Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - no reviewable error - application dismissed.

SZAZP v Minister for Immigration [2004] FMCA 733 (29 October 2004)

SZAZP v Minister for Immigration [2004] FMCA 733 (29 October 2004)
Last Updated: 26 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAZP v MINISTER FOR IMMIGRATION
[2004] FMCA 733




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - no reviewable error - application dismissed.




Migration Act 1958 (Cth), s.474

Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1

Craig v South Australia (1994) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALR 405

Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

NAQZ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 200 ALR 662

WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 1

Re Refugee Review Tribunal, Ex Parte Aala (2000) 204 CLR 82

Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Applicant:
SZAZP




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1405 of 2003




Delivered on:


29 October 2004




Delivered at:


Sydney




Hearing date:


26 October 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

Applicant appeared in person with the assistance of an interpreter.

Counsel for the Respondent:


Mr Justin Smith




Solicitors for the Respondent:


Sparke Helmore




ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the Minister's costs and disbursements of and incidental to the application, fixed in an amount of $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1405 of 2003

SZAZP



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for the review of a decision of the Refugee Review Tribunal ("the Tribunal") and handed down on 24 June 2003 affirming a decision of a delegate of the respondent made on 10 May 2001 to refuse to grant the applicant a protection visa.

Background

2. The applicant is a citizen of Bangladesh who arrived in Australia on 26 April 2001. On 2 May 2001 he lodged an application for a protection visa which was refused. The delegate's reasons are set out in the Court Book (pp 32-39). On 24 May 2001 the applicant applied to the Tribunal for a review of the delegate's decision.

3. The applicant claimed that he feared persecution in Bangladesh for reasons of his political opinion. He claimed that he was a member of the Bangladesh Freedom Party and in December 2000 while taking part in a meeting organised by that Party he was amongst those attacked by the police and was subsequently (falsely) charged with a crime relating to illegal weapons. On 25 January 2001 an arrest warrant was issued in respect of those charges.

4. On 16 January 2003 the Tribunal wrote to the applicant indicating that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The applicant was invited to attend (Court Book pp.56-61). On 1 May 2003 the applicant attended a rescheduled hearing held by the Tribunal and gave evidence in support of his claims. On 24 June 2003 the Tribunal handed down its decision affirming the decision of the delegate (Court Book pp.80-94).

The Tribunal's findings and reasons

5. The Tribunal did not accept the credit of the applicant. It found that his evidence in respect of those aspects of his claim was "vague, generalised, lacking specific details and was inconsistent and unconvincing" (Court Book p.92 [53]). In particular, the Tribunal found unconvincing the applicant's evidence in respect of his knowledge of politics in Bangladesh and the Party of which he claimed to be a member. The Tribunal did not accept that the applicant was ever a member of the Freedom Party and on that basis it did not accept that he had had false cases made against him, that an arrest warrant was issued for him or that he had come to any harm or that he was hospitalised as a result of his political activities (Court Book p.94 [58]).

6. The Tribunal also rejected the documents adduced by the applicant in support of his claims on the basis of inconsistence between them and the applicant's claims and the implausibility on the face of the documents such as the poor English expressed on the documents which purported to be from the Bangladeshi Courts.

The application for review of the Tribunal's decision

7. On 26 July 2003 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following grounds:

1. The tribunal did not take into account the court case against me.

2. The tribunal made his decision in bad faith.

3. The tribunal denied me of the natural justice.

4. The tribunal denied the evidentiary proof of my claim.

5. The tribunal decision did not reflect the materials facts of my claim.

6. The tribunal has given a decision which was preset in the back of its mind.

7. The Trinal mix up many facts with this decision which affected the decision.

8. The tribunal ignored many other facts and claim.

9. The tribunal make up his mind with the partial parts of media information.

10. I will provide more details of my grounds later.

The law

8. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia ("S157/2002") and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 ("S134/2002"), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].

9. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal's power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

10. The applicant appeared self represented with the aid of an interpreter. The applicant attended a directions hearing on 18 September 2003 and consented to Short Minutes of Order at that time, which included the filing and serving of an amended application and any evidence which he proposed to rely upon at the hearing. However, this direction was not complied with by the applicant nor were any written submissions filed and served prior to the hearing.

11. When the applicant was invited to make any oral submissions this was limited to making requests for further time in order to locate a legal adviser to assist with the preparation of his case. At the original directions hearing the applicant had been offered the opportunity to participate in the pilot RRT Legal Advice Scheme however the applicant had failed to make initial contact with that adviser until June 2004. On making contact the adviser was apparently overseas and the applicant had not attempted to make any further contact. No submissions in support of his case were made and the applicant relied upon his original application.

12. Mr J Smith of Counsel appearing for the respondent, filed written submissions prior to the hearing. It was submitted that the Tribunal's decision turned upon its finding of credit. That is a finding of fact and one for the Tribunal: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham per McHugh J at [67]. The Tribunal's finding of credit led it to reject all of the applicant's claims so that, contrary to several of the grounds in the application, the Tribunal cannot be said to have failed to take into account any material or other evidence in support of the applicant's claims.

13. It was submitted further that there is nothing in the material before the Court to suggest that the Tribunal proceeded in anything other than good faith or that it had prejudged the matter such as to justify a finding that it was biased. In Minister for Immigration & Multicultural Affairs v Jia Legeng, Gleeson CJ and Gummow J stated at 532 [72]:

"The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion."

14. Counsel also submitted that while is it true that the Tribunal indicated in its letter inviting the applicant to a hearing that it had considered the material before it and on that basis was unable to make a decision in his favour (Court Book p.56), the real purpose of this letter was in order to give the applicant an opportunity to present further evidence. There is nothing to suggest that the Tribunal was not open to accept this further evidence and thereby to make a decision favourable to the applicant.

15. It was submitted that the applicant claims he was denied natural justice but has neither specified the respect in which he claims this to be so nor adduced or served any evidence in support of his claim. Importantly, the applicant did not established as a matter of fact that the Tribunal did not give him an opportunity to address the critical issues in his application and thereby denied him the opportunity of presenting his case: NAQZ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs ("NAQZ") at 678, [86]-[88].

16. It was submitted further, that even it were accepted that the Tribunal did not inform the applicant, for example that it might find that the documents relied upon by him would not be accepted as authentic (see WACO v Minister for Immigration and Multicultural and Indigenous Affairs), he must establish in all the circumstances of the case that failure resulted in procedural unfairness. In WACO the Court qualified its statement of principle in this respect, leaving open the situation where there was something on the face of the documents themselves which would alert the parties to the proceedings that there was a real issue to be decided as to whether the documents in question were forgeries. That qualification is consistent with statements of principle in the High Court. In Re Refugee Review Tribunal, Ex Parte Aala McHugh J said at 121 [101]:

"One of the fundamental rules of the fair hearing doctrine is that a decision maker should not make an adverse finding relevant to a persons rights, interests or legitimate expectations unless the decision maker has warned that person of the risk of that finding being made or unless the risk unnecessarily inheres in the issues to be decided."

17. Counsel also submitted that in the decision of the delegate it was noted that the applicant had provided no documents at all to support his claim even though in his application for a visa, the applicant had stated that he would forward such documents shortly. In his application for review to the Tribunal the applicant claimed that the Department had not given him enough time to submit his documents (Court Book p.42 [2] ). Those documents were ultimately provided on the day before the hearing. It is clear that the Tribunal raised as an issue the credibility of the documents. It asked the applicant why it had taken until the day before the hearing to produce those documents (Court Book p.89 at [40] ). It was further clearly put to the applicant (Court Book p.89 at [41] ) that the issue of credibility of his claim to be a member of the Freedom Party was at stake.

18. The Tribunal, it was submitted, viewed the documents themselves as giving rise to doubts as to their authenticity. The Tribunal noted that there were dates on the documents which were inconsistent with the chronic delays in the Bangladeshi Court system, and although purporting to be copies of originals, were in very bad English. Further the documents were inconsistent with the claims; for example, the medical report indicated that he was injured upon his right head, right shoulder and right scapula where the applicant claimed that the injuries were on his left side.

19. Counsel also submitted that for these reasons, in the circumstances of this case, the issue of the authenticity of the documents was clearly in play and the Court must be satisfied that the applicant had an opportunity at the hearing to address that issue. Accordingly, there was no denial of procedural fairness if it is accepted (which the respondent says it ought not to be) that the Tribunal did not put to the applicant its potential finding as to the authenticity of the documents.

Conclusions

20. The applicant in these proceedings was representing himself and has made no oral or written submissions. The grounds in the original application are vague and unparticularised. However, where an applicant is self represented the Court must independently consider whether any arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors. The manner in which the grounds have been drafted produce some duplication and overlapping of issues, making it difficult to address individual issues ensuring that all aspects that have been raised by the applicant are satisfactory addressed.

21. I accept the approach taken by Mr Smith of Counsel and have reproduced his submissions that I believe assist me in the resolution of this matter. I will deal with the nine grounds in an alternative way to ensure that each issue raised is correctly address. I note, in relation to the tenth ground suggesting there would be further information supplied by the applicant at a later date, no such information has been forthcoming.

22. The first ground is that the Tribunal did not take into account the Court case against the applicant. The Tribunal points out in its decision at [52] (Court Book p.92) that it does not have to accept unequivocally the allegations made by the applicant. There are numerous references throughout the Tribunal's findings that the applicant's claims were vague, generalised and riddled with inconsistencies. The first information report that was produced on the same day as the political demonstrations contains dates which are inconsistent with the chronic and endemic delays in the Bangladeshi local court system and the applicant failed to convince the Tribunal with his oral evidence that the documents that he relied upon in respect of this incident were genuine.

23. Ground 2 alleges bad faith. Ground 3 alleges a denial of natural justice and Ground 6 suggests a predetermined decision which is contrary to what the Tribunal in fact did. On 16 January 2003 the Tribunal wrote to the applicant indicating that it was unable to make a decision in his favour on the information that he had already supplied and invited him to a hearing of the Tribunal on 17 February 2003. Contained within that invitation is a request for any new and additional documents that the applicant would wish to rely upon and the opportunity to give oral evidence in support of any aspects of his claim. In the absence of any evidence or particularisation of the grounds, the only material open to examination by this Court is what is contained in those letters and the Tribunal's decision. There is nothing in that material to indicate that the Tribunal did not have an open mind to the procedure and did not ultimately reach a rational decision.

24. In respect of natural justice there is nothing in the Tribunal's letter or subsequent decision to suggest that the applicant was in any way misled not to put forward any particular material or was persuaded not to address any particular issue.

25. Grounds 4, 5, 7 and 8 in the absence of particularisation, further evidence or oral submissions must be assumed to be making reference to the rejection of various documentary evidence which the Tribunal declined to accept because of its view that the material being supplied by various Bangladeshi sources was fraudulent in nature and content. One of the concerns expressed by the Tribunal was the considerable delay in obtaining the material with it being delivered on the day immediately preceding the hearing. The Tribunal's other concern was the lack of authenticity on the face of the documents themselves. Much of the material contains inconsistent facts with those of the applicant's claim. The applicant would have been aware of that by simply looking at the document itself.

26. The document in relation to the injuries sustained by the applicant stated that the injuries were to the right side of the head, to the right shoulder joint and to the right scapular. However, the applicant maintains that the injuries were to the left hand side of his body and I note that when he was referring to those injuries before me he was indicating that there was an injury to the left side of his head and the left side of the body, which the applicant advised me by the interpreter were easily identifiable by the scar tissue. However the translated document supplied by Dr Burhan Uddin clearly state that the injuries were to the right hand side of the body. The other group of documents that contained adverse information to the applicant's case to the extent that they contained inconsistencies on their face are the transcriptions in English of the documents lodged with the Court detailing the incident on 25 January 2001. The applicant claims this incident took place in December 2000.

27. Counsel for the respondent referred me to the decision of Hill J in NAQZ which is authority in respect of procedural fairness in the handling of documents which clearly raise the issue of inconsistencies of evidence on their face:

[73] The argument of the appellants is essentially that there was a denial of procedural fairness in the present case, either because the tribunal had not made it known to the appellants that the tribunal might rely upon country information about the prevalence of forged documents among Bangladeshi applicants or because the tribunal had not alerted the appellants to the fact that the tribunal might find the documents tendered to be forgeries and thus denied the appellants the opportunity to put such matters as they might wish to, to the tribunal to persuade the tribunal that the documents were, in fact, not forgeries.

[79] That there is therefore a question whether the tribunal said anything to either appellant concerning either the existence of the country information or the possibility that the documents were forged. It was held in WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171; BC200304595 that there is a denial of natural justice, at least generally, where the tribunal rejects documents as not being genuine without affording the party tendering them the opportunity to put to the tribunal such matters as it may be able to so as to answer the charge that the documents are forgeries.

[82] However, the Full Court in WACO did qualify their statement of the principle. Their Honours left open the situation where there was something on the face of the documents themselves which would alert the parties to the proceedings that there is a real issue to be decided as to whether the documents in question were forgeries.

[83] There is an analogy to be found in the not unrelated rule in Browne v Dunn (1894) 6 R 67 (House of Lords). While it will ordinarily be unfair for a tribunal acting as a trier to fact to decide a matter adverse to a party without putting to the party the adverse matter and permitting the party to comment upon it, this will not be so where expressly or impliedly the party ahs been alerted in advance that the matter is one which is in issue in the case: Allied Pastoral Holdings Pty Limited v FCT [1983] 1 NSWLR 1 at 16; (1983) 44 ALR 607 at 623; 83 ATC 4015 at 4027. That was a case where the matter not put to the witness was such that the dispute was one which should have been apparent without express notice.

[86] For the appellants to succeed, however, they must prove that the Tribunal did not alert them to the country information and did not make it clear that there was an issue for the appellant to deal with as to the genuineness of the document.

[87] The present is not a case where counsel for the Minister has conceded that the Tribunal made no reference to the country information covering the prevalence of forged documents in Bangladesh. There is no concession either as to whether the Tribunal made any comments such as would alert the appellants to the fact that the Tribunal was likely to conclude in the absence of further evidence that the various documents tendered were forgeries.

[88] Accordingly a foundation for a case that the appellant were each denied procedural fairness has not been made out.

28. The fact that the Tribunal rejected the documents because they believed them to be fraudulent due to apparent inconsistencies in respect of the information they contained compared with the story being provided by the applicant, does not constitute a denial of procedural fairness.

29. In respect of Ground 9 it is not clear as to what the applicant claimed the Tribunal was failing to do. However, it may be a re-statement of the other grounds which relate to some of the material supplied by the applicant being rejected because of its fraudulent nature. In the absence of any particularisation or oral submissions to clarify the ground, I have taken the view that this is the appropriate explanation.

30. As the grounds in the application are general and without particularisation I have not been able to identify any ground that the Tribunal has committed any jurisdictional error. The applicant's claim should be dismissed.

31. I am satisfied that an order for costs should be made in this matter. I order the applicant to pay the respondent's costs and disbursements of and incidental to the application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 29 October 2004
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia