SZBCP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 743

FEDERAL COURT OF AUSTRALIA

SZBCP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 743 MIGRATION – no point of principle SZBCP v Minister for Immigration and Multicultural and Indigenous Affairs nsd 255 OF 2005 JACOBSON J SYDNEY 9 JUNE 2005

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 255 of 2005

BETWEEN: SZBCP

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 9 JUNE 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal by dismissed; and 2. The appellant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 255 of 2005

BETWEEN: SZBCP

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE: 9 JUNE 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT Introduction 1 This is an appeal from a decision of Federal Magistrate Lloyd-Jones, given on 11 February 2005, dismissing an application for review of a decision of the Refugee Review Tribunal ("the RRT") handed down on 22 July 2003. The RRT affirmed a decision of a delegate of the Minister. 2 The only substantial issue which arises on the appeal is the question of whether the appellant was denied procedural fairness in relation to the use made by the RRT of country information. It is apparent from the RRT's reasons that it relied upon country information about the prevalence of fraudulent documents in Bangladesh as a reason, or part of the reason, for rejecting the appellant's claim that false charges were made against him in Bangladesh as a result of political violence in a street clash between Bangladesh Nationalist Party ("BNP") and Awami League ("AL") supporters. 3 It is important to bear in mind that the country information was relied upon only in relation to one aspect of the appellant's evidence in support of his claim that he had a well-founded fear of persecution. The essential question which arises on the appeal is whether the Federal Magistrate was in error in finding that the country information was not central to the appellant's claim to refugee status; see Minister for Immigration and Multicultural and Indigenous Affairs v [2004] FCAFC 264 ("NAMW") at [144] (per Merkel and Hely JJ). 4 The application for review by the RRT was filed on 12 March 2002, approximately four months before the date on which s 422B of the Migration Act 1958 (Cth) came into operation. That section was therefore not relevant to the question of whether the ordinary rules of procedural fairness applied; see QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [8] (Dowsett, Hely and Lander JJ); SZATG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1595 at [31] (Hely J). The considerations to which French J referred in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 at [57] did not therefore arise; cf Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 at [29] – [36] (Gray J). The RRT's decision 5 The appellant is a citizen of Bangladesh. He arrived in Australia on 3 October 2001 and applied for a protection visa on 30 October 2001. He claimed to have a well-founded fear of persecution on political grounds by reason of his political activities as a member of the AL. 6 The appellant made a large number of factual claims as to which the RRT made a series of detailed findings. They can be summarised as set out below. 7 The appellant was a supporter and member of the AL. The appellant may have taken part in street processions and protests organised by the AL. Contrary to the appellant's claims, he was not a vice president of a local branch of the AL. The appellant had little knowledge of the politics and organisation of the AL. The appellant did not have a high political profile. 8 The RRT gave "little weight" to the contents of letters from AL officials about the appellant's membership of the AL. Some of those letters were submitted by the appellant before the hearing. Others were submitted afterward. 9 The RRT was not satisfied that BNP activists had attacked and robbed the appellant's spare parts business by reason of his political opinions and involvement in the AL. 10 The RRT was also not satisfied that members of the BNP had targeted the appellant for harm because of disclosure, said to have been made by the appellant, that the BNP were involved in the illegal drugs trade. 11 The RRT did not accept that the appellant had an outstanding murder charge against him, notwithstanding that one of the letters from an AL official submitted before the hearing referred to such a charge. 12 The RRT did not accept that there were other false charges against the appellant. These charges were said to relate to political violence in a street clash between AL and BNP supporters. It was these charges which were purportedly verified by the documents submitted after the oral hearing. 13 The RRT found that country information indicates that fraudulent documents are easily obtainable in Bangladesh and that persons seeking refugee status often use fraudulent documents to support their claims. 14 The RRT found that there were features of the documents submitted by the appellant which suggested they were not genuine. It said:- "Taking all the foregoing into account the Tribunal is not satisfied that the documents are genuine but have been fabricated to support the applicant's refugee claims." 15 In any event, even if the documents were authentic, the RRT was satisfied that the appellant would be able to resist any false charges through the Bangladeshi judicial system. 16 The RRT accepted that the appellant may have been injured at a political protest during 2000 but it did not accept that as a member of the AL he was obliged to be involved in violent street protests. The RRT observed that violent street protests are a routine feature of the Bangladeshi political process, and those who take part are aware of the risks. There was no evidence that the BNP government condones the use of political violence, nor did the RRT accept that there was a failure of state protection. 17 The RRT also observed that Bangladesh is a parliamentary democracy. Power has alternated between the BNP and the AL and although the AL is not in office, it is the largest party in Bangladesh. 18 The RRT concluded that the appellant's involvement in politics was at a very low level. He does not have a profile which would result in mistreatment by members of the BNP. Furthermore, it would be open to the appellant to relocate within Bangladesh. His chance of persecution is "less than remote". The Decision of the Federal Magistrate 19 The Federal Magistrate identified seven grounds of review in the application as expanded in the appellant's written submissions. 20 The first ground was a claim of bad faith. The learned Magistrate considered this to be a claim of actual bias. He rejected it at [16] on the ground that the appellant had failed to discharge the heavy onus referred to in Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507. 21 The second ground was a claim of denial of procedural fairness. It had three separate elememts. First, it was said that the RRT was bound by s 424A to give the appellant particulars of its proposed findings about the authenticity of the documents dealing with criminal charges. Second, it was said that there was a wider obligation of procedural fairness to put the country information about the incidence of false documents in Bangladesh to the appellant. Third, it was submitted that there was a basic obligation of procedural fairness upon the RRT to put to the appellant its concerns about his honesty before making an adverse finding. 22 The Federal Magistrate dealt with the issues of s 424A and country information together at [18]. He does not seem to have distinguished between these issues, finding on the authority of the decision of the Full Court in NAMW that there was no obligation to disclose the information to the appellant or to invite comment on it. The effect of his reasons at [18] was that the country information played a minor role in the RRT's decision and, in any event, the appellant would be able to resist any false charges through the Bangladeshi judicial system. 23 The Federal Magistrate dealt with the submission that the RRT was bound to put its concerns to the appellant at [17]. He found that there was no such obligation, citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [76] ("Aala"). 24 The third ground of review was that the RRT was obliged to verify the authenticity of the documents and evidence provided by the appellant before calling the evidence into question. The appellant relied on the decision of a Full Court in Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 ("Singh") for this proposition. However, the learned Magistrate found at [20] that the appellant had not demonstrated how this principle was enlivened on the facts of the case. 25 The fourth ground was that the RRT's findings about the appellant's claimed political activities and false charges were not supported by positive evidence. The Magistrate said at [21] that this contention was put upon the basis that the RRT had failed to follow proper procedures. He referred to the decision of a Full Court in Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370 ("Meadows"). The Magistrate found at [21] that the RRT's findings were supported by evidence and that the appellant's claims were raised with him during the hearing and evaluated. 26 The fifth ground was that the RRT failed to take into account documents provided by the AL. The Magistrate found at [22] that the RRT did take them into account but gave little weight to them. 27 The sixth ground was that the RRT failed to consider whether the appellant had a subjective fear. The Magistrate found at [23] that such a finding was unnecessary because of its finding that the appellant had not established, objectively, that he had a well-founded fear of persecution. 28 The seventh ground was that it was unnecessary for the appellant to have a high profile political involvement in order to have a well-founded fear of persecution. The Notice of Appeal and the Submissions 29 The Notice of Appeal was in general terms. The appellant dealt with the grounds in written submissions which appear to repeat his contentions before the Federal Magistrate. He did not expand on his submissions orally. Bias 30 No error has been demonstrated in the FM's finding. To the extent that the appellant seeks to contend that there was a reasonable apprehension of bias, there is nothing to suggest that a fair-minded person present at the hearing could entertain a reasonable apprehension that the RRT might not bring an impartial and unprejudiced mind to the resolution of the questions; see Re Watson; Ex Parte Armstrong (1976) 136 CLR 248; Livesey v New South Wales Bar Association (1983 151 CLR 288; see also Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]–28]. Procedural Fairness and s 424A 31 The appellant's contention that the RRT was bound to give him an opportunity to respond to its concerns about the truth of his claims is misplaced. The learned magistrate correctly dismissed this submission relying on the authority of Aala at [76]. Moreover, it is well-established that a decision-maker does not have to disclose his or her mental processes and give the party affected an opportunity to comment; see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576 (Northrop, Miles and French JJ); see also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 201 ALR 327 at [22]. 32 The submission that the Magistrate was in error in failing to find that the country information about the evidence of document fraud in Bangladesh ought to have been disclosed pursuant to s 424A(1) must also be dismissed. The authorities dealing with this question were considered by the Full Court in NAMW. The effect of what their Honours said was that country information about document fraud of the kind referred to and relied upon by the RRT in the present case falls within the exception contained in s 424A(3)(a); see at [67] (per Beaumont J) and at [138] (per Merkel and Hely JJ). Accordingly, there was no error in the Magistrate's finding that particulars were not required to be provided pursuant to s 424A(1). 33 The question of whether the learned Magistrate was in error in finding that there was no wider obligation of disclosure was also correct. He referred to the decision in NAMW to support his finding but the approach which he took was consistent with the decisions of other Full Courts which have dealt with this issue. 34 Prior to NAMW, the issue of the obgliation to disclose had been dealt with by five Full Courts. The decisions were Meadows, WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 1; WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597; WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912; and WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 ("WAHP"). The appellant relied on all of these authorities, in particular Meadows. 35 The effect of these authorities was summed up by Carr and Tamberlin JJ in WAHP at [61]–[62]. Whilst each case must turn on its own facts, where a document is of critical importance to a credibility finding or can otherwise be said to be central to an applicant's claim, a duty of fairness exists to put the Tribunal's concerns about the authenticity of the document to the person affected. This is particularly so where as in Meadows, a statement is made by the Tribunal to the party affected which would be likely to have misled the person into thinking that his or her credibility would not be affected; see per von Doussa J at 383. 36 The approach taken by Merkel and Hely JJ in NAMW at [144] was to similar effect. Their Honours were satisfied that the country information was required to be disclosed because it was the foundation for the RRT's conclusion that the applicant had fabricated his claims. 37 It is true in the present case that the RRT found that certain documents had been fabricated without putting its concerns to the appellant. However, the documents which it found to be fabricated were those which were submitted 10 days after the hearing and which related solely to the claim of false charges from political violence in street clashes. The RRT relied inter alia on the high incidence of document fraud in Bangladesh to support this finding. 38 It is plain that the documents relating to these charges were but one of a diverse range of claims made by the appellant. His central claim was that he was a vice president of a local branch of the AL, and hence of a substantial political profile, who was targeted because of his active involvement in AL politics. He made claims that his business was attacked and that he had been targeted because of his disclosure of his rivals' illegal drug trading. He also claimed that there was a false charge of murder outstanding against him. 39 When the claim that the appellant was subject to a second false charge, namely political violence in a street clash, is compared with the other claims made to the RRT, it can be seen that the second false charge was not central to his claim that he had a well-founded fear of persecution on political grounds. It was part of the overall claim but it was a minor element of it. 40 There is nothing in the RRT's reasons to suggest that the finding about the fabricated documents was of any importance, let alone critical importance, to the RRT's assessment of the appellant's credibility. 41 For these reasons, it is my opinion that the learned Magistrate was correct in finding that the RRT's approach to the fabricated document issue was a minor part of the overall claim. In my view, the Federal Magistrate correctly found, consistent with what was said in authorities such as NAMW, that there was no obligation of procedural fairness to disclose country information about document fraud in Bangladesh to the appellant. Obligation to investigate the authenticity of the documents 42 The principle that there may, in limited circumstances, be a duty upon a decision-maker to initiate inquiries is not in doubt; see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 (Wilcox J); Singh at 558-559 (Black CJ); Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 289-290 (Mason CJ, Deane J). 43 However, the learned Magistrate was correct in finding that the appellant had failed to demonstrate the existence of circumstances that gave rise to such an obligation. Lack of Positive Evidence and Failure to take documents into account 44 The RRT was entitled to reject the evidence put before it in support of the appellant's claims. The proceedings were inquisitorial and the RRT was not in the position of a contradictor; it was for the appellant to advance whatever evidence he wished but it was for the RRT to decide whether the claim was made out; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [576] (Gummow and Hayne JJ). The RRT was not required to call evidence against the appellant before deciding whether to accept his claim. 45 The weight to be given to evidence is a matter for the decision-maker; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41 per Mason J. Furthermore, it is well established that question of whether an appellant should be believed on a claim is a finding of credibility for the Tribunal to make, which is a finding 'par excellence'; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. This decision has been followed by the Full Court on a number of occasions. 46 Insofar as the appellant relied on Meadows under this head of argument or ground of appeal, the effect of what I have said at [39] to [41] above, is that Meadows has no application to the facts of the present case. Subjective state of mind 47 The Federal Magistrate was correct in stating that it was unnecessary for the RRT to make findings about the appellant's subjective state of mind. This is because it was not satisfied of the objective elements necessary to ground a well-founded fear of persecution. High Profile Political Involvement 48 Curiously, the appellant submitted that a high profile was not necessary to found a claim of a well-founded fear of persecution. 49 This was put notwithstanding that he claimed to be a vice president of a local branch, a claim on which he was not believed. 50 In any event, the learned Magistrate correctly identified the question of whether the level of an individual's involvement would be sufficient to give rise to a well-founded fear as a question of fact. Orders 51 The appeal must be dismissed with costs. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.