VWAR v Minister for Immigration
[2005] FMCA 1261
•6 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWAR v MINISTER FOR IMMIGRATION | [2005] FMCA 1261 |
| MIGRATION – Appeal from Refugee Review Tribunal – well-founded fear of persecution on political grounds in Bangladesh – credibility of the applicant – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36(2), 91R, 422B, 474, 475A Judiciary Act 1903 (Cth), s.39 |
| Craig v South Australia (1995) 184 CLR 163 Minster for Aboriginal Affairs and Peko-Wallsend Ltd (1985) 162 CLR 24 Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Minister for Immigration and Multicultural Affairs v Yusef [2001] 206 CLR 323 NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 |
| Applicant: | VWAR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 90 of 2004 |
| Judgment of: | Connolly FM |
| Hearing date: | 8 June 2005 |
| Date of Last Submission: | 8 June 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 6 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Ms N. Karapanagiotidis |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: | Mr R. Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 90 OF 2004
| VWAR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This judgment arises from an application filed by the applicant on
28 November 2003 seeking judicial review of the decision of the Refugee Review Tribunal on 10 October 2003 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a protection (class XA) visa.
The history
The applicant is a citizen of Bangladesh. He came to Australia on
12 November 2001 with his wife and their two children. He lodged an application on 21 November 2001 for protection (class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs on behalf of himself, his wife and his children. Pursuant to the provisions for the issue of a protection visa in respect to applicants who are of the same family unit, it is enough if one family member is a person to whom Australia has protection obligations. Only the applicant made specific claims under the Refugees Convention (as amended by the Refugees Protocol) and for these reasons he is referred to as the sole applicant herein.
On 28 June 2002, the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant protection visas to the applicant and his family members. The applicant applied for review of that decision by the Refugee Review Tribunal (“the Tribunal”) on 11 July 2002.
At the Tribunal hearing, the applicant claimed that he feared persecution by the BNP (Bangladesh Nationalist Party) Government due to his political support for, and membership of, the Awami League. According to the applicant, he was perceived as a leading supporter of the Awami League. He claimed that his life would be in danger as long as the BNP Government retained power in Bangladesh. The applicant asserted that he had suffered harm in the past as follows:
a)he was stabbed in 1992 and the police did not investigate the incident;
b)the applicant’s home was damaged, and his family attacked and tortured, after the BNP party was elected to Government in October 2001; and
c)he was the recipient of threatening phone calls, commencing in October 2001 and ceasing once the applicant arrived in Australia.
He also claimed that he fears persecution from two BNP Cabinet Ministers who supported Islamic fundamentalism. The applicant fears persecution from these Ministers as in the past he had been a freedom fighter opposed to Islamic fundamentalist groups. In addition, the applicant recounted an incident in which he became aware of terrorist arms dealing in Singapore prior to the Bangladesh elections and he had clashed with an Army Major over this; as a result, he felt he was at risk of harm, especially after the Army Major threatened him.
In the decision made by the Tribunal on 10 October 2003, the Tribunal affirmed the decision of the delegate not to grant protection visas to the applicant and his family. Summarily, the Tribunal found that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (as amended by the Refugees Protocol). Consequently, the applicant did not satisfy the criterion under section 36(2) of the Migration Act 1958 (Cth) (“the Migration Act”) for the purposes of a protection visa. As no specific claims were made on behalf of the applicant’s wife and children, and as their claim was dependent on the outcome of the applicant’s claim, the Tribunal also held that the applicant’s family were not eligible for protection visas. According to the Tribunal, they were unable to satisfy the criterion under section 36(2) of the Migration Act.
Specifically, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution due to his political support for the Awami League; the Tribunal did not accept that his fears of being persecuted were genuine. The Tribunal stated that the applicant was not a credible witness at the hearing, with the applicant’s evidence described as vague, inconsistent, concocted and unconvincing. Numerous claims made by the applicant were not accepted by the Tribunal, including the assault on his family; that the stabbing incident in 1992 was due to his political support for, and membership of the Awami League; or that he was perceived as a leader and active supporter of the Awami League.
On 28 November 2003, the applicant filed an application for review of the Tribunal’s decision, being V1063 of 2003, in the Federal Court of Australia pursuant to section 39B of the Judiciary Act 1903 (Cth) and section 475A of the Migration Act. The applicant sought constitutional writs on the basis that the Tribunal had erred in makings its decision. The application was transferred to the Federal Magistrates Court of Australia on 21 January 2004 by Justice Gray, becoming MLG 90 of 2004.
On 5 March 2004 an amended application and contentions of fact and law were filed by the applicant. According to these documents, the applicant claimed that the Tribunal had erred in makings its decision because:
a)the Tribunal had failed to consider all of the applicant’s claims by not considering whether:
“the applicant was at risk of persecution by reason of his membership of the Awami League?” and “In light of the current political climate in Bangladesh, would the applicant have been perceived as a leader in the Awami League?”.
b)the Tribunal did not take into account a relevant consideration, namely the corroborative material submitted by the applicant, which included letters from Awami League members, police records and medical records;
c)the Tribunal had misdirected itself on its interpretation of the evidence presented at the hearing, particularly the applicant’s evidence:
i)concerning the President of the Netrakona District Branch of the Awami League and whether the President was at more risk of harm by the BNP party than the applicant;
ii)regarding the release of a report by the Barhatta Police which indicated that the applicant had been involved in “anti-state activity” and he would be detained; and
iii)in relation to the threatening telephone calls he received.
d)the Tribunal had misconstrued the applicant’s claims in relation to his fears of persecution by the Cabinet Ministers and thus did not take into account the relevant considerations;
e)there had been a failure to accord the applicant procedural fairness by failing to put to the applicant matters that were adverse to him; and/or
f)there was no probative material and logical grounds to support the findings of the Tribunal.
The respondent’s contentions of fact and law, which were filed on 17 May 2004, rebutted the applicant’s contentions, arguing that the Tribunal had not erred in making its decision on any of the grounds the applicant had asserted. Summarily, the respondent argued that the applicant’s contentions “are complaints about the fact finding process undertaken by the administrative decision-maker. Judicial review does not exist in order to facilitate the review of factual findings”. It also described the Tribunal’s findings in relation to the applicant’s credibility as “inevitable, in light of the Tribunal’s wholesale rejection of the evidence given by the applicant”.
The law
Section 36 of the Migration Act provides for the class of visas known as protection visas. The relevant protection obligation is defined in Article 33 of the Convention relating to the status of refugees which is required to be read in light of the definition of refugees in Article 1A. The Convention, which as amended, applies to a person who:
…owing to 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, is 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The term “well-founded fear of persecution” is affected by the provisions of section 91R of the Migration Act which provides as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 a Tribunal decision would be reviewable if it were to be established that the Tribunal had exceeded its jurisdiction or constructively failed to exercise its jurisdiction. Section 474 of the Migration Act does not exclude consideration by the Court of decisions which involve a failure to exercise jurisdiction or which involve an excessive jurisdiction as such decisions are not decisions made under the Act for the purposes of section 474. Section 474 does not apply to decisions which involve jurisdictional error whatever the scope or extent of the jurisdictional error; see for example Minister for Immigration and Multicultural Affairs v Yusef (2001) 206 CLR 323 at 351 (“Yusef”).
An administrative Tribunal exceeds its power, and thus commits a jurisdictional error, if it identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or, in some circumstances, makes erroneous findings or makes a mistaken conclusion in a way that affects the exercise, or purported exercise, of the Tribunal’s power (Craig v South Australia (1995) 184 CLR 163 per McHugh, Gummow and Hayne JJ at 179). This is not exhaustive. Those kinds of errors may well overlap (see Yusef).
Conclusions and findings
In essence, the Tribunal rejected the applicant’s evidence and claims based on its assessment of the applicant’s credibility. In effect, none of the evidence that the applicant advanced in support of his claims to have a well-founded fear of persecution was accepted. There was therefore no factual material that could have satisfied the Tribunal that the applicant had a well-founded fear of persecution. A finding as to credibility is a finding of fact and it is a decision for the Tribunal alone. The Full Court of the Federal Court in NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 held at [9]:
The second ground of appeal was that the primary judge erred in not finding an error of law in the credibility finding of the Tribunal. The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review. Furthermore, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
In the amended application, the applicant contends that the Tribunal erred because it failed to consider the applicant’s claims that he was at risk of persecution by reason of his membership of the Awami League or his claim that he was perceived as a leader of the Awami League. The respondent in its contentions accepted that a Tribunal will commit a jurisdictional error if it overlooks a claim, that, if accepted, might in and of itself have established that the applicant had an entitlement to a protection visa. The respondent further submitted however that the authorities make it clear that the Tribunal will not commit such an error if it merely fails to advert to evidence which, if accepted, might lead to a different finding of fact; I accept this submission. See WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]-[47].
The applicant argues that the Tribunal made an error because there was no express finding about whether he was a member of the Awami League. Yet the Tribunal at Court Book (“CB”) 203 stated:
The Tribunal does not, however, accept that the applicant has a genuine fear of being persecuted by the BNP, or any other political organisation in Bangladesh, because of his support of the Awami League.
And further, at CB 203, with respect to his claim that he was perceived as a leader of the Awami League, the Tribunal pointed out that:
His evidence was so vague in response to basic questions about his political commitment and activities as to suggest that he had not had a serious political commitment to any political party in Bangladesh. There were also a number of inconsistencies in his evidence.
And at CB 206:
Accordingly, the Tribunal does not accept that the applicant has actively supported the Awami League. It does not accept that he was perceived to be a significant or leading supporter of the Awami League by Awami League supporters or their political opponents. More specifically, the Tribunal rejects the applicant’s evidence that he acted as a political adviser to the Awami League; that he was politically active at his workplace, and did planning and policy work for the Awami League, between 1990 and 2000; that he attempted to persuade Bangladesh nationals in Singapore to vote for the Awami League in the October 2001 elections; that he and members of his family received threatening phone calls on October and November 2001 because of his support for the Awami League; or that the Bangladesh authorities instigated politically motivated criminal proceedings against him because of his support for the Awami League.
The Tribunal has not accepted that the applicant was a significant or leading supporter, or “a main person”, of the Awami League. It therefore does not accept that BNP supporters or any other persons broke in to his home and assaulted his family members in Bangladesh for political reasons.
I accept the contentions of the respondent that it is hard to see how the Tribunal could have made its finding clearer. The assertions that the Tribunal did not deal with his claims that he was at risk of persecution by reason of his membership to the Awami League, or because he was perceived to be a leader of the Awami League, have no substance.
The applicant further contends that the Tribunal failed to take into account a relevant consideration, namely corroborative material submitted by him.
In Minister for Aboriginal Affairs and Peko-Wallsend Ltd (1985) 162 CLR 24 at [39]-[40], the High Court of Australia made it clear that a failure to take into account relevant considerations is concerned with the matters that the decision maker is bound to take into account. Those matters are identified by reference to the legislation pursuant to which the decision is made and not with whether particular facts (such as the corroborative documents) were taken into account.
In Minister for Immigration and Multicultural Affairs v Yusef [2001] 206 CLR 323 at [73]-[74] the High Court held:
The considerations that are, or are not, relevant to the tribunal’s task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the tribunal is called on to consider.
The grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.
The respondent further contended that there is an important difference between failing to take a matter into account and giving little or no weight to a matter that has been taken into account. I accept that contention and I am satisfied that the authorities establish that the weight to be accorded to matters taken into account is a matter exclusively for the decision maker. To engage in a review of such matters is a merits review.
It is clear that the Tribunal did have regard to the corroborative material. At CB 206, the Tribunal accorded little credibility value to each document:
In these circumstances, the Tribunal assigns little evidentiary value to the letter from the President of the Netrakona District branch of the Awami League dated 3 December 2001 which stated that the applicant had been a leader in the Awami League; and that he may be killed by BNP supporters. It assigns little evidentiary value to Shakaowat Hossein’s affidavit sworn on 3 December 2001 which contained evidence to the effect that the applicant was a high-profile supporter of the Awami League; and that the applicant’s political opponents have threatened his family and may kill him if he returns to Bangladesh. It assigns little evidentiary value to the undated letter from Abdul Momin MP which stated that the applicant as an “important local district leader” for the Awami League; that BNP supporter had “tortured” the applicant’s relatives in September or October of 2001; and that a police officer had told one of the applicant’s relatives that an arrest warrant had been issued against the applicant for political reasons. And it assigns little evidentiary value to the police report dated 20 July 2002, and to the Notarial Certificate of M. Mohammad Ali dated 14 September 2002.
The respondent also argued that there was no probative material for the Tribunal to support its rejection of the corroborative evidence or alternatively that it disregarded the corroborative documents.
Gleeson CJ said in Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12]:
It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.
I am accordingly satisfied that there is no basis for finding jurisdictional error on either of these grounds.
In summary, the next argument advanced by the applicant was based on the Tribunal’s interpretation of a letter provided by the President of the Netrakona District Branch of the Awami League. The applicant also complained that the Tribunal’s interpretation of some of the evidence that he had given at the hearing before the Tribunal was wrong. I accept the respondent’s contention that even if the Tribunal’s interpretation of the evidence was wrong it amounts to a wrong finding of fact and discloses no error of law. Again, what the applicant is attempting to do is engage in a merits review.
The applicant further claimed that the Tribunal misconstrued the applicant’s claim which was made for the first time at the Tribunal hearing. The applicant claimed to fear persecution from two fundamentalist Cabinet Ministers. The Tribunal at CB 207 rejected that claim. The Tribunal had previously found at CB 204–205:
The applicant gave an impression to the Tribunal at the end of the hearing that he was facilitating evidence when he claimed for the first time that two Cabinet Ministers in the BNP Government would harm him because of his involvement in “freedom fighting” in Bangladesh. He did not name the Cabinet Ministers, nor did he provide any other evidence to support his claim.
It was open to the Tribunal to reject the claim as a fabrication.
Finally, the applicant submitted that the Tribunal contravened the rules of procedural fairness in various ways based on the common law rules. The application was made one week after the commencement of section 422B of the Migration Act. That section provides that:
422B Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the
requirements of the natural justice hearing rule in relation to the
matters it deals with.
In WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 at [57], French J held:
When read with s 422B, in my opinion, s 424A is now to be treated as exhaustive of the requirements of procedural fairness relating to the applicant’s right to comment on adverse material which is known to and is to be relied upon by the Tribunal...’
In all of the circumstances, I am satisfied that no jurisdictional error has been disclosed and the application should be dismissed with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: N Lane
Date: 6 September 2005
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