SZAIK v Minister for Immigration - [2003] FMCA 587

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAIK v MINISTER FOR IMMIGRATION

[2003] FMCA 587

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and religious persecution in Bangladesh – Tribunal rejected documents presented by applicant in reliance upon country information about document fraud in Bangladesh – proceedings unfair – applicant should have been given the opportunity to comment on the country information.

Federal Magistrates Act 1999 (Cth), s.16
Migration Act 1958 (Cth), ss.91R, 242A

Applicant VCAT v Minister for Immigration [2003] FCAFC 14
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Muin v Refugee Review Tribunal (2002) 190 ALR 601
NARV v Minister for Immigration [2003] FCAFC 262
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82

Applicant:

SZAIK

Respondent:

MINISTER FOR IMMIGRATION AND MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ499 of 2003

Delivered on:

12 December 2003

Delivered at:

Sydney

Hearing date:

12 December 2003

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr C Jackson

Solicitors for the Applicant:

Morgan Ardino & Co

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Clayton Utz

ORDERS

The Court declares that the decision of the Refugee Review Tribunal made on 27 February 2003 and handed down on 20 March 2003 is invalid and of no effect.
A writ of certiorari issue, quashing the decision of the Refugee Review Tribunal.
A writ of mandamus issue, requiring the Refugee Review Tribunal to redetermine the matter according to law.
The applicant is to pay the hearing fee of $327 within 21 days or obtain a waiver.
The respondent is to pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ499 of 2003

SZAIK

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 27 February 2003 and handed down on 20 March 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and made claims of persecution in that country on the basis of his Hindu religion and also on the basis of political activity. The two claims were related.
The relevant background information is set out in paragraphs 1 through to 7 of written submissions prepared on behalf of the Minister by Mr Kennett. I accept that statement of background information for the purposes of this judgment as follows:
On 20 March 2003 the RRT handed down a decision which affirmed an earlier decision by a delegate of the respondent not to grant a protection visa to the applicant (court book page 374).
The applicant is a national of Bangladesh who arrived in Australia in May 2001 and applied for a protection visa on 4 June 2001. That application was rejected by a delegate of the Minister on 30 August 2001. The applicant applied for review of that decision by the RRT on 19 September 2001 (court book, page 375).
The RRT accepted the applicant’s claim that he was a Hindu who had tried to secure the rights of Hindus. It also accepted that he and his family might have suffered in riots and that he might have been involved in clashes with supporters of other political movements (court book, page 396).
The RRT considered the position of Hindus in Bangladesh generally and noted that, although a minority, they constituted quite a large community. It noted that there was violence against minorities but accepted recent evidence that that violence was diminishing. Since the violence against Hindus generally was “random, isolated, and unsystematic”, the RRT considered that there was not a real chance that the applicant would suffer persecution in Bangladesh on this basis (court book, page 396).
Next, the RRT considered the applicant’s claims on the basis that he was a “prominent Hindu” at the local level (as he claimed to be, and as the RRT accepted was possible). The RRT expressed “serious reservations” about the genuineness of letters which the applicant had submitted in support of this claim (court book, page 396). However, it did not [appear to] express a concluded view about the letters or their contents, or about whether there was a real chance that the applicant would face politically motivated attacks (court book, pages 396-7).
The RRT took the view that, if the applicant did face a prospect of politically motivated attacks in the district where he had lived, he could avoid that danger by relocating to Chittagong or Dhaka and it would be reasonable for him to do so. In reaching these conclusions the RRT noted that he had professional skills as a shipping radio operator and had studied in Chittagong (court book, page 397).
The RRT was therefore not satisfied that the applicant had a well founded fear of persecution in Bangladesh. It followed that the RRT was not satisfied that he was a person to whom Australia had protection obligations under the Refugees Convention (court book, apge 397).
The applicant proceeds on the basis of an amended application which raises a single issue; that is that the RRT exceeded its jurisdiction in failing to accord the applicant procedural fairness as required under s.424A(1) of the Migration Act 1958 (Cth) (“the Migration Act”). While the application only specifically identifies the procedural fairness obligation arising from the Migration Act, as I understand the submissions put by Mr Jackson, for the applicant, the applicant also relies upon an asserted breach of a procedural fairness obligation arising under the general law.
Two particulars are given in the application. The first is that the RRT did not provide the applicant with particulars of information in the Australian Embassy report of September 2002 which form part of the reason of the RRT’s decision, namely that violence against minority groups had subsided and that information was not just information about a class of persons. Secondly, the RRT did not put to the applicant its doubts about documents containing information personal to the applicant from the Bangladeshi Jatiya Party and the Bangladesh Hindu Bouddha Christian Oikya Parishad Party, and those doubts formed part of the reason for the RRT decision.
I also received into evidence, apart from the green court book, an affidavit by Md Iqbal Hye Chowdhury annexing a transcription from the tapes of the hearing conducted by the RRT in this matter. Mr Kennett, for the Minister, told me that those who instruct him had also taken the opportunity to listen to the hearing tapes, and although the Minister does not accept the accuracy of the transcript in its entirety, there is no dispute that it provides an accurate statement of what occurred at the hearing insofar as is material.
Written submissions were prepared by Mr Jackson and filed on 8 December 2003. As I have already noted, written submissions were also filed by Mr Kennett on 11 December 2003. Both counsel also presented oral submissions.
The first issue is whether the RRT committed jurisdictional error in failing to disclose to the applicant country information concerning the lessening of the risk of harm coming to Hindus in Bangladesh. The RRT approached the matter in the following way. The presiding member discussed the relevant legal principles, the applicant's claims, the conduct of the hearing and relevant country information. That country information included information about atrocities committed against Hindus in Bangladesh, the nature and extent of the risk faced by minorities including Hindus and the latest information on the level of trouble in the country.
Under the heading “Findings and Reasons” (court book, page 395) the presiding member said:
The applicant fears harm as a Hindu and claims that the Bangladesh government will not protect him.
The Tribunal accepts that the applicant is a Hindu and has tried to secure the rights of Hindus. The Tribunal further accepts that the applicant's family and community may well have suffered in riots following incidents in 1990 and 1992. The Tribunal further accepts that the applicant may well have been involved with clashes with other political supporters in his local area because of his support for the Jatiya Party and for Hindu rights.
The Tribunal also accepts the independent evidence that Hindus in Bangladesh have been suffering increasing harassment and harm from fundamentalist Muslims and that the new government has lessened the general level of religious tolerance that has prevailed in Bangladesh. The Tribunal accepts the independent evidence cited above that there are some 13 million Hindus in Bangladesh. This makes the Hindus, while still a minority, a rather large community. The Tribunal further accepts the independent evidence that while the level of attacks on Hindus increased after the most recent general elections, the most recent independent evidence of September 2002 from the Australian embassy, as cited above, is that “the violence against minorities subsided in early 2002. We would agree with the state department comment that relations between the different religious groups are generally amicable, although clashes occasionally occur”.
The Tribunal accepts that the applicant and his family may well feel isolated and harassed in the rural area where they live. The Tribunal has considered the applicant's claims that ordinary Hindus have suffered. The Tribunal accepts that ordinary Hindus have indeed occasionally suffered in random and violence. However, given the lessening of violence against minorities, and the random, isolated, and unsystematic nature of such attacks, the Tribunal finds that there is no real chance the applicant suffer serious harm by being the victim of such attacks.
The issue of community violence was discussed with the applicant by the presiding member during the course of the RRT hearing. On page 9 of the transcript annexed to Mr Chowdhury’s affidavit, the following exchange takes place:
Applicant (through the interpreter):
The Muslim leaders create problem, I think in Chittagong and Dhaka.
Tribunal member:
That is true; I have information that the situation for Hindu is in Bangladesh is generally not good. But of course there are perhaps 12 millions Hindus in Bangladesh and while there is some atrocities, occasional murders and so on most people lead reasonably a normal life, most Hindus lead a reasonably normal life.
Applicant:
Yes, what he said is true. In various places in different ways they are being persecuted.
On page 10 of the transcript the presiding member said:
And as I said the evidence that we have generally from the government not western governments and from western non government organizations is that generally Hindus can live reasonably safely in Bangladesh.
The first point to make in relation to this element of the applicant's claim is that, in my view, no procedural fairness obligation arises from s.424A of the Migration Act. That is because of the operation of subsection s.424A(3) of that section, which provides relevantly as follows:
This section does not apply to information:
a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member;
This issue was considered by the Full Federal Court in NARV v Minister for Immigration [2003] FCAFC 262. It is apparent to me from my reading of the majority judgment in that case that there is no obligation under s.424A(1) of the Migration Act to disclose information to an applicant where the information is only relevant to the determination of an issue in which the individual circumstances of the applicant are not the relevant consideration.
Thus, in NARV the information in question was information concerning document fraud in Bangladesh. The majority of the Full Federal Court held that there was an obligation both under the general law and under s.424A(1) to disclose that country information to the applicant because the credibility of a particular document or documents put forward by the applicant was relevant to the determination of the application.
However, in respect of the country information concerning communal violence in Bangladesh the information was only relevant to the risk faced by Hindus as a class. The applicant of course was a member of that class. However, there was nothing about the applicant personally which the information bore upon. The information was therefore information not specifically about the applicant and was just information about a class of persons, namely Hindus, of which the applicant was a member.
That, however, does not dispose of the first part of the claim. That is because s.424A does not exclude the operation of the general law. That was conceded by the Minister in these proceedings. It is also clear from NARV that under the general law an obligation arises on a decision maker to disclose to an applicant information that will be relevant to the determination of the application if it is adverse to the applicant's interests.
There was, as I have noted, a general discussion between the presiding member and the applicant about the situation of Hindus in Bangladesh. That discussion went at least some way to satisfying any procedural fairness obligation that was on the RRT to disclose information to the applicant drawn from country information relevant to the determination or the issue of whether the applicant faced a well founded fear of persecution purely because he is a Hindu. There was no disclosure specifically of the country information about the recent lessening of the risk of harm to Hindus and other minority groups. Therefore, if this element of the applicant's claims was disposed of on the basis of that country information then it is at least arguable that the country information should have been disclosed to the applicant.
The critical part of the presiding member's reasoning on this issue lies in the sentence at page 396 of the court book:
However, given the lessening of violence against minorities, and the random, isolated, and unsystematic nature of such attacks, the Tribunal finds that there is no real chance that the applicant will suffer serious harm by being a victim of such attacks.
It is apparent that the presiding member placed significance on the facts that there was a lessening of violence, that the attacks were random and isolated and unsystematic. The fact that the attacks were unsystematic of itself probably prevented any convention nexus being drawn in view of the statutory definition of persecution in s.91R of the Migration Act. Nevertheless, it does not necessarily follow that by that reason alone there was no obligation on the RRT member to disclose the country information concerning the lessening of violence, given that that issue also formed part of the reasoning process by the member.
Mr Kennett deals with this issue in paragraphs 9 through to 12 of his written submissions. On balance, I am inclined to accept those submissions and I do so for the purposes of this judgment:
Natural justice did not require the RRT to alert the applicant to issues that obviously arose given the nature of his application,[1] or to invite comments on any preliminary views it had formed (Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591 (Northrop, Miles and French JJ). It was clear from the outset that the applicant needed to convince the RRT that he faced a real chance of persecution in Bangladesh because of his religion or his political activities. He had opportunities to attempt that task. The RRT was not under a general obligation to warn him that it was not yet convinced, or why.
Further, where natural justice does require adverse country information to be brought to the attention of an applicant, it does not require the RRT to make available particular reports. It is sufficient that the substance of the information be conveyed to the applicant (Applicant VCAT of 2002 v Minister for Immigration [2003] FCAFC 14 at [25] – [34].
During the hearing in the present case, the tribunal member indicated that he had a lot of examples of atrocities in Bangladesh (transcript, page 10), but went on to say that “the evidence that we have…is that generally Hindus can live reasonably safely in Bangladesh” (transcript, pages 10-11). Thus, the applicant was expressly warned that the RRT had material suggesting that he did not face a substantial chance of persecution merely on account of being Hindu. More particularly he was warned that there was material suggesting that, although atrocities had occurred, the current situation (as at the time of the hearing) was that Hindus were generally safe.
His attention was thus drawn to the critical issue (which was in any event obvious) – namely the extent to which Hindus were now in danger in Bangladesh. The fact that the RRT did not canvass the particular evidence on which it ultimately relied does not mean that there was a failure to provide procedural fairness.
[1] See Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82, 121 [100] per McHugh J; Muin v Refugee Review Tribunal (2002) 190 ALR 601, 661-662 per Hayne J (Gummow J agreeing at 640 [171], Callinan J to similar effect at 670 [301]), and note the narrow basis on which McHugh J reached a contrary result at 634-635 [137].
From his own presentation, the applicant had some general knowledge of the situation faced by Hindus in Bangladesh. From the discussion between the presiding member and the applicant the applicant should have drawn further knowledge of the view taken by the presiding member. That discussion provided a reasonable opportunity for the applicant to put before the presiding member such views or information as were available to the applicant.
While this is, in my view, a borderline case, I find that the RRT member did sufficient to discharge the obligation arising under the general law to raise with the applicant the issue which was in the presiding member’s mind as likely to be determinative of this aspect of the application before the RRT.
The second issue raised by the applicant concerns the country information relied upon by the presiding member concerning document fraud. That country information is set out on page 395 of the court book. It is commonly referred to by presiding members of the RRT and I do not need to repeat it here. Two documents had been presented by the applicant in support of his claims. The first (court book, page 367) was purportedly from the Bangladesh Hindu Bouddha Christian Oikya Parishad headed, “To Whom it May Concern” and signed by the Secretary, Bangladesh Hindu Bouddha Christian Oikya Parishad Chandpur District Committee Bangladesh. The document states:
This is to certify that [the applicant] of … Bangladesh is personally known to me. [The applicant] is a member of Bangladesh Hindu Bouddha Christian Oikya Parishad since 1986. He was involved in organising parishad's meetings in greater Chandpur district. He was a valued member of our organisation.
Because of his involvement with a progressive platform, local BNP and Jamat-e-Islami leaders targeted him to harass. Currently a fundamentalist party is in power. I strongly believe that this government will persecute [the applicant] if he returns to Bangladesh.
The present government is seriously hostile to our organisation and its members and our members are experiencing a severe communal harassment by the terrorist cells of this government. [The applicant] has experienced some problems while he was in Bangladesh. In this situation, [the applicant] is very frightened for his life. I strongly believe that the Australian government will consider his case and grant him political asylum for the safety of his life.
If you need any further information about [the applicant], please do not hesitate to contact me.

The second document bears the heading, “Bangladesh Jatiya Party” and appears on page 368 of the court book. It is signed by the General Secretary of the Bangladesh Jatiya Party, Chandpur District Committee, Bangladesh. It is headed, “To Whom it May Concern” and states as follows:
This is to certify that [the applicant] … is personally known to me.
[The applicant] formally joined Bangladesh Jatiya Party in May 1988 and actively involved with the party activities in greater Chandpur area. He worked as a member in the Chandpur district committee since his joining. During this period, he had to organise some meetings in greater Chandpur area. He became popular in his community.
I am well aware that the local BNP, Jamat-e-Islami and Awami League leaders targeted [the applicant] for his active involvement with the Jatiya Party. Presently BNP is in power. I strongly believe that this government will target [the applicant] if he returns to Bangladesh at this stage.
Present ruling party is very hostile to Jatiya Party and most of the party member are experiencing political harassment such as accusation of false case etc. [The applicant] has also been experiencing the same problem as the law enforcement authority filed a number of cases against him although he did not take part with these activities. I am sure that he is very frightened and there is not much we can do to alleviate that because we just do not have any control or bargaining power over the present government. In this situation, he is in need of political asylum for the safety of his life.
I wish him all success in life.
The documents were obviously relevant to the applicant's claim insofar as it was based on his asserted political activity. The presiding member dealt with this aspect of the applicant's claim in the following way on pages 396 and 397 of the court book:
The Tribunal accepts the independent evidence, cited above, that there have been attacks on prominent Hindus and that the applicant's activities at the local level might make him a “prominent Hindu” at the local level. The Tribunal, given the independent evidence cited above, which the Tribunal accepts, that document fraud in Bangladesh is widespread and common, has serious reservations about accepting the validity of the letters submitted in support of the applicant from the Hindu Bouddha Christian Oikya Parishad (HBCOP) and the Bangladesh Jatiya Party. The Tribunal notes that it has not been able to find any corroboration of the claim made in the HBCOP letter that “The present government is seriously hostile to our organisation and its members and our members were experiencing a severe communal harassment by, the terrorist cells of this government.
To avoid any such politically motivated attacks in the district where he has lived, the Tribunal finds it would be reasonable, in the circumstances of this case( having particular regard to the fact that the applicant's professional skills as a shipping radio operator), for him to relocate to a large urban centre such as Chittagong (where he previously studied) or Dhaka. Were he to relocate, the Tribunal finds that when he is not employed overseas on ships in his professional field (at which time of course he would be safe from any such attacks), he could continue his political activities in such a large urban setting without, in the foreseeable future, achieving the prominence he may have attained at the local level.
In the circumstances of the applicant's case, the Tribunal is not satisfied by the totality of the evidence before it, that there is a real chance the applicant would be harmed now or in the foreseeable future if he returned to Bangladesh.
It was common ground between the parties that the decision of the Full Federal Court in NARV establishes that it would be a jurisdictional error for the RRT to base its decision upon a rejection of documents presented by an applicant, having regard to country information about document fraud in Bangladesh, without giving the applicant the opportunity to comment upon that information. The question to decide in this case is whether the RRT based its decision in whole or part on a rejection of the applicant's documents based upon the country information concerning document fraud.
The answer to that question depends upon how one reads the presiding member's reasons and how one reads the documents relied upon by the applicant or, more particularly, how the presiding member read them. It is apparent from a reading of the presiding member's reasons that the member accepted that the applicant had been involved at a local level in politics. That finding was made before the presiding member discussed the country information concerning document fraud and the letters submitted by the applicant.
There would have been no reason to comment adversely on the letters by reference to the country information if the letters were not relevant to some issue to be decided by the RRT. The RRT did not expressly reject the letters as valid documents but certainly expressed serious reservations about their validity. The acceptance by the RRT of the applicant's claims to political activity at the local level suggests that the letters were not determinative of the applicant's application to that extent.
Why then were the letters and the country information mentioned at all? In my view, the answer lies in the subsequent discussion by the presiding member about relocation. The reasoning of the presiding member is not as clear as one might like it. It is not clear what the member's purpose was in commenting adversely upon the letters and going on to discuss the possibility of relocation. The presiding member appears to have proceeded on the basis that, although the applicant had been involved in politics at a local level, and in that capacity faced a risk of harm that might be regarded as serious, the applicant could avoid that risk of harm by relocation.
It necessarily follows, in my view, that the presiding member reasoned that the applicant did not face any risk of harm of significance by reason of political activities outside his local area. If the letters were regarded as simply confirming the applicant's involvement in local politics the apparent rejection of them would not have been a factor in the reasoning of the RRT. If, however, the letters were read as indicating a more serious problem extending beyond the applicant's local area then the adverse comment on them followed by the finding on relocation would be a finding that the evidence in the letters indicating a more general problem should be rejected, and that the problem was restricted to the local area and could be avoided by relocation.
On their face, the letters say two things. They say that the applicant has been involved in his local area with the BHCOP and with the Jatiya Party. However, they also say that both parties have significant problems with the government and that the applicant will be at serious risk by reason of his association with those parties should he return to Bangladesh. To my mind that amounts to a statement that the risk confronted by the applicant is not confined to his local area. It is noteworthy that the presiding member made specific reference to the statement in the letter from the HBCOP that:
The present government is seriously hostile to our organisation and its members and our members are experiencing a severe communal harassment by the terrorist cells of this government.
The presiding member then stated immediately after that quote:
To avoid any such politically motivated attacks in the district where he lived, the Tribunal finds it would be reasonable, in the circumstance of his case (having particular regard to the fact that the applicant’s professional skills as a shipping radio operator), for him to relocate
It is arguable in these circumstances that the presiding member was reading letters as simply confirming the risk confronted by the applicant as a party member in his local area. However, that does not sit well with the approach taken by the presiding member to the determination of the claims. Having already accepted that the applicant faced a risk in the local area it does not logically follow that there was a need to refer to letters, the validity of which the RRT was minded to reject for the purposes of confirming that fact. The better view is that the finding that the letters could not reasonably be relied upon related to the finding on relocation.
While the issue is by no means free from doubt, I find that the presiding member rejected the letters as evidence of a risk confronted by the applicant extending beyond his local area. It follows, in my view, that the presiding member relied in part on the country information to reject the evidence presented by the applicant in those letters of a national problem. The rejection of that evidence enabled the presiding member to make a finding against the applicant on relocation.
The country information, therefore, did part of the reasoning process in rejecting the application and it should have been disclosed to the applicant to give him an opportunity to comment upon it. The failure to do so was procedurally unfair under the general law and also involved a breach of section 424A(1) of the Migration Act, noting the reasoning adopted by the majority of the Full Federal Court in NARV on the operation of subsection 424A(3).
I find, therefore, that the decision of the RRT was not a privative clause decision. There was a jurisdictional error committed by the RRT. The remaining issue is what relief should be provided. I have taken the view that this Court has the same jurisdiction as the Federal Court to grant prerogative relief. I am aware, however, that there is an issue currently before the Federal Court as to whether this Court's jurisdiction to grant prerogative relief is narrower than the jurisdiction of the Federal Court or indeed, of the High Court.
With that in mind, I consider it appropriate, for abundance of caution, to grant relief in the form of a declaration under s.16 of the Federal Magistrates Act 1999 (Cth) in addition to granting writs of certiorari and mandamus. I will order that the Court declares that the decision of the RRT made on 27 February 2003 and handed down on 20 March 2003 is invalid and of no effect; a writ of certiorari shall issue quashing the decision of the RRT and a writ of mandamus shall issue requiring the RRT to redetermine the matter according to law. I will order that the hearing fee payable upon the setting down of this matter for hearing be paid within 21 days or a waiver obtained. I will, in addition, order that the respondent pay the applicant's costs of and incidental to the application, which I fix in the sum of $4,500.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 23 December 2003