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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.

SZDMC v Minister for Immigration [2004] FMCA 886 (6 December 2004)

SZDMC v Minister for Immigration [2004] FMCA 886 (6 December 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDMC v MINISTER FOR IMMIGRATION
[2004] FMCA 886




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class XA) visa - no jurisdictional error - application dismissed.




Migration Act 1958 (Cth), ss.422B, 430, 431, 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

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598

Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547

Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155

WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277

Azzi v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 120 FCR 48

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264

VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Muin v Refugee Review Tribunal (2002) 190 ALR 601

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

Applicant:
SZDMC




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1315 of 2004




Delivered on:


6 December 2004




Delivered at:


Sydney


Hearing date:
3 November 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

The applicant appeared in person with the aid of an interpreter.

Counsel for the Respondent:


Mr M Wigney




Solicitors for the Respondent:


Clayton Utz




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



SYG1315 of 2004

SZDMC



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for a review of the decision of the Refugee Review Tribunal ("the Tribunal") made on 13 March 2004 and handed down on 13 April 2004, affirming a decision of a delegate of the respondent ("the delegate") made on 31 October 2003 to refuse to grant the applicant a protection visa.

Background

2. The applicant is a citizen of Bangladesh who arrived in Australia on 7 August 2003 from New Zealand on a transit visa that had been issued in Auckland, New Zealand. The applicant travelled to New Zealand from Bangladesh on 7 July 2003. On 8 August 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth) ("the Act") (Court Book pp.1-27) ("CB"). The application was accompanied by supporting documents (CB pp.28-48).

3. The applicant claimed he was born in Noakhali, Bangladesh on 1 January 1977. He claimed to be a Christian and to be able to speak, read and write Bengali. The applicant claimed to have never been married and his occupation or profession to be that of student. He was formerly a resident of New Zealand where he claimed he was a student. The applicant claimed he lived at the same residential address in Noakhali, Bangladesh from at least January 1993 until January 2002, and then in Dhaka from February 2002 until he left Bangladesh in July 2003 (CB pp.14-17).

4. The applicant claimed to have completed his secondary schooling and university gaining SSC in 1993, HSC in 1995 and an MA in 1999 (CB p.18). He also claimed to have been employed as a stationery shop owner from December 2000 until leaving Bangladesh in July 2003. The applicant claimed to have never been convicted of any crime or offence or to have been under investigation for any crime or offence.

5. The applicant claimed to have departed Bangladesh for New Zealand in July 2003 through Zia International Airport legally and without any difficulty. He claimed he had a passport issued in Bangladesh in July 2003 valid until January 2008.

6. The applicant claimed he was persecuted because of his political opinion and religious beliefs in Bangladesh. He claimed he was an activist in the student wing of the Bangladesh Awami League and was a target of the present four party coalition government because of his popularity. The applicant also claimed he was a victim of religious persecution because of his relationship with a Christian woman who was his partner. He claimed he would be killed by Muslim fundamentalists and the four party coalition government's partner, Jamaat-E-Islami because he has converted to Christianity. The applicant claimed he would provide more details later (CB pp.20-22).

7. The applicant claimed the present government was against sectarianism and other religions and it would persecute him because he changed his religion and was a popular Awami League in the local area (CB p.22). The applicant provided copies of an Amnesty International Report 2002-2003 and some copies of photographs in support of his claim (CB pp.35-47).

The Tribunal's findings and reasons

8. On 23 November 2003 the applicant applied to the Tribunal for a review of the delegate's decision (CB pp.65-68) A hearing was convened on 9 and 16 January 2004 at which the applicant gave oral evidence. On 13 April 2004 the Tribunal handed down its decision, affirming the decision of the delegate refusing the applicant's visa application (CB pp.147-172).

9. The Tribunal's decision to affirm the delegate's refusal of the applicant's visa application was based on the factual findings it made in relation to the applicant's claimed fear of returning to Bangladesh. In particular, the Tribunal found:

"I am unable to accept that the applicant was either a truthful witness or that his evidence had any credibility or veracity. The applicant's evidence was to various degrees vague, generalised, lacked specific detail, inconsistent and contradictory. I am of the view that the applicant has fabricated his claims to bring to himself the profile of a refugee. He has done this by using the story and supporting evidence of another person as his own." (CB p.166 [75])

10. The Tribunal considered all of the factual claims made by the applicant in support of his application and made specific findings rejecting each of the claims and the evidence given by the applicant for much the same or similar reasons. The Tribunal's statement of reasons contained a detailed analysis of the applicant's evidence and the Tribunal's reasons for disbelieving him and rejecting his evidence and claims. The Tribunal treated the documentary evidence submitted by the applicant in a similar manner and for the same reasons.

11. In relation to the Tribunal's findings that the applicant had used the story and supporting evidence of another person, the Tribunal referred to the fact that most of the documents submitted by the applicant plainly did not concern him and that the applicant's evidence explaining this was manifestly unacceptable. The Tribunal rejected as a fabrication one of the documents that did on its face appear to concern the applicant (CB pp.166-167 [78]). The Tribunal accepted one document that was submitted by the applicant as demonstrating that he was baptised into a Christian Church in New Zealand (CB p.168 [84]) but found that the applicant was not baptised for any genuine reason other than to advance his claims for being a refugee (CB p.169 [85]).

12. The Tribunal ultimately concluded that it was not satisfied that the applicant had a well-founded fear of persecution in Bangladesh by reason of his political opinion, religion or any other Convention reason. As a result the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugee Convention and that therefore he did not satisfy the criteria set out in s.36(2) of the Act for a protection visa.

Application for review of the Tribunal's decision

13. On 21 September 2004 the applicant filed an amended application for review under s.39B of the Judiciary Act 1903 setting out the following grounds:

"1. The purported decision of the Tribunal does not reflect that it was made in good faith according to the rules of natural justice.

2. In the purported decision of the Tribunal, Migration Act 1958 was not observed properly.

3. The Tribunal denied most of the evidences submitted for the purpose of affirming the decision under review. Thus this purported decision is the reflection of the decision set in the back of its mind. Hence this decision was made in complete bad faith.

4. s427.1.d of the Migration Act 1958 gives the Tribunal the power to investigate my claims through any independent body. The Tribunal was invited to contact with relevant people to get evidence. S426.3 states that the Tribunal must have regard to the applicant's wishes but is nor required to obtain evidence (orally or otherwise) from a person named in the applicant's notice". In this case, the Tribunal can have leave to get evidence if and only if the Tribunal is already satisfied that the applicant is a person whom Australia has protection obligation. But what if the Tribunal has any doubts? What if the Tribunal decided not to get evidence because it knew that if it did, there would have been a decision favoring the applicant? What if the Tribunal bypassed all these cleverly in order to ignore Australia's protection obligation to the applicant". If the Tribunal did these, then certainly it did not full fill the requirement imposed by 420.1 of the Migration Act 1958.

5. There is not a shred of single evidence that Tribunal did combine the reviews of 2 or more RRT-reviewable decisions made in respect of the same non-citizen. Thus there was an error of law because the Tribunal failed to discharge the obligations imposed by s428.2 of the Migration Act 1958.

6. The Tribunal watered down the seriousness of most of my claims.

7. The Tribunal did not believe what ever I said. Thus, it conducted the hearing in bad faith. It did not inform me some facts that were a reason or part of the reason t affirm the decision that was under review.

8. The Tribunal did not make any reference to appearance of supporting church members and pastors on the day and time f hearing. The Tribunal did not contact Pastor James Muir to whom it was invited to contact to be cleared about some doubts it raised. Moreover, it did not set out of the reason why it did no do so. It also did not set out the findings on these material questions of fact. Thus it failed to discharge the obligations imposed by s430.1 of the Migration Act 1958.

9. I will provide more details later.


Particulars
The tribunal to consider in assessing the chance of the applicant being arrested and or persecuted on his return to Bangladesh based on the fact on my conversion to Christianity and political opinion.

The Tribunal's satisfaction that the applicant is not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.


Particulars
I repeat the particulars to grounds.

I refer very recent RRT decision [RRT FILE NO: N03/45951] which is identical of my political claims and persecution.

I refer very recent RRT decision [RRT FILE NO: N04/45951] which is identical of my political claims and persecution.

I will provide more detail at the time of my submission." (Errors in original)

The law

14. 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].

15. 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

16. The applicant appeared self represented with the aid of a Bengali interpreter. The applicant filed a 28 page written submission setting out his arguments. That document appears to have come from many sources and is prepared in a cut and paste fashion as it has a number of different type fonts, an inconsistent layout and presentation and hand written amendments. Part of the document is footnoted while other parts contain sizeable extracts from various judgments, where the footnoting has not been included. Other sections of the document are extracts from country information which refers to Bangladesh but is general in nature and does not address the arguments put forward by the applicant.

17. When the applicant was invited to make oral submissions, these were limited to the making of a statement that a review by the Tribunal of his brother's application for a protection visa had been successful while the applicant's application based on identical facts was not accepted. The other complaint raised by the applicant was that the Tribunal conducted its hearing over two days, namely 9 and 16 January 2004 and his brother, who had given evidence on 9 January, was unable to attend on 16 January due to illness but the Tribunal did not give the applicant any further time to allow for his brother's recovery to enable him to attend. It is noted that the applicant did have the assistance of a Mr Md Zahirul Hoq Mollah, a migration agent and authorised recipient.

18. Mr M Wigney of Counsel, appeared for the respondent and filed written submissions prior to the hearing. The general submissions of the respondent are that the applicant had not established that the Tribunal's decision demonstrated any error which would justify intervention by this Court. It was submitted that the Tribunal's reasons clearly show that it considered the applicant's visa application and all of the evidence and supporting material he put forward, correctly addressing the relevant visa criteria and relevant law to reach a state of non-satisfaction concerning the criteria. The Tribunal's non-satisfaction concerning the relevant criteria was based entirely on factual findings made by it in relation to the applicant's claimed fear of returning to Bangladesh. These factual findings and the Tribunal's ultimate finding in relation to the relevant criterion were open to the Tribunal on the evidence and material before it.

19. Mr Wigney addressed each of the grounds. In respect of ground 1 the allegation appears to be that the decision was not made in good faith or according to the rules of natural justice. The applicant did not provide any proper particulars in support of this ground nor any evidence led in relation to this allegation of bad faith. It follows that the applicant must rely on the statement of reasons alone to make out its case in this regard. An allegation of bad faith is a serious allegation involving personal fault on the part of the decision-maker and is not be made lightly or without proper proof. Cases in which the allegation has been made out are "rare and extreme", particularly where reliance is placed on the decision-maker's reasons alone: R v Hickman; Ex parte Fox & Clinton.

20. It was submitted that no particulars had been provided in relation to the contention that the decision was not made in accordance with the rules of natural justice. The applicant was given the opportunity to put all of his evidence and arguments to the Tribunal both in writing and at a hearing which progressed over two days. He was given the opportunity to respond to all information that may have been the reason for deciding the matter against him. It was submitted that, in any event, s.422B of the Act applies to this matter. The applicant did not allege, still less establish, that the Tribunal failed to comply with any relevant provision of Division 4 of the Act (other than addressed in the context of other grounds), which contains an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with.

21. In respect of ground 2, which is a broad assertion that the purported decision of the Tribunal did not observe the requirements of the Act properly, this ground is not particularised and it was submitted that it was nonsensical.

22. In respect of ground 3, the applicant alleged the Tribunal rejected most of the evidence and this raised the issue of the decision being made in bad faith. Counsel for the respondent submitted that the Tribunal did reject the bulk of the applicant's evidence, however it was open to it to do so. Findings in relation to the credit of the applicant and his evidence are matters for the Tribunal. It was further submitted that so long as the findings are open on the material before the Tribunal, they are not subject to challenge in proceedings such as these proceedings: Kopalapillai v Minister for Immigration & Multicultural Affairs. Counsel for the respondent submitted that a fair reading of the Tribunal's reasons disclosed not only that the findings were open to the Tribunal but that they were compelling. It was also submitted that the fact that the Tribunal rejected much of the applicant's evidence does not evidence bad faith and the findings were clearly open to the Tribunal on the material before it. The submissions in respect of ground 1 were repeated.

23. In respect of ground 4 the allegation is that the Tribunal did not investigate the applicant's claims. It was submitted that it was not for the Tribunal to make the applicant's case for him, rather it is for the applicant to put material before the Tribunal to persuade it of the matters relevant to the grant of the visa: Prasad v Minister for Immigration & Ethnic Affairs. It was submitted that the Tribunal was not, in the circumstances of this case, under any general duty or obligation to make inquiries: WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs; cf Azzi v Minister for Immigration & Multicultural & Indigenous Affairs at [112]. It was also submitted that the contention (repeated in the applicant's written submissions) that the Tribunal was invited to contact "relevant people to get their evidence" or that the Tribunal refused to take the oral evidence from the applicant's witness (Mohammed Faisal) must be rejected. That witness did not attend either of the hearings with the applicant (CB p.164 [68]) and no contact details were provided in relation to him (CB p.74). It was submitted that there is no evidence to suggest that the applicant requested the Tribunal to contact this person.

24. In ground 5 the applicant claimed that the Tribunal did not combine the reviews of two or more of its previous decisions made in respect of the same citizen. The pleading appears nonsensical however it may be inferred that the applicant is making reference to the fact that previous applicants before the Tribunal have been successful on the same facts as the applicant's case. In the applicant's amended application there is reference to two Tribunal decisions which the applicant's claims are similar to his situation. Unfortunately, there is no cohesive argument linking these various pieces of material together. Counsel for the respondent submitted that this ground was nonsensical and must be dismissed.

25. The applicant submitted in ground 6 that the Tribunal watered down the seriousness of most of his claims. Counsel for the respondent submitted that this ground is a challenge to the Tribunal's findings of fact and the merits of its decision. It was further submitted that it cannot, even if substantiated, amount to a jurisdictional error and is therefore not a proper ground of review, particularly in the light of s.474 of the Act. The claim is not particularised. It was submitted that the Tribunal rejected the applicant's claims for reasons that were open to it on the material before it.

26. Ground 7 of the applicant's claims alleges that the Tribunal did not believe whatever the applicant claimed. It was submitted by Counsel for the respondent that this is an allegation of bad faith and the contentions were addressed in ground 1. The allegation that the Tribunal did not inform the applicant the reasons to affirm the decision under review, it is submitted, must be rejected. A fair reading of the Tribunal's reasons clearly reveals that the Tribunal put all material adverse information to the applicant for comment. The applicant has provided no particulars of the information that he claims was not put to him for comment. The submission in the applicant's written submissions that there was a breach of s.424A of the Act has no substance. The applicant again provides no particulars. The only "country information" relied on by the Tribunal (CB p.165 [69]-[61], pp.166-167 [78]) fell within the exception in s.424A of the Act because it was information that was not specifically about the applicant: Minister for Immigration & Multicultural & Indigenous Affairs v NAMW ("NAMW") and it was not information that was integral or an essential part of the Tribunal's reasons for deciding the matter adversely to the applicant: VAF v Minister for Immigration & Multicultural & Indigenous Affairs at [33]. Even more significantly, it was submitted, it is clear that the substance of this information was put to the applicant at the hearing (CB pp.166-167 [78]) and thus there was therefore no practical unfairness or injustice that could constitute jurisdictional error or justify the grant of the relief sought: NAMW at [120].

27. Ground 8 claims that the Tribunal failed to observe s.431 of the Act by not contacting or making reference to various church members to support the applicant's claim. The Tribunal accepted that the applicant was baptised by Pastor Muir in New Zealand. It was submitted that the Tribunal was under no duty or obligation to make the inquiries suggested by the applicant. Counsel submitted that the issues being raised under this ground had already been raised under ground 4. It was submitted that the allegation that the Tribunal did not set out its findings on material question of fact as required by s.430 of the Act is manifestly baseless and in any event, even if made out, this would not amount to a jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf.

28. The applicant's amended application contained a further ground that the applicant would provide more information at a later date. This emerged in the applicant's written submissions where he has relied upon the authority of Muin v Refugee Review Tribunal ("Muin"). Again there is no evidentiary base to support any denial of procedural fairness of the sort considered in the case of Muin.

Conclusion

29. The applicant in these proceedings was self represented and filed written submissions in Court prior to the hearing. The nature of the written submissions is voluminous but does not address the individual grounds pleaded in the amended application. The grounds in the amended application are vague and unparticularised. Although there are two grounds stated, they do not directly relate to the individual grounds. It is difficult to see any correlation between the grounds of the application and the written submissions other than in very wide and general terms. There are some general themes which appear in both applications however the written submissions do not complement or augment the grounds in any systematic or logical manner.

30. However, where an applicant is self represented the Court must independently consider whether any arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. The manner in which the grounds have been drafted produce some overlapping and duplication of issues making it difficult to address individual issues to ensure that all aspects raised by the applicant have been satisfactorily addressed.

31. I accept the approach taken by Mr Wigney by Counsel and have reproduced his submissions as I believe it assists me in the resolution of this matter and ensures that each issue raised is correctly addressed. I detect a distinct similarity in the drafting of the amended application and the supporting written argument filed by the applicant to that of other applicants recently heard by this Court. The claims of actual bias and breaches of natural justice are pleaded in a manner that has little or no relation to the decision of the Tribunal.

32. I believe that the arguments that can be distilled from both the amended application and the written submissions have been identified and responded to in the submissions of Mr Wigney and I accept his submissions. I have not been able to identify any grounds that the Tribunal has committed a jurisdictional error. The applicant's claim should be dismissed.

33. 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-three (33) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: Menna McMullan

Date: 6 December 2004
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