SZLTR v Minister for Immigration - [2008] FMCA 821

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLTR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 821

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 “SZLTR”.

Migration Act 1958 (Cth), ss.91X, 424AA, 424A, 425

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 378
Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1
Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
NAAH v Minister for Immigration [2002] FCAFC 354
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NARE v Minister for Immigration [2004] FCA 554
SZDFO v Minister for Immigration [2004] FCA 1192

Applicant:

SZLTR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3848 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

23 May 2008

Delivered at:

Sydney

Delivered on:

20 June 2008

REPRESENTATION

Applicant:

The applicant appeared in person with the assistance of a Bengali interpreter

Counsel for the Respondents:

Mr S Sivaloganathan

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application filed on 17 December 2007 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

SYG 3848 of 2007

SZLTR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

The applicant claims that he is a married man and a citizen of Bangladesh. He was born in 1967 and educated in Chittagong. He speaks Bengali, English and Hindu and is of the Muslim faith. His wife and daughter remain in Bangladesh. He described his occupation as “private service and politics”. From January 2006 to May 2007, the applicant lived in the United Arab Emirates. He entered Australia on 25 February 2007 on a Bangladeshi passport and a visitor’s visa issued in Dubai.
The applicant claims that his life is in danger due to his political activities as leader of the Bangladesh Awami League. He claims that he was present of the Bangladesh Chatra League of Chikomdondi Union Council from 1987 to 1991 and General Secretary of the “Bangabandhu Smriti Sangsad” of Hathazari. He went to Kuwait for work until 2001 when he returned to Bangladesh and became actively involved in politics and business. However, during this time he faced pressure from Bangladesh Nationalist Party (BNP) activists and Islamic fundamentalists because of his free movement and secularism.
He claims he openly criticised the corruption of BNP office holders and for this reason his opponents planned to kill him. When he discovered this, he returned to the United Arab Emirates and stayed there until 20 March 2007. He claims that if he returns to Bangladesh he will be harassed, humiliated and falsely accused of crimes by members of the BNP, Islamic fundamentalist parties and government authorities. He states that the Bangladesh authorities will not protect him.
The applicant arrived in Australia on 12 May 2007 and applied to the Department of Immigration for a Protection (Class XA) visa on 25 June 2007. A delegate of the Minister refused to grant the visa on 18 July 2007 and the applicant applied for a review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”) on 13 August 2007. It is that decision signed on 2 November 2007 (reference number 07160442) that is the subject of this judicial review.
A Court Book (“CB”) prepared by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before the Court.
At the first Court date the applicant indicated that he did not wish to participate in the scheme that gives unrepresented applicants in refugee matters an opportunity to receive independent legal advice. The applicant was granted leave to file an amended application giving complete particulars of each ground of review relied upon by 2 April 2008. The applicant complied with that order, filing an amended application on 1 April 2008.

Consideration

Ground one

1. The Refugee Review Tribunal made the decision in bad faith:
Particulars
A. The Tribunal made the decision in bad faith by the following comment that:
i) He did not undertake any significant political activities for the Awami League and was not a well known or high profile figure in Chittagong or elsewhere; and
ii) He made a vague and non specific claim of being threatened from time to time by members of the fundamentalist Islamic parties in Chittagong, a claim that was not elaborated in any way.

Mr Sivaloganathan, for the first respondent, contends in written submissions that the onus is on the applicant to provide sufficient information for the Tribunal to determine if there are relevant facts to for him to meet the definition of a refugee. It is for the applicant to make out his own case: Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J.
The Tribunal wrote to the applicant on 12 September 2007 stating:
The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone.
This letter is an invitation to the applicant listed above, to appear before the Tribunal to give oral evidence and present arguments. (CB 66)
The invitation letter also encloses a leaflet entitled “What is a hearing?” which explains the operation of a Tribunal hearing. Within that leaflet is the following passage:
You should provide the Tribunal with any evidence you now have which will support your claim to be a refugee under the United Nations Refugee Convention as soon as possible and in any case at least a week before the hearing date.
The Tribunal may write to you requesting additional information, or may ask you to comment on adverse information that the Tribunal considers relevant. If you do not give this information to the Tribunal within the time specified the Tribunal member may make a decision on your case without further notice and without offering you a hearing.
In this case, the applicant had an opportunity to attend the hearing and furnish the Tribunal with details of his claims and supporting material. To the extent that he did, the applicant cannot now complain that other facts were not taken into account in assessing his application.
In respect of particular (i) of the first ground, the Tribunal made the following finding:
The applicant gave evidence and provided credible supporting documentation that he was a member of the Awami league and an office bearer of several small associated organisations of the Awami league from 1987 to 1995. He also gave evidence which I accept, that he had remained a supporter of the Awami League between 2001 and 2006, provided some assistance and support to the Awami League organisation in Chittagong. However, I do not accept that he was or is, a high profile or well known political figure in the Awami league. I also do not accept that he was engaged in political activities full time or for a major part of his time in Bangladesh. (CB 102.2)
The basis for the above finding is set out in the Tribunal decision as follows:
a)The applicant was not able to describe his political activities other than in a generalised manner (CB 102.3).
b)He was unable to provide any details about his activities as president of a student organisation of the Awami League other than to say he was involved in organisational activities (CB 94-95).
c)When asked to give a more detailed description of his political activities he responded that he “gave some time to politics and gave some time over to nothing” before he left Kuwait in 1995.
d)The applicant made no comment when advised that the Tribunal had enquired about his membership in the Awami League with the organisation. An officer confirmed that the applicant had been a member and office bearer of two small associated groups, and that his position could not be regarded as a high ranking or influential within the Awami League in Chittagong (CB 96.3, 102.4).
In respect to particular (ii) the Tribunal found:
I do not accept that the applicant has suffered any threats or mistreatment from members of any of the political parties opposed to the Awami League, from the RAB or police for reasons of his political associations. He did not give any evidence of specific mistreatment by members of the opposition parties, including the Islami Jamaat or their student wing. (CB 102.5)
Again the basis for the Tribunal’s findings are clearly set out in the decision as follows:
a)The applicant failed to give details of what happened in Bangladesh as a result of his political activities, other than that he was often threatened by members of the Islami Chatar Shibr, being the strongest party within his area (CB 95.8);
b)He could not point to any specific incident or reason why he would be harmed (CB 103.2).
c)He could not give any evidence of specific mistreatment by opposition parties, including the Islami Jamaat (CB 102.5);
d)The Tribunal had country information which indicated that the government had taken steps against violent or radical Islamic groups and many of their members had been arrested (CB 103.3).
Mr Sivaloganathan submits that ground one alleges that the Tribunal made an error of fact in finding that:
a)the applicant did not undertake any significant political activities for the Awami League and was not a well-known or high profile figure in Chittagong; and
b)the applicant made a vague and non-specific claim of being threatened from time to time by members of Islamic fundamentalist parties in Chittagong.
Insofar as the applicant takes issue with the factual findings of the Tribunal decision, that is a request for merits review which is not available in this Court and does not establish a jurisdictional error. The applicant was unsuccessful because of the view the Tribunal took of the facts and, in particular, its finding that he was not credible. Such findings are matters of fact for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 per McHugh J at [67]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. The reinvigoration of these matters, understandable as it may be, reinforced the applicant’s belief that it is the Court’s task to conduct a re-hearing of the merits of his claims. As decided on numerous occasions, the Court cannot engage in merits review: SZDFO v Minister for Immigration [2004] FCA 1192; NARE v Minister for Immigration [2004] FCA 554; NAAH v Minister for Immigration [2002] FCAFC 354.
An allegation of bad faith is a serious matter involving personal fault on the part of the Tribunal member and should not be made lightly. There are many ways in which bad faith can be shown to have occurred. I note that allegations of bad faith are often made by applicants who have been unsuccessful before a Tribunal, if for no other reason than to understand why claims made were not believed or successful. Hearings discuss issues significant life-affecting issues which can involve argument and misunderstanding. When a Tribunal member puts an adverse view to an applicant at a hearing, it puts the applicant on notice of a potentially adverse finding and gives the applicant the opportunity to comment. However, the real issue is whether the conduct of the Tribunal member is such that they were not open to be persuaded on the outcome. Where a member has acted in a professional and objective manner in a hearing, it is far more difficult for the applicant to establish that the member has acted inappropriately or in bad faith.
In Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431 at [11], Heerey and Kiefel JJ state:
[11] In the particular context of reviews of decisions of the RRT it should be kept in mind that the Tribunal only embarks on a hearing when it is not satisfied on the papers that a protection visa should be granted: s425(2)(a). Therefore the very fact that there is a hearing necessarily involves at least some lack of satisfaction on the part of the RRT. It is in the nature of things that this may vary in degree and could amount in some cases to suspicion, or even strong suspicion. The fact that the RRT holds such a state of mind, or that it becomes apparent in the course of the hearing, does not of itself suggest actual bias in the relevant sense.
In the particular context of review of Tribunal decisions, it is in the nature of a hearing that the Tribunal member’s degree of satisfaction may vary and could amount to suspicion or even strong suspicion. The fact that the Tribunal holds such a state of mind, or that it becomes apparent during the course of a hearing, does not in itself suggest actual bias in a relevant sense.
I am satisfied that the applicant’s use of the term “bad faith” is a statement of disagreement with the outcome, rather than to say that the Tribunal member was influenced by bias finding adversely against the applicant. I am satisfied that the applicant is expressing that the Court conduct a merits review rather than attempting to establish “bad faith” on behalf of the Tribunal member. In the circumstances, ground one should be dismissed.

Ground two

2. The Refugee Review Tribunal acted in excess of its jurisdiction.
Particulars
A. The Tribunal acted in excess of its jurisdiction by the following comment that:
i) I have considered the applicant’s situation if he returns to Bangladesh now or in the foreseeable future and I do not accept that he faces a real chance of persecution upon his return.

This ground is not particularised and the applicant has not attempted to provide either affidavit or oral evidence in support. Mr Sivaloganathan contends that an argument of whether the Tribunal failed to properly apply the “real chance test” cannot be sustained in circumstances where fear of persecution is not well founded and merely assumed or speculated (see Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 378; Guo at 572 for discussion of the test). The authorities require that a “real chance” is not remote, insubstantial or a far fetched possibility.
Mr Sivaloganathan contends that the Tribunal set out its basis for finding that the applicant does not face a real chance of persecution upon his return to Bangladesh. It relied on the country information that the caretaker government had charged persons with serious violations of corruption law and other offences involving significant violence. The applicant had not claimed that he would be a perpetrator of such violence if he returned to Bangladesh and, therefore, the Tribunal did not accept that he would be subject to persecution for this reason.
The High Court said in Guo at 572:
Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
The Tribunal has demonstrated that it was well aware of the criteria it had to apply in determining whether there was a real chance of persecution should the applicant return to Bangladesh. It set out and evaluated all of the evidence before concluding that a real chance did not exist. The evidence available was fully evaluated and the applicant has not supplemented or expanded this material in any way. Consequently, this ground of review should be rejected.

Ground three

3. The Refugee Review Tribunal did not seek any written comment from me about the independence evidence and the dialogue between the Tribunal and the Awami League office bearer in Bangladesh.
Particulars
A. The Tribunal did not seek any written comment from me about the following independence evidence and the dialogue between the Tribunal and the Awami League office bearer in Bangladesh that:
i) The current caretaker government is taking strong measures to reform the electoral process, prevent political violence and reduce corruption in the police and public service; and
ii) My position could not be regarded as high ranking or influential within the Awami League in Chittagong.

The applicant is alleging a breach of s.424A of the Migration Act 1958 (Cth) (“the Act”) because of a failure to give him the opportunity to make written comments on the information relied upon by the Tribunal in relation to the two pieces of information identified as:
a)the actions of the caretaker government; and
b)the applicant’s rank in the Awami league in Chittagong.
Section 424A states:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
In respect of particular (i) of ground three, the Tribunal clearly states that the country information was sourced from UK Home Office Country of Origin Report on Bangladesh released on 31 August 2007. This material falls within the exception of s.424A(3)(a) as it is general information that the Tribunal was not obliged to give written particulars of, nor invite the applicant’s comment pursuant to s.424A(1). I am satisfied that this clearly reflects the operation of that provision and requires no further consideration. In respect of particular (ii), s.424AA applies. This section came into operation before the application to the Tribunal of 13 August 2007, the hearing of 29 October 2007 and the decision of 2 November 2007.

Section 424AA provides:
Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Mr Sivaloganathan submits that the Tribunal initially made it clear to the applicant that it had information which would be a reason to affirm the decision under review, then orally invited the applicant’s comment and advised him that he could seek additional time to do so:
I wish to put to him information which may not have supported his refugee claims. I explained that he could ask for further time to comment or respond to the information. He did not seek further time. (CB 96.2)
Subsequently, the Tribunal clearly provided the particulars of the information to comment, by informing the applicant that it had made enquiries with the Awami League in Bangladesh about his membership and one of its officers confirmed that he had been a member and office bearer as claimed.
However, the applicant was informed:
The Awami League Official also advised that these two organisations represented small areas and a small number of people and his position could not be regarded as high ranking or influential within the Awami League in Chittagong. I further advised that advice from Bangladesh had indicated there was no information suggested that the current caretaker government had targeted low profile political figures including members of the Awami League for reason of their membership of their respective political parties. The information indicated that the government’s main target had been senior political leaders, influential businessman and senior government officials who were engaged in large scale corruption and misuse of power and that arrests had been made on the basis of corruption rather than political party membership. (CB 96.3-96.5)
The Tribunal then made it clear to the applicant what bearing this information had on its decision:
I explained that this information could lead me to the conclusion that he would not be at risk of harm if he returned to Bangladesh. The applicant agreed that the government was taking action against corrupt officials from both sides of politics; however, his problems were with Islamic fundamentalists and that the caretaker government had not taken any action against those persons. (CB 96.6)
Compliance with its obligations under s.424AA(b) means compliance with s.424A(2A) and therefore the Tribunal was not obliged to issue a written s.424A invitation in respect of that information. The information relied upon in particular (ii) of ground three was given to the applicant by the Tribunal in compliance with s.424AA(b). The Tribunal’s obligations under s.424A(1) were not enlivened.
The complaint made in particular (ii) cannot be sustained. Consequently, ground three should be rejected.

Conclusion

The applicant is a self represented litigant who appears to have been assisted by an unidentified party who has a limited understanding of the operation of the Act. This has resulted in the applicant addressing a range of issues which are general in nature and not directly related to the applicant himself or the Tribunal decision he is challenging. The applicant also appears to be under the mistaken apprehension that the application to this Court is a merits review of the Tribunal decision. The grounds of review identified by the applicant are the applicant disagreeing with passages from the Tribunal decision in the absence of specific reference to legal or jurisdictional errors. The Court has been assisted by written and oral submissions prepared by Mr Sivaloganathan for the first respondent and I am satisfied that the issues raised by the applicant in his grounds of review have been addressed. I have independently reviewed the contents of the Court Book and the Tribunal’s decision and it is not apparent from the face of those documents that there is any jurisdictional error in the reasoning of the Tribunal. Consequently the application should be dismissed with costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 20 June 2008