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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming persecution as a homosexual in Bangladesh - claims rejected on credibility grounds - whether the decision unreasonable considered - whether the RRT should have considered the applicant's claims as if they were true, considered - no reviewable error found - application dismissed.

PRACTICE AND PROCEDURE - Notice to admit facts - inappropriate procedure for verification of a purported transcript of a tribunal hearing.

SZBCA v Minister for Immigration [2004] FMCA 998 (9 December 2004)

SZBCA v Minister for Immigration [2004] FMCA 998 (9 December 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCA v MINISTER FOR IMMIGRATION
[2004] FMCA 998




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming persecution as a homosexual in Bangladesh - claims rejected on credibility grounds - whether the decision unreasonable considered - whether the RRT should have considered the applicant's claims as if they were true, considered - no reviewable error found - application dismissed.

PRACTICE AND PROCEDURE - Notice to admit facts - inappropriate procedure for verification of a purported transcript of a tribunal hearing.




Migration Act 1958 (Cth), s.65


Minister for Immigration v Rajalingam [1999] FCA 719, (1999) 93 FCR 220

Minister for Immigration v SGLB (2004) 207 ALR 12

Minister for Immigration v W64/01A [2003] FCAFC 12

VWST v Minister for Immigration [2004] FCAFC 286

W68/01A v Minister for Immigration [2002] FCA 148

WAAD v Minister for Immigration [2002] FCAFC 399

Applicant:
SZBCA




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1502 of 2003




Delivered on:


9 December 2004




Delivered at:


Sydney




Hearing date:


9 December 2004




Judgment of:


Driver FM




REPRESENTATION

Counsel for the Applicant:


Mr I Archibald




Counsel for the Respondent:


Mr S Lloyd




Solicitors for the Respondent:


Sparke Helmore




ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of an incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1502 of 2003

SZBCA



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 13 June 2003 and handed down on 9 July 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and made claims of persecution based upon his homosexuality. Relevant background facts are set out in paragraphs 9-15 of written submissions prepared on behalf of the Minister by Mr Lloyd. I adopt those paragraphs for the purposes of this judgment by way of background:

The applicant, a citizen of Bangladesh, claimed to have arrived in Australia on 31 August 2000.[1]

On 11 October 2000, he lodged an application for a protection visa.[2]

On 11 January 2001, a delegate of the Minister refused his application.[3]

On 7 February 2001, the applicant lodged an application for review with the RRT.[4]

On 5 April 2001, the applicant's migration agent made a submission upon his behalf and sent in documents said to support his application.[5]

The applicant was invited to attend a hearing on 2 December 2002.[6] It was changed to 10 December 2002,[7] at the applicant's request.[8]

The decision was handed down on 9 July 2003.[9] The RRT affirmed the decision of the delegate. His claims were rejected because the RRT did not consider that the applicant was a reliable or credible witness.[10] For example, the applicant had claimed to be sentenced to death by stoning but the document provided allegedly in support of this claim did not indicate any such sentence. Moreover, the applicant had claimed to have been expelled from school when he was in year 9 in 1990. The applicant's evidence and documentary evidence in relation to this claim involved several inconsistencies.[11] These matters had damaged the applicant's credibility, in the eyes of the RRT, to the point that it did not accept his central claim to be homosexual.[12]

2. The applicant relies upon a further amended application presented in court today. It has not yet been signed or filed but I accepted an undertaking from Mr Archibald to obtain the applicant's signature on it, provided that the applicant can be located, and for the document to be filed as soon as is reasonably practicable.

3. The further amended application asserts two grounds for review. The first ground of review is that the RRT made a critical finding that it did not accept that the applicant is a homosexual. It did this on the basis that the applicant's evidence in this regard was generalised and vague and lacked any specific detail. The RRT found that the applicant's account of his relationships were assertions, but found that the applicant had provided no specific details about those relationships. This finding is said to involve an error of law sufficient to constitute jurisdictional error.

4. The following particulars are given:

a) the applicant gave a detailed account of the development of his homosexuality from the age of 14;

b) the applicant gave a detailed account of a relationship at the age of 17;

c) the applicant gave an account of treatment from a psychiatrist in 1990;

d) the applicant gave an account of a relationship commencing in 1995;

e) the finding by the RRT:

i) was so unreasonable that no reasonable RRT could make it;

ii) may be said not to have been based on probative evidence;

iii) was illogical.

5. The second ground of review is that the RRT erred in that it should have considered the possibility that its findings as to primary facts were wrong before reaching an affirmative conclusion that the applicant did not have a well-founded fear of persecution.

6. Mr Archibald presented both written and oral submissions. He took me to the applicant's relevant claims and drew my attention in particular to the initial claims made by the applicant in a statutory declaration appearing in the court book, which I accepted as evidence, from pages 26 to 29. These claims were augmented in a statement prepared on behalf of the applicant by his migration agent (court book, pages 42-46).

7. It is apparent from the decision and reasons for the RRT (commencing on page 65) that the presiding member took into account both the initial claims made by the applicant and the later claims made with the assistance of the applicant's migration agent. The presiding member also dealt in some detail with what occurred at the RRT hearing conducted on 10 December 2002. In that regard the applicant relies upon an affidavit by himself, made on 16 November 2004, and filed in court on 9 December 2004. That affidavit annexes a purported transcript of the hearing before the RRT. I note that the applicant, through Mr Archibald, initially presented this purported transcript as an annexure to a notice to admit facts filed on 28 October 2004. That procedure was of concern to the Minister's legal advisers and Mr Lloyd deals with it in paragraphs 3 to 8 of his written submissions.

8. In my view, the notice to admit facts procedure is inappropriate for the purposes of verification of a RRT hearing transcript. That is because the Minister is not in a position to verify from personal knowledge what occurred at any particular RRT hearing. The Minister does not attend such hearings. The only means of verifying the accuracy of a purported transcript is to listen an available sound recording and to check the accuracy of the printed transcript. In the ordinary course a purported transcript produced by or on behalf of an applicant can be presented informally to the Minister's legal advisers to be verified if the Minister's legal advisers wish to verify it.

9. Any questions concerning a transcript requiring a resolution by the Court could be raised at an interlocutory stage of the proceedings. The process would normally be assisted by an affidavit from the person responsible for preparing the purported transcript so that both the Minister's legal advisers and the Court know who was responsible for it. An exception may be in certain circumstances where the origin of the transcript is obvious, as when a transcript is obtained from Auscript.

10. In this case, the appropriate procedure was ultimately pursued by the applicant through his affidavit and the Minister's legal advisers were able to check the accuracy of the transcript and make appropriate handwritten amendments. In the circumstances, I did not consider it necessary to make any ruling on the notice to admit facts as the transcript annexed to it had been superseded. If I had been required to make a ruling I would have set aside the notice to admit facts.

11. The presiding member was plainly influenced to a significant degree by what occurred at the RRT hearing. From my examination of the transcript the presiding member's description of the conduct of the hearing (court book, pages 71-74) is accurate. Taking into account the applicant's written claims and the examination of those claims at the oral hearing, the presiding member formed an adverse view as to the applicant's credibility. The presiding member said in paragraph 43 of his reasons (court book, pages 75 and 76):

The applicant's evidence in relation to most aspects of his claims was vague, generalised, lacked specific detail, and was inconsistent and unconvincing. His oral and documentary evidence did not support his claims. I do not consider that the applicant was a reliable or credible witness. This is especially so with regard to the applicant's evidence at the hearing of 10 December 2002. The lack of credibility of the applicant's evidence leads me to conclude that I am unable to be satisfied that the applicant suffered persecution in Bangladesh because of his homosexuality or faces a real chance of persecution in the foreseeable future if he returns to Bangladesh.

12. The presiding member elaborated upon that conclusion in the following paragraphs of his reasons, in paragraphs 45 to 47. The presiding member dealt with specific concerns he had about the credibility of the applicant's evidence. In paragraph 45 the presiding member relevantly states:

I am unable to accept that the applicant is a homosexual. This is so because his evidence about his homosexuality, his relationships and life, was generalised and vague and lacked any specific detail. He made assertions about two relationships he claimed to have had, but provided no specific details about the relationships. However, he made detailed claims about the consequences of those relationships, and produced documents which he claimed prove his claims. I have problems with the documents. I note the country information about the propensity about false and fraudulent documents provided by Bangladesh asylum seekers; that documents are able to be obtained with the assistance of the police, that it is also common to pay bribes to officials, and in addition, lawyers will provide, for a fee, a letter advising that it is unsafe to return to Bangladesh. I note that the documents produced by the applicant have the appearance and flavour of such documents. Some of the documents contained information which did not support the applicant's claims.

13. More particularly, the presiding member said at paragraph 46:

The applicant claimed that he had been sentenced to death by stoning by a local arbitration council or board on 21 May 2000, that as a result he "escaped" to Dhaka and subsequently to Australia to avoid the execution of the sentence. He produced a document which he claimed supported the claim. It did not. Nowhere in the document did it say that the applicant was sentenced to death by stoning.

14. In relation to paragraph 46, Mr Archibald submits that the presiding member made at least one factual error. Mr Archibald submits that the presiding member misunderstood the use to which the applicant was seeking to put that particular document. He took me to page 7 of the transcript. The applicant, at the bottom of that page and proceeding over to page 8, was seeking to explain the course of events which the applicant said culminated in the death sentence by stoning. Although the explanation given by the applicant is not entirely clear, it appears that the applicant was explaining to the presiding member that there were two attendances that were relevant. The first was on 21 May and the second was on 26 May. On the first occasion the applicant said that he was sentenced to a beating with a slipper and that because he had failed to attend on that occasion he was later sentenced to death by stoning on 26 May. The document presented by the applicant related to the first proceeding and not the second.

15. However, the course of questioning in relation to this issue really begins on page 6 of the transcript when the presiding member raises with the applicant his claim that the applicant would be killed by the throwing of stones. The course of questioning continues for a number of pages up to at least page 12 of the transcript.

16. It is apparent to me from my reading of the whole series of questions that the presiding member was well aware that the applicant claimed that there were two relevant proceedings. The presiding member formed the view that the applicant was seeking to use the document in issue to support the more serious claim that he had been sentenced to death by stoning.

17. It does not appear to me from the transcript read as a whole that the presiding member's impression was false. There were two problems with the document at least. The first was that it did not, on its face, say anything about the subsequent asserted death sentence. The second problem was that the applicant's claim was that he suffered the death sentence because he failed to attend on the first occasion. However, the document on its face stated that the applicant had been present. This raised in the presiding member's mind a serious question of the credibility either of the document, or the applicant's oral claims, or both.

18. In the balance of his reasons to paragraph 49, the presiding member deals with other credibility concerns he had with the applicant's claims. On a fair reading I find no factual error in the analysis by the presiding member. Even if there had been a factual error, it would not amount to legal error. The applicant's first proposition that the RRT's finding was so unreasonable that no reasonable tribunal could make it is an assertion of Wednesbury unreasonableness. It is by no means clear that unreasonableness so characterised is available in migration proceedings which depend on a fact finding process rather than upon the exercise of any significant discretionary powers. In any event, in the absence of any apparent factual error, on whatever basis unreasonableness is put, it has not been established.

19. Neither can the applicant establish that the adverse credibility finding is not based on probative evidence. Mr Lloyd deals with that issue in paragraph 24 of his written submissions. I agree with and adopt that paragraph:

Secondly, there is no ground of review in Australian law that says that a credibility finding must be premised upon "probative evidence". In the recent High Court decision of Minister for Immigration v SGLB (2004) 207 ALR 12, Gummow and Hayne JJ (Gleeson CJ agreeing) at [38]-[39] indicated that the no evidence ground was limited to jurisdictional facts and that no evidence in relation to adjectival facts going (at most) to the credibility of a witness did not constitute a jurisdictional error.

20. In addition, it is obvious that the evidence before the RRT which led to the adverse credibility finding was the applicant's own evidence. Even if probative evidence had been required the RRT is entitled to form an adverse credibility view on the evidence presented by the applicant himself.

21. In addition, as is pointed out by Mr Lloyd in paragraph 25 of his submissions, illogicality, even if were present and it is not, does not of itself point to any jurisdictional error. I adopt for the purposes of this judgment that paragraph of Mr Lloyd's submission also:

Thirdly, illogicality in fact-finding does not in itself disclose jurisdictional error: most recently, VWST v Minister for Immigration [2004] FCAFC 286, Kiefel Marshall and Downes JJ at [16]-[19].

22. It follows that the first ground in the further amended application fails.

23. The other ground draws support in terms of general principle from the decision of the Full Federal Court in Minister for Immigration and v Rajalingam [1999] FCA 719. In that case at paragraph [62] the court observed:

When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution.

24. Mr Archibald also refers to the decisions of W68/01A v Minister for Immigration [2002] FCA 148 and WAAD v Minister for Immigration [2002] FCAFC 399. While not on all fours with the decision in Rajalingam those decisions are authority for a related proposition that the RRT must achieve a level of satisfaction necessary for the exercise of power under s.65 of the Migration Act 1958 (Cth) ("the Migration Act"). It is possible that the RRT may not reach the necessary level of satisfaction. It is also possible that the fact finding process engaged upon by the RRT may miscarry for some reason. It is also possible that the RRT may misunderstand or misapply the Refugees Convention or the Migration Act or simply misunderstand the task that it has to perform. Any such error may amount to jurisdictional error.

25. Mr Lloyd, in his oral submissions, took me to the decision of the Full Federal Court in Minister for Immigration v W64/01A [2003] FCAFC 12. That decision, together with other relevant authority referred to by Mr Lloyd, establishes that if a presiding member is able to form a clear and unequivocal view on an issue of credibility, no issue arises as to the need for the presiding member to go on to consider the applicant's claims as if they were true. I agree with and adopt for the purposes of this judgment paragraphs 26 to 28 of Mr Lloyd's written submissions in this regard:

Finally, a tribunal will only have failed to apply the Convention test correctly if on a fair reading it did have real doubts about its finding and failed to consider the possibility that its findings were wrong: Minister for Immigration v Rajalingam (1999) 93 FCR 220. This question can only be resolved by a fair reading of the RRT's decision, doubt cannot be imputed to the RRT because an applicant or a judge considers that the RRT should have had doubt (at [107]). In the present case, the RRT made clear findings:

* "I do not consider that the applicant was a reliable or credible witness."[13]

* "The lack of credibility of the applicant's evidence leads me to conclude that I am unable to be satisfied that the applicant suffered persecution in Bangladesh because of his homosexuality..."[14]

* "I am unable to accept that the applicant is a homosexual."[15]

* "... I am unable to accept the veracity of either the document or the applicant's evidence."[16]

* "I am unable to accept that the applicant was a homosexual in Bangladesh."[17]

* None of these findings suggests that the RRT had any real doubts about its rejection of the applicant's claims.

This is not a case where the RRT had accepted the bulk of the applicant's claims and accepted that they revealed a real chance of harm. The present case is one where the RRT has rejected the applicant's core claims in toto.

26. It is clear to me from a fair reading of the Presiding Member's reasons for decision that he was left in no doubt that the applicant's claims lacked credibility. That, in turn, led to a clear finding that the applicant was not a homosexual as he had claimed. It is noteworthy in that regard that the presiding member took a different view to that of the delegate. The delegate had been prepared to accept as plausible, the applicant's claims to be a homosexual. The presiding member took the opposite view and took that view in clear and unequivocal terms. As there was no doubt about the presiding member's conclusion on that fundamental issue, there was no need for the presiding member to consider the applicant's claims as if they had been true.

27. Accordingly, the second ground of review also fails. In the circumstances, the decision of the RRT is a privative clause decision and the application must be dismissed.

28. On the question of costs, the application having been dismissed, Mr Lloyd seeks an order for costs fixed in the sum of $5,500. I am satisfied that costs should follow the event. I am also satisfied that having regard to the preparation required of the Minister in this case, including examination of the transcript prepared by the applicant, costs of $5,000 have been reasonably and properly incurred on behalf of the Minister. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 17 December 2004


--------------------------------------------------------------------------------

[1] court book, page 66.1

[2] court book, pages 1- 29

[3] court book, pages 30-37

[4] court book, pages 38-41

[5] court book, pages 42-56

[6] court book, pages 57-58

[7] court book, pages 60-61

[8] court book, page 59

[9] court book, page 65

[10] court book, page 76.1

[11] court book, pages 76-77

[12] court book, page 77.5

[13] court book, page 76.1

[14] court book, page 76.2

[15] court book, page 76.3

[16] court book, pages 76.8, 77.3

[17] court book, page 77.6
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