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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal for a protection visa - no reviewable error found.

SZASH v Minister for Immigration [2004] FMCA 587 (17 September 2004)

SZASH v Minister for Immigration [2004] FMCA 587 (17 September 2004)
Last Updated: 12 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZASH v MINISTER FOR IMMIGRATION
[2004] FMCA 587




MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal for a protection visa - no reviewable error found.




Migration Act 1958 (Cth), s.474

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

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S134/2002 (2003) 195 ALR 1

Craig v South Australia (1994) 184 CLR 163

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

NARV v Minister for Immigration & Multicultural Affairs [2003] FCAFC 262

NAHV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1353

NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 361

Applicant:
SZASH




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ993 of 2003




Delivered on:


17 September 2004




Delivered at:


Sydney




Hearing date:


11 August 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

Applicant appeared in person with the assistance of an interpreter.

Counsel for the Respondent:


Ms R Francois




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) The application is dismissed.

(2) The applicant pay the respondent's costs set in the amount of $4,700 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ993 of 2003

SZASH



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for review of the decision of the Refugee Review Tribunal ("the Tribunal") handed down on 5 May 2003 affirming a decision of a delegate of the respondent made on 22 February 2001 to refuse to grant the applicant a protection visa.

2. The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 19 October 2000. On 20 November 2000 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").

3. On 22 February 2001 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs refused to grant a protection visa and on 15 March 2001 the applicant applied for review of that decision by the Tribunal. On 5 May 2003 the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa.

The history

4. The applicant is a single Muslim man from Bangladesh and was born on 1 November 1968. His parents and siblings remain in Bangladesh. The applicant has completed tertiary education and both a Bachelor and Masters Degree of Commerce. His occupation before coming to Australia was that of a "business man". The applicant states that he speaks, reads and writes both Bengali and English.

5. In his statutory declaration attached to his visa application, he claims to be a prominent activist and belong to the Progressive Nationalist Party ("PNP") which he joined as a student in 1985. Since joining he has devoted himself to organising the PNP and approaching the general people to participate under the banner of the PNP. During the student phase of his political activities, he claims to have led the PNP's student arm against the dictatorial Ershad regime.

6. The applicant claims that during this time as a student activist he was detained by the police for being involved with political uprisings.

7. After the fall of General Ershad in 1991, the Bangladesh National Party formed the Government and continued to pursue and persecute its political opponents in the same way as its predecessor.

8. After graduation, the applicant claimed to have become more involved in the activities of the PNP main organisation. He became a contributor to the PNP where he was allocated various PNP activities especially in the metropolitan city of Dhaka. Because of his role he was elected to the Executive Committee in 1995 and later became the Joint Secretary of the Central Committee in 1999.

9. As a result of these appointments and his increase in popularity among the people of Central Dhaka, the applicant claimed that he became a major political target by the governing Awami League. This led to a large amount of threats and assaults from the governing political activists whom he claims intimidated him with threats of death on several occasions. Specifically, he claimed that an Awami activist raided his home and assaulted and intimidated his family members with threats of death if they failed to stop him from continuing his political activities.

10. The applicant claimed that despite reporting these threats made against his person, the police failed to properly protect him. On 28 August 1998, while he was addressing a peaceful meeting of PNP followers, the police allegedly attacked the meeting with tear gas, hand bombs and rubber bullets, resulting in a large number of PNP workers including himself being severely injured. This he claims occurred on a number of occasions.

11. These disturbances continued and culminated in the Awami League activists lodging a false and fabricated case against the applicant at the Demra Police Station where they accused him of assaulting Awami League leaders and being involved in anti-State activities. As a consequence he became wanted by the police and attacks continued from the Awami League activists against himself and his family members.

12. The applicant claimed to be in fear for his life and became desperate to escape Bangladesh. He applied to the Australian High Commission for a visitor's visa to Australia and was successful in having that visa granted on 7 September 2000, resulting in his departure for Australia shortly after.

The Delegate's decision and reasoning

13. The delegate for the Minister in refusing the protection visa application gave four main reasons for that decision. Those reasons were that:

a) The delegate doubted the authenticity of the documents provided by the applicant, given their implausible content and the independent information of document fraud in Bangladesh;

b) Even if the applicant was a member of the PNP and participated in demonstrations, any violence was generalised, not directed at the applicant and therefore not persecution;

c) The applicant's claim that a false charge caused him to go into hiding and flee was after the time that he had already applied for the visa to come to Australia; and

d) The applicant left Bangladesh under a passport in his own name which did not lend credibility to his claim of being in fear of his life from discovery by the Bangladesh authorities.

The Tribunal's decision and reasoning

14. On 15 and 22 March 2001 the applicant applied to the Tribunal for review of the delegate's decision. The applicant's migration adviser filed a submission in support of the application for review on 26 April 2003. Those submissions did not address the concerns of the delegate.

15. On 14 April 2003 the Tribunal advised the applicant that it was not able to make a favourable decision on the information he had provided and invited him to attend a hearing on 24 February 2003. After one adjournment was granted, the matter was eventually listed for hearing on 29 April 2003.

16. The applicant attended the hearing and gave oral evidence. During the hearing the applicant provided some further photographic evidence, which he claimed, was him addressing a political rally while another was of an elderly gentleman whom he claimed was the victim of a gang attack during one of these rallies.

17. On 5 May 2003 the Tribunal affirmed the decision of the delegate not to grant a protection visa.

18. The Tribunal accepted that the applicant was a member of the PNP. However, the oral and documentary evidence provided by the applicant, were considered to be unreliable and did not support any of the other claims made by the applicant. The Tribunal rejected the applicant's claims on the following basis:

a) The PNP was now disbanded and had merged with the Jatiya Party and were new partners with the BNP, which is now in government with the PNP. The Tribunal found there was no independent evidence to support the applicant's claim that former PNP members resisted joining the Jatiya Party and that he still has reason to fear the Jatiya Party.

b) The applicant's evidence, when questioned about the similarity in letters that he submitted from two doctors, was contradictory and the applicant could not adequately explain the dates of the documents and why they were in English;

c) The applicant's evidence about being sought by authorities and yet speaking at public meetings was implausible and his explanation for this during the hearing contradicted his statutory declaration;

d) The applicant's evidence as to why he fled Bangladesh and when he obtained his visa to come to Australia was also contradictory;

e) It was implausible that the applicant was being sought by the authorities in 1999 as he had obtained his passport in September 1999;

f) It did not accept the applicant's photographic evidence showing police actively seeking him. The Tribunal considered that it was unlikely the photographs were taken clandestinely and the police would be unlikely to permit photographs of such activities to be taken openly; and

g) It did not accept the genuineness of any documents submitted by the applicant in light of document fraud in Bangladesh and its previous finding in relation to letters from the doctors.

The adverse findings of the applicant's credibility by the Tribunal, based on the material provided to it, was a legally proper rejection: Kopalapillai v Minister for Immigration & Multicultural Affairs.

The application for review of the Tribunal's decision

19. The applicant filed an amended application in this Court on 8 March 2003 setting out the grounds for review as follows:

(1) The Tribunal exceeded its jurisdiction, in failing to accord the applicant's procedural fairness as required under s.424(1) and s.418(3) of the Migration Act 1985.

(2) The Refugee Review Tribunal did not follow the type of procedure as required by the Migration Act 1958 thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision, were not observed. The applicant's case is identical with the Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002).


Particulars
a) The Tribunal did not provide the particulars of information to the applicant, in the Australian embassy reports or any other adverse materials, which formed part of the reason of the Tribunal's decision. Therefore, by not dealing with this matter, there was a constructive failure to exercise jurisdiction on the part of the Tribunal, and or lack of procedural fairness.

b) The Refugee Review Tribunal Member erred in not finding that the delegate of the respondent had not dealt with, or not dealt in applicant's substantive way with, a key component of the applicant's claim, that the serious persecution will face him on his return to Bangladesh in foreseeable future. Thus, by not dealing with this issue, there was a lack of procedural fairness or error of law.

c) The Tribunal never ever put to the applicant its doubts about documents containing information personal to the applicants from Bangladeshi authority and those information formed part of the reasons for the Tribunal's decision.

d) The Refugee Review Tribunal did not complete the exercise of its jurisdiction as it made no findings as to what socio-political changes might occur in Bangladesh in the reasonably foreseeable future and it thus failed to assess whether the applicants' fears of being persecuted by the Bangladeshi Government were well-founded in the reasonably foreseeable future.

e) Refugee Review Tribunal fell into jurisdictional error in assessing whether or not the State was able to offer adequate protection to the appellant if he returned. By not dealing with this matter, there was a constructive failure to exercise jurisdiction on the part of the Tribunal, or error of law or lack of procedural fairness.

The law

20. The present application is affected by the privative clause contained in s.474 of the Act. The High Court held that Plaintiff S157/2002 v Commonwealth of Australia ("S157/2002"); Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 ("S134/2002"), 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].

21. 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

22. The applicant's written submissions filed before the hearing provide no further particularisation of the grounds but introduces new references to findings that are not contained in the Tribunal's reasons. The applicant lists a number of errors that he believes the Tribunal made, the first of which is the issue of relocation to another state. He also claims that the Tribunal failed to consider the relocation principles of "economic and logistic barriers". There is no reference in the Tribunal's decision raising the matter of relocation. The second issue is the claim that the Tribunal failed to refer to the material upon which it based its finding that the applicant had protection available from the authorities in Bangladesh. The Tribunal did not make such a finding. The Tribunal formed a view that because of the substantial change in circumstances and structure in the ruling parties, including a change in government where the ruling party is now in opposition, there now existed a completely different political landscape and the focus on political activists was substantially different. Further, within these new references introduced in the written submissions, there is a matter that contradicts his original grounds for appeal and other submissions. The submissions are not expressed as alternatives but are inconsistent within themselves.

23. The applicant includes the ground that the Tribunal exceeded its jurisdiction in failing to accord the applicant procedural fairness which is required under s.418(3) of the Act. The thrust of this pleading is not clear as the Tribunal states in its reasons that it had before it the Department's files which included the protection visa application and the delegate's decision record. It states that the Tribunal had regard to material referred to it in the delegate's decision and other material available to it from a range of sources. The Tribunal goes further to set out in some detail the submissions that it had before it.

24. On the other limb of this pleading of failing to accord the applicant procedural fairness, there is reference to s.424(1) of the Act. The relevance of this section is not immediately apparent and presumably the section has been incorrectly quoted and in fact refers to an alleged breach of s.424A(1).

25. The Tribunal under the provisions of s.424A(1) is not under an obligation to provide the applicant with all or any of the documents referred to in its decision, except in the case of document fraud. Section 424A of the Act obliges the Tribunal to give certain information to the applicant to ensure that they understand its relevance to review and invite them to comment on it. Section 424A(3)(a) of the Act provides that these obligations do not apply in relation to information that was, relevantly, "just about a class of person of which the applicant or other person is a member": NARV v Minister for Immigration & Multicultural Affairs.

26. The Tribunal had information before it about document fraud and the current status of the PNP. The Tribunal put that information to the applicant during its hearing of 28 April 2003 and invited him to give comments. Any failure by the Tribunal to comply with s.424A(2) with respect to the information about document fraud in the circumstances of this case, does not render the decision invalid or constitute any form of judicial error: NAHV v Minister for Immigration & Multicultural & Indigenous Affairs per Carr, Kifel and Alsop JJ at [23].

27. The applicant was aware of information about document fraud and its implications as it had been raised by the delegate in the original assessment of the visa claim. This was raised in the reasons for the original refusal under Item (g) in [18] above.

28. The application contains a ground that the Tribunal committed an error identified in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal ("Muin"). The applicant suggests that his case is identical with that of Muin.

29. Neither the amended application, written submissions nor oral submissions contain any evidence which suggest that the applicant was misled into believing that the Tribunal had considered any particular relevant information which resulted in the applicant being denied the opportunity to ensure that that material was placed before the Tribunal.

30. The information, that the applicant is claiming he should have been given the opportunity to ensure was before the Tribunal, has not been identified. There are a number of factors that are required to enliven the Muin principle, these are stated in NADR v Minister for Immigration & Multicultural Affairs at [23]:

"...in connection with the final declaration made in Muin, that a want of procedural fairness was found by the majority of the Court (but not by Hayne J) to have been established because the adverse material was not drawn to the Plaintiff's attention."

31. As stated at [24]:

"Muin does not establish, ... that the effect of sending a letter in those terms would amount to a denial of procedural fairness in circumstances where the Tribunal has not referred to the Part B documents in its later decision. Rather it holds there is a want of procedural fairness when an applicant before the Tribunal is mislead into thinking that the Tribunal was considering particular relevant information and, as a result, did not ensure that such information was placed before it. Whether it is necessary to infer that the Tribunal was not likely to have considered the material, or whether it is sufficient that it may not have done so, is perhaps moot. It is also of importance that a conclusion that the Plaintiff was misled was rendered possible largely because of agreed facts."

32. As stated at [26]:

"It cannot be inferred as a fact in every case involving a letter in these terms, that an applicant was affected in some way by it when it came to provide information to the Tribunal and participate in the hearing."

33. Much, of course, will depend upon what information was contained in the Part B documents and the issues of the applicant's case. It could not be assumed that the applicant here would have taken any particular course had he known that the Tribunal had not been provided with documents or did not intend to refer to them. It was not explained to the Court how it might be concluded by reference to the contents of the Part B documents. It would also be necessary to consider whether the particular matters upon which the applicant would rely were, in any event, amongst the material identified by the Tribunal. Those matters were not identified for the Court.

34. In the Tribunal decision, under the heading "Claims and evidence" (Court Book 108), it states:

"The Tribunal has before it the Department's files, which include the protective visa application and the delegate's decision record. The Tribunal also had regard to the material referred to in the delegate's decision and other material available to it from a range of sources."

35. As stated above, the Tribunal clearly indicates that it had access to and reviewed the information that was before the delegate when they made their decision.

36. The applicant claimed that the Tribunal failed to consider that the applicant would face harm if he returned to Bangladesh in the future. This was based on failure by the Tribunal to consider the socio political changes that may occur in Bangladesh in the future and whether there was any effective protection offered by the State.

Conclusion

37. The Tribunal rejected the applicant's credit and did not believe his claims. Consequently, it was not obliged to consider these issues.

38. The application and the supporting written submissions are deficient in that they do not identify anything in relation to the decision of the Tribunal or the proceedings before the Tribunal to assist the Court in determining whether any review of jurisdictional error is disclosed in the decision. I invited the applicant at the hearing to put before me anything that may assist in identifying jurisdictional error, but apart from recreating his dispute of findings of fact made by the Tribunal he was not able to expand on the application and the written submission.

39. Ms Francois for the respondent Minister has submitted to me that the application must be dismissed as no reviewable jurisdictional error has been disclosed. I agree. It is apparent that the Tribunal formed an adverse view about the credibility of the claims being made by the applicant. These findings by the Tribunal were reasonably open to it on the material before it. I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision. In addition, the decision of the Tribunal was a bona fide attempt to exercise the power. The decision clearly relates to the subject matter of the Migration Act 1958 (Cth) and relates to the powers conferred on the Tribunal.

40. I find that the decision of the Tribunal is a privative clause decision having regard to the decision of the High Court in S157/2002.

41. In the circumstances I will dismiss the application.

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

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 17 September 2004
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