SZNMT v Minister for Immigration
[2009] FMCA 778
•20 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNMT v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 778 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – allegation of bias not proved – s.424A of the Migration Act 1958 does not require notification pursuant to its terms to be effected prior to the Tribunal’s hearing – no duty on Tribunal pursuant to s.424A to provide applicant with a sound recording of departmental interview. |
| Migration Act 1958, ss.91R, 420, 424AA, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 Johnson v Johnson (2000) 201 CLR 488 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 SZEWL v Minister for Immigration & Citizenship [2009] FCA 209 Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 Minister for Immigration & Citizenship v Kumar (2009) 83 ALJR 539 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 Sun Zhan Qui v Minister for Immigration & Ethnic Affairs [1997] FCA 324 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 |
| Applicant: | SZNMT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 937 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 6 August 2009 |
| Date of Last Submission: | 6 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 20 August 2009 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr D. Godwin |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 937 of 2009
| SZNMT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Bangladesh. He claims to fear persecution in Bangladesh because of his Protestant faith. He initially claimed that his political activities resulted in his persecution but later claimed that he had converted to Presbyterianism while in Australia and now wishes to evangelise.
After his arrival in Australia on 14 July 2008, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 19 November 2008. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 18 of the Tribunal’s decision (Court Book (“CB”) pages 280 – 294). Relevant factual allegations are summarised below.
Protection visa application
In a statement attached to his protection visa application, the applicant claimed that he was targeted by the Awami League because of his political activities as a member of the BNP. He further claimed that he and his family were Roman Catholics and that, as a Christian, he suffered from discrimination and poor employment prospects.
Review application
According to his review application, the applicant’s nominated adviser and authorised recipient was a Rev. Dr. Brown, a Presbyterian minister. By letters dated 29 November 2008 and 18 December 2008, Dr. Brown submitted, amongst other things, that:
a)the applicant (along with others) was assisted in his protection visa application by a migration agent who was an expert at telling lies;
b)the applicant had a historic allegiance to the BNP but he was never closely involved in that party and later transferred his loyalty to the Awami League which gave him protection;
c)having been to Bangladesh, it was his observation that Christians suffered discrimination with respect to employment. Also, the general Islamic environment generated fear amongst Christians;
d)in 2007 the applicant arranged for a young Muslim girl to stay with his mother as a companion and, later, to attend a missionary school. However, the girl was forced to return to her family following complaints from them and from a madrassa. The applicant was worried about the possibility of revenge; and
e)the applicant was regularly attending the Presbyterian Church and lived in the church’s student accommodation.
At a hearing before the Tribunal on 25 February 2009, the applicant claimed that:
a)the information contained in his protection visa application and the information he gave at the departmental interview was largely false and had been arranged by his former migration agent;
b)he was born in the Noakhali district but moved to Dhaka in 1991 to attend Notre Dame College. In 1993, whilst still studying, he began working at the college and later become a college office assistant. Amongst other things, this involved examination supervision and coordination;
c)during this period he also ran a business managing a student boarding house in Arambagh. This business was subject to extortion demands from a man named Majid who, unbeknownst to the applicant at the time, was a disciple of a known terrorist. The applicant resisted the extortion attempt, “instead locking Majid up”. Since then he has received threats;
d)he is concerned about the high level of unemployment and consequent crime in Noakhali. One evening, he witnessed a murder directly outside his home and felt traumatised by this. He also experienced pressure from Noakhali-resident parents and students trying to secure study positions in Dhaka, so much so that he had to change his mobile number.
e)he was not involved in politics and was not directly involved in any party, although he (at least initially) and his family tended towards the BNP. However, he began favouring the Awami League in 1991 when the BNP government moved towards a closer relationship with Jamaat-e-Islami. Also, while at college, he become involved in a dispute with a BNP leader. He was particularly vulnerable because he was the only Christian at the college but the Awami League students protected him during this period. From 1996, when the Awami League came to power nationally, he did not feel safe in his home village of Noakhali as it was an identified BNP stronghold;
f)on 10 June 2006 he was attacked and robbed by two men whom he thought he recognised as being among a group of local Muslims who monitored his apartment building in Dhaka. The residents in the building were particularly vulnerable because they were Christians. When he told the college vice-principal of the attack, he was advised not to report the incident to the police as the vice-principal was concerned that the police would use this as an opportunity to seek favours from the college;
g)Islamic fundamentalists are intent on destroying Christianity in Bangladesh and Christians have to take precautions. For instance, he has told his wife to stop going to church because of security fears. He is particularly worried about his children’s future and is concerned about the security situation in Bangladesh;
h)he was a nominal Catholic in Bangladesh. At Notre Dame College there is much corruption, including amongst the priests and other clergy, and the Catholic Church practises hypocrisy; and
i)he has become a true Christian and now wishes to proselytise. He has not been baptised as yet but feels that his future lies in preaching. He has delivered speeches and encourages others to become Christian but cannot do this safely in Bangladesh. He will become the target of Islamic parties.
Dr. Brown gave evidence at the hearing about Christians in Bangladesh generally. He stated that there was discrimination at all levels, for instance in employment, but that Christians were “basically safe”. He distinguished between Christians who were passive and those who were active and emphasised that those who evangelised, challenged local norms or who stood up for the truth – for instance, over land or other disputes involving Muslims – could be at risk of persecution.
On 4 March 2009 the Tribunal received a post-hearing submission from the applicant who, for the main part, reiterated and clarified his oral evidence at the hearing. The applicant also added that the government in Bangladesh was powerless to protect Christians, that his Catholic friends now accused him of being a Protestant and that his former migration agent had threatened to report him to the department. Dr. Brown also provided a further statement of support stating, amongst other things, that the applicant would face ostracism from the Catholic community if he returned to Bangladesh.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal accepted that the applicant was genuinely concerned about his and his family’s prospects in Bangladesh generally, especially in light of the ongoing security problems, the high levels of corruption and the country’s uncertain political and economic outlook. However, the Tribunal found that these fears did not relate to persecution within the meaning of the Act;
b)the Tribunal also accepted that the applicant was a Christian but found that the mere fact of being a Christian in Dhaka did not establish a real chance of Convention-related persecution. Specifically, it found that the applicant did not experience discrimination amounting to persecution on the basis of his religion or any other Convention ground, noting that he was able to complete his education; worked at the college from 1993 through to his departure for Australia; had the skills and local standing which enabled him to engage in other non-church business activities; and he and his family lived and continue to live in what appeared to be a wealthy apartment building in Dhaka;
c)the Tribunal noted the applicant’s allegation to it that the bulk of his written and documentary evidence to the department was a fabrication at the instigation of his former migration agent. It drew no adverse inferences from the claims and evidence which he subsequently disowned. It noted that his review application essentially consisted of sur place claims relating to his recent conversion in Australia to evangelical Protestantism. However, as the applicant did not completely resile from his earlier claims and evidence, the Tribunal proceeded to consider those of his claims which arose from his experiences in Bangladesh;
d)the Tribunal did not accept that the applicant had any real involvement in politics in Bangladesh, noting that his evidence in this respect was generally unimpressive and appeared to be mainly reactive to the Tribunal’s questions. As such, the Tribunal did not accept that the applicant or his family had any past or ongoing interest in the BNP (or any other political opinion) or that the applicant would engage relevant political conduct if he returned to Bangladesh;
e)the Tribunal accepted, with some hesitation, that the applicant was attacked by two men on 10 June 2006, however, it did not accept that the applicant’s Christianity was the essential and significant reason for the harm, noting that:
i)his comments on this were vague and his suggestion that Muslims were targeting occupants of the apartment building because they were Christian amounted to mere conjecture; and
ii)if this was indeed an ongoing threat involving serious harm, it was not credible that the applicant would defer to the vice-principal’s wish of not contacting the police, particularly given that his wife and children continued to live in the building;
f)with respect to the applicant’s allegations concerning:
i)the ongoing threats and extortion attempt by a man named Majid;
ii)the pressures he received from students, parents and coaches as a college administrator;
iii)the murder outside his home; and
iv)his fear of reprisals from Muslims for having arranged for a local Muslim girl to go to a missionary school;
the Tribunal found his claims and evidence regarding these incidents confused and often vague. It accepted that the applicant may have based some of these claims on his own past experiences, however, found that the claims were exaggerated and so spuriously linked with his claimed Christianity as to be completely unreliable;
g)in light of these findings and taking into account the fact that the applicant continued to work and reside in Dhaka throughout this period, the Tribunal found that he did not suffer any Convention-related harm in Bangladesh;
h)given the applicant’s evidence regarding the high level of police protection during Christmas and Easter services and in light of independent reports that the new Awami League government is making positive signals towards the Christian community, the Tribunal found that the applicant would not be denied state protection on Convention-related grounds should the need arise in the future;
i)the Tribunal accepted that the applicant attended and is involved in the Presbyterian Church in Australia but was not satisfied that he engaged in such conduct otherwise than for the purposes of strengthening his claim to be a refugee. It therefore disregarded this conduct pursuant to s.91R(3) of the Act. In this respect, the Tribunal noted that:
i)it accepted that the applicant was a nominal Catholic in Bangladesh and may have been dissatisfied with Catholic doctrine and practice, however, his vehement rejection of the Catholic Church was contrived and overdone;
ii)he had not been baptised into the Presbyterian Church;
iii)there was no suggestion at any time before the Tribunal hearing that he had any interest in proselytising, let alone the requisite knowledge or skills to do so; and
iv)the Tribunal had a strong impression from the applicant’s generally changeable evidence and his late emphasis on evangelising that he tailored his claims and also his conduct to maximise his chance for permanent residency;
j)the Tribunal did not accept that the applicant had experienced persecution in Bangladesh for reasons of his Christianity, political opinion or for any other reason. It found that he would be able to pursue his religious interests were he to return to Bangladesh without having to refrain from or modify his conduct so as to avoid persecution; and
k)with respect to the applicant’s concern that it might be difficult for him to find work in Bangladesh, the Tribunal found that, although Christians experienced some discrimination in employment and other fields, there was no real chance – taking into account the applicant’s skills set – that he would suffer economic or any other harm amounting to persecution.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1) The Tribunal denied the applicant natural justice in determining the appeal in that the Tribunal was biased, or, in the alternative, there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision.
(2)The Refugee Review Tribunal (RRT) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicant’s protection visa application.
(3)The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.
(4)The second respondent (“the tribunal”) denied the applicant natural justice and procedural fairness pursuant to s.420 and s.425 of the Migration Act 1958.
(5)Following the hearing, pursuant to s.424A of the Migration Act, the Tribunal did not put some important information to the applicant to comment on which were the reasons or part of the reason of the decision.
(6)The applicant was deprived of the natural justice and procedural fairness. Because the decision maker did not afford the applicant whose interest has adversely affected by the decision as it did not given the opportunity to present his case. The Tribunal did not follow the hearing rule as based on Maxim which is clearly recognized as a denial of procedural fairness.
(7)The Tribunal exceeded its jurisdiction or constructively failed to exercise is jurisdiction by asking itself some wrong question in deciding the review application. The tribunal failed to maintain their procedural fairness.
(8)The tribunal was biased as it did not consider the claim with the neutral point of view as such the applicant was deprived of the natural justice.
(9) The tribunal in its decision made on Sunday, 22 March 2009, handed down on Tuesday, 24 March 2009, relied upon country information and some inconsistencies in the appellant’s claims set out in the protection visa application and the claims made before the Tribunal as part of the reason for affirming the decision under review. It failed to put those inconsistencies in oral or in writing to the appellant for comment. Please refer to NAZY v MIMIA [2005] FCA 744 (23 June 2005) and MIMIA v Al Shammy (2001) 110 FCR 27 (24 July 2001).
(10)The tribunal is bound to follow procedural fairness in reaching its decisions, and the failure to accord procedural fairness will lead to jurisdictional error, which is not protected from review by the privative clause (S157/2002 v Commonwealth of Australia [(2003) ALR 24: Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah [[2001’206 CLR 1]).
Ground 1: Tribunal was biased
Letter from informant and matters requiring notification under s.424A
The applicant made reference to the letter from Micle Robart which the Tribunal had received on 11 February 2009. He submitted that until the hearing on 25 February 2009 the Tribunal had not forwarded him a copy of that letter and, further, that it seemed to him that the Tribunal wanted to shock or surprise him with that information. In his additional written submissions filed in court on 6 August 2009, the applicant submitted that the Tribunal wanted to harass him or put him in an awkward situation at the hearing. He invited the Court to look at the transcript of the Tribunal hearing which, he submitted, indicated how seriously the raising of the informant’s letter interrupted the flow of the hearing and how nervous he was as a result.
The applicant also said that the Tribunal’s desire to give him an instant shock at the hearing indicated that it was prejudiced against his claim and biased in favour of affirming the delegate’s decision. The applicant submitted that its decision made it evident that the Tribunal was more interested in discrediting his claim than in properly considering his allegation to have a well-founded fear of persecution for a Convention reason. He submitted that the Tribunal was desperate to damage his credibility without asking or giving him an opportunity to respond to matters which, he alleged, should have been notified to him pursuant to s.424A of the Act. The most obvious of these alleged matters is the informant’s letter but the applicant raised a number of other matters, which are considered below in connection with his allegation of a denial of procedural fairness. Those matters are also taken into account in reaching a conclusion on this issue.
In considering this first aspect of the applicant’s bias allegation, it should initially be observed that no provision of the Act required the Tribunal to notify the applicant of the informant’s letter, or the information it contained, prior to the hearing. While a written notice satisfying the section’s notification requirements may be served prior to the hearing, the Tribunal may, if it prefers, orally notify an applicant of the relevant matters pursuant to s.424AA and do so at its hearing. The fact that the letter was disclosed when it was does not, without more, disclose bias on the part of the Tribunal. Further, far from disclosing this information to the applicant in such a way as to disturb him in the making of his case before it, the Tribunal’s decision record discloses that the applicant was advised of the letter from Micle Robart “towards the end of the hearing”, that is to say, after the applicant had largely given the evidence and made the submissions which he wished the Tribunal to have. This statement is confirmed by the transcript of the Tribunal’s hearing. The transcript also does not support a conclusion that the letter’s disclosure interrupted the flow of the hearing and made the applicant nervous. It came very much towards the end of the hearing after the applicant has presented his case. Moreover, the transcript does not suggest any nervousness on the applicant’s part arising out of the letter’s disclosure but does disclose that, after the applicant was advised of the letter, he made lengthy oral submissions.
In my view the facts do not support a conclusion that the letter and the information it contained was disclosed or notified to the applicant in such a way as to compromise the presentation of his case.
As to the other matters said to constitute breaches of the Tribunal’s obligations under s.424A, for the reasons given below in connection with the second ground pleaded in the application, no such breach occurred. There being no relevant breach of the Tribunal’s procedural fairness obligations, it cannot be concluded that the Tribunal’s failure to act in the way the applicant believes it should have acted provides a basis to conclude that the Tribunal was biased against him.
In any event, an allegation of actual bias is a serious allegation which must be distinctly made and clearly proven: Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 at 531 [69]. I do not conclude that the Tribunal’s conduct in connection with the informant’s letter or the other matters which the applicant alleges should have been notified to him pursuant to s.424A discloses that it approached the exercise of its jurisdiction with a state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments might have been presented: Minister for Immigration & Multicultural Affairs v Jia. Specifically, I reject the submission that the Tribunal’s conduct in connection with the informant’s letter shows that it was seeking to affirm the delegate’s decision. A consideration of the Tribunal’s decision record shows a careful and detailed exposition of the evidence and arguments which were placed before it, together with an equally careful and detailed consideration of that evidence and those arguments. A review of the transcript of the Tribunal’s hearing discloses a similarly detailed and attentive approach to the applicant’s evidence and submissions. I find no basis to conclude that the Tribunal embarked on the review having already determined that it would affirm the delegate’s decision.
Similarly, I do not conclude that the Tribunal’s conduct of the hearing, whether as summarised in its decision record or as set out in the transcript, goes close to justifying a finding that a fair-minded lay observer properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias might reasonably apprehend that the Tribunal might not have brought an impartial and unprejudiced mind to the resolution of the question it was required to decide: Johnson v Johnson (2000) 201 CLR 488; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425. In particular, I reject the submission that by disclosing the letter to him the Tribunal could be perceived to have been attempting to throw the applicant off his balance and to prevent him from presenting his claims as effectively as he was able.
Denial of interpreter services
The applicant also submitted that, in effect, the Tribunal prevented him from using an interpreter at its hearing, apparently with the intention of disadvantaging him in the presentation of his case. In his written submissions he stated that, in order to save time and make its job easier, the Tribunal insisted upon the applicant giving his evidence in English which is his second language. However, this assertion is not borne out by the transcript of the Tribunal hearing. For instance, the following passage appears at p.4 of the transcript:
[Member]: … We’re speaking through an interpreter today. Are you having any difficulty understanding him?
[Applicant]: No.
[Member]: That’s fine, so you understand my questions in English?
[Applicant]: Yes.
[Member]: But the interpreter’s fine?
[Applicant]: Yes.
[Member]: All right [sic]. If you think we’re having any communication problems, whether through the interpreter or you think that we’re not understanding each other’s comments, it’s important that you alert me to those immediately. …
The transcript does disclose that the Tribunal did tell the interpreter that he did not need to provide a translation during Dr. Brown’s evidence, although nothing similar occurred in respect of the applicant’s evidence. In connection with Dr. Brown’s evidence, the following appears at p.7 of the transcript:
[Member]: Okay. I need to stop you just there for a second. Are you following all of this Mr [Applicant]? Are you able to follow?
[Applicant]: Yeah
[Member]: Alright, in that case, you get a rest, Mr Interpreter.
[Interpreter]: No, no, no. I can –
[Member]: Yes. No, no, in that case you don’t need to be –
[Rev. Brown]: He doesn’t have to –
[Member]: – able to whisper, Interpreter, or sequential interpretation. You can have a rest while –
[Interpreter]: Okay.
[Member]: – Reverend Brown and I are speaking.
The applicant did allege that he misunderstood what the Tribunal meant when it said “follow” in the passage quoted above. However, he did not point to any part of Dr. Brown’s evidence which he had failed to understand nor to the significance of any such lack of understanding, had there been any. In any event, Dr. Brown’s evidence was not evidence given to the Tribunal by the applicant for the purposes of the review: SZEWL v Minister for Immigration & Citizenship [2009] FCA 209. Consequently, the relevant right which the applicant had was to be notified pursuant to s.424A of any information adverse to his claim which may have been contained in the evidence given by Dr. Brown. He has not alleged that there was any such information.
As to the applicant’s allegation that the Tribunal insisted that he give his oral evidence in English, the transcript provides no support for the proposition. It is apparent from the transcript that, although the applicant did speak English for much of the hearing, he was assisted by the interpreter throughout the course of the hearing. I do not accept that the Tribunal discouraged the applicant from making use of the interpreter, notwithstanding that the applicant’s English language skills appear to have been adequate to comprehend what was occurring, give evidence and make submissions for much of the course of the Tribunal’s hearing. Consequently, to the extent that the allegation of bias is based on the claim that the Tribunal discouraged the applicant from using an interpreter, it is not made out.
Generally
Further, to the extent that the applicant invites the Court to reach findings of actual or apprehended bias based on other aspects of the Tribunal’s review, the invitation must be rejected. A review of the Tribunal’s decision record and a consideration of the transcript of the hearing before the Tribunal disclose no conduct which meets the criteria for such findings.
Ground 2: Tribunal did not exercise proper procedure
The procedure to be adopted by the Tribunal when conducting a review is codified, to the extent of its terms, by div.4 of pt.7 of the Act. The applicant submitted that the Tribunal failed to meet its obligations under ss.424A and 425 of the Act, both of which sections are found in div.4 of pt.7.
Breaches of s.424A
Relevantly, s.424A provides:
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) …
(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.
The applicant raised a number of matters which he said the Tribunal should have notified to him pursuant to s.424A. He expressly or impliedly submitted that the Tribunal:
a)failed to notify him of his claim
to fear reprisals from Muslims for having arranged for a local Muslim girl who worked for his mother in Noakhali in 2007 to go to a missionary school;
b)failed to notify him of the contents of the informant’s letter prior to the hearing;
c)failed to provide him with a copy of the informant’s letter;
d)failed to ask him to comment on its rejection of what it described as the implied claim that he had promoted or defended the Presbyterian Church and its practices;
e)failed to raise with him its rejection of his “implied claim that he has also promoted or defended the church and its practices”; and
f)failed to notify him of its acceptance of the fact that Christians and minority religious communities in Bangladesh feel a general sense of unease about living in a majority Muslim country, a fear exacerbated by the increasing Islamic fundamentalism of recent times.
Section 424A(1) does not require the Tribunal to notify an applicant of information which the applicant him or herself has supplied to the Tribunal for the purposes of its review. Nor does s.424A require a notification pursuant to its terms to be effected at any particular time prior to the Tribunal reaching its decision. Further, the section only requires that the Tribunal notify “information”; it does not require the service of a particular document: Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 and Minister for Immigration & Citizenship v Kumar (2009) 83 ALJR 539. Finally, the section does not require the Tribunal to notify an applicant of its subjective appraisals, thought processes or determinations: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190. For these reasons, none of the matters raised by the applicant and set out in the preceding paragraph disclose a breach by the Tribunal of its obligations under s.424A of the Act.
In his written submissions filed on 31 July 2009 the applicant said:
A further possible ground relates to the non-compliance by the Tribunal with s.424A of the Migration Act 1958 in relation to that extract from the primary decision on which it relied.
Consideration of that part of the Tribunal’s decision under the heading “Findings and Reasons” demonstrates that the Tribunal did not rely upon the findings of the delegate when reaching its own decision on the review. The Tribunal had, in its rehearsal of the facts, set out summaries of the departmental interview and the delegate’s decision but this only served to give a more complete picture of the history of the visa application. The fact that the Tribunal summarised the delegate’s decision does not indicate that the Tribunal merely adopted what the delegate had said or that it was influenced by the delegate’s findings. Rather, as is apparent from the reasons already given, I conclude that the Tribunal conducted a conscientious and comprehensive review of the delegate’s decision and reached its own conclusion on the matter. The Tribunal had no s.424A notification obligations in respect of the delegate’s decision.
In those written submissions filed on 31 July 2009 the applicant also submitted that the Tribunal should have provided him with a copy of the sound recording of his interview with the Minister’s department. As observed above, the Tribunal had no obligation to provide the applicant with a copy of the informant’s letter and, for the same reasons, had no obligation pursuant to s.424A to provide a copy of the sound recording of the interview. As to the information which that recording might contain, the applicant has not identified what should have been notified to him. Indeed, it is not apparent that the Tribunal did rely on anything which the applicant may have said in that interview and which he did not repeat at its own hearing. The evidence given by the applicant to the Minister’s department, including at the departmental interview, was described by the applicant at the Tribunal hearing as being largely false. As it said at para.97 of its decision, the Tribunal drew no adverse inferences from the claims and evidence initially advanced by the applicant but which he disowned before the Tribunal.
In his written submissions filed on 31 July 2009 the applicant also submitted that the Tribunal should, after the hearing, have put adverse “issues” to him for his comments. This allegation implies that, at some point after the Tribunal hearing commenced, it came into possession of information which s.424A(1) obliged it to notify to the applicant. The applicant has not identified what that information was. Apart from the evidence of Dr. Brown, the only fresh information which came into the Tribunal’s possession after the commencement of its hearing was that supplied by the applicant himself and possibly independent country information which the Tribunal located. Information of that sort falls within the s.424A(3) exceptions to the operation of s.424A(1) and therefore need not be notified under the section. As to what Dr. Brown told the Tribunal at its hearing, it cannot be said that any aspect of the evidence given by that gentleman and cited by the Tribunal could be classified as adverse to the applicant’s claim that, were he to return to Bangladesh, he would be a proselytising Presbyterian on which account he had a fear of persecution. Consequently, the Tribunal had no notification obligations under s.424A(1) following the conclusion of its hearing.
Breach of s.425
As to s.425, the applicant submitted that his command of English was not as strong as it might have appeared to the Tribunal to have been. He said that it was clearly evident from the transcript of the Tribunal hearing that on many occasions he did not understand the true meaning of the questions put to him by the Tribunal which, on occasion, led him to make unresponsive replies. He submitted that he would have been better using his first language and having it interpreted by the interpreter who was readily available.
For the reasons already expressed, I do not conclude that the Tribunal prevented the applicant from utilising the services of the interpreter who was present at the hearing. Nor does the evidence support a conclusion that the interpreter provided by the Tribunal was of such a poor quality that the applicant was effectively prevented from giving evidence at the Tribunal hearing or that any errors which may have been made by the interpreter were material to conclusions the Tribunal drew which were adverse to the applicant: Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [17] and [18].
For these reasons, I do not conclude that any breach of the Tribunal’s obligations under s.425 of the Act has been demonstrated.
Ground 3: Tribunal did not bring an impartial mind to the review
This allegation is not made out for the reasons set out in relation to the first ground pleaded in the application.
Ground 4: Tribunal breached ss.420 and 425
To the extent that this ground refers to s.425, the issues it raises have been dealt with above in connection with the second ground pleaded in the application. As to s.420, that section relevantly provides:
420 Refugee Review Tribunal’s way of operating
(1) …
(2) The Tribunal, in reviewing a decision:
(a)…
(b) must act according to substantial justice and the merits of the case.
Section 420(2)(b) imposes no procedural requirements on the Tribunal: Sun Zhan Qui v Minister for Immigration & Ethnic Affairs [1997] FCA 324; Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611. In Eshetu’s case, Gleeson CJ and McHugh J said:
The relationship, or lack of it, between ss 420 and 476 was correctly explained by Lindgren J at first instance in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs. The history of legislative provisions similar to s 420 was examined in Qantas Airways Ltd v Gubbins. They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. … (at 628 [49])
If s.420(2)(b) has no procedural role then the only alternative purpose it could serve would be as the basis of an allegation that the Tribunal failed to act in accordance with the merits of the case. However, it is not open to the Court to undertake a review of the merits of the visa application and s.420(2)(b) does not provide the Court with such a power, particularly in light of s.474 which, amongst other things, operates to exclude the Court from reviewing the merits of visa applications.
Ground 5: Tribunal breached s.424A
This allegation is not made out for the reasons set out in relation to the second ground pleaded in the application.
Ground 6: Tribunal denied the applicant an opportunity to present his case
To the extent that this allegation relates to the applicant’s claim that the Tribunal prevented him from using the interpreter who was present at the hearing, the allegation is not made out for the reasons given in respect of the first ground of the application. To the extent that the allegation is a broader one, it is necessary to observe that the applicant pointed to no part of the transcript or the Tribunal’s decision record which would support a conclusion that the Tribunal acted in the way alleged. Nor does the transcript suggest that the applicant was in fact disabled or prevented from making his case. For these reasons, this ground is not made out.
Ground 7: Tribunal asked the wrong question
In his written submissions filed on 31 July 2009 the applicant submitted that the Tribunal’s conclusion was based on a misconstruction of the law and its failure to be satisfied that the applicant met the criteria for the grant of a protection visa was a constructive failure to exercise jurisdiction. The Tribunal’s discussion of the relevant law at the second, third and fourth pages of its decision record discloses that it had correctly understood the tests which it was required to apply in order to discharge its review function. That part of its decision record under the heading “Findings and Reasons” demonstrates that the Tribunal correctly applied the law against which it was required to test the applicant’s review application. The applicant’s submissions to the contrary are rejected.
Ground 8: Tribunal was biased
This allegation is not made out for the reasons set out in relation to the first ground pleaded in the application.
Ground 9: Tribunal breached s.424A by not putting inconsistencies to the applicant
This allegation is not made out for the reasons set out in relation to the second ground pleaded in the application.
Ground 10: Denial of procedural fairness
This allegation is not made out for the reasons set out in relation to the second ground pleaded in the application.
Other grounds
In his written submissions filed on 31 July 2009 the applicant submitted that the Tribunal had overlooked the question of “internal relocation”. However, the Tribunal would have only been required to consider the possibility of the applicant relocating within Bangladesh if it had concluded that he had a well-founded fear of persecution for a Convention reason in Dhaka or another specified location in Bangladesh. As the Tribunal concluded that he did not have such a fear, it was not called upon to consider whether the applicant might be able to avoid the persecution he allegedly feared by moving to live somewhere else in Bangladesh.
In his written submissions filed on 31 July 2009 the applicant also submitted that there was no evidence to support the Tribunal’s finding that the applicant, as a member of a religious minority, would not be harmed in the future, given that it had acknowledged that Christians and minority religious communities in Bangladesh feel a general sense of unease about living in a majority Muslim country and that increasing Islamic fundamentalism in recent years has added to these concerns (CB 300-301). However, this allegation misconstrues the Tribunal’s conclusion. At para.114 of its decision it said:
The Tribunal finds that there is no real chance of the applicant facing any Convention-related harm let alone persecution in Dhaka, for religious or any other reasons. While the applicant echoed the extreme views of some Islamic fundamentalists, that they wish to eradicate all minorities, the Tribunal finds that these assertions do not establish a well-founded fear of persecution.
Contrary to the applicant’s allegation, the Tribunal did not say that he would not be harmed in the future by opponents. What it did find was that there was no real chance of that harm. But in any event, the finding which the Tribunal reached was not unsupported by evidence. Consequently, this allegation is not made out.
In his written submissions filed on 31 July 2009 the applicant also submitted that the Tribunal did not have a fresh look at his claim and, in essence, did not perform the review which was required of it. However, it is clear that the Tribunal undertook a proper examination of the applicant’s claim. It comprehensively set out the evidence which was before it and performed a detailed examination of that evidence and the arguments advanced by the applicant. It undertook a similarly detailed consideration of that evidence and those arguments for the purpose of making findings of fact and reaching its ultimate conclusion. For these reasons, the submission must be rejected.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application must be dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 20 August 2009
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