SZBHT v Minister for Immigration [2005] FMCA 622

(1) Declaration that s. 424A(3) of the Migration Act does not apply to a bill of discovery in a chapter 3 Court.

(2) Bill of discovery of all documents, electronic or otherwise, in the possession or control of the second and/or third defendant -

I note that counsel for the applicant conceded that these words should read first and second respondent.

- containing or relating to country information in respect of Bangladesh. Direction that proceedings be stayed until there is a return in accordance with the bill of discovery.

(3) Costs.

The respondent opposes the relief sought. Counsel for the respondent, Mr Johnson, pointed out that the respondent does not contend that

s.424A(3) does apply to discovery. He said that it has nothing to do with the powers of the Federal Magistrate's Court. Rather, it bears upon the Tribunal's procedures as opposed to those of the Court.

In his written submission, Mr Johnson says, at paragraph 13:

Section 424A(3) says nothing about how the Courts perform their judicial function. At most it affects the underlying rights or obligations, the observance of which the Courts ultimately decide.

In the circumstances, it appears to me that there is no issue about

s.424A(3) in this interim application. Mr Levet, for the applicant, says it does not apply to a bill of discovery. Mr Johnson for the respondent says that the respondent does not claim that s.424A(3) does apply to discovery in this Court.

In my view there is no issue about s.424A(3) for the purpose of this interim application. It is, therefore, unnecessary for me to decide whether or not I should make a declaration that s.424A(3) does not apply, as no one is arguing to the contrary.

The parties join issue over the applicant's application for a bill of discovery. It would be helpful, at this stage, to give a very brief background in order that the issue may be seen in context.

The applicant is a citizen of Bangladesh who arrived in Australia on a student visa on 13 February 1999. He applied for a protection

(class XA) visa on 21 January 2000. A delegate of the Minister refused his application.

The applicant sought a review from the Refugee Review Tribunal.

The issues before the Tribunal are these:

a) The applicant said that he was a homosexual, and

b) The applicant said that he had a well-founded fear of persecution if he returns to Bangladesh.

The Refugee Review Tribunal did not agree. The Tribunal was not satisfied that the applicant was in fact a homosexual. The Tribunal also found that:

There is no country information that supports a claim that gays are persecuted in Bangladesh.

The purpose of the application for the bill of discovery is to go through the Department of Immigration and Multicultural and Indigenous Affairs, CISNET, database, in an effort to find information that supports the applicant's claim that homosexuals face persecution in Bangladesh.

CISNET is a database maintained by the Department, which contains independent country information in two broad categories:

b) Documents not in the public domain, being material collected by the department related to various countries.

This is a private store of information which is generally unavailable to applicants, as Mr Levet of counsel put to me. It is this latter information to which the applicant seeks access. Mr Levet indicated that of course there would be no application for an access to the material that is already in the public domain.

The reason why this material is sought is that the applicant's solicitor, Dr Bharati, is aware that there is material that shows that homosexuals are likely to face persecution in Bangladesh. The reason that the applicant's solicitor knows that material exists in the database supporting the applicant's claim is that he acted for two applicants in an earlier case who were homosexuals from Bangladesh.

In that case there was evidence that there was independent country information that showed that homosexuality was not accepted or condoned by society in Bangladesh, and that to live openly as a homosexual would invite trouble, including the possibility of being bashed by the police.

That indeed is a matter that went from the Refugee Review Tribunal to the High Court of Australia eventually. And the reference to that is Appellant S395 and S396 of 2002 v Minister & Multicultural & Indigenous Affairs [2003] HCA 71.

Despite this, the Refugee Review Tribunal in the case before me said categorically that there was no country information that supports a claim that homosexual people are persecuted in Bangladesh.

This was notwithstanding the fact that the proceedings in the Refugee Review Tribunal in the case before me took place more than a year after the Refugee Review Tribunal proceedings which were referred to in the High Court case at S395.

As Mr Levet of counsel pointed out quite forcefully, that statement was just wrong.

I have had the benefit of reading written submissions both by counsel for the applicant and counsel for the respondent. I had the benefit of hearing extensive oral submissions from both counsel when the matter was before me on Monday, 2 May.

The counsel for the applicant is aware of the fact that there is an obligation on the Tribunal to make available to an applicant under subsection 3 of s.424A, independent country information which it has which is specifically contrary to the applicant's case upon which it seeks to rely. But the department only relies on material that supports its case and does not permit the applicant to look at the rest of the documents to see what is available. In this case the Tribunal member said:

I have looked at a great deal of information about homosexuals in Bangladesh -

and then went on to say that there was no material in support of the applicant's claim. The applicant has to take the word of the Refugee Review Tribunal, but no other information is available. The presumption, therefore, is that the Tribunal member has presumably looked at all the database, and in this case, as Mr Levet says, this is just not true, because there is such material or there was such material available to assist the applicant in this case because of the fact it was used in the S395 decision.

In that case the delegate assessed the CISNET database and found a whole lot of information about homosexuality in Bangladesh, which said that in Bangladesh people do discriminate against homosexuals. This material, of course, was only known to the applicant because the applicant was fortunate enough to have the services of a solicitor and a barrister who were aware of that material from their earlier experience.

It is, therefore, an appealing argument to say that an applicant should have the opportunity to get this material, not otherwise available to an applicant, before the Court.

The respondent opposes the bill of discovery as sought by the applicant.

In his written submission, Mr Johnson expressed considerable doubt about the jurisdiction of the Federal Magistrates Court to pursue a bill of discovery in these terms. He suggested, in fact, that what power there is to make an order for discovery arises from either s. 15 or s. 18 of the Federal Magistrates Act 1999.

In my view, discovery comes from s. 15 but not s. 18, as is governed by s.45 of the Federal Magistrates Act 1999.

I am mindful that subsection (1) of s.45 says that interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court, unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate in the interests of the administration of justice to allow the interrogatories or discovery.

This limited power of discovery or interrogatories was dealt with in a very helpful judgment by Driver FM, which is the matter of

NAQR & Anor (No.1) v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 271.

In that case, his Honour held, and with respect I believe correctly, the following at paragraph 5:

Two things were immediately apparent from s. 45 of the Federal Magistrates Act and rule 1401. The first is that there is a rebuttable presumption in proceedings in this Court that discoveries and interrogatories will not be permitted. That is consistent with parliament's direction under s. 33 of the Federal Magistrates Act that the Court should act informally and use streamline procedures.

Secondly, where a Federal Magistrate or a Court decides that interrogatories or discovery should be permitted in a particular case, reference should be made to the relevant rules on discovery or interrogatory in the Family Court or the Federal Court.

In the decision in NAQR & Ors v Minister for Immigration & Multicultural & Indigenous Affairs (No.1) [2002] FMCA 271, his Honour made the decision to refuse or to dismiss an application seeking interrogatories. I note that in a similar matter that year, Colan Products Pty Limited and Luxon Pty Limited & Anor, (No.1) [2002] FMCA 4, Federal Magistrate Raphael made an order allowing pre-trial discovery.

In my view, with respect, the decision in Colan Products Pty Limited can be distinguished on its facts, and I propose to follow the decision of Driver FM in NAQR.

As his Honour pointed out, division 14.2 of the Federal Magistrates Court rules sets out where a Court has declared that it is appropriate in the interests of the administration of justice, for an order for discovery to be made. Rule 14.02 refers to a declaration to allow discovery and the balance of that division sets out the procedures to be followed.

The issue before this Court is that the applicant says that he is a homosexual and that homosexuals are subject to persecution in Bangladesh. On that latter point the applicant, or at least his legal advisers, are well aware of the existence of that material.

The concern that I have at this stage is that the application for discovery, whether it is a bill of discovery - and I am inclined to believe that that is not the appropriate procedure - or for discovery under division 14.02, with the authority of s.45, is in any event far too wide than it is necessary. What the order seeks is discovery of all documents, electronic or otherwise, in the possession or control of the respondents containing or relating to country information in respect of Bangladesh.

I do not know how much material the database contains in respect of Bangladesh, but it would seem on its face that a considerable amount of it would quite likely be irrelevant in any event.

What is clear, however, is that there is already some known information in support of the applicant's case that could be the subject of some specific application to bring that information before the Court. Mr Levet, in his oral submissions, referred to "trawling through the database," and it is easy to understand why the respondent would have a considerable degree of reluctance to a Court allowing such generous and almost open-ended access to the database.

As I said, in my view, such a wide order is one which this Court would be very reluctant to make, even if the Court were persuaded that it was in the interests of the administration of justice to make a declaration under s.45.

40.

The remedy which is available is quite clearly a discretionary remedy, and the discretion to make a declaration under subsection 1 of s.45 must be exercised judicially.

Subsection 2 sets out the matters to be considered by the Court in deciding whether to make such a declaration. Paragraph a says:

a) Whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings, and

b) Such other matters, if any, as the Federal Magistrates Court or the Federal Magistrate considers relevant.

Those are the matters which the Court must consider in deciding whether or not it should exercise its discretion to allow discovery.

As I said, a wide order allowing trawling through the database for anything that might turn up seems to me to be unnecessary, as it is well known that there is specific material that would assist that part of the applicant's case, i.e. that homosexuals are likely to suffer persecution in Bangladesh.

The applicant's legal advisers know what that information is. They already have it. As I said, there are far simpler procedures for bringing or attempting to bring that material before the Court than going through the question of the discretionary remedy of discovery.

The difficulty, however, that the applicant faces in this case, is that there is a feature here which distinguishes this case from that of the applicant's in S395 and S396. In the latter cases it was always accepted that the two applicants were homosexual. I have the advantage of having received a copy of the Refugee Review Tribunal decision from which S395 and S396 arose, and it is quite clear from that decision that it was accepted from the Tribunal that the applicants were homosexual.

Here, the Refugee Tribunal specifically rejected that fact, saying that in her opinion it was a concoction.

Now, the reason, which to my mind renders any sort of an order for discovery in relation to persecution of homosexuals in Bangladesh inappropriate, is that no amount of trawling through the CISNET database will produce evidence to support the applicant's claim that he is, in fact, a homosexual. And unless the applicant could establish that he is a homosexual, the evidence about persecution of homosexuals in Bangladesh is of no benefit.

It will not contribute to the fair and expeditious conduct of the proceedings, and it will not assist the applicant in the long run. If it will not assist, then it is not in the interests of the administration of justice for me to make such a declaration.

What Mr Levet has put to me, however, is that a challenge is to be made and is being made on the Tribunal's finding that the applicant is not in fact a homosexual. Mr Levet of counsel referred the Court to the decision, the well known decision, of von Doussa J in the Federal Court in SCAA and the Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 668.

The reasons that Mr Levet cites for challenging that finding relates to an apprehension of bias. The reference to SCAA cited by Mr Levet where his Honour, von Doussa J said:

Where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error, but also to conduct by the decision maker antithetical to that party's interests, such as a hostile attitude throughout the hearing or a failure to inquire into and obtain readily available and important information relating to central matters for determination.

An inference of actual bias might then be more readily drawn.

In this case, the applicant points to four instances as indicia of bias. First of all he says that the Tribunal at the outset enunciates the wrong test. It is conceded that in the transcript of the RRT proceedings, which forms the annexure marked D to the affidavit of Dr Bharati, sworn

13 April, the Tribunal member is cited on page 4 of the transcript, and also at the bottom of page 3:

The fear of this harm they have must be real and genuine, not invented or exaggerated. It must not only be genuine, it must be indecipherable on fact, presumably based, and the Tribunal has to establish that there is no safety for this person in Bangladesh. Okay, if the Tribunal thinks that there is safety for you in Bangladesh, it must be prepared to make this decision on the basis of how conditions are in Bangladesh now.

Mr Levet points to the fact that this is not the test, even though the Tribunal member used the correct test in the decision. What Mr Levet submits is that by then it was too late and that the use of the correct test in the decision does not act to validate the earlier citing of the incorrect test. The damage had been done and was irreparable, because it misled the applicant as to what was to be expected.

I am mindful of the fact that allegations of bias and bad faith are serious matters and involve personal fault. Even apprehended bias is an allegation that should not be made lightly.

In my view, certainly at this interlocutory stage, the point made about the incorrect citing of the test at the outset of the proceedings by the Tribunal member, is not so much an indication of bias but a use of infelicitous language. Indeed, I am referred to the well known decision of Wu Shan Liang and the Minister for Immigration and Ethnic Affairs [1996] HCA 6; (1996) 185 CLR 259 relating to the way in which the Court should look at the language used by a decision maker.

I am not of a view that that of itself would be sufficient for me to form an apprehension advice any more than the adverse decision would form such apprehension.

More serious, in my view, is the second point mentioned by Mr Levet of the Tribunal's failure to obtain readily obtainable independent country information.

The third point is the Tribunal relying on a document which is, on its face, wrong. Now, that is referred to at paragraph 8 of Mr Levit's submission, where he cites the Tribunal member as saying:

I have looked at a great deal of information on the situation of homosexuals in Bangladesh as it happens.

And only one document was cited, which was Country Information Report CX28051, which Mr Levet described as a document of remarkable brevity, which on its face is open to some criticism. That document asserts, falsely, Mr Levet says, that homosexuality is not illegal in Bangladesh. That is an erroneous document. It is what is put to me and there is evidence to support that.

In my view the point about the erroneous document, the reliance on the erroneous document and the failure by the Tribunal to find other material is one and the same point. I will return to this point shortly.

The final point is that the Tribunal makes a finding of fact that the applicant was not a homosexual despite both his sworn assertion that he is, and despite a total absence of evidence to the contrary.

It is, I think, trite law that it is up to the applicant to establish a case, not up to the Tribunal to disprove it. Again, Wu Shan Liang and the Minister for Immigration and Ethnic Affairs [1996] HCA 6; (1996) 185 CLR 259 is the authority for this point.

In my view, however, there is some evidence upon which the Tribunal was entitled to be sceptical, at the very least, about the applicant's claim, because this claim by the applicant of being homosexual and thereby facing persecution was made very late in the day, as far as the applicant's case is concerned.

The bulk of the applicant's case related to his fears of persecution for political opinion. The Tribunal says at page 61 of the Court book at about point 4:

I am not satisfied that the applicant's late claims about being homosexual or of facing harm from Jmaa'at Islami, or facing harm from an anti-independence BMP wing, are credible.

This is entirely an issue of credibility, and of course the question of credibility is very much a case for the Tribunal.

That then gets back to the principal point about the failure of the Tribunal to refer to information from the CISNET database which would support the applicant's case. It is an important point, because where there is information on a database that is available to the decision maker but is not available to an applicant, an incorrect assertion that there is no material on the database in support of the applicant's case is more than just a statement of fact. It goes to the very heart of the operation of the Refugee Review Tribunal.

If the decision maker, for whatever reason, states categorically but incorrectly that there is no material on the database that supports an applicant's case, but only material that supports the respondent's case, this will lead to a loss of confidence, not only amongst applicants,

but also of the community in the integrity and the operation of the Refugee Review Tribunal. Quite clearly, in an appropriate case, it could well be held to be a jurisdictional error.

To my mind, the failure by the Tribunal member, inexplicable though it is to identify this material, does not of itself establish malice. It does not of itself establish bad faith and it would not of itself, even with the adverse finding, be sufficient to make a serious finding of bias, either actual or apprehended bias. I am aware that a finding of bias is a grave finding. In my view a Court should be reluctant to ascribe to bias that which can be as easily attributed to error.

In any event, this is a case where, as I have said, no amount of discovery on the CISNET database will produce any evidence which will assist the applicant in asserting to a Tribunal that he is in fact a homosexual. The Tribunal's decision on that was arrived at as a result of a reliance on certain evidence which was before the Tribunal.

In my view, then, it is inappropriate to the Court to grant a declaration under s. 45 that it is appropriate in the interests of the administration of justice to allow the discovery.

It must follow, therefore, that the application for a bill of discovery will be dismissed.

I note that there is an application for costs. I will consider that application on Monday the 23rd.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Scarlett FM