SZJNB v Minister for Immigration
[2008] FMCA 100
•5 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJNB & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 100 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – fact finding not the function of judicial review – procedural fairness – bias. |
| Judiciary Act 1903 (Cth) s.39 Migration Act 1958 (Cth), ss.426(2), (3), 427(4), 427(3)(a), (3)(b), 440(1), 440(2)(b), 430(1)(c),(d), 425A, 424(1), 425(1), 422B, 424A, 424A(3)(a),(3)(b), 91R(2)(a), 474 |
| NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Abebe v Commonwealthof Australia (1999) 197 CLR 510 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Minister for Aboriginal Affairs & Anor. v. Peko-Wallsend Limited & Ors (1985-1986) 162 CLR 24 Tefonu Pty Limited v Insurance & Superannuation Commissioner (1993) 44 FCR 361 NBKT v Minister for Immigration & Multicultural Affairs (2006) 93 ALD 333 NAOA v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2004] FCAFC 241 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 |
SZBYR v Minister for Immigration & Citizenship (2007) HCA 26
SZHPD v Minister for Immigration & Citizenship [2007] FCA 157
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 referred to
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749
Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425
Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Rhandawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437
| First Applicant: | SZJNB |
| Second Applicant | SZJNC |
| Third Applicant | SZJND |
| Forth Applicant | SZJNE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2958 of 2006 |
| Judgment of: | Orchiston FM |
| Hearing date: | 29 November 2007 |
| Date of last submission: | 29 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 February 2008 |
REPRESENTATION
| Applicant appeared in person |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Australian Government Solicitors |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2958 of 2006
| SZJNB |
First Applicant
| SZJNC |
Second Applicant
| SZJND |
Third Applicant
| SZJNE |
Forth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) signed on 5 September 2006, and notified to the applicant by letter dated 19 September 2006, which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a protection visa to the applicant.
Background
Both before the Tribunal and this Court, the first named applicant appeared on behalf of his wife and two sons who are included in the application. For convenience, the first named applicant will be referred to as “the applicant” in these proceedings.
The applicant was born on 5 February 1967 and aged 37 years at the time of the protection visa application. His sons were aged 13 and 6 years. He and his wife claim to be born in Dhaka, Bangladesh. The applicant says he belongs to the Bengali ethnic group and is of Hindu religion. The applicant says that he lived in Kolkata in India from 1991 to 2005 and that his two children were born there.
In 2005, the applicant travelled to Germany, Malaysia and Switzerland. The applicants arrived in Australia on 15 February 2006 on Indian passports issued in 2001 and valid until 2011.
On 22 March 2006 the applicants applied to the Department of Immigration and Multicultural Affairs (the Department) for Protection (Class XA) visas. The applicant claimed that he is a Bangadeshi resident in India and fears repatriation to Bangladesh where he alleges the Hindu minority are being persecuted by Muslim fundamentalists.
On 19 May 2006, the delegate refused to grant the applicants’ protection visas on the basis that the applicants are not persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (the Convention), (see Legislative Framework).
Legislative Framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 7 June 2006, the applicants applied to the Tribunal for review of the delegate’s decision.
On 16 August 2006 the applicants appeared before the Tribunal to give evidence and present arguments. The applicants were represented in relation to their review by their registered migration agent. Only the first named applicant made specific claims under the Refugee Convention. The remaining applicants relied on their membership of his family.
The applicant’s claims and evidence (Court Book (CB) 145-151)
Before the Tribunal, the applicant claimed to fear returning to Bangladesh for the following reasons, including:
·his religion as a Hindu puts him at risk of persecution by Muslim fundamentalists;
·police harassment of the applicant in Bangladesh because he and his family had lived in India, his sons had been born there, and they had “become Indian”;
·lack of social acceptance of the applicant and his family because of their Indian residence;
·he would be unable to start a business in Bangladesh because his father and brother had not been able to sustain their business there because of Muslim harassment.
The Tribunal’s findings and reasons (CB 156- 159)
The Tribunal accepted that the applicant was born in Bangladesh and lived there until 1991 when he became a resident of India for some 15 years. It further accepted on the basis of the independent evidence that the applicant’s Indian passport was obtained by submitting false information to the Indian authorities and it could not be relied upon by the applicant to secure re-entry to India.
The Tribunal found the applicant to be an unreliable witness, whose evidence was not credible in relation to some key claims, including claims of “torture” by Muslim fundamentalists some 15 years ago. It found these claims to be vague and lacking in detail.
It found that the applicant was not seriously harmed in Bangladesh in the past by Muslim fundamentalists or by any other individual group. Whilst the Tribunal accepted that the applicant and his father were harassed by Muslim people who stole from the shop and insulted the applicant and his relatives, it did not accept that the harm incurred by the applicant was sufficiently serious as to amount to persecution in a Convention sense (CB 156-157).
The Tribunal was not satisfied that there is a real chance that the applicant or his family would be persecuted for reasons of their membership of a particular social group which could be defined as “Bangladeshi’s who have been resident in India for a substantial time” or similar definition.
The Tribunal was further not satisfied that the applicant would face serious economic hardship if he were to return to Bangladesh in the foreseeable future for reasons of his Hindu religion. On the applicant’s own evidence, it found that his grandfather sustained what appears to have been an adequately successful business for a substantial period of time and that the applicant proved to be extremely entrepreneurial and resourceful in India in establishing a very successful and profitable business himself.
On the basis of independent information available to it, including that submitted by the applicant, the Tribunal did not accept the applicant’s claim that the fact that he is a Hindu is sufficient to put him at risk of persecution in Bangladesh. It found that the applicant had not put forward any reasons why he should experience any more discrimination or harassment than he has done in the past, apart from the fact that he spent a considerable amount of time in India. The Tribunal did not accept that this would cause the applicant to be targeted by the authorities, or indeed by anyone else.
The Tribunal was not satisfied that there is a real chance that the applicant would be at risk of serious harm because of his political opinion, real or imputed as a Hindu supporter of an opposition party, given the applicant’s evidence that he was not involved in political groups or activities in either Bangladesh or India and that the independent information before the Tribunal, including some of the articles submitted by the applicant himself, indicated that events such as murders and assassinations in Bangladesh, are generally motivated by politics.
Having reviewed the independent evidence, and taken into account the applicant’s oral evidence, the Tribunal was not satisfied that there is a real chance that the applicant would be persecuted because he is Hindu, without any further reasons, such as active support for an opposition party, which might cause him to be targeted by the authorities or any other individual group. The Tribunal was hence not satisfied that the applicant had a well founded fear of Convention based persecution in Bangladesh.
In conclusion, the Tribunal noted that since no specific Convention claims were made by or on behalf of the other applicants, the fate of their application similarly depended on the outcome of the first named applicant’s application.
The proceedings before this Court
The applicant filed the application and affidavit in support in this Court on 13 October 2006 setting out three grounds for review of the Tribunal’s decision.
The applicant appeared in person before the Court on 29 November 2007 with the assistance of an interpreter. Mr Reilly of counsel appeared for the first respondent.
Each of the grounds was translated for the applicant, prior to his being invited to say anything he wished in regard to each ground, and generally.
Grounds of application
The grounds of the application are:
(1)The Tribunal failed to internalize the circumstantial grounds of the review application and in weighing both the subjective claims of the review application and in reviewing the huge supporting facts and documents and such has breached section s426(2), s426(3), s427(4) and s440(2)(b) of the Act.
(2)I provided additional evidence to the Tribunal, but unfortunately the Tribunal did not pay attention on that additional evidence and used the previous controversial independent report and other traditional and structured sources in arriving decision. This constitutes a breach of section 430(1)(c)(d) of the Act. The above ground are judicially reviewable under section 476(1)(a)(e)(f)(g) of the Migration Act.
(3)The Tribunal’s ignoring evidence and its finding in the face of contradicting independent evidence constitutes jurisdictional error being a breach of procedural fairness, which is an essential condition of the exercise of the decision making power and attracts s39B Judiciary Act 1903 as per Gaudron J in Abebe v Commonwealth (1999) 162 ALR 1 at 33 paragraph [113].
Ground 1
Mr Reilly submits generally, that both the grounds of application and the applicant's written submissions are template documents which plead vague grounds which, in the absence of particulars, are meaningless, and some of which are expressed in incomprehensible language. He points, for example, to the phrase “failed to internalise the circumstantial grounds of the review”, which he submits does not specifically relate to the Tribunal decision in this case. I accept this submission. Without particulars, it is difficult to infer exactly how each of the following statutory provisions stipulated by the applicant is said to have been breached.
In this regard, s.426(2) of the Act provides that, in response to a Notice under s.425A inviting the applicant to appear before the Tribunal to give evidence, the applicant may give the Tribunal written notice that the applicant wants the Tribunal “to obtain oral evidence from a person or persons named in the notice”. In the instant case, the Notice (CB 93–94) clearly invited the applicant “and any persons listed below [being the other applicants in this case] to give oral evidence and to present arguments to the Tribunal”. It further stated: “you can also ask the Tribunal to obtain oral evidence from another person or persons” and invited the applicant to “complete the internal “Witnesses” part of the form if you want the Tribunal to get oral evidence from another person, please note the Tribunal does not have to get evidence from any person you name”, pursuant to s426(3) of the Act.
The applicant returned the completed Response to hearing Invitation Form (CB 95–96) to the Tribunal. The applicant declined to tick the box in 2c of the form: “Do you want the Tribunal to take oral evidence from any witnesses? If yes, you must fill in the details on the back of this form”.
I am satisfied therefore that the Tribunal has discharged its statutory obligations of notifying the applicant as required under s.426(2) of the Act that he may request the Tribunal to call witnesses and provided him with the opportunity to nominate the witness or witnesses requested on the Response form attached to the s.425A Notice inviting the applicant to appear before it.
Given the applicant has declined to make such a request, I fail to see how s.426(3) is relevant in this context. Accordingly, I find no breach by the Tribunal of s.426(2) and (3) of the Act, contrary to the assertion by the applicant.
Section 427(4) of the Act states that the Tribunal must not summon a person under paragraph (3)(a) or (b) unless the person is in Australia. Sub-sections 3(a) and (b) provide that the Tribunal in relation to a review may:
(a)summon a person to appear before the Tribunal to give evidence; and
(b)summon a person to produce to the Tribunal such documents as are referred to in the summons.
It is unclear who is or are the person or persons who the applicant is suggesting the Tribunal failed to summon before it to give evidence or produce documents. Again, the applicant has failed to provide particulars relevant to the alleged breach of this statutory provision. It is thus impossible to say why s.427(4) is relevant in this context. I note, in any event, that the powers of the Tribunal under s.427(3)(a) and (b) are clearly discretionary and within the Tribunal's own competence.
Accordingly, I am not satisfied that there has been any breach by the Tribunal of s.427(4) of the Act, (and implicitly of s.427(3)(a) and or/ (b)), as alleged by the applicant.
In regard to the alleged breach of s.440(2)(b), again, the applicant has provided no particulars of this alleged statutory breach and has provided no transcript of the Tribunal proceedings which may have further enlightened the matter. There is nothing on the face of the Tribunal's decision record which bears any resemblance to this issue of alleged statutory breach by it.
In the absence of anything further, it is difficult to see how this statutory provision could be said to have been breached by the Tribunal. Section 440(2)(b) is predicated upon the Tribunal first having made a written direction under sub-section (1). There is no evidence before me in this regard as to the Tribunal's satisfaction, or otherwise, concerning the public interest in any non-publication or non-disclosure of any evidence, information, or the contents of any document produced to the Tribunal.
In any event, even taking the matter at its highest, if such a direction had been given by the Tribunal, s.440(2)(b) is a permissive provision permitting communication by a person to another person in certain circumstances of any evidence, information, or document, which is the subject of a non-publication written direction. There is simply no evidence or anything on the face of the Tribunal decision record to demonstrate the relevance of this provision to any claim that the Tribunal has breached its statutory obligations in this regard.
Accordingly I am satisfied that there has been no breach of s.440(2)(b) of the Act by the Tribunal as asserted by the applicant.
To the extent that ground (1) asserts that the Tribunal has failed to properly assess and weigh the claims and the evidence, it is clear that it had regard to the Department’s file relating to the applicants; the material referred to in the delegate’s decision, including the statement submitted by the applicant’s adviser on his behalf; independent country information, including newspaper articles submitted by the applicant; and evidence and submissions given by the applicant and family members.
The Tribunal carefully summarised in its decision the applicant’s claims and evidence; and many of the questions, and answers exchanged between it and the applicant, including the matters put to the applicant by the Tribunal. The applicant’s wife was also given the opportunity to give evidence, and his adviser to make submissions and submit documents. These matters are largely dealt with under ground 2 below and I rely on my reasoning therein in the present context.
I am satisfied that the Tribunal carefully assessed all the applicant's claims, accepting some (including his Bangladeshi nationality, and Muslim harassment of his father’s shop) but rejecting key others (including the asserted persecution and torture by Muslim fundamentalists; and his claimed future persecution in Bangladesh if he were to return arising from his residency in India, from his Hindu faith; and from economic hardship that he claimed he would face).
Overall, on all the evidence before the Tribunal, including the independent evidence provided by the applicant himself, I consider that the Tribunal gave clear and well reasoned findings on each of the applicant's claims in reaching its conclusion that the applicant was not a person to whom Australia has protection obligations. I am satisfied that it was open to the Tribunal to reach the conclusions it did on the evidence before it and that it performed the task required of it in accordance with law.
The fact that the Tribunal found the applicant to be an unreliable witness whose claims were not believed was ultimately a matter for it in its preserve as the finder of fact. It is no part of the function of this Court to engage in review of the merits of the Tribunal’s decision. As observed by the Full Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]):
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.
The Tribunal clearly articulated its reasons for rejecting the applicant’s claims, based on its findings that the applicant was an unreliable witness who lacked credibility. Its conclusion that the applicant was not a witness of credit was a finding of fact par excellence: Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]. Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion does not amount to an error of law: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Furthermore there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealthof Australia (1999) 197 CLR 510 at 560 [137]. I am satisfied therefore that the applicant is, in effect, inviting the Court to undertake impermissible merits review of the Tribunal’s decision, which is not the function of this Court.
Further what weight the Tribunal accords the material before it is ultimately a factual matter for it: (Lee v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 464; Minister for Aboriginal Affairs & Anor. v. Peko-Wallsend Limited & Ors (1985-1986) 162 CLR 24; Tefonu Pty Limited v Insurance & Superannuation Commissioner (1993) 44 FCR 361; NBKT v Minister for Immigration & Multicultural Affairs (2006) 93 ALD 333).
For the reasons stated above, ground 1 is rejected.
Ground 2
I note, firstly, that the following statutory provisions relied on by the applicant, namely, ss476(1)(a),(e),(f), and (g), are not contained in the Act.
The applicant has also failed to provide particulars in regard to this ground. He does not say precisely what the “additional evidence” is that he provided to the Tribunal to which he asserts the Tribunal paid no attention and what is the “previous controversial independent report .and other traditional and structured sources” which it relied on instead.
The applicant was represented at the Tribunal hearing by his registered migration agent who submitted a statement to the Tribunal on his behalf. The Tribunal decision record sets out the contents of this statement, the adviser’s submissions in support, and refers to other documents submitted by the adviser on the applicant's behalf, which included two newspaper articles and two letters from the adviser to the Tribunal dated 7 June 2006 and 20 June 2006, (the latter of which attached a number of documents pertaining to the applicant's attempts to validate his claims regarding his Bangladeshi status) (CB 145 – 147).
Further, at the Tribunal hearing on 16 August 2006, the Tribunal referred to a number of documents submitted by the applicant's adviser indicating that Hindus are at risk of persecution in Bangladesh and that these documents were simply a sample of the wide spread reports of Hindu reports of persecution.
The Tribunal also set out in its decision, (at CB 150–151), various articles, newspaper articles, newsletters, and a downloaded blog submitted by the applicant's adviser on country information. Further, (at CB 151–156), it also set out independent information from its own sources relevant to the applicant's claims, including US State Department reports, the Human Rights Watch World Report, newspaper articles and various other reports.
In the Tribunal's Findings and Reasons, it indicates that it has “reviewed the independent evidence carefully” and makes clear that this includes the independent evidence submitted by the applicant’s adviser. I consider that a fair reading of the Tribunal's reasons supports this conclusion. The Tribunal has summarised in this regard an extensive amount of country information which it considered relevant to the task it had to perform,. I am satisfied that the Tribunal took all this material into consideration before making findings adverse to the applicant. However, as observed by the Full Federal Court in NAHI:
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 … at [11].
The very function of the Tribunal was to assess the applicants’ claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the applicants’ country of origin …at [12].
It was clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal … at [13].)
The Full Court further observed at [14]:
the Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item.
For the reasons stated above, ground 2 is not made out.
Ground 3
Again the applicant has failed to particularise what evidence he says the Tribunal has “ignored”. In regard to any complaint by the applicant that the Tribunal has ignored the independent evidence in this case, I rely on my reasoning under ground (2) above and reject any such assertion.
If this is a complaint that the Tribunal has ignored evidence more generally, I do not consider that this complaint is borne out from a proper reading of the Tribunal’s decision. As stated in relation to grounds (1) and (2) above, I consider that the Tribunal accurately summarised the claims made by the applicant at various stages of the review process and had explicit regard to the evidence provided by the applicant in his protection visa application (CB 145); to correspondence and documents submitted by the applicant’s adviser (CB 146–147); to the evidence in the applicant's case, including the applicant's and wife’s oral evidence and arguments presented by the applicant's adviser (CB 145–151); and to independent information relevant to the applicant's claims (CB 151–156). I am satisfied that a fair reading of the Tribunal decision makes it clear that it considered and assessed all this relevant material before reaching its conclusions in this case.
More generally, as to whether there has been any breach of procedural fairness as asserted by the applicant, I note first that the applicant is not entitled to common law procedural fairness: s.422B of the Act. I also note that the applicant has failed to particularise this assertion and has not placed the transcript of the Tribunal hearing before the Court.
As observed, in this regard, by the Full Court in NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241:
In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidentiary basis for the grounds he seeks to raise, thus he has not in our opinion established that the Tribunal did not comply with the rules of natural justice; …at [21]
…for the requirements of natural justice to be satisfied it is sufficient if the gravamen or substance of the issue or factor is brought to the appellant’s attention; or that the appellant is on notice of its ‘essential features’ (see Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Straight Islander Affairs (2000) 103 FCR 539 at 557 and the cases there cited at [25].
Without the transcript, it would appear from the face of the decision record that the Tribunal in this case identified and drew the applicant's attention to the gravamen or substance of the dispositive issues and gave the applicant the opportunity to respond to them.
I am satisfied that the Tribunal complied with its statutory obligations under s.425(1) of the Act by inviting the applicant to a hearing to give evidence and present arguments relating to the issues arising in relation to the delegate’s decision. (CB 93). The applicant, his wife and his brother, who is an Australia citizen, also attended the hearing. Both the applicant's wife and brother were given the opportunity to say whatever they wished to the Tribunal. The applicant also had the assistance of his adviser.
I consider that the applicant would have been aware that his nationality and his passport were in issue from the delegate’s decision (CB69). Indeed, the Tribunal made a contrary finding to the delegate in this regard in favour of the applicant (at CB 156).
I further consider that the applicant could have been in no doubt that the genuineness of his claims concerning whether he was seriously harmed in the past in particular by Muslim fundamentalists; whether he would be persecuted in the future if he were to return to Bangladesh; and if so, whether he would face economic hardship; and whether he would be persecuted because he was a Hindu in that country, were in issue. The Tribunal noted in this regard that neither the applicant's sister, nor his brother, nor his wife provided support for his claims of risk of serious harm or danger if he were to return to Bangladesh. The applicant was clearly on notice of their statements. He was also clearly on notice from questions put to him by the Tribunal that the issue of political persecution and his evidence that he was not involved with political groups either in Bangladesh or India were issues under consideration by the Tribunal.
In any event, as relevantly observed by the High Court in SZBEL at [47], it is:
not necessary and often would be inappropriate for the Tribunal to put to an applicant in so many words that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt a position of, a contradictor.
I am satisfied therefore that the Tribunal decision demonstrates that it sufficiently identified the determinative issues arising in relation to the decision under review. I am further satisfied that it fully considered each of these issues and gave the applicant sufficient opportunity to give evidence, expand on his claims, make submissions, and to understand, and respond to each of these issues. The applicant was thereby accorded procedural fairness in compliance with s.425(1) of the Act: (SZBEL at [33]–[48]).
I note that no letter pursuant to s.424A of the Act was sent by the Tribunal to the applicant in this case. I am satisfied however that there is no “information” that enlivened the Tribunal’s obligation under the section. In this regard it is clear that the word “information”, upon a proper construction, does not extend to the Tribunal's failure to believe the applicant's evidence. As observed by the High Court in SZBYR v Minister for Immigration & Citizenship (2007) HCA 26 at [18]:
Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
It is also the case that the Tribunal was not obliged to put independent country information upon which it relied to the applicant: s.424A(3)(a), nor to put to him information which the applicant himself gave for the purpose of the application for review: s.424A(3)(b).
Accordingly, I detect no breach of s.425(1) and s.424A of the Act in this case. I am satisfied therefore that the applicant was accorded procedural fairness by the Tribunal as an “essential condition of the exercise of the decision-making power”: Abebe at [113] and within the statutory framework of the Act as required.
The applicant’s oral submissions
The applicant made the further general oral submission to the Court:
I’m not in a very good condition mentally… Mentally I’m sick and I have lost my family, I have lost my wife and my kids and in this situation, if I have to go back to my country, that will be more pressure on my mentally situation [sic] and eventually there will be no other way other than committing suicide.
I note that the applicant did not seek an adjournment before this Court on the basis of his mental condition rather, he put it forward generally as a reason why he should not be made to return to Bangladesh: (Transcript 29/11/07, p9)
This submission does not go to any of the matters put before the Tribunal on the face of its decision, and it appears to post-date its determination. At best, it could be construed as an effect, not an integer, of the Tribunal's decision. I reject this submission.
The applicant's written submissions
I note at the outset that I do not intend to treat the applicant's written submissions as amended grounds of application since they were not formally lodged in this capacity. In fairness to the applicant, however, who was unrepresented in these proceedings, I will deal with each submission separately to the extent that they raise additional matters to the application.
Paragraph 1
The applicant submits at paragraph 1 of his written submissions that, pursuant to s.476(1)(f) of the Act, the decision of the Tribunal was induced or affected by actual bias. The particulars of the asserted bias are stated as: “on the evidence as a whole, the findings of the Tribunal member as to the following matters demonstrated actual bias.”
At the outset, I accept the submission by Mr Reilly that s.476(1)(f) upon which the applicant relies, was relevant to actual bias some years ago, but no longer exists in the Act.
There are no proper particulars provided by the applicant to identify the precise nature of what amounts to, in effect, a global assertion of bias by him. Further, as has already been noted above, the applicant has not provided the transcript of the Tribunal hearings before the Court.
It is well-settled that any allegation of bias must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69]. This has simply not been done by the applicant in the present case.
I further note the observations by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.” His Honour further relevantly observed at [38]:
The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
In order to establish bias or bad faith the applicant would need to demonstrate that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [56-59]. Again, this has simply not been demonstrated by the applicant. There is nothing disclosed on the face of the Tribunal decision record to support any assertion of actual bias on its part.
I am further satisfied that there is simply nothing on the face of the decision record to show that a “hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, might reasonably apprehend that the Tribunal did not bring an impartial mind to the task of the decision making process: Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [28].
I am satisfied therefore that no allegation of bias, whether actual or apprehended, can be demonstrated on the face of the Tribunal decision record.
In regard to the applicant's submission that the “Tribunal did not treat this matter as a s.424A issue”, the first respondent submits that the applicant has failed to identify the “information” that he says falls within s.424A which that the Tribunal did not bring to his attention and which is not excluded by s.424A(3). Mr Reilly submits therefore that the applicant’s assertion on the basis of this statutory provision is meaningless. I accept this submission and rely on my reasoning under ground 2 above on this point.
Paragraph 2
The applicant submits at paragraph 2 of his written submissions that the Tribunal failed to consider properly the test whether the applicant would suffer serious harm pursuant to s.91R(2)(a) of the Act, “if we ask to relocate in India or Bangladesh.”
I accept the submission by Mr Reilly that the applicant's submission is meaningless as it stands. The Tribunal made no finding concerning the applicant’s relocation in Bangladesh, which is the only relevant country in this case, and hence s.91R appears irrelevant. Otherwise, to the extent that the submission claims that the Tribunal failed to properly assess future persecution if the applicants were to return to Bangladesh, this matter has already been dealt with above under the grounds of application.
Paragraph 3
The extent to which the applicant makes a general complaint in paragraph 3 of his written submissions concerning the use made by the Tribunal of country information, the choice and assessment of country information is a factual matter for it. If the applicant disagrees with the Tribunal's assessment of the country information, this does not constitute jurisdictional error on the part of the Tribunal. Otherwise, this issue has already been dealt with under ground 2 above and I rely on my reasoning therein.
The applicant’s more specific submission that the Tribunal also failed to consider the Amnesty International country information, fails to specify to which document or documents the applicant is referring. I note in this regard that the applicant was given the opportunity by the Court to explain to which Amnesty International country information he was referring (Transcript, 29/11/07 p12). His response: “I was actually referring to my mental situation and that this is an international country and should be considered here properly”, does not appear relevant to his submission and does not take the matter any further.
To the extent that the applicant submits that “the Tribunal was preoccupied and did not have a fresh look” and effectively relied on the “reasoning and evaluation of my case for the protection visa”, any assertion of bias or prejudgment has already been dealt with above under paragraph 1 of the applicant’s written submissions and I adopt the same reasoning in the present context. I do not therefore accept the applicant’s submission that the Tribunal did not bring a fresh mind to the applicant’s case nor that it prejudged it, nor that it acted in any way in bad faith. I am satisfied that the Tribunal dealt with the merits of the applicant’s case and made findings that were open to it on all the evidence in accordance with law.
Paragraph 4(a)
The applicant submits at paragraph 4(a) of his written submissions that the Tribunal “applied the wrong test” and placed “too high an onus of proof” on the applicant and failed to give the applicant “the benefit of the doubt.”
I accept the submission by Mr Reilly that there is no onus of proof generally in administrative matters. It is well-settled that although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration & Multicultural Affairs (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 Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70. Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: Rhandawa v Minister for Immigration & Ethnic Affairs (1994) 52 FCR 437 at 451.
I further accept the submission by Mr Reilly that the issue is simply whether on the material to which the Tribunal had regard, it is satisfied that the applicant is a person to whom Australia owes protection obligations.
Paragraph 4(b)
The applicant's further submission at paragraph 4(b) that the Tribunal “left out individual elements of the applicant's claim… rather than looking at the claim as a whole…” again provides no particulars as to the matters the Tribunal is said to have left out of its consideration.
The Court has already dealt with the extent to which the Tribunal has properly considered the applicant's claims under the grounds of application and, for the same reasons, I reject the present submission. Further, it is a matter for the Tribunal to determine what weight it gives to particular matters as discussed therein.
Paragraph 5
The applicant submits at paragraph 5 of his written submissions that the Tribunal failed to “take into account “certain relevant considerations or ‘integers’ central to the applicant's claims.”
Again, the applicant has failed to provide particulars of this assertion. Otherwise, the extent to which the Tribunal considered the applicant's claims has already been dealt with in regard to the grounds of application above.
Paragraph 6
The applicant submits the Tribunal “failed to carry out its review functions” by its failure to consider that the applicant had been under “immense pressure from fundamentalists and other mainstream political parties because [sic] my minority background” and failed to consider his claim “to fear serious harm as a result of his Hindu religion… and Bangladeshi background in India.”
I am satisfied that the Tribunal put questions to the applicant on these matters and in its findings and reasons clearly deals with its assessment of these issues. Merely because the Tribunal did not accept the applicant's claims are matters of fact for the Tribunal solely to determine and it is not for the Court to interfere on this basis. I accept the submission by Mr Reilly in this regard that the particulars provided by the applicant at paragraph 6 simply relate to factual matters and at their highest seek merits review from this Court. This issue has already been fully dealt with under the grounds of application above.
Paragraph 7
The applicant submits at paragraph 7 of his written submissions that he satisfies the Convention definition of ‘Refugee’ and that the Tribunal “failed to see that the applicants satisfy the four key elements that are required to satisfy the Convention definition”.
I accept the submission by Mr Reilly that, again, at its highest, this submission seeks that the Court engage in merits review of the Tribunal’s findings of fact. For the reasons already stated, this is not the proper role of this Court. as discussed above in relation to the grounds of application.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application before this Court is dismissed.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 5 February 2008
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