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SZOAF v Minister for Immigration & Anor [2010] FMCA 44 (27 January 2010)
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SZOAF v Minister for Immigration & Anor [2010] FMCA 44 (27 January 2010)
Last Updated: 29 January 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZOAF v MINISTER FOR
IMMIGRATION & ANOR
|
|
MIGRATION – Review of decision of Refugee
Review Tribunal – no bias – no breach of procedural fairness –
weight
to give evidence a matter for the Tribunal – findings of fact a
matter for the Tribunal – no jurisdictional error –
application
dismissed. |
|
First Respondent:
|
MINISTER FOR IMMIGRATION & CITIZENSHIP |
|
Date of Last Submission:
|
25 January 2010
|
REPRESENTATION
Counsel for the Respondents: |
Mr T Reilly
|
Solicitors for the Respondents: |
Sparke Helmore
|
ORDERS
(1) The application made on 9 November 2009, and amended
on 7 January 2010, is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of
$5,000.
FEDERAL MAGISTRATESCOURT OF AUSTRALIA
ATSYDNEY
|
SYG 2736 of 2009
Applicant
And
MINISTER FOR IMMIGRATION &
CITIZENSHIP
|
First Respondent
Second Respondent
REASONS FOR JUDGMENT
- This
is an application made under the Migration Act 1958 (Cth) (“the
Act”) on 9 November 2009, and amended on 7 January 2010, seeking review of
the decision of the Refugee Review
Tribunal (“the Tribunal”) made on
16 October 2009 which affirmed the decision of a delegate of the first
respondent to
refuse a protection visa to the applicant.
Background
- The
applicant is a national of Bangladesh. He arrived in Australia on 25 December
2008 and applied for a protection visa on 4 February
2009. (This is reproduced
in the Court Book – “CB” – at CB 1 to CB 28, including a
statement setting out
his claims.) The applicant subsequently submitted a large
number of “internet documents” (CB 33 to CB 67) and a letter
from
the Bangladesh Nationalist Party (“BNP”) in his local area (CB
68).
Claims to Protection
- The
applicant claimed to fear persecution on return to Bangladesh because of his
political opinion and affiliation.
- He
claimed that his father was affiliated with the BNP, and while at college
sometime after 1993 he became involved in student politics
under the
“banner” of the student wing of the BNP. He said that he had been
beaten at a demonstration by political opponents
in 1995, and was hospitalised.
He filed a complaint against his opponents, the Awami League (AL). He was then
“seriously targeted”
by them.
- In
May 1995 he was accused of the murder of a political activist opposed to his
party. He left Bangladesh and went to Palau in March
1996 when the police
searched for him to arrest him. He paid money to exit through the airport. He
subsequently “visited”
Bangladesh the same way.
- In
Palau he continued his involvement locally with the BNP. Ultimately, on 29
December 2008 the AL won the national elections and
became “hostile”
towards opposition leaders and activists, many of whom left Bangladesh to save
their lives. The applicant
feared for his life if he were to
return.
The Delegate
- The
delegate was not satisfied that the applicant had a well founded fear of
persecution for any Refugees Convention reason. The application
was refused (CB
69 to CB 81).
- The
applicant attended an interview with the delegate (CB 79 to
CB 80). The
delegate variously found the applicant’s claims to be lacking
plausibility, vague, evasive, lacking in detail, and
lacking in evidence to
substantiate his claims. The delegate also found, given that the applicant had
admitted to returning to Bangladesh
on at least three occasions (from Palau)
without incident, that he could not be satisfied that the applicant was of
interest to the
authorities.
- The
delegate was not satisfied as to the applicant’s response in relation to
the delegate’s concerns about his claims.
- The
delegate considered the documentary evidence provided by the applicant but was
not satisfied these supported his case. The delegate
rejected the
applicant’s factual account of active political involvement and past
harm.
The Tribunal
- The
applicant applied for review by the Tribunal on 21 March 2009 (CB 82 to CB
86).
- He
was invited to attend a hearing scheduled for 5 May 2009 (CB 88). By letter
dated 4 May 2009 the applicant made written submissions
to the Tribunal. In
essence, he repeated the claims before the delegate (CB 92 to CB 94). He also
provided copies of material from
the “internet” (CB 95 to CB
118).
- The
applicant attended the hearing on 5 May 2009 and gave his evidence (CB 119 to CB
122). The Tribunal’s account of what occurred
at the hearing is set out in
its decision record ([36] at CB 144 to [62] at CB 147).
- The
Tribunal was clearly concerned with many inconsistencies in the
applicant’s account of past events. It put its concerns
repeatedly to the
applicant at the hearing (see [48], [49] – [51], [53] – [54], [56],
[59], [62], and in particular [46]
and [58]).
- In
its consideration the Tribunal noted that some of the inconsistencies, given
they concerned a 15 year period: “... could
merely be the product of
imperfect memory” ([68]). It therefore cautioned itself about: “...
jumping to any unfair conclusions”,
and therefore took: “... a more
holistic view of the Applicant’s evidence...” ([69]).
- The
Tribunal gave the applicant’s letter in support of his claims no weight.
It found the letter unhelpful given its recent
provenance and lack of detail,
and the author’s remote vantage point to relevant claimed events. Further,
the Tribunal did
not accept the letter was genuine ([70] – [71]).
- The
Tribunal gave no weight to the applicant’s claim to have been actively
involved with the BNP given the “overall quality”
of the
applicant’s evidence and lack of “independent evidence” ([72]
– [73]).
- The
Tribunal gave no weight to the claim to have been implicated in the murder of
the AL member. The Tribunal found the applicant’s
account of how he was
charged to be far fetched, and found other aspects of his evidence in this
regard to be contradictory ([75]
– [76]). The Tribunal did not accept that
the applicant went into hiding in 1995-96 ([77]).
- The
Tribunal found the applicant’s reasons for not leaving Bangladesh as soon
as he obtained his “hard earned passport”
as unsatisfactory. The
Tribunal inferred that his priority in leaving was economic. It found his
behaviour at that time to be inconsistent
with someone whose life and liberty
were under threat ([78]).
- Similarly,
it found his behaviour in regularly returning to Bangladesh to be inconsistent
([79]), as was his claim to have bribed
airport officials ([80]).
- The
Tribunal was not convinced by the applicant’s explanations that he
returned because of his mother’s illness and brother’s
death ([81]).
The Tribunal found his claims about bribery to be vague and to have been
concocted ([82]).
- In
all, the Tribunal found much of the applicant’s relevant claimed behaviour
to be inconsistent with a fear of persecution.
Further, that the properties of
memory over time did not satisfactorily explain the deficiencies in his evidence
([83] – [84]).
- The
Tribunal therefore rejected the applicant’s relevant factual account of
past events in Bangladesh and the claims arising
from those events ([85] –
[90]). The Tribunal found the applicant to be an “unreliable
witness” ([91]). Consequently,
it found that the applicant did not have a
well founded fear of Convention related persecution, and affirmed the
delegate’s
decision ([93] – [95]).
The Application to the Court
- The
grounds in the amended application to the Court are:
- “1.
The Tribunal made jurisdictional error in failing to exercise its jurisdiction
by not acting rationally or judicially in
not giving any weight to a false case
was filed against the first applicant in 1995.
- a. The
Tribunal was clearly biased in saying that “the Tribunal gives this letter
no weight. Given the evident ease with which
false documents are obtained in
Bangladesh and given the vagueness of this letter and its very recent province,
the Tribunal does
not accept that it is genuine”. Without any basis the
Tribunal made comments, a reasonable person can not make this type of
comments.
A huge number of Bangladeshi citizens has been obtaining protection visa in
Australia on the basis of their real fear of
persecution and their documents
were genuine.
- b. It was
not rational not to expect that the first applicant always involved in politics
in aboard which the tribunal ignored.
- c. The
Tribunal comment was unsubstantiated that in saying that “the Tribunal
finds no genuine independent evidence before
it to support the applicant’s
of involvement with the BNP”.
- 2. The
Tribunal made jurisdictional error by not giving weight to the document
submitted by the applicant at CB, p147 (letter from
Bangladesh Nationalist Party
of its Gazaria Thana, under Munshigonj district) at CB, p68.
- 3. The
Tribunal made jurisdictional errors not considering the applicants claims in
accordance with the United Nations Convention.
The Tribunal issued its
jurisdiction irrelevantly and the claims were not assess judicially.
- 4. The
Second Respondent made jurisdictional error by not considering his evidences
without any valid reasons.
- Particularly:
The applicant was implicated into murder case and he indicated that his name was
in charge sheet without any valid
reason the Tribunal did not put any weights
(CB p148).
- 5. The
Second Respondent constructively failed in saying that “the Tribunal does
not accept the Applicant went to hiding”
(CB 149) without any
basis.
Before the Court
- The
applicant appeared in person. He was assisted by an interpreter in the Bengali
language. Mr T Reilly of counsel appeared for the
Minister.
- The
applicant confirmed that he wished to press the grounds in the amended
application and not those in the originating application.
When asked for
clarification of some of his grounds the applicant stated:
- The
complaint in ground 2 is the same as the complaint at particular (a) in ground
1.
- The
complaint in ground 3 is that the Tribunal did not believe him in his claim that
his life was in danger in Bangladesh, and therefore
did not properly assess his
claims against the UN Convention.
Otherwise the applicant
submitted only that he applied for a protection visa to save his life, and after
hearing submissions from
Mr Reilly, that he wanted a “better
life”.
- It
appears that the Minister was not served with the amended application prior to
the drafting and filing of written submissions.
Nonetheless Mr Reilly indicated
he was content to deal with the grounds of the amended application with oral
submissions.
Ground One and Ground Two
- There
are a number of elements to the applicant’s first ground in the amended
application.
- First,
the applicant complains that the Tribunal was biased. The test for bias is well
established. The relevant authorities make
it very clear that it must be clearly
made and distinctly proven (Minister for Immigration Multicultural Affairs v
Jia (2001) 205 CLR 157 (“Jia”), SBBS v Minister for
Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361
(“SBBS”) at [43] to [44], Minister for Immigration and
Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
(“SBAN”), VFAB v Minister for Immigration and
Multicultural and Indigenous Affairs [2003] FCA 872
(“VFAB”), Re Refugee Review Tribunal; Ex parte H
[2001] HCA 28; (2001) 179 ALR 425 (“Ex parte H”)). It is a
rare case that it can be made out with reference only to the Tribunal’s
decision record alone. Likewise,
the test for the apprehension of bias is well
established (see Ex parte H [at [27], [28] and [30] to [31]). It is
understood that a well informed lay observer might reasonably apprehend that the
Tribunal
did not bring an open mind to the proceedings. That is, that it was not
open to persuasion.
- It
is a rare case that bias can be made out with reference only to the
Tribunal’s decision record. (See SCAA v Minister for Immigration
[ 2002] FCA 668 per von Doussa J at [38]: “In my opinion it will be
a rare and exceptional case where actual bias can be demonstrated solely
from
the published reasons for decision.”)
- Such
an allegation is extremely serious as it goes to the very core of the integrity
of the relevant decision maker. It requires evidence
to be established
(Jia, SBBS at [43] to [44], SBAN, VFAB, Ex parte
H).
- The
applicant particularises this complaint with reference to the letter from the
BNP in his local area. The complaint is that the
Tribunal’s bias was
evident because it gave no weight to this letter because it said it relied on
information as to the ease
with which false documents are obtained in
Bangladesh, given the vagueness of the letter and its provenance. The applicant
asserts
that a “huge number of Bangladeshi citizens” have been given
protection visas in Australia on the basis that their fear
of persecution was
“real”, and the genuineness of their documents.
- The
applicant submitted to the Court that ground 2 contained the same complaint as
particular (a) to ground 1.
- The
applicant has provided no evidence to support his claim that huge numbers of
Bangladeshis have been given protection visas in
Australia, let alone for the
reason that their documents provided in support of the application were
genuine.
- But
even if this was the case, it does not assist the applicant in establishing bias
on the part of the Tribunal, or even, without
anything else, any other legal
error in his case.
- Implicit
in the statutory scheme governing the grant of protection visas is the need for
an applicant to make claims in support of
an application for a protection visa,
to give evidence in support of those claims and for the Tribunal to consider
what has been
relevantly put before it.
- Specifically,
the regulatory scheme (s.65 and s.36(2)) provides that a protection visa must be
granted if the Tribunal reaches a requisite level of satisfaction that the
applicant,
in effect, meets the definition of “refugee” set out in
Article 1A(2) of the UN Refugees Convention. If not, then the
visa must not be
granted (SJSB v Minister for Immigration and Multicultural and Indigenous
Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration
and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5],
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of
2003 [2005] FCAFC 73).
- Within
this scheme each application is considered on its own merits. The fact alone
that many others, even a “huge” number
of others, have been granted
visas by other Tribunal members, or even the same member, does not compel the
Tribunal to act in a similar
way to the applicant, let alone that a failure to
do so reveals bias.
- The
applicant complains that the Tribunal made a number of comments about this
letter and then gave his letter no weight because of
these comments. He claims
there was no basis for these comments.
- The
Tribunal’s relevant analysis is at [70] to [71] of its decision record.
The Tribunal considered this letter in the context
of the applicant’s
claim to have been an office bearer of the BNP.
- The
delegate also had difficulty with the lack of detail in the applicant’s
claims and the applicant’s inability to provide
further detail to
substantiate his claims despite opportunity to do so (see CB 79). A copy of the
letter was before the delegate.
The delegate found it self-serving and was not
persuaded as to the applicant’s explanation for his inability to provide
an
original (CB 78 to CB 79).
- In
any event, the letter was subject of discussion at the hearing with the Tribunal
([59]). The Tribunal questioned the genuineness
of the letter and gave the
applicant the opportunity to comment ([60]). The applicant has not put any
evidence before the Court to
challenge the Tribunal’s account of what it
said occurred. In these circumstances, it is not open to this Court to make
inferences
as to what might otherwise have happened (NAOA v Minister for
Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).
The evidence before the Court therefore reveals that this letter was discussed
and the Tribunal’s concerns about its genuineness
were raised.
- The
Tribunal gave this letter no weight. It did so for reason of its vagueness as to
relevant events, its lack of relevant detail,
and the applicant’s evidence
that the official who purportedly wrote it was not involved or implicated in the
issues which
were said to be “fleetingly mentioned” in the letter.
Further, the Tribunal did not accept the letter was genuine, given
the above and
country information about the evidence ease with which false documents are
obtained in Bangladesh.
- Contrary
to the applicant’s complaint, the letter itself provided by the applicant
provided the basis for the Tribunal’s
“comments”. Any plain
reading of the letter, that is, the “copy” provided by the
applicant, reveals that
it was reasonably open to the Tribunal to find that the
letter was provided after the making of the application, that no relevant
dates
were provided, that its contents were vague and that the contents were solicited
for the purposes of supporting the application.
- But
any plain reading of the Tribunal’s reasoning reveals that while the
Tribunal noted that the letter was vague, lacking in
detail and appeared to have
been solicited for the purpose of the application, these matters were not
determinative. What led the
Tribunal to find that it could give no weight to
this letter was that it found the contents of the letter unhelpful given its
very
recent creation (in the context of the applicant’s claims of
political involvement over many years) and that it lacked details
about the
issues it sought to address, and which it only “fleetingly”
mentioned.
- That
false documents are readily obtained in Bangladesh was clearly not the sole
factor relied on by the Tribunal to give no weight
to the letter, and ultimately
find that it was not genuine.
- Even
if it could be said that a “huge” number of Bangladeshis received
protection visas because of “genuine”
documents, it was reasonably
open to the Tribunal, in this case, to find that the document itself was
deficient in supporting the
claims to have been an active member of the
BNP.
- Importantly,
in terms of procedural fairness obligations, the applicant was given the
opportunity to comment on the “very generalised”
contents of the
letter (at [59]), and whether it was genuine (at [60]).
- Ultimately,
matters of weight to be accorded to pieces of evidence is for the Tribunal to
determine in the proper exercise of its
function. I agree with Mr Reilly’s
reliance on Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986]
HCA 40; (1986) 162 CLR 24 by Mason J at [15].
- Particular
(a) to ground 1 and ground 2 therefore do not reveal error on the part of the
Tribunal. I cannot see that the Tribunal
was irrational or unreasonable in its
approach to the letter, let alone that it provides a basis for alleging
bias.
- The
applicant also complains that the Tribunal did not act rationally or
“judicially” in not giving any weight to a false
case that had been
made against the applicant in 1995. This appears to relate to the
applicant’s claim to have been accused
of the murder of an activist in
1995 (see CB 27.8).
- The
Tribunal understood the applicant’s claim in this regard (see [24]). At
the hearing the Tribunal put to the applicant its
concern about the
inconsistency in his evidence that he continued in college until 1996, yet also
said he went into hiding after
the 1995 murder charge (see [57]).
- The
particular claim about the false case filed against him in 1995 was part of the
applicant’s factual account of what the
applicant had claimed to have
occurred in Bangladesh because of his active involvement in politics. What the
applicant does not now
appear to understand, or perhaps does not want to accept,
is that the Tribunal affirmed the delegate’s decision because it
found the
applicant, ultimately, to be an unreliable witness. In the absence of any other,
or any other reliable, evidence, the Tribunal
could not reach the level of
satisfaction such that the protection visa must be granted.
- I
should just note that in Machmud v Minister for Immigration &
Multicultural Affairs [2001] FCA 1041 (“Machmud”) at [16]
the Court said:
- “16
There is also the suggestion on the part of the Tribunal that there is some
necessity for an applicant to the Tribunal
to ‘substantiate’ claims.
If that is intended to suggest that there must be some corroboration given by an
applicant,
it clearly is erroneous. The word ‘substantiate’ is
defined in the Macquarie Dictionary 3rd Edition as
follows ‘1. to establish by proof or competent evidence:... 2. to give
substantial existence to. 3. To present as
having substance’. The ordinary
English use might suggest that the Tribunal member did not regard the
applicant's statement
as being evidence at all but rather required some other
evidence to be provided. The sense in which it is used may perhaps also suggest
that the Tribunal thought that there was a need for corroboration. If
corroboration were necessary there was the country information.
But, be this as
it may, there certainly is no necessity as a matter of law that an applicant to
the Tribunal corroborate, if that
is what the Tribunal meant, a statement made.
I do not read the Tribunal’s reasons as requiring the applicant to provide
corroborative
evidence before he could succeed. Rather, a plain reading reveals
that the Tribunal had concerns with the applicant’s evidence
and its
reliability, concerns that were squarely put to the applicant at the hearing
(see, for example, [58]). It was the absence
of any other reliable evidence,
given these concerns, that left the Tribunal in a position where it was unable
to reach the requisite
level of satisfaction such that the visa must be
granted.”
- The
Tribunal did not make a finding that it gave no weight to the false case against
the applicant in 1995. In fact, the Tribunal
rejected that the applicant had
been falsely charged with murder in 1995 (see [86]). This finding was one of
several rejecting the
applicant’s factual account of the harm that he said
he suffered in Bangladesh.
- The
task with which the Tribunal is jurisdictionally charged is to consider claims
made by an applicant, each aspect of those claims,
in the current case to
properly apply the procedural code set out in Division 4 of Part 7 of the Act,
to make findings of fact based on the claims and evidence and to reach a
conclusion as to whether or not to affirm the
delegate’s decision.
Findings of fact, including findings as to credibility, are for the Tribunal to
make (Re Minister for Immigration and Multicultural Affairs; Ex parte
Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405
(“Durairajasingham”).
- In
the current case, as with the delegate, the Tribunal found the applicant’s
evidence to be unreliable. This included his evidence
in relation to the false
accusation in 1995. It was not irrational of the Tribunal. I cannot see error in
how the Tribunal approached
this matter. The fact that it was not persuaded by
the applicant’s claims and evidence does not, of itself, reveal
error.
Ground Four
- For
the same reason the complaint in ground 4, which is linked to the false
accusation, also fails. At best, I understand the applicant’s
complaint in
ground 4 to be that the Tribunal did not consider, in the sense of accept, the
applicant’s evidence that he was
implicated in a murder case and that his
name was on a charge sheet. That it did so without any valid reason.
- First,
even if the applicant uses the word “consider” in the sense of
“to deal with” or “take into account”,
then the Tribunal
certainly did that (see [74]). Second, and the short answer to the
applicant’s real complaint is that it
was the applicant’s own
evidence, the unsatisfactory and unsupported nature of that evidence, that led
the Tribunal to reject
the applicant’s factual account of what he
relevantly said had occurred in Bangladesh. In the circumstances, that was the
reason,
the “valid” reason, that the Tribunal gave in finding that
it could give no weight to the applicant’s claim that
his name had been
included in a charge sheet. No error is revealed in this regard. That part of
ground 1 and ground 4 do not reveal
error on the part of the
Tribunal.
Ground One (continued)
- Particular
(b) to ground 1 is not readily understood. At best, it may be that the applicant
complains that it was not rational of
the Tribunal to ignore or reject his claim
that he had been involved in politics while he was in Palau.
- The
applicant’s claim in this regard was that, when he fled to Palau in March
1996, and for the many years that he remained
outside of Bangladesh, he
continued his political involvement with the BNP.
- The
Tribunal made no expression of any expectation that the applicant would not be
involved in politics while abroad as the applicant
appears to allege. Rather,
for the cogent reasons that it gave, it found, in a finding that was reasonably
open to it on what was
before it, that the applicant did not have any
significant interest in, or was a member or supporter of, any political party in
Bangladesh.
- What
must be remembered is that what the Tribunal was required to consider was
whether the applicant faced persecution if he were
to return to Bangladesh.
Whatever the applicant may or may not have done in Palau, it was how his actions
there would impact on the
likelihood of persecution if he were to return to
Bangladesh.
- The
Tribunal rejected the applicant’s factual claims to fear persecutory harm
if he were to return to Bangladesh. Its relevant
findings cannot be described as
lacking rationality (to the extent that this may be available on its own as a
ground for judicial
review), nor that they were without a probative foundation.
That foundation was the unsuitable nature of the applicant’s own
evidence.
In all the Tribunal’s findings were open to it, it gave cogent reasons. No
error is revealed.
- It
is not clear what the applicant’s complaint is in particular (c) to ground
1. The applicant alleges that the Tribunal’s
finding that there was no
genuine independent evidence before it to support the applicant’s
involvement with the BNP is itself
unsubstantiated.
- If
this is a complaint of the type referred to in Machmud, then it does not
succeed for the reasons already set out above (see [54] to [55]).
- If
this is a complaint that there was no basis for the Tribunal’s finding in
this regard, then this also does not succeed. As
referred to above, the Tribunal
rejected the applicant’s claim to have been active or involved with the
BNP largely because
of the unsatisfactory nature of the applicant’s own
evidence to it.
- When
the Tribunal came to make the finding now impugned in this ground (see [73] of
the Tribunal’s decision record), it was
clearly said in the context of the
applicant’s own evidence, and the concerns the Tribunal had with the
paucity of other evidence
provided, and the unsatisfactory nature of this other
evidence. For example, the copy of the letter from the BNP (CB 68).
- All
the other material provided by the applicant, other than the certificate
relating to his mother (CB 122), was material downloaded
from the internet,
including newspaper reports (CB 33 to CB 67 and CB 95 to CB 118). What is
immediately of note is that none of
this material relates to, or mentions, the
applicant personally.
- The
Tribunal noted that the applicant had presented this material ([38]). Nothing in
this material supports the applicant’s
claim to have been a member of, or
actively involved in, the BNP.
- Similarly,
the mother’s death certificate (CB 122) was discussed at the hearing with
the Tribunal (see [62]). The Tribunal noted
that: “... The certificate
states that her case is ‘not a police case’ and, accordingly, only
natural causes appear
to be indicated” (at [39]). There was nothing the
applicant put, or explained to the Tribunal, to show that this certificate
supported his claimed involvement with the BNP, let alone that he feared
persecutory harm if he were to return to Bangladesh.
- What
remains, therefore, was that in the context of the applicant’s own
evidence, the paucity and unsatisfactory nature of the
other evidence provided
meant that it was open to the Tribunal to find that the applicant’s claims
remained unsupported by
any other “genuine” evidence.
- Ultimately,
as Mr Reilly correctly submitted, this complaint is an attack on the merits of
the Tribunal’s consideration as to
whether the applicant was involved with
the BNP. Ultimately, this was an issue for the Tribunal (Durairajasingham
per McHugh J at [67]).
- In
all, ground 1 does not succeed.
Ground Three
- The
third ground, particularly the second sentence, is difficult to comprehend. At
best, the complaint could possibly be understood
to be that the Tribunal did not
consider his claims in accordance with the UN Refugees Convention, and that the
Tribunal did not
assess his claims properly or fairly.
- First,
as to the UN Convention, the Tribunal’s obligation is to consider the
application according to Australian law. It is
the Act and relevant judicial
authority about the Convention and its concepts and principles that govern and
direct the Tribunal’s
exercise of its function.
- If
the application means to assert that the Tribunal misunderstood, and did not
properly apply the definition of “refugee”
as set out in Article
1A(2) of the Convention, then again that definition is qualified by the Act (see
s.91R for example) and is the subject of much judicial authority as to its
meaning and application.
- In
this regard, I cannot see, on what is before the Court, and in the absence of
any particularity by the applicant, that the Tribunal
misunderstood or
misapplied the relevant Convention concepts. It ultimately understood that the
test to be applied was the likelihood
of persecutory harm if he were to return
to Bangladesh.
- As
to fairness, the relevant procedural code is embodied exhaustively for the
purposes of this case in Division 4 of Part 7 of the Act (see s.422B) (See
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151
FCR 214; [2006] FCAFC 61 at [59] to [67], SZCIJ v Minister for Immigration
and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for
Immigration and Citizenship (2007) 237 ALR; [2007] HCA 35 at [48],
Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83, in
particular at [8] to [18]).
- I
cannot see that the applicant was denied procedural fairness. He was invited to
a hearing. He gave his evidence. The Tribunal raised
with him its concerns about
his evidence. Concerns which were largely raised by the delegate. He gave his
explanations. The fact
that the Tribunal found these unsatisfactory does not, on
its own, reveal unfairness of the part of the Tribunal.
- If
the applicant seeks to complain that the outcome was unfair, then as the High
Court said in SZBEL v Minister for Immigration and Multicultural and
Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (at [25]), while the
Tribunal is required to provide fairness in the procedures that it employs and
applies, what is required is
a “fair hearing not a fair
outcome” (with reference also to Attorney-General (NSW) v Quin
[1990] HCA 21; (1990) 170 CLR 1 at 35 to 36 per Brennan J)
- At
the hearing before the Court the applicant ultimately explained that his
complaint in relation to this ground was that the Tribunal
did not believe him.
It is the case that the Tribunal is not obliged to uncritically accept
everything that the applicant says (Beaumont
J in Randhawa v Minister for
Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52
FCR 437 at 451(E)).
- As
Mr Reilly submitted, this again does not reveal jurisdictional error. The
Tribunal’s findings, including findings as to credibility,
are for it to
make in the proper exercise of its jurisdiction as the decision maker “par
excellence” (Durairajasingham per McHugh
J).
Ground Five
- Ground
5 complains that the Tribunal’s finding that it did not accept that the
applicant went into hiding, presumably after
the alleged killing of the activist
in 1995, was made without any basis.
- The
applicant again appears not to understand that the basis for the
Tribunal’s finding in this regard, as with a great part
of his claims, was
the unsatisfactory nature of his own evidence. In relation specifically to this
complaint, the Tribunal found
the applicant’s evidence that he went into
hiding at this time to be inconsistent with other evidence that he gave that at
that time he continued to attend college.
- This
was put to him at the hearing (see [57]). The applicant’s explanation was
itself found to be an improvisation: “...
in the face of a potentially
adverse observation” ([76]). This, again, was open to the Tribunal given
the applicant’s
evidence which the Tribunal found to a significant degree
to be problematic. This ground is not made out.
Conclusion
- For
the applicant to succeed, the Court would need to, at least, discern
jurisdictional error in the Tribunal’s decision. I
cannot see such error
arising from the applicant’s grounds or otherwise. The application is
therefore dismissed.
I certify that the preceding
87Error! Style not defined.!Syntax Error,
!Error! Style not defined.Error! Style not defined.!Syntax Error,
!eighty-seveneighty-seven (87) paragraphs are a true copy of the reasons for
judgment of Nicholls FM
Associate: D. Nestor
Date: 27 January 2010
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