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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - procedural fairness - alleged bias - no reviewable error found.

PRACTICE AND PROCEDURE - Provision of an interpreter - whether the religion of the interpreter a relevant consideration.

SZADQ v Minister for Immigration [2003] FMCA 230 (11 June 2003)

SZADQ v Minister for Immigration [2003] FMCA 230 (11 June 2003)
Last Updated: 1 July 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZADQ v MINISTER FOR IMMIGRATION
[2003] FMCA 230



MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - procedural fairness - alleged bias - no reviewable error found.

PRACTICE AND PROCEDURE - Provision of an interpreter - whether the religion of the interpreter a relevant consideration.



Migration Act 1958 (Cth), s.474

Applicant:
SZADQ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ120 of 2003



Delivered on:


11 June 2003



Delivered at:


Sydney



Hearing date:


11 June 2003



Judgment of:


Driver FM



REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:


Mr G Johnson



Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

(3) The applicant is to pay the setting down fee of $327 within 14 days.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ120 of 2003

SZADQ


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIARS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 3 January 2003 and handed down on 14 January 2003. The decision of the RRT was to affirm a decision of a delegate of the respondent Minister not to grant the applicant a protection visa. The applicant applied in this Court on 6 February 2003 for review of that decision and filed a supporting affidavit on the same day.

2. The applicant is a Hindu man from Bangladesh. He claims religious and political persecution in his home country. The grounds of review set out in the application are that the applicant is a genuine refugee; that he was deprived on an opportunity to fully present his case to the RRT; that the RRT failed to act according to substantial justice and the merits of the case; and that the applicant is not satisfied with the RRT member's comments regarding his real chance of persecution, should he return to Bangladesh. The applicant seeks prerogative relief and costs. The affidavit filed the same day elaborates briefly on the applicant's claims of persecution and his concerns with the RRT decision.

3. The applicant was required by orders made at the interlocutory stage of the proceedings to file written submissions in support of his claim and the Minister was required also to file written submissions. Written submissions on behalf of the Minister were filed on 10 June 2003. The applicant has not done so and explained to me that he would need further time to present written submissions. The applicant asked for an adjournment of the hearing in order to prepare written submissions and also to obtain additional documents which he said would assist his case. I declined to grant an adjournment on the basis that oral submissions from the applicant would be sufficient for the purposes of the review. I did not consider that further documents would be likely to assist me to form a view on whether any error of law going to the jurisdiction of the RRT had been committed. I explained to the applicant that the Court was not able to review the merits of the RRT decision, only its legality.

4. The applicant also requested an adjournment due to his concern about the interpreter who had been provided for the purposes of the hearing this afternoon. The applicant expressed concern that the interpreter is a Muslim and requested the services of a non Muslim interpreter. I noted from the court file that the applicant had previously requested a Hindu Bengali interpreter and I caused inquiries to be made earlier today as to whether a Hindu Bengali interpreter would be available. The advice I received was that no Hindu Bengali interpreter would be available. Immediately before the hearing I was advised that no non Muslim Bengali interpreter was available. It was apparent that the applicant was concerned and felt uncomfortable with the services of Muslim interpreter. However, I ruled that the religion of the interpreter did not bear upon the capacity of the interpreter to interpret faithfully and his understanding of his obligations. I satisfied myself that the interpreter was qualified and competent and the hearing continued. As matters transpired the applicant was able to conduct the proceedings in the English language with occasional resort to the interpreter by him or by me to better understand what was being said.

5. The applicant's oral submissions raise a number of issues. He put to me that the presiding member appeared to be biased and the applicant suspected that the presiding member was a Muslim, or at least hostile to non Muslims. The applicant referred to discussions with the presiding member during the course of the hearing in which the presiding member became angry or said other things to indicate bias. The applicant showed me some 16 tapes of four hearings conducted before the RRT over a two year period. However, no transcript of those hearing has been provided and I consider it impracticable to listen to all 16 of those tapes in order to determine whether something might have been said at some stage during the course of those four hearings which might be of concern.

6. The applicant put to me that the presiding member had volunteered to go to Bangladesh, apparently at the applicant's expense, in order to investigate his claims and that no mention of that was made in the decision and reasons of the RRT appearing from page 92 of the court book. I do not rule out the possibility that some such exchange took place during the lengthy course of the hearings before the RRT, although it is not possible in the proceedings before me this afternoon to verify that allegation one way or the other. If such an exchange occurred I think it likely that it would have been an attempt at humour by the presiding member and would not of itself indicate bias or a reasonable apprehension of bias.

7. The applicant also told me that at one point the presiding member became angry when his sister-in-law wished to leave the proceedings in order to take his mother to the toilet. Both were present before the RRT at that particular stage. It may have been that the presiding member considered it inconvenient for both to absent themselves from the hearing room at that time. Again, I do consider it unlikely that something said by the presiding member about whether a witness could absent herself from the hearing room at a particular time could point to bias. The applicant also drew attention to the fact that two persons had telephoned the Department prior to the RRT hearing to make allegations about the applicant impacting adversely upon his credibility. These allegations were referred to by the presiding member in the decision and reasons of the RRT. The allegations made by those persons were put to the applicant. He therefore had an opportunity to respond to those allegations. In any event, it does not appear that the allegations figured in the conclusions reached by the presiding member. I do not think that there is any legal significance in those allegations having been made against the applicant prior to the hearing.

8. The applicant expressed particular concern about one of his claims rejected by the presiding member relating to his political activity at the age of 15 in Bangladesh. The presiding member found it implausible that the applicant would have been involved in politics in a public speaking capacity at that age. The applicant pointed out to me that while such a situation may be implausible in Australia it is not necessarily so in Bangladesh. That may arguably be right. However, that single finding of the RRT, while it may have figured to some degree in the decision and reasons of the RRT, was but a small part of the findings made by the presiding member. To the extent that the finding is contestable on the facts, I do not consider that it invalidates the decision reached by the presiding member. If anything it goes to the merits of the decision. The applicant also submitted to me that the presiding member disclosed an ignorance of refugee law. However, it is apparent from the decision and reasons of the RRT that the presiding member correctly stated the applicable provisions of the legislation and the definition of "refugee" for the purposes of his decision.

9. It is apparent from a reading of the RRT decision that the applicant failed because of the findings on credibility made by the presiding member. In the written submissions prepared by Mr Johnson, he quotes from the decision at pages 114.5 to 115.2 of the court book. There the presiding member said:

In summary, I find the applicant has constructed a set of claims, some of which may be based on certain facts. I find that he has produced a set of documents and used other people to assist in this way in an attempt to provide supporting evidence to his fabrications. The applicant's credibility is so damaged that I reject his claims outright and find that he did not leave Bangladesh as a result of a well founded fear but for other reasons.

I accept that a Hindu in Bangladesh could have serious claims to refugee status, but having considered the independent material I find that this would not be generalised and would be a matter of fact and degree and the decision would depend upon the individual merits of each matter. In the current matter the applicant has not provided the Tribunal with genuine claims and has fabricated a set of claims which I do not accept. While I accept that he is Bangladeshi and he is Hindu I find that he does not have a set of genuine claims to have suffered past harm or that he could suffer prospective harm either because of his religion or his political opinion. [The applicant's claims were based both on alleged religious and political persecution]. This being the case I find he does not have a well founded fear of persecution for a Convention reason. Since I do not accept that he has well founded fear I am not satisfied that Australia has protection obligations.

10. These are very strong findings adverse to the applicant based on credibility. The applicant is plainly dissatisfied with those findings and considers that he should have been accepted as a genuine refugee. However, as I have already noted, it is not the task of this Court to determine whether the applicant's claims have substance in fact or not. The task of the RRT following a decision of a delegate of the Minister is to assess the claims and to make a decision on those claims. The task of the RRT is to assess the credibility of claims made. To the extent that an applicant is dissatisfied with the merits of the RRT decision, the only course available to an applicant, the decision being otherwise lawful, is to appeal to the Minister for his intervention. That course is open to this applicant.

11. The task before the applicant in the proceedings before me is to demonstrate reviewable legal error. If the applicant were able to demonstrate an error of law going to the jurisdiction of the RRT the applicant would succeed, notwithstanding the privative clause in s.474 of the Migration Act. The applicant has, in substance, asserted procedural unfairness in terms of the manner in which the RRT conducted its hearing.

12. However, the matters raised by the applicant orally before me do not satisfy me that there was procedural unfairness. The applicant was given a very extensive opportunity over two years and four hearings to put all of the material that he wished before the RRT. The presiding member appears to have thoroughly investigated those claims for the purposes of reaching a decision on them. The RRT considered that the claims were not credible either because the claims were not plausible on their face or that the claims were internally inconsistent or that other evidence before the RRT indicated that the claims were false.

13. In the circumstances, the adverse conclusions on credibility reached by the RRT were reasonably open to it on the material before it. I am not persuaded that any reviewable legal error has been committed by the RRT in this case. I accept in that regard paragraphs 4-10 of the respondent's written submissions filed on 10 June 2003.

14. Although the applicant has asserted bias, I find that the decision of the RRT is not vitiated bias, whether that is said to go to procedural unfairness or to an issue of bad faith. The other Hickman provisos to the privative clause in s. 474 are satisfied. In the circumstances, and in the absence of any jurisdictional error, I must dismiss the application.

15. On the issue of costs, Mr Johnson has sought an order for costs on behalf of the Minister and has submitted that an order for costs in the sum of approximately $5,500 would be appropriate, bearing in mind costs said to have been incurred on behalf of the Minister. This is a matter of average complexity in my view. In such matters in recent times I have commonly awarded costs in the range of $2,500 to $3,500. An order for costs is generally not a complete indemnity in favour of the successful party. In this matter I am satisfied that an order for costs in the sum of $3,500 would be adequate recompense. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.

16. I further order that the applicant pay the setting down fee of $327 for this hearing within 14 days.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 24 June 2003
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