic faith (“the applicant”).
The applicant arrived in Australia on 22 December 2000 on a visa issued in Dhaka.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 31 January 2001. In this application he claimed (CB 26-27):
·To belong “in a minority Bihari community which is subject to oppression by the mainstream Bangalee community”;
·That he was involved in the activities of the Stranded Pakistani Repatriate Committee (SPGRC) and was “one of its young leaders and activists”. The aim of the organisation was “to make pressure to Pakistani government and Bangladesh government to repatriate to Pakistan and to obtain civic rights as citizens of Pakistan”;
·That, in an attempt to evict them from the land, the Bangladeshi government set their camp on fire and tortured them;
·That when Awami activists tried to attack the camp, the applicant “led the barricade opposing them” and subsequently became their main target. The applicant claimed he was beaten “mercilessly” by Awami activists “on a number of occasions”;
·That false charges were laid against him by Awami activists in an attempt “to ruin my future.”
This application was refused by decision of a delegate of the first respondent on 3 April 2001 (CB 32-40), which was affirmed by the Tribunal on review on 27 May 2003. The applicant commenced review proceedings with this Court, and on 16 March 2005, the Court by consent quashed the decision and remitted the matter to the Tribunal to be determined according to law. On 24 June 2005 the Tribunal again affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. An application for review of the Tribunal’s decision was again heard before this Court, and on 15 March 2006, the Court, by consent, set aside the decision and remitted the matter to the Tribunal for redetermination.
On 18 August 2006 the Tribunal (for the third time) 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 186-8) (highlighting added):
Having no persuasive evidence either that the applicant is stateless or that he holds a nationality other than that shown in his passport, I find that the applicant is a citizen of Bangladesh. The passport, which was before the Tribunal, appears to be genuine and has been accepted as such by Bangladeshi officials.
The applicant’s evidence is very unsatisfactory. I am prepared to accept that he is Bihari, as he was able more or less correctly to answer my questions at hearing about Biharis. I have serious reservations about the remainder of his claims.
All attempts by the Tribunal as previously constituted to elicit details of his activities on behalf of the Bihari community produced information only on activities of a very minor kind. There was nothing in the activities in which the applicant claimed to have participated which would justify or explain the laying of false charges against him by any group. His own reply to the first of the letters sent to him by the Tribunal as presently constituted include the statement that his most active period of involvement with the Stranded Pakistanis General Repatriation Committee was between 1994 and 1997, yet he claims that a second false charge was brought against him in 1999. This is not credible and I do not accept it. I do not accept that any false charges have been brought against him. Even if I accept the claims he makes as to his activities, they are of too minor a kind to generate such a response. Since I do not accept that false charges were brought against him, I do not accept he abandoned his studies for that reason.
He claimed that, as a result of opposing Awami thugs, “on a number of occasions” he was beaten “mercilessly”. I do not accept that. I would expect that, if it were true, he would have had some physical evidence of such repeated and merciless beatings. That he did not submit any satisfies me that there was none to submit.
He claimed to have gained his education with difficulty. A Tribunal previously constituted asked him whether, since he and his brother were both university graduates, his family was wealthy. He replied that his parents worked hard to support them. That may well be. However, gaining a tertiary education in Bangladesh is a rare privilege. According to information before the Tribunal, only just over 0.5% of the population in Bangladesh attend a tertiary institution. In Australia, by comparison, over 3% attend universities and another substantial number attend other tertiary institutions. The situation is worse for Biharis than for the general population. The country information quoted above includes the statement that “The right to a basic education has become a luxury for Bihari children.” The applicant may or may not come from a wealthy family – I have no evidence on the point – but he has been very privileged to gain the education he has.
In short, I do not accept that the applicant has suffered harm amounting to persecution in the past in any way whatsoever. Country information which I accept indicated that a substantial proportion of the Bihari community lived outside camps, “were integrated into the local community, were eligible to receive passports, to vote, and to attend college, and were able to exercise most of the rights of citizens”. I believe that the applicant is one of those.
I am not satisfied that the letter he submitted which purported to tell a different story is genuine. I prefer the advice obtained by the Australian High Commission at senior official level from an appropriate source that it is not. The letter of 12 August 2006 purporting to have been signed by M. Shoukat Ali expresses itself in such exaggerated terms as to lack all credibility. The applicant has clearly on his own evidence not “been living a miserable and inhuman life”.
I am willing to accept that, as an educated Bihari, he encouraged children to go to school. He may have engaged in other low level social welfare activities on behalf of his community. (The nature of his answers to questions about exactly what he did make it difficult to be certain.) But I do not accept that anything he did attracted the hostile attention of any other group or that they took or threatened any action against him. I do not accept that he was a leader or an activist. In addition to these and other problems inherent in his evidence, country information indicates that the problems of the camp Biharis in Bangladesh are not active hostility but lack of opportunity, neglect and poverty. Some Biharis may have a well founded fear of persecution, therefore, but I do not accept that the applicant is one of them.
Thus, I do not accept that there is a real chance of the applicant suffering harm amounting to persecution should he return to Bangladesh in the foreseeable future.
I find that the applicant does not have a well founded fear of persecution in Bangladesh for reason of his ethnicity, his membership of a particular social group or for any other Convention 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 Migration Act 1958 (Cth) (“the Act”).
The application
In his application, the applicant set out three grounds as follows:
(1)The Tribunal made jurisdictional error in that the Tribunal made an error in deciding the fate of the application. Particularly the Tribunal failed to forward any report towards the applicant and to make comment on it. The Tribunal investigation was not based on reality.
(2)The Tribunal made jurisdictional error in that it took into account an irrelevant consideration.
(3)The Tribunal made jurisdictional error is that it failed to provide particulars of information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review.
In his amended application, the applicant set out the following grounds and particulars:
Ground 1
The Tribunal fell into jurisdictional error by failing to comply with s.424A of the Migration Act 1958 (Cth) (“the Act”).
Particulars:
(a)At the hearing on 8 June 2006 the Tribunal handed the applicant a letter dated 8 June 2006 pursuant to s.424A of the Act.
(b)By letter dated 26 June 2006 and enclosures the applicant responded to the Tribunal’s letter.
(c)The Tribunal sent the applicant a letter dated 3 August 2006 pursuant to s.424A.
(d)The applicant responded by letter dated 16 August 2006 and enclosures, including a letter dated 12 August 2006 signed by M Shoukat Ali (CB 163, 165).
(e)The Tribunal failed to disclose to the applicant the particulars of “advice received from the Australian High Commission at senior level from an appropriate source” (CB 187.6) that the letter dated 12 August 2006 signed by M Shoukat Ali was not genuine (CB 187.6).
(f)The Tribunal considered the information consisting in the advice from the Australian High Commission at senior level from an appropriate source about the genuineness of the letter from M Shoukat Ali to be a reason or a part of the reason for affirming the decision under review (CB 187.6).
(g)The Tribunal failed to disclose to the applicant by the method set out in s.424A(2) the particulars of the advice from the Australian High Commission at senior level from an appropriate source.
Ground 2
The Tribunal fell into jurisdictional error by failing to comply with s.424A of the Act in that it treated the particulars of information which would be a reason or a part of the reason for affirming the decision under review (CB 152, 172-179) as being properly identified by examination of the reasons of other Tribunals differently constituted which had heard the applicant’s case (CB 152, Transcript 19.8), and which had been set aside by the Court, when the Tribunal should have asked itself what information it considered itself would be the reason for it to affirm the decision under review.
Ground 3
The Tribunal fell into jurisdictional error in that it denied the applicant procedural fairness by failing to disclose to him, or offer him an opportunity to comment on or controvert, matters which were significant, relevant, credible and adverse to his application for review.
Particulars:
(a)The Tribunal failed to put to the applicant that he was a Bihari who lived outside a camp and was integrated into the local community (CB 187.5) although this evidence had not been rejected by the two previous Tribunals and the applicant again gave evidence at the hearing that he lived in the Geneva camp (Transcript 10.7, 12.8).
(b)The Tribunal failed to put to the applicant that unless he submitted physical evidence of being beaten by Awami thugs the Tribunal would not be satisfied that this occurred (CB 187.2).
(c)The Tribunal failed to put to the applicant that he could not be anything other than a typical Bihari and therefore was not a leader or activist and did not do anything that would attract the hostile attention of any other group or that they took or threatened any action against him (CB 187.8).
Ground 4
The Tribunal had an appearance of bias in that it prejudged the critical factual issues raised by the applicant’s application for review.
Particulars:
(a)The Tribunal accepted and adopted without making its own assessment, all the factual findings, including adverse findings as to the applicant’s credibility, made by two Tribunals differently constituted, whose decisions had been set aside (CB 172.3-179.3, Transcript 3.6, 18.8, 19.10-20.1, 20.4).
(b)The Tribunal adopted a fixed view that whatever the truth of the applicant’s claims, the fact that he had been away from Bangladesh for six years meant that he did not have a real chance of persecution on his return (Transcript 13.8).
(c)The Tribunal accepted the findings made by a Tribunal differently constituted, whose decisions and been set aside, that no false charges had been laid against the applicant (CB 186.9-187.2) by “cutting and pasting” them into its reasons (CB 172.5-179.3) without considering whether they were consistent with each other or consistent with the evidence given by the applicant on 8 June 2006 and without making its own assessment of the evidence (Transcript 3.2-3.6, 22.3).
(d)The Tribunal adopted the findings made by a Tribunal differently constituted, whose decisions had been set aside, that because the applicant was a university graduate his family was wealthy and he did not suffer harm or discrimination as a Bihari (CB 187.4).
(e)In advance of receiving from the applicant a birth certificate it had requested, the Tribunal attributed to the applicant a propensity to provide fake documents, on the ground that the Tribunal member was of the view that another applicant who was a citizen of Bangladesh and known to the Tribunal member had provided him with false court documents (Transcript 17.7-18.1).
(f)The Tribunal member prejudged the authenticity of any document to be provided by the applicant by reason of his being a Bangladeshi citizen, basing his finding that any document he received from a Bangladeshi would be fraudulent on his experience in other cases he had heard, including his having received an “angry” letter from a lawyer in Bangladesh who “was lying through his teeth” and that the Tribunal member was “once bitten twice shy” with regard to any document provided by Bangladeshis in general “who are prepared to concoct things” and that any document provided would be from “the Dhaka document factory” (Transcript 18.3, 24.5).
(g)The Tribunal had a concluded view that all Bangladeshis who make applications to the Tribunal lie and “tell fairy stories” and that he was not prepared to believe a Bangladeshi, or give an “Awami League man a tick” unless his story was confirmed by the Australian High Commission in Dhaka (Transcript 25.2, 25.5).
(h)The Tribunal member placed a higher onus on the applicant as a Bangladeshi to prove the genuineness of documents or his claims generally, than the Tribunal member would place on applicants of other nationalities (Transcript 18.2).
Ground 5
The Tribunal fell into jurisdictional error in that it failed to comply with its duty under s.425(1) of the Act to give the Applicant a meaningful opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Particulars:
(a)The Tribunal treated the hearing as no more than an opportunity to hand to the applicant a letter pursuant to s.424A of the Act rather than as an opportunity for the applicant to give evidence and present argument as contemplated by s.425(1) of the Act (Transcript 3.3-3.5, 19.9, 21.10-22.5).
(b)The Tribunal found that the applicant’s evidence was unsatisfactory on the basis of hearings conducted by two previous Tribunal’s (CB 186.8), without attempting to ask the applicant questions about those parts of his evidence which it found unsatisfactory (CB 172.3-184.2; Transcript as a whole).
(c)The Tribunal took into account evidence and submissions made by the applicant’s adviser as to the adviser’s personal background and political allegiances, when the adviser was not a witness for the applicant pursuant to s.426 of the Act or a person authorised by the Tribunal under s.428 to take evidence (Transcript 23.4-26.3).
Ground 6
The Tribunal fell into jurisdictional error by taking into account irrelevant considerations of a personal or whimsical nature.
Particulars:
(a)The Tribunal member took into account that himself had lived in countries which were not as safe as Australia, that he had spent most of his working life outside Australia, that he had had guns pointed at him, that he had been tear gassed, and that he knew about living in dangerous situations, but he was not a refugee (Transcript 19.4).
(b)The Tribunal member took into account that he was in a position to compare the degree of implementation by the Bangladeshi authorities of decisions of the High Court in Bangladesh with the degree of implementation by Australian authorities of decisions of the High Court of Australia because he had two good friends on the High Court of Australia, having gone to school with one of them and to university with the other (Transcript 21.1-21.9).
Ground 7
The Tribunal failed to consider an integer of the applicant’s claim, namely that he was a member of the particular social group of Biharis in Bangladesh.
Particulars:
(a)The applicant claimed that he suffered discrimination amounting to persecution because he was a member of the particular social group of Biharis in Bangladesh and the Tribunal understood that he made this claim (CB 49-50, Transcript 18.5, 19.8, 20.2).
(b)The Tribunal stated a conclusion that the applicant was not a member of a particular social group (CB 188.1).
(c)The Tribunal failed to make findings as to whether there was a particular social group of Biharis in Bangladesh and how it was defined, whether the applicant was a member of the group, whether the group suffered persecution in Bangladesh, and whether the authorities in Bangladesh were unable or unwilling to provide members of the group with protection.
Counsel for the applicant stated that he did not rely on the written submissions filed for the applicant (Transcript 1, line 41 and Transcript 6, line 6). By order of the Court on 18 May 2007, the applicant was to reduce to writing its oral submissions to the Court by 25 May 2007, with the first respondent to file and serve submissions in response if it wished. No such submissions were filed.
Findings as to the grounds in the application
The grounds in the application are subsumed under the grounds in the amended application and are rejected for the reasons set out below.
Findings as to the grounds in the amended application
Grounds 1(a), (b), (c), and (d) set out factual material, and (e) alleges a breach of s.424A, because:
(e) The Tribunal failed to disclose to the applicant the particulars of “advice received from the Australian High Commission at senior level from an appropriate source” (CB 187.6) that the letter dated 12 August 2006 signed by M Shoukat Ali was not genuine (CB 187.6).
That letter is at CB 165. The Court finds no breach of s.424A for the following reasons:
·The applicant’s representative wrote to the Tribunal on 8 March 2003 (CB 45) enclosing a letter said to be from “Mr Abdul Jabbar Khan, President of the SPGRC-A”.
·The Tribunal sent a s.424A letter to the applicant’s representative on 3 August 2006 (CB 162) that included the following paragraphs:
The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.
The information is as follows: The Australian High Commission in Bangladesh has met with the Secretary General of the Stranded Pakistanis General Repatriation Committee, who informed the High Commission that the letter you submitted through your adviser on 8 March 2003 purporting to have been signed by Mr. Abdul Jabbar, President of the SPGRC-A, was not written by him and that the signature on the letter is not his.
This information is relevant because it may be the reason or part of the reason for the Tribunal to find that your claims are fabricated and not truthful.
·The applicant’s representative replied to the s.424A letter on 16 August 2006 (CB 163) as follows:
We refer to your letter dated 3 August 2006. We do not know which particular secretary; the Australian High Commission met and you did not provide us any details. However, the person you have concerned (Abdul Jabbar) has counter signed in the document and M Shoukat Ali, the general secretary has also forwarded a document (enclosed).
The documents enclosed were another copy of the letter purportedly from Abdul Jabbar Khan and the letter purportedly from M. Shoukat Ali (CB 165).
The Tribunal therefore put to the applicant for comment the information that it had from the Australian High Commission.
It therefore complied with s.424A in relation to that advice.
The finding of the Tribunal is set out on CB 187 as follows:
I am not satisfied that the letter he submitted which purported to tell a different story is genuine. I prefer the advice obtained by the Australian High Commission at senior official level from an appropriate source that it is not. The letter of 12 August 2006 purporting to have been signed by M. Shoukat Ali expresses itself in such exaggerated terms as to lack all credibility. The applicant has clearly on his own evidence not “been living a miserable and inhuman life”.
The first sentence of that paragraph relates to the letter commented on by the Australian High Commission. The second sentence relates to the letter from M. Shoukat Ali. The letter of 12 August 2006 purporting to have been signed by M. Shoukat Ali was submitted by the applicant for the purposes of the application (CB 163-165). It is therefore covered by the exception in s.424A(3)(b). The finding of the Tribunal as to that letter was a subjective appraisal by the Tribunal and is not “information” for the purposes of s.424A: Tin v Minister for Immigration and Multicultural [2000] FCA 1109 at [3]; VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]; and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214.
No breach of s.424A occurred in relation to that letter. Ground one is rejected.
Particular (f) relies on an incorrect interpretation of the Tribunal’s finding and is rejected.
Particular (g) complains that the advice from the Australian High Commission was not set out in the s.424A letter. For the reasons expressed above, that claim is rejected. The Court finds no breach of s.424A as alleged. Particular 1(g) is rejected. Ground 1 is rejected.
Grounds 2, 4(a), (c) and (d), and 5(b) allege that the Tribunal took improper consideration of the findings of the previous Tribunals and prejudged the applicant’s claims based on those previous findings. A breach of s.424A is alleged but is not particularised.
The Court accepts the submissions by the first respondent in relation to these claims as follows:
24. There is no error in the Tribunal being aware of the previous Tribunals’ reasons for decision; indeed, this would be prudent in order to avoid the previous Tribunals’ errors: SZHSE v Minister [2006] FCA 1459 at [17] (RD Nicholson J); Collins v Minister (1981) 36 ALR 598 at 602-603 (Fox, Deane and Morling JJ). Consideration of inconsistencies between what an applicant tells the current Tribunal and what the applicant told a previous Tribunal (as set out in the first s.424A letter at CB 152-4) is permissible in the same way that consideration of evidence of any prior inconsistent statement is permissible.
25. It would be an error for the Tribunal to adopt a previous Tribunal’s conclusions without going through its own reasoning process. However there is nothing to indicate that the Tribunal was not independently exercising its own judgment in assessing the applicant’s claims. The references to previous Tribunal proceedings and reasons all occur in the “Claims and Evidence” portion of the current Tribunal’s reasons. They do not appear in the critical “Findings and Reasons” section, where Tribunal set out its reasoning for its conclusion.
26. No previous Tribunal’s reasons are in evidence, so it is impossible to verify the applicant’s claim in ground 4(c) that the current Tribunal cut and pasted text from the previous Tribunal’s reasons. However, the passages cited in ground 4(c) as being cut and pasted are in the “Claims and Evidence” portion of the current Tribunal’s reasons (CB 172.5-179.3). Such a use of an earlier Tribunal’s summary of the applicant’s claims (if it in fact occurred) would not indicate an adoption of that Tribunal’s reasoning.
27. The s.424A letter extensively canvassed unsatisfactory aspects of the applicant’s evidence to previous Tribunals and sought the applicant’s comments. There was no jurisdictional error in this approach.
As referred to above, the Tribunal put the relevant matter from the decision of the first Tribunal to the applicant in the s.424A letter. The Court finds no breach of s.424A. Grounds 2, 4(a), 4(c), 4 (d), and 5(b) are rejected.
It is alleged that the applicant was denied procedural fairness because the Tribunal failed to put to the applicant that he was a Bihari who lived outside a camp and was integrated into the local community (CB 187.5). That was a determination reached by the Tribunal from independent country information that is covered by the exception in s.424A(3)(a). Determinations from the evidence are not “information” covered by s.424A: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18].
A breach of s.424A is alleged to have occurred because the Tribunal failed to put to the applicant (its determination) “that he could not be anything other than a typical Bihari and therefore was not a leader or activist and did not do anything that would attract the hostile attention of any other group…” (Transcript 3, line 48). Those are determinations or subjective appraisals by the Tribunal and are not “information” covered by s.424A: SZBYR (ante) at [18]. Section 422B states that Part 7 of Division 4 of the Act is an exhaustive statement of the natural justice hearing rule. No breach of those provisions has been established. There was no denial of procedural fairness.
Ground 3 particular (a) alleges as follows:
The Tribunal failed to put to the applicant that he was a Bihari who lived outside a camp and was integrated into the local community (CB 187.5) although this evidence had not been rejected by the two previous Tribunals and the applicant again gave evidence at the hearing that he lived in the Geneva camp (Transcript 10.7, 12.8).
As submitted for the first respondent the issue of whether the applicant really had lived in a camp was covered in the first s.424A letter (CB 152, paras.(1) and (2)). The Court accepts the submission for the first respondent as follows:
The issue was similarly alive in the delegate’s decision (AB 38.1): cf SZBEL v Minister (2006) 231 ALR 592 (HCA). A later Tribunal hearing a matter remitted after a previous Tribunal decision is not bound to come to similar findings as those made by the previous Tribunals: NANX v Minister [2003] FCA 734 at [13]; Collins v Minister (above) at 602-603 (Fox, Deane and Morling JJ).
Those findings of fact were properly open to the Tribunal on the material before it and are not open to review. This ground is rejected.
Ground 3(b) alleges that the Tribunal:
failed to put to the applicant that unless he submitted physical evidence of being beaten by Awami thugs the Tribunal would not be satisfied that this occurred (CB 187.2).
This passage refers to subjective appraisals of the Tribunal and is not “information” covered by s.424A: Tin, VAF, SZEEU (ante). Insofar as it refers to gaps in the evidence, they are not “information” covered by s.424A: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]. An applicant must establish their own case: Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567. Ground 3(b) is rejected.
Ground 3(c) complains about findings of fact that were properly open to the Tribunal. They were not “information” for the purposes of s.424A. Ground 3(c) is rejected.
Ground 4(b) complains about a finding of fact by the Tribunal that his absence from Bangladesh for six years meant that he did not have a real chance of persecution on his return, and refers to the transcript of the hearing before the Tribunal at page 13.8. That proposition was put to the applicant for comment. The Tribunal set out other reasons for concluding that the applicant did not have a real chance of persecution if he returns to Bangladesh, being that he has not “suffered harm amounting to persecution in the past in any way whatsoever” (CB 187.6). The Tribunal did not accept that the applicant is a Bihari who has a well founded fear of persecution (CB 187.9). Those findings and the finding that his absence from Bangladesh for six years meant that he did not have a real chance of persecution should he return, were factual matters that are not subject to review. Further, there is nothing to show that the Tribunal relied on the applicant’s period of absence from Bangladesh in reaching its conclusion that he does not have a real chance of persecution if he returns to Bangladesh. No error of law has been established. Ground 4(b) is rejected.
Grounds 4(e), (f), and (h) allege bias and allege that the Tribunal pre-judged the authenticity of documents provided by applicants from Bangladesh. The applicant provides references to where the Tribunal member told the applicant, that country information and his personal experience as a Tribunal member indicate that fraudulent documents are easily obtained in Bangladesh. The Tribunal therefore put the applicant on notice that it might have difficulties in accepting the applicant’s documents. The Court accepts the respondent’s submission:
It is far from impermissible for a Tribunal member to take into account published information and personal experience regarding the situation in countries the subject of refugee applications: Muin v Refugee Review Tribunal [2002] HCA 30 at [7], [12] (Gleeson CJ), [116] (McHugh J), [263] (Hayne J), [291], [300] (Callinan J).
Moreover, the fact that the Tribunal went to the trouble of requesting the Australian High Commission to check the veracity of one of the applicant’s documents indicates that the Tribunal had not prejudged the issue.
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]. See also SZJVG v Minister for Immigration & Anor [2007] FMCA 718.
Nothing has been put to establish bias (actual or apprehended bias). The Court rejects this claim. Grounds 4(e), (f), and (h) are rejected.
Ground 4(g) alleges that the Tribunal pre-judged all Bangladeshi applicants as liars and that it would not give an Awami League man a visa unless his story was confirmed by the Australian High Commission in Dhaka (the Court notes that the applicant did not claim to be in the Awami League). The Tribunal, in conducting a review, may get any information that it considers relevant (s.424). If the Tribunal considered it relevant to check matters with the Australian High Commission, that is matter properly within its discretion. Checking with the Australian High Commission demonstrated that the Tribunal did not have a closed mind, or did not immediately reject claims based on the country of origin. The Tribunal was entitled to rely on the country information before it, and on its own experience. Ground 4(g) is rejected.
Ground 5(a) alleges that the Tribunal treated the hearing as no more than an opportunity to hand a s.424A letter to the applicant rather than an opportunity for the applicant to give evidence and present argument, and therefore s.425 was breached.
The applicant was invited to appear and give evidence (CB 139). The applicant attended and gave evidence (CB 179.3). A copy of the s.424A letter which had been sent to the applicant’s agent on 8 June 2006 (CB 152) was handed to the applicant (CB 179.7) and his agent’s reply of 26 June 2006 was referred to in detail (CB 181.5). The Court does not find a breach of s.425. The applicant was given an opportunity to give evidence and present arguments which added to his evidence given at the previous hearing on 23 June 2005 (CB 174.2). Ground 5(a) is rejected.
Ground 5(c) alleges that the Tribunal took into account evidence and submissions made by the applicant’s adviser regarding the adviser’s personal background and political allegiances. The Court finds that the Tribunal entered into a discussion with the applicant’s adviser at the end of the hearing, and after the applicant had said that he had no more to say (Tribunal Transcript 23, line 7). The Tribunal stated that it asked the adviser questions about his background “just for the sake of interest’s sake – curiosity’s sake” (Tribunal Transcript 23, line 16). There is nothing to indicate that the Tribunal took into consideration any of the information about the adviser in reaching its decision. Ground 5(c) is rejected.
Ground 6(a) alleges that the Tribunal Member took his own experiences into account. The Tribunal did not err by taking its personal experience into account: Muin v Refugee Review Tribunal (ante). Ground 6(a) is rejected.
Ground 6(b) complains that the Tribunal took into account a comparison between the implementation of decisions of their High Courts by authorities in Bangladesh and Australia. The relevant passages appear in the Tribunal Transcript at page 21. It does not appear from the Tribunal’s decision that the discussion relating to High Court decisions was a reason, or part of the reason, for the Tribunal’s decision. No breach of s.424A occurred. No error occurred in the Tribunal expressing its observations that decisions of the High Court in Bangladesh are not always implemented. This ground is rejected.
Ground 7(a) alleges that the Tribunal ignored the applicant’s claim of discrimination as a member of a social group. The Tribunal considered the situation of Biharis in Bangladesh at CB 187.9 and concluded that “some Biharis may have a well founded fear of persecution, therefore, but I do not accept that the applicant is one of them.” The Tribunal found that it did not accept that there is a real chance of persecution should the applicant return to Bangladesh in the foreseeable future (CB 187.10). The Tribunal found then that the applicant “does not have a well founded fear of persecution for any Convention reason, including membership of a particular social group” (CB 188). The claim for persecution as a member of the Biharis group was therefore dealt with. Ground 7(a) is rejected.
Ground 7(b) complains that the Tribunal concluded that the applicant “was not a member of a particular social group” (CB 188.1). The Tribunal did not make that finding: even if it did, it was a finding of fact properly open to the Tribunal on the material before it and is not subject to review. The Court rejects ground 7(b).
Ground 7(c) complains that the Tribunal did not deal with the issue of a particular social group of Biharis in Bangladesh. The Tribunal considered the problems of “camp Biharis in Bangladesh” at CB 187.9. The claim was therefore dealt with. The Court rejects ground 7(c).
The Court accepts the submission for the first respondent that “there was no need for the Tribunal to decide whether or not Biharis were a social group…because the Tribunal had already found that the applicant had no fear of persecution.... there are two parts to the refugee test: do you have a fear of persecution and is it on a Convention ground?” (Transcript 9, line 1).
All claims by the applicant are rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and 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 and amended application are dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 31 July 2007
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