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

SZAUB v Minister for Immigration [2004] FMCA 633 (24 September 2004)

SZAUB v Minister for Immigration [2004] FMCA 633 (24 September 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAUB v MINISTER FOR IMMIGRATION
[2004] FMCA 633




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




Migration Act 1958 (Cth), s.422B

Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 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 (1995) 184 CLR 163

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

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

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Australian Broadcasting Tribunal v Bond (1990) CLR 321

Re Refugee Tribunal; Ex parte Alaa (2000) 204 CLR 82

Li v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 19

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:
SZAUB




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ1098 of 2003




Delivered on:


24 September 2004




Delivered at:


Sydney




Hearing date:


17 August 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

Applicant appeared in person with the assistance of an interpreter.

Counsel for the Respondent:


Mr G Kennett




Solicitors for the Respondent:


Blake Dawson Waldron




ORDERS

(1) The application is dismissed.

(2) The applicant pay the respondent's costs set in the amount of $5,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ1098 of 2003

SZAUB



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 29 March 2002. On 23 April 2002 the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs ("DIMIA") under the Migration Act 1958 (Cth) ("the Act"). On 19 June 2002 the delegate of the Minister refused to grant a protection visa. On 11 July 2002 the applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. The Tribunal held a hearing on 21 May 2003 in which it gave an oral decision affirming the decision of the delegate followed by written reasons on 26 May 2003.

The history

2. The applicant, a married Muslim man from Dhaka, Bangladesh, was born on 15 February 1959. His mother, siblings, wife and two sons remain in Bangladesh. The applicant has completed tertiary education and was awarded a Bachelor of Commerce in 1979. His occupation before coming to Australia was that of a "Manager" for an organisation for which he had worked sixteen years. He had also resided at the same address in Dhaka for a similar period.

3. The applicant speaks, reads and writes Bengali, reads and writes English and speaks Hindu.

4. The applicant claims that he has been an active supporter of the Awami League ("the League") for a long period and an office holder in that organisation in 2000 and 2002. He states that his family was politically oriented. His father had also been a member of the League and his parents encouraged his participation in politics. He claimed that he joined the political activities of the League after his 1979 graduation and took part in various political rallies and demonstrations directly arranged by that organisation.

5. In the applicant's statement attached to his original visa application, he states that he spent much of his adult life motivating people to join the League. As a result, he became one of the leaders of the League's Central Committee and represented that organisation in a wide range of political activities in the area.

6. When the League lost power in the 2001 elections, to a coalition led by the Bangladesh Nationalist Party ("BNP"), the applicant claimed he was attacked. In paragraph 10 of a signed but undated statement of the applicant which was supplied to the Department on 23 April 2002 by the applicant's migration agent, Mr Zahirul Hoq Mollah, the applicant describes the nature of these attacks:

"After the Awami League handed over power to the caretaker government, I was attacked by BNP and Muslim fundamentalist terrorists twice in November 2001. Luckily I was survive. October 2001 BNP and the allies came to power and started persecuting Awami League members, workers and supporters. About one month after the election I was arrested by BNP officials at Mohammed P S Awami League office and a false charge was laid against me.

I was taken to BNP Centre, assaulted and beaten. I was at the Awami League office with seven of my associates who were also members of the Awami League. We were discussing the post selection situation of the party. I was the only one arrested as I was the vice president. At the Centre where I was taken I was threatened at gun point. They threatened me that if I continued to support the Awami League I would be killed. They also told me to leave Bangladesh soon."

I was released. Soon after this I was verbally threatened by members of the Jamat Islami Fundamentalist Party. They supported the BNP in forming a coalition government. These people also told me to discontinue supporting the Awami League and feminist writer Taslima Nazrin."

7. There is a further claim made under paragraphs 21 and 22 of the applicant's statement:

"The government agent filed a case against a number of my political friends including me alleging that we were acting against State and Government. Mohammed Pur P S Case No. 23 (2) 2002 s.124(B) / 147 / 148 / 326 / 427 / 436 / 353 of Bangladesh Penal Code and 3 & 4 Explosive Substance Act. A warrant was issued against me from Dhaka Metropolitan Magistrate Court. That was a false and fabricated case and police forces started visiting my residence and threatening members of my family."

"I was attacked by fundamentalist Muslim terrorists because of my secular opinion. In Bangladesh fundamentalist Muslims are ferocious. I am also a member of the Taslima Nazrin fan club. Taslima Nazrin is a fundamentalist author and popular social reformer. Now she is an asylum seeker in Europe."

8. On 19 June 2002 the applicant was advised that his application for a protection visa was refused as he failed to meet the criteria. On 11 July 2001 the applicant applied to the Tribunal for review of the Minister's delegate's decision.

The Tribunal's decision and reasoning

9. The Tribunal had before it the Department's files which included the application for protection visa and the delegate's decision record. The Tribunal also had the copy of the review application. The applicant appeared at the Tribunal hearing on 21 May 2003 and gave oral evidence through a Bengali interpreter.

10. The claims and the evidence put by the applicant before the Tribunal can be divided into discrete categories as follows:

a) Claims received by the DIMIA on 23 April 2002. The applicant declared that the information supplied was complete, correct and up to date in every detail. He also enclosed Amnesty International Reports from 1991, 1992, 1993 and various press clippings from 2002, none of which mentioned the applicant. He undertook to support his claim and authorise a registered migration agent with initials ZHM to act on his behalf.

b) The DIMIA letter to applicant of 18 May 2002. This letter included a number of matters, which the Department found were adverse to the applicant's case.

c) The migration adviser's response on 17 June 2002. This letter addressed the BNP and its allies' excessive treatment of political opponents and undertook to provide further documentary evidence within six weeks to support the applicant's claim.

d) The DIMIA decision recorded on 19 June 2002. The delegate identified the reasons that it would be unlikely that the applicant would be successful in his application and raised the issue of why the applicant could not relocate to another part of Bangladesh.

e) The Tribunal received new claims on 11 July 2002. This is a further statement that the applicant was not only a political victim but also a victim of fundamentalist terror attacks in Bangladesh. The applicant authorised the same migration agent to receive correspondence and act on his behalf.

f) Materials received on 15 May 2003. The migration agent indicated he had been experiencing difficulty in obtaining all of the material but included a range of documents which were predominantly from the Mohammed Pur Police Department and Magistrate's records.

11. At the hearing on 21 May 2003, the applicant claimed that he had told the truth in all applications and submissions to the DIMIA and the Tribunal. He explained that the initial DIMIA claim had been prepared by the applicant telling the adviser his story and the adviser recording it and the applicant checking the final English language version. The applicant was satisfied that the claim was correct and that the documents submitted in May 2003 were obtained by the applicant personally then given to the adviser to forward.

12. When asked to explain the nature of the various trips recorded in his passport the applicant claimed they were not business in nature but rather they enabled him to get away from his problems in Dhaka after the 2001 elections. When asked why he had visited Singapore as opposed to India, which would have been cheaper, he claimed that the price differential was insignificant. The Tribunal could not accept this information readily based on the significant cost difference and his limited monthly salary.

13. When asked to explain the period of time that had elapsed between his application for the obtaining of his visa to Australia and his departure, the applicant claimed that he was in no hurry to depart. He indicated that he retained some hope that the situation in Bangladesh would remedy itself.

14. The Tribunal asked the applicant to explain how he could reside at the same address and work at the same place after the October 2001 elections, despite the fear of his enemies and the police being able to find him easily. The applicant claimed that he had had no trouble at work but occasionally stayed away from home to avoid incidents. This response was amended after some probing with the admission that during the period of November 2001 and March 2002 he had spent time away from Dhaka. After further questioning, the applicant finally admitted that he had only spent two or three weeks each month in Dhaka.

15. When the Tribunal member raised with the applicant the similarity of his application with that of several others handled by his adviser, the applicant said that many people would have gone through similar situations. These similarities included:

a) the holding of office within the last year or two;

b) the two occasions in which the applicant was lucky to survive attacks in the final year in their country;

c) the similarity of the letters from the adviser in each case (including identical spelling mistakes);

d) independent letters which appeared to have been commissioned or created by the same person;

e) the contents of letters in support of different applicants and from different authors containing the precisely the same ineptly expressed contents;

f) the incorrect usage and spelling by a letter signatory who is claimed to speak English.

16. The Tribunal member also noted a number of irregularities in relation to the time required to obtain documents, the source of those documents and the explanation given that these were tied in some way to the working of the Courts in Bangladesh. It was noted that the applicant had many opportunities to make claims or supply documents and that he was an educated man who had been assisted by an experienced registered migration agent.

17. The Tribunal member noted other similar inconsistencies in the applicant's approach. His approach when asked to explain the relative ease with which it appeared he had obtained a passport application to leave the country differed completely to the approach taken when asked to explain why he could not relocate in Bangladesh to avoid the authorities pursuing the outstanding legal issues brought against him.

18. The Tribunal also had at its disposal a wide range of material about Bangladesh.

19. In the Tribunal's findings and reasons it held that the applicant had had at least six opportunities to present his case. These have been briefly summarised above. This is raised in the context that the DIMIA and the Tribunal application had emphasised the importance of providing the fullest details of claims. It was pointed out that on three occasions the applicant had declared the completeness of the contents of his claim. On three separate occasions prior to the hearing the applicant was advised that his case and the supporting material were not convincing.

20. The Tribunal summarised the applicant's claim before the hearing of 20 May 2003 as:

"... he lived at the one address in Dhaka from 1986; was employed at one business address in Dhaka from 1986; was involved in the Awami League politics for over two decades before coming to Australia; he held office in one branch of the Awami League in Dhaka in 2001-2; he was a supporter of Taslima Nazrin; he was attacked twice by BNP and fundamentalist supporters in 2001 (i.e. the month after the October 2001 elections of the BNP lead coalition); he was arrested and mistreated in November 2001 in relation to a false case and a further false case was lodged in February 2002; he left Bangladesh to escape the attention of the BNP, fundamentalists and the police."

21. The Tribunal found that these claims and new claims made by the applicant at the hearing soon lost any credibility as pointers to persecution.

The application for review of the Tribunal's decision

22. On 16 June 2003 the applicant filed an application under provision of s.39B of the Judiciary Act 1903 seeking a review of the Tribunal's decision. The application contained the following grounds:

1. The tribunal did not take into account the court case and conviction in Bangladesh of a convention based reason.

2. The tribunal made his decision in bad faith.

3. The tribunal deprived me of the natural justice.

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

5. The tribunal's decision did not reflect the material facts of my claim.

6. The tribunal has given a decision, which was preset in the back of it's (sic) mind.

7. The tribunal mixed up many facts with this decision which affected the decision.

8. The tribunal concentrated in particular fact, while ignored many other facts in this condition.

9. The grounds of RRT decision received late.

10. I will provide more grounds later.

The law

23. 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].

24. 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

25. The applicant filed written submissions prior to the hearing and appeared in person with the assistance of an interpreter. When invited to address his written submissions or make any other submission in support of his application, he declined the invitation.

26. The applicant's written submissions contain a short summary of the applicant's circumstances leading up to his appearance in this Court. The balance of the document appears to be extracts drawn from various sources and are internally inconsistent. Some paragraphs contain statements that misstated the Tribunal's decision.

27. In paragraph 2 of the applicant's submission he asserts that the Tribunal did not believe that he was a member of the Awami League. However, while the findings and reasons section of the Tribunal's decision comments on the absence of any direct evidence of his membership, it goes on to state that for the purposes of the decision it accepted the applicant may have been a member an office holder of the Awami League.

28. In other paragraphs within the applicant's submission, there appears to be references to issues not related to this case in any apparent way. Further, in other paragraphs, there are general assertions of error not directed to any particular passage within the Tribunal's reasons. Consequently, the applicant's submissions do not provide a great deal of assistance.

29. However, as the applicant in these proceedings was representing himself, I should not limit any considerations to arguments put forward by the applicant. Where the applicant is self-represented, the Court must independently consider whether there is any arguable case, based on the material, which could be made out: Yo Han Chung v University of Sydney & Ors.

30. Mr Kennett, Counsel for the respondent, has assisted me in his written submissions by identifying four grounds that require attention. These grounds are:

a) Ground 1 - the Tribunal "did not take into account the Court case and conviction in Bangladesh of a convention based reason";

b) Ground 2 - bad faith;

c) Ground 3 - denial of natural justice; and

d) Ground 4 - (apparent) actual bias.

31. The balance of the applicant's grounds and supporting submissions make various attacks on the merits of the Tribunal's decision which cannot form a basis for grant of relief by this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang.

32. It was submitted in respect of the Tribunal's failure to consider the applicant's Court case was contrary to the findings because the Tribunal considered and expressly rejected the applicant's claim that he had been charged and later convicted on false charges. The Tribunal gave five specific reasons for its decision that there was no case against the applicant.

33. The Tribunal then goes on to state that, if in fact that conclusion is wrong and there is an outstanding case against the applicant, the country information available to the Tribunal indicates that the applicant would be able to eventually receive justice through the Courts and clear his name of this charge.

34. The submission in response to the allegation of bad faith and actual bias referred to the Tribunal's reasons which indicate that the analysis of the applicant's claim were undertaken with care describing the process that was adopted in reaching the result, which is absent of any suggestion that it was predetermined.

35. Actual bias requires proof as to the mind of the decision-maker rather than the fair minded observer. A Court can only find actual bias if it is satisfied that the decision-maker approached the issue with a closed mind. Evidence that the decision-maker held preliminary, alternative conclusions is insufficient. The decision-maker must be shown to be unwilling or unable to decide an issue impartially and not amenable to persuasion that may be led.

36. The respondent submits the applicant has not specified the nature of the alleged failure to afford natural justice. However, the respondent raises the issues of s.422(B) of the Act together with the procedure adopted by the Tribunal in raising each adverse aspect with the applicant and seeking his response. It was submitted that the Tribunal's review was governed by s.422(B) of the Act, with the result that the Tribunal's obligations of procedural fairness were limited to those expressly provided for in Division 4 Part 7 of the Act. Each of those clauses within that Division was complied with.

37. The decision also refers to a number of matters and documents adverse to the applicant's position, which were discussed with the applicant in the presence of his adviser. In each case, these issues were put to the applicant seeking his response prior to the Tribunal rejecting them or making an adverse finding in relation to them.

Conclusion

38. It is clear that there has been no failure by the Tribunal to comply with its obligations under the Act. It invited the applicant, with the assistance of an interpreter, to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The applicant was given every opportunity to put information before the Tribunal and to make comments on that material.

39. One of the incidents of the duty of procedural fairness is "the absence of actual or appearance of disqualifying bias": Australian Broadcasting Tribunal v Bond at 367 per Dean J; Re Refugee Tribunal; Ex parte Alaa and Minister for Immigration & Multicultural & Indigenous Affairs Jia.

40. The applicant claimed the Tribunal member emphasised some issues while denying others and dismissed some material and in this respect did not conduct the hearing properly. However, the material before the Court does not establish either actual or apprehended bias on the part of the decision-maker or any denial of natural justice in the conduct of the review of the Tribunal.

41. As Drummond J states in Li v Minister for Immigration & Multicultural & Indigenous Affairs at [42]: "actual bias exists where a decision-maker had prejudged the case against the applicant, or has acted in such partisanship or hostility as to show that the decision-maker had made up his mind against the applicant and was not open to persuasion in favour of the applicant".

42. There is no proof of such a state of mind in this case. The decision-maker did not express views adverse to the applicant's case in a way which indicated that such views were incapable of being changed. Rather the Tribunal member made it clear that he had concerns about inconsistencies and that he sought clarification in relation to issues of concern.

43. The Tribunal properly exercised its inquisitorial role in testing the applicant's credibility by raising questions in relation to issues which were relevant as to whether the applicant was entitled to a protection visa. This does not suggest that the Tribunal member had a closed mind. The Tribunal has an inquisitorial role and credibility of the applicant was clearly an issue. The decision-maker had material before him that appeared to flow from a template that resulted in a range of inconsistencies. The Tribunal did put these inconsistencies and concerns to the applicant. When dealing with these inconsistencies the Tribunal member did not use language that were prejudgmental. I am not satisfied that either actual or apprehended bias has been established.

44. The applicant was unsuccessful because of the view the Tribunal took of the facts. In particular its finding that the applicant had exaggerated the influence of the fundamentalists generally in Bangladesh and its belief that the applicant did not have a profile which would have attracted convention based persecution to him outside of Dhaka and that profile would have diminished even further because of his absence from the environment. These findings are matters of fact for the Tribunal `par excellence': Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham per McHugh J at [67].

45. The Tribunal's findings are open on the material before it. The inconsistencies, contradictions and the similarity of evidence presented to the Tribunal by other applicants led the Tribunal to find the applicant lacking credibility.

46. Error of law and jurisdictional error are alleged by the applicant, but not particularised. An examination of these alleged errors is not apparent. No denial of procedural fairness or jurisdictional error has been demonstrated.

47. The applicant's claim should be dismissed.

48. 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 an incidental to the application.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 24 September 2004
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