S1506 of 2003 v Minister for Immigration and Multicultural Affairs

[2006] FCA 1573

FEDERAL COURT OF AUSTRALIA

S1506 of 2003 v Minister for Immigration & Multicultural Affairs
[2006] FCA 1573

MIGRATION – application for protection visa – refused – application to Refugee Review Tribunal – refused – appeal to Federal Magistrates Court – dismissed – appeal – country information – procedural fairness – whether practical injustice – no breach of procedural fairness

Migration Act 1958 Cth) s 424A.

Re Minister for Immigration; ex parte Lam (2003) 214 CLR 1, referred to.

S1506 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1101 OF 2006

MARSHALL J
24 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1101 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

S1506 OF 2003
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	24 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The appellant pay the first respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1101 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

S1506 OF 2003
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	24 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from a judgment of a Federal Magistrate in which his Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal had rejected an application by the appellant to grant him a protection visa after an earlier adverse decision of a delegate of the Minister.

2. In his notice of appeal the appellant refers to the failure of the Tribunal to take into account evidence given by him to the Tribunal about his position as an activist in the Jatiya Party in Bangladesh.

3. Other grounds of appeal take issue with the ultimate finding of the Tribunal that the appellant does not have a well-founded fear of persecution for a Convention reason, its finding that the appellant did not give credible evidence and its rejection of his claims.

4. Each of the matters referred to in the preceding paragraph were matters which the appellant submits should have been corrected before the Court below.

5. It is not clear from the reasons of the Federal Magistrate that any of the above matters were raised before him. Therefore, it is difficult to see how his Honour erred in his treatment of them. In any event, each of them seeks to traverse matters of merit or take issue in an unparticularised way with the ultimate question of fact for the Tribunal, that is, does the appellant have a well-founded fear of persecution for a Convention reason.

6. The only issue of substance which the appellant raises on appeal is that contained in the first appeal ground. The appellant contends that the Tribunal did not give him a reasonable opportunity to respond to independent evidence in its possession which supported the view that the appellant could return to Bangladesh without fear of persecution.

7. As the Tribunal’s decision pre-dated the enactment of s 424A of the Migration Act 1958 (Cth), it is open to the appellant to submit that he was denied natural justice by not being given an opportunity to respond to the country information relied on by the Tribunal to reject his claim.

8. The Federal Magistrate dealt with and rejected the appellant’s claim alleging a denial of procedural fairness. His Honour held the relevant material was raised with the appellant during the Tribunal hearing. He also held the material was the same information that was relied on by the delegate in his decision and notified to the appellant at that time.

9. In his decision the delegate said he considered certain documents, including some which would fit the description of ‘independent evidence’. Those documents were:

   ·the US State Department Country Report for 1994;

   ·country profile for Bangladesh 1994; and

   ·certain cables from Dhaka in 1993 and 1995.

10. The Tribunal relied on additional independent evidence as appears from its reasons for decision. These included:

    ·Europa Regional Surveys of the World, Bangladesh;

    ·Department of Foreign Affairs and Trade (‘DFAT’) cable DA500073 of 10 October 1996;

    ·Asiaweek, 28 June 1996;

    ·DFAT, Bangladesh Judicial System, 3 April 1993;

    ·US Department of State, Country Reports on Human Rights Practices 1995, Washington DC, March 1996;

    ·Amnesty International Report 1992;

    ·Research Directorate of the Documentation, Information and Research Branch of the Canadian Immigration and Refugee Board, Bangladesh: Human Rights Situation, January 1997;

    ·an additional DFAT cable from 1993; and

    ·‘Ershad’s out’, The Economist, 25 January 1997.

11. Contrary to the submission put on behalf of the Minister to the Court below and accepted by it, the independent information relied on by the Tribunal went much further than the information relied on by the delegate.

12. The Federal Magistrate considered the Tribunal raised with the appellant the independent evidence it relied on in rejecting his claims during the hearing. At [4] of his reasons he said:

    ‘The court can only go on the basis of the documentation that is provided, namely the green book and the Tribunal’s decision. It is not clear exactly what independent evidence the [appellant] is referring to. There was some independent evidence concerning the situation in Bangladesh as to its politics and the independence of the judiciary. Those matters were clearly raised with the [appellant] during the hearing. See, for example [CB 107].’

13. Page 107 of the court book before the Court below is the page at which the Tribunal commences to refer to ‘independent evidence’. The only matters raised with the appellant at that page preceded the discussion of the independent evidence. Those matters concerned political developments in Bangladesh but were not sourced in any particular independent evidence. There is no suggestion in the decision that the Tribunal put specific independent evidence to the appellant as material which specifically contradicted his claims.

14. The Federal Magistrate noted the appellant did not provide him with a copy of the transcript to make out his claim that the Tribunal did not raise the independent evidence with him. However, one would expect the Tribunal to note such a fact, if it had done so. In any event, the Minister, as a model litigant, has placed the transcript before me.

15. The transcript of the Tribunal hearing shows that the Tribunal did not put the country information referred at [10] above to the appellant for his comment. However, the question remains whether any practical injustice has been shown; see Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1. Here, the appellant did not tell the Court below what response he would have made to the Tribunal if it had told him that it was going to rely on the country information referred to at [10] above to defeat his application. In the circumstances no breach of procedural fairness has occurred. The appeal must be dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        24 November 2006

The appellant appeared for himself.
Counsel for the first respondent:	Mr M Izzo
Solicitor for the first respondent:	Sparke Helmore
Date of Hearing:	3 November 2006
Date of Judgment:	24 November 2006