FEDERAL COURT OF AUSTRALIA

SZOAF v Minister for Immigration and Citizenship [2010] FCA 431

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs fixed in the sum of $3,700.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

APPEAL

1                     This is an appeal from a judgment of a Federal Magistrate delivered on 27 January 2010. The Federal Magistrate dismissed the appellant’s application for review of a decision of the Refugee Review Tribunal (Tribunal) given 16 October 2009. The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a protection (Class XA) visa.

applications for protection visa

2                     The appellant is a citizen of Bangladesh who arrived in Australia on 25 December 2008. On 4 February 2009 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.

3                     In that application, the appellant claimed to fear persecution in Bangladesh by reason of his political opinion. He claimed that he was involved in the student chapter of the Bangladesh Nationalist Party (BNP) whilst at school, and later was elected general secretary. He claimed that he went on to become an “organizing secretary” of the local branch of the BNP in 1995, and in that year was beaten by opponents acting in support of the Awami League (AL) while leading a procession. He claimed that he was hospitalised for two weeks, and filed a case against the AL with the police. The appellant further claimed that an AL supporter was murdered in 1995, and that he was accused of the murder. He claimed that the police had a warrant for his arrest, and that he had to escape to Palau. The appellant claimed that now that the AL is in power again, after elections in 2008, it is still not safe for him to return.

4                     A delegate of the first respondent refused the application for a protection visa on 20 March 2009. On 25 March 2009 the appellant applied to the Tribunal for a review of that decision

tribunal’s findings

5                     The Tribunal did not accept that the appellant had any significant interest in, or is a member or supporter of, any political party in Bangladesh. In particular, the Tribunal found that there was no genuine independent evidence before it to support the appellant’s claimed involvement with the BNP, or that he was accused of the alleged murder of an AL member. The Tribunal gave no weight to a letter purportedly from the local BNP office submitted by the appellant in support of his claims, given the vagueness of its contents and the independent information which indicated the ease with which false documents were obtained in Bangladesh. The Tribunal did not accept that the appellant’s departure from Bangladesh was flight from persecution, or that he had to bribe someone to obtain a passport. The Tribunal placed weight on the fact that the appellant had returned to Bangladesh without apparent incident three times in the interim. 

6                     Finally, the Tribunal accepted that the government had changed in Bangladesh on the occasions and with the results that the appellant claimed. However, on the basis of the above findings, the Tribunal gave these past and current political conditions no weight.

7                     In all, the Tribunal rejected the appellant’s relevant factual account of past events in Bangladesh and the claims arising from those events. The Tribunal therefore concluded that the appellant did not have a well founded fear of persecution, and affirmed the delegate’s decision.

DECISION OF THE FEDERAL MAGISTRATE

8                     On 9 November 2009 the appellant filed an application for judicial review in the Federal Magistrates Court. In an amended application filed on 7 January 2010 the appellant raised the following grounds of review:

1.      The Tribunal made jurisdictional error in failing to exercise its jurisdiction by not acting rationally or judicially in not giving any weight to a false case was filed against the first applicant in 1995.

a.      The Tribunal was clearly biased in saying that “the Tribunal gives this letter no weight. Given the evident ease with which false documents are obtained in Bangladesh and given the vagueness of this letter and its very recent province, the Tribunal does not accept that it is genuine”. Without any basis the Tribunal made comments, a reasonable person can not make this type of comments. A huge number of Bangladeshi citizens has been obtaining protection visa in Australia on the basis of their real fear of persecution and their documents were genuine.

b.      It was not rational not to expect that the first applicant always invoved in politics in aboard which the tribunal ignored.

c.      The Tribunal comment was unsubstantiated that in saying that “the Tribunal finds no genuine independent evidence before it to support the applicant’s of involvement with the BNP”.

2.      The Tribunal made jurisdictional error by not giving weight to the document submitted by the applicant at CB, p147 (letter from Bangladesh Nationalist Party of its Gazaria Thana, under Munshigonj district) at CB, p68.

3.      The Tribunal made jurisdictional errors not considering the applicants claims in accordance with the United Nations Convention. The Tribunal issued its jurisdiction irrelevantly and the claims were not assess judicially.

4.      The Second Respondent made jurisdictional error by not considering his evidences without any valid reasons.

Particularly: The applicant was implicated into murder case and he indicated that his name was in charge sheet without any valid reason the Tribunal did not put any weights (CB p148).

5.      The Second Respondent constructively failed in saying that “the Tribunal does not accept the Applicant went to hiding” (CB 149) without any basis.

(as stated in the original)

9                     In respect of ground 1(a) and 2, the Federal Magistrate stated that it did not assist the appellant that other visa applicants from Bangladesh had been granted protection visas – the Tribunal’s jurisdiction was to determine on the merits of the application whether it was satisfied that the appellant himself met the statutory criterion for a protection visa. The Federal Magistrate found that there was nothing irrational or unreasonable in relation to the Tribunal’s approach to the letter submitted by the appellant in support of his claims. In this respect, the Federal Magistrate stated that it was reasonably open to the Tribunal to find that the document itself was deficient in supporting his claims to have been an active member of the BNP. Significantly, the appellant was given the opportunity to comment on the contents of the letter, and whether it was genuine. His Honour also accepted the submission of the Minister that matters of weight to be accorded to pieces of evidence is for the Tribunal to determine in the proper exercise of its function. For the same reasons, his Honour dismissed ground 4 of the amended application.

10                  In respect of ground 1(b) and (c), his Honour stated that the relevant findings could not be described as lacking rationality, nor that they were without a probative foundation. Ultimately, the Tribunal’s findings were open to it for the cogent reasons that it gave, and that these grounds were simply an attempt at impermissible merits review.

11                  In respect of ground 3, his Honour stated, amongst other things, that the Tribunal did not misunderstand or misapply the relevant Convention concepts.  It understood that the test to be applied was the likelihood of persecutory harm if the appellant was to return to Bangladesh. Nor could it be said that the appellant was denied procedural fairness as codified in Division 4 Part 7 of the Migration Act 1958 (Cth) (Act).

12                  In respect of ground 5, his Honour stated that the finding of which the appellant complained was open to the Tribunal to make, and for the reasons that it gave. Further, the concerns that the Tribunal had with his evidence were clearly put to him at the hearing.

13                  Having found no jurisdictional error in the Tribunal’s decision, the Federal Magistrate dismissed the application.

appeal to this court

14                  On 17 February 2010, the appellant filed a Notice of Appeal which states three grounds:

1.                   The Second Respondent made a jurisdictional error in deciding the claim of the Appellant without open mind and the second responded was bias, the Federal Magistrate made an error of law by not finding this issue.

2.                   There was error of law by not finding by the FM that the Second Respondent made jurisdictional error by not considering the integer of the appellant’s claim. Particularly the applicant was charged in murder case, was not proved that the applicant was not charged.

3.                   The Second Respondent made a jurisdictional error by not considering the appellant’s current situation in returning to his country of origin, as there is political change came into affect, which was not taken into account by the Second Respondent. The trial judge made an error in deciding this issue.

(As stated in original)

consideration

15                  Ground 1: The first ground of appeal claims that the Tribunal was biased.  This ground is explained by written submissions filed by the appellant.  The bias alleged is, as I understand it, a reference to the content of the country information that the Tribunal relied on at [64] – [66] of its reasons for decision.  Tied to the reference to that material is a further claim that in effect the Tribunal failed to give proper accord to the letter provided by the appellant, dated 15 March 2009, confirming that he was the “elected organising secretary” in a local branch of BNP Youth Wing.  The appellant takes issue with the Tribunal’s finding at [70] that no dates are provided and that the letter is vague.  The appellant also says that the Tribunal member “invented” the words that “the applicant was in the BNP’s Youth Wing” in [70], which is totally incorrect.  The appellant says that “the Tribunal mislead the contents of the letter, which is an issue to consider by this honourable court”.  The appellant considers all of this demonstrates that the Tribunal was not fair minded. 

16                  It is clear from the material before the Court that his Honour gave comprehensive and thorough consideration to the appellant’s claim that the material demonstrated that the Tribunal was bias. In my view, his Honour was correct to conclude that there was no evidence of bias (either actual or apprehended).

17                  The Federal Magistrate correctly laid out the test of whether a fair minded lay observer would apprehend bias on the part of the Tribunal requires something more than a feeling that conventions of discretion and prudence have been breached.  Something more is required and the apprehension must be firmly established: Re Minister for Immigration and Multicultural Affairs: Ex parte Epeabaka [2001] HCA 23; (2001) 179 ALR 296 (Epeabaka), at [15]; and at [53] – [65], [89] – [95].  The test is an objective test, viewed through the eyes of the reasonable or fair minded lay observer: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 (NADH), at [21]; SZJKU v Minister for Immigration and Citizenship  [2008] FCA 308, at [36].  Robust and forthright testing of the appellant’s claims by the Tribunal does not sustain a finding of apprehended bias.  Indeed, displays of robust individuality may at times be expected from persons charged with the difficult task of making decisions of this nature: Epeabaka at [90]; NADH at [19].  It is for the Tribunal to get to the truth of the matter and it is proper for the Tribunal to focus an applicant’s mind: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425, at 435 [30].

18                  It was open to the Tribunal, as the Federal Magistrate found, to look closely at and ask questions of the appellant about the information he provided to it concerning his claims and in particular the authenticity of documents such as the letter provided.  Plainly it was open in the circumstances to the Tribunal to consider that the letter was not genuine due to its lack of dates and vague contents and generally to the reliability of the appellant as a witness.  Such analysis does not of itself indicate any bias on the part of the Tribunal.

19                  To the extent that the appellant complains that the Tribunal was not itself biased but was misled by the materials before it, the question of the use to be made of the letter was always going to be an issue, it having been raised by the delegate at the earlier interview with the appellant.  The Tribunal, from the country information it had, was alert to the fact that sometimes materials provided to the Tribunal that purport to be from a country of origin may not be authentic.  The materials were of course provided by the appellant himself.  There does not, in the circumstances, seem to be any proper basis for suggesting that the Tribunal was misled by any materials such that it thereby was biased in its treatment of the issues it had to decide.

20                  So far as the appellant’s complaint is concerned that the statement by the Tribunal that “the applicant was in the BNP’s Youth Wing” is totally incorrect, it seems to owe it self to a number of statements made including the statement made in writing by or on behalf of the appellant attached to his initial application for a protection visa.  In [3] of that statement, he says that in 1994 “I was elected as the General Secretary of the College Committee Chatradal and this year I contested for student union election and became the General Secretary of the College Union Committee.  At this the … BNP … was in power under the leadership of Prime Minister … Zia”.  This of itself seems to verify the concise statement made by the Tribunal.  To the extent that the Tribunal’s reasons do not exactly replicate the statements made in the letter, it is plain that they repeat the substance thereof.  No error is revealed by this approach.

21                  So far as the appellant complains that the Tribunal relied on country information provided by the Department, the Tribunal was entitled to regard it: see NAHI v Minister for Immigration and Citizenship [2004] FCAFC 10, at [11].

22                  In essence, by ground one, the appellant seeks to challenge the merits of the decision by the Tribunal which were otherwise open to the Tribunal on the materials before it.

23                  In my view, this ground of appeal does not have merit and must be dismissed.

24                  Ground 2: The second ground of appeal is that the Federal Magistrate made an error of law by failing to consider an “integer” of the appellant’s claims, namely the appellant’s claim that he had been falsely accused of murder.  This ground of review was addressed by His Honour under the heading “Ground 4”: see SZOAF v Minister for Immigration and Citizenship and Anor [2010] FMCA 44, at [58] – [59].  There, his Honour referred to the Tribunal’s decision at [74] noting that the Tribunal did consider the claims that the appellant had been falsely accused of murder.

25                  In his written submissions, the appellant says that he was charged in a murder case and challenges the Tribunal’s finding that it “does not accept” that he was falsely charged: see [86] of the Tribunal’s reasons.  The appellant says the Tribunal did not make any sort of queries about the genuineness of the murder case.  He says there are reasons to accept the appellant.  He says the Tribunal was biased by the country information which is contradictory information. 

26                  The Federal Magistrate dealt with these issues at [52] and following in his decision.  There it noted that at the hearing the Tribunal put to the appellant its concern about the inconsistency in his evidence where it is said that he continued in college until 1996, but also that he went into hiding after the 1995 murder charge.  The Federal Magistrate, at [53], pointed out that in dealing with this (and other issues) the Tribunal ultimately found the appellant to be an unreliable witness.  Ultimately, as the Federal Magistrate pointed out, at [55], the Tribunal at [86] rejected the appellant’s claim that he had been falsely charged with murder in 1995.  This was one of several claims made by the appellant rejected by the Tribunal. 

27                  I agree that on the materials before the Tribunal, it was open to the Tribunal to make the finding of fact it did in this regard.  No error of law was demonstrated and in these circumstances no error is revealed in the analysis of the Federal Magistrate.

28                  The Tribunal in these circumstances was not under any duty to inquire further into the authenticity of the appellant’s claims that he was charged: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) ALR 429; 83 ALJR 1123, at [24] and [25].

29                  This ground must fail.

30                  Ground 3: The third ground claims that the Tribunal made a jurisdictional error by not considering the appellant’s situation in returning to Bangladesh in circumstances where political change had come into effect.  

31                  In his written submissions, the appellant says that the Tribunal knew that there were political changes coming into effect, he says the “appellant’s party men has become subject to oppression including in false cases by the ruling Awami League after arrival into power on 29 December 2010 backed by army” and that the Tribunal did not ask any questions about the prevailing situation in Bangladesh which will be adverse to the appellant’s life and liberty.  At the hearing the appellant corrected the date to 2008.  He contends that the task of the Tribunal was to determine whether the appellant might be subject to adverse action, such as detention or arrest and whether that would constitute persecution on Convention grounds.

32                  This appears to be a new ground in that it was not raised before the Federal Magistrate.  It was however argued before the Tribunal.  The Minister does not press the point that leave may be required to argue this ground and says it fails on the merits.

33                  I note that at [92] of its reasons the Tribunal accepted that the Government had changed in Bangladesh on the occasions and with the results the appellant describes.  The Tribunal concluded, however, that on the evidence presented to it the Tribunal “gives these past and current political conditions no weight”.  This was because the Tribunal did not accept that the appellant had “any significant interest in any political party in Bangladesh”.  The Tribunal there also noted that the appellant had barely resided in Bangladesh over the previous 15 years and did not accept that he would be imputed by any person or party in Bangladesh to have a significant interest in political group or political opinion in that country.

34                  Given the Tribunal’s findings in that regard, and its general concerns about the credibility of the appellant, this ground has no chance of success.  The Tribunal made findings of fact and no issue of legal error arises.

35                  So, whether ground three is to be construed as a new ground not raised in the Court below, or a repetition of a claim addressed by the Tribunal in [92] of its reasons, it necessarily must fail.

Conclusion

36                  For the reasons given, the grounds of appeal fail and the appeal should be dismissed with costs.

37                  The Court would make the following orders:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs fixed in the sum of $3,700.

Associate:

Dated:         6 May 2010