SZAFO v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2004-03-01|Before: Bennett J

REASONS FOR JUDGMENT 1 The appellant is a citizen of Bangladesh who arrived in Australia on 11 November 2000. On 14 December 2000 he lodged an application for a protection visa. On 5 March 2001 a delegate of the respondent ('the Delegate') refused to grant the protection visa and in March 2001 the appellant applied for a review of that decision by the Refugee Review Tribunal ('the Tribunal'). The appellant attended a hearing before the Tribunal on 12 December 2002 and on 31 December 2002 the Tribunal affirmed the decision of the Delegate not to grant a protection visa. The appellant applied to the Federal Magistrates Court for review of the Tribunal's decision and on 8 September 2003 Driver FM dismissed the application. This is an appeal from that decision. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice directed the appeal be heard by a single judge of the Court.

background 2 Driver FM succinctly summarised the factual background to this matter at [2] of his Honour's judgment: '…The applicant's claims in support of his application for a protection visa were based on his membership of and involvement with the Jatiya Party in Bangladesh. He claimed amongst other things to have been falsely charged and convicted of the death of a member of the Awami League and that as a consequence he had had to close his business and leave the area permanently. He claimed to have been found later by members of the Awami League and beaten by them on two occasions in 1994 and 1995. After the Awami League regained power in Bangladesh in 1996 another false case was filed against the applicant and an arrest warrant was issued for him. In a letter from the applicant's advisers addressed to the [Tribunal] and dated 10 December 2002 the applicant claimed that members of the Bangladeshi National Party (BNP) had been looking for him for a long time and that leaders of that Party had taken a decision to kill him at any cost …'

THE DECISION OF THE TRIBUNAL 3 The Tribunal put a number of aspects of the appellant's claims to him as well as independent country information and independent evidence indicating a high level of document fraud in Bangladesh. The Tribunal considered that the appellant had demonstrated that he was prepared to alter and embellish his evidence if he believed it may be to his advantage. The Tribunal gave detailed consideration to the appellant's oral and written evidence before it and concluded that the appellant's oral evidence contradicted his written evidence, his oral evidence contradicted itself and that overall the inconsistencies in the appellant's evidence 'were widespread and the applicant could not adequately explain the reason for these substantial discrepancies'. The Tribunal found that the appellant was not a credible witness in relation to 'some of the most fundamental aspects of his claim'. As a result, the Tribunal did not accept the appellant as a credible witness and did not accept the claims made in his written submissions or in his oral evidence. 4 Further, the Tribunal also found that, even if it were to accept the appellant's claims, the independent country information indicated that: (a) the Bangladeshi government has given clear instructions to maintain peace and communal harmony and that local authorities would not hesitate to move against BNP or 'Alliance activities', if they were suspected of criminal activity or of inciting communal violence; and (b) although the lower levels of the judicial system are subject to the executive, the higher levels of the judiciary display a significant degree of independence. 5 Consequently, the Tribunal was not satisfied on the evidence before it that there is a real chance in the future of the appellant being selected or targeted for any Convention (the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967) reason. Therefore, the Tribunal was not satisfied on the evidence before it that the appellant had a well-founded fear of persecution for any Convention related reason. 6 Having considered the evidence as a whole, the Tribunal was not satisfied that the appellant is a person to whom Australia has protection obligations under the Convention.

the decision of the federal magistrate 7 The amended application before Driver FM set out 13 grounds of review. These grounds can be summarisedas follows: (a) The Tribunal erred in finding that there was not a real chance in the future of the appellant being selected or targeted for persecution for any Convention reason. (b) The Tribunal had no jurisdiction to make its decision because its reasonable satisfaction was not arrived at in accordance with the Migration Act 1956 (Cth) ('the Act'). (c) The Tribunal exceeded its jurisdiction. (d) The Tribunal constructively failed to put adverse country information to the appellant. (e) The Tribunal failed to base its decision upon relevant material. (f) The Tribunal failed to put adverse country information to the appellant. (g) The Tribunal failed to invite the appellant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 425(1) of the Act). (h) The decision of the Tribunal was not a bona fide attempt to exercise the power conferred upon it. (i) Allegations of actual bias. (j) Assertions that the appellant is entitled to a protection visa and he has a well founded fear of persecution.

The Hearing 8 At the hearing the appellant appeared before Driver FM unrepresented and was assisted by a Bengali interpreter. The appellant relied upon his amended application, an affidavit sworn by himself, written submissions and oral submissions at hearing. The appellant was cross-examined by counsel for the respondent. In his cross-examination, counsel for the respondent asked the appellant about the Tribunal hearing. Driver FM noted that the appellant seemed to have difficultly remembering when the hearing was but generally remembered questions put to him by the Tribunal and his answers. The appellant confirmed that the Tribunal had asked questions about the political situation in Bangladesh. He also confirmed that country information referred to by the Tribunal was put to him and that he had disputed that country information when given that opportunity by the Tribunal.

The Decision 9 Driver FM considered each ground of review and, in summary, made the following findings: (a) The findings made by the Tribunal both on the questions of credibility and upon the relevance of country information were reasonably open to the Tribunal on the material before it. (b) The Tribunal applied the correct law. (c) The Tribunal understood the task that it had to perform and asked itself the right questions. It applied the correct legislative provisions and there was no breach of any legislative requirement in the Act. (d) There was no substance to the grounds that the Tribunal exceeded its jurisdiction or constructively failed to put adverse country information to the appellant. (e) There was no substance to an allegation of actual bias. The appellant admitted that he was given the opportunity to put submissions and evidence to the Tribunal but he was concerned that he was not believed. On the material before the Tribunal, it was entitled to disbelieve the appellant. (f) There was no failure on the part of the Tribunal to consider all the relevant material. In his written submissions the appellant asserted that the Tribunal made a serious error of fact in stating that the appellant told the Tribunal that when the Awami League came to power in 1996 the appellant had a business and the appellant went there quite regularly. The appellant asserted that a correct characterisation was that he went there sometimes rather than regularly. Driver FM read to the appellant, during argument, the passage of the Tribunal's decision summarising the appellant's claim in relation to this issue and the appellant agreed with the accuracy of the passage. Accordingly, Driver FM was satisfied that the appellant's claim of a fear of harm at the relevant time was put to the Tribunal and in substance understood. (g) There was no substance to the ground that the Tribunal failed to put adverse country information to the appellant. The appellant conceded during cross-examination and during argument that adverse country information was put to him and that he had had an opportunity to respond to it. (h) There was no breach of s 425(1) of the Act. When Driver FM read the appellant that section the appellant conceded that there had been no breach. (i) Driver FM rejected the ground that there was not a bona fide attempt to exercise the power conferred upon the Tribunal. (j) Mere assertions that the appellant is entitled to a protection visa and that he has a well-founded fear of persecution are not proper grounds of review. (k) No error was apparent from the Court Book 10 Accordingly, Driver FM held that the appellant had failed to establish any jurisdictional error by the Tribunal and his Honour dismissed the application.

The Notice of Appeal 11 Paragraph one of the notice of appeal summarises the procedural history of the appeal. The notice of appeal then sets out the following grounds of appeal: '2. The Honourable Magistrate failed to consider that the Refugee Review Tribunal erred in taking into consideration the threat to life or liberty, significant harassment the Appellant (I) will experience on return back to his country of residence. a) I respectfully state that the above findings were inconsistent with my genuine fear of persecution in Bangladesh. The Tribunal Member consciously choosing to ignore my explanations in support of my claims as no significant and/or less significant, therefore the Tribunal's said decision was not based on all the material before it and failed in its duty. b) The member continued an erroneous approach to my claims and failed to address his mind to the material questions arising out of those materials in support of my claims for protection in Australia. 3. The Honourable Magistrate should have found that the Tribunal erred in law amounting to jurisdictional error in determining that the Appellant does not have any profile and is not a person to whom Australia has protection obligation under the Refugee Convention and does not satisfy the criterion set out in s.36(2) of the Act for a protection visa. a) There are quite a number of instances where the Tribunal had drawn conjectural inferences and made factual findings on rather slight evidence and upon reading the documentary materials and listening to the audio tapes it is possible to come to conclusion on the facts which are the opposite of the findings made by the Tribunal b) It shown on the evidence that it was not open for the Tribunal to make the findings that it made.' 12 The grounds raised on the appeal suggest that the appellant takes issue with those of he grounds raised before Driver FM, that encompassed assertions that the Tribunal consciously chose to ignore material before it and that the Tribunal erred in law. The Federal Magistrate dealt with the first of these in paragraphs 15 to 18 of his Honour's reasons. The passage of the Tribunal's reasons with which the appellant took issue contained an account of the appellant's evidence before the Tribunal regarding how often he went to his business. However, when the Federal Magistrate read out the passage in question, the appellant agreed with its accuracy. His Honour also found that each of the claims made by the appellant had been considered by the Tribunal. 13 The Federal Magistrate's reasons in respect of the grounds based on what was said to be error of law are set out in paragraphs 10 to 12 and 19 to 21 of his Honour's reasons. In essence, his Honour found that the Tribunal's reasons indicated that it properly understood the law in undertaking the review of the Delegate's decision. 14 The notice of appeal suffers from a lack of particularisation. It seems to raise two broad issues. The first relates to factual findings by the Tribunal, being an alleged failure to take certain 'material' matters into consideration, a failure to base the decision on all of the material before it and making findings on 'rather slight' evidence. This is said to give rise to the conclusion that it is possible to have come to a different conclusion on the facts. That does not amount to jurisdictional error. There is no demonstration or example in the notice of appeal that leads to the conclusion that it was not open to the Tribunal to make the findings that it made. 15 The Tribunal's conclusion was based on an assessment of the credibility of the appellant. Such an assessment is a function committed to the Tribunal and not a function committed to this Court: NABT v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 522. The Tribunal's conclusion was also based on the facts of the case before it. The Tribunal found that the appellant did not establish that he would be persecuted in Bangladesh or that such a fear, if it existed, was well-founded. This was solely a question of fact for the decision maker: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (1999) 168 ALR 407. 16 There is no substance to the grounds of appeal which are directed to the Tribunal's factual findings. The Tribunal set out each of the appellant's claims and dealt with them. It was entitled to reject those claims and similarly entitled, as a matter of law, to accept the independent evidence to conclude that truth of the claims would not change the result. The expression of the Tribunal's findings and conclusions based on those findings was consistent with a correct interpretation of the relevant law. The Tribunal found, on the alternative basis, that there was no 'real chance in the future of the [appellant] being selected or targeted for persecution for any Convention reason'. This shows that the Tribunal made findings in order to determine whether any fear was well-founded, an essential element in the Convention definition of a refugee (which, in turn, is an essential element in the criterion for a protection visa in s 36 of the Act. 17 The second issue is the assertion that the Tribunal Member consciously chose to ignore the appellant's explanations in support of his claims, again no particulars are given and no basis is provided for the assertion. Such an assertion, without more, is not sufficient to establish jurisdictional error (NADR v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCR 465, per Kiefel J at [31]). There, Federal Magistrate found no substance in this allegation. None is apparent.

Written and oral submissions 18 The applicant also provided detailed written submissions which significantly expanded the basis of his appeal. The appellant, assisted by a Bengali interpreter, explained those grounds at the hearing. 19 When asked to explain the basis of his appeal, the appellant referred to a number of factual matters that he had raised with the Tribunal and with the Federal Magistrate, such as the number of times he would go to his business premises and why he went to India. He said that the Tribunal did not accept his explanations. 20 I then took the appellant through his written submissions and asked him to explain each 'ground' as there set out. I will refer to those paragraphs as they are numbered in the written document and I have not changed the appellant's terminology. 1.a) Whether the Federal Magistrate Court failed to find that the Tribunal erred in finding to consider adequately whether the appellant's (my) membership with Jatiya Party headed by ex-president Hussain Mohammed Ershad give rise to a well-founded fear of persecution and whether the applicant is likely to suffer serious harm 21 The appellant explained that the Tribunal put to him that many documents from Bangladesh were false and not credible. His complaint was that the Tribunal did not take the matters he raised sufficiently seriously. The substance of this ground, according to the appellant, was that the Tribunal did not believe him. This does not amount to jurisdictional error. 1.b) Whether the Federal Magistrate Court failed to find that the Tribunal erred in finding that there is a real chance in the future of the applicant (me) being selected or targeted for persecution for any convention reason 22 The appellant explained that he disputed the Tribunal's finding of fact and does not assert that the Tribunal failed to make a finding. The Tribunal did find that, even if it were to accept the appellant's claims, it was not satisfied, by reason of independent evidence that it did accept, that there is a real chance in the future of the appellant being selected or targeted for persecution for any Convention reason. This ground does not disclose jurisdictional error. 1.c) Whether the Federal Magistrate Court failed to find that the Tribunal failed to perform the duty imposed on it by the Migration Act 1958 (s 425(1)) to decide the appellant's (my) case on the material put to it and by conducting an appropriate inquiry there on 23 The appellant said that his complaint was that he was able to say things to the Tribunal but that he was not believed. The appellant did not raise any matter that could amount to a breach of s 425(1) of the Act. Indeed, I drew to the appellant's attention that, before the Federal Magistrate, he had raised the same allegation but had specifically conceded that there had been no breach of that section of the Act. He did not resile from that concession.

d) Whether the Federal Magistrate Court failed to find that the Tribunal failed to perform its duty imposed by s 420 (2)(b) of the Migration Act 1958 24 The appellant said that he had been advised by a friend to include this ground. He said that his complaint was just the fact that he was not believed. 1.e) Whether the Federal Magistrate Court failed to find that the Tribunal overlooked as insignificant or consciously choosing to ignore the country information from independent sources in support of the appellant's (my) genuine fear of persecution and based its findings on official reports 25 The appellant explained this ground by saying that there were a number of publications in Bangladesh that were not taken into consideration. He did not identify any such publications but said that he did show some publications to the Tribunal. He could not recall any country information specifically nor what country information he was referring to. When asked to explain the basis of the allegation that the Tribunal consciously chose to ignore country information, the appellant said that he told the Tribunal his beliefs as to the facts and that his beliefs were not accepted. The allegation was, he said, 'simply my conclusion'. The appellant has not established any basis for his assertion and has not demonstrated jurisdictional error. 1.f) Whether the Federal Magistrate Court failed to find that the Tribunal erred to take into adequate consideration of the appellant's (me) trauma are characterized as a lack of satisfaction (myself) based on an intention not to pursue enquiries in that respect is a failure of its duty imposed by s 420(2)(b) of the Migration Act 1958 26 When asked to explain this ground, the appellant asked that it be 'skipped'. I treated this request as a withdrawal of this ground of appeal. 1.g) Whether the Federal Magistrate Court failed to find that the Tribunal failed to accord procedural fairness by not making aware of and given adequate opportunity to the applicant (me) to respond to adverse material in possession of the Tribunal. 27 The appellant said that he did have the opportunity to respond to country information but that, to some extent, he did not agree with it. He said that he answered all of the questions put to him by the Tribunal but was not able to give some details and his case was not believed. He gave no particulars of the adverse material referred to. I note that, before the Federal Magistrate, the appellant conceded during cross-examination and during argument that adverse country information was put to him and that he had had an opportunity to respond to it. The Federal Magistrate found that there was no substance to this ground. None has been established before me. 1.h) Whether the Federal Magistrate Court erred to find that the Tribunal had given the Appellant a reasonable opportunity to address the issues before it. 28 Nothing further was added to explain this ground, other than a complaint as to the Tribunal's treatment of facts (not specified) as irrelevant. The appellant conceded before the Federal Magistrate and before me that he was given a reasonable opportunity to address the issues before the Tribunal. There is no substance to this ground. 29 In the written submissions, the appellant identified the legal issues for consideration as: 'a) My case is that the Refugee Review Tribunal exceeded its jurisdiction or constructively failed to take into account relevant considerations; b) The Tribunal did not permit to give my evidence in accordance with Section 425 of the Migration Act of 1958.' 30 No particulars were given of the considerations that the Tribunal failed to take into account nor why such failure should amount to jurisdictional error or where there was error on the part of the Federal Magistrate. I note again the concession before the Federal Magistrate that there had been no breach of s 425 of the Act. On the basis of the legal issues as there found, it is difficult to see error on his Honour's part. 31 The grounds of the appeal were then further elaborated in the written submissions and then at the hearing. Some of the matters repeated those dealt with above and I will not repeat the appellant's submission in respect thereto unless additional matters were raised when this paragraph of the written submissions were addressed at the hearing. Again, I will adopt the numbering in those submissions and not changed the appellant's terminology.

The return back to Bangladesh in the foreseeable future, he might wish to pursue the basic human right of associating there with political party of his choice, namely Jatiya Party;
The Tribunal's rejection of the appellant's explanation that he was victim of physical harm and is genuinely fearful for his safety that are serious threat to his liberty and comes within the meaning of the Refugee Convention 36 The appellant explained this ground as based upon the fact that he said a number of things to the Tribunal but that he was not believed. He did not point to findings which were not available on the evidence. In other words, this goes only to the Tribunal's findings of fact on the evidence before the Tribunal and is not open to review.

I am a Bangladeshi national by born. I have political profile that put my life into jeopardy. The RRT asked me numerous irrelevant questions at the oral evidence regarding my political profile and ignored the persecution I experienced due my political profile that put my life at risk. In doing so the Tribunal may be said to have ignored relevant material, relied on irrelevant material and/ or, made findings which were erroneous or mistaken 37 The appellant made it clear that this ground was a complaint that facts raised by him, as to his inability to stay at home, were not believed.
The questioning by the Tribunal during the hearing seemed to be somewhat superficial and a number of questions assumed the existence of facts, which had not been put to me. The Tribunal Member seems to have interviewed the appellant at the time of oral evidence with a view to refusing his application for protection visa that led him to come up with a negative approach of rejecting his claims. The Tribunal erred in procedural fairness to come to a decision 38 The appellant did not provide any basis for this assertion as framed. He said that the Tribunal had difficulty believing the facts that he put before it and that the Tribunal told him that it had such difficulty. He said that he did not want to say that the Tribunal had interviewed him with a view to refusing his application or such an idea. This is another ground based on the findings of fact. These findings were open to the Tribunal on the evidence before it.
It is clear that the Tribunal Member had failed to honour his undertaking and he proceeded to make his decision later. The requirement to put information to an applicant is contained in s 424A 39 The appellant withdrew any ground based upon any alleged undertaking or breach of any undertaking by the Tribunal. He repeated that he had not been believed. However, in elaborating this ground, the appellant raised an additional matter. He said that he told the Tribunal that he could give further evidence if given time to do so and that the Tribunal moved to the next question. He said that he could not recall if he raised this matter before the Federal Magistrate. The appellant was quite unclear as to the basis for this assertion which was made by way of submission at the hearing before me and was unsupported by evidence. He also said that his complaint was that the Tribunal did not ask him for more evidence. Clearly, the Tribunal was under no such obligation. 40 Counsel for the respondent submitted that, even if I were to accept the fact, as framed by the appellant that he told the Tribunal that he could give further evidence in support of his claims if given time, this would not amount to a denial of procedural fairness. Counsel pointed to the failure to show unfairness in the way the Tribunal behaved and failure to specify the nature of the material or to demonstrate that it could have made a difference. 41 Counsel also pointed out that the Tribunal proceeded on an alternative basis of acceptance of the appellant's claims and, on that basis, was still not satisfied that the appellant had a well-founded fear of persecution. Accordingly, further evidence to support the appellant's claims, such as hospital records to support his claims of beatings (an example given by the appellant), would have no further work to do. 42 The other matter relied upon by counsel is that the appellant raised this matter in the course of the appeal and there was no affidavit or other evidence in support. While it may be said that some of the grounds pleaded broadly encompass denial of procedural fairness, there is no pleading that specifically raises this allegation and no reference to it in the notice of appeal to or the decision of the Federal Magistrate. Further, counsel submitted that leave should not be given to the appellant to raise this ground for the first time on appeal, even if such leave were sought, as it is a matter that could have been met by evidence at the trial and is unlikely to be successful. 43 The allegation now under consideration has not been raised in the notice of appeal, nor in the extensive written submissions filed by the appellant. The appellant did not raise the matter when asked what he wished to say in support of his appeal. It was first raised and then in a very general and inconsistent way when I took the appellant through his written submissions, paragraph by paragraph. There was no explanation for the failure to raise this ground before the Federal Magistrate. It is not for the Court to conduct the appellant's case for him. The appellant was given every opportunity to present his appeal. The most that can be said is that it is a very general allegation, without particulars or evidence, that is being raised for the first time on appeal. It is a matter that could have been met by evidence from the respondent. In a case where, had the issue been raised before at first instance, evidence could have been given which might have prevented the point from succeeding, the issue will not be allowed to be raised on appeal (H v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 43 per Branson and Katz JJ). 44 At its highest, it seems to relate to material that would support the appellant's factual claims. While the Tribunal did not accept the appellant's claims for reasons that it gave, it also made clear its findings if those claims were accepted. 45 I appreciate that the appellant is unrepresented and, for that reason, I did not simply accept the very limited oral submissions that he offered but carefully took him through each of the matters in his written submissions in order to clarify and elucidate the various matters raised, whether or not they had formally been included in the notice of appeal. However, it is important that the boundaries of proper assistance by the Court to an unrepresented litigant be recognised, even where the case is of utmost importance to him (Minogue v Human Rights & Equal Opportunity Commission (1999) FCR 438. 46 I am of the view that the appellant should not be given leave to raise this additional ground. In any event, even if he were given leave, it is clear to me that, as framed, the appellant could not establish that there has been a denial of procedural fairness on the part of the Tribunal.

Conclusion 49 The appellant has failed to establish jurisdictional error on the part of the Tribunal or error on the part of the Federal Magistrate. The appeal should be dismissed with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Solicitor for the Respondent: Australian Government Solicitor

Migration Act 1956(Cth)

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