SZBUH v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2006-07-14|Before: Edmonds J

Introduction 1 This is an appeal from the Federal Magistrates Court (Driver FM) dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'), made on 11 September 2003 and handed down on 7 October 2003, affirming a decision of a delegate of the first respondent ('the Minister') not to grant the appellant a protection visa.

Background 2 The Federal Magistrate (at [1]) adopted as background, for the purposes of his judgment, pars 1 - 5 of written submissions prepared by counsel on behalf of the Minister. There does not appear to be any dispute as to the correctness of this background and I too adopt it. 3 In summary, the appellant is a citizen of Bangladesh who arrived in Australia on 17 January 2003; he lodged an application for a protection visa with the Minister's department on 12 February 2003; that application was refused on 3 April 2003; and on 23 April 2003 the appellant lodged an application for review to the Tribunal. 4 The appellant's essential claim was that, if returned to Bangladesh, he fears persecution on political grounds for his support for the Awami League Party, including the holding of a senior position in that party, and his political activism.

The TRIBUNAL'S Findings 5 The Tribunal accepted that the appellant was a member of the Chatra League and was involved in student politics undertaking fairly menial tasks and that he helped organise some demonstrations and participated in protests, but did not accept that outside of student politics the appellant had a high political profile. 6 The Tribunal accepted that in November 2000 the appellant and his wife went to Saudi Arabia for 10 days on a pilgrimage and was satisfied that if the appellant had had a well-founded fear of serious harm for any reason whatsoever at that time, he would have used that opportunity to seek international protection. 7 The Tribunal was further satisfied that if at that time the appellant had thought there was a real chance he would be subjected to serious harm in Bangladesh, then he would not have returned to Bangladesh and, therefore, that as at November 2000, he did not have a well‑founded fear of persecution for a Convention reason. 8 The Tribunal referred to various claims as to what had happened to the appellant but was unable to satisfy itself that the essential and significant reason for any of the incidents was Convention-related. 9 The Tribunal accepted that the general security situation, safety and political stability in Bangladesh were not as sound and secure as in Australia but also accepted that the appellant had a valid Bangladeshi passport issued on 15 November 2000. It was satisfied that if he had a well-founded fear of serious harm because of the incidents to which he referred, or for any other reason, he would have left Bangladesh at some time immediately after they had occurred but that he did not do so for some 10 months after his claimed attack on 27 March 2002 and over two months after he claims police beat him during a demonstration on 10 November 2002. It was satisfied that any subjective fear that the appellant may have had because of those incidents and the general security and political situation in Bangladesh was not a well-founded fear of serious harm amounting to persecution for a Convention reason. 10 The Tribunal accepted that serious charges have been laid against the appellant for 'blasting bombs' and having illegal weapons and that he would be wanted, at least for questioning, by the appropriate authorities and, therefore, accepted that the police had a legitimate reason to visit his house in December 2002 and that they were matters properly for determination by the courts in Bangladesh. 11 The Tribunal accepted independent country information ('ICI') that showed the courts in Bangladesh were independent and accordingly found that even if the appellant were to face false and politically motivated charges on his return (a claim not accepted), he could seek legal redress from the courts and that accordingly there was not a real chance that in the course of such a process he would be subjected to serious harm amounting to persecution for a Convention reason.

The court Below 12 The appellant was self-represented in the court below. After hearing oral argument, his Honour concluded at [5] that the appellant 'is concerned about the merits of the [Tribunal] decision' and that his submissions 'both oral and in writing struggle to rise at all above the basic dispute over the merits of the decision'. 13 His Honour concluded: (i) That while he thought an asserted breach of s 424A of the Migration Act 1958 (Cth) ('the Act') might require consideration, the appellant was unable to point to any information which required disclosure pursuant to s 424A upon which the Tribunal's decision turned: At [4]. (ii) That there was no basis for the claim that the appellant was denied a fair hearing given the record of the Tribunal hearing in the court book and the transcript of the hearing: At [6]. (iii) That the appellant's assertion that the Tribunal failed to consider the real issues inherent in his claim was not supported by the decision record: At [6]. (iv) That there was no evidence to support the appellant's assertions of bias and bad faith: At [6]. 14 As to each of the separate grounds of review, the Minister addressed the grounds of review in written submissions and at [7] his Honour adopted those submissions in this regard. 15 His Honour concluded at [8] that there was no jurisdictional error in the Tribunal's decision and that it was therefore a privative clause decision.

The Appeal 16 At the commencement of the hearing of the appeal I granted leave to the appellant to file in Court an amended Notice of Appeal containing four grounds of appeal.

First Ground 17 The first ground took issue with his Honour's conclusion referred to at [15] supra and claimed that the Tribunal committed a jurisdictional error of law by failing to conduct a review of the delegate's decision in accordance with the Act. 18 This first ground was particularised in the amended Notice of Appeal in the following way: (i) The Tribunal had relied (predominantly) upon old and outdated ICI (published some five years prior to the date of decision) 'showing that courts in Bangladesh are independent'; (ii) the Tribunal specifically failed to have regard to more relevant and up to date information, e.g., US Department of State report published March 2003. 19 It lies at the heart of this ground, that the Tribunal was satisfied that the ICI dated 30 March 1998, on which it relied, '… shows that the courts are independent in Bangladesh and further finds that they can be relied upon to provide protection for those falsely charged even if a governing party's activists persist in filing false charges', when more recent information - a US Department of State report dated 31 March 2003 - suggests a distinction is to be drawn between courts at the upper level of the judicial system in Bangladesh and those at the lower level. The particular passage from the US report relied on reads: 'An advisory board composed of two persons who have been, or are qualified to be, high court judges and one civil servant are supposed to examine the cases of SPA [Special Powers Act] detainees after 4 months. On June 19, the High Court stated that the Government does not have any right to extend detention and, as such, SPA detainees must be released after 30 days unless the advisory board recommends an extension. The High Court judgment also made mandatory the requirement that authorities inform the court of the grounds for the detention order against the accused within 15 days and, if possible, earlier. On June 24, the Appellate Division of the Supreme Court concurred with the High Court judgment. If the Government adequately defends its detention order, the detainee remains imprisoned; if not, the detainee is released. If the defendant in an SPA case is able to present his case before the High Court in Dhaka, the High Court generally rules in favour of the defendant. However, many defendants either were too poor or, because of strict detention, were unable to obtain legal counsel and thereby moved [sic] the case beyond the magistrate level. Magistrates subject to the administrative controls of the Establishment Ministry were less likely to dismiss a case (see Section 1.e.). Detainees were allowed to consult with lawyers, although usually not until a charge was filed; however, they were not entitled to be represented by a lawyer before an advisory board. Detainees may receive visitors. The Government has held incommunicado prominent prisoners for extended amounts of time.' 20 In written and oral submissions, the attack on the Tribunal's decision on this ground is put in terms '… that by relying on old and outdated information the Tribunal constructively failed to consider the appellant's prospective risk of persecution on the basis of the situation in the appellant's home country at the time of decision'. Alternatively: '… that it was incumbent on the Tribunal … to use the most recent and up-to-date ICI, which differed markedly from that relied upon by the Tribunal in that the latest ICI more accurately indicated the practicalities of the situation currently in Bangladesh - viz., that ordinary folk experienced great difficulties in accessing justice that was independent of the ruling government to have spurious SPA charges against them dismissed'. 21 Whatever else may be said about the Tribunal's reliance on the Department of Foreign Affairs and Trading ('DFAT') ICI and its failure to even refer to the more recent US Department of State information, let alone rely on it, one thing is clear: It does not, in my view, amount to jurisdictional error. At most, any error that may be reflected in the reasons for decision of the Tribunal that derives from the Tribunal's acceptance of the accuracy of the DFAT ICI is an error within the Tribunal's jurisdiction: See SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 368 at [44] per Branson J; see, too, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 219 ALR 27 at [52] - [54]. 22 In response to a question put to him in the same terms, counsel for the appellant said it was incumbent on the Tribunal to ascertain the appellant's means as to whether he would be able to prosecute any appeal against charges that might be made against him up to the superior courts. This was put in the context that the information in the US Department of State report was correct and the information in the DFAT ICI, to the extent of the dichotomy drawn between the lower courts and the higher courts by the US Department of State, was wrong. This, in itself, illustrates that if there was error, it was error of fact, not law. Moreover, even if the US Department of State report correctly reflected the position as at the date of the Tribunal's decision, the Tribunal was under no obligation to enquire of the appellant as to whether or not he had the means to prosecute an appeal to the higher appellate courts: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [42] - [44]. 23 This ground of appeal cannot be sustained.

Second Ground 24 The second ground asserts that his Honour erred in finding at [4] that s 424A of the Act did not apply in circumstances where 'it appeared … the decision of the [Tribunal] turned on information provided by the [appellant] himself for the purposes of the review application to the [Tribunal] and also general country information'. 25 This second ground was particularised in the amended Notice of Appeal in the following way: (i) Contrary to his Honour's finding, information specifically concerning the appellant was provided by the appellant's adviser who faxed a copy of a document dated 6 August 2003. (ii) The appellant's adviser also 'submitted by fax a number of photographs of the [appellant] and a copy of a poster of the [appellant] seeking support in the student council election of 1991'. 26 The appellant's argument in relation to this ground was put on two bases: One correct, the other incorrect. First, it is correct to say that, as a matter of fact, the information referred to in the particulars was not given by the appellant himself; it was given by his adviser. Second it is incorrect to say that, as a matter of the proper construction of s 424A(3)(b) of the Act, such information was not given by the appellant, and therefore excluded from the obligation imposed on the Tribunal by s 424A(1). 27 Counsel for the appellant disavowed any reliance on an argument that the information given was not for the purpose of the appellant's application. His case was confined to his Honour's reference to the word 'himself', in reliance on a contention that the information was not given by the appellant himself, but by the appellant's adviser. 28 His Honour's use of the word 'himself' is perhaps unfortunate, but I do not think it conveys any suggestion that his Honour was of the view that information falling within the exclusion that is s 424A(3)(b) is confined to information which the appellant himself gives and does not include information given by others on his behalf. If it does then, in my view, that construction is wrong. 29 This ground of appeal must be rejected.

Third Ground 30 The third ground of appeal asserts that the Tribunal constructively failed to exercise jurisdiction by concluding its fact finding task substantially in a manner that a fair-minded observer might reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. 31 This third ground was particularised in the amended Notice of Appeal in the following way: (i) The Tribunal did not accept 'that outside of student politics the [appellant] has a high political profile' because of 'the generality of his answers to the Tribunal's questions about the philosophy, mandate and objectives of the Chatra League and Awami League'. (ii) The transcript of the Tribunal hearing demonstrates that, contrary to the Tribunal's assessment of the generality of the appellant's responses, the appellant responded specifically to the Tribunal's generic question Q182. (iii) The appellant's response to the Tribunal's Q182 spans approximately six typed pages of the transcript and was made in difficult circumstances where the appellant was specifically told by the Tribunal 'No, I don't want a political discourse' and later, 'Now, I think I've got that'. (v) The particulars to grounds 1 above and 4 below were repeated. 32 This was expanded upon in the appellant's written and oral submissions. In the appellant's written submissions, it was put in the following way: (i) That it was not open to the Tribunal to construe the appellant's answers as general and not demonstrating sufficiently particularised knowledge of the objectives and goals of the Chatra League and Awami League when the transcript evidence clearly shows that the responses were anything but general (cf. NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264 at [111] - [115]. (ii) That, taken together with the selective way in which the ICI was used, the Tribunal's assessment of the appellant's evidence about the objectives etc., of the Chatra and Awami Leagues was unfair, selective and demonstrates a non-bona fide exercise of review powers in circumstances where the Tribunal member was not an expert on the Chatra League or the Awami League (cf. SZAQY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1382 at [29]) and, at the same time, made representations to the appellant inconsistent with subsequent assessment of the appellant's evidence. (iii) In response to the Tribunal's question 'about the philosophy, goals, mandate, manifesto and objectives of the Chatra League and Awami League', the appellant, inter alia,said that it was about 'secularism', 'democracy', 'socialism' and 'nationalism'. (iv) In fact, the Tribunal's recitation of the appellant's evidence demonstrates that the appellant had a reasonably comprehensive knowledge of the philosophy, mandate and objectives of the Chatra League and Awami League. Yet, strangely, the Tribunal did not accept 'that outside of student politics the [appellant] had a high political profile' based on 'the generality of his answers'. (v) Concomitantly, it is asserted that the Tribunal's Q182, which was a generic, composite question covering the 'philosophy, the goals, the manifesto, the objectives of the Chatra League and the Awami League', was an unfairly long, convoluted, complex and confusing question. (vi) The appellant's confusion with regards to Q182 is most aptly demonstrated in the appellant's following request of the Tribunal: 'Could you please explain this question. 'Stands for, that mean, which area you mean?'. (vii) Equally, the Tribunal's request to 'answer in short sentences' (Q182) followed by a further request 'I don't want a political discourse' (Q183), unfairly restricted the evidence the appellant was allowed to give. (viii) Similarly, the Tribunal's representation at Q189 'Now, I think I've got that' unfairly lulled the appellant into the belief that he had covered the particular topic on which he was being questioned. (ix) Thus, it is submitted the Tribunal constructively failed to exercise jurisdiction by conducting its fact-finding task substantially in a manner that a fair-minded observer might reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly and non-selectively (cf., NADH at [115]). 33 I would readily accept that some of the question and answer process at and around Q182 appears to be somewhat aggressive. Indeed, in the course of submissions, I suggested as much to counsel for the Minister although I used the word 'rigorous' rather than 'aggressive'. I stand by that response. Some of it was, with respect, also confusing and would have drawn objection had the appellant been represented by experienced counsel. However, I agree with counsel for the Minister that that process does not come close to establishing an apprehended bias that would be necessary to ground a jurisdictional error in the Tribunal's decision. 34 This ground of appeal must also be rejected.

Fourth Ground 35 The fourth ground of appeal asserts that the Tribunal committed a jurisdictional error of law in making a finding of fact that was either not open to it or was reached by ignoring relevant material. 36 This ground was particularised in the amended Notice of Appeal in the following way: (i) The Tribunal found that the appellant was a 'relatively junior member of the Chatra League' who performed 'fairly menial tasks such as helping to organize meetings and promoting the party'. (ii) However, the appellant's evidence, inter alia, was '[t]he main objective was to organize people to develop our organisation to attract people to us and say what we're doing and all to make them aware of our activities. At that time the revolution against the BNP was very strong and we organized all these meetings, protest and all against that, I took part in organising all those things.' (iii) Categorising the appellant's activities as 'fairly menial' unfairly distorted the appellant's evidence in that it ignored other relevant evidence or selectively isolated parts of the appellant's evidence. (iv) Equally, it is submitted the Tribunal did not exercise good faith in reaching its conclusion that the appellant was a relatively junior member of the Chatra League when the appellant's evidence, which was not rejected by the Tribunal, was that he was: (a) 'general secretary of the college committee of the Chatra League' in 1990; (b) 'joint secretary of the Sabujbagh Thana' in 1992; and (c) 'vice president of the Dhaka Mahanagar Awami League' in 1997. 37 The appellant's written and oral submissions did no more than repeat these particulars although, to be fair, counsel submitted, on the back of such particulars, that the Tribunal failed to act judicially with a minimum degree of proportionality in reliance on what was said by Deane J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367. 38 I cannot agree. What was submitted might dress it up as jurisdictional error, however, drilling down discloses nothing but an attempt at merits review. 39 The fourth ground also fails and the appeal must be dismissed with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Date of Hearing: 7 February 2006, 2 March 2006

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