SZOEV v Minister for Immigration and Citizenship

Federal Court of Australia|2010-09-24|Before: Re J, Flick J

The Notice of Appeal filed on 29 June 2010 is dismissed. 2. The Appellant is to pay the costs of the First Respondent. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT 1 The Appellant is a national of Bangladesh who arrived in Australia with his son on 24 April 2009. On 5 June 2009 both father and son applied to the Department of Immigration and Citizenship for Protection (Class XA) visas. Those claims were refused by a delegate of the Minister on 3 September 2009, and the Appellant was advised of this decision by letter dated 7 September 2009. 2 In very summary form, the Appellant claimed to fear persecution by reason of his political opinion and religion. The Appellant claimed to be a Hindu who supported the Bangladesh Nationalist Party (the "BNP"), being the main opposition party in Bangladesh. The political party presently in power is the Awami League (the "AL"). The Appellant's son applied for a Protection (Class XA) visa as a member of the family unit but also claimed that he was a Hindu. The son claims to have been kidnapped and forcibly circumcised by his captors, described as "Muslim extremists affiliated with the AL". 3 On 30 September 2009 the Appellant and his son sought review of the delegate's decision by the Refugee Review Tribunal. That Tribunal affirmed the decision not to grant the visas and gave reasons for doing so in a decision dated 5 February 2010. 4 Review of the Tribunal's decision was then sought by way of an Application, thereafter an Amended Application, and yet a further Application filed with the Federal Magistrates Court of Australia. On 10 June 2010 that Court dismissed the proceeding: SZOEV v Minister for Immigration and Citizenship [2010] FMCA 407. 5 A Notice of Appeal was then filed with this Court on 29 June 2010. 6 The appeal was first listed for hearing before this Court on 25 August 2010. But prior to that occasion, on 24 August 2010, the Appellant advised the Court by way of facsimile, and including a medical certificate, that he was unwell and would be unable to attend. The hearing was adjourned to 2 September 2010. 7 On that date, the Appellant did not appear at the time when the appeal was listed for hearing. The proceeding was temporarily adjourned but there remained no appearance on the part of the Appellant. Shortly thereafter, however, having decided to proceed with the hearing of the appeal in the absence of the Appellant, the Appellant did appear and the hearing of the appeal resumed. The Appellant had the assistance of an interpreter. 8 The appeal is to be dismissed.

The Grounds of Appeal 9 The Grounds of Appeal as set forth in the Notice of Appeal provide as follows (without alteration): Grounds: 1. The Second Respondent made a jurisdictional error in deciding the claim of the Appellant with any basis and without open mind and the second responded was bias, the Federal Magistrate made an error of law by not finding this issue. 2. It is an error of law by not finding by the FM that the Second Respondent made jurisdictional error by not considering the integer of the appellant's claim. Particularly the applicant was not only a political leader but also a member of the minority Hindu religion, which was subject to oppression by the mainstream community. 3. The Second Respondent made a jurisdictional error not to considering the totality of the appellant's case and the trial court made an error in considering most of the issues. Grounds 2 and 3 raise arguments which were not relied upon by the now Appellant when he and his son advanced their claims before the Federal Magistrates Court. New arguments can, of course, be raised on appeal: Dart Industries Inc v Decor Corporation Pty Ltd (1989) 15 IPR 403 at 416 per Lockhart J. The solicitor appearing on behalf of the Respondents quite properly did not claim any prejudice in having those additional arguments now agitated. She did, however, contend that leave to appeal should be refused as the additional Grounds were without merit.

Jurisdictional Error - Bias? 10 The first Ground of Appeal is understood to be a contention that the Tribunal committed jurisdictional error by reason of there being a reasonable apprehension of bias. The contention is that the Tribunal failed to properly discharge the jurisdiction entrusted to it by reason of it not considering the now Appellant's claim with an "open mind". 11 A like argument was advanced before the Federal Magistrate and rejected. In doing so the Federal Magistrate reviewed the reasons for decision of the Tribunal and part of the transcript of the hearing before the Tribunal and listened to one of three audio discs recording the hearing before the Tribunal. The Federal Magistrate concluded that a listening of the disc recording did not "suggest in any way that the Tribunal Member was rude, overbearing, intimidating or shouting": [2010] FMCA 407 at [50]. The Federal Magistrate further concluded that a "fair reading of the Tribunal's decision record, the transcript and listening to Disc 1 of the Tribunal hearing do not disclose any prejudgment on the part of the Tribunal …": at [53]. 12 The Federal Magistrate is said to have erred in rejecting the argument. 13 A failure on the part of the Tribunal to afford the now Appellant natural justice by reason of a reasonable apprehension of bias, it is accepted, would constitute jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 at [30], 128 FCR 553 at 559 per Gray, Cooper and Selway JJ. 14 But the Federal Magistrate was correct in rejecting the argument. The argument is simply without substance. 15 An allegation of bias by reason of prejudgment must be "firmly established" (Re J R L; Ex parte C J L (1986) 161 CLR 342 at 352 per Mason J) and must be "distinctly made and clearly proved": Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, 205 CLR 507 at [69] per Gleeson CJ and Gummow J, at [127] per Kirby J. 16 The principles more relevant to an application in respect to proceedings before the Refugee Review Tribunal, where proceedings are heard in private, have been addressed by Gleeson CJ, Gaudron and Gummow JJ as follows in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, 179 ALR 425: [27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the tribunal, proceedings are held in private. [28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. 17 Circumstances may arise, as is the argument in the present case, such that a reasonable apprehension of bias on the part of the Tribunal may be established by reference to the manner in which the Tribunal has conducted a hearing. Thus, for instance, in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, 131 FCR 102, Kenny J there relevantly concluded: [82] … The vice in this case was that, by the Member's conduct during the hearing, a fair-minded observer might well infer that there was nothing the applicant could give by way of evidence or submit by way of argument that might change her mind about his claim - that he had fabricated his account. Virtually from the beginning of the hearing until its end, the Member expressed her disbelief in his truthfulness. Whether expressly, by implication, or by her tone of voice, she made it clear that she did not believe him and the account he gave. As well as repeated expressions of disbelief, there were her constant adverse comments on his evidence; and numerous displays of irritation, impatience, frustration and, sometimes, sarcasm. The applicant was regularly interrupted. Much of the Member's questioning of the applicant appeared calculated to undermine his case, rather than to facilitate a non-partisan investigation into the facts. 18 A Full Court of this Court revisited the position of the Refugee Review Tribunal which does not conduct its proceedings in public and which also has an inquisitorial function in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, 214 ALR 264. Allsop J (as His Honour then was and with whom Moore and Tamberlin JJ agreed) there observed: [19] … [T]he place of a decision-maker such as the Tribunal here should be recognised as different from a judge in open court: … The Tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The Tribunal here must investigate the facts for itself unaided by counsel presenting the parties' cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality. [citations omitted] 19 But the present case does not present any fact or circumstance giving rise to any sustainable basis for questioning the impartiality of the Tribunal or the appearance of impartiality. Reference may be made, by way of comparison, to the like conclusion of Logan J in SZNNQ v Minister for Immigration and Citizenship [2010] FCA 376, 114 ALD 590. 20 Concurrence is expressed with the reasons of the Federal Magistrate for rejecting the argument. There is no basis upon which the conclusion of the Federal Magistrate can be questioned. The Appellant resisted an inquiry as to whether this Court should again listen to the disc recordings of the Tribunal proceeding, as the Federal Magistrate had, upon the basis that the disc recordings had been "corrupted". An independent review of the transcript of the hearing before the Tribunal and a review of the reasons provided by the Tribunal provide no basis to question the conclusion reached by the Federal Magistrate. 21 Ground 1 of the Notice of Appeal is rejected.

Failure to Consider any Integer of the Claim? 22 The second Ground of Appeal alleges that jurisdictional error was committed by reason of the failure on the part of the Tribunal to consider an "integer of the appellant's claim" and, particularly, that the Appellant "was not only a political leader but also a member of the minority Hindu religion, which was subject to oppression by the mainstream community". 23 Presently left to one side is any question as to whether this argument was advanced for resolution before the Federal Magistrate or whether the "integer" specifically referred to is but one of a number of other unspecified "integers" said to have not been considered. 24 As best as the Ground can presently be understood, the argument sought to be advanced is again without substance. 25 The Tribunal in its reasons for decision carefully set forth the claims made and the evidence given. The "integer" specifically referred to in Ground 2 of the Notice of Appeal is expressly referred to by the Tribunal as a "claim" being advanced and its reasons record questions being put to the now Appellant during the course of the hearing. Those reasons for decision also set forth the following: Findings in relation to the Applicant [168] The Applicant claims he has faced serious harm in Bangladesh for reason of being a BNP activist and a Hindu, and that he and his son were pressed to become Muslims, he himself being pressed by fanatics both to become a Muslim and also to leave Bangladesh. He and his son claim the latter was abducted and forcibly circumcised for politico-religious reasons, although the Applicant also provided information to indicate that the kidnap was to a significant extent a matter of mercenary extortion. The Applicant claims that he faces ongoing persecution in Bangladesh for the separate and cumulative reasons of being a Hindu, for reasons of being a Hindu who refuses to convert to Islam, for reasons of being a BNP activist and leader. The Tribunal thereafter again referred to the claims based upon political affiliation when it later made the following findings: [188] The Tribunal does not accept that the Applicant was to any significant extent involved in the BNP. [189] This does not entirely deal with the Applicant's claim about the AL or some pocket within the AL persecuting the Applicant because he was Hindu. The first observation the Tribunal wishes to make about this is that the claim does not sit with independent country information about the relationship between the AL overall and the Hindu community in Bangladesh. Independent information suggests that the AL is a party that tends to be popular with Hindus, implying that the BNP is not. Further to this, the Applicant was somewhat inconsistent throughout his evidence as to whether it was the AL harassing him or just some extremist pocket within the AL. [190] The Tribunal's second observation is that it has already found the Applicant an unreliable witness, on the basis of the false and inconsistent evidence about his membership of and contributions to the BNP. [191] The Tribunal's third observation in relation to many of the Applicant's claims about the AL is that he has cited a number of instances in which the AL was harassing him at the same time for reasons of his BNP affiliation and his Hindu religion. The unreliability of the Applicant's claims about his BNP status, and therefore his claims about the AL targeting him in relation to his political opinion, make it hard for the Tribunal to be confident in the credibility of his claims about the AL simultaneously targeting him for reasons of his religion. The Tribunal concluded that the now Appellant's "own evidence about his life in the BNP is inconsistent and embellished" and that it did "not accept that the [Appellant] was to any significant extent involved in the BNP". The Tribunal also separately addressed the claims as to persecution "because he was Hindu". The Tribunal found (inter alia) that the father was "an unreliable witness". 26 Rather than there being any failure on the part of the Tribunal to consider the one "integer" expressly referred to, the evidence relevant to the claims was addressed and the claims themselves were addressed and resolved. 27 To the extent that the second Ground of Appeal may seek to advance an argument that the Tribunal erred in not accepting the claims of the Appellant, such a Ground so construed would be an impermissible attempt to challenge the findings of fact made by the Tribunal. 28 In his oral submissions advanced in this Court with the assistance of the interpreter, the Appellant explained that the argument he sought to advance by way of Ground 2 was that the Tribunal had not considered his claims and had denied him the opportunity to advance his case. That submission, however, is without substance. The reasons for decision of the Tribunal record that it extended to the now Appellant an opportunity to make further submissions after the conclusion of the Tribunal hearing; the fact that further submissions were advanced; and the fact that those submissions were taken into account. 29 The argument, however expressed, remained an argument which was not raised for resolution before the Federal Magistrate. Leave to raise Ground 2 is refused as it is a Ground without merit. 30 Ground 2 of the Notice of Appeal is rejected.

The Totality of the Case 31 The final Ground of Appeal alleges that the Tribunal failed to consider "the totality of the … case and the trial court made an error in considering most of the issues". Presumably the Appellant wishes to contend that the appellable error committed by the Federal Magistrate was a failure to consider "most of the issues". 32 There nevertheless remain two fundamental difficulties. 33 First, a review of the claims advanced on behalf of the Appellant and the reasons for decision of the Tribunal fail to expose any aspect of those claims which has not been considered and resolved. 34 Second, the ground is but an impermissible attempt to challenge the factual conclusions reached by the Tribunal. Such challenges to the factual findings do not expose jurisdictional error. Findings of fact "are the exclusive province of the Tribunal subject to issues of unreasonableness": SZLVM v Minister for Immigration and Citizenship [2008] FCA 1245 at [12] per Gordon J; MZYEH v Minister for Immigration and Citizenship [2010] FCA 524 at [24] per Ryan J, 115 ALD 390 at 395. The Court should be careful to ensure that it does not "trespa[ss] into the forbidden field of review on the merits": Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391 per Mason CJ. The findings of fact made by the Tribunal in the present proceeding were largely the result of the Tribunal's adverse assessment as to the Appellant's credibility. And a "finding on credibility … is the function of the primary decision-maker par excellence": Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], 168 ALR 407 at 423 per McHugh J. 35 Such observations do not preclude the prospect that fact-finding may in some cases expose a lack of impartiality and may involve jurisdictional error: NADH, supra. Allsop J there thus observed: [115] By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: … Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, 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. … [citations omitted] Appl'd: MZYAA v Minister for Immigration and Citizenship [2009] FCA 1303 at [28] per Goldberg J. See also: NAOX v Minister for Immigration and Citizenship [2009] FCA 1056 at [40] to [44], 112 ALD 54 at 60 to 61 per Spender J. 36 But such is not the present case. The findings of fact and conclusions of the Tribunal were carefully and rationally exposed. 37 Again, Ground 3 seeks to raise an argument not raised for resolution before the Federal Magistrate. Leave is required. Leave is refused as it is also a Ground without merit. 38 The final Ground of Appeal is also to be rejected.

Conclusions 39 At the end of the hearing of the appeal, the Appellant sought an opportunity to tender further evidence - particularly evidence in respect to the medical condition of his son. This Court may, even when hearing an appeal, permit further evidence to be adduced. But the application to adduce further evidence was rejected. The time for advancing evidence going to the merits of claims for refugee status is before the Tribunal: cf. Abebe v The Commonwealth of Australia [1999] HCA 14 at [187], 197 CLR 510 at 576 per Gummow and Hayne JJ. Such evidence as was sought to be tendered was essentially evidence going to the merits of the claims to refugee status. But the task of resolving those factual merits is a task entrusted by the legislature to the Tribunal and not this Court. Further medical evidence was in any event provided to the Tribunal even after it had concluded its own hearing. There was thus no reason for now entertaining further evidence and any such evidence would not (in any event) have assisted in the resolution of any of the Grounds of Appeal advanced for consideration. 40 None of the Grounds of Appeal have been made out. The appeal should be dismissed. 41 There is no reason why costs should not follow the event. The Appellant should pay the costs of the First Respondent.

ORDERS 42 The Orders of the Court are: 1. The Notice of Appeal filed on 29 June 2010 is dismissed. 2. The Appellant is to pay the costs of the First Respondent. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

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