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[2005] FMCA 508
General information, not legal advice.
Federal Magistrates Court of Australia
2005-04-18
Original judgment source is linked above.
(1)
That the requirement for the appointment of a litigation guardian for the applicants SZBWL and SZBWM is dispensed with.
(2)
That leave is granted to add the Refugee Review Tribunal as the Second Respondent.
(3)
The Application is dismissed.
(4)
The Application is not competent.
(5)
That the First and Second Applicants SZBWJ and SZBWK are to pay the Respondent's costs fixed in the sum of $5000.00.
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
This is an application for review of two decisions made by the Refugee Review Tribunal on 5 March 2002 and handed down on 27 March.
The reason why there are two decisions is that the second one relates to the fourth applicant who is a child who was born on 7 June 2000. She was born in Australia and her parents arrived in Australia on
24 September 1999. As neither of her parents is an Australian citizen or a permanent resident of Australia she does not become an Australian citizen by virtue of her birth in this country and she would have the same citizenship as her parents who are citizens of Bangladesh.
The relevant facts are that there are four applicants, the husband, wife and two infant children. The first three applicants, as I said, arrived in Australia on 24 September 1999 and on 5 November 1999 they lodged an application for a Protection Class XA Visa.
The fourth applicant, who was born here, also lodged an application for a visa, a Protection Visa on 25 August 2000, no doubt with the assistance of her parents, as she was less than two months old at the time.
A delegate of the respondent Minister refused the application of the first three applicants Protection Visas on 1 December 1999. A delegate of the Minister subsequently refused the application for that.
On 16 December 1999 the first three applicants applied for review of decision of the delegate. The hearings of the two review applications took place on 5 March 2002. The adult applicants attended and gave evidence. The children did not.
The decision was handed down on 27 March 2002 and in each case the decision of the delegate not to grant a visa was affirmed.
On 22 April 2002 the applicants commenced proceedings in this Court for judicial review.
His Honour, Driver FM, heard the application and dismissed that application on 7 August 2002. The proceedings referred to as NAGC v Minister for Immigration [2002] FMCA 171. The applicants appealed and on 21 November 2002 Emmett J dismissed the appeal.
The applicant sought special leave to appeal in the High Court of Australia. That application was discontinued.
These proceedings have arisen due to the fact that the decision of Emmett J in the appeal decision relied on the decision in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs. That decision has since been overturned by the High Court in the matter of Plaintiff S157 of 2002 and the Commonwealth (2003) HCA2 211 CLR 476. As a result, the applicants have again sought judicial review, applying on different grounds. That application was lodged on 11 November 2003. An amended application was lodged on 28 June 2004 and today I gave leave for a further amended application to be filed in the Court and it is that further application, along with a further set of written submissions, upon which the applicants' case has proceeded today.
The first thing that should be noted is that the third and fourth applicants, known by the pseudonyms of SZBWL and SZBWM are both infants. They are both under the age of five years and indeed, SZBWM was born after her parents and brother arrived in Australia.
It is quite clear that their applications rely entirely on the application of their parents and in fact particularly their father SZBWJ and there are no separate issues to be considered in respect of the third and fourth applicants.
In the circumstances I consider that nothing would be served in appointing a litigation guardian for these two children and I indicated that I would make an order dispensing the requirement for a litigation guardian to be appointed.
The next matter to be considered arises out of the filing in Court of the further amended application. In that document the applicants seek to add the Refugee Review Tribunal as a second respondent. Mr Slattery of counsel indicated that as an order in the nature of certiorari was being sought it was appropriate that the Refugee Review Tribunal, whose decision was sought to be the subject of such an order, should in fact be named as a respondent. I granted that leave and I give leave for the Refugee Review Tribunal to be added as a separate respondent.
I turn now to the proceedings that are before the Court. The further amended application sets out two grounds arising out of the hearing before the Refugee Review Tribunal. The background to the hearing is that the applicants, when they sought Protection Visas, set out that they had a well-founded fear of persecution on the basis of their political views, particularly views of the primary applicant, the father. That applicant had said that he opposed the present government of Bangladesh and that he feared that he and his family would be jailed for his political beliefs. He had worked voluntarily as the Assistant Secretary to the General Secretary of the Bangladesh Nationalist Party from 1989 until he left Bangladesh some ten years later.
In his written statement he set out details of the way he attracted the adverse attention of his political rivals based on his disclosing to the authorities actions by the opposition party who threw a petrol bomb in front of his home.
He said that he had been subject to threats and the threats were accompanied, on 20 September 1999, by the actions of some people who came to the front of his house and discharged firearms. They actually fired at the window of his bedroom in an attempt to kill him. The applicant said that he had tried to obtain help from the police but that help did not come. He was informed that he had to leave the country otherwise he and his son would be killed. His parents, his well-wishers, his party leader, all advised him just to leave the country for a while for his own protection. The applicant then left for Australia and he took with him those members of his family who were his wife and one child and the second child was born in Australia.
The two adult applicants gave evidence to the Tribunal. The applicant produced a document which the Tribunal said at page 113 of the Court Book, purported to be an arrest warrant dated 15 September 1999. In answer to questions by the Tribunal, the applicant said that he had obtained the warrant about two days before the hearing. The Tribunal pointed out to him that the document had one space not completed and that it appeared to be an original. The Tribunal told him that information from the Australian High Commission in Dhaka and information from the United States of America contained in country information, set out that fraudulent and bogus official documents were commonly and easily obtainable in Bangladesh that they could in fact be readily bought in the streets in Dhaka. At page 114 of the Court Book the Tribunal notes that the applicant agreed that anything could be bought in Bangladesh.
The Tribunal put a number of questions to the applicant. The Tribunal heard evidence from the second applicant, the mother, and made findings then which were not favourable as far as the applicants were concerned.
The Tribunal noted that there was an inconsistency between the accounts of the husband and wife, the first two applicants, in respect of certain incidents, including the incident a week before they left in September where supporters of the opposition party fired shots outside the applicants' house.
The Tribunal at page 119 formed an adverse view of the applicants' account of this incident, noting, at about point two, that the second applicant made no reference to the claimed shooting of the house a week before the departure, although she did claim that the house had been fired upon on two occasions while her husband only mentioned the one. I am of the view that an incident as significant as the shooting of the house a week before the departure would not have been overlooked by the applicant's wife if in fact it had occurred. This is particularly so since my questions focussed particularly on significant incidents of harm which had led to the decision to leave Bangladesh.
I find that the reason it was not commented on by the applicant wife was because it had not occurred and that this claim was fabricated for the sole purpose of providing a basis for a Protection Visa application.
The Tribunal formed an adverse view about the arrest warrant document. At page 120 the Tribunal found that the document was fraudulent and provided at the eleventh hour to support the claim to have had false charges made against the applicant. The Tribunal referred to country information from the Department of Foreign Affairs and Trade and the United States Bureau of Democracy Labour and Human Rights about the prevalence of fraudulent documentation in Bangladesh and the fact that the applicant accepted this as so.
The Tribunal went on to say:
Furthermore, I do not accept that it would have taken the period of time the applicant claims that it took for this document to reach him because mail services in Bangladesh are poor.
If the document was genuine, I believe that under professional counsel that the applicant would have provided this document either in its original form or faxed to the Tribunal as soon as possible after the lodgement of the application for review in December 1999.
The Tribunal went on to reject the applicant's claims to have been a significant local member of the BMP and considered certain humanitarian considerations and affirmed the decision not to grant Protection Visas.
In the further amended application, ground one, claims that in making the decision, the Tribunal made a jurisdictional error by denying the applicant procedural fairness. The particulars of this ground are as follows:
a) The Tribunal made adverse findings as to the authenticity of an arrest warrant provided by the applicant.
b) The Tribunal failed to make a proper disclosure of information, part of the reason for rejecting the authenticity of the arrest warrant and subsequently his decision affirming a decision now under review.
c) The Tribunal did not afford the applicant the opportunity to put their case as required in the circumstances.
d) The review was not otherwise conducted fairly; the arrest warrant was not sent for assessment by the document examination unit of the Department of Immigration, Multicultural and Indigenous Affairs.
Ground two claimed that in making the decision the Tribunal made a jurisdictional error by violating the duty it was under in satisfying itself as to eligibility of the applicants for Protection Visas. The particulars of this ground are as follows:
a) The Tribunal made adverse findings as to the authenticity of an arrest warrant provided by the applicant.
b) Findings on the fraudulence of the arrest warrant were not based on evidence.
c) A finding on the fraudulence of the arrest warrant based upon a formal fallacy of logic.
d) The reason of the Tribunal was such that it could not have been satisfied as Parliament intended it to be.
a) The Tribunal made adverse findings as to the availability to the applicant to protection from persecution.
b) Findings on the availability of protection are not based on evidence.
c) A finding of the availability of protection based upon formal fallacy of logic.
d) The Tribunal made a finding on the availability of protection on the ability of the applicants to escape persecution by taking reasonable steps to avoid it.
e) The reasoning of the Tribunal is such that it could not have been satisfied as Parliament intended it to be.
I have considered the written submissions by the applicant and the applicants' counsel and I have also admitted a draft affidavit by the first applicant as a submission.
Insofar as the draft affidavit refers to facts relating to arrest warrants in Bangladesh then of course I cannot accept that evidence, not only on formal grounds but because that evidence was not before the Tribunal in 2002.
The applicants' revised written submissions set out particular reasons about claim of procedural and substantial fairness. At paragraph nine on page two of the submissions the applicants' counsel submits:
That the applicants were not given the opportunity to put their case in regards to the authenticity of the arrest warrant as required by the statute and circumstances. The unfairness is demonstrable by the opportunity losses outlined in the affidavit annexed.
The applicants also allege that the Tribunal made a violation in duty in fact finding in the application of the law by rejecting the authenticity of the arrest warrant as to the availability of protection to the applicants through relocation.
As far as procedural fairness is concerned; the basis of this submission is that the Tribunal acted unfairly in not giving the first applicant the opportunity to put his case in regards to the authenticity of the arrest warrant whilst at the same time as not seeking to have the arrest warrant examined by the document examination unit of the Department of Immigration and Multicultural and Indigenous Affairs.
The circumstances in respect of that claim relate to the tender by the applicant of the document which he said was the arrest warrant which he had obtained some two days before the hearing, i.e. on 3 March 2002 as the hearing was on the 5th. It related to a warrant issued before the applicant left Bangladesh in 1999. The Tribunal questioned the authenticity of the warrant, referred to the country information, as I have set out, and referred to the fact that a document from September 1999 was only presented to the Tribunal in March 2002, having been obtained only two days before the hearing. The applicant said that the postal system in Bangladesh was so bad that it was not unusual for a piece of mail to be posted and not received for months or more.
To my mind the applicant was given the opportunity to be made aware of the country information to which the Tribunal was referring and was also made aware, during the course of the hearing, the concerns held by the Tribunal about the authenticity of the document and the applicant's explanations for it. The applicant gave those explanations but was not believed.
The applicant submits that there was a breach of procedural fairness and that there was a breach of sub-s.424A (2) (a) in that information which was adverse information under s.424A (1) that should have been disclosed was under sub-s.(2) required to be disclosed in writing.
I have been referred to the decision of NAHV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA FC 102.
To my mind, the decision in NAHV, as far as this point is concerned, the facts are on all fours with the situation here. It did involve a note that there had been some adverse information and a failure of the Tribunal to comply with sub-s.424A (2).
At paragraph 18 the Full Court of the Federal Court said:
All the methods referred to in s 441A involve the sending and giving of a document, thus s 424A and in particular subs 424A (2) contemplates the person being told of the matters in subs 424A (1) in writing.
That did not happen here. That is not to say however that fairness was not exhibited by the Tribunal to the applicant. From the Tribunal's reasons there is every reason to think that fairness was shown to the applicant, that he was given a fair opportunity to be heard and that he was effectively told of all the matters contemplated by subs 424A(1) as we have said, to permit an inquiry to the contrary of these matters now would be wrong.
Further, at paragraph 23 their Honours said:
Thus the relevant inquiry here is whether Parliament intended the breach of conditions to the manner of delivery of the relevant substantive information should necessarily spell the invalidity of the Tribunal's decision. Even in circumstances where there has been satisfaction of the important substantive requirements of subs 424A (1) to give the applicant information there contemplated and implicitly an opportunity to deal with the "mandatory" language (the word, "mast (indistinct) ")is used for subs 424A(2) is relevant to but not decisive of this inquiry. In our view it cannot be concluded that invalidity of the Tribunal's decision is the necessary consequence of any failure to comply with subs 424A (2) irrespective of the absence of any unfairness, whether of a substantive or procedural kind. Thus, we do not think that the failure to convey the relevant information by the correct method or vehicle can be seen as jurisdictional. This is so, it seems to us, even without considering the application of s 474 of the Act. (Quite different considerations might attend the analysis had there been a breach of subs 424A (1)).
As Mr Mantziaris of counsel for the respondent has pointed out, a decision in NAHV is good law. An application for special leave to appeal to the High Court was refused. The citation for that is NAHV v Minister for Immigration and Multicultural and Indigenous Affairs (2005) HCA Trans 73 (3 March 2005), a decision of McHugh and Gummow JJ.
What was submitted by counsel for the applicant was that there was a loss of the opportunity of the applicant to put his case in respect of the controversial arrest warrant. In my view that cannot be made out. The reality is that the Tribunal did put its concerns about the document fairly and substantially to the applicant. The applicant made certain replies which the Tribunal did not accept. It may well have been that the applicant, on reflection, would have wished to have put further replies but the applicant was given his chance and if he did not take the chance to provide that further information when the opportunity arose, then that is something which falls fairly and squarely on the applicant.
I am not satisfied that it is shown that there was a procedural unfairness.
It is also submitted for the applicant - at paragraph 14 - that the Tribunal acted unfairly in not giving the first applicant the opportunity to put his case in relation to the authenticity of the arrest warrant while at the same time as not seeking to have the arrest warrant examined by the document examination unit of the Department of Immigration Multicultural and Indigenous Affairs.
It is I think trite law, that is, the obligation of the applicant, to make out his or her case. There is no obligation on the Tribunal to make its own independent inquiries.
At paragraph 21 of the written submissions for the respondent, Mr Mantziaris of counsel pointed out:
That there is no obligation where the common law or a statutory upon the Tribunal to refer documents suspected of being fraudulent to the document examination unit of the DIMIA. The Tribunal was under no duty to make further inquiries to make out the applicant's case. (See Abebe v Commonwealth (1999) HCA 14, 197 CLR, pp 510).
The other matters that need to be considered relate to what is described as a breach of common law procedural fairness. It was the lack of logic referred to. This lack of logic was referred to both in respect of the relocation ground and the documentation ground.
It is, to my mind, quite clear that lack of logic is not, of itself, a ground for judicial review. Counsel for the respondent Minister has referred to this at paragraph 25 of his submission:
Want of logic in an administrative decision maker's reasoning is not a recognised ground of review in Australian administrative law. At its highest there is speculation that a minority of High Court Justices in ex parte S20 of 2002 and applicant S106 of 2002 have not excluded the possibility that such a ground might exist. Two members of the High Court made a single line observation to this effect in SGLB which is Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) HCA 32 of paragraph 38.
After considering the High Court dicta, four differently constituted benches of the Full Federal Court have ruled that want of logic does not constitute jurisdictional error. I am referred to the following decisions.
i)
NACB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA FC 235 at paragraph 30.
ii)
W404 of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCA FC 255 at paragraph 35.
iii)
NATC v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA FC 52 at paragraph 25.
iv)
VWST v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA FC 286 at paragraph 16-18.
What counsel for the respondent submits and in my view correctly, is that even if want of logic did constitute a ground of judicial review, on the present facts it is not made out.
Turning to the document case; Mr Mantziaris of counsel refers me, at paragraph 24 of his submissions, to the Tribunal's findings of fact which were contained in evidence on the departmental file at Court Book page 98 of the Court Book and the country information and the evidence before the Tribunal which was cited at pages 117 to 119 of the Court Book.
He submits, and I believe correctly, that these findings provide an adequate basis for the decision.
The reality is that as far as the documents are concerned, the Tribunal was concerned about document fraud in Bangladesh. But this concern seems to have arisen, in my reading of the decision, not from the general proposition that document fraud takes place in Bangladesh but from inconsistencies with the document itself which aroused the suspicions of the Tribunal and from answers by the applicant - the male applicant - which the Tribunal considered to be unsatisfactory; particularly the fact that this document had only materialised some two days before a hearing in March 2002 when the applicants had left Bangladesh in September 1999. The explanation of very slow postal service was just not accepted by the Tribunal.
To my mind this is not a want of logic. Whether, if the Court were considering those factual findings the Court would necessarily make the same decision is not a matter that can be taken into account. It is the Tribunal which is the fact-finder and a Court conducting judicial review cannot substitute its own view of the facts. To my mind the logical processes there were open to the Tribunal and there is no demonstrated want of logic even if it were a ground for review and I am satisfied it is not.
Turning to the no evidence ground, which seems to be undergoing a bit of vogue in arguments before this Court at the moment; counsel for the applicants has submitted that there was in fact no evidence for the Tribunal to make findings about the fraudulence or otherwise of the arrest warrant or of the matters relating to relocation to another part of Bangladesh. To my mind, the no evidence ground is not made out. That as far as the document is concerned, the evidence which I have related concerning the Tribunal's alleged want of logic in arriving at its conclusion is evidence which, of itself, is evidence which is capable of supporting the conclusions reached by the Tribunal. The simple fact is that there is evidence upon which it was open to the Tribunal to make its decision.
Turning to the relocation issue; to my mind the thrust of the application is directed towards a re-argument of the decision of the Full Court of the Federal Court in Randhawa v Minister and quite clearly Randhawa is good law. In any event, it appears to me that there was neither a want of logic nor a failure of evidence on the part of the Tribunal to find that the applicant and his family would be in a position to relocate within Bangladesh. Indeed, it is trite law that unless people can demonstrate that they cannot find shelter from persecution within the boundaries of their own country then they cannot seek a Protection Visa in this country.
The only other matter to which I would refer at this stage is the fact that the application is out of time under the provisions of s.477. The decision was handed down on 27 March 2002. There were the other proceedings to which I have referred and then the decision in S157 which gave rise to this claim, was handed down, I am informed, February of 2003. This application was not filed until November 2003 and a couple of days later the applicant withdrew an application for special leave to the High Court. So the application is clearly not made within 28 days from having been made aware of the decision. It is not part of the earlier proceedings or in any way it is a fresh application.
The time limits set under s.477 is one which the Court has no power to vary unless the decision, the subject of the review, is one where there has been found a jurisdictional error which would give rise to judicial review. In that case the decision does not have the protection of s.474 of the Migration Act. There is no reviewable error. The application therefore is out of time under s.477 and accordingly there is no jurisdiction so the application is not competent.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Scarlett FM
SZBWJ & Ors
Minister for Immigration [2005] FMCA 508