SZANH v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2004-10-06|Before: Sackville J

BACKGROUND 8 The appellant is a citizen of Bangladesh, born in Dhaka in 1965. He is a Muslim. According to the RRT, he lived at the one address in Dhaka from 1965 until August 2001. 9 The appellant arrived in Australia on 1 September 2001. He travelled on a Bangladeshi passport issued on 10 January 2001. His Australian visa was granted on 22 August 2001 and he left Dhaka legally on 31 August 2001, travelling directly to Australia. 10 The appellant applied for a protection (class XA) visa on 4 September 2001. This application was refused by the Minister's delegate on 17 December 2001. The appellant then sought review of the decision by the RRT. 11 The appellant claimed to have been an active member of the student wing of the Bangladesh Nationalist Party ('BNP') from about 1990 until he left Bangladesh in 2001. He said that he had become the vice-president of the BNP student wing in north Dhaka in 2000. He said that he became an influential student leader and, as a consequence, the rival Awami League made him a target. Indeed, two attempts had been made on his life in 2001, prompting him to leave Bangladesh for his own safety. 12 The appellant claimed also to have performed as an artist at an open air concert at which nine artists had been killed by Muslim terrorists. As an artist, he had also been threatened by Muslim fundamentalists. 13 In addition, the appellant claimed that in 2001 a court warrant had been issued against him on the basis of a 'false and fabricated case'. Moreover he had been attacked by fundamentalist Muslim terrorists because he was a supporter of the feminist author, Taslima Nasreen.

24 The RRT found that even if, contrary to its finding, there had been a concocted case on foot against the appellant, he would be able to establish his innocence in court since the judiciary in Bangladesh is independent. 25 The RRT noted that all of the threats or attacks on the appellant had been described as happening in Dhaka. If the appellant had thought that he was in real danger there, the 'obvious and reasonable thing to do would have been to take himself to another part of Bangladesh'. The RRT found that his repeated failure to take himself away from the district where he was supposedly in danger showed that he did not fear persecution. The most that could be said about the appellant's situation was that if he returned to Dhaka he might face some danger from old opponents or the police might wish to contact him in relation to a false case. Even this, however, was unlikely. 26 The RRT found on the basis of country information that there are many other parts of Bangladesh in which it would be reasonable to expect the appellant to relocate to secure his safety, should that be necessary. The RRT pointed out that he had managed to support himself in an unfamiliar country for 20 months. The RRT had no doubt of his ability to support himself in the country in which he had been born, educated and spent most of his life. If the appellant wished to pursue politics in Bangladesh, the country information indicated that he would be able to do so, especially if he pursued activities outside Dhaka. 27 The RRT rejected the appellant's claims to have been threatened by reason of his support for a particular feminist. The RRT also rejected the claim that he was in danger from fundamentalists because of his profession as an artist. 28 The RRT found that, apart from the issues it had addressed, there were three other matters indicating that the appellant did not fear persecution in Bangladesh. First, he had obtained a passport in his own name in January 2001 but had not left Bangladesh for about eight months, notwithstanding that he claimed to have been in fear of his life. Secondly, even after the supposed threat of the 2001 bomb blast, he had not changed his address, except perhaps very briefly. Thirdly, he had left Bangladesh legally, using a passport issued in his own name. 29 For these reasons, the RRT was not satisfied that the appellant was a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees.

THE MAGISTRATE'S REASONS 30 The learned Magistrate rejected a number of submissions made by the appellant that are not referred to in the notice of appeal filed in this Court or in the appellant's written submissions. His Honour also rejected the four arguments identified in the notice of appeal. 31 First, his Honour rejected any allegation of bad faith, bias or a reasonable apprehension of bias. The RRT had 'rationally discussed' each of the appellant's claims. The fact that the RRT had rejected all such claims gave rise to no apprehension of bias. His Honour accepted that the RRT's reasoning is not always entirely convincing and that the presiding member had expressed himself unfortunately on one occasion. However, these matters fell short of establishing a reasonable apprehension of bias on the part of the Tribunal. While the appellant had not been assisted by his choice of migration agent, there was nothing in the RRT's reasoning to indicate that it had a 'particularly jaundiced view' of the appellant simply by reason of his choice of adviser. 32 The Magistrate also pointed out that there was nothing unusual about the RRT making an oral decision immediately after the hearing. While the appellant had suggested that the RRT's swift decision showed that it had failed to investigate the issues fully, an oral decision is a common occurrence with Tribunals and courts. It is in no way indicative of bias. 33 Secondly, s 422B of the Migration Act was irrelevant to the case, since it had not been in force at the time of the RRT's decision. 34 The Magistrate addressed together the appellant's arguments that the RRT had breached s 424A of the Migration Act and had also contravened the common law rules of procedural fairness. His Honour pointed out that if the RRT had relied on country information in reaching its findings and had failed to disclose that information to the appellant, the failure might constitute a breach of both s 424A(1) of the Migration Act and of the common law rules of procedural fairness. However, the only relevant country information adverted to by the RRT concerned false charges laid for political reasons in Bangladesh and the issue of document fraud in that country. 35 His Honour noted that the RRT member recorded that he had raised with the appellant at the hearing the country information concerning the laying of false charges and the extent to which justice could be obtained through the superior courts in Bangladesh. His Honour found that this disclosure was sufficient to discharge the RRT's obligation under s 424A(1) of the Migration Act and under the common law. 36 His Honour observed that the RRT's reasons did not make it clear whether the RRT had made a sufficient disclosure of the country information concerning document fraud in Bangladesh to satisfy s 424A(1) or the common law rules of procedural fairness. Even if the RRT had not made sufficient disclosure, however, the country information on the topic was not significant to the RRT's decision. The RRT had regarded the photocopied letter of 24 March 2003 as irrelevant for reasons other than document fraud. While the RRT had referred to document fraud in the context of its finding that the appellant was not wanted by the Bangladeshi authorities, the reference showed that that document fraud played only a small part in the RRT's ultimate finding. 37 The Magistrate observed, that in any event, the RRT had gone on to consider the position if indeed false charges had been laid against the appellant. Since it had done so, any breach of the common law obligation of procedural fairness had not resulted in any practical unfairness. Any breach of s 424A(1) of the Migration Act, as a matter of discretion, was not such as to warrant relief being granted to the appellant. 38 For these reasons, the Magistrate dismissed the application.

Bias or Apprehended Bias 39 The appellant's principal complaint about the RRT's consideration of his claims was that it had made a decision first and had tailored its reasons to fit the decision. This complaint, however, misunderstands the significance of an oral decision handed down at the conclusion of a hearing. As the Magistrate pointed out, it is commonplace for courts and tribunals to announce a decision or give ex tempore reasons immediately the hearing is completed. There are obvious reasons why such a course is desirable. Not the least is that it avoids the uncertainty and anxiety experienced by the parties pending the making of a decision. Sometimes ex tempore or oral decisions are necessary to enable the decision maker to cope with a very heavy workload. The making of such a decision is not of itself indicative of bias or of insufficient attention to the claims made by an applicant. 40 The Magistrate also addressed the question of apprehended bias, even though the appellant had not expressly contended that the RRT's conduct gave rise to any such apprehension. In particular, the Magistrate considered whether the RRT member had created a reasonable apprehension bias by referring to his 'familiarity with the [appellant's] adviser's methods from other cases'. 41 In Australia, the governing principle is that a decision maker: 'is disqualified if a fair-minded lay observer might reasonably apprehend that the [decision maker] might not bring an impartial mind to the resolution of the question the [decision maker] is required to decide.' Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337, at 344 [6], per Gleeson CJ, McHugh, Gummow and Hayne JJ. The application of this test does not involve a prediction as to how the decision maker will in fact approach the matter. The question is one of possibility (real and not remote), not probability: Ebner v Official Trustee, at 345 [7]. 42 It is no doubt easy for a decision-maker to become jaded and suspicious when faced with a succession of applications making essentially the same factual claims on behalf of different applicants. But a body such as the RRT, which has regular contact with migration agents and other representatives of claimants, needs to be careful that it does not impute to a claimant the deficiencies of a particular agent or representative. The fact, for example, that an agent has engaged in inappropriate practices does not mean, of itself, that the claimant's account of events should be dismissed as untrue. Even if an agent has acted improperly in the very case before the RRT, that does not necessarily mean that his or her client is aware of or has endorsed the impropriety, or is not giving a truthful account of events. 43 Like the Magistrate, I think that the RRT could have expressed itself more carefully on some matters in the present case and could have made more explicit the point of its reference to 'the adviser's methods'. However, I do not think that the RRT's reasons or conduct would cause a fair-minded lay observer to reasonably apprehend that the RRT had not brought an impartial mind to the question it had to resolve. I interpret the reference to the adviser's methods as a comment on the latter's propensity to use the same 'template' to set out claims on behalf of various applicants. This was a matter that the RRT could properly take into account in assessing the credibility of the appellant's claims. The reasoning does not suggest that the RRT closed its mind to the possibility that, despite the agent's conduct, the appellant was telling the truth. Nor does the reasoning suggest that the RRT was unwilling fairly to consider the material upon which the appellant relied. Indeed it analysed that material quite closely. Accordingly, in my opinion, the Magistrate was correct to conclude that the RRT's decision was not affected by a reasonable apprehension of bias on its part.

Section 422B 44 The appellant's reliance on s 422B of the Migration Act was misplaced. As I have explained, that provision did not apply to the proceedings before the RRT.

Section 424A 45 The appellant's written submissions contended that the Magistrate erred in failing to find that the RRT had not discharged the obligation imposed upon it by s 424A(1) of the Migration Act to provide particulars in writing of the adverse country information concerning document fraud. The RRT's reasons refer to a United States country profile on Bangladesh which warned of frequent incidence of document fraud among Bangladeshi asylum seekers. In particular, the profile reported that a survey of purported arrest warrants produced by Bangladeshi asylum seekers showed that they were almost invariably fraudulent. 46 The RRT's reasons relied on the country information relating to fraudulent documents on two occasions. · The RRT cited the country information to support its conclusion that little credence could be attached to the photocopied letter of 24 March 2003 purporting to support the appellant's claim to have been a political target in Bangladesh because of his prominent position in the BNP student wing. · The RRT also cited the country information to support its finding that a photocopy of a police report purporting to show that the appellant had been involved in disturbances, was unreliable. 47 It appears that the RRT did not give the appellant particulars in writing of the country information relating to document fraud. Nor was any written invitation extended to him to comment on the particulars. However, I think that there are three reasons why the absence of any such written particulars or invitation did not constitute a jurisdictional error supporting the grant of relief in the nature of mandamus or prohibition. 48 First, the exception in s 424A(3)(a) applies to the relevant information, that is, country information indicating that asylum seekers from Bangladesh often submit fraudulent documentation in support of their cases. Differences of opinion have been expressed within the Court as to the proper interpretation of s 424A(3)(a). It is, however, not necessary to trace the course of authority in view of the recent decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264.

49 In MIMIA v NAMW, Merkel and Hely JJ pointed out (at [126]) that one area of controversy has been whether or not s 424A(3)(a) of the Migration Act contains two separate criteria, namely that the information is not specifically about the applicant or another person and is just about a class of persons of which the applicant and the other person is a member, so that each criterion must be satisfied. The alternative construction is that: 'the reference to the class of persons is not another criterion to be met, but, rather, underlines the specificity required in respect of the applicant or another person by precluding any argument that reference to a class can be taken to be a reference to all individuals falling within it'.

Their Honours held that the alternative construction of s 424A(3)(a) of the Migration Act is correct (at [138]). Beaumont J came to a similar conclusion (at [68]-[71]).

50 It follows on the authority of MIMIA v NAMW that the exception in s 424A(3)(a) applies to the country information relating to document fraud relied on by the RRT. The information was not specifically about the appellant. It was about the reliability of documents produced by Bangladeshi asylum seekers. Accordingly, the RRT was not obliged by s 424A(1) of the Migration Act to give written particulars of the information to the appellant. 51 A second reason why s 424A(1) of the Migration Act does not apply in the present case is that, on the current state of the authorities, the information concerning the fraudulent production of documents by Bangladeshi asylum seekers was not the reason or part of the reason for affirming the decision under review. Although s 424A(1) seems to identify an issue to be addressed prospectively, the question of compliance with the provision is to be judged retrospectively in the light of the actual decision: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, at 478 [29], per Finn and Stone JJ. As Allsop J (with whom Heerey J agreed) observed in Paul v Minister for Immigration and Multicultural Affairs (2000) 113 FCR 396, at 428-429 [99]-[100]: 'for information "to be the reason or a part of the reason" for the affirmation of the delegate's decision, some unbundling of the immediate reason for the affirmation is required … [T]he immediate or ultimate reason is the finding, or state of satisfaction, about the lack of protection obligations. Section 424A is intended to be directed to information being the reason or a part of the reason for that conclusion. In any given circumstance in may not be straight forward to identify from an expressed reasoning process whether information was the reason or a part of the reason for affirmation.'

52 In VAF v MIMIA, Finn and Stone JJ noted (at 478 [33]) that the RRT's reasoning may involve the expression of views on issues of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that ultimately sustains that decision. According to their Honours, not all such views will necessarily constitute part of the reason for the RRT's decision. They said that: '[w]hen a tribunal's reasons are to be evaluated for s 424A(1) purposes, the court as a matter of judgment is required to isolate what were the integral parts of the reasons for the tribunal's decision. That task, necessarily, is an interpretative one.'

In the event, Finn and Stone JJ held that the particular information in that case could (at 481 [41]): 'only be categorised as being relatively minor and unimportant in the scheme of things. It was not so integral to the reasoning process rejecting the appellant's claim as to require as a matter of fairness that the appellant be told that information … and why it was relevant to the review…'

53 In the present case, the letter of 24 March 2003 was discounted by the RRT before it addressed the question of authenticity of that document. The RRT found that the document did not amount to evidence for the appellant's particular leadership claim, because it did not specify the title or period of leadership position he supposedly held. The dubious provenance of the letter was merely an additional comment that was peripheral to the reasoning of the RRT. In any event, the RRT found that the appellant's case was fatally flawed because his claim was simply not credible when viewed against the objective circumstances, notably his residence for many years at the one address. 54 The appellant's claim that he was wanted by the Bangladeshi authorities was rejected for four reasons. The first and presumably most important of these was the fact that he had made conflicting claims as to whether he was indeed wanted by the authorities. The fourth reason was the unreliability of the purported police report. If matters stood there, this may have been part of the reason for affirming the decision, albeit a very minor part. However, the RRT went on to find that even if there were a false case against on foot against the appellant, he would be able to receive a fair trial in Bangladesh and thus have the opportunity of demonstrating the falsity of the case. In view of this conclusion, on the approach of the majority in VAF v MIMIA, I do not think that the information relating to document fraud in Bangladesh can be said to be part of the reason for concluding that the appellant did not face persecution in Bangladesh by reason of false claims brought against him. 55 Thirdly, the RRT advised the appellant at the hearing that documents provided by Bangladeshi asylum seekers were frequently fraudulent. As the Magistrate noted, the RRT member recorded in his reasons that at the hearing he had: 'noted the poor reputation of Bangladeshi documents and my familiarity with the adviser's methods from other cases.'

56 In NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 214, the RRT failed to provide in writing to the appellant the information and particulars required by s 424A(1) of the Migration Act. However, the Full Court held that the RRT had exhibited fairness to the appellant, in that he had been effectively told of all the matters contemplated by s 424A(1) and given an opportunity to respond to them. In these circumstances, the Full Court held (at 219) that the failure to comply with the requirements of s 424A(2) was not a matter of substance, but went to the purely procedural question of the method or vehicle of conveying the substantive information referred to in s 424A(1). The Full Court further held that Parliament could not have intended that a breach of the condition as to the manner of delivery of the relevant substantive information should result the in the invalidity of the RRT's decision. Consequently, the RRT had not committed a jurisdictional error and there was no basis for making an order in the nature of mandamus or prohibition. 57 In the present case, the transcript of the proceedings before the RRT was not in evidence before the Magistrate. I infer from the RRT's reasons that the member raised with the appellant at the hearing both the poor reputation of documents relied upon by Bangladeshi asylum seekers and the member's own familiarity with false documents that had been submitted in other cases. It is not clear whether the RRT identified country information as the source of information conveyed to the appellant. Nonetheless, I think it is clear enough that the RRT in substance put to the appellant its concerns about the frequency with which Bangladeshi asylum seekers have relied on fraudulent documents. The appellant and his adviser were given an opportunity to respond to those concerns at the hearing. 58 In my opinion, the procedure adopted by the RRT involved no substantive unfairness to the appellant. He was told of the RRT's concerns about the frequent use of fraudulent documentation by Bangladeshi asylum seekers and alerted to the fact that the RRT member had experience with such documentation himself. There is nothing to indicate that the appellant or his adviser sought additional time in order to authenticate the documentation that had been produced by or on behalf of the appellant. In these circumstances, in my view, any breach of s 424A(2) of the Migration Act was non-jurisdictional in character and, in view of the decision of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, provides no basis for an order in the nature of mandamus or prohibition. Nor is there any basis for the grant of injunctive relief, both because of the effect of s 474 of the Migration Act and because, as a matter of discretion, I would refuse relief given the absence of any prejudice to the appellant by reason of any breach of s 424A(2): see NAHV of 2002 v MIMIA, at 221. 59 Neither the notice of appeal nor the appellant's written submissions specifically complain about the RRT taking into account the member's own experience with document fraud by Bangladeshi asylum seekers. Nonetheless, I have considered whether s 424A(1) of the Migration Act required the RRT to give particulars of the relevant information, presumably that in the RRT member's experience of decision-making in the RRT Bangladeshi asylum seekers have frequently relied on documents that are not genuine. 60 For much the same reasons as apply to the country information, I do not think that s 424A(1) has been breached by reason of the RRT not having given the appellant particulars in writing of the RRT member's experiences with document fraud perpetrated by Bangladeshi asylum seekers and, if it has, I do not think that the breach amounted to jurisdictional error. First, on the authority of MIMIA v NAMW, s 424(3)(a) exempts the information from the requirements of s 424A(1). Secondly, the information was not the reason or part of the reason for the RRT's decision. Thirdly, the substance of the information was disclosed to the appellant at the hearing and an opportunity given to him to respond. Accordingly, any breach of s 424A(2) did not constitute a jurisdictional error.

Procedural Fairness 61 Since s 422B of the Migration Act was not in force at the time the RRT gave its decision, it was bound by the common law rules of procedural fairness. Compliance with s 424A of the Migration Act does not necessarily mean that the RRT accorded the appellant procedural fairness. The basic test to be applied is whether the RRT gave the appellant an opportunity to deal with adverse information that was credible, relevant and significant: Kioa v West (1985) 159 CLR 550, at 629, per Brennan J; Minister v NAMW, at [140] ff, referring to the principal authorities. 62 In my opinion, the RRT did not deny the appellant procedural fairness. As I have explained, the RRT drew to the appellant's attention the substance of the country information relating to document fraud and gave him an opportunity to respond to that information. The appellant's attention was also drawn to the RRT's own experience of Bangladeshi asylum seekers relying on fabricated documents and a similar opportunity to respond was given to the appellant. The procedure adopted by the RRT did not result in any practical injustice to the appellant. In any event, the question of document fraud was of peripheral relevance to the RRT's decision.

Bail 63 In addition to the issues I have identified, the appellant complained that the RRT should have discussed the availability of bail when considering the likelihood that a false case had been brought against him. The basis of the complaint is obscure, since the RRT referred to the enactment of the Speedy Trial Act in Bangladesh which provided for bail. In any event, the existence or otherwise of a false case against the appellant was a factual matter for the RRT to determine.

CONCLUSION 64 The appeal must be dismissed, with costs. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate: Dated: 6 October 2004 The appellant appeared in person.

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 27 September 2004

Migration Legislation Amendment (Procedural Fairness) Act 2002(Cth)

THE APPEAL 1 This is an appeal from a decision of a Federal Magistrate dismissing an application for judicial review of a decision made by the Refugee Review Tribunal ('RRT') on 9 April 2003: [2004] FMCA 385. The RRT affirmed the decision of the delegate of the respondent ('Minister') not to grant the applicant a protection visa. 2 The appellant was not legally represented at the hearing of the appeal. However, he filed an amended notice of appeal and written submissions that were evidently prepared by a person with some legal knowledge. The grounds of the appeal, in substance, are that the Federal Magistrate erred in failing to find that: (i) the decision of the RRT was 'pre-determined' and thus (presumably) was infected by actual or apprehended bias; (ii) the RRT had breached s 422B(1) of the Migration Act 1958 (Cth) ('Migration Act'); (iii) the RRT had breached s 424A(1) of the Migration Act; and (iv) the RRT had denied the appellant procedural fairness, thereby committing jurisdictional error.

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