SZJXB v Minister for Immigration
[2008] FMCA 50
•22 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJXB v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 50 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZJXB”. |
| Migration Act 1958 (Cth), ss.91X, 422B, 424A, 425 |
| Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 68 FCR 547 Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 105 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Re Refugee Review Tribunal; ex parte H [2001] HCA 28 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 Tin Shawe v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 |
| Applicant: | SZJXB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3812 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 5 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 January 2008 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Bengali interpreter |
| Solicitors for the Respondents: | Ms K Hooper of DLA Phillips Fox |
ORDERS
The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application filed on 20 December 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3812 of 2006
| SZJXB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a 38 year old national of Bangladesh who was born in Dhaka. In a statement attached to his Protection (Class XA) visa application, the applicant stated that he was a Muslim and
a homosexual.
The applicant claims to have had a long term partner from when he was 14 in 1984, to 1997. He claims that in 1992 his uncle discovered an indiscretion between the applicant and his partner in the applicant’s family home, after which the couple were beaten and harassed by their families. In 1998 the applicant’s partner committed suicide.
From 1997 to April 2006, the applicant did contract work in Saipan to avoid death threats in Bangladesh from his partner’s family who blamed him for the suicide. In January 2003 he returned to Bangladesh to visit his family. To avoid persecution from his own family and their arrangements for him to marry a woman, the applicant left the family home and stayed in a hotel in Dhaka until March 2003 when he returned to Saipan.
From 1998 until his arrival in Australia in 2006, the applicant claims he had a long term partner in Saipan who was a Filipino Christian. The couple did not live together but met every weekend. The applicant lost contact with his partner after he went to the Philippines on holiday. The applicant’s contract work in Saipan was not renewed.
The applicant seeks protection in Australia because he fears that if he returns to Bangladesh, he will be persecuted under religious and criminal laws for being homosexual and rejected by his family.
The applicant arrived in Australia on 27 April 2006 and, assisted by a migration agent, applied for a Protection (Class XA) visa on 8 June 2006. A delegate of the first respondent refused to grant the visa on 18 August 2006 and the applicant, again assisted by a migration agent, sought review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the delegate’s decision and the applicant applied to the Federal Magistrates Court for judicial review of the Tribunal decision, which is the application before this Court.
The applicant appeared before the Tribunal on 24 October 2006. After the hearing, the Tribunal sent a letter dated 26 October 2006 to the applicant’s authorised recipient pursuant to s.424A of the Migration Act 1958 (Cth) (“the Act”), inviting him to comment on information that would be the reason, or a part of the reason, for affirming the decision under review. The applicant responded on 31 October 2006 with the assistance of his migration agent. On 28 November 2006 the Tribunal handed down its decision affirming the decision not to grant the applicant a protection visa.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”. This document was read into evidence.
Consideration
At the first Court date, the applicant indicated that he wished to participate in the scheme to give unrepresented applicants in refugee matters independent legal advice. The applicant was allocated a panel adviser and he attended the conference and received written advice. He was also granted leave to file an amended application, giving complete particulars of each ground of review relied upon by
14 May 2007. An amended application was filed on 7 May 2007 which contained six grounds of review with particulars. The applicant confirmed that he had not prepared written submissions nor did he wish to make any oral submissions. He stated that he would rely upon his amended application.
The applicant seeks protection because he fears that if he returns to Bangladesh he will be persecuted because of his homosexuality. In respect of his claim, the Tribunal accepted the country information (which it cited) that indicated that homosexuals in Bangladesh could face discrimination and serious harm. However, the Tribunal did not accept that the applicant was a homosexual and gave the following eight reasons for that finding:
a)
The applicant’s evidence contained in his protection visa application and oral evidence given in the Tribunal hearing on
24 October 2006contained a number of inconsistencies in respect to the circumstances in which he was caught engaging in homosexual sex with his partner in 1972. The Tribunal was concerned by the applicant’s failure and inconsistent evidence resulted in the Tribunal forming the view that this incident had not occurred (CB 122.1).
b)The applicant failed to provide evidence to corroborate his claimed relationship or other aspects of his claims (CB 122.5).
c)The applicant’s claim that he had a homosexual partner in Saipan for many years but he was unable to explain why he had not contacted that person since leaving Saipan. The Tribunal had considerable doubt about whether the applicant had a partner while in Saipan (CB 122.7).
d)The applicant’s evidence concerning where he lived for his last five years in Bangladesh was vague (CB 122.8).
e)The applicant’s claims were inconsistent as to the reaction and stance of his family concerning the applicant’s claimed homosexuality (CB 122.9).
f)The applicant was not able to demonstrate to the Tribunal any familiarity with the homosexual community in Bangladesh nor was he aware of the terms used to describe the three main categories of homosexual males (CB 123.3).
g)
The applicant initially claimed that he was concerned that his family would put pressure on him to get married as they had done in 2003. However, he later claimed that his family did not mention his ‘getting married’ because they knew he was
a homosexual. The Tribunal found this changing evidence concerning the applicant’s family’s change in attitude was unconvincing and cast further doubt upon his claim that they ever perceive the applicant to be homosexual (CB 123.4).
h)The applicant claimed to fear his former partner’s family. However, the Tribunal did not accept that the applicant and partner were caught engaging in sexual intercourse in 1992. The Tribunal also regarded as implausible the applicant’s claim regarding a number of partner’s family threatening the applicant (CB 123.5).
Ground one
The delegate of the Department of Immigration and Citizenship was bureaucratic in deciding and determining whether the applicant has well founded fear of persecution with respect to grant a protection visa to the applicant.
Particulars
The departmental delegate mentioned in reasons for decision in paragraph 1 of page number 7 of the DIAC decision that “the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is a well-founded or that it is for reason claimed”. The applicant in particular mentioned in his protection visa application that he had been engaged in homosexual activities either in his home country Bangladesh and even while he was living in Saipan and also categorically mentioned that his partner in Bangladesh have committed suicide with all those persecution, hatred and discrimination surrounding his homosexual lifestyle. The applicant also mentioned in his protection visa application that his former Bangladeshi partner’s family members are hostile at him on the ground that his partner died in the basis of his homosexual relationship. Whereas, the delegate believes that there would be no persecution for the applicant if he returns back to Bangladesh. On the other hand, in page number 8, paragraph 2 and also in page number 8, paragraph 4 of the delegate’s decision record references have been made which clearly indicates how vulnerable the applicant would be upon return to Bangladesh and how fragile his situation would be if he returns to Bangladesh.
Ground two
Again in page number 9, paragraph 3 of the departmental decision record the delegate said “Even if I were wrong, I find that the applicant is a Muslim who lives a life that is naturally discreet in terms of sexuality etc.”
Particulars
Why the applicant’s religion was a matter to talk about in deciding the applicant’s protection visa application?
Both grounds one and two raise issues in respect of the delegate’s decision which is not under review in this application. The delegate’s decision was signed on 18 August 2006 and the Tribunal decision on
7 November 2006. The jurisdiction of the Federal Magistrates Court was amended by the Migration Mitigation Reform Act 2005 No. 137 (Cth) which was assented to on 24 November 2005 and commenced operation on 1 December 2005. Section 472(2) of the Act states:
The Federal Magistrates Court has no jurisdiction in relation to the following decisions:
(a) a primary decision…
The delegate’s decision has been subject to review by the Tribunal and the delegate’s decision was upheld.
Ground three
That the applicant claims that he was denied procedural fairness and natural justice while assessing his claims as the tribunal was biased and applied some technic for testing his credibility which the tribunal already had in its mind that it used those technics to reject the applicant’s claim and the style of asking question and trying to get the answer were totally under its control to get its expected answer and under that circumstance every claimant will get the same result like the applicant. Refugee Review Tribunal (RRT) decision was unjust and was made without taking into account the applicant’s circumstances with respect to his homosexual life style and the consequence of the decision.
Particulars
The decision of the Refugee Review Tribunal on 28 November 2006 was unjust without considering the applicant’s circumstances. The Tribunal in its findings and reasons for decision at page 15, paragraph 1, mentioned “I think it would be reasonable to expect [the applicant] to be able to recall with clarity at least where he was discovered and by whom. However his evidence on this point has been internally inconsistent at a very basic level again on page 15 of paragraph 1 of the reasons for decision, the Tribunal mentioned “given his vague and inconsistent evidence about this incident, I do not consider that he has been truthful about it and do not accept that such an incident occurred at all”.
Whereas the applicant and his partner’s homosexual relationship secrecy was discovered in the year 1992 by his uncle in the applicant’s house and that claim was made by the applicant while lodging his protection visa application to the DIAC and again stated the same thing at the time of the DIAC interview with departmental delegate. However, as the applicant was attending long five hours hearing process in the RRT, he was panicked and tired and lost his rhythm by not remembering every details relating to his relationship whereas immediately after the RRT hearing, the applicant stated clearly in a self declared and signed affidavit that the relationship secrecy was discovered by his uncle in his own house. But the RRT apparently did not pay any attention to the applicant’s honest apology and the contents of the affidavit for not remembering only one piece of information, rather it appears that the whole decision was made on the basis of that inconsistent statement. That should not be procedural fairness of running a hearing and determining any applicant’s fate.
Ground three of the amended application alleges that the Tribunal applied improper techniques in testing the applicant’s credibility, and that it was biased and denied the applicant procedural fairness and natural justice. That the Tribunal hearing is an inquisitorial proceeding has been considered on many occasions and is effectually summarised in VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 at [27] where Kenny J referred to Re Refugee Review Tribunal; ex parte H [2001] HCA 28:
27 In Ex parte H, the Court took account of the fact that the proceedings of the Tribunal were inquisitorial in nature and that the parties cannot be represented in the same manner as they are in a court, remarking, at 435:
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question ... .
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen,
a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.
It was properly within the Tribunal’s role to question the applicant and test the credibility of his claims.
The Tribunal’s adverse credibility finding and consequent rejection of the applicant’s claims, is a matter for the Tribunal “par excellence”, see Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J:
…a finding on credibility which is a function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular was not believed. The Tribunal must give the reasons for its decision, not the subset of reasons why it accepted or rejected individual pieces of evidence. In any event, the reasons for the disbelief is apparent in this case from the use of the word “implausible”.
I am satisfied that the Tribunal finding in this respect was open to it on rational grounds on the material before it and discloses no mistreatment of the applicant’s credibility: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547. The Tribunal decision, which is the only evidence before the Court in relation to the conduct of the hearing, indicates the concerns it had about aspects of the applicant’s evidence which was raised during the hearing. The applicant was unsuccessful because of the Tribunal’s view of the facts and, in particular, its finding that he was not credible.
A party alleging actual bias on a decision maker’s part carries a heavy onus and it must be clearly proved: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507. The existence of actual bias may be inferred from the facts and circumstances but caution should be exercised, in the absence of evidence of partisanship or hostility, before inferring actual bias from factual errors or faults in reasoning on the part of a Tribunal member: Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 at [27]. A case of actual bias is seldom made out by reference solely to reasons for decision and no inference of bias or prejudice can be drawn from the mere fact of adverse findings in the Tribunal decision: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 at [21]. Apprehended bias will exist where a fair minded lay observer, who is properly informed of the nature of the proceedings, the matters in issue and the conduct of the Tribunal, would apprehend that the Tribunal member may not bring an impartial mind to the resolution of the question to be decided: ex parte H.
I agree with the written submissions of Ms Hooper, for the first respondent, that no particulars are provided to explain how the Tribunal is alleged to have denied the applicant procedural fairness or natural justice. The Tribunal’s obligation to afford natural justice to an applicant is set out in Division 4 of Part 7 of the Act. Section 422B of the Act has the effect that the relevant provisions are an exhaustive “statement” of the natural justice hearing rule. Other notions of what might constitute common law procedural fairness are therefore expressly excluded: Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61; SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62. I agree with the submission that the Tribunal complied with statutory obligations, including its obligation under s.425 of the Act to invite the applicant to a hearing.
The particulars pleaded in support of ground three also claim that the Tribunal decision was unjust and did not consider the applicant’s circumstances. This appears to be an invitation for the Court to conduct a merits review of the Tribunal’s findings, which is not part of the Court’s function when undertaking judicial review of an administrative decision: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 105 CLR 259 at [272]. I am satisfied that none of the issues raised in ground three of the amended application can be sustained and the ground should be dismissed.
Ground four
That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.
This ground is not particularised and the contents are not sufficient enough to identify which aspect of the decision the applicant refers to. In the circumstances, ground four should be dismissed.
Ground five
That the decision involved a jurisdictional error of law including incorrect interpretation of the applicable law to the fact of the case found by the Refugee Review Tribunal.
Particulars
(a) That the Tribunal did not comply with the mandatory obligations that contained in s.424A of the Migration Act.
(b) That on page number 2 of the Tribunal’s decision, the Refugee Review Tribunal used some references that includes –
1. Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379,
2. Applicant A v Minister for Immigration & Ethnic Affairs 190 CLR 225,
3. Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559,
4. Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293,
5. Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1,
6. Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1,
7. Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 and
8. Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 etc.
That the RRT did not ensure, as far as reasonable practicable, or at all as required by s.424A(1)(b) of the Migration Act that the applicant understood why all those above mentioned references and information were relevant to his RRT review application in assessing his protection visa application when he applied with his own claim and ground.
(c) That the RRT did not give the applicant notice of the particulars of the information or references in the manner required by ss.424A(1)(a) and 424(2) of the Migration Act.
The particulars in this ground set out eight cases referred to by the Tribunal in the section “Relevant law” and particularly in “Definition of ‘refugee’”. The High Court cases referred to are commonly quoted authorities in this jurisdiction where the definition of “refugee” has been considered (CB 110). The extent to which the Tribunal was obliged to comply with s.424A was satisfied by its letter dated
26 October 2006, which was forwarded to the applicant’s authorised recipient inviting his “comment on information”. That invitation letter stated that there were inconsistencies between the evidence the applicant gave at the Tribunal hearing on 24 October 2006 and the information contained in his original protection visa application. The operation of this provision was considered in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [17]-[18]:
17. Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
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"[14].
"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.
The particulars set out in ground five indicate a misunderstanding of the introductory paragraph of the Tribunal’s decision which sets out the criteria for assessing a protection visa application. They also demonstrate a misunderstanding of the revisions to s.424A of the Act. In the circumstances, this ground should be dismissed.
Ground six
That the Tribunal failed in taking into account of all the relevant matters in making of its decision rather than simply affirmed the DIAC delegate’s decision in a very conventional way.
There are no particulars in this ground which identify any aspect of the Tribunal failing to consider relevant matters in its decision making process. The reason that the Tribunal affirmed the delegate’s decision was its finding that the delegate had correctly considered and assessed the material before it and that the applicant does not have a genuine fear of harm and suffering persecution should he return to Bangladesh. For this ground to succeed, the applicant must identify relevant considerations that the Tribunal failed to take into account which it is bound to consider by the Act. The applicant has not identified any considerations that satisfy this requirement.
Alternatively, as the applicant is a self-represented litigant the Court must consider whether there was any issue which the Tribunal failed to take into account in its consideration. A review of the Court Book and in particular the Tribunal decision does not make apparent that any issue that should have been considered has been overlooked. The requirement that the Tribunal take into account a relevant consideration was considered in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at [15].
Conclusion
The applicant in these proceedings was a self-represented litigant who appeared with the assistance of a Bengali interpreter. It was clear that he had no understanding of the issues before the Court or how he should present his case. He relied entirely on the amended application which appears to have been prepared by a third party. That third party has only limited knowledge in respect of the operation of the Act and the function of judicial review. Much of the amended application took the approach that this was a hearing de novo and sought a complete re-hearing of the merits of the applicant’s case.
The applicant therefore did not understand the contents or relevance of the amended application and did not make any oral submissions to the Court. He had participated in the Court sponsored panel advice scheme. However, the assistance of the unknown third party has not been of any real practical assistance to the applicant. This places an obligation on the Court to independently consider the Court Book and the Tribunal decision to determine whether any claim of a jurisdictional error can be established. Miss Hooper, appearing for the first respondent, assisted with written submissions in response to the amended application. I am satisfied that all the issues identified in the amended application have been satisfactory addressed in those submissions. It is not apparent that any other ground of review exists which would suggest that the Tribunal made a jurisdictional error in its decision making process. The application should be dismissed with costs.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 22 January 2008
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