SZAML v Minister for Immigration

[2004] FMCA 267

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAML v MINISTER FOR IMMIGRATION [2004] FMCA 267

MIGRATION – Application for review of Refugee Review Tribunal decision – whether Tribunal should have invited comment on independent information as to documentary fraud in Bangladesh – whether failure to comply with s.424A of the Migration Act 1958 – whether jurisdictional error.

Migration Act 1958

SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749
Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431
Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142
NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262
NAAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 113
NAOY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 198
VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 186
in VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82
NANM andNANN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 99
Plaintiff S157 of 2002 v The Commonwealth of Australia [2003] HCA 2
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
Re Minister for Immigration & Multicultural Affairs; Ex parte A (2002) 185 ALR 489
Stead v State Government Insurance Commission (1986) 161 CLR 141
Muin v Refugee Review Tribunal (2002) 76 ALJR 966

NAQZ of 2002 v Minister for Immigration & Multicultural Affairs [2003] FCA 898

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
Paranananthan v Minister for Immigration [1994] FCA 28
Applicant NABX of 2002 v Minister for Immigration [2002] FCAFC 249

Minister for Immigration & Multicultural Affairs v Applicant S [2002] FCAFC 244

Dranichnikov v Minister for Immigration [2003] HCA 26

Applicant: SZAML

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ716 of 2003

Delivered on: 14 May 2004

Delivered at: Sydney

Hearing date: 5 April 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr A. McInerney

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Court declares that the decision of the Refugee Review Tribunal made on 11 March 2003 and handed down on 1 April 2003 is invalid and of no effect.

2. That a writ of certiorari issue quashing the decision of the Refugee Review Tribunal.

3. That a writ of mandamus issue requiring the Refugee Review Tribunal to redetermine the matter according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ716 of 2003

SZAML

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 10 December 2002 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa. 

2. The applicant is a citizen of Bangladesh who arrived in Australia on 4 June 2000.  On 12 July 2000 he lodged an application for a protection visa.  On 30 August 2000 a delegate of the respondent refused to grant a protection visa and on 5 September 2000 the applicant sought review by the Tribunal of that decision. 

3. The applicant claimed to fear persecution by reason of his involvement in political activities for the student wing of the Jamat-e-Islam: (the Chatra Shibir or CS).  The applicant claimed that he joined the CS while at secondary school in 1995 and was actively involved while at college from 1996 to 1999.  He claimed that after a fracas at college in 1999 a case was lodged with the local police station by leaders of the student wings of the Bangladeshi Nationalist Party (BNP) and the Awami League accusing the CS and their supporters of being responsible for a shooting incident, that a warrant was issued and that he was arrested and detained by the police but released after three days when his parents paid a bribe to the officer in charge of the local police station.  He claimed that he then organised protests against the BNP and the Awami League, that he became a target of local political leaders for his work and that the BNP and AL revived the College incident and laid a case against him falsely accusing him of possessing illegal arms and of anti-State activities.  In a statutory declaration accompanying his protection visa application the applicant stated that his opponents had bribed the local police and that after he had finished his higher school certificate examination the police issued an arrest order for himself and three others.  He claimed that he left his home area for Dhaka, obtained a passport in a false name and a visa to Australia through a broker and came to Australia in June 2000.  He claimed to be afraid that if he returned to Bangladesh he would be arrested and put in gaol under false charges and that he could be detained without trial.  He feared for his life in gaol.  Through his adviser he claimed to fear that he would be imprisoned, tortured and/or killed on return to Bangladesh because of his political activities there, that he would not be protected by the authorities in Bangladesh and that the prevailing situation in Bangladesh was one of continued political instability.  He also claimed that internal relocation was not an option. 

4. On 11 October 2002 the applicant’s adviser submitted to the Tribunal country information and a number of court documents and affidavits including a first information report with an attached warrant of arrest dated 26 July 1999, and a charge sheet dated 14 August 2000 which stated that as a result of an incident on 19 July 1999 a case was lodged against the applicant, that he was arrested on 20 July 1999 and detained for three days, that certain admissions were made by the accused persons, that a prima facie case had been established and that the charge sheet was prepared and submitted before the Court for trial.  The Tribunal was invited to verify the documents to confirm their authenticity.

5. The Tribunal held a hearing at which the applicant submitted a new passport issued in his correct name and repeated his claims in relation to the incidents of mid-1999.  He claimed to fear persecution from the police and also from the BNP and the Awami League and because his own party would not help him in relation to the outstanding cases he also feared them.  His adviser claimed that the applicant’s political opponents would pursue him despite the fact that he was not a great leader because he had fled overseas and would be perceived to now have money. It was also claimed that the applicant was now a different person because of his experiences overseas.  He no longer had sympathies with fundamentalist beliefs.  He had a Christian Australian girlfriend and was no longer a practising Muslim.  This would be a problem to his former Chatra Shibir associates. 

6. The Tribunal described the applicant’s claims to fear arrest by the authorities because of the outstanding warrant for his arrest, harm from his former Awami League and BNP political opponents as well as from members of his own party because he had deserted it and his claim that he may be targeted in Bangladesh because he would be a person who having recently returned from overseas would be considered to be wealthy.  It also outlined his claim that he would be at risk from his former associates because he had turned away from his fundamentalist Islamic beliefs. 

7. The Tribunal reasons for decision cite independent information in relation to the situation in Bangladesh, 1988 and 1995 information from the Department of Foreign Affairs as to the high level of document fraud in Bangladesh and as to the prevalence of Bangladeshi asylum seekers providing fraudulent documents, and 1998 information from the US Bureau of Democracy, Human Rights and Labour suggesting that arrest warrants were not generally available to the public and that many ‘documented’ claims by Bangladeshi asylum seekers of outstanding arrest warrants had proved to be fraudulent.

8. The Tribunal accepted that the applicant was a Chatra Shibir supporter at a local level and that he had been detained in the fracas at his college as claimed.  However it found that the applicant had made conflicting claims with regard to when a warrant for his arrest was allegedly issued.  The Tribunal considered that in his original written claims the applicant had stated that a warrant was issued after he had finished his higher school certificate examination (which was in December 1999) but the warrant of arrest produced to the Tribunal was dated July 1999.  Further, the applicant’s oral evidence was that he was still studying five months after the warrant was issued but was not detained during this time.  The Tribunal continued:

   In the light of the evidence before it, the Tribunal is not satisfied that there were ever charges laid against him.  The Tribunal finds that, had such a warrant been issued, he could have easily been found at the college by the authorities were they seeking him given that he had continued to study at the college for five months after the warrant was issued.  Moreover, the Tribunal is not prepared to accept the validity of the Court and police documents produced to support this claim in the light of the independent evidence, cited above, as to the prevalence of fraudulent documentation available in Bangladesh.  The Tribunal is supported in this by the fact that, as also cited above, that “arrest warrants are not generally available to the public”. 

9. The Tribunal found that the applicant had used a false passport because as a single unemployed male Bangladesh citizen he would have difficulty gaining a visa to Australia in his own name and noted that he produced a passport in his own name issued while his political opponents were in government.  This was said to be further support for the finding that he was not being sought by the Bangladesh authorities.

10. The Tribunal acknowledged that political violence continued in Bangladesh but, as the applicant had been absent for over two years and his own party was now part of the coalition government, was not satisfied that he would still be of interest to his former political opponents.  The Tribunal went on to say that even if the applicant were of interest to his former political opponents, given that he was only ever a low-level supporter at the local level it would be reasonable in his particular circumstances to relocate to Dhaka to avoid their attention.  The Tribunal took into consideration the applicant’s recent experience of living abroad, his evidence that he had distanced himself from his former conservative village beliefs and the fact that relocation would remove him from any adverse attention he claimed he might have to face from former colleagues offended by his changed religious outlook.

11. The Tribunal found the claim that the applicant’s own party would turn on him for having left the country to be unconvincing and in the light of the absence of any independent evidence indicating that this was occurring did not accept this to be the case.  The Tribunal had regard to material submitted by the applicant’s adviser in this respect but found no material that led it to be satisfied that any fears the applicant might have of being detained or harmed were well-founded.  The Tribunal further found that any harm the applicant might experience through a presumption of wealth, given that he had lived abroad, would not be for a Convention reason as his presumed wealth, rather than his religious and political beliefs, would be the essential and significant reason for such harm.  The Tribunal was not satisfied by the totality of the evidence before it that there was a real chance that the applicant would be harmed now or in the foreseeable future if he returned to Bangladesh. 

12. In the application for review filed on 1 May 2003 the applicant claimed that the Tribunal erred in failing to consider whether or not the group of persons being Bangladeshis who live abroad (and who as a consequence are presumed to be wealthy) constitute a particular social group and that if the Tribunal did consider such an issue it erred in law by finding that such persons are not a particular social group.  However the written submissions filed by the applicant on 29 March 2004 do not address this issue.  Rather they raise a number of other claims, some specific and some expressed in general and unparticularised form.

13. The Tribunal did not ignore the applicant’s claims in relation to his membership of and participation in activities on the part of the Chatra Shibir as submitted.  It properly considered such claims and indeed accepted that he was a Chatra Shibir supporter at a local level.  Insofar as the applicant seeks merits review such merits review is not available in this Court.  The applicant complained generally that the Tribunal acted in bad faith.  The principles applicable to a determination of whether a decision constitutes a bona fide attempt to exercise the statutory power of review are as set out by the Full Court of the Federal Court in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 (also see MIMIA v SBAN [2002] FCAFC 431 at [43]-[48] and MIMIA v NAOS of 2002 [2003] FCAFC 142 at [21] in which it was suggested that ‘..want of bona fides will only be made out in such circumstances where whim or fancy has consciously been preferred to considered judgment’). The applicant complains specifically that the Tribunal’s bad faith was demonstrated by the manner in which it considered the evidence in relation to his coming to Australia on a forged passport and also in the way it failed to assess documents submitted by him. As to the former point the Tribunal findings in relation to the applicant’s use of a false passport and subsequent production of a passport in his own name were open to it on the material before it and do not demonstrate bad faith or any other error.

14. The applicant also suggested that the Tribunal should have investigated the documents he submitted if it had any concerns in that regard before rejecting them and that in failing to do so it failed to be fair and just on his claims and evidence and acted in bad faith. However, there is nothing in the material before me to suggest that the Tribunal undertook to make any further inquiries, despite the invitation from the applicant’s adviser to verify the documents submitted. There is nothing on the material before me (which consists of the Tribunal reasons for decision and the supporting documentation) to indicate that the Tribunal acted in bad faith, that it prejudged its decision or that there was any actual or apparent bias. I have considered whether there is any jurisdictional error by the Tribunal in the manner in which it dealt with the documents submitted by the applicant. In the course of the hearing I raised with counsel for the respondent the extent to which the applicant’s submission raised the question of whether there was a failure to comply with s424A of the Migration Act 1958 in light of the view of the majority of the Full Court of the Federal Court in NARV v MIMIA [2003] FCAFC 262 in relation to s424A(3).

15. Section 424A of the Migration Act 1958 provides:

    (1) Subject to subsection (3), the Tribunal must:

    (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

    (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

    (c)invite the applicant to comment on it.

    (2) The information and invitation must be given to the applicant:

    (a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

    (b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

    (3) 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; or

    (b)   that the applicant gave for the purpose of the application; or

    that is non-disclosable information.

16. The Tribunal found that it was not prepared to accept the validity of the court and police documents produced to support the claim that a warrant had been issued in the light of independent evidence as to the prevalence of fraudulent documentation available in Bangladesh and as to the fact that arrest warrants are not generally available to the public.  There is nothing in the material before me to suggest that such evidence in relation to documentary fraud was put to the applicant or that the Tribunal concerns in relation to the validity of the documents were put to him or to his adviser for comment (see NAOY v MIMIA [2004] FMCA 198 at [17] – [18] distinguishing NAQZ of 2002 v MIMA [2003] FCA 898 which considers the obligations of an applicant alleging a lack of procedural fairness). The applicant complained that the Tribunal failed to assess the documents. The Tribunal reasons do not record that any concern about documentary fraud was put to the applicant in the hearing or otherwise, although it did raise with the applicant its concerns about his ability to obtain a passport and the fact that he had not been found by the authorities in the five months after the July 1999 warrant issued.

17. No s.424A notification is contained or referred to in the material before the Court. There is no suggestion that the Tribunal notified the applicant of the information by way of a letter or other notification in accordance with s.424A(2) (see s.441A) or invited him to comment in accordance with s.424B or that it notified the applicant in some other way in compliance with s.424A(1) of the information in relation to documentary fraud .

18. Section 424A would require the Tribunal to give the applicant particulars of independent information as to claims based on fraudulent documents from Bangladesh if such information formed part of the reason for the Tribunal’s decision, unless it was information to which subsection 424A(3) referred (see NARV and also NAAK of 2002 v MIMIA [2004] FCA 113 at 29).

19. Counsel for the respondent submitted that the Tribunal’s rejection of the claim that charges were laid against the applicant was justified on independent grounds including the Tribunal’s reference to conflicting claims in relation to when a warrant was issued, the fact that had a warrant been issued the applicant could have been found at the college as he continued to study for five months thereafter and its findings in relation to his use of a false passport and the subsequent issue of a passport in the applicant’s own name.

20. It is necessary to determine whether the country information in question was “significant to the decision, whether it formed part of the Tribunal’s reason for disbelieving the [applicant] and rejecting his claim of persecution” (NAAK at [45]]). It is apparent from a fair reading of the Tribunal reasons as a whole that part of the reason for the Tribunal’s rejection of the applicant’s claims was its finding that it was not prepared to accept the validity of the court and police documents produced. While there were other bases for this conclusion it cannot be said that the independent evidence about the claims based on fraudulent documents did not form part of the reason for the Tribunal’s decision. Hence the Tribunal was required to give the applicant particulars of the information for comment unless the s.424A(3)(a) exception applied.

1. As in NARV (and also see NAAK and NAOY) the material in issue in this case is independent information in relation to the prevalence of documentary fraud in Bangladesh.  In NARV Ryan and Finklestein JJ held at [32] that such information was not “just about” Bangladeshi asylum seekers in the sense of merely or only being about that class of persons (see VHAJ v MIMIA [2003] FCAFC 186). Their Honours held that information about the high level of document fraud in Bangladesh was clearly not specifically about the appellant nor just about a class of persons and did not fall within the exception contained in s.424A(3)(a) and that the particulars about it should have been provided to the appellant (at [32]). This approach was followed by Bennett J, sitting as the Full Court of the Federal Court, in NAAK of 2002 v MIMIA [2004] FCA 113 at [28]-[43] despite her suggestion that in some respect the decision of Ryan and Finklestein JJ was difficult to reconcile with the reasoning of the majority in VHAJ.  NARV was binding on her and similarly it is binding on me.  This is so despite the subsequent decision of a differently constituted Full Court in VHAP of 2002 v MIMIA [2004] FCAFC 82 at [14] in which Gyles and Conti JJ express doubt about whether the reasoning of the majority in NARV (at [30]-[31]) in relation to s.424A(3)(a) was consistent with the decisions in NANM andNANN of 2002 v MIMIA [2003] FCAFC 99 at [19] and VHAJ at [50] and [71] in relation to the construction of s.424A(3)(a). (Also see Allsop J at [21]). In VHAP at [14] NARV was distinguished as not affecting the conclusion of the primary judge in that case that information about the situation in China and the behaviour of Chinese authorities in relation to certain movements was outside s.424A because of the operation of s.424A(3), but NARV is directly in point in this instance and remains binding on me.

2. Accordingly, on the authority of NARV (and NAAK), s.424A(3) does not apply to information about the high level of documentary fraud in Bangladesh and the Tribunal was under an obligation to bring this information to the attention of the applicant in accordance with s.424A.

3. The country information in relation to document fraud was significant to the Tribunal decision, it formed part of the Tribunal’s reason for disbelieving the applicant and rejecting his claim of persecution and the failure to give particulars of the information and bring it to the attention of the applicant constitutes a failure to comply with s.424A. In the absence of evidence that the information was brought to the applicant’s attention in some way the breach cannot be seen as merely procedural (see NAAK at [48] and NAHV at [33] and cf NAAV). Such a breach of s424A(1) constitutes a jurisdictional error not protected by s.474 of the Act (Plaintiff S157 of 2002 v The Commonwealth of Australia [2003] HCA 2). In the case of a failure to comply with s.424A, it is not incumbent on the applicant to lead evidence to explain in what way he has been affected by the absence of the evidence or what evidence or material he would have placed before the Tribunal if the information had been available (see, in any event, NARV at [17]). It may be otherwise in relation to a claim based on natural justice but it is not necessary to determine this issue (see SBBS v MIMIA [2002] FCAFC 361 at [32]-[38], Re Minister for Immigration & Multicultural Affairs; Ex parte A (2002) 185 ALR 489 at [51]-[54] per Kirby J and VHAP at [15]-[17] and [27]-[30] in which the principle in Stead v State Government Insurance Commission (1986) 161 CLR 141 was applied in relation to a claimed denial of natural justice). As in NARV this is not a case where the breach of s.424A could not have affected the outcome or where the Court can infer that there was nothing that the applicant could have put, had he known that the Tribunal was minded to rely on country information about the prevalence of documentary fraud and the fact that arrest warrants are not generally available to the public in Bangladesh (see NARV at [17]-[19]).

4. The applicant also submitted that the decision in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 was applicable. However there is nothing in the material before the Court to suggest that the Muin decision is of any relevance.

5. The applicant did not include in his written submissions any contentions about the ground in his application relating to particular social group.  It was addressed very briefly in the oral submissions of counsel for the respondent who submitted that no jurisdictional error was established.

6. The applicant did not frame his claim to fear persecution in terms of a particular social group.  It is, however, well established that the Tribunal is not limited to determination of the case articulated by an applicant “if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant” (Merkel J in Paranananthan v Minister for Immigration [1994] FCA 28 at [63] and see Applicant NABX of 2002 v Minister for Immigration [2002] FCAFC 249 at [31] and MIMA v Applicant S [2002] FCAFC 244 at [73]). Where such a case is raised, as the High Court indicated in Dranichnikov v Minister for Immigration [2003] HCA 26 at [26] per Gleeson CJ, the Tribunal first needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention, then whether the applicant is a member of that class and then whether the applicant has a well-founded fear for a Convention reason.

7. In this instance, where no claim based on membership of a particular social class was articulated by the applicant, it is necessary to consider the evidence and material before the Tribunal.  The applicant claimed to fear that he may be targeted because he would be a person who recently returned from overseas and would be considered a wealthy person.  The Tribunal considered this claim and found any harm the applicant might experience through a presumption of wealth given that he had lived abroad to be not for a Convention reason since his presumed wealth rather than his religious and political beliefs would be the essential and significant reason for such harm.  It is not claimed that there was any evidence before the Tribunal, other than the applicant’s assertion that he may be targeted as a recently returned wealthy person, to suggest that there was a relevant identifiable social unit with unity of characteristics, attributes, activities, beliefs, interests or goals which set the group apart from society at large (Applicant A v MIEA (1997) 190 CLR 225 at [264] per McHugh J and at [241] per Dawson J). The applicant has not suggested, nor is it apparent, that there was any evidence before the Tribunal that would have justified the recognition by the Tribunal of a possible public perception that there was such a recognisable group to which the applicant belonged (see Gummow J in Applicant A).  In these circumstances I am not satisfied that the Tribunal erred in failing to consider whether, or to find that, Bangladeshis who live abroad (and are presumed to be wealthy) constitute a particular social group.

8. However, the failure to comply with s.424A constitutes a jurisdictional error. Hence it is not necessary to determine whether any failure to seek the comment of the applicant on the information in relation to documentary fraud would also constitute a denial of natural justice (see NARV at [23]).

9. The decision of the Tribunal should be set aside and the matter remitted for reconsideration according to law. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  14 May 2004