FEDERAL COURT OF AUSTRALIA
C v Minister for Immigration & Multicultural Affairs [1999] FCA 1663
MIGRATION – application to review a decision of the Refugee Review Tribunal – Bangladeshi applicant – supporter of BNP – applicant journalist left Bangladesh before change of government and reporting on government overseas – threats made to applicant by government minister while overseas – whether applicant had sufficient political profile to warrant attention of authorities – delay in application for protection visa until long after arrival in Australia – conclusions on credibility drawn from late application for protection visa – inconsistent reasons given for delay in application – finding that the applicant had no genuine fear of persecution if he were to return to Bangladesh – whether error of law.
MIGRATION – alleged error of law – whether Tribunal failed to apply “real chance” test – whether Tribunal obliged to ask “What if I am wrong?” in circumstances – whether reasons for decision complied with s 430 Migration Act 1958 (Cth) – whether the Tribunal failed to give adequate reasons.
MIGRATION – role of Amnesty International in migration appeals – Tribunal member questioned involvement of Amnesty – whether failure to take account of evidence from Amnesty involved an error of law.
ADMINISTRATIVE LAW – actual bias – whether the conduct of the Tribunal was such as to display pre-judgment – whether Tribunal member acted with such partisanship or hostility so as to show closed mind.
PRACTICE AND PROCEDURE – application for review of Refugee Review Tribunal decision – no grounds of review in application – whether application competent – whether to dispense with compliance with Rules.
Migration Act 1958 (Cth) ss 36(2), 475, 476(1)(a), 477, 478(1) and 478(2)
Federal Court RulesO 1 r 8 and O 54B r 2(3)
Lazar v Taito (Australia) Pty Ltd (1985) 5 FCR 395 applied
Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611 applied
Sharif v Minister for Immigration and Multicultural Affairs [1999] FCA 278 applied
Survival & Industrial Equipment (Newcastle) Pty Ltd v Owners of the Vessel “Alley Cat” (1992) 36 FCR 129 applied
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 applied
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 applied
Sarbjit Singh v Minister for Immigration and Ethnic Affairs (Lockhart J, 18 October 1996, unreported) applied
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied
Attorney-General (NSW) v Quin (1990) 170 CLR 1 applied
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 applied
X v Minister for Immigration and Multicultural Affairs [1999] FCA 697 considered
Muralidharan v Minister for Immigration and Multicultural Affairs (1996) 62 FCR 402 considered
Han v Minister for Immigration and Multicultural Affairs [1999] FCA 376 considered
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 applied
C v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1116 OF 1999
MANSFIELD J
2 DECEMBER 1999
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
C Applicant
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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BETWEEN: |
Applicant
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AND: |
MULTICULTURAL AFFAIRS Respondent
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 The applicant was born on 29 March 1965. He is now thirty-four.
2 This application is to review a decision of the Refugee Review Tribunal (“the Tribunal”) given on 27 September 1999. The Tribunal affirmed the decision of a delegate of the respondent not to grant to the applicant a protection visa under the Migration Act 1958 (Cth) (“the Act”). The application for review was made within a day or so of the decision of the Tribunal’s decision. It did not identify the grounds for the review. It said “details will be sent at a later date”. Those details had not been provided prior to the hearing. In fact, the applicant has not provided any written details of the grounds for the review. He identified his grounds of review orally at the hearing. The respondent, understandably, took objection to that process.
3 To protect the respondent’s position, I therefore proceeded to hear the applicant’s contentions generally, but then acceded to the respondent’s request to adjourn the application to enable the respondent to consider the applicant’s contentions. In those circumstances, the respondent does not now make any submission that I should not entertain the application.
4 The decision of the Tribunal is reviewable under s 475 of the Act. Section 476 limits the grounds upon which review may be made. Section 478(1) provides:
“An application under section 476 or 477 must:
(a) be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and
(b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.”
5 Section 478(2) prevents the Court from making any order allowing, or which has the effect of allowing, an application for review to be lodged outside the twenty-eight day period.
6 Order 54B of the Federal Court Rules (“the Rules”) applies to applications for judicial review made under the Act. It requires the application to be made in accordance with Form 56, as well as requiring particular information. Order 54B r 2(3) requires the application to contain particulars of the actual bias if it is alleged (as it is in the present matter). Order 1 r 8 permits the Court to dispense with compliance with the Rules, whether such dispensation is sought before or after the act of non-compliance. It is a wide discretion: Lazar v Taito (Australia) Pty Ltd (1985) 5 FCR 395 at 314. It permits the Court to amend an application to state the grounds of it: Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611; Sharif v Minister for Immigration and Multicultural Affairs [1999] FCA 278.
7 To the extent that the applicant has failed to comply with the Rules, I dispense with that non-compliance. I think it is in the interests of justice that I should do so. By reason of the course of the hearing, the respondent has not been disadvantaged by that non-compliance. The respondent, very fairly, acknowledges that matter. I have granted an adjournment to ensure that there is no such disadvantage. There is no issue that the application itself was within the time prescribed by s 478(1)(b) of the Act. There is no question that the dispensation would enable the Court to exercise a power which it might otherwise have been unable to exercise: cp. Survival & Industrial Equipment (Newcastle) Pty Ltd v Owners of the Vessel “Alley Cat” (1992) 36 FCR 129 at 138. It would be unjust in those circumstances to deprive the applicant of the opportunity for judicial review, with the possible consequence (as he alleges) that he will be returned to Bangladesh where he will be persecuted, by reason of his failure fully to comply with O 54B r 2(3) or his failure to fully complete Form 56.
8 The applicant appeared in person. His oral submissions specified the grounds of review upon which he relied. He said that he was not experienced in the law, and it was somewhat difficult to discern his complaints (beyond a complaint that the wrong decision on the merits had been made). As I understood his argument, it was that
1. the decision involved errors of law reviewable under s 476(1)(e) in the following respects:
(a) having found
· that some political opponents of the Awami League government are at risk of intimidation, harassment, violence and detention, and that those persons may have cause to fear persecution from that government,
· that the applicant has been an active opponent of the Awami League (to the extent that he did suffer persecution in the early 1980s) including up to 1995 being appointed to “positions of political patronage and at least some minor political importance” by the then government which opposed the Awami League, and
· that in 1996 in Singapore a senior representative of the Bangladeshi government made threats to harm the appellant and his family because of him being publicly critical of Bangladesh,
somehow the Tribunal fell into error in finding that he had no genuine fear of persecution if he were to return to Bangladesh,
(b) having told the appellant at interview on 4 June 1999 that it may be able to make a decision in his favour in a few minutes if he produced his passport, the Tribunal did not refer to the passport or its contents in its reasons, although the passport was produced,
(c) the Tribunal failed to have regard to the evidence provided to the Tribunal by Amnesty International,
(d) the Tribunal failed to ask ‘What if I am wrong?’ as that test is explained by Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 293 (“Wu”).
2. The Tribunal failed to give reasons for its decision which satisfied s 430, having regard to its findings referred to in 1(a) above: s 476(1)(a) of the Act.
3. The decision was induced or affected by actual bias: s 476(1)(f).
Background and claims
9 The applicant applied for a protection visa by application dated on 21 or 28 January 1999 but lodged on 2 February 1999. That application was refused by a delegate of the respondent on 9 February 1999. An application for review of that decision was made to the Tribunal on the same day. The Tribunal conducted three hearings at which the applicant was present, on 12 March 1999, 4 June 1999 and 23 July 1999 before giving its decision.
10 The applicant was born in Bangladesh (then East Pakistan) and is a citizen of Bangladesh. He lived in Bangladesh until 5 July 1995, and left Bangladesh legally at that time. He then lived in Singapore until August 1997 and in Denmark for the latter few months of 1997 when he was studying at the International People’s College. He arrived in Australia on 26 December 1997 with a visa valid to 26 March 1998. He was required to leave the country by that time, although he says that he would then have been able to secure re-entry into Australia. However, he overstayed that visa. On 8 January 1999 he was taken into custody as he was unlawfully in Australia.
11 He is a journalist by occupation. In the period that he was living in Singapore and thereafter, he made a number of short visits to Australia during 1996 and 1997. He did not on any of those occasions apply for a protection visa. Nor did he apply for any form of recognition of his claimed status as a refugee in Singapore or Denmark.
12 His mother and four siblings still live in Bangladesh.
13 The applicant’s family has a history of long standing opposition to the division of Pakistan and to the establishment of Bangladesh as a separate State. That separation occurred in 1971. In addition, he has long been opposed to the policies of the Awami League party. He became actively involved in the anti-Awami League political group from the time he was a student in the early 1980’s, including leading street demonstrations, picketing, and anti-government speeches. In 1982 and 1983 he was arrested on two or three occasions for those political activities. He was physically mistreated on those occasions. The Tribunal accepted his evidence on those matters, and found that his mistreatment amounted to persecution.
14 That oppressive conduct towards him significantly reduced when General Ershad took over rule in Bangladesh as Chief Martial Law Administrator. The applicant reduced his political activities from that time. In 1985, he graduated from university and started working as a journalist. He was able to do so in an unrestricted way. He supported then President Ershed’s political party, the BNP, and was part of the journalist accompaniment to delegations to a number of countries. In early 1991 he was appointed the President of the Bangladesh Journalists Welfare Council. His duties included encouraging journalists not to write critically of the government, and to liaise with student groups to recruit their support of the then government. The Awami League was then the opposition. His duties, he says, also included disclosing information to student groups which was adverse to the Awami League. For a time he was appointed a political adviser to one of the ministers of State. Again, the Tribunal appears to have accepted that evidence.
15 In mid-1995 it appeared to the applicant that the opposition party, the Awami League, was likely to come into power at the next election. Support for the BNP was waning. Its associated political parties were shifting allegiances. In anticipation of defeat of the BNP in the 1996 election (as occurred), he moved to Singapore in mid-1995. He continued to work there as a journalist. As noted, during the next years he worked as a journalist based in Singapore but visited a number of countries including Australia. In December 1996, at a World Trade Organisation ministerial meeting in Singapore, he confronted one of the ministers for Bangladesh who was a member of the Awami League party and asserted in that minister’s presence that that minister was presenting an incorrect picture of that government’s policies and actions. The applicant was invited by that minister to attend a private meeting in Singapore where he was urged to stop criticising the government. He says he was told:
“If you return home we will take severe action against you. Your family are living in Bangladesh and we can put them in trouble at any time. So do not do or say anything about Awami League or any leaders in front of international communities. Keep your mouth shut at all times.”
16 His general version of those matters to this point was accepted by the Tribunal.
17 It is the balance of his evidence, set out below, that the Tribunal was not prepared to accept.
18 Despite the threat, he continued to speak out on occasions about the Bangladesh government and the Awami League. In addition, he said that after that confrontation, his journalistic investigations led him to discovering some evidence of corruption on the part of members of the Awami League in their movement of funds internationally, and he made that information known to certain people. He says that the Awami League became aware of his dissemination of the secret information about its corruption. Also, in the period to November 1997 he was studying at the International Peoples College in Denmark. He there made contact with others who wished to see the reunification of Pakistan and Bangladesh. He publicly supported their attitude. He says that the Awami League became aware of that conduct.
19 The applicant fears that the Awami League have assigned a terrorist group led by a specified person to kill him as soon as he returns to Bangladesh. He was told that by his brother and sister by telephone. In November 1998 he told his brother that he intended to return to Bangladesh. It was then that he got that information. Soon after, he says his home was searched by police. He says that the Awami League have lodged false complaints against him in different courts, alleging that between 1993 and 1995 he instigated violence at universities at Dhaka and Chittagong, that he supplied weapons to students, and also alleging that he was complicit in certain murders at those universities.
20 Between July 1998 and December 1998, the applicant was living in Australia in a defacto relationship with another woman from Bangladesh. The relationship ceased about the end of 1998. He claims that he will be punished if he returns to Bangladesh, as such conduct is against Islamic law. The woman’s family is angry at the relationship, and has good connections in the Awami League. He fears their revenge.
21 It is clear from the Tribunal’s reasons that the delay by the applicant in applying for a protection visa under the Act was telling. His application for a protection visa was made some thirteen months after his arrival in Australia, and some ten months after his business visa expired. Upon being taken into custody, he first applied for a bridging visa, which was refused. That refusal was affirmed by the Immigration Review Tribunal on 21 January 1999. It was only then that the applicant applied for a protection visa.
22 In his application for a protection visa, the applicant identified the reasons for his fear of persecution if he returns to Bangladesh as
· the Awami League had learnt that he had passed on information about their corruption,
· the Awami League had learnt of his political activities in Denmark,
· the Awami League may assist in punishing him for living in Australia with an Islamic woman without being married
and, more generally, his public political opposition to the Awami League over many years. The threat to him in November 1996 was, he said, an illustration of continuing awareness of his role and whereabouts. Those matters emerge from his evidence before the Tribunal.
23 However, in his original application, the applicant says that he did not apply for refugee status earlier as he did not know that the Awami League had discovered that he had passed more information on about their activities of alleged corruption. He did not provide any other reason for the timing of his application. That transpired to be significant to the determination of his claim.
24 To qualify for a protection visa, the Tribunal must be satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the status of refugees as amended by the 1967 Protocol relating to the status of refugees (“the Convention”): s 36(2) of the Act. The relevant provision of the Convention is Article 1A(2) which defines a refugee as any person who:
“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; …”
25 In Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (“Chan”), the High Court indicated that a well-founded fear of being persecuted for a Convention reason involves both subjective and objective elements. A person has a “well-founded fear of persecution” if that person has a genuine fear of persecution for a Convention reason, and there is a real chance, that is one that is not remote or insubstantial or a far fetched possibility, of persecution for a Convention reason if that person is returned to the country of origin.
The Tribunal’s reasons
26 As noted, the Tribunal was satisfied that the applicant’s family was always opposed to the Awami League and to Bangladesh independence, and that the family suffered greatly as a result of its opposition. It also was satisfied that the applicant himself was actively opposed to the Awami League, at least from the time he became a tertiary student, and was arrested and mistreated in the early 1980’s because of that opposition. From about 1983, following the change of government to the BNP, he suffered no further harm whilst living in Bangladesh up to the time of his departure in mid-1995. That was during the period that the Awami League was not in power. The Tribunal concluded that the applicant’s past experience in the early 1980s did not of itself give rise to a risk of persecution if he were to return to Bangladesh at the present time.
27 The Tribunal was not satisfied that the applicant left Bangladesh in mid-1995 because he feared persecution. He did not expressly say he had left Bangladesh for that reason. There is no evidence of any immediate threat having been made to him at the time. The Tribunal observed that his personal prospects clearly would diminish if there were a change of government, but that was distinct from the risk that he might be persecuted if he remained in Bangladesh.
28 The Tribunal also was not satisfied that the applicant had a fear of persecution because he had learned of secrets concerning corruption of members of the Awami League whilst working as a journalist. It did not consider that any such knowledge that he had and had provided to others was likely to be attributed to him by the Awami League. It said there was no credible reason why the applicant’s possession of such secrets would be known to the authorities.
29 The Tribunal was satisfied
· that the applicant was a long standing political opponent of the Awami League (for which he had been persecuted in the early 1980s),
· that the Awami League government of Bangladesh does use its powers to persecute some of its political opponents, including by arresting and detaining them on false charges, and
· that the applicant was threatened by a minister of the Bangladesh government in Singapore in December 1996. The minister accused the applicant of disloyalty to Bangladesh, and made threats to harm the applicant and his family because of that perceived disloyalty, following a confrontation with that minister at an international conference.
The Tribunal then said:
“It is evident that the threats made by XXXX could not be dismissed out of hand. However, in the circumstances, I am not satisfied that it flows from XXXX having made the threats that the Applicant is at risk of harm from XXXX should he return to Bangladesh. I note that no evidence was produced or given that the Applicant’s family have been harmed or contacted by XXXX since the threats were made in December 1996. I note that this threat did not cause the Applicant to apply for protection even when his visa expired in March 1998.”
It may be observed that the two reasons of the Tribunal for that conclusion do not necessarily support it. The fact that the applicant’s family have not been harmed to date does not mean that there is no prospect of harm to the applicant should he return to Bangladesh. Nor does the fact that he did not apply for a protection visa in December 1996 or until January 1999. As he said to the Tribunal, he did not intend to return to Bangladesh until there was a change of government, and he was apparently able to live in Singapore at that time.
30 It is hard to see why, given those threats and the evidence of the Bangladesh government having attacked its political opponents in the way described, there was not both a genuine fear of persecution and a real chance of persecution if the applicant were to return now to Bangladesh. However, the Tribunal did not so find.
31 The Tribunal also rejected the applicant’s claim that his premises in Bangladesh were searched in late January 1999. He had been out of the country since 1995, and “no evidence has been given of any interest in the applicant on the part of the Bangladeshi authorities until January 1999”. There seemed to the Tribunal to be no credible reason for that event. It rejected the suggestion that it was prompted by the threats made in December 1996, simply because of the elapse of time. If the search arose out of the applicant’s activities overseas, the Tribunal could see no point to it as the government must have known that he was still overseas.
32 The Tribunal then referred to information provided by Amnesty International Australia (“Amnesty”), under the hand of Mr Des Hogan, National Refugee Coordinator dated 2 June 1999. It specifically concerned the applicant. The applicant had contacted Amnesty in relation to his application to be heard on 4 June 1999.
33 It reads (relevantly):
“In Bangladesh most political parties, and certainly the two major parties, the Bangladesh nationalist Party (BNP) and Awami League, are involved in corrupt and violent practices. In 1997 political violence involving supporters of the BNP and the Awami League continued. At a local and district level politicians employ the services of armed thugs to harass and intimidate their opponents and ensure they win seats in elections. Also, most political parties have militant student wings [who] often fight each other for control over academic institutions. The state bears a heavy responsibility for not intervening to change the way politics is practiced in Bangladesh.
In addition to political violence scores of political activists are detained without charge or trial under the Special Provisions Act (SPA). The SPA permits detention without charge or trial for an indefinite period and has been used by successive governments to intimidate and silence opponents. In 1997 several prisoners of conscience were amongst those detained.
As a journalist and activist closely aligned to the BNP Amnesty International considers that if [C] were returned to Bangladesh he may be at risk of harm from localised political violence, due to the fact that the state may be unwilling or unable to protect him.”
The Tribunal said that it gave weight to the views there expressed as to the general situation in Bangladesh. However, it gave little weight to those views about the applicant’s particular situation (expressed in the final paragraph quoted above). It said that was because Mr Hogan may not have had reliable information about the applicant, and had not had the benefit of seeing him and hearing his story, including the conflicting reasons for the timing of the application. It is hard to see why that view was taken.
34 Mr Hogan identified what it was that he was relying upon, namely the applicant’s status as a journalist and activist closely aligned to the BNP. If the Tribunal did not find those underlying facts to be correct, of course it would give the opinion of Amnesty International based on such facts little weight. But those underlying facts are facts which the Tribunal itself found and accepted. The extent of the applicant’s alignment with the BNP may be a matter of degree. The Tribunal might have found that the applicant did not have a sufficiently close alignment with the BNP as to attract the sort of risk to which Mr Hogan refers. But it appears not to have done so, unless by implication from its conclusion. It accepted his evidence of his and his family’s long-standing opposition to the Awami-League, and that during the period of the BNP government the applicant was “appointed to positions of political patronage and at least some minor political importance” (presumably referring in part to his appointment as a ministerial adviser). To the extent to which Mr Hogan expressed views as to what may happen to the applicant if he were returned to Bangladesh, it is the sort of information to which the Tribunal routinely has regard.
35 The Tribunal then returned to further consider the applicant’s position. It said that it was not clear how the applicant’s knowledge of Awami League secrets “would place him at risk in the future”, nor how his past activities and family background “would place him at risk of harm in the future” (my emphasis in each instance). It then said that, in respect of each of those matters and in respect of the threats made in November 1996, his activities in Denmark, and the asserted fear from his relationship in Australia with an Islamic woman, one would have expected the applicant to have sought a protection visa earlier. It then, in each instance, said that it was not satisfied that those matters or any of them have caused the applicant to fear persecution.
36 The Tribunal then gave its reasons for those conclusions.
37 It referred to the significant delay in the applicant seeking protection, although he had been at risk at least since December 1996. He had not applied for a protection visa on his trips to Australia in 1996 and 1997, nor on his most recent arrival in Australia in December 1997. He did not apply for a protection visa when his then visa expired in March 1998. The Tribunal found that he was aware of his rights to apply for a protection visa at least from March 1998, as he had discussed his fear of persecution with a qualified and competent adviser during 1998, and that he probably knew of that right before he left Bangladesh. However, the applicant had made no such application, even when placed in detention, and did not do so until he had exhausted his application for a bridging visa.
38 The Tribunal found the applicant’s reasons for the delay inconsistent and unconvincing. Those reasons did vary, as the Tribunal records, and included:
· his learning only in late 1998 or early 1999 that the Awami League had discovered that he had passed on more information about it (his original application, and his evidence 23 July 1999)
· his learning in January 1999 through inquiries with his relatives in Bangladesh that it was dangerous to return to Bangladesh (his evidence 12 March 1999)
· his reluctance to seek citizenship of another country for fear of damaging his political rights in Bangladesh, as he planned to return there when the government changed (his evidence 12 March 1999)
· his reluctance to seek the protection of another country due to his standing within Bangladesh (his evidence 12 March 1999)
· during his relationship with an Australian citizen from Bangladesh between about July 1998 and 8 December 1998, his belief that it was not necessary for him to seek any other visa to be entitled to stay in Australia (his evidence 12 March 1999 and 23 July 1999)
· the fact that upon the breakup of that relationship on 8 December 1998, he had no passport as his former partner had stolen it and he was endeavouring to recover it (his evidence 4 June 1999)
· his reluctance to remain in Australia and his desire to return to Singapore or Denmark (his evidence 23 July 1999)
· his intimidation by immigration officials when he applied for a bridging visa (his evidence 23 July 1999).
39 The Tribunal concluded concerning that evidence:
“I note that they are inconsistent and find them unconvincing. Having heard the applicant’s evidence, and having considered his actions, I am not satisfied that he has a genuine fear of persecution.
I am satisfied that neither the Applicant’s family background nor his own political activities in Bangladesh or elsewhere, nor the political situation in Bangladesh have caused the applicant to fear persecution. I found the Applicant’s actions much more persuasive than his words.
I am satisfied that if [the minister] threatened the applicant, then those threats did not produce in the applicant a fear of future persecution.
I am not satisfied that the applicant has a fear of persecution. Accordingly I am not satisfied that it is for reasons of such a fear that the applicant is unable or unwilling to return to Bangladesh.
I am not satisfied that the Applicant is someone to whom Australia has a protection obligation.
I have attempted to give the applicant the benefit of the doubt, but his claims to fear persecution on return to Bangladesh are so inconsistent with his actions as to fly in the face of commonsense.”
40 Despite those various explanations, provided in the face of persistent and increasingly insistent questions from the Tribunal for an explanation for the timing of the application, one response he gave emerges in my mind as entirely consistent with the applicant’s circumstances. He said from time to time during his interviews that he did not intend to seek a protection visa earlier because he did not need one. He had been able to live outside Bangladesh since mid 1995 without difficulty. He did not intend to return to Bangladesh while the Awami League was in power. Even when he was detained, he first sought a bridging visa because he thought he needed such a visa to enable him to return to Singapore. It was only when that visa was refused, and he was in detention, that he faced the prospect of being returned to Bangladesh. He believed that there was, at that point, no option then but that he would be returned to Bangladesh, unless he obtained a protection visa. He feared the Awami League, upon his return, may imprison him or have him killed. The Tribunal understood that explanation, as he was questioned about it.
41 I suspect the Tribunal’s approach was influenced by its understanding that the applicant needed protection at least from 1997. So much can be seen from the records of interview. It seems to have equated the fact that the applicant may be at risk if he returns to Bangladesh with him having a need, from that point in time, to procure a protection visa. It is that circumstance which seems to have led the Tribunal to the detailed questioning of the applicant about why he had not applied for a protection visa earlier. In my view, that is a misunderstanding on its part. But that misunderstanding does not necessarily give rise to a ground of review available under s 476 of the Act. It should also be recognised that the applicant did give a series of inconsistent answers to the Tribunal, as it recorded, which understandably caused the Tribunal to have concerns about his credibility.
Consideration of contentions
(a) Bias?
42 To establish that the Tribunal was actually biased, it is necessary to show that the decision-maker pre-judged the case against the applicant, or has acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and one which was not open to persuasion in favour of the applicant: per North J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (“Sun Zhan Qui”). See also the observations of Burchett J at 127. It is not sufficient that the decision-maker has formed a preliminary conclusion about an issue. “There will be actual bias only when preliminary views are incapable of alteration”: per Wilcox J in Sun Zhan Qui at 123.
43 Whether actual bias has been shown must be determined in the context of the hearing as a whole, including all the material before the decision-maker. It should also be noted that bias is not synonymous with absence of good faith. A person may in all good faith believe that that person was acting impartially but nevertheless the mind may be affected unconsciously by bias: see Burchett J in Sun Zhan Qui at 127; Lockhart J in Sarbjit Singh v Minister for Immigration and Ethnic Affairs (18 October 1996, unreported).
44 The applicant’s claim is that the Tribunal was biased in the sense that it was determined to decide the application adversely to him following the receipt by the Tribunal (by its Acting Principal Member) of a letter from Amnesty of 1 July 1999. He contends that the hearing conducted by the Tribunal on 23 July 1999 demonstrates that bias. In his initial submissions, the applicant asserted one other reason for the Tribunal being or becoming biased against him. He referred to it during the hearing on 23 July 1999, when challenged by the Tribunal to explain his claim of bias. It related to a submission made by the applicant to the Senate Legal and Constitutional Affairs Committee Inquiry into the Operation of Australia’s Refugee and Humanitarian Program. However, he expressly abandoned that ground or reason for bias on the second occasion this application was heard. I was not persuaded that it provided any grounds for making out bias but, in the circumstances, it is not necessary to explain that view.
45 The reason for the bias was the content of the Amnesty letter of 1 July 1999. It was written to the Acting Principal Member of the Tribunal. It raised serious concerns at recent comments made by members of the Tribunal regarding Amnesty’s submissions on behalf of individual asylum seekers. There were three particular instances identified. The third concerned the applicant. Reference was made to comments of the Tribunal at the examination which took place on 4 June 1999 after receipt of the letter from Amnesty International signed by Mr Hogan dated 2 June 1999. The tribunal member constituting the Tribunal on that occasion made comments suggesting that the contents of the letter were “an extraordinary use of Amnesty’s reputation and their time, money and energy”, that the views could not possibly carry any weight because Mr Hogan’s opinion was not an opinion from Amnesty and that making an opinion on an individual was “exceptional” and “does nothing for Amnesty’s reputation”. The tribunal member said that letter was a waste of Amnesty’s funds, and could carry no weight. He said he was not “particularly interested in Mr Hogan’s view of the applicant, as Mr Hogan had not met him”. Amnesty complained that those sort of comments were reflective of a hostility to any submission made by Amnesty in respect of individual cases, and complained about that, particularly as Amnesty information and publications were used by the Tribunal from time to time.
46 I have listened carefully to the recording of the examination conducted on 23 July 1999. I have also considered in detail the transcript of the examination of that day. The applicant in his submissions refers generally to that transcript, but not to any particular part of it although I was directed to a number of pages of the transcript as illustrating his concerns. He said the manner of the questioning, the cutting off of his answers, the aggression in tone, and the failure to listen, all indicate that the Tribunal by then simply decided to reject his application. He said that is confirmed by what appears to be the quite unreasonable findings of the Tribunal.
47 The interviews on 12 March 1999 and 4 June 1999 disclose that the Tribunal sought, in an appropriate way, to identify the applicant’s concerns and the facts relating to them. In the course of those interviews, the Tribunal came to focus to a large extent on why the applicant had not applied for a protection visa earlier. The applicant did give inconsistent answers to questions on that topic, and on occasions was asked questions which indicated some scepticism of an answer already given. It is not inappropriate for the Tribunal to indicate, in an appropriate way, that a particular answer or answers seem unlikely or implausible so as to invite an applicant to respond to that perception. A visa applicant may well provide an insight into the circumstances which removes the initial concern about the accuracy of the answer, or which puts the answer into a context which was not previously understood.
48 There are a few occasions during those two initial interviews when the content or tone of the question reveals that the Tribunal doubts the accuracy of the answer being given. One such occasion was when the applicant was endeavouring to explain why his political profile was great enough to attract attention but not so great that, like the BNP leaders, publicity would ensure that he was treated according to law. They do not, in my judgment, demonstrate bias on the part of the Tribunal.
49 The third interview was a more argumentative one. The Tribunal focussed on why the visa application had not been made earlier. It is apparent that the Tribunal had not been persuaded by the applicant’s earlier answers. The explanation about the personal relationship was firmly challenged because (it was put) it could not provide a means to a visa to stay in Australia in any event in the particular circumstances. The Tribunal insisted on its questions being directly answered. The tendency of the applicant to answer questions by referring to answers given on earlier occasions was curbed by frequent interruptions by the Tribunal, insisting that the questions be directly answered. The exchanges were quite vigorous. The Tribunal was aggressive in its questions, and at times even somewhat hectoring. It may well be that the applicant was endeavouring to directly answer questions, but in his own way and perhaps somewhat more discursively than the Tribunal was prepared to accommodate. Towards the end of the interview, the applicant expressed his concerns that the Tribunal was biased and that he was not getting a fair hearing.
50 It is not necessary to comment upon the form, content and manner of the questioning beyond my conclusion that, notwithstanding the applicant’s concerns, I do not consider that it has been shown that the Tribunal was biased. I do not consider the interviews, in particular the interview of 23 July 1999, do show that the Tribunal was simply not prepared to accept anything the applicant may have said about why the visa application was made only in January 1999. The course of the interviews reveals that the Tribunal either had not appreciated, or had rejected, the claim that the applicant did not want a protection visa until he was faced with what he otherwise believed was inevitable return to Bangladesh. As I have observed earlier in these reasons, that may have been brought about by the other conflicting reasons proffered by the applicant. Even if that amounted to a flaw in the Tribunal’s reasoning process, in my view it does not demonstrate bias on its part. At worst, it shows an erroneous understanding of the claim and the reasons for it. It is consistent with that view of the Tribunal’s reasoning that the Tribunal should have become more focussed upon the issue as to why the visa application was so late to ensure that it understood what the applicant wished to say. It is also consistent with that view of the Tribunal’s reasoning process that it became somewhat exasperated at his inconsistent responses. Nevertheless, in my judgment, the process undertaken by the Tribunal was not one where its mind was closed to whatever the applicant presented. Although I can understand his belief that the letter from Amnesty of 1 July 1999 might be a circumstance which led to the Tribunal to close its mind to the proper consideration of his claim, I do not consider that it did so.
(b) Errors of law?
51 The errors of law alleged are set out in par 8 above. I shall address them in turn.
52 The existence of a genuine fear of persecution on the part of the applicant if he returned to Bangladesh is one element of the Tribunal being satisfied that he has a well-founded fear of being persecuted for a Convention reason: Chan; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”). The Tribunal addressed that question. It had regard to the evidence. As its reasons show, it did not regard the applicant as having a sufficient political profile to attract the attention of the Awami League should he return to Bangladesh, notwithstanding his earlier activities. It apparently regarded the threat made in November 1996 as relatively idle, or too long ago. It placed very considerable weight on the perceived delay in the applicant seeking a protection visa in reaching its conclusion. I have indicated earlier in these reasons that there is another view of the timing of that application which would not carry the significance which the Tribunal attributed to it. There are also many factors which could point to the conclusion that the applicant should have succeeded on his application. However, this application is not a review of the Tribunal’s decision on the merits. The critical finding of the Tribunal noted above was one which was available to it. I do not consider that any error of law has been shown, or must necessarily exist, in the Tribunal reaching that finding.
53 The suggestion that the production of the applicant’s passport might enable prompt and favourable resolution of his claim was made at the interview on 4 June 1999. It was a conditional suggestion only. The Tribunal did not say that production of the passport would resolve the application favourably to the applicant. I do not think that any error of law is shown in respect of that matter.
54 I also do not consider any error of law is shown in the use, or rejection, of the Amnesty letter of 2 June 1999. In fact the Tribunal did place some weight upon its contents, despite the firm views expressed at the interview on 4 June 1999. It is for the Tribunal to determine what weight is given to any particular piece of evidence, although as I have indicated above, I consider that the Tribunal perhaps should have given more weight to that evidence than it was disposed to do. However, that matter does not give rise to an error of law within the scope of s 476(1)(e) of the Act, and on matters such as this the Court is restricted to the grounds specified in s 476 in reviewing a decision of the Tribunal. In Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 Brennan J said:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
55 It was put by the applicant that the Tribunal had misapplied the “real chance” test as explained in Chan and Guo, and had determined adversely to his claim on the balance of probability. The applicant referred to the finding of the Tribunal that it was not satisfied that, by reason of the threats made in November 1996, he “is at risk of harm” (my emphasis) should he return to Bangladesh. At two other points in its reasons the Tribunal expressed its findings in terms that certain factors would not place him at risk. Those two passages are referred to in par 35 of these reasons.
56 The reasons of the Tribunal are not to be examined in an overcritical way, with an “eye keenly attuned to the perception of error”: Wu at 274. Whilst it may be possible on one reading of those passages to conclude that the Tribunal has not applied the correct legal test to determine whether the applicant has a well-founded fear of persecution for a Convention reason, they must be read in the context of the whole of the Tribunal’s reasons. In its reasons generally, it is clear that the Tribunal has correctly apprehended and applied the correct legal test. Its reasons evidence a number of instances when it has done so, including in relation to the particular topics under consideration when it made the comments referred to. I am also not persuaded that the particular passages necessarily demonstrate error on its part in any event. In each instance, it is also a fair reading of the expressions that the Tribunal was saying that there is no real risk of harm to which the applicant may be exposed in the future by reason of the particular matter then under consideration. I am not of the view that the Tribunal failed to adopt the correct approach to determination of the applicant’s claim.
57 The Tribunal did not expressly step back, at the end of its deliberations, and ask ‘What if I am wrong?’. It is not routinely necessary that it should explicitly do so. It accepted some, but not all, of what the applicant asserted, including his claims about his past political and journalistic activities, and including the making of the threats in November 1996. Its conclusion, despite those findings, was based upon its assessment of the applicant’s credibility, that is his claim that he had a genuine subjective fear of persecution were he to return to Bangladesh.
58 The Full Court (Sackville, North and Kenny JJ) in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 discussed at length the rationale for the question ‘What if I am wrong?’ sometimes being appropriate to be considered by the Tribunal. Those views are also consistent with the Full Court (Hill, Whitlam and Kiefel JJ) in X v Minister for Immigration and Multicultural Affairs [1999] FCA 697. There will be cases where, despite the Tribunal’s findings adverse to an applicant’s claims concerning that applicant’s claims, the Tribunal should consider the possibility that those findings are wrong, if to do so would foreclose “reasonable speculation” upon the chances of persecution emerging from the matter as a whole. There may also be cases, as the Full Court pointed out, where the Tribunal has found that alleged past events have not occurred, but the Tribunal should step back to see if the chance that they might have occurred could provide a rational foundation for the finding that a visa applicant has a well-founded fear of persecution. The Full Court also pointed out that if the Tribunal has no real doubt about its findings, it is not bound to consider whether those findings are wrong.
59 The Tribunal in this matter accepted many of the applicant’s claims about past events. It did not accept his evidence about learning secrets concerning the Awami League and disclosing them, as a reason why the Awami League might now attack him upon his return to Bangladesh. It also did not accept that his political activities in Denmark were of sufficient moment as to cause the Awami League to do so. It disclosed no hesitancy in reaching those conclusions. Those findings were not such, in my judgment, as to require the Tribunal to consider in the overall context that its conclusions may lead to a failure to apply correctly the principles for determining whether the applicant has a “well-founded fear of being persecuted” for a Convention reason. Ultimately, the Tribunal’s conclusion was reached because, in the light of the applicant’s past history and experiences, the Tribunal was not satisfied that the applicant had a genuine fear of persecution.
60 In my judgment, the applicant has not shown any reviewable legal error on the part of the Tribunal in the way it reached its conclusions.
(c) Adequacy of reasons
61 The Court has decided that the obligation to comply with s 430 which lies on the Tribunal is a procedure required by the Act to be observed in connection with the making of the decision so that s 476 (1)(a) provides a ground of judicial review if it is not observed: Muralidharan v Minister for Immigration and Multicultural Affairs (1996) 62 FCR 402; Han v Minister for Immigration and Multicultural Affairs [1999] FCA 376 and the cases there discussed.
62 I have dealt with each of the particular matters which the applicant contends have not been properly or adequately explained by its reasons when discussing the errors of law which he alleges. In my judgment, the Tribunal’s reasons are sufficient to satisfy the requirements of s 430. It has provided its decision, its reasons, and its findings on material questions of fact. It also refers to the evidence upon which those findings of fact were based, and discusses at some length why the other evidence which the applicant adduced did not lead to his application being allowed. In particular, it has exposed its reasons for concluding that the applicant’s claim that he genuinely fears persecution for a Convention reason if he were returned to Bangladesh was rejected. It is not to the point that, as the applicant contends, those reasons may not be persuasive or may be founded upon a misconceived understanding of the reasons for his claim. To embark upon that course would be to stray into the forbidden territory of a merits review: see eg. Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at 589. It should be added that the simple way in which the applicant now presents his claim, and the reasons for it and for its timing, was not presented to the Tribunal as lucidly. Before the Tribunal, as the Tribunal found, his reasons for seeking protection and for the timing of the application were more extensive and varied.
63 In my judgment this ground of review is not made out.
Conclusion
64 The conclusion that I have reached is that the application for review should be dismissed.
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I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. |
Associate:
Dated: 2 December 1999
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Applicant appears in person |
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Counsel for the Respondent: |
Ms S McNaughton |
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Solicitors for the Respondent: |
Australian Government Solicitor |
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Dates of Hearing: |
28 October & 24 November 1999 |
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Date of Judgment: |
2 December 1999 |
