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MIGRATION - Review of Refugee Review Tribunal decision - applicant claiming persecution in Bangladesh - no reviewable error in RRT decision - application dismissed.

SZAXP v Minister for Immigration [2004] FMCA 736 (27 October 2004)

SZAXP v Minister for Immigration [2004] FMCA 736 (27 October 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAXP v MINISTER FOR IMMIGRATION
[2004] FMCA 736




MIGRATION - Review of Refugee Review Tribunal decision - applicant claiming persecution in Bangladesh - no reviewable error in RRT decision - application dismissed.




Chen v Minister for Immigration [2001] FCA 1671

Eastman v The Queen (2000) 203 CLR 1

Kioa v West (1985) 159 CLR 550

Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407

Minister for Immigration v Jia (2001) 178 ALR 421

Minister for Immigration v NAMW [2004] FCAFC 264

Minister for Immigration v SCAR [2003] FCAFC 126

Minister for Immigration v WAAG [2003] FCAFC 60

NAOP v Minister for Immigration [2003] FMCA 573

NARV v Minister for Immigration [2003] FCAFC 262

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206

SBBG v Minister for Immigration [2003] FCAFC 121

Applicant:
SZAXP




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1284 of 2003




Delivered on:


27 October 2004




Delivered at:


Sydney




Hearing date:


27 October 2004




Judgment of:


Driver FM




REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:


Ms J Jagot




Solicitors for the Respondent:


Australian Government Solicitor




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.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1284 of 2003

SZAXP



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





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 23 June 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The RRT found that the applicant is a Bangladeshi national of Burmese ethnicity. He disputes that finding but did make claims of persecution in Bangladesh. The relevant background facts are set out in written submissions prepared on behalf of the respondent by Ms Jagot. I adopt paragraphs 2-8 of those submissions for the purposes of this judgment:

The applicant made application for a protection visa on 30 May 2001.[1].

By letter dated 23 May 2002, the applicant was advised of a number of matters which were adverse to his claims and might lead to his application being refused, inviting the applicant's comment thereon.[2]

The applicant responded on 10 June 2002 to that letter.[3]

The respondent's delegate made a decision refusing a protection visa which was communicated to the applicant on 26 June 2002.[4]

The applicant applied for review of that decision on 15 July 2002.[5] The applicant supported that application for review with a number of claims.

The RRT records evidence given by the applicant at court book, pages 91 to 95.

The RRT recorded its reasons for the decision and findings at court book, pages 99 to 106.

2. Ms Jagot also sets out conveniently the grounds of review set out in the judicial review application filed on 8 July 2003. I adopt paragraph 1 of her submissions also for the purposes of his judgment:

The applicant seeks review of a decision of the RRT made on 23 June 2003 in which the RRT affirmed a decision of the Minister's delegate refusing the applicant a protection (Class XA) visa.[6] The application is apparently made on 3 grounds, paraphrased below[7].

The RRT ought to have believed the documents provided by the applicant in respect of his claim that he was not a citizen of Bangladesh. The RRT ought to have inquired of the Bangladesh High Commission and the failure to do so was a procedural mistake.

The RRT was wrong when it said that NOFA and RSO were not banned in Bangladesh as both are banned.

The RRT was wrong in finding that the applicant was only "wanted" in certain parts of Bangladesh as the applicant is "wanted" in all parts of Bangladesh as a Rohinga terrorist who is destabilising relations between Bangladesh and Burma.

3. I gave the applicant the opportunity to make oral submissions to me today. He reiterated the grounds set out in his application. He is concerned that the RRT found that he is a national of Bangladesh rather than Burma. He also disagrees with the RRT's finding on the banning of certain organisations that he regards as of significance. He also disagrees with the RRT finding on the localised nature of the risk, if any, confronting the applicant in Bangladesh.

4. These are all disputes with the merits of the RRT decision. As I explained to the applicant, in order to succeed in his proceedings in this Court he needs to identify jurisdictional error, not simply contest the merits of the RRT decision. He has failed to demonstrate any jurisdictional error. There was no obligation on the RRT to make any inquiries additional to those made at the hearing in relation to the applicant's nationality.

5. The documents provided by the applicant himself pointed to Bangladesh nationality which the RRT accepted. The applicant asserts that the RRT rejected documents relating to nationality but that is not borne out by the RRT's reasons. It is clear from page 103 of the court book that the presiding member rejected certain documents but they have no bearing on the issue of nationality.

6. The other findings made by the RRT that are disputed by the applicant were reasonably open to the presiding member from the material before him. In my view, the presiding member understood and thoroughly considered all aspects of the applicant's claims. The proceedings conducted by the RRT appear to have been fair. The applicant was unsuccessful before the RRT because his claims were rejected on credibility grounds. That conclusion was also reasonably open to the presiding member on the material before him.

7. Ms Jagot has dealt with all of these issues thoroughly in her written submissions. I agree with all of those submissions in paragraph 9 through to paragraph 24 and adopt them for the purposes of this judgment:

The grounds of the application do not disclose any ground which, if sustained, would result in jurisdictional error.

The grounds do not identify any requirement essential to valid action with which the RRT failed to comply.[8]

No "inviolable limitations or restraints" in the Act are identified in the grounds as having been exceeded.[9]

Nor, if a broader view of jurisdictional error is taken, is any error of the requisite class disclosed by the RRT's reasons.[10]

Ground 1 - not a citizen of Bangladesh claim

The applicant's first review ground is that the RRT ought to have believed the applicant's documents that he was not a citizen of Bangladesh and ought itself to have made inquiries of the Bangladesh High Commission.

The documents which the applicant has in mind in ground 1 are not clear. The documents which the applicant had submitted, including his protection visa application and passport, identified him as a Bangladesh national born in Burma. The RRT considered all that material, and other material before it, and came found that the applicant was a citizen of Bangladesh. The RRT was entitled to make the factual findings that it made in respect of that question. That process of consideration, evaluation and conclusion discloses no error of law.

The RRT, moreover, was under no duty, statutory or otherwise, to make inquires of the Bangladesh High Commission. Division 4 of Part 7 of the Act sets out the requirements for the conduct of review by the RRT. The RRT is not required to actively assist the applicant in putting his or her case; nor does it require the RRT to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration [2001] FCA 1671.

In Minister for Immigration v SCAR [2003] FCAFC 126 (6 June 2003), the Full Court of the Federal Court said at [31] that:

It is also clear that the requirements of natural justice in any particular instance are to be determined in the relevant statutory context: see Kioa v West (1985) 159 CLR 550 at 584-585, 611. This means that it may be misleading, at least in Australia, to discuss �natural justice' as if that term always has a fixed meaning in every statutory context. So, for example, the fact that an obligation to afford natural justice does not normally imply a duty upon the decision-maker to make inquiries (see Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206 at 213-214) does not mean that there may not be a duty to inquire in relation to a particular issue under a particular statute. Inquiries in relation to �fitness to plead' may be an obvious example: see Eastman v The Queen (2000) 203 CLR 1."

In this case, there was no circumstance in respect of the applicant's status as a citizen of Bangladesh which could have imposed any duty on the RRT of the type claimed by the applicant. The RRT was under no duty to make further inquires, was entitled to make its findings on the basis of the information the applicant had put before it and its reasoning process in that regard was unaffected by any error of law.

Ground 2 - NOFA and RSO are banned

The RRT informed the applicant during the hearing that it had found no reference to NOFA but had found reference to RSO and neither organisation was banned (court book, pages 92 at [20], 93 at [25] and 94 at [33], 97, ). The Applicant had ample opportunity to put before the RRT any information to support his claims in that regard and was expressly put on notice of the information that was available (or not) to the RRT about both organisations. The RRT was the arbiter of fact and was entitled to make the factual findings which it did on the material which was available to it.

In any event, the RRT placed little, if any, weight on the applicant's involvement with these organisations because as it found, the applicant's support was described by the applicant as financial and moral only (court book, pages 103, 87 at [3D] and 89 at [9F]). The whole question of the status of the organisations as banned or not was immaterial to the RRT's decision which, on any reading of its reasons, was based on other grounds.

Ground 3 - RRT wrong about localised problems

The applicant claims that the RRT was wrong when it found that he was "wanted" in one local part of the Bangladesh only and that he was in fact "wanted" throughout the country.

The RRT made no finding that the applicant was wanted. It found (court book, page 104) that any problems the applicant may have had related to his business were very localised (one district in Chittagaong division) and that the applicant had not experienced any difficulties (on the version of he claim the RRT accepted) anywhere else.

Those findings were available on the material before the RRT. The RRT was entitled to make those findings and its reasoning process in that regard discloses no error of law.

Other matters

The RRT's reasons must be read as a whole recognising that adverse findings on facts and credit in reasons are inevitable. The RRT plainly reached a view about the applicant's credit adverse to the applicant. The process of the hearing shows that the RRT gave the applicant, in question and answer style, ample opportunity to address the RRT's concerns about the applicant's claims. See court book, page 91 at [14]. The RRT's mind was open to persuasion about the applicant's claims - and the RRT did not have to approach those claims as if its mind were blank.[11] The ultimate and adverse assessment of credibility was a matter for the RRT alone - the finding on credibility being "a function of the primary decision-maker par excellence."[12]

In NARV v Minister for Immigration [2003] FCAFC 262 (24 November 2003), the Full Court (Ryan and Finkelstein JJ, Downes J contra) held that where the applicant had not been given the opportunity to respond to country information about document fraud, which was a matter significant to the RRT's decision, the applicant had been denied procedural fairness (a jurisdictional error). NARV must now be read in the light of Minister for Immigration v NAMW [2004] FCAFC 264.

In NAOP v Minister for Immigration [2003] FMCA 573 (8 December 2003), this Court (Driver FM) distinguished the decision in NARV on the facts. In NAOP, the RRT made adverse findings about the applicant's credibility and rejected the applicant's claim. In so doing, the RRT gave no weight to the country information about document fraud. Driver FM said that in that case, where the applicant's credibility had been destroyed and findings were made on that basis, the placing of no weight on the purportedly corroborative material did not bring the matter within the scope of the reasoning in NARV. In short, the RRT's decision was not based, in whole or part, on the country information as to document fraud - that information was not "significant" to the decision made.

In this case, there is a reference to document fraud at court book, page 103. The result of that reference was nothing more than that the Tribunal placed no weight on the documents described in court book, page 89 at [9G]. Reliance on those documents or otherwise was immaterial to the decision made by the RRT. As court book, page 100 makes clear, the RRT did not resolve one way or another the applicant's claim about the arrest of his cousin contenting itself with the observation that it did not know if the claim was true. In any event, even if it were true, as the RRT observed at court book, page 103, nothing in the applicant's activities suggested any reason for the authorities to be after the applicant. Moreover, that was inconsistent with other material which was before the RRT and which it cited at court book, page 103.

The reference to document was fraud in Bangladesh was immaterial to the decision the RRT made.

8. There is no jurisdictional error in the decision of the RRT. It follows that the decision is a privative clause decision.

9. Accordingly, the judicial review application must be dismissed.

10. On the question of costs, the application having been dismissed, Ms Jagot seeks an order for costs fixed in the sum of $3,500 on a party/party basis. The applicant did not oppose a costs order in principle but sought a reduced amount. In my view, costs of the order of $3,500 have been reasonably and property incurred on a party/party basis in this matter. I take into account that the Minister was appropriately represented by counsel and an instructing solicitor today. I also take into account the amount of preparation that has been done. I will order that the application is dismissed and that the applicant is to pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 3 November 2004


--------------------------------------------------------------------------------

[1] court book, pages 2 to 38.

[2] court book, pages 39-40.

[3] court book, pages 41-55.

[4] court book, pages 56 - 65.

[5] court book, pages 66 -74.

[6] court book, pages 82 - 106.

[7] derived from the application.

[8] Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 at [20] per Gleeson CJ.

[9] Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

[10] SBBG v Minister for Immigration [2003] FCAFC121 at [19] - [20] - including a failure to afford a fair hearing, reasonable apprehension of bias, proceeding on a misunderstanding of the law at least in relation to defining its core task; see also Minister for Immigration v SCAR [2003] FCAFC126 at [20] - [21] and Minister for Immigration v WAAG [2003] FCAFC60 at [5].

[11] Minister for Immigration v Jia (2001) 178 ALR 421 at [71] - [72].

[12] Minister for Immigration; Ex Parte Durairajasingham (2000) 168 ALR 407 at 423.
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