MZXEN v Minister for Immigration - [2006] FMCA 1617

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXEN & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1617

MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error – inadequate particulars – s.424A of Migration Act – application dismissed.

Migration Act 1958, ss.424(1)(a), 424A(3)(b)

SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
MZWMQ v Minister for Immigration & Indigenous Affairs [2005] FCA 1263 (9 September 2005)

Applicants:

MZXEN, MZXEO AND MZXEP

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 1471 of 2005

Judgment of:

McInnis FM

Hearing date:

17 July 2006

Date reserved:

8 August 2006

Delivered at:

Melbourne

Delivered on:

31 October 2006

REPRESENTATION

First Applicant:

In person and on behalf of Second and Third Applicants (assisted by an interpreter)

Counsel for the First Respondent:

Mr S Hay

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The Application be dismissed.
The Applicants shall pay the First Respondent’s costs fixed in the sum of $8,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1471 of 2005

MZXEN, MZXEO AND MZXEP

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By an application filed on 22 November 2005, the Applicants seek review of a decision of the Refugee Review Tribunal dated 28 September 2005 whereby the Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant protection visas.

Procedural Issues

After the application was filed, orders were made by a Registrar on 21 December 2005 in relation to a Court Book and granting the Applicants leave to file an amended application with proper particulars by 22 February 2006.
The First Respondent filed contentions of fact and law on 12 April 2006. The application came before a Federal Magistrate on 19 April 2006 and was then listed for hearing on 12 May 2006. Further orders were made for the parties to file and serve contentions of fact and law, with the First Respondent being required to do so by 28 April 2006 and the Applicants were to file contentions of fact and law in response by

9 May 2006.
Further contentions of fact and law were filed by the First Respondent on 28 April 2006. Those submissions dealt with an issue raised appropriately by the First Respondent before the court on 19 April 2006; namely, a question of whether an issue arose as a result of the Full Federal Court's decision in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (SZEEU).
Prior to the hearing in April 2006, it would appear that a letter dated 20 February 2006 from the First Applicant advised the court of a change of address of the Applicants from an address in Footscray West to an address in Jacana. The notice of listing, however, for the hearing conducted on 19 April 2006 was dated 3 January 2006 and was correctly forwarded to the Applicants' Footscray address. There was indeed an appearance for the Applicants in person on 19 April 2006.
The chronology of events recited in this judgment are verified by an affidavit of Tiffany Veschetti sworn 17 July 2006 and filed on behalf of the First Respondent. It is noted that the orders made by a Federal Magistrate on 19 April 2006 included a listing of the application for hearing, as indicated earlier, on 12 May 2006. A sealed copy of that order was forwarded to the Applicants at the Jacana address by letter dated 24 April 2006 from the solicitors for the First Respondent.
As indicated earlier, the First Respondent filed further contentions of fact and law on 28 April 2006, and I am satisfied that that document was served by prepaid post to the Applicants' Jacana address for service.
In or about May 2006, it would appear that the court was advised that pro bono counsel had been arranged to appear for and on behalf of the Applicants and an extension of time was sought for the filing of the Applicants' contentions of fact and law and a request made for the application to be adjourned from 12 May 2006 to another date. The First Respondent consented to an extension of time for the filing of the Applicants' contentions to 9 May 2006 and an adjournment of the hearing to 20 July 2006.
For reasons which are not readily apparent from the file, it would seem that the application was then listed for a callover in the court on 26 May 2006 before another Federal Magistrate. On that day the application was fixed before this court for hearing at 10.15 am on 17 July 2006. No-one appeared on behalf of the Applicants at the callover, which is perhaps not surprising given that the notice of hearing for the callover was forwarded to pro bono counsel who was not then on record and had not provided an address for service. In any event, at the callover the matter was fixed for hearing on 17 July 2006.
It would appear that the solicitors for the First Respondent endeavoured to contact pro bono counsel on or about 13 June 2006. The First Respondent's solicitors, by letter dated 19 July 2006 forwarded to the Applicants' Jacana address for service and copied to pro bono counsel, requested the Applicants to inform the First Respondent's solicitors urgently when the contentions of fact and law would be finalised.
Further attempts were made to contact pro bono counsel and those attempts were unsuccessful.
By 6 July 2006 the First Respondent, having not received the Applicants' contentions, again attempted to contact pro bono counsel and was advised the pro bono counsel would not be available to attend the hearing on 17 July 2006.
When the matter came before this court on 17 July 2006, the First Applicant appeared in person. It should be noted that the Applicants are citizens of Bangladesh and are a husband and a wife and their child. No objection is taken to the fact that the First Applicant, that is, the husband, appeared at the hearing.
Given the extensive history and delay in this matter, I then made orders granting leave to the Applicants to file and serve an outline of submissions on or before 31 July 2006. The First Respondent was then granted leave to file and serve a reply, if any, on or before 7 August 2006. It was further ordered that upon the filing of a reply by the First Respondent or the absence of a reply on 8 August 2006, the decision of the court would be reserved and the application determined on written submissions.
During the hearing on 17 July 2006 the First Applicant, with the assistance of an interpreter, was taken through the chronology recited above. I refused an application for an adjournment given the history of the matter and instead provided an opportunity to the Applicants to file and serve written submissions which, together with the written submissions of the First Respondent, would then be considered by the court with the matter determined upon those written submissions.
Having regard to the orders made by the court, I regard it as appropriate to deem the application reserved given the absence of a reply by the First Respondent on 8 August 2006. Accordingly, the court's decision is based upon those written submissions filed with the court, and it is noted that the Applicants, despite being given several opportunities to provide further material, have failed to do so.
In my view, the court in these circumstances can do no more than given a reasonable opportunity to Applicants in these circumstances to either encourage pro bono counsel to file written submissions or indeed make other arrangements. I am satisfied that an adequate opportunity has been given to the Applicants, having regard to the detailed chronology set out above, to present submissions.

Background

The Applicants are citizens of Bangladesh and, as indicated earlier, are a husband, a wife and their child. They arrived in Australia on 31 October 2003. On 8 October 2004 they lodged an application for protection visas with the First Respondent's Department.

The Applicant husband has claimed that he would face persecution by the Bangladesh National Party (BNP) upon return to Bangladesh.
The Applicant husband's fear was based upon his political involvement with the Awami League and false charges that had been laid against him, that he would be gaoled or given a death penalty.
The Applicant wife (the Second Applicant) claims she will be harmed by her ex-husband, who is also an ex-army officer, if she were to return to Bangladesh. She claimed that she would be subjected to sexual harassment if she were to return to Bangladesh.
On 4 April 2005, a delegate of the First Respondent refused to grant the protection visas. The Applicants then lodged an application for review of the delegate's decision with the Refugee Review Tribunal (the Tribunal) on 19 April 2005. The Applicant husband and the Applicant wife attended a hearing before the Tribunal and gave oral evidence on 25 July 2005. On 28 September 2005, the Tribunal handed down its decision whereby, as indicated earlier, it affirmed the delegate's decision not to grant the Applicants protection visas.

The application

The application before this court was supported by an affidavit sworn by the first applicant on 16 November 2005 where brief details are given as to why the Tribunal decision should be reviewed. It is simply asserted that the decision is "affected by an error of law" or "is based on a finding for which there was no evidence or other material".
It is therefore not surprising that attempts were made to obtain further and better particulars of the grounds relied upon by the Applicants and/or contentions of fact and law to be relied upon.
In its decision, the Tribunal did not accept the Applicants had a well‑founded fear of persecution. The Tribunal made significant findings concerning the applicant husband's political involvement in Bangladesh. Those findings are accurately set out in the First Respondent's contentions of fact and law filed on 12 April 2006 and include the following:
(a)it accepted the applicant husband was a member of the Awami League and that he had been interested in the Chatra League since 1991 and attended meetings, seminars and participated in processions and protests;
(b)it did not accept that the applicant husband was confronted or arrested by the police;
(c)it accepted that the applicant husband participated in many protests, including those held on 15 December 1999, 5 January 2000, 26 March 2000, 7 November 2000 and 12 December 2000, but it did not accept that he had any confrontations with authorities;
(d)even if the applicant husband had participated in a protest in Ramna with 500-600 other people in October 2002 and was beaten by police, he was not targeted because he had a particular profile;
(e)it accepted that the applicant participated in a protest at a press club on 20 January 2003 in which 800-900 people took part but did not accept that he had been shot several times;
(f)it did not accept that the applicant husband had been the subject of false charges because of his involvement with the Awami League because his evidence about this issue was inconsistent;
(g)it found the applicant husband's claims in relation to being at risk in 2002 during Operation Clean Heart were inconsistent;
(h)because of the nature of the applicant husband's inconsistent evidence, it found that he:
(i)would not be jailed or given the death penalty if he returned to Bangladesh;
ii)was not wanted by the BNP because of his past political activities;
iii)does not have a well-founded fear of the BNP or the authorities;
(iv) would not be of any interest to the Rapid Action Battalion.
The Tribunal made the following significant findings concerning the Applicant wife's ex-husband.
(a)it accepted the applicant wife's ex-husband had made threats, but found that the threats had not been carried out;
(b)it was unlikely that the applicant wife's ex-husband would have persistently threatened the applicant husband and demanded that he leave the applicant wife over a considerable period of time, in light of the fact that over 5 years had elapsed since the applicant wife divorced her ex‑husband; and
a)it did not accept that the applicant wife's ex-husband harassed the applicant wife for many years.
The Tribunal made specific findings about the applicant wife's claims as follows:
(a)it accepted that the applicant wife had experienced problems in her first marriage;
(b)it accepted that the applicant wife may have received threats after her divorce, although not to the extent claimed by her;
(c)it did not accept that she had been bashed several times by her uncle;
(d)it found that the various instances of “distasteful behaviour” (including unwanted sexual advances) that the applicant wife had experience did not amount to serious harm for the purpose of s.91R of the Migration Act 1958 (Cth) (the Act);
(e)the applicant wife's evidence that her ex-husband sent the police to her home on numerous occasions was inconsistent with what she stated in her statutory declaration;
(f)the applicant wife did not belong to a particular social group of "divorced women in Bangladesh" as she had been a married woman since September 1999;
(g)in light of the applicant wife's evidence, it was not satisfied that she suffered, or would likely suffer, persecution for a Convention reason.
The Tribunal further decided that difficulties experienced in securing employment were not Convention-related.

The Issues

The First Respondent correctly raised with the court issues which may arise from the decision of the Full Federal Court in SZEEU. It was noted that that decision held that in some circumstances, "information" which the Applicants submitted directly to the First Respondent's Department which becomes "part of the reason" for a Tribunal's decision must be put to an Applicant in writing pursuant to s.424(1)(a) of the Migration Act 1958 (the Migration Act). A failure to do so will ordinarily be regarded as jurisdictional error for the reasons set out in the High Court decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162.
The First Respondent submitted, however, that where the information has been provided to the Tribunal for the purpose of the application by the Applicants, there is no obligation on the Tribunal to put it to the Applicants (see s.424A(3)(b) of the Migration Act).
It was argued that in this case the Tribunal in its reasons did not accept the Applicant wife's ex-husband sent the police to her home on three or four occasions, including one during Operation Clean Heart, and specifically states at Court Book p.285.9 the following:
“… It notes both the applicant wife and the applicant husband consistently claimed in their statutory declarations of March 2005, that the army came the one time during Operation Clean Heart [sic] and searched for weapons and when they did not find any, they apologised. Had the authorities come more than this one time, the Tribunal would have expected this would have been raised in the applicant wife's detailed submission. Given she only raised this for the first time in the hearing and this conflicted with what was included in her earlier statutory declaration, the Tribunal is satisfied the authorities only came to her family's home the one time. …”
It was submitted by the First Respondent that the Tribunal identified an inconsistency between the Applicant wife's written evidence and her oral evidence at the hearing. The Applicant's statutory declarations were submitted to the delegate and importantly, it was submitted, the same declarations were also sent to the Tribunal on 8 July 2005 (Court Book p.187).
It was therefore submitted that it may be argued that the Tribunal's findings set out earlier in part relied upon the Applicant husband's declarations which were not put to the Applicant wife in writing. Though arguable, it was submitted by the First Respondent that on a fair reading of the relevant portion of the decision set out above, the Tribunal relied upon the inconsistencies contained in the Applicant wife's evidence alone. Reference again was made to the extracts set out above of the Applicant wife's "earlier statutory declaration" and the conflict observed in relation to that and her evidence at the hearing.
In my view, this submission by the First Respondent is correct. I do not regard the conclusion of the Tribunal as amounting to a conclusion which would justify a finding that the Tribunal had an obligation to forward in writing to the Applicant wife the statutory declaration of the Applicant husband in the context where the Tribunal has clearly referred to the Applicant wife's earlier statutory declaration and made an observation about inconsistencies between that declaration and her evidence at the hearing.
In the alternative, I otherwise accept the submission by the First Respondent that in this particular application the principles set out in MZWMQ v Minister for Immigration & Indigenous Affairs [2005] FCA 1263 (9 September 2005) apply in the sense that there is no duty on the Tribunal in this instance to put the Applicant husband's evidence to the Applicant wife given that both Applicants are deemed to be Applicants for the purpose of the Tribunal review.
Hence I accept, as submitted, that the exception provided by s.424A(3)(b) of the Migration Act apply not only to the Applicant wife’s resubmitted declaration but also to the Applicant husband's resubmitted declaration. I accept that there is no relevant difference between the two declarations for the purposes of the requirements of s.424A(1)(a) of the Migration Act.
I further accept the First Respondent's submission arising out of a matter raised apparently by the court on 19 April 2006 concerning a possible argument raised on an assumption that the Tribunal relied on the fact of the earlier declaration being submitted to the delegate rather on the content of the earlier declaration. I accept that on that issue it is correct to conclude that the Tribunal in fact relied on the content of the declaration and not on the fact that the declarations had been submitted earlier to a delegate.

Conclusion

In the absence of any further particulars of the application, having regard to the grounds relied upon in the affidavit in support of the application and having dealt with any issues which may potentially have arisen as a result of the application of the principles in SZEEU, I am satisfied that there is no jurisdictional error in the present application.
The Tribunal in my view has embarked upon a fact-finding process free of jurisdictional error. It has considered the claims properly before it and reached conclusions of fact reasonably open to it. I can detect no error of any kind and, as indicated, do not find any error arising from the principles set out in SZEEU.
Accordingly, it follows that the application should be dismissed with costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 31 October 2006