SZNHJ v Minister for Immigration & Anor (No.2)
[2012] FMCA 809
•14 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNHJ v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2012] FMCA 809 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65, 91R, 425, 426, 427, 476 |
| SZNHJ v Minister for Immigration & Anor [2009] FMCA 1250 SZNHJ v Minister for Immigration and Citizenship [2010] FCA 132 Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 Minister for Immigration v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; 80 ALJR 367; 223 ALR 171 SZGUW v Minister for Immigration & Citizenship [2009] FCA 321 Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 SZMJM v Minister for Immigration & Citizenship [2010] FCA 309 SZNYI v Minister for Immigration & Citizenship [2010] FCA 221 Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Re Drake and Minister for Immigration & Ethnic Affairs (No.2) (1979) 2 ALD 634 Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518; 196 ALR 385; 77 ALJR 786 SZFYW v Minister for Immigration & Citizenship [2008] FCA 1259 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; [2006] HCA 63; (2006) 81 ALJR 515 SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 Re Refugee Review Tribunal: Ex parte H (2001) 179 ALR 425; [2001] HCA 28 |
| Applicant: | SZNHJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2972 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 3 September 2012 |
| Date of Last Submission: | 3 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2012 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application made on 23 December 2011 and amended on 5 April 2012 is dismissed.
The applicant pay the first respondent’s costs, set in the amount of $4760.50.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2972 of 2011
| SZNHJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 23 December 2011, and amended on 5 April 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 29 November 2011, which affirmed the decision of the Minister’s delegate, made on 16 October 2008, to refuse the grant of a protection visa to the applicant.
Background
The applicant is a citizen of Bangladesh (CB 1). He arrived in Australia on 11 July 2008 (CB 3). On 24 July 2008 he applied for a protection visa (CB 1 to CB 41 with annexures).
The applicant’s claims to protection were set out in a statement that accompanied that application. Namely that:
1)He had become involved in student politics in 1980. In 1982, as a result of that involvement and following a successful “military coup”, he was arrested by the police and held in custody for one month. During that time he was “tortured inhumanely” ([10] at CB 29).
2)The applicant continued to be involved in politics. Specifically, as an “active member” of the student wing of the Bangladesh National Party (“BNP”) (known as the “Jatiyatabadi Jubo Dal”) ([14] at CB 29).
3)In 1991 or 1992 the applicant joined the BNP. As a result of his involvement with that party, he became a “popular leader” in his local area ([12] at CB 30). The applicant often spoke out in public against the BNP’s opposition, the Awami League. Consequently, he became a “target” and was threatened on several occasions ([15] at CB 30 to CB 31). In addition, he had his business ransacked and extorted ([15] at CB 30 to CB 31 and [20] at CB 31) and was kidnapped and physically assaulted ([16] at CB 31). The applicant reported these various incidents to the police, but nothing was done.
4)As a result of these incidents, the applicant “organized a procession to protect against the misdeeds of the Awami League activists as well as the inactiveness of the police” ([21] at CB 32). As a result of that procession, on 14 May 2000, the applicant’s poultry farm was “burnt” by “Awami League goons”. The police refused to allow the applicant to file a complaint ([22] at CB 32).
5)On 20 May 2000, the applicant addressed a protest rally. In his speech he “… vehemently criticized about the nasty role of the police” and “… accused that police were protecting the Awami League goons” ([24] at CB 32). That evening, the applicant’s home was raided by the police. The applicant escaped, but his wife and children were “mistreated” ([25] at CB 32).
6)The following evening several “goons” visited the applicant’s home and threatened to burn him to death. As a result, his wife and children moved to his “in law’s house” and he “started [his] hiding life” ([26] at CB 34).
7)The applicant was subsequently informed that the Police and the Awami League “goons” were looking for him ([28] at CB 34). In addition, that the police wished to arrest him ([27] at CB 34).
8)In January 2002 the applicant was elected as “executive member of the Tangail district committee BNP”. He continued to be involved in politics and spent a year in the USA. He returned to Bangladesh in 2003 and started a poultry business.
9)On 11 January [2007] a caretaker government was established. That government “ruined the democratic situation in Bangladesh” ([22] at CB 34 to [23] at CB 35). A number of “plainclothes police forces” visited the applicant’s residence and told him “not to proceed further”. He was allowed to go in and out of Bangladesh and, after his wife was informed of “two cases against [him]”, he “managed to come to Australia” ([33] – [34] at CB 35).
The Delegate
On 29 August 2008, the applicant was invited to attend an interview with the delegate on 17 September 2008 (CB 44 to CB 45). By letter dated 15 September 2008, the applicant requested that that interview be postponed to allow him time to submit document before the hearing (CB 46). [Based on the documents in the Court Book, it is unclear whether this request for an adjournment was granted. The delegate’s decision record simply provides that “the applicant was interviewed” (CB 61.4).]
On 17 September 2008 the applicant appointed a “MD. Sinajul Haque”, of “M S Haque & Associates”, as his authorised recipient of correspondent for the purpose of the protection visa application (CB 47 to CB 49)
On 16 October 2008 the delegate decided to refuse the grant of a protection visa to the applicant (CB 51 to CB 62). The delegate found that the applicant had “… provided scant detail and no documentary evidence” to support his claims (CB 61.4).
The delegate accepted that the applicant may have had “low level” involvement with the BNP and that he may have been the victim of harassment by opposition parties. However, he found that the applicant’s claims had been “exaggerated”. In light of that, the absence of any objective evidence and the applicant’s two overseas trips from Bangladesh in 2008, the delegate was not satisfied that the level of harm the applicant claimed amounted to persecution (CB 61).
The Earlier Constituted Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision on 17 November 2008 (CB 64 to CB 68). He was invited to attend a hearing before the Tribunal (“the earlier constituted Tribunal”) on 14 January 2009 (CB 72 to CB 73). The applicant, as well as his migration agent, attended at that hearing (CB 81).
Numerous documents were provided by the applicant to the Tribunal at the hearing (CB 83 to CB 93). Relevantly, those included a letter from “Moniruzzaman Bulbul”, “General Secretary Bangladesh Nationalist Party”. That letter was dated 22 November 2008 and provided that the applicant was known to the author and had “… left the country to secure his life” (CB 89).
On 4 February 2009 that Tribunal decided that the applicant was not a person to whom Australia owed protection obligations and affirmed the delegate’s decision to refuse the grant of a protection visa to the applicant ([43] – [44] at CB 113).
For the purposes of the application presently before the Court, in particular ground two of the amended application, it is noted that that Tribunal member found that the applicant had been involved in politics in Bangladesh (see in particular at [34] at CB 101).
Judicial Review
That Tribunal’s decision was the subject of an application for judicial review. At first instance, the application was dismissed (SZNHJ v Minister for Immigration & Anor [2009] FMCA 1250). However, on appeal, the Tribunal’s decision was set aside, on 17 February 2010, by Logan J (SZNHJ v Minister for Immigration & Anor [2009] FMCA 1250). The matter was remitted to the Tribunal for “… hearing and determination in accordance with the law” (CB 114).
The Tribunal
The applicant was invited to attend a hearing before the Tribunal, the subject of the current review, on 5 May 2010 (CB 118 to CB 119). The applicant attended on that occasion and was assisted by an interpreter in the Bangla language (CB 138)
Prior to that hearing, by letter dated 20 April 2010, the applicant provided written submissions to the Tribunal (CB 120 to CB 123). The applicant expressed his reliance on his earlier statement, dated 24 July 2008, and made the following additional claims:
1)That “recently” his family members had “… discovered that the propaganda about false cases against me was not true”. Rather, the “RAB” wanted him to leave Bangladesh and “for this intention they made false allegations” (CB 120.5).
2)The police were still looking for him and wanted to arrest him (CB 121)
3)The applicant’s family had tried to obtain a copy of the allegation made against him, but the police were not “helping them”.
4)That the Bangladeshi government used s.54 of the “Special Powers Act” to harass opposition political activists. Further, that the government authorities arrest political activists and “later on the police put them in detention and attach their name to any existing criminal case” (CB 122).
Attached to that statement were several documents, including media reports and letters of reference (CB 121 to CB 137). Relevantly:
1)A copy of a letter, dated 10 April 2010, said to be from “Mr. Abul Kalam Azad Siddiky” (later referred to a “Siddiqui”), “Ex MP and Mirzapur Upazila President of Bangladesh Nationalist Party” (CB 126).
2)A copy of a letter, dated 17 April 2010, said to be from “Mr. Md Mosleh Uddin Arif”, “Joint Convenor of BNP Australia” (CB 127).
3)A copy of a letter, dated 18 April 2010, said to be from “Mr Sayed S. Kaysar Rahman”, “President of Bangladesh Poultry Farm Owners Association” (CB 128).
On 29 November 2011 the Tribunal decided to affirm the decision of the Minister’s delegate (CB 159). The applicant was notified of that decision on 30 November 2011 (CB 158), and provided with a copy of the Tribunal’s decision record which set out its findings and reasons ([108] at CB 181 to [135] at CB 188).
The Tribunal considered that “… there [were] good reasons for rejecting much of [the applicant’s] evidence on credibility grounds” ([111] at CB 182). Those reasons included:
1)The applicant had “… lied at the hearing before the first Tribunal” in relation to the issuing of a new passport to him by the Bangladesh High Commission ([111] – [112] at CB 182).
2)In his statement accompanying his application for a protection visa, the applicant had provided a “very detailed account” of events prior to 2002, however “almost no details” were provided in relation to subsequent events on which he came to rely before the Tribunal ([113] at CB 182).
3)The applicant had given inconsistent evidence as before the delegate, the “first” Tribunal and the “second” Tribunal as to when he was told that there was “a case against him” ([114] at CB 182 to [117] at CB 183).
4)The applicant’s evidence as to where he was when the police and the “RAB came to his home in 2008 [was] contradictory and confused” ([120] at CB 184).
Further, in light of country information before it, the Tribunal had difficulty in accepting that the applicant had to leave Bangladesh due to politically-motivated persecution by the police and the RAB in 2008 ([122] – [123] at CB 184).
The Tribunal found, based on country information available to it, that the applicant’s motivation in leaving Bangladesh was that his poultry business had been destroyed by bird flu. This was found to be the real reason for his coming to Australia ([130] – [131] at CB 186).
The Tribunal had regard to the letters provided by the applicant in support of his claims ([124] – [126] at CB 185). Further, the Tribunal considered the applicant’s request that it contact the authors of those letters “… if [it] had any suspicions” ([127] – [128] at CB 185). The Tribunal member accepted that those individuals signed the letters and, if contacted, would confirm what was provided in those letters ([128] at CB 185). However, having regard to country information which suggested that the issuing of letters containing false information was common in Bangladesh, and in light the concerns it expressed about the applicant’s evidence, the Tribunal placed little weight on the letters.
I light of the above, the Tribunal did “… not accept that the applicant [was] telling the truth about the events which he claims prompted him to leave Bangladesh in 2008” ([132] at CB 186) and comprehensively rejected his various claims to fear harm. While the Tribunal accepted that the applicant had participated in the BNP in Australia, it was not satisfied that the applicant had engaged in that conduct other than for the purpose of strengthening his protection applicant and, pursuant to s.91R(3) of the Act, it disregarded that conduct ([134] at CB 187).
Application to the Court
The grounds of the amended application are as follows:
“1. The Refugee Review Tribunal assessed my credibility without taking into account my involvement with the politics and without making any contact with the referees who provided me supporting letters.
Particulars:
A. The Tribunal assessed my credibility without taking into account my involvement with the politics and without making any contact with the referees who provided me supporting letters.
i) The Tribunal said that I consider that there are good reasons for rejecting much of his evidence on credibility grounds.
ii) I requested the Tribunal to contact with the referees to verify my political persecution, but the Tribunal commented that the information available to me indicates that it is common in Bangladesh for letters to be issued purporting to verify membership of political parties even if the information is incorrect.
2. The decision of the Refugee Review Tribunal was contradictory.
Particulars:
A. The decision between the first Tribunal’s decision and the second Tribunal’s decision was contradictory:
i) The first Tribunal accepted that I was involved with the BNP politics in Bangladesh. However the second Tribunal made a comment that:
I do not accept that his claims regarding his involvement in politics in Bangladesh are true.
3. The Refugee Review Tribunal failed to consider my fear of persecution under s91R of the Migration Act.
Particulars:
A. The Tribunal failed to consider my fear of persecution under s91R of the Migration Act, rather the Tribunal made the following comment that:
I am not satisfied that the applicant has engaged in his conduct in participating in the programmes and meeting of the BNP Australia otherwise than for the sole purpose of strengthening his claims to be a refugee.”
Before the Court
Before the Court, the applicant appeared in person and was assisted by an interpreter in the Bangla language. Mr A Markus appeared for the first respondent. The Court had before it the Court Book and written submissions filed by the applicant and on behalf of the Minister.
The Applicant’s Submissions
It is clear that the applicant either did not understand the nature of these proceedings, or chose to ignore the inconvenient fact that these proceedings are essentially concerned with whether the Tribunal made its decision according to the law. Not whether it made the “right” decision. Despite ensuring at the first Court date that the applicant had access to legal advice through his participation in the Court’s “RRT Legal Advice Scheme”, his submissions, or complaints, about the Tribunal’s decision were not, for the greater part (see further below), anything more than a challenge to the Tribunal’s findings of fact or a plea for merits review (Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 at 53-54 (“Abebe”); Minister for Immigration v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) and Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”) at 423). The degree of passion in his presentation did not alter that situation.
Beyond references to matters raised in the grounds of the amended application and his written submissions, the following may be noted about the applicant’s oral submissions at the hearing.
First, the applicant stated that he had been in contact with a former Minister of Parliament (“MP”) in Bangladesh (Mr Siddiqui) who told him that, if necessary, he could arrange for a former Prime Minister of Bangladesh to send a letter in support of his claims to have been actively involved in politics in that country. Presumably, the letter would have been in the same general vein as the other letters the applicant had provided to the delegate and the Tribunal.
It was not clear as to when this offer was made to the applicant. If during the conduct of the review, then there is no evidence before the Court that he told the Tribunal of the possibility of the production of any such letter. In any event, the applicant had ample time and opportunity to have provided such a letter to the Tribunal.
On balance, it appeared that this submission was put in context of the applicant’s request to the Court to “reconsider the [Tribunal’s] decision”. As I have indicated above, that remains a forlorn request for impermissible merits review.
Second, in his oral submissions the applicant derided the Tribunal with the comment that the Tribunal “… took nineteen months to think of the logic to prove me fake” and then “wrote an essay on how my papers were false”. The “delay” from the Tribunal’s hearing to decision was some eighteen months.
To the extent that the applicant’s complaint was some assertion that the Tribunal found the letters in support of his claims to be false, then this must be rejected as the Tribunal made no such finding. It accepted that the letters were authentic in terms of authorship, but gave them little weight for the reasons explained.
If this was a challenge to the Tribunal’s adverse credibility findings then this cannot, in the circumstances, succeed in revealing jurisdictional error. The Tribunal’s findings in that regard were findings of fact within jurisdiction and for which it gave cogent, and for that matter, comprehensive reasons (Durairajasingham).
I did however raise with the Minister’s solicitor whether the delay complained of by the applicant, although raised as an aside, could nonetheless be of concern in the sense explained by the High Court in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; 80 ALJR 367; 223 ALR 171 (“NAIS”)
(at [9] – [10] per Gleeson CJ, [37] per Gummow J, [171] – [172] per Callinan and Heydon JJ).
Ultimately, I agree with Mr Markus that the delay in this case does not serve to vitiate the Tribunal’s decision. Nor is it, in the circumstances, a failure to afford procedural fairness. First, the Tribunal’s adverse credibility findings were not based on any assessment, or observations, of the applicant’s demeanour or such like at the hearing. Second, nor, as Mr Markus submitted, was the Tribunal’s assessment based on questions of memory lapses or “simple” inconsistencies in his account. The Tribunal specifically said it discounted such matters as being understandable (see [120] at CB 184).
The Tribunal’s assessment arose from the substantive and obvious inconsistencies in the applicant’s claims and his implausible explanations for these. While the delay is, as was conceded, “regrettable”, I cannot see that it reveals error of the type explained in NAIS.
Before considering the applicant’s grounds, it is important to note that the Tribunal did explain how it discharged its obligations to consider the matter according to the law in light of the remittal of the Federal Court (see SZGUW v Minister for Immigration & Citizenship [2009] FCA 321 at [21] per Rares J and, in the Tribunal’s decision record, [3] at CB 160 and [124] at CB 185 to [129] to CB 186).
Ground One: The Submissions
Ground one asserts that the applicant requested the Tribunal to take oral evidence from three persons (Mr Rahman, Mr Bulbul and Mr Siddiqui). The complaint is that he was denied natural justice because the Tribunal relied on country information to the effect that people can be paid in Bangladesh to provide incorrect information in letters like those provided by the applicant and that the Tribunal did so without testing the authenticity of the letters (with reference to [127] – [128] at CB 185).
The applicant’s written submissions emphasised this and claimed that the Tribunal’s comment at [127] – [128] (at CB 185) was an assumption, and was made “…without testify its authenticity” and “… without testifying [his] political involvement and subsequent persecution”. In particular, the applicant referred to the Tribunal’s statement ([128] at CB 185) that:
“… it is common in Bangladesh for letters to be issued purporting to verify membership of political parties even if the information is incorrect. People can be paid to provide such letters or they can be paid to provide incorrect information because it is considered normal to provide incorrect information to a third party to help a fellow Bangladeshi to migrate to a rich country”
In response, the Minister submitted that the Tribunal considered the applicant’s claims to have been involved in politics. It simply chose to reject those claims. Further, that the Tribunal had considered the letters provided by the applicant in support of his claims, it simply afforded more weight to the inconsistencies in his evidence.
Further, it was the Minister’s position that the Tribunal was not required to contact the authors of the letters, despite the applicant requesting it do so. Rather, the Tribunal was required to consider that request. In the current case, it did just that, and ultimately decided not to contact the authors as it was (at [11] of the Minister’s submissions):
“… not satisfied that any contact with the writers would overcome its concerns regarding the applicant’s credibility and in light of country information … regarding document fraud in Bangladesh”
Finally, with reference to Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [26] per French CJ, Gummow, Hayne, Crennan and Bell JJ, SZMJM v Minister for Immigration & Citizenship [2010] FCA 309 and SZNYI v Minister for Immigration & Citizenship [201] FCA 221 at [43], the Minister submitted that, in the circumstances of this matter, the Tribunal was not obliged to make inquiries.
Ground One: Consideration
First, the applicant provided four letters in total in support of his claims (see [9] and [15] above). Those letters were ultimately before the Tribunal ([124] at CB 185). However, the submissions press the complaint as it relates to three: Mr Rahman, Mr Bulbul and Mr Siddiqui.
A number of complaints appear to emerge in relation to this ground when it is understood in light of the submissions made.
First, that the Tribunal assessed the applicant’s credibility adversely without taking into account his involvement with politics. This complaint lacks merit. The Tribunal plainly had regard to the applicant’s claims to have been involved in politics in Bangladesh. The Tribunal rejected those claims.
In that regard, it made findings which were reasonably open to it and for which it gave cogent and comprehensive reasons for not believing the applicant. This complaint does not rise about a challenge to the Tribunal’s fact finding. It seeks impermissible merits review (Wu Shan Liang).
Second, the complaint is that the Tribunal did not contact these “referees” to verify the applicant’s claims of political involvement.
I should note that in relation to Mr Arif, the Tribunal accepted, based on that letter, that the applicant had participated in BNP activities in Australia ([134] at CB 187 and see further at [70] – [74] below).
In relation to the other three, the applicant only nominated Mr Rahman as a potential witness in his “Response to Hearing Invitation” (CB 125). As such, the Tribunal’s obligation pursuant to s.426(2) and (3) of the Act to consider calling a witness, was only engaged with respect to Mr Rahman.
The Tribunal did engage in that consideration ([127] at CB 185 and see further below). It therefore complied with its statutory obligation as any such request from the applicant compels the Tribunal to have regard to the request. It does not require the Tribunal to obtain any evidence (s.426(3) of the Act).
In relation to Mr Rahman the Tribunal’s consideration was that the applicant subsequently told him at the hearing that Mr Rahman “was in Germany” and, given his absence, that the Tribunal could talk to his assistant ([127] at CB 185). The applicant did not say how this could be of assistance. Mr Rahman was therefore not available.
Mr Bulbul and Mr Siddiqui were not potential witnesses that fell within the application of s.426 of the Act. Nonetheless, the Tribunal did consider the applicant’s request in relation to those two individuals. While the Tribunal appeared to be diverted by the question of privacy if it were to telephone the witnesses in Bangladesh, I am satisfied, on balance, that the reason the Tribunal did not contact any of them was that it accepted what was written in the letters and, an inference can be drawn that, it proceeded on the basis that the three persons had authored, or at least signed, those letters.
That alone is the answer to the applicant’s complaint now that the Tribunal did not test the authenticity of the letters. The answer is it did not do so because it accepted that the letters were “authentic” in the sense that they were authored, or signed, by those whom the applicant said had provided the letters. Further, the Tribunal accepted that the contents of the letters would be confirmed by those persons if contacted.
In all those circumstance, it is difficult to see what further could be gleaned from the “witnesses”, even if they were all available and confidentiality could be maintained. The Tribunal plainly put that to the applicant at the hearing, in the context of country information on the common practice in Bangladesh. Any telephone call to any, or all, of those persons would have, at best for the applicant, simply confirmed the contents of the letters which the Tribunal accepted.
No denial of “natural justice”, whether at common law or within the statute (Div.4 of Pt.7 of the Act), is evident in these circumstances. The applicant plainly knew the Tribunal’s relevant concerns here.
Third, the question of the weight to be accorded to the letters is for the Tribunal. As the Minister submits, it was open to the Tribunal to give the letters lesser weight in light of its greater concerns about the applicant’s credibility and in light of country information available to it (Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50).
Fourth, in the circumstances, I cannot see that there is an “obvious inquiry” about a “critical fact” in issue that would have required the Tribunal to conduct further inquiry (including pursuant to s.427(1)(d) of the Act). For the reasons set out above, any such inquiry would have been an exercise in futility.
Ground one is not made out.
Ground Two: Submissions
The second ground of the amended application to the Court alleges a failure on the part of the Tribunal “to follow the procedural fairness”. That failure was said to be the result of an inconsistency in the decisions of the Tribunal and the earlier constituted Tribunal. That inconsistency was said to be that the “first” Tribunal accepted that the applicant was involved with the BNP in Bangladesh while the “second” Tribunal did not accept that he was involved with BNP politics in Bangladesh.
It was the applicant’s submission that, in circumstances where both “Tribunals” were required to use the same “policy and procedure” to assess his claims, the decisions were contradictory and therefore that the Tribunal was in error.
In response, the Minister submitted that different findings as between the differently constituted Tribunals were not revelatory of jurisdictional error.
Ground Two: Consideration
It is the case that proceedings before the Tribunal are inquisitorial (Abebe at [194] per Gummow and Hayne JJ and Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247 at [23] per Wilcox and Madgwick JJ) and require the member constituted for a particular review to reach the requisite level of satisfaction. Relevantly that the applicant meets the definition of “refugee” such that the visa must be granted (s.65 and s.36(2) of the Act and SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] – [5] and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73). In the conduct leading to the disposition of the review the Tribunal, as constituted, is required to make findings of fact including, if necessary, findings on credibility. In this exercise of its jurisdiction, the Tribunal has been described as the decision maker “par excellence” (Durairajasingham).
Is it the case that the earlier constituted Tribunal did accept that the applicant had been involved with the BNP in Bangladesh. The Tribunal did not. While, of course, consistency is a desired objective (Re Drake and Minister for Immigration & Ethnic Affairs (No.2) (1979) 2 ALD 634), the current case did not turn on any such application.
The Tribunal was unable to accept that the applicant was telling the truth. It gave comprehensive reasons for this. No jurisdictional error arises in these circumstances. Nor is the Tribunal bound by the findings of the earlier constituted Tribunal. Each member constituted for the purpose of the review must bring their own assessment to the matters before them (Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518; 196 ALR 385; 77 ALJR 786 at [16] per Gleeson CJ, [68] and [77] per Gummow and Hayne JJ and SZFYW v Minister for Immigration & Citizenship [2008] FCA 1259 at [10] per Flick J). To do otherwise would lay open charges of having been unduly influenced in the conduct of the review.
To the extent that in written submissions the applicant appears to assert that there was a breach of procedural fairness on the part of the Tribunal beyond the “inconsistency”, this also must be rejected. No breach of procedural fairness, either at common law or within Div.4 of Pt.7 of the Act, arises.
Whether it be with reference to the relevant principles at common law, or s.425 of the Act, the applicant has not put any evidence before the Court to challenge the Tribunal’s account of the hearing. The only evidence in this regard therefore remains the Tribunal account as contained in its decision record. That reveals that the Tribunal squarely put its concerns to the applicant. In particular, that his entire claims to be involved in politics were at issue. No breach of s.425 of the Act is evident in these circumstances (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; [2006] HCA 63; (2006) 81 ALJR 515). The applicant knew the case against him and was given the opportunity to respond.
Ground two is not made out.
Ground Three: Submissions
The third ground asserts that the Tribunal failed to consider the applicant’s “… fear of persecution under s91R”. That complaint was made with reference to the Tribunal’s finding at [134] (at CB 187) that it was
“… not satisfied that the applicant has engaged in his conduct in participating in the programmes and meetings of the BNP Australia otherwise than for the sole purpose of strengthening his claim to be a refugee.”
In his written submissions, the applicant further asserted that “… the Tribunal put its negative attitude towards my political activities in Australia where as a leader of Australian BNP certified my activities as a true BNP activist.”
In response, the Minister submitted that, in light of its finding that the applicant had engaged in BNP meetings in Australia only for the sole purpose of strengthening his claim to be a refugee, the Tribunal was required to disregard the applicant’s conduct pursuant to s.91R of the Act. No jurisdictional error was said to be revealed in the Tribunal’s reasoning in relation to that issue.
Ground Three: Consideration
I agree with the Minister. No error in relation to s.91R(3) of the Act is revealed (SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105).
As for the remainder of s.91R of the Act, the applicant’s complaint can only be seen as a challenge to the facts as found by the Tribunal and whether, on those facts, the applicant’s case rose to the level of “serious harm” as referred to in s.91R(1) and (2) of the Act. However, on what is before the court, no error is evident in that regard.
It may be that the applicant’s written submissions, with their reference to the Tribunal’s “negative attitude”, and as explained by the applicant before the Court, are some attempt to assert bias on the part of the Tribunal. Particularly in circumstances where the applicant complains that the Tribunal did not accept that he was politically involved and in circumstances where it gave little weight to his corroborative material.
Such a complaint, in the circumstances and as presented, cannot succeed. The allegation has been neither clearly made nor, on the evidence, is it capable of being proven (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).
Whatever other material may have been available to the applicant can only stay in the realm of being, as Mr Markus correctly described it, “entirely hypothetical”. No error is revealed. Ground three is not made out.
Additional Complaint
As identified by the Minister (at [15] – [16] of his written submissions), the applicant raised two additional complaints in his written submissions. They are as follows:
1)The Tribunal did not assess his claims as a whole.
2)The Tribunal did not asses the circumstances in Bangladesh at the time of its decision.
It was the Minister’s position that neither of those claims could be sustained in light of the Tribunal’s decision record. That is, that the decision record revealed that the Tribunal clearly considered all of the applicant’s claims and whether the applicant faced persecution in Bangladesh at the time of its decision. I agree with those submissions.
Conclusion
None of the grounds before the Court are revelatory of jurisdictional error on the part of the Tribunal. In those circumstances, the application should be dismissed. I will make an order accordingly.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 14 September 2012
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