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

SZDKW v Minister for Immigration [2004] FMCA 768 (11 November 2004)

SZDKW v Minister for Immigration [2004] FMCA 768 (11 November 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDKW v MINISTER FOR IMMIGRATION
[2004] FMCA 768




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




Migration Act 1958 (Cth), ss.414, 427(1)(d), 422B(i), 424A , 430, 474

Judiciary Act 1903 (Cth), s.39B

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

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601

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

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

NAQS v Minister for Immigration & Multicultural Affairs [2003] FCA 1137

NAMM of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCAFC 32

Re v Minister for Immigration & Multicultural Affairs; Ex parte Cohen [2001] HCA 10

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184

Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1

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

Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102

Applicant:
SZDKW




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ1241 of 2004




Delivered on:


11 November 2004




Delivered at:


Sydney




Hearing date:


25 October 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

The 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 is to pay the Minister's costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

´┐ŻSYDNEY



SZ1241 of 2004

SZDKW



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") handed down on 11 March 2004 affirming a decision of a delegate of the respondent made on 26 November 2003 to refuse to grant a protection visa.

The history

2. The applicant is a citizen of Bangladesh who arrived in Australia on 28 October 2003. On 24 November 2003 he applied for a protection (Class XA) visa. The application was rejected by a delegate of the respondent ("the delegate") on 26 November 2003 (Court Book p.39). On 23 December 2003 the applicant applied for a review of the delegate's decision by the Tribunal (Court Book p.47). On 11 March 2004 the Tribunal made its decision affirming the decision of the delegate (Court Book p.98). The Tribunal's decision was handed down on 1 April 2004 (Court Book p.95) and sent to the applicant under cover of a letter of that date (Court Book p.97).

3. The applicant claimed he feared harm at the hands of the Bangladesh Nationalists Party (BNP) and the authorities as a result of his active membership of the Awami League and his former membership of a human rights group and welfare organisation. The applicant claimed he had suffered violence and threats in the past and that false charges had been laid against him.

4. The applicant's written claims and his evidence at the Tribunal hearing are summarised at Court Book pp.101-107.

The Tribunal's findings and reasons

5. The following extract from the Tribunal's decision under the heading "Findings and Reasons" located in the Court Book on pp.109 and 110 summarise the Tribunal's reasoning:

"The independent evidence about the treatment of members and supporters of the Awami League when the party has been in opposition and particularly since the October 2001 election indicates that, depending on the circumstances, a member or supporter may face a real chance of persecution in Bangladesh. However, for the reasons set out below, I am not satisfied on the evidence before me that the applicant is such a person. Nor am I satisfied that his involvement in human rights group A or a social welfare organisation gave rise to a well-founded fear of persecution in the future.

I am not satisfied that the applicant has been truthful in all the claims he has made. I find that he has exaggerated the nature and extent of his involvement in the Awami League and group A and what happened to him as a result. I find that he has also exaggerated the role and significance of his involvement in it. I find that some of his claims are fabricated. I am not satisfied that the documents purporting to be First Information Reports are genuine. I am not satisfied that those of his claims which I do accept give rise to a well-founded fear of persecution within the meaning of the Convention."

6. In respect to the applicant's involvement with the Awami League, the Tribunal was prepared to accept that the applicant was a supporter of that Party, but was not satisfied that he was a member or had any involvement which would have brought him to the attention of any political opponents. The Tribunal therefore did not accept that the applicant had been the target of persecution, or had any well-founded fear of future persecution on that score (Court Book p.111).

7. In reaching its conclusion, the Tribunal rejected the applicant's evidence that false cases had been filed against him, and in doing so reached the view that the first information reports he had supplied to the Tribunal were not genuine. That conclusion was mainly based on deficiencies in the applicant's story which those documents purported to support and was supported by independent information concerning the availability of fraudulent documents in Bangladesh (Court Book p.111).

8. The Tribunal accepted the applicant's claim of his involvement in various activities but qualified those findings in each case. The Tribunal accepted:

a) that the applicant had been involved in "a" human rights group but did not accept his claim to have suffered harm as a result, or that being a member of that organisation was likely to put him at risk of harm (Court Book p.112);

b) that the applicant had been involved in a social welfare organisation but it did not accept that the organisation had had a prominence the applicant claimed, or that anything had happened as a result of its activities (Court Book p.112);

c) the applicant at the hearing before the Tribunal claimed that terrorists linked to the BNP sometimes demanded money from him but the Tribunal was not convinced that the applicant's political opinion was the essential and significant reason for those demands, or that the applicant treated them as particularly serious (Court Book pp.112-113).

Consequently, the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugee Convention (Court Book p.113).

The application for review of the Tribunal's decision

9. On 29 April 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following grounds:

1. I was persecuted severely by Awami League members in Bangladesh.

2. My family was seriously ill-treated by Awami League too.

3. The tribunal made his decision in bad faith.

4. The tribunal deprived me of the natural justice.

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

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

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

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

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

10. The tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim.

11. The Tribunal solely depended on country information.

12. RRT used the US human rights report for 2002 on Bangladesh: "violence, often resulting in deaths, was a pervasive element in the country's politics ..." - it is unfortunate that the Tribunal accepted such a material that goes in favour of my claim but the tribunal just used all these information and at the end refused my claim because the decision was pre decided. If violence occurs in such a manner in the politics of Bangladesh that causes deaths then such violence should be considered to be the worst persecution of its kind.

13. According to RRT the high level of judiciary sometimes rule against the government in Bangladesh. But the tribunal did not try to find if those rules were respected by the government in Bangladesh or not. I submit a document from UNHCR that says clearly that the government in Bangladesh does not respect High Court rules.

14. The claim of the Tribunal that the judiciary in Bangladesh is independent is not true. The judiciary in Bangladesh is under the Ministry of Law and Judiciary. The career of judges solely depends on the policy maker's satisfaction.

10. The applicant attended directions on 14 August 2004 and consented to Short Minutes of Order requiring him to file and serve an amended application giving complete particulars of each ground of review relied upon by him in his application to the Court by 30 September 2004. No new application was filed.

The law

11. 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].

12. 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

13. The applicant appeared self represented with the aid of a Bengali interpreter. The applicant filed in Court on the day of the hearing written argument and indicated that he would rely on those written submissions and wished to make no further oral argument to the Court.

14. The applicant's written submissions cover a range of issues, some of which are raised in the applicant's grounds. However, no direct reference to those particular grounds have been drawn. The document does not follow any particular pattern or any particular format that would relate to the individual grounds. There are reproductions of various parts of the Act and head notes from cases such as Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal. There is a reproduction of the catchwords from the High Court decision. Three different aspects are emphasised either by underlining or bold type which address the issues of actual bias, bad faith and breach of the rules of natural justice. Some of the material appears to be lists drawn up as examples under the heading of "Particulars", while other material appears to be extracts from some other submission prepared in a "cut and paste" manner and is not directly related to the subject matter before this Court. There is a reference to a recent Tribunal decision, relating to one of his political party activists, which was a positive outcome because of political persecution in Bangladesh.

15. The particulars of actual bias are set out as a heading and underlined, and are followed by the statement:

"On the evidence as a whole, the findings of the Tribunal member as to the following matters demonstrate actual bias."

* The Tribunal does not accept I was persecuted in my previous country of residence because of my political opinion.

* The Tribunal made her decision without any query of my documentary evidence or oral evidence. The Tribunal made up her mind previously before my oral evidence.

* She mentioned in her decision I am not truthful, I refer RD 110, but I provided my oral evidence by an oath.

* The Tribunal did not ask me any questions regarding my documentary evidence. It means that she made decisions pre-set in her mind.

* The Tribunal also rejected my claim because my written and oral claims were inconsistent (RD 110) in relation to major issues.

This is followed by reference to ss.414, 427(1)(d), 422B(i), 424A and 430 of the Act. The applicant refers to these sections in broad, generalised terms and alleges that breaches of the Act had occurred.

16. The second allegation is that the decision maker acted in bad faith. There is reference to the principles in R v Hickman; Ex parte Fox and Clinton and this is followed by the following statement:

"This means that the decision maker got the facts wrong, took into account irrelevant material, did not take certain material into consideration. And the decision maker did not make an honest attempt to come to the right decision, also the decision maker intentionally made a wrong decision in other words acted in bad faith."

17. The third of the allegations is that there was a breach in the rules of natural justice. This allegation is not particularised but there is a series of references to both the High Court decision in S157/2002 and some decisions of the Federal Magistrates Court. Interspersed with this material is reference to the applicant's lack of legal knowledge, absence of funds and financial hardship resulting in his inability to retain Counsel. There are also references to material being contained in Tribunal hearing transcript. Again, this was qualified by a statement of the applicant, where it was submitted that he was unable to afford the preparation of a transcript and that was the reason the audio tapes were not filed in the proceedings.

18. Mr Kennett of Counsel appearing for the respondent, filed written submissions. The thrust of the respondent's submissions was that the application appeared to have been prepared from pro forma documents and did not identify any specific feature of the Tribunal's decision as involving error. It was submitted that the following points may be made about the grounds set out in the application.

(i) Grounds 1, 2 and 14 are simply assertions of fact and deal with issues which (if they were relevant) were for the Tribunal to determine. Interestingly, grounds 1 and 2 directly contradict the applicant's claims before the Tribunal (he claimed to be an Awami League member). Ground 14 attacks a "claim" upon which the Tribunal did not rely in the present case.

(ii) Grounds 5, 6, 8 and 9 make general assertions that the Tribunal misunderstood or ignored facts. Even if made out, they would not point to any error capable of founding review in this Court.

(iii) Ground 11 accuses the Tribunal of depending "solely" on country information. It misstates the basis of the Tribunal's decision. The Tribunal referred to country information at some points in its reasoning, but the rejection of the applicant's claims was also based on inconsistencies and deficiencies in his evidence.

(iv) Grounds 3, 4, 7 and 12 identify matters which would lead to review if made out. They are considered further below.

(v) Grounds 10 and 13 allege that the Tribunal erred by not conducting inquiries. The Tribunal does not fall into error by declining to use its powers to conduct investigations: WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002 FCAFC 277 at [25]. Ground 13 also attacks a factual conclusion upon which, in the present case, the Tribunal did not rely.

Conclusion

19. The applicant in these proceedings was representing himself and has filed written submissions in Court on the day of the hearing. The nature of these written submissions are described above at para 14-17. The grounds in the original application are vague and unparticularised. 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 occur in both, but the written submissions do not complement or augment the grounds in any systematic or logical manner. However, where an applicant is self represented the Court must independently consider whether any arguable case based on the material could have been made out: Yo Han Chung v University of Sydney & Ors. The manner in which the grounds have been drafted produce some duplication and overlapping of issues, making it difficult to address the individual issues and ensure that all aspects raised by the applicant have been satisfactorily addressed.

20. I accept the approach taken by Mr Kennett of Counsel and I will adopt the grouping of issues as suggested by Mr Kennett in his submissions. I have reproduced his submission as I believe it assists me in the resolution of this matter and ensures each issue raised is correctly addressed.

21. In reference to the first grouping, which covers grounds 1, 2 and 14, I note the applicant claimed he was persecuted severely by Awami League members in Bangladesh. However, he claimed he was a member of that organisation in his statement dated 24 November 2003 (Court Book p.28). Throughout that statement there appears to be conflicting issues concerning the applicant's membership of the Awami League and alternatively persecution of the applicant by members of the Awami League. Ultimately this was an issue for the Tribunal to consider. These are assertions of fact: NAQS v Minister for Immigration & Multicultural Affairs per Hill J at [39]:

"While it can be said that failure on the part of the Tribunal to take any account at all of relevant material might constitute jurisdictional error, one has to be careful to distinguish that from matters of fact finding. It is open to the Tribunal to accept or reject evidence before it. It is neither bound to give reasons for its rejection nor indeed to refer to material it rejects."

These grounds ultimately seek to prevail upon this Court to entertain a merits review and do not demonstrate jurisdictional error.

22. Ground 14 raises an issue which the Tribunal does not address in its decision. In the absence of any particularisation of how this information had bearing on the Tribunal's decision, it must be set aside on the grounds of relevance.

23. The second grouping of grounds, namely 5, 6, 8 and 9, make general assertions that the Tribunal misunderstood or ignored facts. If the reference to this misunderstanding of facts suggests that the Tribunal may have adopted faulty logic in its fact finding activity, that in itself does not constitute jurisdictional error: NAMM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs per French, Lindgren and Finkelstein JJ at [46]. Within ground 8 there is a claim that the Tribunal mixed up many facts with this decision which affected the outcome. There is no particularisation within the grounds or any evidence within the written submissions which identify what this ground is addressing. However, the general principle, is that a factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact: Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen at [36]:

"Leaving aside the question of jurisdictional fact, an administrative tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law. A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding or fact or an error of reasoning in the finding of fact, made in the course of making the decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error."

24. The other allegation, found in the second group of grounds, was that the Tribunal ignored facts. Again, in the absence of particularisation or evidence identifying this material and the impact it is going to have upon the Tribunal's reasoning and decision, it is not possible for these grounds to be sustained: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs at [46]:

"It is plainly not necessary for a Tribunal to refer to every piece of evidence and every contention made by the applicant in his written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived ...The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides, is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law."

25. The third grouping contains ground 11, which states the Tribunal depended solely on country information in making its decision. The basis of that ground does not reflect the Tribunal's decision where the Tribunal clearly states in its "Findings and reasons":

"I accept as genuine all the documents submitted by the applicant with the exception of those purporting to be the First Information Reports" (Court Book p.111).

26. There are also a number of reasons within the decision as to why the Tribunal did not accept the First Information Reports as genuine. The Tribunal does not give details of what relative weighting it gave to each piece of information supplied by the applicant or whether it took it into account in conjunction with the material it had obtained itself under the powers granted to it by the Act in s.427(1). The issue of the reasonings and weighting of material within the decision making process is referred to above. The significant factor in respect of the First Information Reports was credit. After all the other considerations of the First Information Reports concern the circumstances in relation to the source and authenticity of the documents themselves. This was an issue for the Tribunal to decide: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham per McHugh J at [67]:

"However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed."

27. The remaining two groupings which contain grounds 3, 4, 7, 10, 12 and 13 allege that the Tribunal erred in not conducting its inquiries as required under the Act. All of these matters would lead to review if they were satisfactorily made out. Again, in the absence of particularisation or the presentation of any evidence to those particular claims, it is difficult to establish whether an error has arisen. Grounds 10 and 13 suggest that the Tribunal erred in not conducting satisfactory inquiries. Section 424A of the Act indicates that the Tribunal must provide the applicant with certain information and s.427(1) gives the Tribunal the power to arrange for investigations or examinations. The Act gives the Tribunal the power and a discretion as to whether these inquiries should be made: WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs ("WAGJ") per Heerey, Nicholson and Mansfield JJ at [25]:

"By a parity of reasoning, it seems to us that if there is no legal obligation to make enquiries, there is no legal obligation to consider whether one should exercise that power. Moreover, there is either a legal obligation to exercise the power or there is not. If there is not, we do not agree that there could be some "confluence of circumstance and claim" which somehow enlivened some dormant residual obligation under s 427(1)(d). To that extent we would respectfully disagree with the proposition advanced by Allsop J in Gomez and Azzi. It is conceivable that failure by the Tribunal to make some particular enquiry might be relevant to a finding by the Court on review that there was a lack of good faith and that as a consequence the Tribunal's decision was beyond jurisdiction. But in such event the error would be lack of good faith and not the breach of any legal obligation under s 427(1)(d). No such obligation exists."

28. In respect of ground 7, which suggests that the decision of the Tribunal was predetermined or alternatively set in the back of its mind, it is not supported by information before this Court which is limited to the material contained within the Court Book. Written reasons were provided in accordance with s.430 and those written reasons were issued after the decision was made. No decision was announced at the Tribunal hearing. A formal hearing was held on 18 February 2004 (Court Book p.53), the Tribunal decision indicates that it was made on 11 March 2004 (Court Book p.98) and a formal letter was issued to the applicant on 15 March 2004 (Court Book p.95) inviting the applicant to the formal handing down of the decision on 1 April 2004. This would indicate that there was no oral decision and there was apparently some time between the formal hearing and the completion of the decision document. In the absence of any material to suggest that a contrary procedure was followed or that the outcome was decided in a different fashion, this ground is not made out.

29. Ground 10 suggests that the Tribunal did not make the appropriate inquiries as required under s.424A(2). Neither the section of the Act nor the evidence was particularised, however the applicant would have to be given the benefit that this is what he is trying to establish. The Tribunal, however, does not fall into error by declining to use its power to conduct investigations: WAGJ at [25]; Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs ("Applicant NAHV of 2002") per Carr, Keifel and Allsop JJ at [22]-[25]. The Tribunal did raise with the applicant information regarding conditions in Bangladesh for the Awami League members and supporters. The applicant indicated that he did not disagree with the Australian Defence and Foreign Affairs and Trade information which indicated that fraudulent documents were readily available in Bangladesh including the type the applicant had submitted to the Tribunal in support of his claim.

30. In grounds 3, 7 and 12 the issues of bad faith and actual bias are raised. On a fair reading of the Tribunal's decision and in the absence of material before the Court suggesting that the Tribunal approached the matter with a closed mind or made anything other than the proper attempt to decide the case, there is no basis for these allegations.

31. Procedural fairness is raised in ground 4. The application and the written submissions do not identify the manner in which procedural fairness is said to have been denied. As a result of s.422B of the Act the provisions of Division 4, Part 7 are to be treated as an exhaustive statement of the Tribunal's obligation to provide procedural fairness to the applicant. The issue that does arise is that there was no written notification contained within the correspondence to the applicant in relation to the country information which was held to weigh against his claim. However, that information was canvassed with the applicant during the hearing (Court Book p.106-107), and although the provisions of the Act were not strictly met because of the action of the Tribunal during the hearing, that obligation was remedied and therefore there can be no jurisdictional error: Applicant NAHV of 2002 per Carr, Keifel and Allsop JJ at [22]-[25].

32. As the grounds in the application are general and the written submission do not give any particularisation to those individual grounds, I have not been able to identify any ground where the Tribunal has committed 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: 11 November 2004
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