SZOEV v Minister for Immigration
[2010] FMCA 407
•10 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOEV & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 407 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Tribunal Member conducted the hearing in a manner that was biased, rude or unfair – whether the Refugee Review Tribunal complied with s.424A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal complied with s.424AA of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal complied with s.425 of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal properly applied s.91S of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 91S; 379G; 424AA; 424A; 424A(1); 425; 425A; 474; pt.8 div.2 |
| Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Abebe v Commonwealth of Australia (1999) 162 ALR 1 |
| Applicants: | SZOEV & ANOR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 467 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 31 May 2010 |
| Date of Last Submission: | 31 May 2010 |
| Delivered at: | Sydney |
| Delivered on: | 10 June 2010 |
REPRESENTATION
| Applicant appeared on his own behalf |
| Counsel for the Respondent: | Ms B. Nolan |
| Solicitors for the Respondent: | Mr G. Johnson. DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 467 of 2010
| SZOEV & ANOR |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 5 February 2010 and handed down the same day.
The applicant claims to be a citizen of Bangladesh and of Hindu faith (“the Applicant”).
The Applicant arrived in Australia with his son, the second applicant, on 24 April 2009 having departed legally from Zia International Airport on a passport issued in his own name and a UB Subclass 675 Visitor visa issued on 9 March 2009.
On 5 June 2009, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act. The Applicant’s son lodged an application as a member of the Applicant’s family unit and made no independent claims of his own. The son was born on 11 September 1986.
On 3 September 2009, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s and his son’s applications for protection visas.
On 30 September 2009, the Applicant and his son lodged applications for review of the Delegate’s decision by the Refugee Review Tribunal.
On 5 February 2010, the Tribunal affirmed the decision of the Delegate not to grant the Applicant and his son protection visas.
On 5 March 2010, the Applicant and his son filed applications in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The Applicant provided a statement in support of his protection visa application in which he stated that he feared persecution by “mainstream fanatic Muslims in Bangladesh”. He claimed his father was “one of the Hindu leaders” during the Sheikh Mujibur Rahman government following the independence of Bangladesh in 1971 and again during the government of President Ziaur Rahman from 1979 until 1981.
The Applicant claimed that in 1986 he “joined the BNP and became one of its leaders”. He claimed that in 1992 he was elected an executive member of the Bangladesh Nationalist Party (“the BNP”).
The Applicant claimed he was politically active in the lead up to the 1996 election which was won in the Applicant’s area by the BNP. However, he noted the majority of parliamentary seats were won by the Awami League who then “became revengeful towards the leaders and activists of the BNP”.
The Applicant claimed that:
a)On 14 June 1996, his house was attacked and ransacked. He claimed he never succeeded in securing police assistance for this crime despite organising a protest at the police station.
b)On 20 February 1997, a procession the Applicant was leading was charged by police with batons, injuring the Applicant and others.
c)He was threatened on a number of occasions by supporters of the Awami League and told to leave the country or “they would forcefully make me Muslim”.
d)On 15 June 1997, the Applicant’s eldest son was kidnapped and the kidnappers demanded money, that the Applicant convert to Islam and, that the Applicant leave the country. He claimed that after the kidnappers were paid money his son was found “jerking and crying…covered in blood” and forcefully circumcised “without medical support”.
The Applicant claimed he reduced his political involvement for a while but in 1999 he was elected joint secretary of the Tongibari Thana BNP. In the next election the BNP came to power.
On 28 December 2008, the Awami League came to power. The Applicant claimed that on 30 December 2008 his house was again attacked and ransacked and his younger brother was beaten.
The Applicant claimed he arranged an Australian visa for himself and his son in March 2009 but was prevented from leaving by his mother’s heart disease. He claimed that whilst he was in Bangladesh a false case was filed against him by local Awami League activists.
The Applicant claimed he paid money “to easily pass the airport authorities and AU$60,000 for his and his son’s visas”.
The Delegate’s decision
The Applicant’s claims were summarised by the Delegate as follows:
“The applicant fears he will be persecuted by Awami League political activists and supporters because of his past membership of and leadership activities on behalf of the BNP. He also fears persecution because he is part of the Hindu minority community of Bangladesh who face serious discrimination and persecution at the hands of fanatic Muslims and have no adequate recourse to obtain adequate state protection.”
The Applicant failed to attend an interview with the Delegate, despite having been invited to do so. The Tribunal found that the Applicant’s claims relating to his political opinions and activities, as well as being a member of the minority Hindu religion in Bangladesh, were largely “general and unsubstantiated”. The Delegate was unable to be satisfied about the veracity of the claims.
On 3 September 2009, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Tribunal’s review and decision
On 14 October 2009, the Tribunal wrote to the Applicant and his son informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant and his son to attend a hearing on 23 November 2009 to give oral evidence and present arguments.
On 18 November 2009, the Applicant’s migration agent sent further documents in support of the Applicant’s review application stating that the documents “demonstrated that the applicant was a leader of the BNP and he was a businessman in Bangladesh.”
On 23 November 2009, the Applicant, his son and their migration agent all attended the Tribunal hearing. Both the Applicant and his son gave evidence at the hearing.
On 14 December 2009, the migration agent sent further documents with the following submission:
“These documents have demonstrated oppression towards the Hindu minority in Bangladesh. The main applicant and his son from Hindu minorities are subject to oppression from the mainstream Muslim community. Secondly the main applicant’s son has (sic) treated by many medical institutions or individual (sic).”
The Applicant’s migration agent also provided post-hearing submissions in a letter dated 19 June 2009. The letter has a fax receipt date of 7 December 2009. The submission did no more than repeat the Applicant’s original claims in support of his protection visa application. The Tribunal found that this submission did “nothing to help reconcile discrepancies in the applicant’s claims about when he went from being an ordinary member of the BNP to being some kind of leader.” The submission concluded by stating that the Applicant was a leader and activist in the BNP targeted by political opponents who now ran Bangladesh. The statement also included a number of medical reports in respect of the son.
On 12 January 2010, the Tribunal wrote to the Applicant and his son identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting them to comment upon it by 27 January 2010 (“the s.424A Letter”).
Following the hearing, the Applicant’s migration agent wrote to the Tribunal on 25 January 2010 seeking a transcript of the hearing and more time to respond to the s.424A Letter. By letter dated 27 January 2010, the Tribunal refused the request for an extension but agreed to consider any material submitted prior to 3 February 2010.
On 1 February 2010, the Applicant’s migration agent responded to the s.424A Letter.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in her written submissions as follows:
“10. The Tribunal accepted that the Applicant and his son were both nationals of Bangladesh.
11. The Tribunal considered whether or not the Applicants were disadvantaged to any significant degree by their lack of education, nervousness or the effect of any trauma or faded memory (see [165]) and did not accept that they were. The Tribunal found that the complaints about its approach to the Applicant's claims were unfounded in that the Tribunal conducted the hearing with an open mind (see [166]-[167]).
Findings in Relation to the Applicant before this Court
12. While the Applicant did not expressly claim to fear persecution for reasons of being a businessman, the Tribunal considered the issue as a claim or an implied claim going to his purported membership of a particular social group. The Tribunal was not satisfied that the Applicant faced any real chance of persecution for being a businessman and was not satisfied his status contributed to his chance of persecution (see [172]).
13. The Tribunal found that the Applicant's remaining family in Bangladesh lived significantly stable lives and this was at odds with the Applicant's persecution claims, in the absence of the evidence to the contrary (see [175]).
14. The Tribunal found the Applicant's claims were inconsistent and lacked credibility (see [176]). Accordingly, the Tribunal did not accept the Applicant was to any significant extent involved in the BNP (see [188]). In so finding the Tribunal found:-
(a) the Applicant's own evidence about his life in the BNP was inconsistent and embellished (see [177]), due to varying dates about when he became a member, a leader and the joint secretary of the BNP (see [178]) and inconsistencies about instances of violence suffered in the course of his career with the BNP (see [179]);
(b) the letter from the purported local Thana president was not genuine, as it contained unreliable facts, did not make any reference to the Applicant's claimed fears and troubles, the Applicant's explanations about how the letter came to contain the information were inconsistent, and the Applicant himself suggested the letter might not be reliable (see [181]-[185]);
(c) the Applicant's claims about having joined the BNP were inconsistent and not supported by any contemporaneous evidence of ongoing official involvement (see [186]-[187]);
(d) the Tribunal noted the Applicant's son's references to the Applicant's BNP status was not corroborative of the Applicant's claims as the Applicant was the source of his witness's information (see [187]).
15. In relation to the Applicant's claims about the Awami League persecuting the Applicant because he was Hindi, the Tribunal did not accept the Applicant was hiding from his political opponents in 2009, that he planned to travel to India for protection, or that the Awami League was pursuing the Applicant either for political or religious protection, or that the Awami League was pursuing the Applicant either for political or religious reasons (see [189]-[199]). The Tribunal found that the evidence was inconsistent and lacked credibility. The Tribunal also made the following three observations:
(a) the claim did not sit with independent country information about the relationship between the Awami League overall and the Hindu community in Bangladesh (see [189]);
(b) the Applicant had already been found to be an unreliable witness due to false and inconsistent evidence about his BNP status (see [190]);
(c) the Applicant's claims about his BNP status and the Awami League targeting him in relation to his political opinion cast doubt on the credibility of his claims about the Awami League targeting him in relation to religion (see [191]).
16. The Tribunal did not accept that the Awami League launched a false case against the Applicant as the Tribunal found the Applicant's evidence inconsistent and unreliable (see [200]-[203]).
17. As the Tribunal did not accept that the Applicant was involved with the BNP, or that any members or supporters of the Awami League regarded the Applicant as a political enemy, and the Tribunal found that Applicant's and his son's evidence about his son's kidnapping in 1997 to lack credibility and logicality, the Tribunal rejected all the claims relating to the kidnapping (see [204]-[222], [228]-[231] and [233]). The Tribunal further found that the medical reports submitted in relation to the son's circumcision and urinary tract infection did not support the kidnapping claims (see [223]-[227]). The Tribunal was not satisfied that the Applicant went on to behave in or after 1997 in a way that would reasonably have been expected of a person affected by these events (see [232]).
18. The Tribunal did not accept the credibility of the Applicant's claims about harm from the Awami League for reason of his religion, political opinion, possession of land, or for any other reasons (see [234]-[235]). Accordingly, the Tribunal was not satisfied that the Applicant had a well founded fear of persecution and found that he was not a refugee (see [236]).”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Bengali interpreter.
On 25 March 2010, the Applicant attended a directions hearing before me and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit.
At the directions hearing, the Applicant was referred to the Court’s legal advice scheme for free legal advice. The Applicant has participated in the Court’s legal advice scheme and received advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents, headed in his own language.
At the commencement of the hearing, by consent, the Applicant was granted leave to rely on grounds contained in an amended application, filed on 21 May 2010. The Applicant confirmed that his son’s claims were entirely dependent on his claims, despite the fact that the Tribunal gave some consideration to whether or not the son had any independent claims. The Applicant told the Court that he appeared on behalf of himself and his son. His son did not attend the hearing before this Court.
The grounds of the amended are as follows:
“1. The Second Respondent made jurisdictional errors in deciding the fate of the application, particularly the second respondent was biased in assessing the case.
2. The Second Respondent made jurisdictional error in relation to the construction of the case and the behave (sic) of the second respondent was so rude in the hearing it was against the procedure of the determining the refugee in Australia.
3. The Second Respondent made jurisdictional error in that it failed to comply with section 424A and/or section 424AA of the Migration Act 1958 in respect of evidence given by each Applicant.
4. The Second Respondent made jurisdictional error in that its treatment of the Applicants at hearing that was such a fair-minded person properly informed as to the nature of the procedings (sic), the matters in issue and the conduct of the Second Respondent might reasonably apprehend that the Second Respondent might not bring an impertial (sic) mind to the resolution of the question to be decided.
5. The Second Respondent made jurisdictional error in that it does not sufficiantly (sic) advice (sic) the applicant of the issue advising in relation to the decision on review contrary to section 425 of the Migration Act 1958.
6. The Second Respondent made jurisdictional error as to the scope and effect of section 91S of the Migration Act 1958.”
In support of the grounds of his application, the Applicant sought to tender an unverified and incomplete transcript of the Tribunal hearing. The transcript was incomplete in that it was missing page 3 and pages 5 to 10 of 38. The Applicant also tendered three discs of the Tribunal hearing in support of his allegations of bias and rudeness by the Tribunal Member. Both the transcript and discs were admitted into evidence by consent.
Grounds 1, 2 and 4
The complaints in Grounds 1, 2 and 4 appear to allege bias, rudeness and unfairness on the part of the Tribunal Member having regard to the way in which the hearing was conducted. I understand that the Applicant’s tender of the recordings of the Tribunal hearing and a part transcript were tendered in support of those allegations.
The Applicant was unable to identify any particular part of the transcript or the recordings upon which he relied in support of his allegations.
The Court asked the Applicant what it was about the way in which the Tribunal Member conducted the hearing that caused the Applicant to allege that the Tribunal Member was biased and “so rude in the hearing it was against the procedure of the determining the refugee in Australia”. The Applicant answered that it was the Tribunal Member’s attitude, behaviour and language. I asked the Applicant what he meant by those general terms. The Applicant said that the Tribunal Member shouted at him again and again, was staring and rolled his eyes at him again and again, shouted at him when he coughed during his son’s evidence, shouted at him when he made mistakes, and twisted his words. The Applicant was unable to give any further particulars in respect of these allegations.
Disc 1 of the Tribunal hearing was played in open Court. The Court invited the Applicant to indicate at any time during the playing of Disc 1 any matter about which he had particular concern. At no stage, during the playing of Disc 1, did the Applicant seek to identify any particular part of Disc 1 as supporting his allegations. At one stage, the Tribunal Member spoke in a mildly louder voice. It appeared from the recording that the Tribunal Member was doing no more than trying to complete a question without interruption. The question was otherwise delivered in a nonaggressive and clear fashion. However, it was the first time the Tribunal Member’s voice had raised in volume. At this point, I stopped the recording and asked the Applicant if anything he had heard so far supported his allegations. The Applicant responded, yes, and said that it was the continued loudness of the Tribunal Member’s voice that caused him to feel intimidated. Despite being invited, the Applicant made no other complaint about the Tribunal Member’s behaviour or conduct at the hearing.
At the end of Disc 1 (page 18 of 38 of the transcript), the Applicant informed the Court that the Tribunal hearing continued in the same fashion and that the examples of the Tribunal Member’s behaviour as reflected in Disc 1 were no different in Discs 2 and 3. Nevertheless, the Court endeavoured to play Disc 2. However neither the Applicant’s copy of Disc 2, nor the First Respondent’s, was able to be listened to. I confirmed with the Applicant that there was nothing further in Disc 2 or Disc 3 of the hearing that was in any way different from the manner in which the Tribunal Member had conducted the hearing or spoken to him in Disc 1. Again, the Applicant confirmed to the Court that his main complaint was that the Tribunal spoke to him in a loud voice continuously which caused him to feel intimidated. The Applicant again confirmed that Disc 1 exemplified the manner in which the Tribunal hearing was conducted and the tone and volume of the Tribunal Member’s voice.
The Applicant did not wish the Court to play Discs 2 or 3 because the Applicant said that they did not contain any further matter about which he wished to complain, other than those matters already the subject of complaint in Disc 1.
The Applicant did not press his complaint that the Tribunal Member had shouted at him when he coughed during his son’s evidence or shouted at him when he made mistakes. Certainly, neither Disc 1, nor the incomplete transcript supported such allegations.
Below is a summary of the exchanges between the Applicant and the Tribunal Member as I found to be disclosed in Disc 1.
a)The Tribunal Member commenced the hearing by explaining the process to the Applicant, including that it was part of his role to test the Applicant’s evidence. The Tribunal Member also confirmed that the interpreter and the Applicant were able to understand each other and said that the Applicant’s migration agent, who was present at the hearing, could suggest questions for the Tribunal to ask. The Tribunal Member invited the Applicant to tell it what he wished to talk about. The Tribunal Member also informed the Applicant that he would be listening carefully to how much background the Applicant added to his answers.
b)The Tribunal Member then explored the Applicant’s claims with him, including putting to the Applicant matters of concern that it had about his evidence. In particular, the Tribunal put to the Applicant the inconsistent evidence he gave about when he stopped being joint secretary with the BNP and his reasons for doing so. The Tribunal Member made clear to the Applicant the nature of the inconsistent evidence and the Applicant answered responsively.
c)The Tribunal Member also explored with the Applicant a letter, dated 6 September 2009, that purported to be from the Thana President of the BNP. The letter was brief and stated no more than that the Applicant was personally known to Thana President and that the Applicant was the “Honourable Member of Bangladesh Nationalist Party of Tongibari Thana branch”. The letter went on to state that the Applicant had maintained those responsibilities from 1986 to 2007.
d)The Tribunal Member explored with the Applicant in some detail whether or not the Thana President knew about the Applicant’s claims. The Applicant said that the Thana President knew that his son was kidnapped and forcibly circumcised, and that the day after the December 2009 election, people came to the Applicant’s house and destroyed it. The Tribunal Member then explored with the Applicant its concerns that the Thana President’s letter made no reference at all to any of the difficulties the Applicant claimed to have faced in Bangladesh and that its contents gave no support to the Applicant’s Convention claims. The Applicant said it was because he had not asked the Thana President to say anything about those matters. The Tribunal Member made clear to the Applicant that it found it difficult to comprehend why he would not ask the Thana President to support his case. The Tribunal Member continued to explore those concerns with the Applicant and give him an opportunity to say whatever he wished in response.
e)Ultimately, the Tribunal said to the Applicant that it was not finding his responses “very persuasive at the moment. I find that you are a little bit all over the place and you’re making excuses for these people.” The Tribunal Member went on to say that it surprised him that the Thana President did not volunteer the information that the Applicant said he knew about his claims or that the Applicant had not asked him to do so. The Applicant then said that maybe the Thana President did not remember what he had been told by the Applicant and that the Thana President’s “brain is out of order”.
Disc 1 ended shortly thereafter, being the bottom of page 18 of 38 of the transcript.
The tone and volume of the Tribunal Member’s voice and the content and manner in which questions were asked by the Tribunal Member, as reflected in Disc 1, do not support the Applicant’s allegations in Grounds 1, 2 and 4. Further, the Applicant’s migration agent was present throughout the hearing. The Applicant has not provided any evidence from the migration agent in support of his allegations about the Tribunal Member’s conduct of the hearing.
Disc 1 does not suggest in any way that the Tribunal Member was rude, overbearing, intimidating or shouting. The Tribunal Member did not have a soft voice. However, the recording does not suggest that the Tribunal Member was using an excessively loud voice. The tone and volume of the Tribunal Member’s voice was nonthreatening, nonaggressive, moderate and carefully measured.
The transcript made clear that the questions were often short and were otherwise relevant and, for the most part, were clearly put. The Applicant’s answers made clear that he understood the questions. The exchanges that the Tribunal Member had with the Applicant as disclosed in Disc 1, reveal that the Applicant was not consistent in the evidence he gave. The questions and concerns put to the Applicant by the Tribunal Member about his evidence were entirely appropriate and ones which justified its concerns, having regard to the evidence and information before it.
I reject entirely the Applicant’s allegation that the Tribunal Member shouted at him again and again or that the Tribunal Member twisted his words. In circumstances where the Applicant confirmed to the Court on several occasions that Discs 2 and 3 were in the same vein, and did not contain any complaints different to those that the Applicant had in respect of Disc 1, the Applicant’s allegations that the behaviour of the Tribunal Member and the treatment of the Applicant was biased, rude or unfair, are not made out.
A fair reading of the Tribunal’s decision record, the transcript and listening to Disc 1 of the Tribunal hearing do not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision record, the transcript and a fair listening of Disc 1 of the Tribunal hearing do not suggest that the Tribunal approached its task other than open with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
Accordingly, the allegation of bias or apprehended bias is rejected.
Further oral complaints
The Applicant alleged orally for the first time at the hearing that the Tribunal Member stared at him continuously and rolled his eyes. I explained to the Applicant that those assertions were a matter for evidence and that he had not filed any evidence in support of his amended application, despite having been directed to do so. I explained to the Applicant that if he wished the Court to give any weight to those assertions he would need to seek leave of the Court to give oral evidence about those matters. I explained that if leave was granted he would be required to give that evidence on oath and that the First Respondent’s counsel may wish to ask him questions about his evidence. The Applicant declined to seek leave of the Court to give any evidence in the nature of the assertions he had made or in respect of any other matter.
In the circumstances, there is no evidence before the Court to support the Applicant’s allegations that the Tribunal member starred at him continuously and rolled his eyes. Accordingly, such allegations are not made out.
The Applicant also complained orally to this Court that:
i)the Tribunal did not refer to medical reports about his son; and,
ii)the Tribunal did not ask him about his son’s circumcision.
In relation to complaint (i), that the Applicant did not refer to medical reports, in respect of the Applicant’s son, neither the Tribunal’s decision record nor the transcript of the hearing support that assertion.
Indeed, the Tribunal accepted the medical evidence provided by the Applicant about the son’s urinary tract difficulties. However, the Tribunal found that none of the references by doctors to the son’s circumcision was contemporaneous with the act of circumcision and nothing in any of those reports was able to support the Applicant’s allegation that the circumcision was forced upon his son by members of the Awami League after they had kidnapped his son. The Tribunal found that “the medical records submitted in relation to the son do not support the claims about the kidnapping or its claimed motives. They merely report, in passing, that he has been circumcised around 1997.” In the circumstances, the Applicant’s complaint that the Tribunal did not refer to the medical reports in respect of his son is not made out.
In relation to complaint (ii), that the Tribunal Member did not ask him about his son’s circumcision, the Tribunal’s decision record and the transcript make clear that such an assertion is not made out. At the Tribunal hearing, the Tribunal Member explored in detail with the Applicant’s son the allegations surrounding his kidnapping and forced circumcision. The transcript discloses that the Tribunal Member asked the Applicant detailed questions about the kidnap of the Applicant’s son, the payment of ransom and the alleged procedure engaged in by the kidnappers in respect of the son’s circumcision.
Accordingly, the Applicant’s complaint that the Tribunal did not ask him about his son’s circumcision is not made out.
Ground 3
Ground 3 of the amended application asserts that the Tribunal failed to comply with s.424A and/or s.424AA of the Act in respect of the evidence given by the Applicant and his son. The assertion in Ground 3 is unsupported by particulars or submissions. The information which is said to have given rise to obligations under s.424A of the Act is not identified by the Applicant. The Applicant declined to make any submissions in support of Ground 3 of the amended application.
In any event, the Tribunal sent its s.424A Letter, dated 12 January 2010, to the Applicant and his son inviting them to comment on information that the Tribunal considered would be part of the reason for affirming the decision under review. All that information related to evidence given by the Applicant and his son to the Tribunal for the purposes of their review application. Whilst I do not accept necessarily that any of the information in the s.424A Letter was information that otherwise enlivened obligations under s.424A(1) of the Act, in any event, those obligations were met by the Tribunal in the terms of its s.424A Letter. The information was identified in writing, its relevance explained and comments invited.
The information included inconsistencies that the Tribunal found to exist in the evidence of the Applicant and his son. The s.424A Letter made crystal clear to the Applicant and his son the concerns it had about their credibility, in particular, whether the kidnapping occurred or that any circumcision was forced upon the son by Awami League members. The s.424A Letter also made clear the concerns the Tribunal continued to have about the Applicant’s claims to have been a leader in the BNP.
The transcript discloses that at some time towards the end of the hearing, that, the Tribunal Member sought to give the Applicant some information under s.424AA in relation to evidence given by the Applicant’s son that the Tribunal said seemed unreliable or inconsistent with the kidnapping claims. It is not necessary to decide whether or not the information that the Tribunal was seeking to give pursuant to s.424AA of the Act was done so in compliance with that section, because the information was repeated in the Tribunal’s s.424A Letter, to which the Applicant responded. The Tribunal had regard to the response provided by the Applicant’s migration agent by letter dated 1 February 2010.
Ultimately, the Tribunal comprehensively rejected the Applicant’s claims to have a well-founded fear of persecution in Bangladesh for a Convention related reason. The Tribunal found the Applicant’s claims to be internally inconsistent, inconsistent with the evidence of his son, not credible, vague, embellished and that some claims had been “concocted”.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Accordingly, Ground 3 is not made out.
Ground 5
Ground 5 appears to suggest that the Tribunal failed to comply with its obligations under s.425 of the Act. Again, the Applicant declined to make any submission in support of Ground 5.
The bundle of relevant documents, marked Exhibit 1R, makes clear that on 14 October 2009 the Tribunal wrote to the Applicant and his son informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The letter went on to invite the Applicant and his son to appear before the Tribunal to give evidence and present arguments relating to the issues arising in their case.
In compliance with s.425A of the Act, the letter identified the date, time and location of the Tribunal hearing. The letter was attached to a letter to the Applicant’s migration agent of the same date. The letter to the migration agent made clear that, in giving the migration agent a copy of the letter of invitation to the applicants, the Tribunal is taken to have given the letter of invitation to the applicants and that the migration agent should ensure that the applicants were informed of the invitation as soon as possible.
The letter was sent to the migration agent because, in the application for review filed with the Tribunal on 30 September 2009, the Applicant and his son provided the details of their migration agent to be their authorised recipient. In those circumstances, in accordance with s.379G of the Act, the Tribunal is obliged to correspond with the Applicant’s migration agent. The letter of invitation, dated 14 October 2009, sent to the applicants complied with s.425A of the Act. In the circumstances there was no failure by the Tribunal to comply with s.425 of the Act.
To the extent that the Applicant’s written submission in relation to Ground 5 asserts that “the Tribunal denied all of his evidence without any sort of enquiry”, the jurisprudence is clear. It is well established that it is only in certain circumstances that the Tribunal may be obliged to investigate an applicant’s claims (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] per Keane CJ and at [49] per Emmett J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).
The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. There is no obvious failure by the Tribunal in the case before this Court to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, and none is identified by the Applicant (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Ground 5 is therefore not made out.
Ground 6
Ground 6 appears to assert that the Tribunal erred in its application of s.91S of the Act. Again, the Applicant declined to make any submission in support of Ground 6.
The Tribunal’s decision record discloses that the Tribunal referred to s.91S of the Act in considering whether the Applicant’s son was a member of a particular social group, namely the Applicant’s family, even though the son had not hitherto made any independent claims of his own. After quoting s.91S, the Tribunal correctly found that a person who claims to be pursued or persecuted because he or she is a relative of a person targeted for a non-Convention reason does not fall within the grounds for persecution covered by the Convention. The Tribunal referred to its finding that the Applicant did not face a real chance of Convention related persecution in Bangladesh.
Accordingly, in applying s.91S, the Tribunal found that the Applicant’s son is not entitled to a protection visa on the basis of his membership of a particular social group being the Applicant’s family.
Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave. There was no error made by the Tribunal in its application of s.91S in the circumstances.
Otherwise, Ground 6 is no more than a disagreement with the findings and conclusions of the Tribunal. Such a complaint invites merits review which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-54).
Accordingly, Ground 6 is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant and his son at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant and his son, both orally and in writing, matters of concern it had about their evidence and had regard to the responses, both oral and written. However, ultimately, as stated above, the Tribunal was not persuaded by the explanations contained in those responses. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 10 June 2010
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