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

SZASL v Minister for Immigration [2004] FMCA 656 (1 October 2004)

SZASL v Minister for Immigration [2004] FMCA 656 (1 October 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZASL v MINISTER FOR IMMIGRATION
[2004] FMCA 656




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




Migration Act 1958 (Cth), ss.418(3), 424A(1), 430, 474A(1)

Judiciary Act 1903 (Cth), s.39B

Migration Legislation Amendment (1) Act 1998, 113 of 1998 Schedule 3, Part 1, Item 3

Kioa v West (1985) 159 CLR 550

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

WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171

NADR v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 465

NADZ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 118

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

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

Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940

Applicant:
SZASL




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ997 of 2003




Delivered on:


1 October 2004




Delivered at:


Sydney




Hearing date:


18 August 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

Applicant appeared in person with the assistance of an interpreter.

Counsel for the Respondent:


Mr J Smith




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, fixed in the amount of $4,500.

(1) FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ997 of 2003

SZASL



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This judgment arises from an application filed by the applicant on 4 June 2003 and an amended application on 5 January 2004 seeking judicial review of the decision of the Refugee Review Tribunal ("the Tribunal") on 31 August 1998 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a protection visa.

The history

2. The applicant, a citizen of Bangladesh, was born on 14 January 1972. He arrived in Australia on 8 April 1997 and on 21 April 1997 he lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs ("DIMIA") under the Migration Act 1958 (Cth) ("the Act").

3. The applicant's mother, father and siblings remain in Bangladesh. The applicant speaks, reads and writes Bengali and English.

4. In the applicant's visa application he indicates that he graduated from university in 1996, that he has worked as a salesman from July 1992 until July 1995 and as a waiter and cook from 1994 until 1996. He states that he has lived at the same address in Bangladesh from 1972 until April 1997.

5. The applicant claims to have been involved with Bangladeshi politics since college and that his father and most of his relatives are active supporters of the BNP. The applicant claims to have been an active member of the JCD (the youth wing of the BNP) since 1991 and states that he took part in meetings, rallies and demonstrations in support of the party. He claims to have worked for the BNP during a local election in 1996 and as a result became the target for attacks by the opposition Awami League.

6. When the Awami League came to power the applicant claims they sought revenge against their opponents. He claims BNP supporters in his local area have been attacked by the Awami League. The applicant also claims that his cousin was beaten up in a demonstration in February 1997. He states that police went to his house in February and March 1997 in search of him, but claims that he evaded them because he was in hiding in Dhaka. The applicant does not think he will be able to evade the police again. He states that he feared for his safety because he believed that he would be arrested and have false charges laid against him.

The delegate's decision

7. On 26 May 1997 a delegate of the respondent found that the harm to or mistreatment feared by the applicant was not of sufficient gravity as to constitute persecution. The delegate held that the applicant's claims, which related to violence against other BNP members, could not be viewed as persecution. Rather, the delegate saw these incidents as being part of the continual climate of communal and political violence in Bangladesh. The delegate was satisfied that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention and refused to grant a protection visa to the applicant.

The Tribunal's decision and reasoning

8. On 30 May 1997 the applicant lodged an application for review of the delegate's decision with the Tribunal. The Tribunal conducted the hearing on 12 August 1998 at which the applicant gave oral evidence. At the hearing the applicant confirmed as correct the information contained in his application.

9. The applicant was asked about his involvement in politics in Bangladesh. He stated that he was a regular member of the student wing of the BNP during 1987 and 1988, the general secretary of his student branch in 1988 and 1990, a regular member between 1990 and 1994 and the publications secretary in 1994 and 1995. After 1995 the applicant did not hold any party position.

10. The applicant stated that he had been involved in motivating people to vote for the BNP before the 1996 elections and took part in meetings, processions and demonstrations. He agreed that there was a pattern of violence in Bangladeshi politics and that this was commonplace. He stated that he was involved in attacks against Awami League supporters whilst the BNP was in power and the Awami League were jealous of his popularity and wanted to harm him. He stated that after the election seven or eight false cases were lodged against him.

11. When asked when he first became aware that the police were looking for him, the applicant stated that this was about two or three months after the elections. In his application for a protection visa, the applicant had stated that the police came to his home in February or March 1997.

12. When asked why he thought the police had not arrested him prior to his departure from Bangladesh, given that the elections occurred in June 1996 and he did not depart until April 1997, the applicant responded that this was because he had been in hiding at his uncle's place in Dhaka. The applicant claimed that he used to go to work from there. His family home is in a village 35 kilometres from Dhaka.

13. The Tribunal asked the applicant about the fate of a number of officials of the BNP in his local area both at the main party and at the student wing level. The applicant confirmed that the officials identified by him are still in Bangladesh and still active in the BNP. The applicant stated that if he returns to Bangladesh he will face trial and his life will not be secure.

14. In support of the applicant's claims the applicant's adviser provided the Tribunal with written submissions, articles from The Dhaka Courier and a copy of an article in relation to the political situation in Bangladesh. The Tribunal also considered independent evidence consisting of a wide range of material about the present political situation in Bangladesh.

15. The Tribunal noted that when determining whether an applicant is entitled to protection in Australia, they must first make findings of fact on the claims that have been made and this may involve an assessment of the applicant's credibility. The Tribunal further notes that if they properly reject the applicant's case on the facts, there is no foundation on which to apply the test of whether he has a well-founded fear of persecution.

16. The Tribunal made the following findings in relation to the applicant's claims:

a) It accepted that the applicant had been a member of the student wing of the BNP since 1987 and joined the BNP because his father and other family members had been BNP supporters.

b) It accepted that the applicant was a low-level member of the BNP student wing with no particular political profile.

c) It accepted that the applicant was involved in political demonstrations and processions, which at times involved violent clashes between rival political groups and with the police, and the BNP used the police against Awami League activists.

d) It was of the view that the applicant exaggerated his role in such events and would not have been in a position to lead attacks on Awami League activists or use the police against Awami League activists.

e) It did not accept that there were any outstanding charges against the applicant in Bangladesh and did not accept that he would stand trial if he returned to Bangladesh.

f) It did not accept that the applicant was in hiding prior to his departure. Rather, it found that he was living at home with his parents and siblings until his departure. Even if the applicant had been living in Dhaka, the Tribunal was of the view that a basic police investigation would have revealed his place of work and the Bangladeshi authorities would have had ample opportunity to arrest and charge him prior to his departure from Bangladesh.

g) It noted that an article from The Dhaka Courier provided to the Tribunal by the applicant's adviser, did not support the applicant's claim that the Awami League was not organised enough to seriously pursue him until early 1997. The article, dated 1 November 1996, indicated that the BNP had claimed that "the government [had] so far arrested ten thousand [BNP] political workers".

h) It found it implausible that the Awami League would pursue the applicant when local BNP leaders were still in Bangladesh and still involved in the BNP.

i) It found it implausible that there were charges against the applicant in Bangladesh and was of the view that the Bangladeshi authorities had ample opportunity to arrest him prior to his departure, had they been interested in doing so. The Tribunal was of the view that the applicant had fabricated this claim.

j) It considered that the applicant's limited involvement with the administration of the BNP in the local area did not support his claim to be a "popular BNP figure".

k) Although it accepted the independent evidence that violence pervades the political culture in Bangladesh, it did not accept that the applicant was targeted by the Awami League in the past because of his BNP activities. It accepted that the applicant could be harmed by Awami League supporters if he returned to Bangladesh and maintains his involvement with the BNP. However, it was of the view that the harm risked by the applicant arising from the pervasive violence of Bangladeshi politics and the chance that the applicant would be singled out for adverse treatment for reasons of his political opinion or any other Convention reason, was remote and insubstantial.

17. Having considered the evidence as a whole, the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Tribunal found that the applicant therefore did not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

The application for review of the Tribunal's decision

18. On 4 June 2003 the applicant filed an application, and on 5 January 2004 an amended application, pursuant to s.39B of the Judiciary Act 1903 (Cth), seeking judicial review of the decision of the Tribunal. The amended application contained the following grounds:

1) In its decision on 31 August 1998, the Tribunal exceeded its jurisdiction, in failing to accord the Applicants procedural fairness, as required under section 424A(1) of the Migration Act 1958.

2) The RRT did not complete the exercise of its jurisdiction as it made no findings as to what sociopolitical changes might occur in Bangladesh in the reasonably foreseeable future and thus it failed to assess whether the applicants' fears of being persecuted for being a member of JCD were well founded in the reasonably foreseeable future.

3) The RRT's decision on 31 August 1998 was not based upon circumstances giving a rational foundation for the belief entertained as the RRT's findings, when applied to the applicable criteria, meant that the RRT should have been satisfied that the applicant had met those criteria.

4) The Tribunal did not provide the applicant with particulars of information, which formed part of the reason of the Tribunal's decision, namely, that violence against JCD members had subsided, and that information was not "just information about a class of persons".

5) The Tribunal did not put to the applicant its doubts about documents containing information personal to the applicant from different sources of Bangladesh, and those doubts formed part of the reason for the Tribunal's decision.

6) When I lodged my application for judicial review, Muin and Lee's ground was not available, therefore I could not mention the reference of this case in my application. Muin and Lee's case is perfectly identical with my case and I want to depend on the grounds of Muin and Lee in regards to my application with the Federal Magistrate Court of Australia.

7) I lodged my review application with the Federal Court but because of the privative clause and restriction, I lodged the present application by following plaintiff S157/2002 vs Commonwealth of Australia, which gave me rights to lodge this application with the Federal Magistrate Court of Australia.

The law

19. 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].

20. 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

21. The applicant was self represented and appeared with the assistance of an interpreter. The applicant's submissions were filed in Court on the day of the hearing. The applicant provided a brief history of the matter and raised the following issues:

a) The Tribunal exceeded its jurisdiction in failing to accord the applicant procedural fairness that is required of s.424A(1) of the Act. The applicant relies on the relevant principles of procedural fairness as expressed by Brennan J in Kioa v West ("Kioa").

b) That in common law, the principle that material adverse to the applicant's case should be put to the applicant to allow the applicant an opportunity to respond, is not confined to material "personal" to the applicant. The applicant states that he attended the hearing to give oral evidence and provided various documents.

c) The applicant claims that after a six hour Tribunal hearing the member handed down his decision in "sixty seconds" but no further particularisation of this claim is made. It is to be presumed that this is a claim that adequate consideration was not given prior to the decision being made.

d) The Tribunal failed to investigate the applicant's claims through DFAT or any other independent source. The applicant claims that the decision was influenced by sufficient doubt. He claims he provided evidence and materials which the Tribunal failed to consider rather basing their decision upon generalised facts and findings of the Department and generalised DFAT reports.

e) The Secretary of the Department failed to comply with s.418(3) of the Act because he failed to provide the Part B documents in his possession or control. The applicant claims he was provided with six documents and the Tribunal made no reference to these documents in its reasons for decision. The applicant suggests that because the Tribunal made no reference to these documents, it can be construed that there were no supplied to them. The applicant relied on the decision of Gaudron and Gummow JJ in the cases of both Muin v Refugee Review Tribunal and Lie v Refugee Review Tribunal ("Muin").

f) The Tribunal failed to internalise the circumstantial grounds of the applicant's review application and did not consider the supporitng facts and documents.

g) The Tribunal did not complete the exercise of its jurisdiction as it had no finding as to what socio-political changes might occur in Bangladesh in the reasonably foreseeable future and it thus failed to assess whether the applicant's fears of being persecuted for being a member of a political party were well-founded in the reasonably foreseeable future.

h) The Tribunal did not provide the applicant with particulars of information, which form part of the reasons of the Tribunal's decision, namely, that the violence against group supporters / leaders had subsided and that information was not just information about a "class of persons".

22. During the hearing the applicant relied on his written submissions and declined to make any further oral presentation to support his claim.

23. The respondent filed an outline of submissions on 13 August 2004 and was represented by Mr J Smith of Counsel at the hearing. These written submissions contain a brief summary of the background and the grounds that have been filed.

24. The first of these grounds is denial of procedural fairness. It is submitted that the Tribunal was not bound to follow the procedures under s.424A(1) because the Tribunal's decision was made before the introduction of that section of the Act. There is no indication in any event that the Tribunal relied upon the information referred to in this ground. There is no evidence to establish that if the Tribunal intended to rely on that information, that the applicant (or his adviser) was unaware of it or the Tribunal did not give the applicant an opportunity to address the matter.

25. The second ground relates to procedural fairness about documents personal to the applicant. This ground is not particularised however, it appears to be an attempt to raise an argument based on the decision of the Full Court in WACO v Minister for Immigration & Multicultural & Indigenous Affairs at [54] where it was held, in the circumstances, that the Tribunal denied the applicant procedural fairness by not giving him an opportunity to address his concerns about the authenticity of letters produced by him in support of his claim. It is submitted that that argument is irrelevant to the circumstances of this case.

26. The submission is that there was no finding of forgery or any collusion by the applicant to create documents to support his case. It is suggested that the ground appears to be part of a generic formulation of grounds of appeal made without regard to the judgment from which the appeal is brought.

27. The third ground is no rational foundation. It is submitted that the applicant must make his case before the Tribunal. In doing so the applicant made claims and gave evidence in support of those claims. It was then up to the Tribunal whether, on a factual basis, it accepted or rejected those claims. The Tribunal accepted some of the claims such as the applicant's membership of the BNP and involvement in attacks on Awami League members.

28. The Tribunal rejected other claims made by the applicant. It gave reasons for those findings. In respect of its rejection of the claims that the applicant was in hiding and was sought after by the authorities, the Tribunal noted that the applicant did not leave Bangladesh until ten months after the Awami League gained power in the 1996 election. The Tribunal rejected the supporting claim that the new government had taken its time to be organised enough to pursue the applicant because, by November 1996 the government had already arrested thousands of BNP political workers. It is submitted that on these reasons it is revealed that the Tribunal's decision was based on rational considerations and was open to it on the material before it.

29. The fourth ground is socio-political change. It was submitted that this issue was not part of the applicant's case. There is nothing in the applicant's oral evidence or materials to suggest there was some socio-political change to occur in the reasonably foreseeable future, such that the applicant's fear of harm was well-founded. His claim was that this change had happened already by the ascendancy of the Awami League to political power in June 1996. It is submitted that this was the proposition that the Tribunal was asked to consider and which it did consider.

30. The fifth ground is Muin. It is submitted that in the applicant's original application for review, the applicant states that he was mislead by the Tribunal's letter into thinking that the Tribunal had all his documents but that was not the case. The amended application states, in familiar form, that the applicant's case is identical to Muin. The submission is however, the applicant, like many before him who had used this formulation, had failed to establish the necessary factual matrix to make good this assertion: NADR v Minister for Immigration & Multicultural & Indigenous Affairs and NADZ v Minister for Immigration & Multicultural & Indigenous Affairs.

31. It is submitted that the elements of procedural fairness claimed in Muin were:

a) The RRT told the plaintiff that he had asked the Secretary to send a copy of the plaintiff's documents and when they were received he would look at them along with other evidence of the RRT's file to determine whether he could make a favourable decision;

b) The RRT informed the plaintiff that he had looked at the material related to the application;

c) The plaintiff believed that the RRT had received the Part B documents;

d) Some of the Part B documents were favourable to the plaintiff;

e) the Part B documents had not been considered by the RRT member;

f) the plaintiff had been mislead into believing that it was unnecessary for him to draw the favourable information within the Part B documents to the attention of the RRT; and

g) if the plaintiff had not been mislead he would have taken steps to correct the situation, and would have tendered additional evidence in support of his position, including decisions favourable to the applicant in analogous situations.

32. It is submitted that the applicant has failed to establish the elements of paragraphs (c), (f) and (g).

33. The respondent's written submissions also draw the Court's attention that there has been unwarranted delay in bringing this application and even if there were jurisdictional error, the Court ought to refuse to exercise its discretion in favour of the applicant.

34. The decision of the Tribunal was provided to the applicant on 31 August 1998 and the application to this Court was not made until 4 June 2003.

Conclusion

35. As the applicant in these proceedings was representing himself, I should not limit any of the considerations to the arguments put forward by the applicant in his written submissions. The applicant made no oral submissions at the hearing. Where the applicant is self represented, the Court must independently consider whether any arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors.

36. This application for review of the decision of the Tribunal relates to the decision handed down by that body on 31 August 1998. Section 424A(1) was added to the Act by the Migration Legislation Amendment (1) Act 1998, 113 of 1998 Schedule 3, Part 1, Item 3 which came into force on 1 June 1999. Consequently, this first ground of denial of procedural fairness under s.424A(1) can be dispensed with.

37. The applicant complained generally about the conduct of the Tribunal hearing. He contends that the methodology adopted by the Tribunal did not help him demonstrate his willingness to express his view on the issues of his persecution and that the Tribunal failed to accept his documentation. The evidence before the Court in relation to the conduct of the hearing is that contained in the Tribunal's reasons for decision. There is nothing before the Court to suggest that the Tribunal did not present the applicant with the opportunity to fully present his case and address the relevant issues or that he was not made aware of and given the opportunity to address critical issues.

38. It is apparent from the Tribunal's reasons for decision that not only was the applicant given an opportunity to present his claims, but the substance of the adverse country information upon which the Tribunal relied, was put to him in the course of the hearing. There is nothing in the material to suggest a denial of procedural fairness in relation to this aspect of the conduct of the hearing.

39. Section 430 of the Act deals with the recording of a Refugee Review Tribunal's decision and s.430(1) specifies the four areas that must be contained within the decision. That section does not require that all of the evidence is set out to the extent that every question asked is required to be recorded. This was discussed by McHugh J in: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingh where his Honour referred to a passage from Addo at [51]:

"Section 430(1) does not impose an obligation to do anything more than refer to the evidence on which the findings of facts are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s.430(1) of the Act. It is not necessary, in order to comply with s.430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made."

40. His Honour continued:

"In my opinion, this passage correctly sets out the effects of s.430(1)(c) and (d). However, the obligation to set out `the reasons for the decision' (s.430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to material issues in proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence of the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal."

41. I am satisfied that the Tribunal has complied with section 430 in the way it has handled the evidence and dealt with it in its decision.

42. In the applicant's written submissions he refers to a passage by Brennan J in the decision of Kioa at [629]:

"In the ordinary course where no problem of confidentiality arises, an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made."

43. In his written submissions, the applicant develops an argument that he was denied the opportunity to comment on the materials adverse to his claim. However, it is apparent from the Tribunal's reasons that the Tribunal put its concerns to the applicant and also put to him the substance of the independent information for his comment. No lack of procedure fairness has been established in relation to this issue. Consequently the second ground that the Tribunal did not put to the applicant its doubts about documents containing information personal to the applicant from different sources is not sustained.

44. The applicant also contents there was a failure to observe the procedures under the Act and in particular, s.418(3). It appears from the applicant's submissions that his case closely resembled the decision of the High Court in Muin. However, the decision in Muin is of no assistance to the applicant because the factual basis for the High Court decision in that case is not established here. In particular and contrary to the situation in Muin, there are no agreed facts that the Part B material referred to in the delegate's decision was not provided to the Tribunal. In fact there are a number of items from the Part B material that are referred to in the Tribunal's reasons for decision. There is no evidence to show that the applicant was mislead or if he was, how he was mislead or what he could have done had he known the information that he understood to be before the Tribunal was not in fact before the Tribunal. I accept the respondent's submissions set out in paragraphs 29 to 31 above and conclude that ground five is not supported.

45. In respect of grounds 3 and 4, I accept the submissions of the respondent's Counsel in that these grounds raise issues that do not appear to be strictly relevant to the applicant's circumstances or the deliberations of the Tribunal.

46. As the grounds in the application are general and without any particularisation, I have not been able to identify any ground that the Tribunal had committed any jurisdictional error. The applicant's claim should be dismissed.

47. I am satisfied that an order for costs should be made in the circumstance 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-seven (47) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 1 October 2004
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