SZJZK v Minister for Immigration
[2007] FMCA 1698
•11 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJZK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1698 |
| MIGRATION – Review of Refugee Review Tribunal decision – no duty on the part of the Tribunal to “investigate” – assessment and use of independent country information a matter for the Tribunal – impermissible merits review – no failure to address applicant’s claims – Tribunal applied the correct test – no bias on the part of the Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958, s.424A, 424, 36, 422B, 91R |
| Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 SZGQN v Minister for Immigration and Citizenship [2007] FCA 28 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 56 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 668 |
| Applicant: | SZJZK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 31 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 27 September 2007 |
| Date of Last Submission: | 27 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr M Cleary |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The application filed on 4 January 2007, and amended on 15 June 2007, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 31 of 2007
| SZJZK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (“the Act”) filed in this Court on 4 January 2007 and amended on 15 June 2007 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 30 November 2006 and handed down on 19 December 2006, which affirmed a decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant claims to be a citizen of Bangladesh. On 30 April 2006 he arrived in Australia, having travelled here on an Indian passport and applied for a protection visa on 22 May 2006. On 11 August 2006, a delegate of the respondent Minister refused to grant a protection visa and on 31 August 2006 the applicant sought review of that decision.
The Applicant’s Claims to Protection
The applicant’s claims to protection are contained in his application for a protection visa (reproduced in the Court Book (“CB”) at CB 1 to CB 26), in a bundle of supporting documentation (CB 31 to CB 34), in his application for review (CB 67 to CB 70), in a letter from the applicant to the Tribunal enclosing a further bundle of supporting documents (CB 81 to CB 83) and in documents provided to the Tribunal at the hearing (CB 123 to CB 139).
The applicant claimed to be a citizen of Bangladesh who had to flee from India because he feared if he remained he ran the risk of being detained under anti-terrorist legislation. He had been linked in India with the “Trinamul Party”. Further, that he feared serious human rights abuses and torture which would end in him being arrested and “pushed back” to Bangladesh where he had been abused and tortured by the police and Muslim extremists and had been accused of murder. The applicant further claimed that he feared if he returned to Bangladesh the police, and politically motivated radical Muslims, would seriously harm him or perhaps kill him as he is a person with political opinions opposed to the majority Muslim population, and that he is part of a minority Hindu group who cannot expect protection from the police and government authorities who are Muslims.
The Tribunal
By letter dated 18 October 2006, the Tribunal wrote to the applicant, pursuant to s.424A of the Act, and put the applicant on notice that it had information that would, subject to any comments he made, be the reason or part of the reason for deciding he was not entitled to a protection visa and invited him to comment on that information (CB 73 to CB 76).
The information was:
1)Personal information about the applicant including where he was born, and general country information on Bangladesh and India.
2)Information in his application for a visa to visit Australia for tourism, his passport, and in his application for a protection visa, and inconsistencies in information provided as between the applications. Further, inconsistencies between these and what he told the delegate at the “interview with DIMA”.
3)Country information about schools in Calcutta and the place of the Hindi language.
4)Country information on the prevalence of “fraudulent, fake and bogus documents” regarding refugee applicants from Bangladesh and India.
The letter put the applicant on notice:
1)As to the Tribunal’s concerns about the “unclear” history he had provided in relation to his nationality.
2)That the inconsistencies in the information that he had provided that may indicate that his credibility was “directly in issue”.
3)That the omission of certain information in his application for a protection visa and information in his application for a tourist visa may lead to a view that he had misled the Tribunal with negative consequences for his credibility.
4)That some or all of his documents were fraudulent.
Also on 18 October 2006, the Tribunal wrote to the applicant pursuant to s.424 of the Act, inviting the applicant to provide information (CB 79 to CB 80) generally on the issue of his nationality as well as information on his family, business, involvement with political parties (including the Awami League), and in relation to his claims.
On 9 November 2006, the applicant replied to the Tribunal’s letters and commented on the issues raised in the s.424A letter and enclosed the additional information requested by the Tribunal in the s.424 letter(CB 81 to CB 83).
On 14 November 2006 the applicant attended a hearing before the Tribunal. The Tribunal’s account of what occurred at the hearing is reproduced in its decision record at CB 154.4 to CB 157.8.
The Tribunal found (CB 160.10 to CB 162.5):
1)Given the preponderance of evidence, that the applicant is a national of India and not Bangladesh.
2)It rejected this claim, and all associated claims relating to Bangladesh.
3)As a national and citizen of India, the applicant was entitled to its protection.
4)As to the applicant’s claims in relation to India, the Tribunal found the applicant had not provided “any details”. It rejected his claims to the extent that they were based on his being a “Bangladeshi living in India” in that the Tribunal rejected his claims to be a Bangladeshi and on the absence of any detail.
5)It was not satisfied his claimed problems associated with the Trinamul Party constituted serious harm.
The Tribunal was therefore unable to be satisfied that the applicant satisfied the criterion set out in s.36(2) of the Act, and affirmed the decision not to grant a protection visa.
Application to the Court
In his amended application, the applicant seeks review on the following grounds:
“1. The Tribunal exceeds is jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.
The Tribunal and its decision ‘finding and reason’ has harshly mentioned that the applicant is a national and citizen of India.’ In fact the Tribunal never checked the authenticity of my evidence. The Tribunal did not take any initiative to verify the authenticity of my evidence. The Tribunal did not take any initiative to verify the authenticity of my documentary and oral evidence through DFAT, Dhaka Bangladesh.
2. The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against my case in the final outcome. The Tribunal used the all information for matter of reasoning and evaluation of my case for a protection visa.
3. The decision made by the RRT member is mainly based on the country information, which is dominated by obtaining forged and fraudulent documents in Bangladesh. The Tribunal member did not able to mention one of my documents obtained forged OR fraudulent
4. The Tribunal erred in law amounting to jurisdictional error in finding that I am not a Bangladeshi Citizen. I have given adequate evidence to the Tribunal that I was born in Bangladesh and have spent most of my time in Bangladesh.
5. The RRT member emphasised on some irrelevant questions at the hearing and ignored my political profile that put my life in danger. In doing so the Tribunal member have ignored relevant material and made finding which is erroneous or mistaken.
6. The Tribunal applied the wrong test. The Tribunal left out individual elements of the applicant’s claims and tested weather they individually amounted to persecution rather than look at the claim as a whole determine whether the claim so considered amounted to persecution.
7. The Tribunal applied the wrong test, by requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was, in fact, placing to high an onus of proof on the applicant and failing to give the applicant the benefit of the doubt.
8. The RRT has failed to investigate my claims, specially the ground of persecution, in Bangladesh. Therefore the Tribunal decision dated 30 November 2006 was effected by actual bias constituting judicial error.”
Hearing Before the Court
At the hearing before the Court, the applicant appeared in person with the assistance of an interpreter in the Bangla language. Mr M Cleary of Counsel appeared for the first respondent. I note written submissions were filed on behalf of the first respondent on 19 September 2007.
The applicant confirmed that he pressed the grounds as stated in the amended application and the complaints in his written submissions filed on 17 September 2007.
At the hearing before the Court, the applicant submitted that the Minister’s Department had accepted that he was a Bangladeshi citizen and that he had told the Tribunal and submitted documents to show that he was a Bangladeshi.
Ground One – Failure to investigate claims
Ground one of the amended application asserts a denial of procedural fairness because of a failure to exercise jurisdiction as the Tribunal failed to investigate the applicant’s claims. Specifically, the applicant asserts that the Tribunal failed to verify “the authenticity” of his documentary and oral evidence in relation to its finding that he was a citizen of India.
I agree with Mr Cleary that there is substantial authority to support the proposition that there is no obligation on the Tribunal to investigate the applicant’s claims made in the Tribunal (Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J, Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 561 and SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8]).
This is a matter to which s.422B of the Act applies to make the matters set out in Division 4 of Part 7 of the Act the applicable exhaustive statement of the natural justice hearing rule (absent bias). The Tribunal does have discretionary powers to investigate pursuant to s.424 and s.427(1)(d) of the Act, but there is no duty to so investigate (see SZGQN v Minister for Immigration and Citizenship [2007] FCA 28 at [28]).
In any event, the Tribunal did proceed pursuant to s.424 of the Act. When it wrote to the applicant (CB 79 to CB 80) it, amongst other things, sought additional information about his nationality and relevant documentation. What the applicant provided was considered by the Tribunal (CB 160.8), but the Tribunal found that on the “preponderance of evidence” he was an Indian, and not a Bangladeshi national. I cannot see any denial of procedural fairness in this regard (statutory or at general law).
Grounds Two & Three – Independent country information
The applicant’s second and third grounds refer to independent country information relied on by the Tribunal. I can only agree with Mr Cleary that it is not clear what the applicant means by these two grounds. If this was a complaint of a failure of a procedural fairness obligation pursuant to s.424A of the Act, then the Tribunal’s use in this case of country information is exempted from the obligation in s.424A(1) of the Act by the operation of s.424A(3)(a) of the Act (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264, QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92). As to the Tribunal’s assessment of country information, this is a factual matter for it (NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10 at [11]).
It may be that what the applicant also complains of at ground 3 is that the Tribunal referred to (the decision is “dominated by”) country information concerning the prevalence of forged or fraudulent documents in Bangladesh, but did not or was not able to find that any of his documents were forged or fraudulent.
The applicant is correct to assert that the Tribunal does set out in its decision record, a substantial section of country information dealing with document fraud in Bangladesh (CB 157.9 to CB 160.8). While this was an issue in the Tribunal’s mind, as shown in its letter of 18 October 2006 (CB 75.5), no error is revealed by the Tribunal making no specific finding of fraudulent or forged Bangladeshi documents. Ultimately, the Tribunal’s analysis of the issue of the applicant’s nationality and the documents in support was that the “preponderance of evidence” led it to find he was an Indian and not a Bangladeshi citizen. That this was reached by not making a finding of fraud or forgery does not reveal error. The Tribunal is entitled but not obliged, to raise possible issues of concerns such as document fraud, but there is no obligation to make specific findings on this issue if the matter is otherwise resolved. The Tribunal was able to make clear findings on what was before it as to the applicant’s nationality, without the need to find fraud or forgery with the Bangladeshi documents. The Tribunal’s reasons were clear and its relevant findings were open to it.
I should also note what the applicant has set out at paragraph three of his written submissions is a pro forma statement often seen in this Court in matters of this type. Given what is set out elsewhere in this judgment, in any event, it does not assist the applicant. In the circumstances of this case, the reference to “Amnesty International Country Information” at best is a complaint that the Tribunal should have had regard to, or investigated further, some unspecified Amnesty International report. This complaint also does not succeed for reasons already given.
Ground Four – Error in nationality finding
The applicant asserts that the Tribunal erred in finding that he was not a Bangladeshi citizen because he had given “adequate evidence” that he was born in Bangladesh and had lived there most of his life. A plain reading of the Tribunal’s decision record reveals that it well understood the applicant’s evidence in this regard. Simply however, the Tribunal preferred and gave weight to other evidence before it, including evidence from the applicant, that led it to find he was a national of India and not Bangladesh. This was open to the Tribunal. This complaint now, as Mr Cleary submits, is a request for the Courts to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 56 at [8]).
Ground Five – Tribunal ignored relevant material
The applicant claims that the Tribunal “emphasised irrelevant questions” at the hearing and “ignored” his political profile. In written submissions this complaint is that the Tribunal did not take into consideration relevant claims, that is, claims to political involvement in Bangladesh and fears because of his Hindu religion. I cannot see that the Tribunal ignored the applicant’s political profile. The Tribunal wrote to the applicant on 18 October 2006 and invited the applicant to provide information on (at CB 79.8, reproduced in the Tribunal’s decision record at CB 152.5):
“k. What positions, if any, did you hold in the Awami League, and over what periods?”
Further at CB 80.1 (reproduced in the Tribunal’s decision record at CB 152.7):
“n. Please provide the names of any other political parties of which you have been a member, the dates, and positions held.”
The applicant responded on 13 November 2006 in the following terms:
“k. I was the active leader of the Awami League over long time”
“n. Awami League is the only party I worked for and supported”
For reasons already referred to above, the Tribunal found that the applicant was not a citizen of Bangladesh. Accordingly, it rejected “all [his] associated claims relating to Bangladesh”. This, plainly, included all his claims of political involvement and religious reasons in Bangladesh. Further, at CB 161.8, the Tribunal considered the applicant’s claims in relation to the Trinamul Party but found given the lack of “any specific fears” in relation to this party, it was not satisfied that the problems associated with that party constituted “serious harm” or indeed exactly what “the problem was”. In this sense, the Tribunal did not ignore his political profile. Again, the applicant’s attempts to re-agitate these issues in this fashion are not more than a request for impermissible merits review.
Nor, with reference to paragraph five of the written submission, can it be said that the Tribunal’s conclusion that it could not reach the requisite level of satisfaction of a well-founded fear of persecution was illogical because the Tribunal did not take into account certain claims as they related to his circumstances in Bangladesh. Having found that he was not a Bangladesh citizen there was no lack of logic in then rejecting claims said to arise from circumstances in that country.
Grounds Six and Seven – Tribunal applied the wrong test
The applicant asserts that the Tribunal applied the wrong test as to whether the applicant was a refugee because (while it is not entirely clear) it did not look at his claim as a whole and placed too high an evidentiary onus on the applicant and did not give him the benefit of the doubt. This appears in part to be also what is complained of at paragraph four of the written submissions.
I note as Mr Cleary submits, that the Tribunal did set out, in unexceptional terms, the relevant test that it was required to apply (CB 146.5 to CB 147.2). There is nothing in the material before the Court to show that the Tribunal failed to apply the correct test. To the extent that the Tribunal’s decision turned on its finding as to the applicant’s nationality, a finding which was open to it on what was before it, then the applicant’s complaint that the Tribunal did not look at all of his claims is not made out. Nor did the Tribunal have to uncritically accept the applicant’s claim that he was a Bangladeshi national, or give him “the benefit of the doubt” in this regard.
Section 36(2) of the Act provides that a criterion for a protection visa is that an applicant is a non citizen in Australia to which Australia owes protection obligations pursuant to the “Convention relating to the Status of Refugees”. In essence, protection is owed by Australia to an applicant in respect of whom the Tribunal can be satisfied meets the definition of refugee as set out in Article 1A(2) of the Refugees Convention. With regard to what is set out in Article 1A(2) of the Convention, it is plain that the Tribunal must determine the country or indeed countries against which the applicant’s claims are assessed.
In most cases before the Tribunal, the country against which the claims are to be assessed is not really at issue. It clearly was in this case however. That it was a significant issue that required the Tribunal to look at relevant evidence to a greater degree than in many other cases does not alter the situation that whether the applicant had a particular nationality was a question of fact for the Tribunal to determine. It found that he was not a Bangladeshi national. This was open to it on what was before it. Consequently, it rejected all his claims associated with Bangladesh. It did find he was a national of India, but to the extent that the applicant’s claims related to India, the Tribunal was not satisfied that the applicant faced a real chance of persecution because of any Refugees Convention reason. The Tribunal’s findings on nationality were not attendant with doubt such that the Tribunal was required to consider alternatives, that is relevantly, that if he was a Bangladeshi national, would he face persecution if he were to return to that country. In all therefore, these grounds do not reveal jurisdictional error on the part of the Tribunal.
I should just note that the complaint at paragraph two of the written submissions that the Tribunal failed to properly consider the relevant test paramount to s.91R(2)(a) of the Act in the context of his relocation to Bangladesh is misconceived. Relocation in Bangladesh was plainly not an issue in this case.
Ground 8: Failure to investigate and bias
The applicant asserts actual bias on the part of the Tribunal due to the failure of the Tribunal to investigate his claims in relation to Bangladesh. In written submissions the applicant asserts on the evidence as a whole that the findings of the Tribunal demonstrated bias.
As I have set out above, there was no obligation on the Tribunal to further investigate the claims of an applicant beyond the extent to which it did. Nor does the applicant’s reference (at paragraph one of the written submissions) to having sought the statement attached to his protection visa application amount to anything more than an assertion that the Tribunal should have accepted his claims as set out in the statement. For reasons already given, this complaint does not succeed. Nor does it demonstrate actual bias on the part of the Tribunal.
The applicant’s reliance on s.424A of the Act in this regard is misconceived. The Tribunal plainly did “treat this matter as a s.424A issue.” It wrote to him fulfilling its obligations in this regard and specifically raised the issue of information going to his claimed nationality.
To the extent that the applicant complains that the Tribunal was otherwise biased, there is nothing on the face of the Tribunal decision to indicate that the Tribunal was biased, nor has the applicant particularised the claim of bias beyond reference to its failure to find he was a Bangladeshi national. It is a rare and exceptional case in which actual bias could be demonstrated from the reasons of the decision alone (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 668 at [38]).
As is often said, applicants carry a heavy burden of establishing an allegation of bias and indeed bad faith. That the applicant feels aggrieved that the Tribunal did not believe his claim to be a Bangladeshi national, on its own, is clearly not sufficient to show to bias for that matter or bad faith on the part of the Tribunal. This ground does not succeed.
In all, I cannot discern jurisdictional error in what the Tribunal has done, either on the grounds or in the complaints made by the applicant or otherwise. This application is therefore dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 11 October 2007
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