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

SZEZG v Minister for Immigration [2004] FMCA 812 (25 November 2004)

SZEZG v Minister for Immigration [2004] FMCA 812 (25 November 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEZG v MINISTER FOR IMMIGRATION
[2004] FMCA 812




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




Migration Act 1958 (Cth), ss.91R, 424, 424A, 425, 474

Judiciary Act 1903 (Cth), s.39B

Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)

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

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

Abebe v Commonwealth of Australia (1999) 197 CLR 510, 576

Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437, 450, 455

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

SZALU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 264

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407, 423

SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 361

Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431

SBBG v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 281

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449

NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121

VEAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 678

VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 609

NANM & NAMM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 99

VHAP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82

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

Applicant:
SZEZG




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG2355 of 2004




Delivered on:


25 November 2004




Delivered at:


Sydney




Hearing date:


8 November 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

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

Counsel for the Respondent:


Dr M Allars




Solicitors for the Respondent:


Sparke Helmore




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 the amount of $4,500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG2355 of 2004

SZEZG



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This is an application for a review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 22 June 2004 and handed down on 30 June 2004, affirming the decision of the delegate of the respondent ("delegate") made on 19 February 2004, to refuse to grant the applicant a protection visa.

Background

2. The applicant is a Bangladeshi male who was born in Barisal in Bangladesh on 1 January 1969. He claims to be able to speak, read and write Bengali and that he has never been married. The applicant claims to have completed tertiary education and gained a Bachelor of Arts Degree in 1988. Despite, the applicant's claim that his occupation was NGO worker, he claims he has never been employed. The applicant also claims he has never been convicted of any crime or offence and has not been under investigation for any offence, but that a false criminal case had been taken against him. The applicant claimed he left Bangladesh legally and without any difficulty in September 2003 through Zia International Airport, travelling on a passport issued in his own name.

3. The applicant arrived in Australia on 13 September 2003 and on 23 October 2003 the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs ("the Department") under the Migration Act 1958 (Cth) ("the Act"). On 19 February 2004 the Department refused to grant a protection visa and on 14 March 2004 the applicant applied for a review of that decision. The applicant appeared before the Tribunal on 21 May 2004 with the assistance of a migration agent and a Bengali language interpreter. On 22 June 2004 the Tribunal affirmed the delegate's decision not to grant a protection visa.

The Tribunal's findings and reasons

4. The applicant claimed that he was in association with the Awami League in Bangladesh and was persecuted as a result. He claims that he was forced to flee Bangladesh and if he returned he would be killed by opposition members or imprisoned by the authorities because of his political activities prior to coming to Australia. The Tribunal accepted that the applicant was a Bangladeshi national, but doubted his identity because it had grave doubts about the authenticity of the applicant's passport and documents on which he relied to establish his identity. The Tribunal was not able to accept the applicant's truthfulness and doubted whether his evidence had any credibility or veracity. The Tribunal found the applicant's evidence to be vague, generalised, lacking specific detail, inconsistent and contradictory in the nature of the material before it. The Tribunal formed the view that the applicant had fabricated the whole of his claims including his identity in order to establish the profile of a refugee.

5. The Tribunal noted that considerable doubt was raised because of the status of the applicant's passport which he claimed as lost, although that loss was reported to the Kings Cross Police Station. A photocopy of the passport was produced which raised issues regarding the existence of a tourist visa to Japan. The applicant claimed he was in Japan to work as an international NGO. Much of the evidence produced by the applicant in support of his claimed visit to Japan did nothing more than raise a greater suspicion about the authenticity of the documents.

6. When questioned about the policies and politics of the Awami League, the applicant was unable to provide answers that would support his claim of being a political activist within that organisation. After considering all of the evidence, both written and oral, the Tribunal formed the view that the applicant was not a person to whom Australia had protection obligations under the Refugee Convention.

The application for review of the Tribunal's decision

7. On 26 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 setting out the following grounds:

1. The Tribunal failed to take relevant consideration into account in exercising its power to determine the applicant as a refugee.

2. The Tribunal decision was inconsistent with his assertions; the Tribunal's assertion was based on incorrect information. As a result the applicant was deprived of receiving procedural fairness.

3. The Tribunal's decision is not justifiable and not based on any evidentiary proof.

4. The decision by the Tribunal was a decision based on jurisdictional error.

There was no further particularisation of these claims.

The law

8. 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].

9. 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

10. The applicant appeared self represented with the aid of a Bengali interpreter. The applicant attended a directions hearing on 16 August 2004 and consented to Short Minutes of Order at that time, which included the filing and serve of an amended application and any evidence upon which he proposed to rely at the final hearing. Although there was no amended application filed, the applicant did file and serve written submissions prior to the hearing.

11. The applicant's written submissions, in a manner, address some of the issues contained in his original application. The submissions also raise a number of new issues not previously pleaded. The nature of these new claims are most effectively summarised in the submissions prepared by Dr Allars, Counsel for the respondent, and conveniently have been identified as grounds 5-9. These grounds are summarised as follows:

5. was affected by actual bias and was not made in good faith; (applicant's submissions, pp.1.4, 2.10)

6. an error by reference to principles set out in Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal; (applicant's submission, p.2.2)

7. erred by reference to SZALU v Minister for Immigration; (applicant's submission, p.3.7)

8. an error by reference to SBBG v Minister for Immigration and Multicultural and Indigenous Affairs and Minister for Immigration and Multicultural and Indigenous Affairs v SCAR; (applicant's submission, p.7.2-8.10) and

9. failed to comply with s.424A of the Migration Act 1958 (Cth) ("the Act") and the principle in NARV v Minister for Immigration and Multicultural and Indigenous Affairs.

Reasons

12. The applicant in these proceedings was representing himself and although he filed written submissions, he declined the invitation to make any oral submissions during the hearing. The original four grounds contained in the applicant's application are unparticularised and in some cases vague. Unfortunately, the written submissions in many ways take the appearance of being an amended application and do not supplement or augment the original grounds. The material raised in the written submissions enters into new territory not directly or specifically related to the original application. However, where an applicant is self represented, the Court must independently consider whether any arguable case based on the materials could be made out: Yo Han Chung V University of Sydney & Ors. Since the milieux in which the grounds have been drafted produce some duplication and overlapping of issues, it is difficult to address individual issues ensuring that all aspects raised by the applicant have been addressed.

13. Ground 1 of the applicant's submissions raises the issue of whether the Tribunal failed to take into account relevant considerations in its deliberations. This ground is not particularised nor is it supplemented in any way by the applicant's written submissions. In the absence of such supplementary information it is not possible to determine or even speculate as to the nature of the material that the applicant considered was not taken into account in the Tribunal's decision.

14. Ground 2 claims that the Tribunal deprived the applicant of natural justice. The new grounds raised in the applicant's written submissions, which have effectively been summarised as grounds 6 and 7, also raise the issue of natural justice. Dr Allars submitted that on 4 July 2002 the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) came into effect. That Act applied to applications for review by the Tribunal lodged after 4 July 2002. The application for review just being considered in this hearing was lodged on 14 March 2004. Section 422B(1) of the Migration Legislation Amendment (Procedural Fairness) Act 2002 provides that Division 4 of Part 7 of the Act (which contains ss.424, 424A and 425, concerning the conduct of a review by the Tribunal) is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with.

15. By referring to the material contained in the Court Book, the applicant was given an opportunity to present his case in both writing and orally. The Tribunal letter dated 19 April 2004 invite the applicant to attend an oral hearing on 21 May 2004 (CB p.59). The applicant accepted that invitation by facsimile on 22 May 2004 (CB p.61). During the hearing the applicant gave evidence and made submissions in support of his application. It was for the applicant to advance whatever evidence and arguments he wished, and for the Tribunal to decide whether his claims had been made out: Abebe v Commonwealth per Gummow and Haynes JJ at 187; Re Ruddock; Ex parte S154/2002 per Gummow and Hayden JJ at 57 and per Kirby J at 81. Nothing available to this Court supports the argument that there was a denial of procedural fairness and it is not open to the applicant to argue that he was denied common law procedural fairness.

16. The new ground 6 also raises the issue of denial of procedural fairness based on the principles set out in Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal ("Muin") (CB p.2.2). Nothing in the written submissions filed by the applicant explain for the purposes of establishing a Muin type ground. The applicant states that he was misled. The Tribunal invited the applicant to a hearing by letter dated 19 April 2004 (CB p.59). To be able to avail himself of the Muin argument, the applicant would need to establish, in addition to this invitation to appear and give evidence at the hearing, the following points:

a) That he believed the Tribunal received the Part B documents which were before the delegate.

b) That some of the Part B documents were favourable to him.

c) That the Part B documents were not considered by the Tribunal member.

d) That he was misled into believing it was unnecessary for him to draw the favourable information in the Part B documents to the attention of the Tribunal member.

e) That if he had not been misled he would have taken steps to correct the situation by tendering additional evidence at the Tribunal hearing: NADZ v Minister per Hely J at [15].

17. In the absence of the establishment of these contested facts, the applicant cannot rely on the decision in Muin. The applicant has not established any equivalent factual issues in his submissions and there is no basis upon which any claim that he was misled in a similar manner that occurred in Muin cannot be sustained.

18. In the new ground 7, the applicant relies upon the decision of the Federal Magistrates Court in SZALU v Minister for Immigration & Multicultural & Indigenous Affairs ("SZALU"). Whilst this ground is not particularised, it is inferred that the applicant claims that he was denied procedural fairness and that his case supports such a conclusion. In SZALU the Tribunal was held to have denied procedural fairness upon making an adverse finding as to the credibility of the applicant because his claims were identical to those of another applicant from Bangladesh in other proceedings. Procedural fairness was denied because the Tribunal failed to disclose to the applicant the facts supporting the conclusion that he had acted in concert with the other applicant to fabricate his claims.

19. There is no suggestion in the applicant's case that the Tribunal based its adverse findings as to credibility of the applicant upon the facts of his case being similar to those of another case. The findings were made on the basis of lack of detail, inconsistency and the contradicting nature of his evidence, in particular his evidence about his identity. A claim based on similar fact situation to SZALU is not sustained.

20. Ground 3 of the original application contends that the Tribunal's decision is not justifiable and is not based on any evidentiary proof. Again this claim is not particularised in the original application nor is it supported by any material within the applicant's written submissions. The Tribunal found that the material supplied and the evidence given by the applicant was lacking in detail, inconsistent and contradictory (CB p.108.5). It is a function of the Tribunal as a primary decision maker to make a finding on the applicant's credibility and it is not a requirement that the Tribunal disclose in detail the process that led it its decision: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham per McHugh J at 423. The issues that led the Tribunal to that conclusion were that it:

a) was not satisfied that the applicant was who he claimed to be, because of grave doubts about the authenticity of his passport and identity document, and found that he fraudulently acquired his passport after obtaining his visa, and had his photograph photo substituted into it;

b) was not satisfied the applicant was a truthful witness or that his evidence had any credibility or was of any veracity;

c) was not satisfied he ever went to Japan since his evidence of his employment and residence in Japan was vague and generalised and he was unable or unwilling to provide even the broadest of details;

d) was not satisfied that his claims of political activism for the Awami League and the adverse treatment he received had any credibility or veracity, since he knew little of the Awami League's policies or politics and could not explain his responsibilities as an office holder; and

e) was not satisfied that he was attacked, or that false cases were brought against him, or that warrants for his arrest had been issued.

21. Ground 4 of the initial application claimed the Tribunal's decision was a decision based on jurisdictional errors. Again this is not particularised nor is it supported by any argument within the written submissions. The Tribunal in its reasons sets out the principles which govern its decision making process. These principles have been followed and on a fair reading of the report there is no indication that there has been any error in law that would lead to a jurisdictional error.

22. The new ground 5 from the written submissions raises the suggestion that the Tribunal's decision was affected by actual bias and was made not in good faith. This is an allegation made without particularisation. For this ground to succeed proof is required to establish the circumstances existed that evidence supports that the action of the Tribunal member is dishonest. This is a serious allegation that should not be made lightly and will not be sustained without clear proof: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs per Tamberlin, Mansfield and Jacobsen JJ at [43]:

"First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial; see SBAU at [27] citing SBAP v Refugee Review Tribunal [2002] FCA 59 0 per Heerey J at [49] and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [ 2002] FCA 805 per Hely J at [25]."

23. See also Minister for Immigration & Multicultural & Indigenous Affairs v SBAN per Heerey, Moore and Keifel JJ at [8]:

"As with other areas of the law where wrongful intent is in issue, reckless indifference may be the equivalent of intent. But this is not to say that the test is objective. The inquiry is directed to the actual state of mind of the decision-maker. There is no such thing as deemed or constructive bad faith. It is the ultimate decision - in the case of the RRT, affirming the rejection of a protection visa application - which must be shown to have been taken in bad faith. Illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith. Such defects can be equally explicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker's duty."

24. As with other areas of law where wrongful intent is in issue, reckless indifference may be the equivalent of intent. But this is not to say that the test is objective. The enquiry is directed to the actual state of mind of the decision makers. There is no such thing as deemed or constructive bad faith. It is the ultimate decision - in the case of the RRT, affirming the objection of a protection visa application - which must be shown to have been taken in bad faith. Illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith. Such defects can be equally explicable as a result of overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision maker's duty. This ground is not made out.

25. The new ground 8 contained in the written submissions is expressed as an error by reference to SBBG v Minister for Immigration & Multicultural & Indigenous Affairs ("SBBG") and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR ("SCAR"). In SBBG the Full Federal Court allowed an appeal because the primary judge's approach to the proper construction of s.474 of the Act, based on NAAV v Minister for Immigration & Multicultural & Indigenous Affairs had been overtaken by the High Court's recent decision of S157/2002. The applicant relies upon the passage in SBBG at [20] where the Court explains the approach taken in S157/2002 to s.474 of the Act. Unfortunately this does not assist the applicant. For the applicant to avail himself of authority in S157/2002 he must establish an error which amounts to a jurisdictional error.

26. In SBBG the Full Federal Court considered it would not be futile for the applicant to argue certain grounds on which he sought to rely, and that matter should be remitted to a single judge to be heard and determined. The Full Court heard that its comments on each ground the applicant sought to argue were not to be taken as expressing a view on whether the arguments should ultimately succeed or not. The Full Court's discussion in SBBG of these issues, such as whether factual claims made by the applicant in that case could constitute persecution for the purposes of s.91R of the Act, had no implications for the question whether errors have been made by the Tribunal in the present case.

27. The applicant also relies upon a passage in SCAR at [28]-[31]. However, that passage refers to existing authority in S157/2002 that denial of procedural fairness amounts to a jurisdictional error, it affirms the principle that an obligation to afford a fair hearing does not normally imply a duty to make enquiries. The authorities referred to by the applicant in support of this ground must fail.

28. The new ground 5 from the applicant's written submissions claimed that the Tribunal failed to comply with s.424A of the Act and support for this ground relied upon the principle in NARV v Minister for Immigration & Multicultural & Indigenous Affairs ("NARV"). The applicant provides no particulars in his submission of the information which should have been disclosed to him pursuant to s.424A(1) of the Act. This section applies where the Tribunal itself considers that information is a reason or a part of a reason for its decision. In VEAJ v Minister for Immigration & Multicultural & Indigenous Affairs per French J at [41], his Honour held that it was necessary to look at the Tribunal's expressed reasons for its decision, in order to decide whether it considered any information in question to be a reason or part of a reason affirming the delegate's decision. The reasons contained in the Tribunal's decision do not indicate that it took into account any information adverse to the applicant and failed to disclose it to him. The Tribunal found the applicant's claims not credible for a variety of reasons, none of which turned upon country information or information personal to the applicant obtained for third parties.

29. In the decision of the Full Federal Court in NARV, the Court is concerned with the proper construction of s.424A(3)(a) of the Act which excepts from the duty of disclosure, information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". The majority in NARV gave this exception a narrow operation such that there is a category of country information which is not specifically about the applicant nor just about a class of persons, and which is not excepted by s.424A(3)(a) from the duty of disclosure under s.424A(1). The approach taken in NARV was not followed by the majority of the Full Court in VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs nor the Full Court in NANM & NAMM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs, VHAP v Minister for Immigration & Multicultural & Indigenous Affairs or Minister for Immigration & Multicultural & Indigenous Affairs v NAMW. The applicant has not provided any evidence or materials that would establish any non compliance with s.424A(1) of the Act.

Conclusion

30. The grounds in the applicant's original application and the further grounds raised in his written submissions are in all cases general and without particularisation. Much of the material appears to have been copied from a source that is not directed to the issues that arise in the applicant's case nor the issues addressed by the Tribunal in its decision. I have not been able to identify any ground that the Tribunal has committed any jurisdictional error so the applicant's claim should be dismissed.

31. 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-one (31) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 25 November 2004
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