FEDERAL COURT OF AUSTRALIA

SZDPF v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 235

MIGRATION – judicial review – whether Tribunal made such errors of fact that it must be taken to have misconceived its function – whether Tribunal acted unreasonably in concluding that the appellant’s failure to produce corroborative evidence cast doubt on the claims

Migration Act 1958 (Cth) ss 36, 65, 424A, 425

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 660 cited

SZDPF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 35 of 2005

SACKVILLE J

SYDNEY

14 MARCH 2005

ON APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

1.                  Leave to file the amended notice of appeal be refused.

2.                  The appeal be dismissed.

3.                  The appellant pay the respondent’s costs.

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

ON APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of the Federal Magistrates Court: SZDPF v Minister for Immigration [2004] FMCA 1057.  The learned Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (RRT) handed down on 27 April 2004.  The RRT had affirmed a decision by a delegate of the respondent (‘the Minister’) not to grant the appellant a protection visa. 

the background

2                     The appellant is a citizen of Bangladesh, born on 1 April 1969.  He arrived in Australia from Brunei on 10 July 2002 and was admitted on a temporary business visa granted in Brunei on 28 June 2002.

3                     On 16 August 2002, the appellant lodged an application for a protection visa.  The delegate made a decision on 29 November 2002 refusing to grant the application. 

4                     The appellant sought review of the delegate’s decision in the RRT.  On 10 July 2003, the RRT wrote to the appellant inviting him to attend a hearing to give oral evidence and present arguments in support of his claims.  On 25 August 2003, the RRT received an letter from the appellant’s migration agent.  The letter enclosed an undated letter, which purported to be from the president of the Mymensingh District Branch of the Bangladesh Awami League. This letter certified that the appellant ‘was a reputed leader of the district Awami League committee’, that he had undergone ‘enormous political sufferings at the hands of the previous BNP government’ and that his life would not be safe in Bangladesh.

5                     On 26 August 2003, one day before the scheduled hearing, a migration agent made a written submission on behalf of the appellant to the RRT. 

6                     At the hearing on 27 August 2003, the appellant appeared and gave evidence to the RRT through an interpreter.  The appellant was assisted at the hearing by a migration agent.

7                     The appellant claimed to have a well-founded fear of persecution in Bangladesh by reason of his political opinion, in particular his support for the Awami League.  In summary, his claims were as follows:

(i)                  After finishing high school in 1986, the appellant was admitted to Bhaluka Degree College, where he became active in the student wing of the Awami League and was elected vice-president of the College branch.  He had been motivated to become involved in politics because his father had been a freedom fighter.

(ii)                The appellant was expelled from the College because of conflict between his organisation and the rival BNP student wing.  After leaving the College the appellant continued his political activities.  In March 1991, he was arrested on false charges and jailed for some months.  However, the case against him was ultimately dismissed.

(iii)               In 1992, the appellant was elected joint secretary of a local branch of the Awami League. 

(iv)              Between 1989 and 1996 he was attacked a number of times by BNP hoodlums. 

(v)                In June 1996, the appellant assisted Awami League candidates in the election, collecting donations and supplying unions with materials. 

(vi)              In 1997, the appellant was elected an executive member of the Mymensingh District Branch of the Awami League. 

(vii)             In 2001, the BNP won a landslide victory in the elections.  Thereafter the government oppressed the Awami League and their supporters. 

(viii)           On 10 October 2001, a group of BNP hoodlums ransacked the appellant’s house, asked after his whereabouts and beat his father and two brothers.  The appellant was told by his family not to return home because it was not safe to do so.  He was also told that ‘many cases had been lodged against him’.

the rrt’s REASONS

8                     The RRT set out the appellant’s claims and referred to additional evidence, including the letter from the president of the Mymensingh District Branch.  The RRT summarised the oral evidence given by the appellant.  In the course of this summary, the RRT noted what it said were a number of inconsistencies in the appellant’s account. 

9                     The RRT recorded that it had asked the appellant whether he had any evidence corroborating his attendance at the College, the party office he held there or his expulsion.  The appellant’s response was that he had some evidence but it was not immediately available.  The RRT had also asked whether the appellant had any evidence to corroborate the charges he said had been made against him in 1991 and in 2001.  Again, the appellant responded that he had some evidence but it was not readily available.  The same response was given when the RRT had asked whether the appellant had any corroborative evidence of the incident at his home that was said to have occurred some months after he had left Bangladesh for Brunei. 

10                  The RRT noted that it had reminded the appellant that one of the reasons given by the delegate for refusing the appellant a protection visa was the absence of any corroborative evidence.  The RRT member had said to the appellant that he must have been aware that the same issue would be raised by the RRT.  The RRT observed that for the appellant to say that he had evidence, but that it was not yet available, cast doubt on the existence of the facts he had asserted.

11                  After recounting the agent’s submissions and setting out country information relating to Bangladesh, the RRT set out its findings and reasons.  The RRT considered the appellant’s application on the basis that he claimed to fear persecution in Bangladesh by reason of his political opinion, specifically by reason of his activities with the Awami League.

12                  The RRT commenced its discussion of the appellant’s claims as follows:

‘From the differences between his protection visa application, the statements made, the statutory declaration and the changes during his verbal evidence, the [RRT] finds the [appellant] not a credible witness.  [It] has weighed his evidence accordingly.’

13                  The RRT observed that the appellant had been put on notice by the decision of the delegate in November 2002 of the weaknesses in his claims, including the absence of supporting material and key details.  According to the RRT, the only additional information provided by the appellant specific to him had been the letter forwarded by his agent to the RRT on 25 August 2003.  The RRT continued as follows:

‘In his oral evidence … the [appellant] claimed to have supporting evidence but did not have it with him at the time.  He did not ask for more time to produce nor did the [RRT] offer such.  The hearing was in August, the date of this decision is, regrettably, nearly a year later.  Had the [appellant] had such supporting material he has had ample time since to provide it.

As he had more than ample time to produce it for the hearing, the [RRT] does not accept that any such evidence exists, which conclusion leads the [RRT] to question whether or not the experience of events asserted, ever existed.’

14                  The RRT accepted that the appellant had been politically active in the Awami League since student days in 1986 until his departure from Bangladesh in 2001.  It did not accept, however, that he had formally been a member for that entire period of time. 

15                  The RRT noted that the appellant had provided no supporting evidence to substantiate his claims that he organised demonstrations, liaised with unions over funds and campaigned for parliamentary candidates.  The RRT said that ‘[o]n the evidence before it and having regard to his credibility’ it could not accept his unsupported assertions.

16                  The RRT noted a number of inconsistencies in the appellant’s evidence concerning his activities at the College.  Nonetheless, it accepted that he had attended the College as he claimed from early 1986 until the end of 1987.  However, there was no corroborative evidence to support his claim that he had been vice-president and the RRT rejected that claim.  The RRT said that had the appellant been a vice-president there would have been such documents as copies of minutes of meetings, election results, branch newsletters or other material.  The RRT also rejected the appellant’s claim that he had been expelled from the College.

17                  The RRT rejected the appellant’s claim that he had been arrested and jailed in 1991.  Once again, no corroborative evidence had been produced to the RRT which, according to the independent country information, could reasonably have been expected to be available.  Nor does it appear that the RRT accepted that the appellant had been attacked many times by BNP hoodlums.

18                  The RRT did not accept that the appellant’s home had been ransacked some months after he had left Bangladesh, as he had claimed.  The RRT pointed out that the appellant had not been there and no supporting evidence had been provided to confirm his assertion.  The RRT also rejected the appellant’s claim that there were many charges outstanding against him.  The RRT pointed out that the appellant had signed a statutory declaration, as part of his original application, stating that there were no charges then outstanding against him and that there were no matters under investigation which might lead to such charges.

19                  The RRT concluded as follows:

‘Reviewing the claims and evidence individually … the [RRT] finds that the [appellant] has not had, nor does he have now, a well-founded fear of persecution for reasons of political opinion, or for any other [Convention] reason. 

His political activities in Bangladesh, now increasingly distant in time, were in a distant, rural district of Bangladesh.  The political offices if any he held, were relatively junior and of low profile, namely one of a number of executive committee members of a country district party branch.  Further, as his problems as described related to that district, the [RRT] finds that, notwithstanding his desire not to do so, relocation in his country is reasonable for him.’

Accordingly, the RRT was satisfied that the appellant did not have a well-founded fear of persecution should he return to Bangladesh. 

The magistrates court’s reasons

20                  The Magistrate identified three principal grounds relied on by the appellant (who was represented in the proceedings).  These were as follows:

(i)                  The RRT had erred by failing to put to the appellant that it would draw an adverse inference against him for failing to proffer further corroborative evidence after the hearing and prior to the decision, thereby committing a breach of procedural fairness.

(ii)                The RRT made findings of fact for which there was no evidence.

(iii)               The RRT failed to put adverse material to the appellant as it was required to do.

21                  The Magistrate recorded that the appellant had relied on the decision of the High Court in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 660.  The Magistrate pointed out that the critical feature of NAFF was that the RRT member in that case had promised to write to the applicant about certain inconsistencies in the evidence and to give the applicant time to respond to any questions.  In fact, contrary to the promised procedure, the RRT member did not write to the applicant but proceeded to make an adverse decision without giving him an opportunity to comment further.

22                  The Magistrate considered that NAFF did not assist the present appellant.  The RRT in the present case had not offered the appellant a chance to provide further corroborative evidence.  The RRT had merely put the appellant on notice that he had done nothing in the nine months following the date of the delegate’s decision to provide corroborative material supporting his account.

23                  The Magistrate rejected the appellant’s submission that there was an inconsistency between the country information and the RRT’s reasoning.  In particular, there was nothing inconsistent between the RRT’s comment that the appellant had not produced corroborative evidence and country information suggesting that in Bangladesh arrest warrants are not always provided to defendants.

24                  The Magistrate rejected a further submission that the RRT had failed to comply with the requirements of s 424A of the Migration Act 1958 (Cth).  Nor had there been any failure to comply with s 425.

25                  Finally, the Magistrate rejected a submission by the appellant that the RRT had made such egregious errors of fact that it should be taken to have failed to address the case presented by the appellant.

26                  Accordingly, the Magistrate dismissed the application.

the appeal

27                  The appellant prepared and filed a notice of appeal apparently without the assistance of a lawyer.  Not surprisingly, the notice of appeal did not identify any ground upon which it could be reasonably argued that the Magistrate had erred.

28                  In due course the appellant filed written submissions prepared on his behalf by Mr Azzi of counsel.  The submissions attached an amended notice of appeal that Mr Azzi sought leave to file at the commencement of the hearing.  The six grounds pressed by Mr Azzi, using his numbering, were as follows:

     ‘1.   His Honour erred in law when concluding that it was on the basis of lack of corroborative evidence that the Tribunal affirmed the Decision of the Delegate.

2.      His Honour erred in law in not finding the Tribunal’s decision was infected with factual errors that, cumulatively, demonstrate the Tribunal failed to either properly appreciate the appellant’s claim and/or discharge the Tribunal’s task.

3.      …

4.      The Tribunal came to its state of satisfaction unreasonably, illogically and irrationally in a manner and in respects which require the Court to conclude that there was no relevant absence of satisfaction for the purposes of ss 36 and 65 of the Migration Act 1958 (Cth) according to law.

5.      The Tribunal did not act judicially in dispensing its obligations under the Migration Act.

6.      The Tribunal acted unreasonably in holding a positive state of disbelief about the appellant’s assertion that he was a high-ranking member of the Awami League.

7.      The Tribunal misconceived the role of the hearing and failed to afford a hearing of the character contemplated by the Migration Act.’

29                  Mr Beech-Jones objected to leave being granted.  He did so on the basis that it was impossible (so he argued) to correlate the grounds with the written submissions filed on the appellant’s behalf.  Accordingly, it was impossible to ascertain which grounds had been argued at trial and which were new.  In any event, Mr Beech-Jones contended, none of the grounds had any substance.  In these circumstances, I invited Mr Azzi to address the substance of the written submissions so that I would have the benefit of full argument before deciding whether or not to grant leave.

reasoning

30                  Mr Azzi’s attempts to correlate the written submissions to the grounds in the amended notice of appeal made it clear that the grounds overlapped and that the written submissions did not necessarily relate to any particular grounds.  As I followed the appellant’s argument, Mr Azzi made three substantive points:

(i)                  The RRT had made such egregious errors in assessing the facts that it must be taken to have misconceived its function.  In particular, it had incorrectly found inconsistencies between the statutory declaration signed by the appellant and the appellant’s later evidence.

(ii)                The RRT had acted unreasonably in concluding that the appellant’s failure to produce corroborative evidence cast doubt on his claims.  According to Mr Azzi, the delegate had only referred to the lack of corroboration in passing and insufficient time had passed for the appellant to gather additional material.  The RRT should have given the appellant a further opportunity after the hearing to bring forward corroborative evidence.

(iii)               The RRT paid insufficient attention to the letter from the appellant’s migration agent, received by the RRT on 25 August 2003.

31                  Mr Azzi submitted that the Magistrate had erred by failing to find that the RRT had committed jurisdictional errors on these grounds.

32                  The appellant’s criticisms of the RRT’s reasons in essence involve an attack on the merits of the RRT’s findings of fact.  It perhaps can be accepted that egregious errors of fact by a decision-maker might, in some circumstances, justify a conclusion that the decision-maker had misconceived his or her task under the relevant statute.  But in this case there were clear inconsistencies between statements made in the appellant’s statutory declaration and his subsequent claims.  It was a matter for the RRT to assess whether the appellant’s explanation for the inconsistencies was convincing.  In finding that the appellant’s explanations were unconvincing and that he was not a credible witness, the RRT committed no legal error, let alone a jurisdictional error.

33                  Nor was there any error in the way in which the RRT addressed the absence of corroborative evidence.  The delegate had rejected the appellant’s principal factual claims because:

‘[a]lthough [the appellant] has had the assistance of a migration agent in preparing his application, his statement is uncorroborated and much of the information he has provided is broad, vague and lacking in … detail’.

The delegate went on to identify specific claims that lacked supporting evidence.  The RRT was merely pointing out that the appellant had been alerted, nine months before the RRT hearing, to the difficulty that his claims lacked corroborative evidence.  It was open to the RRT to take into account the appellant’s apparent inability at the hearing to back up his claims with documentary or other evidence.  The appellant was assisted by a migration agent and had been told by the delegate that his claims were difficult to accept without corroboration.  The suggestion that the RRT acted unreasonably in finding that the appellant had had sufficient time to produce any corroborative evidence at the hearing is unsustainable.

34                  I accept Mr Beech-Jones’ submission that there was no occasion for the RRT to explain its treatment of the letter sent to it by the appellant’s agent.  The RRT’s findings insofar as it maintained that the appellant was an office-bearer of the Awami League were not in substance inconsistent with that letter.  The letter merely certified that the appellant was a ‘reputed leader of the district Awami League Committee’ and asserted, without any supporting detail, that he had ‘undergone enormous political sufferings at the hands of the previous BNP government’.

35                  The RRT accepted that the appellant had been politically active in the Awami League since his student days, although it found that the political offices he held, if any, were ‘relatively junior’ and that he had been one of a number of executive committee members of a country district party branch.  The RRT, however, rejected the appellant’s specific claims that he had been subjected to false charges and particular kinds of mistreatment.  The letter said nothing about these specific claims.

36                  I raised with Mr Beech-Jones one issue which Mr Azzi did not expressly address.  A passage cited earlier from the RRT’s reasons ([13] above), might be read as critical of the appellant’s failure to produce evidence after the hearing, even though he was never invited to submit further material.  However, as Mr Beech-Jones contended, the next sentence in the RRT’s reasons makes it clear enough that the RRT took into account only the failure of the appellant to produce any supporting evidence at the hearing.  In these circumstances, there was no denial of procedural fairness in the course the RRT took.

conclusion

37                  Since the grounds included in the amended notice of appeal lack foundation, I refuse leave to file the amended notice of appeal.  The appeal itself must be dismissed.  The appellant must pay the Minister’s costs.

Associate:

Dated:              14 March 2005