SZJPS & Ors v Minister for Immigration & Anor
[2007] FMCA 395
•6 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJPS & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 395 |
| MIGRATION – Review of decision by the Refugee Review Tribunal – findings of fact not reviewable unless not reasonably open to the Tribunal – application dismissed. |
| Migration Act 1958 (Cth), ss. 424, 430, 439, 440, 474, 476 Judiciary Act, s.39B Federal Magistrates Court Rules 2001, r.44.12 |
| Abebe v Commonwealthof Australia (1999) 162 ALR 1 |
| First Applicant: | SZJPS |
| Second Applicant: | SZJPT |
| Third Applicant: | SZJPU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3190 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 6 March 2007 |
| Date of last submission: | 6 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2007 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondent: | Ms. R. Francois |
| Solicitors for the Respondent: | Ms. A. Mansour of Clayton Utz |
ORDERS
The application and amended application are dismissed.
The name of the first respondent is amended to the Minister for Immigration & Citizenship.
The applicant is to pay the costs of the first respondent fixed in the amountof$4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3190 of 2006
| SZJPS |
First Applicant
SZJPT
Second Applicant
SZJPU
Third Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first respondent has opposed the application for an adjournment. The application was the subject of an order on 16 November 2006, listing it for final hearing on 9 August 2007. However, the applicant was notified by letter dated 13 February 2007 that the application was listed for today. No satisfactory detail has been given to the Court as to why the applicant could not obtain legal advice for the purpose of today's hearing. In view of those facts, and the fact that the members of the applicant's family who seek to rely on the application of the applicant were not essential participants in the applicant's case, the Court is not prepared to adjourn the matter.
Introduction
This is an application to show cause filed on 1 November 2006 seeking to review 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 applicants a protection visa. The applicants filed an amended application on
18 January 2007.
The first named applicant who was born on 1 December 1968 is married with one son; his wife (born on 7 February 1980) and son (born on 13 December 2002) are the second and third applicants in the matter. All three applicants claim to be from and of Bangladeshi ethnicity, and of Hindu faith.
The applicants arrived in Australia on 13 January 2006 on Indian passports and lodged an application for protection visas with the Department of Immigration and Multicultural Affairs on 16 February 2006. The first applicant put forward his own claims under the Refugee Convention, while his wife and son submitted applications as members of the family unit. For the sake of convenience, the first applicant will be referred to simply as the ‘applicant’. As his wife and son submitted applications as members of the family unit, their presence at this hearing is not essential for the applicant to establish his case.
In the applicant’s application he claimed that he was an active member of the “only party who really stand by for the minority” (CB 27), namely, the Awami League. The applicant claimed that he was told to leave the country and threatened with death following the BNP’s parliamentary election in 2001, and that in 2004 he was arrested and tortured after he was falsely accused of murder. The applicant claimed that his business was “ransacked by the extremist” (CB 27) during his arrest, and that he was only released after bribing the officials. According to the applicant’s statement, he was forced to relocate with his family to India even though “in India I can’t do anything to feed my family” (CB 27). The applicant claimed that if he were to return to India the police and “politically motivated radical Muslims” (CB 21) would seriously harm him. He claimed that members of the Awami League were considered to be agents of India, and his involvement would therefore “attract the attention of the police, other political party. I will face serious harm, arrest, detention and even death” (CB 21).
This application was refused by a delegate of the first respondent on
23 March 2006 (CB 101).
On 13 April 2006 the applicant applied for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on 13 June 2006, at which time he maintained the claims made in his original protection visa application. The second applicant gave evidence confirming the truth of her husband’s statements.
On 20 September 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 196-202) (emphasis added):
(a) Regarding the applicant’s credibility (CB 196):
The Tribunal found the applicant’s oral evidence unfocused and disjointed. This was in stark contrast with his written claims, allegedly prepared with the assistance of a student, but in any event by a person with some knowledge of relevant refugee issues (such as effective third State protection) – even though the applicant distanced himself from that statement.
The Tribunal found it necessary to paraphrase some of the applicant’s oral evidence at hearing, and also took the unusual step of sending to him its written summary of his oral evidence, for comment if he wished. (The applicant did not provide any comment on the Tribunal’s summary.) The applicant relied on vague assertions, often with little or no detail or substantiation. There were also marked inconsistencies in his evidence, sometimes within the space of a few sentences…The Tribunal accepts that the applicant does not have strong presentational skills, and it also makes allowance for the possibility that he was nervous at the hearing. However, it finds that at least some of his oral evidence was deliberately confused and evasive. Taking into account all of the material before it, the Tribunal finds the applicant to be a witness of variable reliability. (CB 196)
(a)Regarding the nationality of the applicants (CB 197):
The applicant’s evidence regarding his nationality was confused and problematic. On any view of the material before the Tribunal, there is strong evidence of document fraud and haphazard preparation of written claims.
The Tribunal accepts, albeit with some difficulty, that the applicants have Bangladeshi nationality, as claimed. It relies above all on the applicant husband’s detailed and consistent oral evidence on aspects of life in Bangladesh, which in the Tribunal’s view conform with the experiences of a Bangladeshi national or at least a long-term resident. It accepts as plausible that the persons who completed the forms on the applicants’ behalf (their visitor visa application form in India, and their protection visa application, review application and their Medicare application forms in Australia) copied information from their passports and other documents. In the case of the protection visa application, this appears to have been done without checking whether it bore any relationship to the substance of the applicants’ refugee claims, which clearly relate to Bangladesh. The Tribunal notes, however, that it places no weight on the documentation submitted on 24 May 2006, purporting to support the applicants’ claimed Bangladeshi nationality, in view of the prevalence of document fraud in Bangladesh and the applicant’s extensive past reliance on such documents. (CB 197)
The Tribunal nonetheless considers significant the applicants’ use of Indian passports, not only for their visit to Australia, but for return visits from India to South East Asia. The Tribunal’s concerns were compounded by (a) the applicant’s evidence that he also obtained an Indian passport in 1998, and (b) the range of Indian documentation he submitted in support of his application for a visitor visa for Australia. In the Tribunal’s opinion, this evidence raises the real possibility that the applicant or applicants are indeed Indian nationals, and not Bangladeshis; or that they have dual nationality. (CB 197)
It was the applicant’s evidence that his and his family’s Indian passports were fake. He knew nothing of the Indian documentation provided to obtain the passports or his Australian visitor visa, except that it, too, must have been fabricated. In essence, money and brokers ‘can make everything’. The Tribunal found the applicant’s evidence on this point cogent and consistent, and supported by country information as to Bangladeshis’ frequent use of fake Indian documentation (a sample report of which is cited above). The Tribunal therefore considers that the applicant’s claim not to be Indian may be true, and on this basis accepts that he and his family members have Bangladeshi nationality only. (CB 197)
(b)Regarding the applicant’s refugee claim (CB 197):
The Tribunal accepts that the applicants are Bangladeshi Hindus, taking into account Bangladesh’s demography (with about 10% of the population being Hindu), the applicant’s name, his family’s background (such as their association with jute and textiles) and the applicant’s oral evidence.
The Tribunal also accepts that the applicant supports the Awami League, as claimed, taking into account that it is one of Bangladesh’s major political parties and one that traditionally draws the support of Hindus. The Tribunal does not accept, however, that the applicant was an ‘active member’ of the AL, or will be so perceived, or that he is ‘a Hindu involved in politics for the wellbeing and equal rights for Hindus’, as stated in his protection visa application. It was his evidence at hearing that he supported a local Awami League candidate whom he referred to only by first name. This person was a neighbour who occasionally assisted the applicant. As noted in the Tribunal’s s.424A letter, the Tribunal has been unable to find in the public election records any mention of an AL candidate who uses this name. Given local naming practice in Bangladesh, there is the possibility that the applicant refers to this person by a nickname unrelated to his real name, but the applicant did not provide any further comment to suggest that this is the case. In any event, the applicant’s support for this person appears to have been very limited in time and scope. He referred to posting bills at election time, but he did not claim and the evidence does not suggest that he was a member of the party, or that he had any profile or more sustained engagement. In light of all the evidence, the Tribunal accepts that the applicant is and will be perceived as a supporter of the Awami League, in part due to his Hindu identity and also his limited assistance to a local AL functionary and neighbour (who is not necessarily the local parliamentary candidate). It is not satisfied, however, that he has any more extensive political involvement or profile. (CB 197-8)
The Tribunal accepts that the applicant’s father was killed during the extensive violence of Bangladesh’s War of Liberation in 1971. It also accepts that the applicant lost his sister and his mother in the following years. However, the Tribunal is not satisfied that his father’s death, his sister’s ‘disappearance’ (in somewhat unclear circumstances) or his mother’s death (from grief at the loss of other family members) – all more than 30 years ago – represent risk factors for the applicant now, or that they are related to his current refugee claims based on religion and political opinion. The Tribunal accepts, however, that the applicant became an orphan as a result of these deaths, and it examines the ramifications of this below. (CB 198)
The applicant claimed, and the Tribunal accepts, that he attended school only to the age of 13. He variously alluded to his uncle having given him less opportunity in life, implicitly because he was an orphan; and to his inability to concentrate on his studies as he became increasingly aware of the disadvantaged lot of the Hindu minority. The Tribunal accepts that the applicant’s uncle gave priority to his own children over and above the applicant, his de facto adopted son, but is not satisfied that the applicant’s overall school performance was, as suggested, attributable to the oppression he felt as a Hindu or for any other Convention reason. In any event, it does not accept that the applicant’s curtailed schooling amounted to persecutory harm, such as a denial of education or future earning capacity. Nor is it satisfied that the applicant is ‘illiterate’, as claimed, given his ability to operate a business in the capital city. The Tribunal therefore does not accept that the applicant’s upbringing and limited education amount to Convention-related persecution. (CB 198)
The applicant stressed at hearing his hope that his son would not be disadvantaged by receiving a limited education and the outlook for his son, stressing that he could not be enrolled in school in India and implying that he would be disadvantaged as a Hindu in Bangladesh. The material before the Tribunal does not suggest that Hindus in Bangladesh are denied an education for reason of their religion. The applicant son’s circumstances do not suggest he risks illiteracy for any other reason, Convention-related or otherwise. Unlike his father, he is not an orphan, but has a male guardian who places priority on education and has the financial means to secure this. (CB 198)
The Tribunal accepts, on the basis of country information discussed with the applicant, that there is societal, economic and institutional discrimination against Hindus in Bangladesh. There have also been episodes of anti-Hindu violence, including in the period following the 2001 parliamentary elections in which the BNP-led coalition came to power. However, taking into account Bangladesh’s demography, the many examples of successful Hindus and country information indicating that the discrimination is generally not of sufficient severity as to amount to ‘serious harm’, the Tribunal considers that the mere fact of being a Hindu in Bangladesh does not give rise to a real chance of Convention-related persecution. (CB 198)
The Tribunal accepts the applicant’s claims that he and his wife moved to India in 1998 for some eight months, and that the family moved there again in early 2005. The applicant invites the Tribunal to accept that the reason for their having gone there (or having ‘tried to relocate’ as stated in the protection visa application) was persecution in Bangladesh. Country information, discussed with the applicant, indicates that Bangladeshi Hindus have entered India for a range of reasons – some due to actual or anticipated anti-Hindu violence, but others for family and economic reasons. The Tribunal is conscious that it may be difficult to derive from such country information a consolidated overview of the reasons for such emigration, particularly given the possibility that commentators bring their own political perspective to the issue (especially on the point of whether Bangladeshi arrivals in India are genuine refugees). On the material before it, the Tribunal finds that the mere fact of the applicants’ two periods of residence in India does not, without more, allow conclusions to be drawn as to the reasons for their departure from Bangladesh. To determine this, the Tribunal turns to the applicant’s personal and family circumstances. (CB 198-9)
In his written statements and oral evidence, the applicant referred to a number of key political developments and to numerous incidents of past harm that prompted his departure from Bangladesh.
At the hearing, the applicant linked the timing of his trips to India with the fortunes of the Awami League, ie. indicating that he felt the need to escape when the AL was out of government. However, his statement of 24 May 2006 to the Tribunal and his evidence at hearing cast doubt on whether there is any such link at all. His first departure was in 1998, some 2 years after the Awami League was elected to power, and 3 years before its term of office expired. His most recent departure from Bangladesh, in early 2005, was more than 3 years after the election of the BNP-led coalition government in 2001. Regarding his and his family’s departure in 2005, the applicant referred to the general deterioration in the situation for Hindus following the 2001 elections, and the specific incidents that affected him in early 2004 (discussed in detail below). The Tribunal is not satisfied, on the basis of this information, that the timing of the applicant’s departure from Bangladesh was significantly influenced by general political developments in that country. (CB 199)
The Tribunal does not accept that the applicant husband and wife went to India in 1998 to escape persecution. As noted above, the Awami League was in power at this time, with a perceived lessening of discrimination against Hindus. According to his evidence at hearing, the applicant’s shop was operating successfully, although he vaguely referred to threats from political opponents and Muslim fundamentalists, some of whom were bad debtors and who beat him up if he pressed for payment. The Tribunal does not accept that the applicant left Bangladesh in 1998 to escape actual harm directed towards them as Hindus or in connection with any other Convention ground. It accepts that there may have been some problems of the kind faced by many small businesses from time to time, but it is not satisfied that these problems were Convention-related or that they were sufficiently serious to provide an explanation for his move to India (let alone sufficiently serious as to amount to persecution). It also accepts that the applicant may have been partially motivated by the perception that he and his family, as Hindus, had better economic and social prospects in India, but it is not satisfied that the move was motivated by persecution, actual or anticipated, in Bangladesh. (CB 199)
The applicant’s return to Bangladesh with his wife in late 1998 reinforces this conclusion. The Tribunal finds the applicant’s vague claims to have been unable to stay there unconvincing. According to his evidence at hearing, he obtained a (fake) Indian passport around this time. Significantly, he not only used it several times to cross the border and re-enter India and to visit South East Asia (in later years); he also had it replaced in 2005 due to its state of disrepair. The applicant’s continued use of that document, regardless of its genuineness, indicates to the Tribunal that he, in contrast to many other Bangladeshis, had secured a basis (albeit illegal) to remain in India, and that his return to Bangladesh cannot therefore be explained by his having come to the adverse attention of the Indian authorities or of any imminent fear of deportation from there to Bangladesh. Instead, the Tribunal finds that he left India for other reasons (perhaps economic or family-related), and that the fact of his return to Bangladesh shows he did not fear prospective persecution there. (CB 199-200)
Regarding the events from 1998 until his most recent departure from Bangladesh in early 2005, the applicant referred to the deterioration of the situation after the 2001 parliamentary elections, various examples of discrimination (such as the refusal of voter registration cards), continued pressure by fundamentalists against his business (including occasional beatings), their demands that he leave the country and, critically, the murder allegation in 2004. The Tribunal finds numerous aspects of the applicant’s evidence regarding the alleged incident in early 2004 problematic, for the following reasons. (CB 200)
First, the applicant’s account at hearing of his activities from 2001 varied somewhat. Earlier in the hearing, he said that from 2001, he was based at his uncle’s and moving ‘here and there’, implicitly in hiding from his tormentors. This appears to be at odds with his claim to have been opening the shop one morning in early 2004, seemingly as part of his routine. The Tribunal considers the earlier, more extravagant claim to be dubious, but finds the applicant’s evidence as a whole to be unreliable. Second, the Tribunal finds curious the applicant’s claim that the crowd turned on him when they found the corpse next to his shop. The Tribunal is prepared to countenance the possibility of such crowd behaviour, and their possible readiness to turn on minority members. However, it finds unconvincing that anyone would suspect the applicant of leaving a corpse next to his own shop. (CB 200)
Finally, and most significantly, it does not accept the applicant’s account of the events that followed the alleged attack – the injuries and hospitalisation following the beating, his arrest on murder charges, detention, police mistreatment, subsequent release after payment of a bribe, and the requirement that he report to the police twice weekly. The Tribunal notes the applicant wife’s confirmation that the applicant was beaten up, as claimed, but does not regard this as independent corroboration of the applicant’s claims. The applicant appeared ready to show the Tribunal scars he attributed to these beatings, but such scars would not reveal the circumstances or causes of any injury. The applicant’s delay in leaving Bangladesh – about a year after the alleged attacks – casts doubt on whether the attacks occurred at all, for any reason. This is particularly so given his evidence at hearing that he had an Indian passport throughout this period and one which, although allegedly fraudulent, has been used for some eight years now, and even replaced, without detection. The applicant variously explained his delayed departure from Bangladesh - he moved to another area at this time; he needed medical treatment; and he only left the country reluctantly. The Tribunal does not find these explanations provide a convincing response to an alleged mob attack and serious criminal allegations – or to a genuine fear of persecution. It finds that his departure from Bangladesh was for reasons unrelated to the alleged 2004 attack. (CB 200)
The Tribunal accepts that a number of aspects of the alleged attack appear to conform with country information – such as instances of mob behaviour and reported cases of the police conduct, including mistreatment in custody and the quiet dropping of charges in return for cash. However, taking into account the applicant’s personal circumstances, the Tribunal does not accept that the alleged 2004 attack occurred at all, and it is not satisfied that the applicant left Bangladesh in early 2005 to escape persecution for that or any other reason.
As noted above, the Tribunal accepts as plausible that the applicant, as a Hindu and as a supporter of the Awami League, has faced some past societal, economic and/or institutional discrimination, and that he genuinely considers that he is regarded as a second class citizen by some. It also accepts that he seeks better options for his family, concerned in part about the country’s uncertain political and economic outlook. However, it is not satisfied that such discrimination has been of such severity as to amount to persecution, and it is also not satisfied that it has manifested itself in any acts of violence such as the now-dismissed incident in early 2004. The applicant’s personal circumstances reinforce the Tribunal’s conclusion that he has not faced discrimination amounting to serious harm: - he managed to establish a business in the capital city, he sustained this business through to 2005 when it was sold by his uncle to fund the applicants’ travel and he continues to draw rental income from a substantial family property in Mirerbagh. These factors indicate that the applicant and his family were not affected by past appropriation of Hindu property, but rather that they are successful business people; they also indicate that his claims of past threats from fundamentalists have been exaggerated and, in any event, have not resulted in serious harm. This, together with the applicant’s delayed departure from Bangladesh, following the sale of his shop, strongly suggests that the applicant and his family have not fled persecution, but are upwardly mobile economic migrants seeking improved prospects abroad. (CB 201)
The applicant also referred several times to the continued disadvantage that flows, not just from his status as a Hindu and AL supporter and his limited education, but also from being an orphan, insofar as he does not have an extended family in Bangladesh. His uncle’s retirement has exacerbated this concern. The Tribunal accepts the applicant’s claims regarding his family composition, but is not satisfied that the lack of an extended family or patriarchal figure – even in a traditional society as Bangladesh - amounts to serious harm, either in itself or in combination with the applicant’s other circumstances as a Hindu and Awami League supporter. Rather, the applicant’s business experience and financial assets render him much less vulnerable to any disadvantages that might flow from the lack of a wide family network. (CB 201)
The Tribunal has considered the applicant’s claims individually and cumulatively. It is not satisfied that he has suffered persecutory harm in the past in Bangladesh, for reasons of religion, politics or any other reasons at all (including as a member of a putative particular social group, ‘orphans’).
The Tribunal accepts that Hindus in Bangladesh, who are generally believed to be Awami League supporters, face some discrimination, and that there are occasional flare-ups of communal violence, particularly around election time. However, the Tribunal is not satisfied that such discrimination is of such a nature or extent that the mere fact of being a Hindu (or AL supporter and Hindu) establishes a real chance of persecution in Bangladesh. It appreciates that the forthcoming parliamentary elections, scheduled for 2007, could usher in a renewed political and security uncertainty. This brings with it the risk that such tensions will spill over into anti-Hindu sentiment and even incidents of violence, as has happened in the past. It therefore comes as no surprise that foreign governments and human rights groups are monitoring the situation carefully. However, at the time of this decision, and taking into account Bangladesh’s demography and generally peaceable communal relations, it remains the Tribunal’s view that the mere fact of being a Hindu does not give rise to a real chance of persecution, now or in the reasonably foreseeable future. This is particularly so in the case of this applicant, given his location in the capital city and its immediate environs, his uncle’s past experiences, his own ability to sustain business and property interests, and his lack of political engagement or profile. (CB 201)
The Tribunal’s findings are reinforced by the applicant’s comment at hearing, when explaining his delay in leaving Bangladesh in 2004/2005, that he would be prepared to return to Bangladesh if there were a change in government. Although this comment was made in the context of impressing on the Tribunal the strength of his attachment to Bangladesh (thus fending off any suggestion that he might have left for economic or other non-refugee reasons), it is significant that the applicant did not consider his Hindu background generally to be a bar to his prospective return to that country. (CB 202)
The Tribunal does not accept that the applicant was required to report to the police regularly during 2004 (following the now-dismissed attack), and therefore rejects his claim to fear persecutory harm because of his failure to comply with this demand.
In addition to his now-dismissed claims that the police have persecuted him in the past and will do so in future, the applicant contended that the police always side with those in power. Elsewhere, he also alluded to police corruption, such as their readiness to release him on payment of a bribe. Country information, which the Tribunal accepts, points to ongoing problems with police performance in Bangladesh. The Tribunal accepts that there are instances of corrupt and/or politically biased conduct on occasions; that this may affect the availability or quality of protection afforded to the general public; and that minorities may be more susceptible to such failings. However, the Tribunal does not conclude from this that a person with the applicant’s attributes has a real chance of denied State protection from such harm as might befall him, on a selective and discriminatory basis, for reasons of his religion, political opinion or any other Convention ground. This is particularly so taking into account the entirety of the applicant’s personal circumstances, particularly his and his uncle’s record of business and property interests, and the absence of past credible problems with the police. (CB 202)
It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one or more of the Convention reasons, now or in the reasonably foreseeable future, if he returns to Bangladesh. He is not a refugee.(CB 202)
The applicant then filed an application and an amended application in this court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
The application
In his application, the applicant set out three grounds as follows:
1)The Tribunal failed to internalize the circumstantial grounds of the review application and in weighing both the subjective claims of the review application an in reviewing the huge supporting facts and documents and such has breached sections 426(2), 426(3), 427(4) and 440(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 attacks s.39B Judiciary Act 1903 as per Gaudron J in Abebe v Commonwealth (1999) 162 ALR 1 at 33 paragraph [113].
In his amended application filed on 18 January 2007, the applicant set out the following grounds and particulars:
1)The Tribunal failed to internalize the circumstantial ground of the review application and in weighing both the subjective and objective claims of the review application and in reviewing the huge supporting facts and documents, and such has breached section 424, section 430, section 439, section 440 of the Act.
2)The Tribunal in its decision of 20/09/2006 failed in its written statement that a breach of the rules of natural justice, therefore it rises the ground under section 476 of the Migration Act.
3)Despite the severity of the ‘privative clause’, an opportunity for review can lie under section 39B of the Judiciary Act (Cth) 1903, which rely on the original jurisdictional of the Court. However, review under s.39B is gained the decision of the Refugee Review Tribunal dated 31 May 2006 can be reviewed, if the following four factors are observed.
a)The decision maker acted in good faith.
b)The decision is reasonably capable of reference to the power granted to the decision maker – this is unlikely to be an issue given that, to argue to the contrary, it would have to be shown that the decision maker did not have the authority to make the decision concerned, for example, had not had authority delegated to him or her Minister for Immigration and Multicultural Affairs or had not been properly appointed to the Tribunal.
c)The decision relates to the subject matter of the legislation (i.e. the Migration Act) this again is highly to be an issue, given that a major purpose of the Migration Act id the making of visa decisions.
d)Constitutional limit are not exceeded – given the clear constitutional basis for visa decision making in the Migration Act this is highly unlikely arise.
From the above factors the only one of any real significance is the first, the Tribunal did not act in good faith. My claim that the decision maker acted in bad faith.
4)I am a victim of my political affiliation and religion. I was prosecuted and discriminated and became a victim of systemic harassment for membership with Awami League. My father had been killed by the Pakistani military during the liberation period on 20 June 1971. They took my only sister when she was only 13 years old. I have explained to the Tribunal, but the member of the Tribunal ignored my claim. I will provide more details in my submission.
Grounds of the application
Ground 1 seeks a review of the merits without providing any particulars. The sections referred to by the applicant show no grounds for review.
Ground 2 alleges that the Tribunal failed to deal with all the issues in its written reasons. As stated in the written submissions of the first respondent,
…a failure to make findings on all the various factual issues is not a failure to comply with a procedure required by the Act to be observed, although if it indicated a failure to consider a claim it would give rise to a different error.
The decision in this matter shows that the Tribunal considered all the applicants claims. Section 430 requires the Tribunal to set out its reasons for decision, which it has done; s.476 relates to the jurisdiction of the Court and has no relevance to this review. The Court finds nothing in this ground that suggests that an error of law occurred.
Ground 3 claims that the Tribunal ignored evidence, and made findings “contradicting independent evidence”. Nothing has been shown to demonstrate that this is so and the ground is rejected. The reference to the decision in Abebe is a reference to a failure to accord procedural fairness. No such failure has been shown in this case.
None of the grounds in the application show an error of law.
Grounds in the amended application
Ground 1 is the same as ground 1 in the application, and the Court is not satisfied that the ground raises an arguable case.
Ground 2 claims that the Tribunal failed to provide written reasons. This claim is rejected. Section 476 is referred to, which is a statement of the jurisdiction of the Court and is not relevant to this ground of review.
Ground 3 claims that even if the decision is a privative clause decision, a judicial review can be conducted under s.39(B) of the Judiciary Act. The Court having found that there are no grounds for judicial review, the issue of whether s.39B provides a separate avenue for review does not arise.
Ground 3(a) alleges that the decision maker did not act in good faith. There is nothing to substantiate this, and the ground is rejected.
Ground 3(b) states a finding open on judicial review and is not a ground in this review. The ground starts “the decision is reasonably capable of reference to the power granted to the decision-maker…” and that is not relevant to the case before this Court.
Ground 3(c) similarly relates to a test in conducting judicial review, and does not raise a ground in this application.
Ground 3(d) is also a test applied in a judicial review and is not a ground in this application. The applicant concedes in the second last paragraph on page 3 of his amended application as follows:
From the above factors the only one of any real significance is the first, the Tribunal did not act in good faith. My claim that the decision maker acted in bad faith.
The Tribunal finds there is nothing to indicate that the Tribunal acted in bad faith.
Ground 4 in raising matters of fact, seeks a review of the merits. There is nothing to show that the findings of fact by the Tribunal were not open to it on the material before it. The Court refers to the adverse findings emphasised in the reasons of the Tribunal included above.
The Court finds that the application and amended application do not show any error of law or denial of natural justice.
The first respondent has shown cause why an order should not be made for the relief claimed. The applications are dismissed in accordance with rule 44.12(1)(b).
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision and has not been infected by jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 23 March 2007
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