SZCWW v Minister for Immigration and Citizenship & Anor

REASONS FOR JUDGMENT 1 The appellant is from Bangladesh. He is aged 48 years. Shortly after arriving in Australia at the end of 1996 he applied for a protection visa claiming a well-founded fear of persecution within the Refugees Convention on the grounds of his political opinion, namely, that he was a member and activist of the Sarbahara Party. His application was refused in June 1997 and that decision was affirmed by the Refugee Review Tribunal on 16 October 1998. 2 In 1999 the appellant joined the proceedings in the High Court of Australia which resulted in the decision of that Court in Muin v Refugee Review Tribunal & Ors (2002) 190 ALR 601; [2002] HCA 30. The appellant's application was remitted to the Federal Court of Australia where the application was dismissed. Nothing turns upon that and no issue estoppel arises. 3 These proceedings were commenced in the Federal Magistrates Court a number of years later in March 2004. At the hearing of the application an argument that the proceedings should be dismissed on the ground of delay in bringing them was abandoned. However, the Federal Magistrates Court refused relief to the appellant with respect to his challenge to the 1998 decision of the Refugee Review Tribunal on other grounds. The appellant has appealed from that decision. 4 The Migration Act 1958 (Cth) commits the ultimate determination of the facts in refugee cases to the Refugee Review Tribunal. That Tribunal considers the matter afresh and on its merits. It is not a court. It substitutes its decision for that of the Minister, which is usually made through his delegate. The Parliament, representing the people, has thus created two tiers of decision-making during which an applicant for a protection visa has an opportunity to put forward a case on the facts. 5 The rights of persons claiming to be refugees in Australia do not, however, stop there. For practical purposes there is a review of the decision of the Refugee Review Tribunal in the Federal Magistrates Court with an appeal to this Court. The appeal is, however, confined to an error of law. 6 Behind every application for a protection visa lies a factual basis. The factual basis in the present case is that the appellant fears persecution by the Bangladesh Government or institutions for which it is responsible because of his membership of the Sarbahara Party and also fears serious harm by members of the Sarbahara Party as a result of his activities while a member of it. 7 This claim raised factual issues for determination by the Tribunal. The reality is that the Tribunal, constituted by Ms Philippa McIntosh, did not accept many of the claims made by the appellant. That is the real reason the appellant was unsuccessful. The reality of this case is that the appellant has lost it on the facts. However, the only appeal relates to the law. Accordingly, any appeal must address the law and not the facts. That raises problems for the many appellants who are in the same position as the present appellant. 8 However, if there is a relevant error of law an appeal will be successful. Accordingly, I now turn to that question. The appellant has filed a notice of appeal in this Court which contains grounds. The notice of appeal is supported by an affidavit which contains further material upon which the appellant relies. The appellant has filed written submissions which contain further statements of the grounds of appeal and he has addressed me orally this morning. 9 I have read the appellant's documents carefully and I listened carefully to his submissions. Most of the grounds of appeal relied upon by the appellant either seek a review of the findings of fact of the Refugee Review Tribunal or are so lacking in particularity as to be simply general statements to the effect that the facts as found or the conclusions of the Tribunal were wrong. It is, of course, an error of law for an administrative decision-maker to make a finding of fact for which there is no evidence. I am satisfied, however, that none of the findings of fact of the Refugee Review Tribunal fall into that category. Most of the grounds of appeal are manifestly unsustainable. 10 There are, however, two grounds raised by the appellant which are grounds of appeal in law and if successful would justify the allowing of the appeal. These grounds relate to procedural fairness. The first is that there was independent information before the Refugee Review Tribunal which was not disclosed to the appellant so that he had no opportunity to deal with it. The second is that he was given an undertaking by the Tribunal member that he would have an opportunity to further address the Tribunal in a written submission. 11 In his written submissions the appellant identifies the country information at pages 111 to 133 of the appeal book as the independent evidence that he says he did not have an opportunity to deal with. I asked the appellant if he would specify with more particularity the material he relied upon and he identified a news release from Reuters dated 14 July 1993 at page 125 of the appeal book. That news release relates to a particular event concerning the Sarbahara which resulted in six deaths and the injury of 20 people. The news release also refers to some general history of the Sarbahara Party. I do not think, even if it be the fact that this document was not disclosed to the appellant, that it could give rise to any denial of procedural fairness. I have two reasons for that. First, the text of the reasons of the Refugee Review Tribunal discloses that the appellant had an opportunity to address any issues that might have been raised by the press release. Secondly, I am not aware of any particular finding based on the press release. 12 However, there is one thing in the Tribunal's findings which does seem to me to directly raise an issue of procedural fairness if the appellant was not given a sufficient opportunity to address the subject. The Tribunal said this in its reasons: The evidence from independent sources before the Tribunal does not suggest that the Bangladesh government is using the criminal law as a pretext to persecute members of the Sarbahara or communist groups because of their political views. The Tribunal used this to reason that any prosecution against the appellant would be for criminal activities and not represent persecution. 13 It seems to me that if the appellant was not given an opportunity to respond to this matter then this case would have been governed by the decision of the High Court of Australia in Muin v Refugee Review Tribunal & Ors. I turn to the question of whether the appellant was given such an opportunity. The decision of this Court in NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 is authority that in a case such as this it is for the appellant to demonstrate that the relevant opportunity was not given. 14 There is nothing in the decision of the Tribunal which suggests that the opportunity was not given and I have not had put before me any transcript or other evidence of the hearing before the Tribunal which shows that the opportunity was not given. For that reason alone the claim to denial of procedural fairness must fail. However, it also seems to me that the Tribunal did give the appellant a sufficient opportunity to address the subject matter. It recorded this in its reasons for decision: The Tribunal put to him that the Sarbahara Party was notoriously violent, that the government had offered amnesties to its members, and that the evidence suggested that any charges would not be motivated by a wish to persecute party members because of their political views, but to prosecute them for involvement in violent activities. If it was not otherwise implicit I note that the Tribunal particularly refers to what it describes as "the evidence", which must be reference to the so-called country evidence. 15 The Tribunal next records that the appellant put submissions seeking to deal with the matter. It follows that the first claim to denial of procedural fairness must fail. 16 I think that the second claim to denial of procedural fairness finds its origins in the decision of the High Court in Applicant NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62. However, again there needs to be evidence of the undertaking. There was no doubt of the undertaking which was quite specific in NAFF. I have no evidence of any undertaking before me. 17 There is, however, another reason why this claim must fail. The appellant, whatever undertaking was given, not only had an opportunity to put in further submissions to the Tribunal but actually did so. He furnished a submission received by the Tribunal on 23 September 1998 after the hearing and the Tribunal referred to the submission in its reasons. 18 It follows that I am satisfied that neither of the procedural fairness claims can succeed and in consequence that the appeal cannot succeed. For these reasons the appeal must be dismissed and will be dismissed with costs.