SZBFD v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1053

FEDERAL COURT OF AUSTRALIA

SZBFD v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1053 SZBFD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 345 of 2005 ALLSOP J 28 JULY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 345 of 2005

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN: SZBFD

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 28 JULY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 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 NSD 345 of 2005

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

BETWEEN: SZBFD

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE: 28 JULY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal against orders made by a Federal Magistrate dismissing an application for judicial review in respect of a decision of the Refugee Review Tribunal (the "Tribunal") which affirmed a decision of a delegate of the Minister not to grant a protection visa. 2 I heard this matter in the appellate jurisdiction of the Court sitting as a single Judge pursuant to a direction of the Chief Justice made under s 25(1A) of the Federal Court of Australia Act 1976 (Cth). 3 The appellant is a national of Bangladesh. He claims political and religious persecution due to his active membership of the Awami League. He claims that since the elections held on 1 October 2001, members of the government party, the Bangladesh National Party ("BNP"), as well as their coalition partners have harassed him. He claims that from November 2001 he was unemployed and in hiding to avoid political harassment. His claims before the Tribunal included the claim that there were two false cases or false charges lodged against him in the Bangladesh courts by his opponents. 4 The Tribunal was unconvinced that the appellant's claims were true. By and large this was due to the appellant's perceived lack of knowledge of the Awami League, itself, and of the elections he said he was involved in. The Tribunal was unconvinced, it said, by the appellant's oral evidence and importantly by the lack of documentary evidence about the false charges and summonses that he claimed were laid against him in Bangladesh. The Tribunal noted the appellant's inability to provide any documentary evidence despite having had ample opportunity, it said, to obtain certified copies of the "warrants of arrest". 5 The appellant was questioned about the absence of supporting documentation. At pages 10 and 11 of the Tribunal's reasons, there is a record of questioning of the appellant at the second hearing. The following is recorded in the reasons for decision of the Tribunal: The Tribunal asked him if anything else had happened to him. He said that two false cases were registered against him. The two cases alleged that he and others from his party had attacked BNP and Jamaat-Islami meetings. He was asked when he had found out about these cases. He said he was shown the court documents by a friend in April 2002. The Tribunal noted that in his application form he had stated that he will provide documentary evidence in support of this claim. He said that his friend was supposed to send him copies of these false cases, but is in hiding. The Tribunal asked him why there had been no attempt to arrest him between April and June 2002. He said they were hunting for him but could not find him because he was in hiding. The Tribunal asked him how his friend had been able to obtain these documents. He said that he does not know. The Tribunal asked him about the nature of the documents he had viewed. He said that it was a case and the papers said that there was a warrant against him. 6 Later in its reasons the Tribunal dealt with this application of false charges at pages 18 and 19 in the following way: The applicant further claims that two false cases were registered against him by his political opponents. The applicant had indicated in his application for a protection visa that he has been trying to get certified copies of the false cases brought against him and that he will try to obtain copies of "the warrants of arrest". Despite the ample opportunity available to the applicant, he has been unable to provide any corroborative documentary evidence to support his claim that false cases have been registered against him in Bangladesh. Moreover, the applicant's evidence at the hearing regarding these false cases was unconvincing. When, for instance, he was asked when he had found out about these cases, he said he was shown the court documents by a friend, also named in the documents, in April 2002. When he was asked how his friend had been able to obtain these documents, he said that he did not know. More importantly, when he was asked about the nature of the documents he had viewed (for example, if they were warrants of arrest, charge sheets, summonses, etc) he stated that it was a case and the papers said that there was a warrant against him. The applicant is not illiterate. In fact, he is an educated and well-travelled businessman. The Tribunal considers it reasonable that if he had viewed the documents he would have at least been able to identify the nature of these documents. The Tribunal, based on the evidence before it, cannot be satisfied that false cases were registered against the applicant. [emphasis in original] 7 Not only did the Tribunal reject the evidence of the false charges, in its reasons under the heading "Findings and Reasons" from pages 16 through to 21, the Tribunal set out in some detail the aspects of the appellant's evidence which it found inadequate or unconvincing. 8 The Tribunal referred to the following matters, amongst other things: 1. what the Tribunal saw as the vague and general nature of the information which the appellant knew about the Awami League; 2. the inability of the appellant to provide meaningful information about the Awami League's aims and policies; 3. the inability of the appellant to identify when the Awami League was founded; 4. the inability of the appellant to recount any of the Awami League's achievements and to identify its coalition partner when in government; and 5. various other aspects of his apparent lack of knowledge about the Awami League. 9 The Tribunal, at the bottom of page 17 of the reasons, also referred to its impression of the appellant at the hearing. In its conclusion that, together with his inability to be specific about the Awami League, it did not find him a credible witness. The Tribunal was prepared to accept that the appellant was an ordinary and nominal member of the Awami League but with a negligible political profile. 10 The Tribunal then went on to other important aspects of the appellant's evidence, in particular, the asserted extortion of money by BNP supporters. These were also rejected, based on analysis of the evidence of the appellant. The false cases evidence was rejected for the reasons I have earlier identified. 11 The Tribunal then dealt with the country information about Bangladesh which enabled it to conclude that the appellant, as an ordinary and nominal member of a Party, would be unlikely to suffer any threat by reason of political opinion. 12 The Tribunal then dealt briefly with relocation on the hypothesis that it was wrong in relation to its earlier views that it was not satisfied that the appellant was at real risk as to harm in relation to his political opponents. 13 The application before the Federal Magistrate had six grounds to it. I need not repeat them all in these reasons because the appellant was represented before the learned Federal Magistrate by a legal practitioner, and only one ground was pressed. 14 The ground pressed was an allegation of breach of the rules of natural justice, in particular, the fair hearing rule. Before the Federal Magistrate, counsel concentrated his submissions on the question of an asserted jurisdictional error by the asserted failure of the Tribunal to bring to the attention of the appellant the adverse view that the Tribunal was forming or had formed in relation to various aspects of the appellant's claims. The extent of these submissions are clearly set out in paragraph 3 of the Federal Magistrate's reasons incorporated from the submissions of the applicant before him, which I set out in this judgment: In this applicant's case, the RRT made a number of findings in respect of the applicant's involvement in a political organization, namely the Awami League, the applicant's claim that he had false charges registered against him, the applicant's claims of threats of violence and the basis of his fear of persecution. The applicant gave oral evidence over a period of 2 days. It was an important issue in the applicant's case that he claimed to have had 2 false charges laid against him. The RRT made a finding that there were no false charges registered against the applicant but failed to inform the applicant that it did not accept his claim (that is, it acted without notice that the issue was the subject of dispute). The basis of the RRT's finding in relation to the false charges seems to be that the applicant could not identify the charges as being "warrants of arrest, charge sheets, summonses etc." This is despite the applicant stating that those charges identified a warrant issued against him. It was not open to the RRT to make that finding without first putting the applicant on notice of its contention. (court book, pages 93-94, 101-102) The RRT asked the applicant a number of questions about his various political activities and about the Awami League. The RRT also asked the applicant in detail about his own movements between Dhaka other places, allegations of abuse and persecution. Whilst the RRT put a number matters to the applicant, usually information sourced from country information, it failed to put to him that it did not believe that was [sic] the victim of persecution or threatened violence and in so doing failed to put the applicant on notice of the importance of those matters before proceeding to a finding which adversely affected the applicant. In light of the above matters: g) The RRT failed afford the applicant procedural fairness or natural justice, and accordingly fell into jurisdictional error. h) The applicant is not barred by section 422B of the Act in claiming that the RRT failed to afford him natural justice or procedural fairness. 15 The approach of the Federal Magistrate to these submissions was as follows. He first dealt at some length with the operation of s 422B of the Migration Act. As a matter of substance, however, having dealt with those legal matters, he dealt with the matter on the basis that it was an obligation of the Tribunal to accord procedural fairness. 16 On this hypothesis which, in my view, for present purposes was the sensible approach to take, the learned Federal Magistrate said that the applicant must satisfy him on the available evidence that there was a failure to put to him matters asserted by the appellant as sufficiently important to evoke principles of natural justice, and to demonstrate that they were not raised. 17 The only evidence before the Federal Magistrate was the Court Book. The Federal Magistrate recounted the procedural steps in that court, which enabled the applicant to put on such evidence as he wished. No attempt was made to reveal that any aspect of the Tribunal's reasons was not put to the appellant at the hearing in a fair way. 18 Further, the Court Book indicates that it is likely that the question of the absence of documentation was, in fact, raised with the appellant. Certainly, from the form of the Court Book, one cannot infer that those matters were not adequately raised. 19 As the Full Court said in NAOA v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241, there are real dangers in attempting to draw too many inferences or too precise an inference as to the conduct of the hearing before the Tribunal from the reasons for decision of the Tribunal. Certainly, in this case, it is difficult to draw the conclusion that the reasons are an adequate substantive replacement for a transcript. I am not prepared to conclude that the Federal Magistrate committed any error of fact in refusing to conclude that there was a failure to accord procedural fairness. 20 That being the substantive argument before the learned Federal Magistrate, that deals with the issues raised below. Submissions have been put to this Court raising actual bias. There is no basis upon which, in my view, one can conclude that there was actual bias in this case. 21 The submissions put to me are in a document which appears to have been drafted by someone who had a general understanding of the issues being litigated in this Court and the High Court, up to the handing down of the decision in Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476. They are submissions about S157, and also they are submissions about the Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. 22 As to the privative clause submissions and the S157 submissions, they are all irrelevant because the learned Federal Magistrate approached the matter on the basis of the law after S157. As to the submissions on Muin and Lie, as has been made clear in many cases in this Court since Muin and Lie, if parties wish to rely upon the kind of facts agreed in Muin and Lie as grounding natural justice claims, such facts either need to be agreed or proved to substantiate a case of denial of procedural fairness. There was no such agreement or tender of facts in this case. Therefore, none of the submissions that were handed up in this Court are of any assistance in identifying let alone persuading me that there was any error before the primary Judge. 23 I asked counsel whether there was any issue which might arise by reason of the operation of the High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, in particular, in conjunction with the current state of the law in this Court in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27. I have read the decision of the Tribunal myself a number of times carefully. Counsel was not able to identify any such difficulty. I am not able to identify any such difficulty. 24 Subject to one matter which during the course of these reasons, I indicated I would ask counsel about, for those reasons I would dismiss the appeal. 25 Before completing my reasons I raised a number of matters with counsel for the respondent and with the appellant himself. The matters that I raised concerned a question whether the Tribunal had dealt with all the claims of the appellant. On page 7 of the Court Book is the text of the original application of the appellant for a protection visa in which he said the following: Due to serious fear of being killed persecuted and prosecuted due to my membership of the Bangladesh Awami League and progressive thinking and values about religion. Please refer to attached declaration 26 That may have led to the view that there was a religious reason, separate from political opinion, for the appellant's fears. However, when one looks at the appellant's statutory declaration in support one sees the tying together of politics and religion in the following way. In the statutory declaration the appellant claimed to be a member of the Bangladesh Awami League, which in contradistinction to some other parties in Bangladesh, is not a fundamentalist religious political party, but may be seen to be more progressive in its views as to religion. The word progressive may reveal certain assumptions on my part which I need not explain for the balance of these reasons. 27 The whole matter dealt with by the Tribunal concentrated upon the claims as to the Awami League. I took the unusual course of asking the appellant matters about his claims prior to concluding my reasons for judgment. After some initial confusion which was no doubt my fault, it became apparent to me from what the appellant said that the religious aspect of his claims was bound up inextricably with his claims to be a member of the Awami League. 28 I will have the copy of the transcript kept on the Court file, not in the correspondence section, so that should anyone need to examine what passed between Mr Mantziaris and myself and the appellant and myself, that is plain. 29 If I may say so, the appellant answered me with a frankness and openness which did not display any of the characteristics that had otherwise been ascribed to him by the Tribunal. However, it is not my position to decide whether the Tribunal was correct in disbelieving the appellant. Unless the Tribunal has displayed an error of such importance as to reveal jurisdictional error, I cannot interfere with the findings disbelieving the appellant, which the Tribunal made. There are many cases in this Court and a number in the High Court dealing with circumstances where the Tribunal fails to deal with the claim of the applicant for a protection visa. Notwithstanding my initial concern as to the absence of any matters dealing with religion in the reasons of the RRT I think on balance, looking at all the material, Mr Mantziaris explained the intertwined nature of political religious claims correctly. 30 In those circumstances I do not see that as an available ground of appeal. It was not run below, but it is unnecessary to consider whether the trial could have been conducted differently had it been run. As I said, I am persuaded that the political and religious bases are one and the same, bound up in the claims as to membership of and association with the Awami League. Therefore, for those reasons in my view there has been no error displayed in the reasons by the Federal Magistrate and the appeal should be dismissed. I see no basis whatsoever for any change to the usual order for costs. 31 The orders of the Court, for those reasons, are: 1. the appeal be dismissed; and 2. the appellant pay the respondent's costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.