FEDERAL COURT OF AUSTRALIA

SZDKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1203

SZDKK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 132 of 2005

ALLSOP J

9 SEPTEMBER 2005

SYDNEY

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

THE COURT ORDERS THAT:

1. The Refugee Review Tribunal be joined as the second respondent to the proceedings.
2. The appeal be allowed.
3. The respondent pay the appellant’s costs (if any).
4. The orders of the Federal Magistrates Court made on 14 January 2005 be set aside.
5. In lieu thereof it be ordered that:

a.       A writ of certiorari issue to quash the decision of the Tribunal made on 27 June 2004

b.      The Tribunal reconsider the review brought by the appellant of the decision of the delegate of the Minister.

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

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

REASONS FOR JUDGMENT

1                     This is an appeal against orders made by a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) in which a decision of a delegate of the respondent Minister to refuse to grant the appellant a protection visa was affirmed.

2                     The matter was heard by me in the appellate jurisdiction of the Court sitting as a single Judge pursuant to a direction of the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth).

3                     The appellant claimed to fear persecution by reason of his political opinion in Bangladesh.  He claimed to be a member of the Awami League and to fear harm from members of the rival Bangladesh Nationalist Party (BNP).  He claimed that persons associated with the BNP had ransacked his house in October 2001, filed false charges against him in 2003 and visited his house on many occasions in an attempt to kill him.  The claims and evidence were set by the Tribunal on pages 4 to 10 of its reasons.

4                     The appellant’s claims were rejected by reason of the wholesale rejection of his evidence.  Whilst the Tribunal accepted that there had been an incident at his house in October 2001 it found that this incident was unconnected with the appellant or his political beliefs.  In its rejection of the appellant as a credible witness the Tribunal also rejected the authenticity of documentation put forward by the appellant.  The Tribunal concluded that the appellant did not genuinely fear harm in Bangladesh and also noted his delay in leaving Bangladesh despite claiming to fear for his own life, and further delay in applying for a protection visa in Australia.

5                     In the Tribunal’s disbelief of the appellant in relation to most of his evidence it made the following findings:

(a)                that the appellant was evasive and that there were marked inconsistencies between the oral and written evidence and that he exaggerated the nature of an extent of his involvement in the Awami League;

(b)               that he was not actively involved in the Chattra League;

(c)                his documentation purporting to be from the Awami League was not genuine;

(d)               that given the inconsistency between his claim in writing that he was in hiding or on the run from his political opponents for a number of months in 2003 and his oral evidence that he was on the run from 1991 to 1996 and again from October 2001 to May 2003 when he left for Australia the Tribunal was not satisfied that he was in hiding or on the run at any time before he left Bangladesh;

(e)                false cases were not filed against him;

(f)                 his house had not been visited by opponents 50 times and the authorities were not interested in him;

(g)                the incident at his father’s house in October 2001 was not connected with the appellant or his political opinion;

(h)                the appellant was not involved in the Awami League or the 2001 elections in such a way as to attract the attention of political opponents.

6                     In the Federal Magistrates Court the appellant filed an application and amended application.  The application had three grounds none of which on their face revealed any ground of judicial review.  They were set out in [4] of the Federal Magistrates reasons:

1.         The Tribunal was influenced by the country information, which has created problems to understand the applicant’s real state of affair.

2.         The Tribunal judgement was based on DFAT information, which is contradictory, not match with the reality.

3.         The Tribunal have not made any queries in regards to the documents submitted by the applicant.  The Tribunal’s finding was based without any basis which deprived the applicant to receive natural justice.

7                     An amended application was filed which also had three grounds they are as follows:

1.                  The Tribunal asserted that “I do not accept that the document purporting to be form [sic] the Awami League is genuine”  (CB71).  The Tribunal have not made any enquiries or the Tribunal took any measures to find authenticity of the document.  The Tribunal failed to deal with this claim, giving rise to jurisdictional error.

2.                  The Tribunal found (CB at p 73) that the applicant “obtained his passport in October 2000 but he did not leave Bangladesh until May 2003”.  The Tribunal failed to put this point to the applicant and give him an opportunity to comment.  In these circumstances, the Tribunal denied the applicant procedural fairness, giving rise to jurisdictional error.

3.                  The Tribunal finding based on irrelevant issues which raised question that the Tribunal extended its limit of jurisdiction thus fall into jurisdictional error.

8                     At the hearing before the Federal Magistrate the appellant handed up a document apparently signed by a “John Young”.  They were submissions of 10 paragraphs.  The submissions were confined to ground 1 in the amended application.  This was the ground that complained of the failure to give the appellant an opportunity to be heard on the genuineness of the Awami League documentation.  Submissions were put before the Federal Magistrate to the effect that the Tribunal did not raise doubts with the appellant and that the Tribunal should have investigated the matter.  The Federal Magistrate dealt with these submissions.  There was placed before the Federal Magistrate (though it was not marked in evidence) a document which purported to be some form of informal transcript of the hearing before the Tribunal.  The respondent objected to the tender of this document before the Federal Magistrate.  It is unclear what the Federal Magistrate did with the document.  However, he appeared to have had regard to it.  In paragraphs 14 and 15 of his reasons the Federal Magistrate said as follows:

The applicant then relies on the handwritten partial transcript to support these assertions.  This document has four handwritten pages numbered 9 to 12.  From the bottom of page 9 through page 10 to the top of page 11 the text is highlighted with pink marker.  This part starts with a question purportedly from the Tribunal Member:

“Can I ask you about the letter that you got from awame leag?”  [sic:  Awami League]

and ends with presumably the applicant:

“Bcos my advisor advised me if I had any evidence that I was in awame leag I was in Bangladesh would be supportive, that why I got that one.

Clearly this part of the document, amongst other things, does discuss the letter from the Awami League.

However, the applicant’s assertion that the Tribunal did not raise doubts about the letter from the Awami League is, on the applicant’s own “evidence”, factually incorrect.  Immediately following the highlighted portion dealing with the Awami League letter there is a statement which in the “flow” of the document appears to be from the Tribunal that says:

“I’ve to say I’ve got some a real trouble accepting lot of what you said Mr. [s91X of the Migration Act: the document uses the applicant’s name]?  I’m saying why, then you would have chance to say anything you like about what I say.”

Further, and more directly, over the page on page 12 [and not highlighted with pink marker] presumably the Tribunal, is “reported” as saying:

“I’m not entirely sure that this letter has come from Bangladesh from awame leag.  I said it for two reasons.  One is that to get any document from Bangladesh and other no. of countries is very easy to get from.  That doesn’t mean that every document from Bangladesh is false but it does mean that I’ve to look at this very carefully.  And it makes me so specially carefully when I’ve got some real doubt about the rest of what yr saying for the reason.”

[errors in original]

9                     The document was on the Federal Magistrates Court file.  I took the course of marking the document in evidence.

10                  As Mr Reilly said on the appeal the Federal Magistrate was correct to conclude that the material before him did not permit any conclusion to be drawn that there had been a failure to accord procedural fairness in relation the issue of the possible fraudulent nature of the documents.

11                  Whether or not the material before the Federal Magistrate made that proposition out it was certainly sufficient to deny the possibility of an inference, absent other evidence, that the Tribunal had failed to raise the matter with the appellant in a fair way.  It was up to the appellant to display from evidence led before the Federal Magistrate that the matter had not been put to him fairly.  He failed to adduce evidence from which it could be concluded that the Tribunal did not raise the matter squarely with him.

12                  The notice of appeal in this Court had six grounds they were as follows:

1.              A number of errors were occurred by the Tribunal, which was not considered by the Honorable judge.  Particularly, the RRT failed to understand the material fact of the case and it was also not considered by honourable trial judge.

2.              The Tribunal misunderstood the applicant’s claim and the decision by the Tribunal was not reflected the true picture of the claim.  The Honorable judge did not consider this.

3.              The Tribunal did not provide the applicant’s an opportunity to comment on the information, which the Tribunal relied on its decision.  Where the applicant was deprived of receiving natural justice, the honourable judge also did not consider this.

4.              The applicant will face persecution if he returns to his country of origin as there is a significant level of violation human rights.  This was not considered by the honourable judge.

5.              Without any evidentiary proofs the authenticity of the applicant’s submitted documents were considered in negative sense.  The Tribunal made an error jurisdictionally.

6.              The Honorable trial judge was hesitated to consider the legal submission of the case by Mr. Jhon R Young.  It has greatly affected the case and Mr. Young is a counsel of this honourable Court.

13                  The appellant filed no submissions in this Court and made no oral submissions.  He relied on the submissions below, that is, those made by John Young.

14                  Ground 1 of the notice of appeal is not particularised and is not a ground of jurisdictional error.

15                  Ground 2 is not particularised and is not a ground of jurisdictional error.

16                  Ground 3 is a complaint as to procedural fairness.  For the reasons I have expressed above that complaint was not made good in relation to the fraudulent documents.  In relation to the claim in the original application that country information was not put to the appellant s 424A(3)(a) interpreted as it has been by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and VJAF v Mininster for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 country information is within s 424A(3)(a) and so excluded from the operation of s 424A(1).  Further, there has been no evidential foundation for any assertion that any aspect of the rejection by the Tribunal of the appellant was not put to the appellant fairly.

17                  Paragraph 4 is not a ground of jurisdictional error.

18                  Paragraph 5 is not a ground of jurisdictional error.

19                  As to paragraph 6 the learned Federal Magistrate dealt with the submissions of Mr Young and rejected them. 

20                  I see no error in the approach of the learned Federal Magistrate and subject to what I am about to say there is no basis to the appeal.

21                  Once again the issue of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 and Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 needs to be addressed.  I refer to my reasons in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 and in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195. 

22                  In the rejection of the appellant’s evidence the Tribunal on a number of occasions referred to the appellant’s written statement provided to the Department.

23                  The examples of this course were as follows:

(a)      pages 10 and 11 of the reasons:

There were marked inconsistencies between the applicant’s oral and written claims which he was unable satisfactorily to explain.  These principally concerned his claims relating to periods he was in hiding or on the run from his political opponents.  His written statement to the Department refers only to his being on the run for a number of months in 2003.  In oral evidence he claimed to have been on the run from 1993 to 1996 and again from October 2001 until May 2003 when he left for Australia.  His explanation, that he though he would include in his written statement only current events, is at odds with his reference to his arrest in 1984.

I do not accept, if these claims were true, that he would refer to only a short period of time when he was on the run and omit any mention of two lengthy periods, one of them five years, the other some eighteen months.  Moreover, he stated initially in his oral evidence that he lived at the same address until 2003 when he went on the run.  I do not accept that the applicant was in hiding or on the run at any time before he left Bangladesh.

(b)      page 11 of the reasons:

I do not accept that false cases were filed against the applicant in 1991 or at any other time.  The claim that false cases might be filed as a means of politically-motivated harassment is not in itself improbable:  the independent evidence indicates that false cases are frequently laid by Bangladeshi governments against their political opponents.  Nor is it improbable, against this background, that a sympathetic Attorney General might quash such cases on coming to power.  However, I do not accept that happened in the applicant’s case.  He has not provided any evidence to support this assertion.  He has not been able to explain what happened to the charges in the five years they were on foot.  He did not mention in his written statement his oral claim that the police were looking for him including going to his home in 1991 or that he was in hiding for five years because of the charges.

(c)      page 12 of the reasons:

I do not accept his claim that his opponents went to his house “a minium of fifty times”, or at all, in 2003 looking for him.  He did not mention this in his written statement and I do not accept, in any event, that anyone had that level of interest in him, or any interest at all on account of his political activities.  He has not provided any evidence in support of this claim and it was only when pressed about documentation in connection with the charges that he claimed that documentation existed; it might be at home; and that his family was looking for it but could not find it.

24                  A reading of the whole of the decision reveals a number of reasons why the Tribunal rejected the credibility of the appellant.  These reasons were summarised in the first paragraph under the heading “Findings and Reasons”, as follows:

I am not satisfied that the applicant has been truthful in making his claims.  His responses at the oral hearing were often evasive.  The inconsistencies between his oral and his written claims are marked and even his oral evidence was inconsistent.  I find that he has exaggerated the nature and extent of his involvement in the Awami League and what happened to him as a result.  I do not accept that the document purporting to be from the Awami League is genuine.  I find that many of his claims are fabricated and I am not satisfied that those of his claims which I do accept give rise to a well-founded fear of persecution within the meaning of the Convention.

25                  On the three occasions referred to in the extracts above, the Tribunal incorporates in its reasoning process the fact that the earlier statement (the information for s 424A(1)) did not record something that he was giving evidence of.  It cannot be said that the use by the Tribunal here was as marked or as central as the use by the Tribunal of the prior statement in SZECF.  Nevertheless, looking at the way that the Tribunal here has expressed its reasons, I conclude that the use of the information itself is at least a part of the reason for the decision.

26                  Thus, there has been a failure to comply with s 424A.

Associate:

Dated:              9 September 2005