SZKDS v Minister for Immigration
[2009] FMCA 1050
•30 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKDS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1050 |
| MIGRATION – Review of decision of Refugee Review Tribunal – weight to be given to evidence a matter for the Tribunal – Tribunal did give weight to material – no obligation on Tribunal to refer to every piece of evidence in decision record – applicant seeking impermissible merits review – findings open to Tribunal on what was before it – no bad faith – Tribunal dealt with claims and integers – no obligation to conduct enquiries – no bias – separate and independent finding in relation to relocation – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.91R, 424, 430 |
| Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 MZXGR v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1167 |
| Applicant: | SZKDS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 445 of 2008 |
| Judgment of: | Nicholls FM |
| Hearing date: | 14 September 2009 |
| Date of Last Submission: | 14 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 30 October 2009 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Solicitors for the Applicant: | - |
| Counsel for the Respondents: | Mr G T Johnson |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application made on 26 February 2008, and amended on 21 July 2008, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $10,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 445 of 2008
| SZKDS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (Cth) on 26 February 2008, and amended on 21 July 2008, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 11 January 2008, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
Background
The applicant is a citizen of Bangladesh who arrived in Australia in March 2006. He applied for a protection visa on 24 April 2006 (Court Book – “CB”, CB 1 to CB 30). The applicant also provided a number of statements in support of his application (CB 42 to CB 50 and CB 54 to CB 76, including attachments).
Applicant’s claims to protection
The applicant’s claims to fear persecutory harm arose out of his marriage to a Hindu woman. His family were Muslims. The applicant claimed to have been beaten and threatened by Islamic fundamentalists, and to fear harm and mistreatment by his family, relatives, and the government. He further claimed that he could not obtain protection from the authorities.
The delegate
The delegate did not accept that the applicant had a well founded fear of persecution from his family. Further, the delegate found that, in relation to the fear of harm from Islamic fundamentalists, the applicant could safely and reasonably relocate to another part of Bangladesh away from his local area. (See, in particular, CB 89 to CB 90.)
The Tribunal
The applicant applied for review by the Tribunal on 8 August 2006 (CB 92 to CB 95).
The Tribunal (as previously constituted) handed down its decision on 21 December 2006, and affirmed the decision of the delegate (CB 154 to CB 166). By Judgment handed down on 24 July 2007, Scarlett FM found jurisdictional error in the Tribunal’s decision, and made orders remitting the applicant’s case to the Tribunal for reconsideration (CB 167 to CB 180).
The applicant provided further documents to the Tribunal in support of his claims on 5 December 2007 (CB 180 to CB 192). He appeared at a hearing before the Tribunal on 7 December 2007 (CB 193). Following the hearing, by letter dated 10 December 2007, the Tribunal wrote to the applicant inviting his comment on certain information in writing (CB 215 to CB 219). This was information that the Tribunal said would be the reason, or part of the reason, for affirming the decision under review.
The applicant’s core claim before the Tribunal was that he was of Muslim religion and that he came to fear persecution because he married a Hindu woman.
The Tribunal rejected large parts of the applicant’s evidence on credibility grounds (CB 270.8). The Tribunal set out seven matters in support of this finding:
1)Inconsistencies in the applicant’s evidence as to whether his family had the title of “mullah” (CB 270 to CB 271).
2)The unsatisfactory nature of the applicant’s evidence, and claims, as to whether he and his wife had received any physical threats (CB 272).
3)The inconsistency between the applicant’s evidence as to what happened following the day of his marriage, in relation to a claimed riot between Hindus and Muslims, and the evidence provided by the priest who married the applicant, who was invited to provide this information by the applicant himself (CB 273 to CB 274).
4)Contradictions in a letter from the applicant’s wife, provided by the applicant to the Tribunal, and in contradiction of the applicant’s explanations for what his wife said in her letter (CB 274 to CB 275).
5)The implausible aspects of the wife’s claims in the letter to the Tribunal, in relation to whether she was being constantly threatened by extremist Muslims, and her movements in Bangladesh, and the applicant’s unsatisfactory attempts to explain these inconsistencies (CB 275 to CB 276).
6)The Tribunal did not accept the applicant’s evidence that the government of Bangladesh would harm or mistreat him because it was prohibited for him to marry a Hindu girl. It relied on country information to reject this claim, which the Tribunal saw as also being relevant to his overall credibility (CB 276 to CB 277).
7)The Tribunal rejected the applicant’s claim that it would not be possible to relocate to one of the larger cities or towns in Bangladesh because of the “mixed” Hindu/Muslim marriage, on the basis of independent country information available to it (CB 277).
The Tribunal found that the applicant was not a credible witness, and considered that he had made statements: “which he knows to be untrue in support of his application for a protection visa.” While the Tribunal accepted that the applicant came from a Muslim family in Bangladesh, and had married a Hindu woman, it did not accept that there was a real chance that he would be harmed or mistreated by the government in Bangladesh because of his marriage (CB 278). Further, it found that he had greatly exaggerated the threat from his family, his relatives, the Muslim community, or Muslims extremists, or from his wife’s family, or the Hindu community (CB 278).
Further, the Tribunal found that, even if it were to accept that the applicant had faced problems, nonetheless: “falling short of persecution in his local area from his family, his relatives, the local people more generally or Islamic fundamentalists”, that it would be reasonable to expect him to relocate (CB 279). The Tribunal concluded, therefore, that the applicant was not a person to whom Australia owed protection obligations and affirmed the decision under review.
Before the Court
Since the making of this application on 26 February 2008, this matter appears to have been in the docket of three other Federal Magistrates. The matter appears to have been the subject of a number of directions hearings, and was ultimately transferred to my docket on 7 July 2009.
Hearing Before the Court
When the matter subsequently came on for final hearing the applicant appeared in person. He was assisted by an interpreter in the Bangla language. Mr G T Johnson of counsel appeared for the first respondent.
It appears that this matter was part heard by another Federal Magistrate on 27 November 2008. I explained to the applicant that, notwithstanding this, he should proceed on the basis that whatever he may have told the Federal Magistrate on the previous occasion was not before me, and that he should proceed on the basis that the hearing was to commence afresh before me.
The applicant indicated that he wished to press the grounds set out in his amended application of 21 July 2008, and sought to rely on his written submissions of 23 June 2009. In addition, the Court has before it the Court Book filed on 21 April 2008, a Supplementary Court Book filed on 4 August 2008, and written submissions filed on behalf of the first respondent. I also took into evidence the affidavit of Emily Baggett made on 14 September 2009.
Application to the Court
The amended application has set out the following grounds:
“1. The Refugee Review Tribunal failed to exercise its jurisdiction under the Act:
Particulars:
A. The Tribunal did not put any weight to the document which I submitted before the Tribunal that:
(i) A copy of letter from Nripendra Bhattacharjee who performed our marriage dated 7/10/2006
(ii) The itemised telephone bill;
(iii) A photocopy of a letter from my wife dated 21/05/2006 associated with translated copy of English; and
(iv) A photocopy of a letter from my wife dated 25/07/2006 associated with translated copy of English.
2. The Refugee Review Tribunal made a wrong comment about the mixed marriage in Bangladesh that:
Particulars:
A. The Tribunal made a wrong comment about the mixed marriage in Bangladesh that:
i) The Tribunal failed to consider my persecution on the perspective of my marriage with a Hindu woman.
3. The Refugee Review Tribunal failed to make a distinction between our family name of ‘Mullah’ and the Islamic ‘Mullah’:
Particulars:
A. The Tribunal failed to make a distinction between our family name of ‘Mollah’ and the Islamic ‘Mullah’ that:
i) The Tribunal failed to establish a distinction between our family name of ‘Mollah’ and the Islamic ‘Mullah’.
4. The Refugee Review Tribunal acted in bad faith:
Particulars:
A. The Tribunal acted in bad faith that:
(i) The present Tribunal asserted the decision from the previous Tribunal and failed to put its own effort to consider my persecution.”
At the hearing before the Court the applicant also raised the following complaints:
1)The applicant complained that when his matter went back to the Tribunal, he pressed that he had problems in his home country and wanted the Tribunal to make enquiries as to whether he was lying or telling the truth. But the Tribunal did not do this and just found that he was lying.
2)He complained that while he told the Tribunal that he could not go to a “new area”, and that it was not safe to do so, the Tribunal did not believe him, and said that he was telling lies just as the “previous Tribunal” had found.
Ground One
When read with the applicant’s written submissions, the first ground of the application is a complaint that the Tribunal did not give any weight to documents that he had provided in support of his claims. These documents were:
1)Letter from the priest who had performed the applicant’s marriage.
2)Itemised telephone bill.
3)Letter from his wife dated 21 May 2006.
4)Letter from his wife dated 25 July 2006.
It is the case that the weight to be given to items of evidence before the Tribunal is a factual matter for the Tribunal (Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]).
It is not clear from the applicant’s submissions whether his assertion that the Tribunal gave no weight to these documents is a complaint that the Tribunal considered these documents and gave them no weight, or that the Tribunal did not take these documents into account. That is, that it did not consider these documents at all.
The Letter from the Priest
The letter from the priest is said to be dated 7 October 2006 (reproduced at CB 132). This was the second of such letters provided by the applicant in support of his claims. He had previously provided a letter from the same priest to the Minister’s Department dated 25 April 2006 (CB 43).
In its recounting of the applicant’s evidence before the earlier constituted Tribunal, the Tribunal noted:
“… The applicant also submitted a further letter from Nripendra Bhattacharjee dated 7 October 2006 in which he confirmed that his letter dated 25 April 2006 was genuine and that he had performed the applicant’s marriage ‘according to Hindu Customs but the short cut way as there was huge pressure from the Fundamentalists not to perform this marriage’ … ” (CB 256.4).
The Tribunal also noted that the earlier constituted Tribunal had sought advice from the Australian Department of Foreign Affairs and Trade (“DFAT”) in relation to this letter (CB 256.6), and that the earlier constituted Tribunal had written to the applicant on 28 November 2006, inviting him to comment on the information received from DFAT.
Before the Tribunal, as constituted for current purposes, the Tribunal’s unchallenged account of what occurred at the hearing reveals that the Tribunal well understood that the applicant had provided this letter to the Tribunal:
“The applicant indicated that he understood. I noted that he had already produced two letters from the priest and that the Australian High Commission in Bangladesh had spoken to both the priest and the applicant’s wife’s uncle” (CB 257.8).
Later in the hearing the Tribunal again referred to the two letters that: “the applicant had produced from the Hindu priest …” (CB 261.7). What is immediately obvious is that the second letter from the priest was sent to the Tribunal at the instigation and request of the applicant, given the Tribunal’s concerns, which were put to the applicant by way of the Tribunal’s letter of 10 December 2007 (CB 234) concerning inconsistencies between the applicant’s account of what occurred in a claimed riot on the day of his wedding, and what was set out by the priest.
The Tribunal clearly gave weight to what the priest said in the first letter. Both the inconsistency in what was contained in that letter, and the applicant’s relevant account, and the applicant’s subsequent attempts to discredit the priest’s evidence, was part of the Tribunal’s adverse finding as to the applicant’s credibility.
The second letter from the priest asserts three relevant matters.
The first is that the previous letter was “genuine and authentic”. The Tribunal appears to have accepted this, as it gave weight to that first letter.
Second, that the priest did confirm that he performed the marriage. Again, the Tribunal accepted that the applicant had married a Hindu woman.
Third, that there was: “huge pressure from the fundamentalists not to perform this marriage.” In this regard, the Tribunal accepted what the priest had told the Australian High Commission previously that: “both the applicant and his wife received verbal threats and huge pressure was put on the applicant not to marry a Hindu woman” (CB 278.8). Further, the Tribunal, for reasons which it gave, based on extensive evidence before it, found that the applicant had: “greatly exaggerated the threat he faces from his family, his relatives, the Muslim community or Muslim extremists or from his wife’s family or the Hindu community” (CB 278.5).
If, by “giving no weight”, the applicant seeks to assert that the Tribunal ignored the second letter from the priest, then that assertion must be rejected. If, however, the applicant’s complaint is that the Tribunal did not accept what the priest had said in the second letter, then this complaint does not succeed, on the facts, in relation to two of the three matters as set out above.
In relation to the third, it was plainly open to the Tribunal in all the circumstances to prefer what was said by the priest in his first letter to what was subsequently said at the specific invitation of the applicant.
Further, it is the case that sub-ss.430(1)(c) and (d) require the Tribunal, amongst other things, to set out its findings on material questions of fact, and to refer to the evidence, or other material, on which the findings of fact were based. There is no obligation on the Tribunal to refer to every piece of evidence before it in its decision record (Minister of Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 – “Yusuf” at [68], [73] to [74] and [91], Applicant A169/2003 v Minister of Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24] – “Applicant A169/2003”, WAEE v Minister of Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47], Paul v Minister of Immigration and Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196 – “Paul”). Its obligation is to refer to that evidence on which its findings of fact were based.
In the current case, I cannot see that the Tribunal was obliged to specifically refer in its reasoning (that is, in its “Findings and Reasons”) further to the second letter from the priest, as this did not form the basis of any relevant finding. (Noting, of course, that two of the three matters the Tribunal otherwise accepted were as asserted in that letter – see Paul at 79 per Allsop J, Applicant A169 of 2003, and Yusuf at 68).
The Telephone Bill
The second document is said to be an “itemised telephone bill”. (This appears to be the document reproduced at CB 134 to CB 143.) When regard is had to the applicant’s covering letter to the Tribunal dated 20 October 2006 (CB 130 to CB 131), the telephone bill was provided to the Tribunal in support of the claim that the applicant had made many calls to his wife and, presumably, in support of the important claim, that he had married this Hindu woman. Plainly, the Tribunal accepted that this had occurred and, in the circumstances, it was clearly not necessary for the Tribunal to give any weight, or indeed to refer, to this itemised telephone bill in its decision record.
The Letters from the Wife
The third and fourth documents are said to be letters from the applicant’s wife. (These appear to be reproduced at CB 105 to CB 110 with English translations.) Having regard to the applicant’s covering letter (at CB 103), the letters were clearly submitted to support the applicant’s claim that he was married, that he had regular communication with his wife, and that his wife had insisted that he not return to Bangladesh as his life was in danger from Muslim fundamentalists.
The answer to the applicant’s complaint in this regard is similar to what is set out above in relation to the letter from the priest. That is, the weight to be accorded to an item of evidence is a factual matter for the Tribunal, and the Tribunal’s obligation in its decision record is to set out those matters, or evidence, upon which its findings of fact were based.
To the extent that the applicant’s complaint may be that the Tribunal failed to take into account a relevant consideration, it is the case that the Tribunal is required to consider all of an applicant’s claims, and each integer of his claims (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 90 FCR 287). The Tribunal is required to deal with each claim raised by an applicant, or that which clearly arises on the circumstances before it.
What is contained in the two letters does not constitute a separate claim. Rather, it supports two aspects of the applicant’s claims:
1)That he was married. The Tribunal accepted this.
2)That he feared harm from extremists and fundamentalists. As already referred to above, the Tribunal found that the applicant’s claims in this regard were greatly exaggerated (CB 278.4) and, in any event, he could reasonably and safely relocate away from his local area (CB 279.3), thereby avoiding any harm should the Tribunal accept that the applicant would face problems falling short of persecution from the fundamentalists (CB 279.3).
Further, as the Minister submits (with reference to MZXGP v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1314 at [13] to [15] per Middleton J) the notion of jurisdictional error for failure to take into account a relevant consideration is not concerned with the weight given to that consideration, but whether or not the decision maker had regard to the material in question. In the current case, the letters do not contain a separate, or further claim, or aspect of the applicant’s claims. In all the circumstances, the Tribunal was not required to specifically refer to those two letters in its analysis and reasoning as embodied in its “Findings and Reasons”.
In all, ground one is not made out.
Ground Two
In ground two the applicant complains that the Tribunal “made a wrong comment” about his mixed marriage in Bangladesh. In light of the applicant’s written submissions, it appears that the applicant’s complaint is that the Tribunal did not accept that the fact of his having entered into a “mixed marriage” created a problem for him in that it attracted harm from fundamentalist Muslims.
The applicant’s complaint either misconceives the actual relevant finding made by the Tribunal, or, as the Minister suggests, is an attempt to engage the Court in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6).
The Tribunal accepted that the applicant was of Muslim faith, and had married a Hindu woman. Based on the applicant’s own evidence, which it found to lack credibility in relevant parts, and on independent country information available to it, the Tribunal did not accept that any problems which the applicant, and his wife, may face (which it saw as being confined to their local area) as a result of the “mixed” marriage involved “serious harm” as required by “paragraph 91R(1)(b) of the Act” (CB 279.7).
Further, and in any event, the Tribunal found that, even if it were to accept that the applicant faced problems falling short of persecution in his local area, he could reasonably relocate to one of the large cities or towns in Bangladesh (CB 279.3). I cannot see error in the Tribunal’s approach in this regard.
Ground Three
In ground three the applicant asserts that the Tribunal failed to make a distinction between his family name of “Mollah” and the Islamic title of “Mullah”, that he sought to convince the Tribunal of the differences between the two, and that the Tribunal “did not listen” to him. The applicant submits, in relation to this ground, that the Tribunal “put so much weight to an unimportant issue and assess my credibility.”
The history of this issue appears to be as follows.
In his statement included with his protection visa application the applicant said that at the time when his intention to marry a Hindu girl became known locally, that: “Different people came to our home including Islamic Mollah and tried to convince me not to marry a Hindu girl” (CB 27.10). This was repeated in his statement of 22 May 2006, also provided in support of his protection visa application. (See CB 48.8 – the reference being to an “Islamic Mollah”.)
The applicant has not put before the Court any evidence (for example, by way of transcript) of what occurred at the hearing. The Tribunal’s own account, therefore, being that which is contained in its decision record, remains unchallenged by any other evidence as to what occurred at the hearing.
That account reveals, in relation to this issue, that the applicant gave evidence to the Tribunal: “He said that his family had the title of ‘mullah’ and they had close ties with Islamic groups so if anything went wrong with him or he did anything contrary they would be victimised and killed as well as him” (CB 258.3). The Tribunal subsequently asked the applicant to explain the reference to his family having the title of “mullah” (CB 258.4). The applicant provided an explanation, which included that the “mullah” group were those who: “were strongest and at the forefront of Islamic religion ...” (CB 258.5).
The Tribunal then noted with the applicant that in his “original application” he had referred to a Mullah having come to his home. The Tribunal then sought to resolve why the applicant had not mentioned at an earlier time that his family were also Mullahs, and that his family would therefore be victimised as well as himself.
What follows (at CB 258.8 to CB 259.6) became the subject of one of the items raised by the Tribunal with the applicant in its letter of 10 December 2007 (CB 234.5), and in respect of which the applicant provided comment (see CB 239). The issue being the inconsistency in the applicant’s evidence in relation to his claim that his family had the title of “mullah”. In his reply of 2 January 2008 (CB 239) the applicant sought to explain that the family’s title was in fact “Mollah” and that there was no inconsistency in his evidence.
For the reasons set out in its decision record (at CB 270.7 to CB 271.7) the Tribunal was not persuaded by the applicant’s explanation as to the inconsistency in this evidence, and formed the view that “the applicant’s late making of this claim is also relevant to his overall credibility” (CB 271.7).
In light of the above, a number of matters are relevant to the applicant’s complaint now.
First, this was not the only issue in relation to which the Tribunal based its adverse finding as to the applicant’s credibility. On any plain reading of the Tribunal’s decision record it is clear that this was at least one of several issues raised with the applicant in the Tribunal’s letter, inviting his comment.
Second, at the hearing the applicant himself raised with the Tribunal that his family had the title of “mullah”, in the context of seeking to put before the Tribunal that his family also was at risk from fundamentalists. In the circumstances of this case (and, in particular, as to how the applicant’s claims developed and were ultimately presented before the Tribunal), it was open to the Tribunal to find that there was an inconsistency in his evidence which led it to rely, in part, on this inconsistency in forming an adverse view of his credibility, and open to come to the conclusion that while accepting that the applicant’s family and his relatives were Muslim, not accepting that they had the title of “mullah”. Further, it was clearly open to the Tribunal to reject the applicant’s subsequent explanation that the family title was, in fact, “Mollah”.
The applicant’s complaint now must be seen in light of his own evidence presented to the Tribunal – that because his family had this title of “mullah” they also were at risk from fundamentalists. Implicit in this claim, clearly, was that as a member of his family, this was an added element in attracting harm from Islamic fundamentalists to himself. The applicant was unable to persuade the Tribunal with his explanation as to why he had not raised this issue earlier. In all, the Tribunal was entitled to view the subsequent explanation, as to some distinction between the words “Mollah” and “mullah” as detracting from the applicant’s credibility. Ultimately, it was open to the Tribunal to reject the applicant’s late claim that his family had the title of “Mollah”.
The applicant’s attempts now to seek to explain that the Tribunal was confused between “Mollah” and “mullah” does not assist him.
First, given what is set out above, I cannot see that the Tribunal harboured any confusion in this regard. Second, and far more importantly, the applicant’s complaint is, in my view, a request for this Court to substitute an acceptance of the applicant’s explanation for the inconsistency in his evidence in lieu of the Tribunal’s findings in this regard. This Court is unable to do so. That is, it is unable to engage in what would constitute merits review. This ground, therefore, does not succeed.
Ground Four
In ground four the applicant asserts bad faith on the part of the Tribunal. In written submissions the applicant particularises his complaint in the following ways:
1)The applicant repeats the complaint in ground one, that the Tribunal did not place any weight to his “documents”, and in particular, to a letter received from his wife just before the hearing.
2)That the Tribunal merely “asserted the decision from the previous Tribunal” and failed to make its own consideration of his claimed persecution. The applicant exemplifies this by saying that the Tribunal did not “make any enquiry” or “take any opinion” from anyone who has knowledge about his marriage and persecution. He repeated this complaint at the hearing before the Court (see [17] above).
3)The Tribunal asked him “a lot of unnecessary questions,” and that:
“the Tribunal’s attitude was so arrogant and commanding.”
An allegation of bad faith is a serious matter and must be clearly proved (SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 – “SBBS”, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, and Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 – “NAOS”). Such an allegation challenges the integrity of the decision maker.
In cases where the material relied upon to found such an allegation is limited to the decision record, it is rare that bad faith will be made out (SBBS at [44], per Tamberlin, Mansfield and Jacobson JJ).
To allege bad faith on the part of the Tribunal is to allege some “personal fault” on the part of the Tribunal member, in the sense that there was an absence of honesty (SBBS at [43]), and to allege that the decision was made not on the basis of “considered judgment” but on the basis of “whim or fancy” (NAOS at [21], per Whitlam, Finn and Goldberg JJ).
The Tribunal’s unchallenged account of what occurred at the hearing records relevantly that at the hearing: “the applicant produced another letter from his wife without a translation” (CB 260.5).
In its account of what occurred at the hearing the Tribunal provided an account of what was said to have been contained in the letter. There is nothing in this reported account to say that what was in the letter added anything of substance to what was contained in the letters from the applicant’s wife previously given to the Minister’s Department, and to the Tribunal. (See CB 47, CB 105, and CB 108.)
As already referred to above, the Tribunal is not required to set out in its decision record every piece of evidence before it. Sub-sections 430(1)(c) and (d) require the Tribunal to set out evidence upon which its findings of fact are based.
I cannot see error in the Tribunal failing to further specifically refer to the contents of this last letter from the applicant’s wife. The Tribunal well understood the evidence that the applicant’s wife sought to put before the Tribunal. It dealt with the wife’s evidence, in part, with reference to its letter of 10 December 2007 (CB 236), and plainly understood the applicant’s wife’s evidence to be that she and her husband had married, and that she was constantly threatened by extremist Muslims, continued to live in fear, and that her husband should not return because he would be harmed by extremist Muslims. The Tribunal well understood this evidence from the applicant’s wife in support of his claims, and dealt with it. In all, therefore, this “particular” does not assist in showing bad faith on the part of the Tribunal.
The applicant’s second element in claiming bad faith on the part of the Tribunal is that the Tribunal did not make any “enquiry” or seek “opinion” from people who had personal knowledge about his marriage, and persecution.
As already set out above, the Tribunal accepted that the applicant had entered into a “mixed” marriage with a Hindu woman. Plainly, in these circumstances the Tribunal was not required to conduct any further enquiry of this issue.
The applicant’s real complaint appears to be that the Tribunal’s rejection of his claim to fear persecution in his home country should not have been arrived at without the Tribunal making some enquiries in the country of claimed persecution.
First, it is the case that the Tribunal is under no general obligation to conduct enquiries to assist the applicant’s case (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [43] and SZATG v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1595 at [26]). Nor can I see that any special limited circumstances existed (as, for example, was found in Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 169).
Second, the applicant did not say before the Court what specific enquiries, or seeking of opinion, the Tribunal should have undertaken.
Third, it may be that the applicant seeks to complain that (as the Tribunal reported at the hearing) he had asked the Tribunal to “take evidence from the priest … and from his wife’s uncle … by telephone from Bangladesh” (CB 257.6). The Tribunal explained its reasons for not doing so. It noted with the applicant, in any event: “… that he had already produced two letters from the priest and the Australian High Commission in Bangladesh had spoken to both the priest and the applicant’s wife’s uncle.” The applicant was reported as having said that he “understood” (CB 257.7).
Further, to the extent that the applicant complains that the Tribunal did not make any further enquiries about his marriage, this complaint, again, misunderstands the nature of the Tribunal’s findings. It found that the applicant had indeed married a Hindu woman.
To the extent that he complains that the Tribunal did not make further enquiries about his claimed persecution, a further answer to that (that it was not under a general obligation to do so) is that the applicant was given every opportunity to put before the Tribunal any evidence that he wished to do so in support of his claims that he had suffered harm in the past, and would suffer harm in the future. In fact, the applicant provided a number of such items of evidence.
Nor does the applicant now say how any further enquiry could have assisted his application before the Tribunal. The information provided by the priest, in part, led to the adverse credibility finding, in that the applicant had provided inconsistent evidence from the priest. No further enquiry with him would have assisted the applicant. Indeed, the applicant himself provided a subsequent letter from the priest in an attempt to explain the apparent inconsistency.
The third “particular” in support of the allegation of bad faith is that the Tribunal was said to have asked the applicant a lot of “unnecessary question[s]”, and that the Tribunal’s “attitude was so arrogant and commanding.”
In relation to both aspects of this “particular”, despite opportunity, the applicant has provided no evidence about what occurred at the hearing to contradict the Tribunal’s account.
On the Tribunal’s account, it is clear that there was some questioning relating to the preparation of his application (CB 257.8). But in the totality of the report of the hearing as a whole, (a hearing which lasted just over two and a half hours – CB 193), the questions in relation to this matter cannot be said to have constituted “a lot”. Nor, in the context of the Tribunal seeking to understand how the applicant’s claims ultimately evolved before it, can the questioning be seen to be “unnecessary”. In any event it is that the Tribunal is the arbiter of what is relevant to its task in conducting the review. (See Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 per Mason CJ.)
In my view, in any event, it was relevant, and indeed incumbent on the part on the Tribunal to have asked these questions, given that there were omissions in the applicant’s claims as originally put, and ultimately inconsistencies with what had been originally put. In these circumstances, the Tribunal was plainly entitled to ask the questions that it did. Nor, it must be said, even if some questioning could have been subsequently said to be ultimately “unnecessary”, does this, on its own, reveal jurisdictional error, nor indeed does it reveal, or support, an allegation of bad faith.
As to the Tribunal’s claimed attitude of arrogance and commanding demeanour, there is nothing in the evidence before the Court to show that any such claim can be sustained. The applicant had (as he previously appeared before this Court) a lengthy period between the lodging of this application, and its ultimate presentation at the final hearing before me, to have put before the Court whatever evidence may have assisted him in this regard. Without evidence, such a serious claim simply cannot be properly asserted, let alone sustained.
Nor, for that matter, is there anything before the Court to show that the Tribunal did not bring an open mind to the proceedings. Nor that the well informed lay observer would reasonably apprehend that the Tribunal did not bring an impartial mind to the resolution of the applicant’s application (Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).
In all, this ground is not made out.
Other consideration
Before the Court the applicant also complained about the Tribunal’s finding that he could relocate to another part of Bangladesh, away from his local area. The applicant stated that it was not safe for him to do so.
In all, I cannot see that the applicant’s complaint now rises above a request for impermissible merits review. The issue of relocation was certainly a live issue in the disposition of the applicant’s application before the delegate (at CB 89.4). Further, this issue was discussed at the hearing before the Tribunal, and it was squarely put to the applicant that he would be able to escape persecution by moving to any of the large cities or towns, where “mixed” marriages were more “frequent” (CB 264).
In any event, this was also the subject, in part, of the Tribunal’s letter to the applicant dated 10 December 2007 (CB 207).
The Tribunal affirmed the decision under review because, while it accepted that the applicant had entered into a “mixed” marriage with a Hindu woman, it rejected the applicant’s subsequent factual account to fear persecutory harm because of its findings of adverse credibility, as it related to key parts of that account. It found that his fear of harm was greatly exaggerated, and as a result, what was left of the applicant’s claims did not amount to persecution involving “serious harm” as required by sub-s.91R(1)(b) of the Act. This was the reason for affirming the decision under review.
The Tribunal’s findings in relation to relocation were separate and independent of that line of reasoning. Plainly, the Tribunal’s finding, in this regard (that is, that even if it were to accept that the applicant faced problems “falling short of persecution in his local area”, it would be reasonable to expect him to relocate to one of the large cities or towns in Bangladesh), and in coming to this conclusion, the Tribunal plainly took into account all of the applicant’s objections as to why he could not reasonably relocate, particularly as these were expressed at the hearing before the Tribunal. (See, in particular, CB 263 to CB 264, and as expressed in the applicant’s response of 2 January 2008 to its letter of 10 December 2007 – see CB 240.)
The Tribunal’s finding in this regard did take into account a range of factors (personal and specific to the applicant) and considered independent country information as to the reasonableness of relocating away from his local area. The Tribunal’s finding in this regard was consistent with what was set out in Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 and with what the High Court said in SZATV v Minister for Immigration and Citizenship and Another [2007] HCA 40; (2007) 233 CLR 18.
I cannot discern error in this regard, noting, of course, that the finding on relocation stands separate and apart from the finding of the applicant’s claims to fear harm did not amount to persecution involving “serious harm”. There is no jurisdictional error where there is a separate and independent basis for affirming the decision under review. (See NAUW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1086 at [23], VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 per North J at [33]. See also SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306, MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256, VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1, MZXGR v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1167, SZEVE v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 390.)
This complaint, therefore, does not assist the applicant.
Postscript
I should just note that for a large part of the time that this application stood in the dockets of other Federal Magistrates, the Full Federal Court decision in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83; 168 FCR 256 and SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119, and what was said in those cases in relation to the giving of “additional information” within s.424(2), were relevant authorities to certain elements of this case. This was alluded to Minister’s written submissions at paragraph [25]. There was a request that this Court should await the outcome of the Full Federal Court appeal in SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51. Since that time the High Court has handed down its judgement in Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 in relation to the meaning of s.424. There is now no longer any issue of assistance to the applicant arising from any possible breach of s.424.
Conclusion
For the applicant to succeed before the Court, the Court would need to discern jurisdictional error (at least) on the part of the Tribunal. I cannot discern such error on the basis of the applicant’s amended application, nor otherwise. This application is therefore dismissed.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 27 October 2009
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