FEDERAL COURT OF AUSTRALIA

Applicant S303/2003 v Minister for Immigration and Citizenship

[2008] FCA 1811

APPLICANT S303/2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1261 of 2008

MIDDLETON J

13 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an appeal against a judgment of Federal Magistrate Nicholls of 24 July 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 20 March 2007.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

BACKGROUND

2                     The appellant is a citizen of Bangladesh who arrived in Australia on 17 October 1997.  On 14 November 1997, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent refused the application for a protection visa on 28 March 1998.  On 28 April 1998 the appellant applied to the Tribunal for a review of that decision.

3                     The Tribunal (as previously constituted) made its decision on 25 May 2000.  This decision was quashed, by consent, by orders of the Federal Magistrates Court on 13 November 2006, and the matter was remitted to the Tribunal for reconsideration.

4                     The appellant claimed to have a well founded fear of persecution if returned to Bangladesh, due to his Bihari ethnicity.  He had allegedly grown up in a ‘refugee camp’ in Bangladesh, and stated that Biharis were treated as outsiders by the Bengali majority.  The appellant claimed to be a member of the ‘Bihari movement’ and, as a result of his activities, was targeted by Bengalis and the Awami League thugs.  He claimed that after a friend’s family was attacked by ‘Bengali terrorists’, he and his friend were attacked, killing his friend Shakil in March 1997.  The appellant was allegedly warned not to give evidence in a subsequent trial of the accused assailants, but did so and was, along with a colleague, attacked and beaten, despite the local police having offered protection.  The appellant referred to other incidents which had allegedly taken place in 1997.  He stated that if he returned to Bangladesh, he would suffer further attacks as his assailants were protected by ‘influential people’.

TRIBUNAL DECISION

5                     The Tribunal accepted that Biharis in Bangladesh were subjected to a degree of ill-treatment.  However, it was not satisfied that the appellant was a credible witness.  Amongst other matters, the Tribunal noted the following factors in support of its conclusion:

·                    The ‘confused and conflicting’ nature of the appellant’s evidence regarding his role as a witness in the murder case.

·                    The absence of plausible evidence of any harm, or threatened harm, suffered by the appellant before April 1997, leading the Tribunal to find that the claim relating to other attacks in 1997 was a recent invention.

·                    The appellant’s failure to present a document, allegedly a warrant requiring him to give evidence, until the first Tribunal hearing.

6                     The Tribunal concluded (at 12):

In the Tribunal’s view there is no plausible evidence before it that the applicant has suffered or will suffer harm amounting to persecution in Bangladesh, for a Convention reason, including because of his race, his political opinion, his imputed political opinion, or because he is a member of a particular social group, from authorities or anyone else in his country, or that he cannot get protection against harm from authorities/police in Bangladesh, for a Convention reason, either now or in the reasonably foreseeable future if he returns to his country.

THE COURT BELOW

7                     By an amended application filed on 23 August 2008, the appellant claimed that:

1.    The Refugee Review Tribunal failed to exercise its jurisdiction under the Act:

Particulars:

A.    The Tribunal did not put any weight to the document which I submitted before the           Tribunal that:

(i)      An Ejahar filed to the Mohammadpur Police Station (Copy of Bangla and its translated English copy);

(ii)     A letter from Mr. Ejaz Ahmed Siddiqi, Founder & Leader of Stranded Pakistanis General Repatriation Committee, Geneva Camp, Mohammadpur Dhaka;

(iii)    The First Information Report (Copy of Bangla and its translated English copy);

(iv)    The doctor’s certificate issued on 1 May 1997;

(v)     The warrant arrest order to me to attend before the Court and provide witness (Copy of Bangla and its translated English copy);

2.    The Refugee Review Tribunal failed to consider my persecution on the basis of my race and discrimination that:

Particulars:

A.    The Tribunal failed to consider my persecution on the basis of my race and discrimination that:

(i)      The Tribunal failed to consider my persecution on the perspective of my race and discrimination where the country information indicates that Biharis in Bangladesh receive discrimination and sometimes ill treatment.

3.    The Refugee Review Tribunal did not follow the proper procedure to determine my case:

Particulars:

A.    The Tribunal did not follow the proper procedure to determine my review application that:

(i)      The Tribunal said its decision that I was not a witness of truth. However the Tribunal did not disclose me where and why I was not a witness of truth. Accordingly did not get the opportunity to provide my argument.

4.    The Refugee Review Tribunal acted in bad faith:

Particulars:

A.    The Tribunal acted in bad faith and made following comment without put any effort to find its truth that:

(i)      the events described did not occur but were invented by the applicant to assist his application for protection in Australia.

8                     The Federal Magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, dismissed the application.  In relation to the appellant’s claim that the Tribunal had committed jurisdictional error by failing to give weight to the above documents, his Honour found that (at [52]-[54]):

52.       The weight to be accorded to documentary evidence provided by an applicant is a matter for the Tribunal. Further, in this case, the Tribunal reasoned that as the applicant was not considered to be a witness of truth (for cogent reasons, which the Tribunal gave and which were open to it on what was before it) it did not accept that the various documents produced by him assisted in supporting his claims. This was a view plainly open to the Tribunal, given its very clear finding as to the applicant’s lack of credibility.

53.       Nor can any failure at the hearing (pursuant to s.425) to put to the applicant that the evidence was to be so regarded in itself constitute (that is, the Tribunal’s adverse view of the evidence as corroboration) a breach of procedural fairness (under the statutory code) to the extent that it may be so implied, particularly from the applicant’s submissions.

54.       But whatever the situation, in any event, the transcript of the hearing reveals that the Tribunal did put the applicant on notice that it had doubts as to the reliability of the documents.  

9                     In relation to ground two of the amended application, his Honour found that any plain reading of the Tribunal’s decision record made it clear that such a complaint could not succeed.  His Honour noted that the Tribunal understood the question that it was jurisdictionally charged to answer (whether the appellant had a well-founded fear founded upon a real chance of persecution for a Convention reason).  The Tribunal found that although the appellant would suffer discrimination in his country because of his race, there was no plausible evidence before it to indicate that the appellant would suffer harm amounting to persecution for a Convention reason.

10                  In relation to ground three, his Honour noted that this was not a case to which s 422B of the Migration Act 1958 (Cth) (‘the Act’) applied, such as to make the matters set out in Div 4 of Pt 7 of the Act the exhaustive statement of the natural justice hearing rule applicable to this matter; s 422B only became operational on 24 July 2002, while the application for review was made prior to that date, on 28 April 1998.

11                  His Honour found that due to the ‘transitional’ provisions in Pt 2 of Sch 3 of the Migration Legislation Amendment Act (No 1) 1998 (Cth), it was the current version of s 425 of the Act which obliged the Tribunal to invite the applicant to appear before it ‘to give evidence and present arguments relating to the issues arising in relation to the decision under review’ (on the basis that even though the application was made before the commencement of Sch 3, the review was not completed by a date before the commencement of Sch 3).  In this regard, therefore, what was said by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 in relation to procedural fairness and s 425 was relevant to the consideration of the appellant’s complaint before the court.  His Honour noted that both parties were given the opportunity to make submissions in relation to this issue following the hearing before the court, and both did so.

12                  In his Honour’s opinion, the issues in relation to the review, and which were determinative in the Tribunal affirming the decision under review, were:

1)        The circumstances which gave rise to the murder of the applicant’s friend in March 1997, which led to him being compelled to give evidence, as a witness, at the trial of those accused of his murder.

2)         The applicant was threatened and subjected to harm in Bangladesh and, in particular, that he was injured in an attack in May 1997 (the stabbing incident), in relation to which he had provided a medical certificate which was said to prove his injuries.

3)        The various documents provided by the applicant did not support his claims.

4)        Whether the applicant would suffer harm as a Bihari if he were to return to Bangladesh.

13                  His Honour noted that, as the High Court said in SZBEL 228 CLR 152 at [47], the Tribunal was not required to put to the appellant that he ‘may not be accepted as a witness of truth’, contrary to what the appellant asserted in his submissions.  In any event, his Honour found that, based on the transcript of the Tribunal hearing, the appellant was clearly put on notice as to the importance of telling the truth to the Tribunal, and that if the Tribunal were to form the view that he was not telling the truth (even about some parts of his claims), it might then lead to a rejection of all of the appellant’s claims (at [95]).  Further, the appellant was plainly (on any reading of the transcript of the hearing) given an opportunity of putting the factual basis of his claims to the Tribunal and discussing these with the Tribunal.  His Honour concluded  that (at [110]):

I am satisfied, on the material before the Court, that the Tribunal did give the applicant a sufficient opportunity to give evidence and make submissions about what were the determinative issues arising in relation to the decision under review. Further, that it is quite clear that (with reference to [47] of SZBEL) the Tribunal more than sufficiently indicated to the applicant the concerns that it had with the evidence that the applicant relevantly gave at the hearing and with the documents that he had provided in support of his claims. This complaint, therefore, it is not made out.

14                  In relation to the allegation of bad faith, his Honour found at [114]-[115]:

114.     Importantly, there is nothing in the material before the Court to show that there was any absence of honesty on the part of the Tribunal member such as to give rise to an allegation of bad faith (see, in particular, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs(2002) 194 ALR 749; [2002] FCAFC 361, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 and SCAS  v Minister for Immigration & Multicultural & Indigenous Affairs[2002] FCAFC 397 per Heerey, Moore and Kiefel JJ at [19]).

115.     In all the circumstances of what is before the Court, I cannot see that this complaint rises above an attempt to challenge the Tribunal’s adverse credibility finding. The Tribunal’s adverse finding as to the applicant’s credit was plainly open to it on the material before it, particularly given the inconsistencies in the applicant’s evidence and the deficiencies found by the Tribunal. The Tribunal’s findings in this regard were findings of fact, including a finding on credibility, which were plainly open to it, and are not susceptible to being challenged upon judicial review (ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J).

THE PRESENT APPEAL

15                  The notice of appeal filed on 12 August 2008 raises substantively the same grounds which were before the Federal Magistrate.  

16                  Prior to the hearing of the appeal before me the appellant had filed an outline of submissions dated 5 November 2008.  The appellant repeated the same grounds raised before the Federal Magistrate and considered by his Honour.  It was also contended that the Tribunal had simply adopted the previous Tribunal’s decision rather than to assess the matter for itself.  I should say at the outset that there is no basis on the material for this suggestion, and I reject it.

17                  Today, the appellant appeared and made oral submissions which, in effect, reiterated the matters previously raised before the Tribunal and the Federal Magistrate.

18                  I address each ground of appeal.

19                  In respect of the first ground raised which alleges that the Tribunal was in error by not placing any weight on five documents that were submitted by the appellant, the Federal Magisrate was correct to find that there was no error in the Tribunal proceeding in this way.  As the Tribunal made a finding that the appellant was not a witness of truth, there was no error in giving the corroborative documents no weight as they had been undermined by the adverse credibility finding: see French J in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 at [36]; Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59, 70 at [49].

20                  The second ground claims that the Tribunal failed to consider persecution and discrimination on the basis of the appellant’s race as there was country information before the Tribunal that Biharis in Bangladesh receive discrimination and ill treatment.  In my view, it is clear upon reading the Tribunal’s decision that it was aware of the country information to this effect and that it dealt with this claim.  The Tribunal found, however, that although the appellant may have suffered or will suffer discrimination in his country, it did no accept that he suffered or will suffer serious harm.  The Federal Magistrate was correct in finding that the Tribunal considered this claim and made findings that were open to it.

21                  The third ground alleges that the Tribunal denied the appellant procedural fairness as he was not provided with an opportunity to present his arguments.  The appellant asserts that the Tribunal did not disclose to him where and why he was not a witness of truth and was not given the opportunity to present arguments on this issue.

22                  The Federal Magistrate referred to SZBEL 228 CLR 152.  In that case the High Court held at 165-66 (at [47]):

It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

23                  The Federal Magistrate was correct in finding that the Tribunal raised with the appellant the issues it had with his evidence and gave the appellant the opportunity to present arguments on these issues.  The Tribunal put to the appellant the inconsistencies in his evidence which led to the adverse credibility finding and issued a general warning to the appellant at the start of the hearing about the need to be truthful, and the consequences of not being so (at p4, line 30):

It’s really important today that you do your best to tell me the truth.  I know it is hard, when things happened a long time ago, as they did in your case, to remember clearly, just do your best to tell me the truth.  Okay, if I think you’re not telling me the truth about some parts of your claims, it might mean that I don’t accept as true other things you say.

CONCLUSION

24                  In my opinion, the approach of the Federal Magistrate and his Honour's conclusion were correct.

25                  The appeal should be dismissed with costs.

Associate:

Dated:         28 November 2008