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MIGRATION - Review of RRT decision affirming decision of a delegate not to grant a protection visa - alleged political activity in Bangladesh - credibility of the applicant - fabrication of documents.

NAGU v Minister for Immigration [2002] FMCA 154 (24 July 2002)

NAGU v Minister for Immigration [2002] FMCA 154 (24 July 2002)
Last Updated: 1 August 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAGU v MINISTER FOR IMMIGRATION
[2002] FMCA 154



MIGRATION - Review of RRT decision affirming decision of a delegate not to grant a protection visa - alleged political activity in Bangladesh - credibility of the applicant - fabrication of documents.



Migration Act 1958 (Cth), s.474

Johnson v Johnson (2000) 74 ALJR 1380

Laws v Austrlaian Broadcasting Tribunal (1990) 70 CLR 70

MIMIA v Jia Legeng (2001) 75 ALJR 679

NAAG v MIMIA [2002] FCA 713

NACH v MIMIA [2002] FMCA 110

SAAG v MIMIA [2002] FCA 547

SBAN v MIMIA [2002] FCA 591

SCAA v MIMIA [2002] FCA 668

Applicant:
NAGU



Respondent:


MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ399 of 2002



Delivered on:


24 July 2002



Delivered at:


Sydney



Hearing Date:


24 July 2002



Judgment of:


Driver FM



REPRESENTATION

Applicant appeared in person






Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Sparke Helmore


ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursement of and incidental to the application, which are fixed at $4,600.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ399 of 2002

NAGU


Applicant

And

MINISTER FOR IMMIGRATION,

MULTICULTURAL & INDIGENOUS AFFIARS




Respondent


REASONS FOR JUDGMENT

1. I have before me for ex tempore judgment an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 2 April 2002. The decision of the RRT was to affirm a decision of a delegate of the respondent minister to refuse to grant the applicant a protection visa. I have the benefit of an outline of written submissions prepared by the solicitors for the respondent Minister and I adopt as accurate the following statement of background facts contained in paragraphs 4 to 8 of that outline:

The applicant, a citizen of Bangladesh, arrived in Australia on 18 June 1999 and lodged an application for a protection visa on 15 July 1999. In his application the applicant claimed that he feared harm from members or supporters of the Awami League Party on account of his involvement in the Freedom Party. He claimed that he had been attacked by them and that they had tried to kill him and to ruin his business and that they had lodged false cases against him.

On 29 October 1999 a delegate of the respondent made a decision refusing to grant the applicant a protection visa and the applicant applied to the RRT for review of that decision. On 28 February 2002 the applicant's adviser sent written submissions to the RRT stating that the election success of the Bangladesh National Party in October 2000 had not changed the risks faced by the applicant and that, in February 2002 the applicant's residence [in Bangladesh] had been ransacked and set on fire. The applicant submitted a statutory declaration made on 3 March 2002 setting out further details of his claims.

On 5 March 2002 the applicant attended a hearing held by the RRT and gave evidence. The RRT handed down its decision on 2 April 2002 affirming the decision under review. The RRT made the following findings:

(a) the applicant is not and never has been a member of the Freedom Party; and

(b) the applicant has never faced problems with members of the Awami League or anyone else because he was believed to be a member of the Freedom Party.

These findings were based on inconsistencies and in the applicant's evidence and the implausibility of several of the claims made by him.

2. The applicant has filed an amended statement of grounds of application for review in which he asserts that the decision of the RRT should be set aside on the basis that the decision was induced or affected by actual bias. The applicant was self represented at the hearing today and I asked him whether his application was limited to that ground. The applicant responded that he was not intending to limit his application to the ground of actual bias and that he had not had the benefit of any significant legal assistance in preparing for the hearing. In the circumstances I have proceeded today on the basis that I should consider generally whether the decision of the RRT is vitiated by legal error or by actual bias.

3. In several previous cases I have adopted the approach of determining what is the proper interpretation of the privative clause in section 474 of the Migration Act 1958 (Cth) ("the Migration Act") before considering the particular matters raised by the applicant as supporting the application for review. In this case I have decided to follow the approach taken by the Chief Federal Magistrate in NACH v MIMIA [2002] FMCA 110. I refer in particular to what the Chief Federal Magistrate said in paragraphs 23 to 28 of that decision. Given that the Full Federal Court is to authoritatively determine shortly the approach to the interpretation of the privative clause it is appropriate to give the applicant the benefit of the most generous interpretation of the privative clause pending the outcome of the five cases that are presently before the Full Court. That is the basis on which we have proceeded today.

4. The applicant has advanced several complaints about the decision of the RRT. The presiding member of the RRT made a number of findings adverse to the applicant in the reasons for the decision of the RRT. Critically, the RRT found that the applicant was not a credible or truthful witness. The claim to refugee status made by the applicant was based upon his membership of the Freedom Party in Bangladesh. The RRT found that the applicant was untruthful about his membership of the Freedom Party. The RRT found that the applicant had given contradictory and unconvincing evidence about when he joined the Freedom Party and noted that his claims of initial activity in the party pre-dated the time when the party was formed.

5. The RRT also found that the applicant was untruthful in his claims that he had been a leading member of the Party and a president of his local branch. The RRT noted that at the time the applicant had asserted he was taking a leadership role locally in the party he was studying in Japan and formed the view that it was implausible that he would have been able to pursue that leading role when he was absent from the country.

6. The RRT also rejected the applicant's claim that his home had been ransacked and members of his family injured earlier this year by members or former members of the Awami League. The RRT found that this claim was implausible given the change of government in Bangladesh in October 2001 and the fact that the applicant had been outside of Bangladesh for three years and had ceased any involvement in politics in Bangladesh in 1999.

7. The applicant challenged each of these conclusions drawn by the RRT. However the respondent has submitted that an error of fact, even if it could be established, does not constitute an error of law, at least in the context of these proceedings. I accept that submission. It is also apparent to me from my reading of the material in the court book which was available to the RRT that the conclusions reached by the RRT were reasonably open to it on the evidence before it.

8. The conclusion reached by the RRT that the applicant was untruthful about his membership in the Freedom Party is a more severe conclusion than was reached by the delegate of the Minister. However, the RRT had the benefit of significantly more material than was before the delegate of the Minister when the original decision was made to refuse to grant a protection visa. The accumulation of that material tended to weaken rather than strengthen the applicant's case, even though much of that material was put forward by the applicant himself. That was because there were apparent inconsistencies in the material advanced by the applicant about his membership in the Freedom Party and his activities in that party.

9. The applicant put before the RRT a substantial amount of documentary material (in excess of 200 pages) in support of his application. The majority of these documents simply provide background information on the political situation in Bangladesh, and the level of violent crime in the country, including politically motivated violence. However, the documents also purport to verify that the applicant has been an active member of the Freedom Party for many years in Bangladesh and that he has been targeted for persecution on account of his activities. In relation to that the presiding member said, at pages 8 and 9 of the RRT decision:

After considering all of the evidence, I am not satisfied that [the applicant] has ever belonged to the Freedom Party nor that he has ever faced problems with members of the Awami League or anyone else because he was or was believed to be a member of the Freedom Party. In reaching this conclusion, I have noted the documents which he has provided in relation to his alleged membership of the party and the charges which he claims were laid against him. I believe that these documents are all fraudulent or contain false information. False documents of all kinds are readily obtainable in Bangladesh and it is even possible to have newspaper articles containing false information published in some newspapers or magazines.

10. That statement is initially surprising as it dismisses with a metaphorical wave of the hand many pages of documents put forward by the applicant which on their face establish his membership in the Freedom Party, his activities in it and criminal charges which had been laid against him, allegedly falsely.

11. The presiding member did not indicate any particular analysis as having been undertaken of the documents but the conclusion that these documents were fraudulent or contained false information appears to have been based upon the adverse conclusions on credibility which the RRT had already drawn from the information before it. The RRT also referred to country information as supporting the conclusion that fabricated documents could be readily obtained in Bangladesh in order to support false claims.

12. It seems to me that if all of the documents described by the RRT are fraudulent or contain false information, it was a remarkably diligent effort at fabrication by the applicant. On the other hand, the presiding members of the RRT are in the advantageous position of seeing large numbers of similar cases and are placed in a good position to form judgments about the likelihood of documents having been fabricated.

13. Viewed objectively, some of the documents advanced by the applicant would on their face give cause for some concern about their authenticity. For example, the document appearing at page 44 of the court book which purports to provide basic evidence of the applicant's membership of the Freedom Party appears on its face dubious. The author is anonymous and gives no address. The document appears to have been prepared with the protection visa application in contemplation. Other documents put forward by the applicant relate to criminal charges alleged against him. These appear to be typed transcriptions from originals which were not put into evidence. Viewed objectively these records of criminal charges appear largely to be credible although they did not in themselves provide much support for the assertion that criminal charges were falsely laid against the applicant. I also accept that there is the potential for false information to be inserted into such documents in the course of transcription.

14. Accordingly, while I find the sweeping conclusion of the RRT presiding member concerning these documents surprising I am unable to conclude that there was no basis for that finding.

15. Turning to the question of actual bias, I was referred by Mr Smith, for the respondent Minister, to the decision of the High Court in MIMA v Jia Legeng (2001) 75 ALJR 679. At page 692 of the reported judgment at number 72, the Court set out the classical test for determining the issue of actual bias. The Court said that the test which was applied both by French J and by the Full Federal Court in earlier proceedings referred to in that case was orthodox. It accords with the decisions of the High Court in Laws v Australian Broadcasting Tribunal (1990) 70 CLR 70 at 91 and Johnson v Johnson (2000) 74 ALJR 1380. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Procedural fairness does not, however, require the absence of any predisposition or inclination for or against an argument or conclusion.

16. Much the same test has been applied recently in proceedings in the Federal Court and this Court in cases of alleged actual bias. The issue of bias is of course relevant to the issue of whether the decision of the RRT was made bona fide. In the case of NAAG v MIMIA [2002] FCA 713, Allsop J, at paragraph 24 of that decision considered what was meant by the words, bona fide. His Honour noted that a lack of bona fides constitutes bad faith which in turn constitutes a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the decision maker.

17. His Honour further noted that such a matter must be clearly identified and proved and expressed agreement with statements of principle on the subject made by Mansfield J in SAAG v MIMIA [2002] FCA 547 at paragraphs 34 to 36.

18. In that case Mansfield J found a lack of good faith in the RRT decision by inference from the decision as a whole on the basis that the RRT set about its task in order to find evidence to reject the applicant's claims rather than to objectively assess whether the applicant had a well founded fear of persecution. His Honour made no finding of actual bias. In SBAN v MIMIA [2002] FCA 591 Mansfield J did find actual bias. That was because the RRT decision on its face disclosed that it had adopted views that were incapable of alteration.

19. That decision may be compared with the decision of von Doussa J in SCAA v MIMIA [2002] FCA 668 in which his Honour rejected an assertion that the RRT had adopted a predetermined view about the group to which the applicant belonged. His Honour held at paragraphs 36 and 37 that actual bias requires proof of a closed mind, although it does not have to be the conscious adoption of an irreversible view and may be established by inference from the decision itself and the surrounding circumstances.

20. Mr Smith has submitted and I accept that it would be a rare case in which the reasons for decision of the RRT disclosed on their face facts or circumstances meriting a conclusion of actual bias. It may be, however, that in a particular case there is sufficient - on the face of the decision and the reasons of the RRT - to give cause for concern which merits more close investigation of what had occurred at the hearing before the RRT or what may have been said outside the hearing by the presiding member.

21. The applicant has invited me to listen to the tape recording of the proceedings before the RRT in order to satisfy myself whether or not the presiding member showed bias. I should not do so as a matter of course although it might be justified in a case where things of concern emerged on the face of the RRT decision and reasons. There is nothing in the decision and reasons of this decision of the RRT that gives me such concern. Plainly, the presiding member drew adverse conclusions about the credibility of the applicant but that does not of itself disclose a predetermined view.

22. The presiding member's conclusion was clearly reached on the basis of material advanced by the applicant, questions put by the presiding member to the applicant and his answers to those questions. There is nothing on the face of the decision and reasons of the RRT that suggests in any way that the presiding member approached her task with a closed mind on the issue of credibility.

23. I have also considered whether the applicant should have been given notice prior to the hearing before the RRT of any matters that might be held against him. In particular, I have taken into account that the applicant is a quietly spoken, even shy man, who may not present well at an oral hearing and whose hesitancy may have assisted the RRT in drawing adverse conclusions. However, I am satisfied that the applicant was not taken by surprise on any of the matters that were put to him for response at the hearing by the presiding member. The presiding member simply tested the applicant on matters that were already within his knowledge. Accordingly, I can find no breach of the rules of procedural fairness either in the conduct of the hearing before the RRT or on the face of the decision and reasons of the RRT.

24. Whatever view one takes of the privative clause in the Migration Act no error of law has been disclosed which would support the granting of prerogative relief by me. In the circumstances I will dismiss the application.

25. As to the question of costs, the applicant has been wholly unsuccessful in these proceedings and I am satisfied that costs should follow the event. Consistently, with my usual approach in proceedings of this nature, I have decided that it is appropriate to fix an amount of costs pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001 (Cth). In previous matters I have fixed costs somewhere in the range of $4,000 to $5,000 on the basis that in ordinary migration proceedings a taxation outcome in the Federal Court would be achieved somewhere in that range.

26. This case was moderately difficult in that there have been two preliminary hearings and the applicant has filed and has relied on an amended application, raising the issue of actual bias. The court book in these proceedings is also moderately lengthy, reflecting the significant number of documents relevant to the proceedings. It has in addition been necessary for the respondent's legal representatives to traverse legal issues generally, not limited to the issue of actual bias given that the applicant was not restricting himself to the issue of actual bias.

27. This indicates to me that costs and disbursements should be awarded in the range between $4,500 and $5,000 but not at the top of that range. I will order that the applicant pay the respondent's costs and disbursements of and incidental to this application which I fix in the sum of $4,600.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 29 July 2002
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