SZEWH v Minister for Immigration and Multicultural and Indigenous Affairs

25 The papers before the Tribunal appear to have included two documents which have been translated bearing date 10 September 2002 and 21 September 2002. These documents are said to be warrants for arrest ostensibly issued by a magistrate. 26 On 16 June 2004 the Tribunal wrote to the Appellant advising him that the Tribunal had decided that he was not entitled to a Protection Visa. The reasons for the Tribunal's decision are extensive. The headings in the reasons are "BACKGROUND", "THE LEGISLATION", "DEFINITION OF REFUGEE", "CLAIMS AND EVIDENCE", "FINDINGS AND REASONS", "CONCLUSION" AND "DECISION". 27 In the section headed "CLAIMS AND EVIDENCE" the Tribunal recounts detailed country information drawn from the United States Department of State Country Reports on Human Rights Practices - 2002 for Bangladesh which was released on 31 March 2003 and the United States Department of State's Office of Asylum Affairs Profile of Asylum Claims and Country Conditions for Bangladesh issued by the Bureau of Democracy, Human Rights and Labor in February 1998. 28 This country information records that Bangladesh is a parliamentary democracy with broad powers exercised by the Prime Minister. The leader of the Bangladesh Nationalist Party (BNP) became the Prime Minister at elections held on 1 October 2001. 29 The country information included:- "The Government continued to arrest and detain persons arbitrarily, and to use the Special Powers Act (SPA) and Section 54 of the Code of Criminal Procedure, which allowed for warrantless arrest and preventive detention. …" 30 Under the heading "Arbitrary Arrest, Detention or Exile" the country information included: "The Government continued to arrest and to detain persons arbitrarily, as well as to use national security legislation such as the SPA of 1974 to detain citizens without formal charges or specific complaints being filed against them. … … The Government used Section 54 and the SPA to arrest and detain many … opposition activists …"

31 In relation to Bangladesh documentation the country information quoted by the Tribunal in its reasons included:- "… Bangladesh Documentation Asylum applicants from all parties submit voluminous documentation to support their claims, including in particular outstanding warrants for their arrest if they return to Bangladesh and other alleged court and police documents. Arrest warrants are not generally available to the public, and all such documents should be scrutinized carefully. Many 'documented' claims of outstanding arrest warrants have proved to be fraudulent. As of December 1997, the Embassy had examined several hundred documents submitted by asylum applicants; none proved to be genuine. There has been a particularly active market for fabricated documents to support asylum applications filed by individuals …"

32 Under the heading "FINDINGS AND REASONS" the Tribunal said:- "When determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the credibility of the applicant. When assessing credibility, the Tribunal must be sensitive to the difficulties often faced by asylum seekers and should give the benefit of the doubt to those who are generally credible, but unable to substantiate all of their claims. However, a decision-maker is not required to accept uncritically any and all allegations made by an applicant, nor is it necessary to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, nor to accept claims which are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality. … … I note the country information referred to above. … … The Applicant claims that he will be arrested on return to Bangladesh. He claims that he was charged with serious offences, including terrorism and murder. He claims that these charges were brought against him by the BNP government because of his support for the Awami League. The Applicant submitted documents purporting to be police reports and warrants for his arrest. I do not accept that the Applicant has been charged with any serious offences. I found the Applicant's evidence regarding these charges to be unconvincing. I found his explanation as to how he managed to avoid arrest and leave Bangladesh despite facing such serious charges to be unconvincing and internally inconsistent. The explanation was also at odds with country information. It is clear from the country information that far from being unwilling to arrest suspects while waiting for the paperwork the authorities use arrests and detention as a weapon against their political opponents. It is inconceivable that the Applicant could have avoided arrest as he clams [sic] if he had been charged with these offences. I note that there is evidence of document fraud in relation to applications for asylum from Bangladesh. In view of the evidence around the documents I am not persuaded that the documents are genuine. I do not accept that the Applicant is at any risk of arrest should he return to Bangladesh. While he has been a supporter of the Awami League he has come to no harm as a result of his political opinion. Indeed he came to no harm at a time when the new government was actively seeking to harm its political opponents in the period following the election. Many of the government's opponents were arrested and detained. The Applicant was not. This would indicate that he was not considered by the new government to be a target. I am not persuaded that there is any real chance, in the foreseeable future that the Applicant will come to any serious harm for reasons of his political opinion. I do not accept that there is a real chance that the Applicant will be persecuted should he return to Bangladesh. I am not satisfied that the Applicant has a well founded fear of persecution. I am not satisfied that he is a refugee."

33 In Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425 the High Court considered a case where it had been suggested that an applicant before the Tribunal had been overborne or intimidated by the Tribunal. In the result, in the exercise of its discretion, the Court ordered prohibition to prevent further action being taken on the decision of the Tribunal. At p435-6 the Court said:- "[31] Where … parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view. [32] In the present case, a fair-minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor's evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the tribunal's preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair-minded lay observer or a properly informed lay person might well apprehend bias by the tribunal against the male prosecutor. … [33] Although, in our view, the prosecutors have made good their claim of apprehended bias, we would not grant relief under s75(v) of the Constitution simply on that account. It is now established that, in the case of a breach of the rules of natural justice, relief under s75(v) of the Constitution is discretionary. Where, as here, there is a final determination by a superior court, that the decision in question was not affected by actual bias, discretionary considerations necessarily arise. …" 34 In Minister for Immigration for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 the High Court considered the requirements of s430(1) of the Migration Act 1958 (Cth) which relevantly provides:- "430(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based."

35 At pages 17 - 18 McHugh, Gummow and Hayne JJ said at [67] - [69] "[67] … As was rightly observed in the joint judgment in Singh, this section calls for a recording of matters that are matters of fact. In particular, s 430(1)(c) requires the tribunal to set out the findings of fact which it made. But does it require more? Does it oblige the tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make? [68] Section 430 does not expressly impose such an obligation. In its terms, it requires no more that that the tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word 'material' in s430(1)(c). It was said that 'material' in the expression 'material questions of fact' must mean 'objectively material' Even if that were right, it would by no means follow that the tribunal was bound to set out findings that it did not make. But it is not right to read 'material' as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s430(1)(c) obliges the tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. [69] It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the tribunal. It ensures that a person who is dissatisfied with the result at which the tribunal has arrived can identify with certainty what reasons the tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this court in proceedings brought under s75(v) of the Constitution. For example, it may reveal that the tribunal made some error of law of the kind mentioned in s476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the tribunal. It may reveal jurisdictional error. The tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration."

36 Gleeson CJ agreed with the reasons for judgment of McHugh, Gummow and Hayne JJ (see p3[1]). At p5 His Honour said:- "[8] To treat a failure to make a finding on a question of fact as a failure to observe a procedure in connection with the making of a decision involves a strained interpretation of the statutory language, especially in a context which distinguishes between legal review (indeed, somewhat attenuated legal review) and full merits review (of the kind in which the tribunal engages when it reviews a delegate's decision). … [10] The requirement imposed by s430 is to prepare a written statement that, in the context of setting out the tribunal's reasons for decision, 'sets out the findings' on any material questions of fact. It is impossible to read the expression 'the findings' as meaning anything other than the findings which the tribunal has made. By setting out its findings, and thereby exposing its views on materiality, the tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s476(1) other than s476(1)(a), or may provide some other ground for judicial review. …"

37 It is common ground between the parties that denial of procedural fairness amounts to jurisdictional error (see generally Minister for Immigration and Multicultural and Indigenous Affairs v SZEBA [2005] FCAFC 216 at [26]). 38 An issue which arises in this case is whether the Tribunal made a finding that the warrants advanced by the Appellant were fakes. In this context a further issue arises as to whether the Appellant was denied procedural fairness by failure to inform him of an important issue upon which he did not have an opportunity to be heard, being the veracity of the material that he was submitting (see NAQG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1631 at [12] and [16] - [17]). 39 The amended notice of appeal raises five grounds of appeal. Ground 2 provided:- "2. In referring to evidence of document fraud as being relevant to documents submitted by the appellant which on their face proved that there were charges against the appellant, the Tribunal acted in breach of s424A(1) of the Migration Act 1958" 40 Mr Young submitted that NAMW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 264 was incorrectly decided. However, he concedes that it would not be open to me to depart from the decision in that case. Accordingly, Mr Young conceded that on the current state of authority, his client must lose in respect of ground of appeal number 2. 41 The remaining grounds of appeal were as follows:- "1. The Refugee Review Tribunal ('the Tribunal') failed to exercise jurisdiction in that notwithstanding that there were documents which on their face proved that there were charges against the appellant, the Tribunal failed to consider or to make findings about the documents. … 3. The Tribunal denied the Appellant procedural fairness in relation to documents submitted by the appellant which on their face proved that there were charges against the appellant. 4. The Tribunal's decision was affected by a reasonable apprehension of bias in that throughout the hearing and in its findings the Tribunal was so pre-occupied with the issue of the circumstances of the appellant leaving Bangladesh that it failed to consider any evidence proving, supporting or consistent with the applicant's claims that he faced false charges on very serious charges if returned to Bangladesh. 5. The Tribunal so misunderstood and misapplied country information that the authorities in Bangladesh use arrest and detention as a political weapon (which was entirely consistent with the appellant's claims) as to exclude the possibility that a person could in any circumstances be allowed to leave Bangladesh where no arrest warrants had been issued thereby failing to consider the appellant's claims."

42 Mr Young submitted that his best points were that the Appellant had been denied procedural fairness in that the Tribunal failed to provide the Appellant with an opportunity to deal with the suggestion that the warrants were not genuine and that the Tribunal failed to make a finding as to whether or not the warrants were genuine. He submitted that there was no "evidence around the documents". 43 I turn first to consider ground of appeal number 3. 44 It is very easy when scrutinising the transcript of a hearing before the Tribunal, after the event, to bring to bear the prism of 20:20 hindsight and latch on to seeming discrepancies and shortcomings in the interview process. However, if one undertakes a careful reading of the whole of the transcript of the two days on which evidence was taken by the Tribunal in this matter, it is clear that even though the Appellant was assisted by an interpreter, his evidence was not easy to follow, he gave it very quickly and, in numerous instances, did not direct his answers to the questions he was being asked. 45 Numerous questions asked of the Appellant by the Tribunal commence with the word "Sorry", which seems to me to suggest that the Tribunal Member was having considerable difficulty comprehending the Appellant's responses to the questions that were being asked. No doubt, this explains why a number of the questions were repeated. 46 The problem which the Tribunal was experiencing is exemplified by the observation of the Tribunal on the second day upon which oral evidence was taken when it said to the Appellant in respect of one answer referred to above, "Sorry, slow down and say that again. I can't follow that at all". 47 In this context it is, in my opinion, wrong to suggest that the Tribunal denied the Appellant procedural fairness. In relation to the Appellant's documents the Tribunal said to the Appellant on the first hearing day in relation to the warrants said to have been issued against the Appellants "It's very difficult to rely on documents of that kind from Bangladesh because we know that they're no shortage of manufactured documents of that kind. I'm sure you're aware of that too. … There's no shortage of fraudulent or manufactured documents that are issued to people in support of applications for protection in Bangladesh. Are you aware of that?"

48 On the second hearing day the Tribunal said in the course of a question: "We've got these two charge sheets. We know from other information that they are easy to obtain, so they could easily be fakes."

49 True it is that the Appellant disavowed any knowledge of fraudulent documents. However, in my opinion an ample opportunity was afforded to the Appellant to deny any suggestion that the charge sheets upon which he relied were other than genuine. The genuineness of the alleged charges against the Appellant was plainly a matter which was concerning the Tribunal and this must have been apparent to the Appellant. 50 In my opinion ground of appeal 3 fails. 51 I turn now to ground of appeal number 1. The suggestion that the Tribunal made no findings in respect of the documents recording the alleged charges against the Appellant is unsustainable. As Ms Clegg, who appeared for the Respondent Minister, pointed out the Tribunal expressly found, "I am not persuaded that the documents are genuine". This is a finding that was open to the Tribunal in circumstances where the country information included an observation that none of several hundred documents submitted by asylum applicants when examined by the relevant Embassy had proved to be genuine. In the circumstances, ground of appeal number 1 has not been made out. 52 Turning to ground of appeal number 4, a careful reading of the transcript of the Appellant's evidence before the Tribunal does not support a conclusion that the Tribunal was "so preoccupied with the issue of the circumstances of the appellant leaving Bangladesh that it failed to consider any evidence proving, supporting or consistent with the applicant's claims that he faced false charges on very serious charges if returned to Bangladesh". 53 Being fair to the Tribunal it is impossible to characterise it as having had any relevant preoccupation. Certainly, as observed above it had difficulty following what the Appellant was saying in circumstances where, many of his answers were not responsive to the questions which were asked of him and he obviously spoke very quickly. The Tribunal did consider the documents said to have recorded charges laid against the Appellant and also addressed his oral assertions that he had been charged with serious offences. The Tribunal found his evidence to be "unconvincing". Its findings were certainly open to it. In the circumstances no case of apprehension of bias or actual bias can be sustained. 54 In relation to ground of appeal number 5, given the clear propensity of the BNP for making arrests first and asking questions later, the Tribunal's finding that it was inconceivable that he could have been charged with the offences alleged in circumstances where he was able to avoid arrest for some months or, as the Tribunal put it "It is inconceivable that the Applicant could have avoided arrest …. if he had been charged with these offences", was open to it. 55 In the foregoing circumstances the Appellant has failed to make good any of the grounds of appeal contained in the Amended Notice of Appeal. The appeal should be dismissed with costs. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham .

Associate: Dated: 1 November 2005 Counsel for the Appellant: J R Young