FEDERAL COURT OF AUSTRALIA

SZHZD v Minister for Immigration and Citizenship [2008] FCA 1200

SZHZD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 267 of 2008

STONE J

13 AUGUST 2008

SYDNEY

THE COURT ORDERS THAT:

1.  The appeal be dismissed.

2.  The appellant pay the first respondent's costs of this appeal.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The appellant is a citizen of Bangladesh who arrived in Australia on 29 April 2005.  He now appeals from orders made by Federal Magistrate Barnes on 8 February 2008.  Her Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal dated 17 November 2005.  The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

BACKGROUND AND CLAIMS

2                     The appellant claimed to have been a member of the Bangladesh political party known as the Awami League and to have a well-founded fear of persecution in Bangladesh from members of the rival Bangladesh National Party (BNP).  He claimed to have been “publications secretary” for the League in his local area and to have engaged in some welfare work during floods in 2004.  According to the appellant, he feared that false charges would be laid against him and alleged that members of the police Rapid Action Battalion (RAB) had been ordered to harass him.  He further claimed that members of the RAB had already arrested and killed a friend of his who went by the name of “Sweet”.

3                     The appellant appeared at a hearing before the Tribunal.  After the hearing with the permission of the Tribunal he submitted letters purportedly from the Awami League in support of his claims, as well as other material including a statutory declaration.

THE TRIBUNAL DECISION

4                     The Tribunal’s findings are accurately summarised in the first respondent’s written submissions, as follows (appeal book references omitted):

1.      The Tribunal accepted that the appellant was a Bangladeshi national;

2.      The Tribunal did not accept that the appellant was ever a worker, member or official of the AL of Bangladesh, on the basis that the appellant did not show a level of knowledge that the Tribunal would expect of an active worker, member or official;

3.      The Tribunal found that the alleged visits by officers of the RAB had not taken place as the account that the appellant gave was so lacking in detail that the Tribunal formed the view that the appellant’s evidence had been fabricated to support his application for refugee status;

4.      The Tribunal accepted the appellant may have read about the death of the AL figure named “Sweet” but it did not accept that the appellant was ever involved in any way with the AL, and therefore he was not a friend or political colleague of “Sweet”;

5.      The Tribunal accepted that the appellant may have been nervous, however it did not accept that being nervous would result in a complete absence of any demonstrated knowledge of his own experiences as an active worker with the party, of his becoming a member, or his involvement in social welfare projects and of the process of becoming a branch official. The Tribunal expected that the appellant would have been able to give both core and peripheral detail of those matters claimed if he had been an active member and official of the AL;

6.      The Tribunal did not accept the appellant’s account that the RAB had visited his family seeking information or that members of the RAB abused the appellant or threatened his family members with harm;

7.      On the basis of its central finding that the appellant was not a member of the AL or that he was in any way affiliated with “Sweet”, it did not accept that the appellant would be harmed or threatened with harm from the police, RAB or any government authorities because of an alleged connection with either Sweet or the AL were he to return to Bangladesh now or in the foreseeable future;

8.      The Tribunal found that the appellant completely lacked credibility in relation to his claims of involvement with the AL,  and on the basis of this finding the Tribunal did not accept that the contents of the letters purporting to be from officials of the AL. The Tribunal found that the letters were written to assist the appellant in his application for refugee status and did not provide an accurate account of his membership or history of the AL. The Tribunal found support for its decision to give the letters no weight in the High Court’s reasons in S20;

9.      The Tribunal did not accept the appellant’s claim that he was ever a friend or co-worker of Salim, who newspapers reported was killed by police, because it did not accept that the appellant was ever a member of the AL, and on this basis rejected any claim that he appellant would face the same fate were he to return to Bangladesh;

10.  The Tribunal not being satisfied that the appellant was a member of the AL was not satisfied that the appellant had any false claims laid against him for reasons of his political opinion or membership of the AL;

11.  The Tribunal was not satisfied that the appellant faced any risk of persecution for reasons of political opinion now or in the foreseeable future; and

12.  The Tribunal concluded that the appellant is not a person to whom Australia owes protection obligations.

THE FEDERAL MAGISTRATE’S DECISION

5                     The appellant’s application to the Federal Magistrates Court essentially contained three grounds of review, although in form five grounds were pleaded. The first ground was that the Tribunal had failed to comply with s 425 of the Migration Act 1958 (Cth) by failing to invite the appellant to a further hearing for the purpose of communicating its concerns about the authenticity of the documentation submitted by him after the hearing.  In addressing this ground, her Honour noted at [36]-[39] that the “issues” referred to in s 425 “can not necessarily be identified simply by describing them as whether the applicant was entitled to a protection visa”; what is required is “an exercise in characterisation … to identify what are the ‘dispositive’ or determinative issues in the sense of issues on which the decision to reject the applicant’s claim is based”.

6                     The Federal Magistrate also noted the recent decision of Bennett J in SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486, where in relation to the operation of s 425 her Honour observed at [25] that, insofar as “factual matters that go to the issue arising in relation to the decision under review” were concerned, “the Tribunal was not obliged to put each of those factual matters to the appellant. The Tribunal is obliged to inform her of the [determinative] issue but not of each fact that relates to it”. In the present case, the Federal Magistrate found that the determinative issue underlying the Tribunal decision was its adverse view of the appellant’s credibility.  Her Honour held that the Tribunal’s questions at the hearing clearly indicated to the appellant that everything in his account was in question; at [50]-[51].

7                     Her Honour found that this was not a case in which an additional element to the appellant's claim emerged in post-hearing material, and which thereby required a second hearing (cf SZILQ v Minister for Immigration & Citizenship (2007) 163 FCR 304 at 315).  In relation to the letters that the appellant submitted after the hearing, her Honour said, at [53]:

…. the evidence, including the letters of support, went directly to the issue of whether the applicant's claim to be a member and official of the [Awami League] could be believed. Section 425 does not require the Tribunal to put the applicant on notice of its concerns about the weight to be given to evidence provided in support of his claims in such circumstances or to put to him the manner in which concerns about his credibility may impact on the Tribunal’s assessment of corroborative material.

8                     The second ground of review was that the Tribunal decision was affected by actual or apprehended bias in so far as it reached an adverse conclusion concerning the appellant’s credibility without reference to the supporting documentation.  Her Honour did not accept that this fact established the Tribunal had formed a view at the end of the Tribunal hearing that would lead it to disregard any subsequent material.  Rather, the Tribunal had reached the conclusion that the appellant completely lacked credibility on its appraisal of the evidence.  While there is no reason to suppose that the Tribunal would have disregarded the letters provided by the appellant irrespective of their contents, it was open to the Tribunal to give no weight to those letters: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59.

9                     The final ground of review concerned the Tribunal’s conclusion that the appellant did not wish to press a claim that there were false charges against him in Bangladesh.  It based this conclusion on the fact that the appellant had not raised this claim at the hearing or in a statutory declaration submitted after the hearing in which he clarified his claims.  The Tribunal’s failure to deal with this aspect of the appellant’s claims was said to amount to a failure to review the delegate’s decision in accordance with s 414 of the Act.  In relation to this ground, her Honour stated at [95]:

I accept that, consistent with [Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802], issue could be taken with the Tribunal conclusion that the applicant did not wish to press or continue with the claim in his protection visa application about false cases on the basis that he did not mention it at the hearing or in his statutory declaration. However in this instance this does not establish jurisdictional error because the Tribunal went on to address the claim as if it was pressed, in the findings that commenced with the words “in any event”. It rejected such claim on the basis that as it did not accept that the applicant was ever involved in the AL it did not accept that he had false charges against him for reasons of his political opinion or activities with the AL (which was the basis for his claim in that respect). Hence it cannot be said that it failed to take the claim into account in a manner constituting a failure to have regard to relevant considerations.

THE PRESENT APPEAL

10                  The notice of appeal in this Court raises four grounds, only three of which were pressed at the hearing.  One ground of appeal is that the Federal Magistrate erred in not finding that the Tribunal failed to comply with its obligations under s 425 of the Act or alternatively, failed to give genuine and proper consideration to relevant evidence.  This ground arises from the Tribunal’s treatment of the letters that were provided by the appellant after the hearing.  The complaint, as set out in the appellant’s written submissions, is that:

The RRT stated that it disregarded the letters and gave them no weight in determining his claims for the reasons set out above.

However, the letters were used to assess the Applicant’s credibility. They were used for the purpose of showing that the Applicant had had the letters written to assist in is [sic] application for refugee status. In other words, the RRT first used the letters as stating that the applicant had no credibility and then stated that it was entitled to give no weight to the evidence because it had found the applicant to be completely lacking in credibility.

11                  In so doing, the Tribunal is alleged to have engaged in “circular reasoning” which in the circumstances engaged the operation of s 425; using the documents to support a finding that the appellant lacked credibility rendered them, according to the appellant, an issue arising in relation to the decision under review. 

12                  This submission, which was not put to the Federal Magistrate, is in my view misplaced.  The findings of the Tribunal appear on my reading to conform to the principle outlined in Applicant S20/2002.  I accept the point made in the written submissions of the first respondent:

The Tribunal’s adverse credibility finding was anterior to its findings on the letter of support: it did not accept the appellant’s claimed involvement with the [Awami League], that he had been harmed or threatened, or that he would face relevant future harm …  and then, on this basis, it did not accept that the contents of the letters in support of his membership and involvement were true.

I am satisfied that the Tribunal did not rely on the letters to make the adverse credibility finding, although clearly they did nothing to undermine that finding.  They were not determinative of the decision.  Section 425 does not apply in these circumstances and so this ground must fail. 

13                  The other two grounds of appeal are that the Federal Magistrate erred in finding that the Tribunal was entitled to rely on Applicant S20/2002 to disregard evidence, and that in so doing, it erred in not finding that the Tribunal’s decision gave rise to a reasonable apprehension of bias.  The appellant claimed that a reasonable apprehension of bias arose in the following way:

The use of the decision in S20 as an a priori basis on which to reject evidence showed that the mind of the RRT had become closed to the probative value of any evidence which the Appellant might submit to the RRT. Yet the RRT used that same evidence to find that the letters which it otherwise disregarded had been written for a sinister purpose, to assist the Appellant in his application for refugee status to which he was not entitled and which letters provided an untruthful account of the Appellant’s membership or history with the [Awami League].

14                  In my view, it was open to the Tribunal to conclude, as it appears to have done at the end of the hearing, that the appellant’s claims were not to be believed. This does not mean that the Tribunal had closed its mind to the possibility that further documents provided by the appellant might change its mind.  There is no evidence to suggest that the Tribunal did so close its mind.  Having considered that the “appellant completely lacked credibility in relation to his claims of involvement with the Awami League”, it appears that in fact the letters simply did not have the probative value required to sway the Tribunal.  No error is disclosed in this approach.  In any event, even if the letters bolstered the Tribunal’s adverse credibility finding or were an additional reason for it, it would still not have been necessary for the Tribunal to convene an additional hearing, as the issue of the appellant’s credibility was already squarely before him.

15                  The appellant also alleged that her Honour misstated the applicable law when she said, at [77], “Insofar as it may be intended to suggest that there was actual bias on the part of the Tribunal, such a serious allegation involves personal fault on the part of the decision-maker”.  This was said to be contrary to the views expressed by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64 at 67-68.  The appellant’s submission on this point is misconceived.  In SZFDE the High Court was concerned with the meaning of “references in the public law decisions to good and bad faith and the like”.  The question was whether fraud perpetrated by a third party on an applicant before the Refugee Review Tribunal was also fraud on the Tribunal leading to the Tribunal’s constructive failure to exercise its jurisdiction.  There was no question of the Tribunal being in any way responsible for what occurred, much less being in any way to blame for it.  There is nothing in the observations of the High Court that would suggest that the Court intended to resile from the views it expressed in Minister for Immigration and Multicultural Affairs v Jia Legeng (2000) 205 CLR 507.  In other words, actual, as opposed to apprehended bias plainly involves personal fault, which is precisely the point the Federal Magistrate made.  In my view, the Federal Magistrate correctly identified and applied the relevant principles and these grounds of appeal must fail.  

16                  The decision of the Federal Magistrate was correct for the reasons her Honour gave.  Those reasons were comprehensive and compelling.  Accordingly the appeal should be dismissed with costs.

Associate:

Dated:              13 August 2008