FEDERAL COURT OF AUSTRALIA SZGRG v Minister for Immigration and Citizenship [2008] FCA 1326 SZGRG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL NSD 821 of 2008 GRAHAM J 11 AUGUST 2008 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 821 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZGRG Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAHAM J DATE OF ORDER: 11 AUGUST 2008 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first 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 821 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZGRG Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAHAM J DATE: 11 AUGUST 2008 PLACE: SYDNEY 1 The appellant was born in Dhaka in Bangladesh on 9 July 1978. Accordingly, he is now 30 years of age. He came to Australia on 13 May 1998 travelling on a Bangladeshi passport issued to him on 16 November 1996 and an Australian visa issued to him on 30 March 1998 which expired on 16 May 1998. 2 It will be readily apparent that he has now lived one third of his life in Australia. He is fluent in the English language and is able to read and write in English. When the matter was called for hearing an interpreter was present who was able to translate if necessary from English into Bengali and vice versa. The appellant was invited to use the services of the interpreter if he so desired but to address the Court in English if he wished to do so. He elected to address the Court in English and if I may say so did so with clarity of expression and a clear understanding of the issues which were before the Court. 3 The appellant is not unfamiliar with the processes associated with the grant and refusal of protection visas. He has previously participated in three hearings before three differently constituted Refugee Review Tribunals before whom he has sought review of a decision of the Minister's delegate to refuse his application for a protection visa lodged on 24 June 1998. Following the third hearing, the Refugee Review Tribunal ('the Tribunal), as constituted by Shahyar Roushan, decided on 2 November 2006 to affirm the decision of the Minister's delegate not to grant the appellant a protection visa. That decision was reached after the hearing and after an invitation had been extended to the appellant by letter dated 28 September 2006 to comment on certain information that may be the reason or part of the reason for deciding that the appellant was not entitled to a protection visa. The appellant responded to that invitation by letter dated 20 October 2006 under which further material was provided to the Tribunal. 4 The third hearing before the Tribunal concluded with the Tribunal member saying: '… I'm going to send you a letter very soon, that letter is going to allow you certain amount of time to respond to the questions that I am going to put to you. As I mentioned to you when you send your response to the Tribunal then you can add any other information that you would like me to take into account. From the questions that I ask you you'll know where my concerns are, you know what things I have problems with and essentially my questions are going to deal with these issues. …' 5 When the appellant arrived in Australia he was approaching 20 years of age. His case for a protection visa hinged in part upon two parliamentary elections which took place in Bangladesh, one on 27 February 1991 when the Bangladesh Nationalist Party (BNP) was elected and the other on 12 June 1996 when the Awami League won the majority of seats in the parliament and formed a government with the help of the Jatio Party. The appellant claimed to be a member of the BNP and to have progressed through its hierarchy to a position of some significance. He claimed that there was hostility between the BNP and the Awami League such that he was attacked by members of the Awami League and associated groups. 6 In the third Tribunal's Statement of Decision and Reasons of 2 November 2006 it was recorded that the Tribunal asked the appellant about the positions which he held within the BNP. He said he joined the party in February 1995 and became the Organising Secretary in Ward 21 of Gulshan Thana branch of the JCD. He was promoted to the position of the President of the same branch at the end of 1996. He was demoted to the position of Welfare Secretary in February 1998. In his college he was the Publications Secretary and became the General Secretary of the Party in his college in July 1997. 7 The Tribunal apparently asked the appellant whom he feared in Bangladesh to which he responded that he feared the Awami League, JI and anti-independent forces within his own party. He explained that he feared the Awami League because of its strong organisation and he could be targeted for political revenge and because he was a supporter of BNP. He said that he feared JI and BNP because JI wanted to implement Islamic [law] and were anti-freedom in 1971. The appellant indicated that he did not like extremists and believed in the separation of Church and State. He apparently said that there were some anti-independence forces in BNP and that if he did not support them he would be persecuted. 8 The appellant claimed that on 21 February 1998 all the JCD leaders from different institutes had gathered in the Dhaka University campus with a view to leading a procession against the A.L. administration on the same day, a reference presumably to the Awami League administration. At about 4.00 pm to 5.00 pm the appellant claims that he was part of a procession of about 150 people who were intercepted by a group of BCL terrorists. Two terrorist leaders were said to have identified the appellant in the crowd and, thereupon, came running to manhandle the appellant. They are said to have attacked him by shouting his name and heavily beating him up. The appellant claimed that he was left almost dead on the street and later taken to hospital by other colleagues and a passer-by. 9 The appellant claimed that it was frustrating to see police standing by and not taking steps to save him and his colleagues from the BCL hooligans. The appellant claimed that he was in hospital for a few days as a result of the incident. 10 The appellant made no claims of suffering any harm after February 1998 and before his departure from Bangladesh in May 1998. Following his arrival in Australia on 13 May 1998 the appellant lodged an application for a Protection Visa (866) which fell within Class AZ and in 1999 was replaced by a class identified as Class XA. 11 The application for a protection visa was accompanied by a statement of some 22 paragraphs which was signed by the appellant but which was later replaced by 'My amended Statement' of 19 March 2005. The amended statement was advanced as a record of the claims made by the appellant to refugee status at the second Tribunal hearing and, at the third Tribunal hearing, he reaffirmed that it correctly recorded his claims. 12 The delegate of the Minister decided on 28 August 1998 that the appellant's application for a protection visa should be refused. On 22 September 1998 the appellant applied for a review of the Minister's delegate's decision by the Tribunal. As previously indicated on 2 November 2006 the Tribunal, as constituted by the third Tribunal member, affirmed the decision of the Minister's delegate not to grant the appellant a Protection (Class AZ) visa. 13 By an Application filed 11 December 2006 in the Federal Magistrates Court of Australia the appellant applied for constitutional writ relief in respect of the decision of the Tribunal as constituted by the third Tribunal member. That Application was superseded by an Amended Application filed 7 May 2007. The Amended Application came before the Federal Magistrates Court of Australia constituted by Lloyd-Jones FM on 26 November 2007. His Honour delivered his reasons for judgment in respect of the Application on 16 May 2008. The Court ordered that the Application filed on 11 December 2006 be dismissed and that the appellant pay the respondent Minister's costs and disbursements of and incidental to the Application. 14 The appellant appeared in person at the hearing before the learned Federal Magistrate and the Minister was represented by counsel. Counsel for the Minister distilled the grounds of review which were contained in the appellant's application into 12 identifiable heads, which were set out in the learned Federal Magistrate's reasons for judgment ([2008] FMCA 585 at [19]). 15 His Honour proceeded to deal with the grounds seriatim and concluded that there had been no jurisdictional error apparent warranting the grant of constitutional writ relief. 16 By a Notice of Appeal filed 4 June 2008 in this Court, the appellant appealed from the whole of the judgment of the Federal Magistrates Court of Australia given on 16 May 2008, relying upon four separate grounds of appeal. The grounds of appeal were set out at [2]-[5] in the Notice of Appeal. It is convenient to treat the first and third grounds together and to consider the second and fourth grounds separately. The first, third and fourth grounds asserted error on the part of the Tribunal for a failure to afford natural justice and the second ground asserted error on the part of the learned Federal Magistrate. 17 Grounds 1 and 3 were as follows: '2. The Refugee Review Tribunal (RRT) made error of law and failed to exercise the proper procedure in relation to make decision on the review of the applicant's protection visa application. 4. The Tribunal did not follow the procedural fairness in reviewing the applicant's protection visa application. The applicant believe that Tribunal has not acted in accordance with the provisions of the United Nations Convention 1951 which was amended by the 1967 protocol relating to status of refugees where Australia itself is a party.' The second ground of appeal was as follows: '3. The Hon. Federal Magistrate Lloyd Jones decision ignored some legal issues which were not clearly explained in its judgment. Since the hearing on 26 November 2007 till the delivery date the Hon. Court did not give opportunity to the applicant to respond to issue that were outlined in its judgment. The court has denied the applicant's natural justice.' Finally, it will be necessary to consider the fourth ground of appeal, which was as follows: '5. The Tribunal denied the applicant natural justice in determining the appeal in that the Tribunal was biased, or, in the alternative, there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision. The applicant was deprived of the natural justice and procedural fairness.' 18 If I have understood the submissions of the appellant correctly, he does not place any great store in the second ground of appeal. Were the ground valid, it would require a judicial officer in the position of Lloyd-Jones FM to issue provisional reasons for judgment following the conclusion of a hearing so that an appellant in the position of the present appellant might challenge the provisional reasoning of the Federal Magistrate before a final judgment was issued. Plainly, the Federal Magistrates Court was not required to provide a running commentary on its process of reasoning, such that the appellant might attack that reasoning before a final judgment was delivered. 19 In respect of the fourth ground of appeal, the appellant was unable to direct the Court's attention to any evidence to support the finding that the Tribunal constituted by the third Tribunal member approached the task with which he was confronted with a closed mind. Furthermore, the Court's attention was not directed to any evidence which might support a conclusion that a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the Tribunal member might not have brought an impartial mind to making the decision in respect of the issues with which he was confronted. 20 I will return briefly to say something more about those grounds of appeal later. 21 In respect of the first and third grounds, it will be seen that the appellant urges that the Tribunal committed an error of law, that it failed to exercise proper procedure, that it failed to provide procedural fairness and that it failed to apply the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (collectively referred to as 'the Refugees Convention'). No particularity was provided and an attempt to elicit any relevant error of law, failure of procedure, failure of procedural fairness or failure to comply with the Convention proved fruitless. 22 Proceedings before the Tribunal are not adversarial but inquisitorial. The Tribunal is not in a position of a contradictor of the case being advanced by an applicant. A Tribunal member conducting an inquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair. In an application for review before the Tribunal, it is for the applicant to advance whatever evidence or argument he wishes to advance and for the Tribunal to decide whether his claim has been made out. It is not part of the function of the Tribunal to seek to damage the credibility of an applicant's story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. The Tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on (see per Gummow and Heydon JJ in Re RUDDOCK (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte APPLICANT S154/2002 (2003) 201 ALR 437 at [57] – [58]). 23 The Act does not require the Tribunal to actively assist an applicant in putting his or her case, nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be (see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [36]). 24 In relation to matters of procedural fairness at a Tribunal hearing, it is appropriate to observe what was said by Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]: '48. … as Lord Diplock said in F Hoffmann‑La Roche & Co AG v Secretary of State for Trade and Industry: "the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished." Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.' (footnotes omitted) 25 It is for an applicant for a protection visa to satisfy the Minister, or on an application for review, the Tribunal, that the criterion for it prescribed by the Act had been satisfied. Section 65(1) of the Migration Act 1958 (Cth) ('the Act') relevantly provided: '65(1) After considering a valid application for a visa, the Minister: (a) if satisfied, that: … (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; … … is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa.' 26 The criterion for a protection visa as set out in section 36(2) of the Act was as follows: '36(2) A criterion for a protection visa is that the applicant for the visa is a non citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.' 27 The Refugees Convention provided in Article 1A that the term "refugee" should apply to any person who: '(2) …owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …' 28 The Tribunal member constituting the third Tribunal dealt comprehensively with the appellant's claims to refugee status in his Statement of Decision and Reasons. In the section entitled 'FINDINGS AND REASONS' the Tribunal said: 'The applicant's claims are based on the Convention ground of political opinion. Essentially, he claims to be a member of BNP and fears Awami League, JI and its student wing, and anti-independence forces within his own party. The Tribunal has significant concerns regarding the applicant's credibility and is of the view that he is not a witness of truth. Whilst the Tribunal is prepared to accept that the applicant is a member of BNP, the Tribunal does not accept the applicant's claims relating to his fear of JI and anti-independence forces within his own party. In reaching this view the Tribunal had regard to the following reasons: …' 29 The Tribunal then proceeded to detail four separate bases for reaching that view. Having detailed those four reasons, the Tribunal continued: 'For all the above reasons the Tribunal did not find the applicant to be a credible witness. The totality of the applicant's evidence shows a propensity to tailor his evidence in a manner which achieves his own purpose.' 30 The Tribunal proceeded to record its lack of satisfaction and lack of acceptance of a number of claims upon which the appellant had relied. The Tribunal continued: 'The Tribunal has accepted that the applicant is a member of BNP. Based on the impression the Tribunal has formed of the credibility of the applicant's later claims, the Tribunal is of the view that he has sought to exaggerate his role and importance within the party. Nevertheless, the Tribunal is prepared to accept that he was the Organising Secretary and later the President in Ward 21 of Gulshan Thana branch of the JCD. He also held positions in his college. Whether or not he was demoted or promoted to a position at the Thana level, the Tribunal is of the view that his activities were confined to his locality and that he was not engaged in political activities at a level that gave him a significant political profile in Bangladesh. The Tribunal is prepared to accept that the applicant's activities in student politics resulted in him being assaulted on two separate occasions by Awami League supporters. In a report released in 1998 the US State Department expressed the view that chronic student violence is a continuing problem in Bangladesh. The student groups are generally more radical than the parent parties and frequently, fighting erupts between factions of the same organization. According to the US Department of State, in many cases, student groups have become little more than gangs of armed thugs engaged primarily in criminal activity, not politics or academic pursuits (US Department of State, Bureau of Democracy, Human Rights and Labor Bangladesh: Profile of Asylum Claims and Country Conditions, February 1998, CX31417). The fact that all political parties are from time to time involved in armed clashes with the police and with each other, is part of the political milieu of Bangladesh, does not mean that there is persecution within the meaning of the Convention.' 31 The Tribunal was not satisfied that, if the appellant were to return to Bangladesh and engage in political activity at the same level as he had prior to his departure from Bangladesh, there was a real chance that he would be persecuted for reason of his political opinion. 32 The Tribunal proceeded to address the claims of the appellant on an alternative basis, that is to say, by reference to whether he may have been a person with a well-founded fear of persecution for reason of his membership of a particular social group. The Tribunal was prepared to accept that he had witnessed the murder of a political colleague in December 1997, that political colleague being a person by the name of Tutul. Apparently, the appellant did not pursue his claim in relation to that matter at the third Tribunal hearing. In any event, the Tribunal was of the view that any harm that the appellant may have feared on account of his being a witness to that murder was on an individual basis and not for reason of his membership of a particular social group or any Convention reason. The Tribunal said: 'His evidence clearly suggests that as a result of witnessing a criminal act he fears harm by those responsible, who intend to silence him or stop him from giving incriminating evidence against them.' 33 The Tribunal referred to decisions of Black CJ in Morato v Minister for Immigration Local Government and Ethnic Affairs (1992) 39 FCR 401 at 406 and a judgment of Tamberlin J in Maningat v Minister for Immigration and Multicultural Affairs [1998] FCA 443 at page 4. In Maningat, Tamberlin J had said: 'Fear of reprisal or being harmed or "silenced" because a person might be able to give evidence against the perpetrators of a violent or criminal act, without more is not fear of persecution for a Convention reason.' 34 The Tribunal was not satisfied that the appellant's fear of Tutul's murderers was essentially and significantly for a Convention reason, including his actual or imputed political opinion. 35 The Tribunal did, however, consider whether the appellant's fear may have been for reason of his membership of a particular social group, namely, 'witnesses of crime in Bangladesh'. The Tribunal said: 'Whether a supposed group is a "particular social group" in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared for reasons of the person's membership of the particular social group.' 36 The appellant did not contend that the test which the Tribunal applied was inappropriate. The Tribunal continued: 'Witnesses of crime in Bangladesh, apart from having witnessed an act on the very wide spectrum of criminal activity, are not, on the evidence, distinguished from society at large so that they are objectively cognisable within the Bangladeshi society as a particular social group. …' 37 The appellant urged that he had well-founded fear of persecution for reason of religion, for reason of membership of a particular social group and for reason of political opinion. In respect of religion, he was unable to point to any threats of harm to which he may have been subjected by reason of his religion. Reference was made to part of the Tribunal's reasons where it said: 'The applicant at no point in the process has claimed that his mother or any other member of his family has suffered harm for ... reason of his mother's faith or the family's liberal attitude towards Islam. The Tribunal is not satisfied that his mother's Ahmadi faith, his family's religious profile or, indeed, his own liberal attitude towards Islam translates into a real chance of harm for the applicant in Bangladesh.' 38 In relation to the Tribunal's rejection of the appellant's claim to having a well-founded fear of persecution for reason of political opinion, the appellant was unable to point to any error of law, failure to exercise proper procedure, failure to provide procedural fairness, or failure to comply with the Refugees Convention. His concern was that his claim to refugee status simply was not accepted by the Tribunal as the Tribunal had found him to be lacking in credibility. As I previously indicated, the appellant did not point to anything in the reasons for decision of the Tribunal, which demonstrated that the Tribunal failed to bring an open mind to the determination of the issues with which it was confronted. 39 In relation to the question of whether or not there was apprehended bias, McHugh J summarised the relevant test for apprehended bias in relation to administrative decision making in Hot Holdings Pty Limited v Creasy (2002) 210 CLR 438 at [68] where his Honour said: '68. The rules of natural justice require that any decision of a Minister that affects a person's rights, interests, or legitimate expectations must be unbiased and free from any reasonable apprehension of bias. Where an administrative decision is made in private, the test for apprehended bias is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision. In deciding the issue, the court determines the issue objectively.' (Footnote omitted) 40 The appellant has failed to direct the Court's attention to any matter which could sustain a finding of apprehension of bias in the circumstances of the present case. 41 What effectively the appellant seeks is a merits review and this he is not entitled to in this Court or in the Federal Magistrates Court. He concluded his submissions not by pointing to any relevant jurisdictional error on the part of the Tribunal or any error on the part of the learned Federal Magistrate but simply by informing the Court that he was, 'looking for a fair decision'. 42 In my opinion, the Tribunal comprehensively dealt with the claims made by the appellant to refugee status. The appellant simply failed to satisfy the Tribunal that he satisfied the criterion for a protection visa laid down by s 36(2) of the Act. In the circumstances, the appeal should be dismissed with costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 26 August 2008 The Appellant appeared in person. Solicitor for the First Respondent: D. J. Watson of Australian Government Solicitor The Second Respondent filed a submitting appearance. Date of Hearing: 11 August 2008 Date of Judgment: 11 August 2008