FEDERAL COURT OF AUSTRALIA

SZBAE v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 965

MIGRATION –– holding a preliminary view about a matter does not amount to bias – alleged failure to comply with s 424A of the Act – information falls within the exception in s 424A(3)(a)

Migration Act 1958 (Cth)ss 474, 424

Muin v Refugee Review Tribunal (2002) 190 ALR 601

NADR v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 465

NARU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 864

Plaintiff S517 of 2002 v The Commonwealth of Australia (2003) 211 CLR 476

SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74

VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186

VHAP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82

VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134

SZBAE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N612 OF 2004

BENNETT J

20 JULY 2004

SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed
2. The appellant is to pay the respondent’s costs

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an appeal from the judgment of Federal Magistrate Barnes given on 7 April 2004.  Her Honour dismissed an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 1 July 2003.  The Tribunal affirmed a decision of the Delegate of the respondent (‘the Delegate’) to refuse to grant the appellant a protection visa.

2                     The Notice of Appeal, as was the case with the application to the court below, contains generic material with no specific relevance to the circumstances of this matter.  In the Notice of Appeal, the appellant asserts that the Federal Magistrate’s decision is affected by jurisdictional error and procedural unfairness.  No particulars or bases for the appellant’s claims are provided. In the remaining grounds of appeal the appellant:

(a)        Cites decisions of the High Court (Plaintiff S517 of 2002 v The Commonwealth of Australia (2003) 211 CLR 476, Muin v Refugee Review Tribunal (2002) 190 ALR 601) (‘Muin’) and of this Court (SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74, at first instance) without more explanation.

(b)        Asserts that s 474 of the Migration Act 1958 (‘the Act’) is ineffective.

(c)        Asserts that the “trial judge” erred in not considering certain factual matters such as “the real state of affairs”, the appellant's fear of harm, the failure on the part of the present government of Bangladesh to protect politicians and the violation of human rights if the appellant returns to his country of origin.

            THE FACTS

3                     The appellant is a citizen of Bangladesh who arrived in Australia on 10 March 2002 and lodged an application for a protection visa (class XA) on 23 April 2002.  The appellant claims that he was a member of the Jatiyo Party (‘JP’) in Bangladesh and that he has been persecuted by followers of the Bangladeshi Nationalist Party (‘BNP’) on that account.  In particular, he claims he was severely beaten by members of that Party in December 1993 and March 1994.

4                     On 27 June 2002, the Delegate made a decision refusing to grant the appellant a protection visa. On 5 August 2002, the appellant applied to the Tribunal for a review of that decision.  The Tribunal invited the appellant to attend the hearing on 7 May 2003, to give evidence and present arguments in support of his claims. The appellant attended the hearing on that date.  The Tribunal handed down its decision on 1 July 2003.

THE TRIBUNAL’S DECISION

5                     The Tribunal did not accept that the appellant was or ever had been a member of JP or of the student wing of JP, the Jatiyo Jubo Sangati (‘JCS’). Accordingly, the Tribunal did not accept that he was the subject of persecution in Bangladesh as a result of his political activities. 

6                     The two primary reasons why the Tribunal did not accept the appellant's membership of JP were, first, that at hearing the appellant only gave vague and generalised information about his political activities and, second, that he was unable to explain his understanding of the JP agenda, policies or manifesto.  The Tribunal found that the applicant's evidence in relation to most aspects of his claim was vague and generalised, lacked specific detail and was implausible.  It did not consider him a reliable or credible witness.  The Tribunal expressed the view that the knowledge that he showed of the JP was not the knowledge that even a general member of the political organisation would have, let alone a claimed student leader and organiser of some standing and duration.

7                     The Tribunal found support for its findings in the independent country information and in the fact that the appellant had left Bangladesh to live in Saudi Arabia in 1994 and had only returned in December 2001.  The Tribunal found it implausible that local BNP supporters would have had any adverse interest in the appellant after such a lapse of time in those circumstances.  The appellant failed before the Tribunal because his claims were not believed.  There was no evidence to substantiate the allegations in his application.

THE FEDERAL MAGISTRATE’S DECISION

8                     The Federal Magistrate found that there was no breach of s 424A(1) of the Actor of the requirements of natural justice.

9                     The appellant raised a number of general and unparticularised grounds in his application and written submissions to the Federal Magistrates Court.  Some of these grounds concerned Tribunal decisions unrelated to the applicant.  Others, such as the failure to take into account the court case against the appellant and the ignoring of claims were broad and clearly hopeless. 

10                  Barnes FM observed that the Tribunal did not accept that the appellant was ever a member of the JP and JCS and that the Tribunal did address but was not able to accept the appellant’s claims that there were false legal cases brought against him or that he was forced to escape Bangladesh for his safety.  Her Honour found that the Tribunal did not ignore the appellant's claims in this or any other respect and that it properly considered the appellant's claims in light, not only of the material before it from the appellant, but also country information.  Accordingly, her Honour observed, the Tribunal did not accept the credibility or veracity of the appellant’s claim.

11                  The only matters of any substance that were raised before her Honour were in respect of procedure.  The first of these raised, as does the Notice of Appeal in the current proceedings, the decision of the High Court in Muin.  Her Honour found that the necessary factual matrix for that ground was neither agreed nor otherwise proven.  There was, apart from the court book, no evidence of this claim put to the court.  The material in the court book did not establish or suggest that the appellant was misled in any way, nor that the Tribunal had failed to consider the material before the Delegate, nor that the appellant would have done anything in particular.

12                  The second of the procedural grounds was an allegation that the Tribunal did not provide the appellant with particulars of information which formed part of the decision namely, that:

‘Persecution against the political activists of Bangladesh had subsided.’

That allegation does not form part of the Notice of Appeal before me although it may have been raised broadly by reference in the appellant's submissions to s 424A of the Act. 

13                  The Federal Magistrate considered this ground on two bases: whether there was a breach of s 424A(1) and whether there was a denial of procedural fairness and found that neither was established.  First, her Honour found that the information came within s 424A(3)(a) of the Act and so there was no obligation on the part of the Tribunal to comply with s 424A(1) in respect of that information.  Secondly, the information was not new, the appellant was aware of it and it was also brought to his attention by the Delegate.  For those reasons her Honour concluded that there was no breach of natural justice and that it was unnecessary to consider the effect of s 422B of the Act.  Her Honour also rejected the claims of actual bias and bad faith as unparticularised and unsupported by the evidence. 

Consideration

Alleged bias

14                  In his written submissions the appellant raises a number of matters not addressed in the Notice of Appeal although the appellant did add, ‘I will file more grounds later’.  The appellant submits that the decision of the Tribunal was induced or affected by actual bias.  The particulars are:

‘On the evidence as a whole, the findings of the Tribunal member as to the following matters demonstrated actual bias.’

Apart from making unparticularised assertions, such as the decision-maker ‘acted in bad faith’ and ‘got the facts wrong’, nothing is put forward that could be said to support these assertions.  There is nothing before me as to the conduct of the hearing, other than the decision of the Tribunal.  There is nothing to suggest a closed mind on the part of the Tribunal.  In order to establish a closed mind, it is necessary to show a basis for it.

15                  Mr Smith who appears for the respondent, points out that it is apparent from the history of the matter that a preliminary view may have been formed by the Tribunal and such a view indicated to the appellant by letter.  However, following the formation of that view, the appellant was invited to attend a hearing, which he did.  The Tribunal then gave reasons which, in my opinion, were clearly based on the matters raised at the hearing.  There is nothing to suggest that the Tribunal was not open to be convinced by the appellant or that it had a closed mind or that it was not open to persuasion to change the view that it had formed on a preliminary basis.

16                  The Federal Magistrate found that the claims of bad faith and actual bias in the sense of pre-judgment or apprehended bias were not made out on the material before the court.  I can see no error in this conclusion. 

Muin

17                  The appellant’s submissions refer to the High Court’s decision in Muin. This case was also raised in the Federal Magistrate Court proceedings.  The Federal Magistrate was clearly correct to reject the argument based on Muin, as the question of whether there is a denial of procedural fairness must be determined by an examination of all the circumstances of each case, not simply by an allegation that the factual circumstances of one matter are similar to those in other matters (NARU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 864 at [30]; NADR v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 465 at 471).

18                  The agreed facts in Muin went a long way towards the determination of that matter and none of the relevant factual bases for that decision was agreed or established in the court below.  There must be some evidence to establish a denial of procedural fairness.  Here there is none.

Section 424A of the Act and procedural fairness

19                  The only other substantial ground of appeal, that is the assertion that the Tribunal failed to comply with s 424A of the Act and failed to accord him procedural fairness, gives rise to the same problem for the appellant.  It was never established that the Tribunal failed to give the appellant the opportunity to address any specific information or information in general.  As to the allegation of denial of procedural fairness, to the extent that it is said to go beyond the question of compliance with s 424A, no particulars are given nor is there any basis provided for the assertion.  To the extent that the appellant asserts that the Tribunal ignored or failed to consider his claims, no particulars are given, nor any claim referred to.  None is apparent.

20                  Federal Magistrates Barnes found that:

‘The Tribunal did not ignore the applicant's claims in this or any other respect.’

No error has been established on the part of the Federal Magistrate in coming to this conclusion. 

21                  The appellant also relies upon the failure to observe s 424A of the Act (‘the applicant must be given certain information’) and he refers generally to country information.  Although the written submissions provide detailed legal analysis, I was not referred to any specific instance of alleged procedural unfairness nor to any document which ought to have been provided by the Tribunal to the appellant.

22                  The appellant sets out in his submissions country information about Bangladesh from the United States Department Country Reports on Human Rights Practices  for 2002 released in March 2003 (‘the report’) but he does not explain its relevance to this appeal. The report is not included in the documents which were cited in the decision of the Tribunal.  In the hearing before me the appellant confirmed that, to his knowledge, the report was not before the Tribunal. 

23                  The Tribunal referred to country information which it said supported its decision.  The country information was of a general character, relating to the current political situation in Bangladesh and the general role of the JP in Government.  Further, as noted by Barnes FM, the changes of Government and the then current political situation in Bangladesh were matters referred to by the appellant, who was clearly aware of them.  They were also matters that were specifically brought to the attention of the appellant by the Delegate, both in correspondence and in his decision.  In the words of Gyles and Conti JJ in VHAP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 (‘VHAP’) at [17], the information related to issues:

‘which were clearly on the table to be addressed.’

24                  By reason of s 424A(3)(a) of the Act, the Tribunal is not required to give the appellant country information which is not specifically about the appellant and is “just about” a class of which the appellant was a member.  In VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186, Kenny J observed at [46] that the expression “just about” signifies information concerning “no more than” a class of persons of which the applicant or another person is a member (see also Moore J, who was in dissent but not on this point, at [28] and [29]).  Information is “just about” a class of persons if it is relevant to the Tribunal's decision only because it is about this class of persons (Kenny J at [55]), or, as put by Downes J at [72]:

‘It does not matter how broad the information is so long as it relates only to the class.’

25                  As was the case in VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 (‘VNAA’) at [22], the country information in the present case was relevant to the Tribunal's decision making processes only because the appellant was a member of a class of persons who, he claimed, share an attribute which gives rise to a well founded fear of persecution. The information can only be characterised as “just about” that class.  As in VNAA, the information in the present case was only indirectly adverse to the appellant and general in nature.  There was no information specifically related to him and therefore no information that had to be put to him within the scheme of that section.  I also note that there was no evidence of what took place before the Tribunal.  Therefore, her Honour could not, as I cannot, make a finding that the Tribunal failed to put to the appellant any specific information. However, it is clear that the Department did put to the appellant country information covering the subject matter to which both the Delegate and the Tribunal referred. 

26                  There is no particularisation of claimed non-compliance with procedures said to amount to a denial of natural justice.  Her Honour found none apparent in the material before her and there is none apparent to me.  Further, the general country information relied upon could be described as part of the store of experience and knowledge about the country in question against which to assess the claims of the appellant, as discussed by Allsop J in VHAP at [28] to [29].  As in that case, I do not see how fairness requires provision of it, even if it had not been provided by or referred to by the Delegate. It is information that is clearly within s 424A(3)(a) of the Act.

27                  The Tribunal also expressed the opinion that the appellant fabricated his claim and said that it was supported in this opinion by country information which referred to a particularly active market for fabricated documents to support asylum applications.  This was an interesting observation on the part of the Tribunal because there were no documents to which such a comment could attach.  However, that opinion was not necessary to the decision of the Tribunal or to the conclusion that the appellant was not a member of the JCS or JP in Bangladesh.  Further, as noted by the Federal Magistrate, the appellant makes no claim that particular information was not brought to his attention or that he would have conducted his case differently had it been.

conclusion

28                  To the extent that the Notice of Appeal raises factual matters, they are answered by the Tribunal's finding of fact based upon the credibility of the appellant.  The appellant failed before the Tribunal because his claims were not believed. Federal Magistrate Barnes concluded that the general country information that was complained about by the appellant was within the exception of s 424A(3)(a).  I agree with that conclusion.  I also agree with her conclusion that there was no denial of natural justice. For these reasons the appeal should be dismissed.

29                  The order of the court is that the appeal is dismissed and that the appellant is to pay the respondent's costs. 

Associate:

Dated:              9 August 2004