SZBCQ v Minister for Immigration
[2005] FMCA 1175
•23 August 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBCQ v MINISTER FOR IMMIGRATION | [2005] FMCA 1175 |
| MIGRATION – Review of decision of RRT – whether the Tribunal put independent country information concerning document fraud to the applicant – where the information formed part of the Tribunal’s reasons – whether the information falls within the exceptions provided by s.424A of the Migration Act – whether s.422B of the Migration Act applies– whether failure to provide affidavit evidence concerning what the applicant would have done if the information had been put to him is fatal to the applicant’s claim – whether the question of relocation was raised with the applicant – whether the Tribunal attempted to test the reasonableness of such relocation. |
| Migration Act 1958, ss.424A(1), 424A(3), 422B Federal Magistrates Court Rules 2001, Part 21 Rule 21.02(2)(a) |
| VAF v Minister for Immigration [2004] FCAFC 123 WACO v Minister for Immigration [2003] FCAFC 171 NARV v Minister for Immigration [2003] 203 ALR 494 NAMW v Minister for Immigration [2004] FCAFC 264 SAAP v Minister for Immigration [2005] HCA 24 SZDQL v Minister for Immigration [2005] FCA 769 Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Muin v Refugee Review Tribunal (2002) 190 ALR 601 Dagli v Minister for Immigration (2003) 133 FCR 541 Tuncok v Minister for Immigration [2003] FCA 1069 Minister for Immigration v Eshetu (1999) 197 CLR 611 Minister for Immigration v Yusuf (2001) 180 ALR 1 Plaintiff 157/2002 v Minister for Immigration [2003] HCA 2 |
| Applicant: | SZBCQ |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1526 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 15 August 2005 |
| Date of Last Submission: | 15 August 2005 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Gasic |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the Respondent: | Mr D McInerney |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
THE COURT DECLARES THAT:
The decision of the Refugee Review Tribunal Reference NO2/42362 dated 20 June 2003 is invalid and of no effect.
THE COURT ORDERS THAT:
The application for review be referred back to the Tribunal differently constituted to be heard and determined according to law.
The respondent pay the applicant’s costs assessed in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1526 of 2003
| SZBCQ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh. He arrived in Australia on 16 December 2001. On 22 January 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 11 April 2002 a delegate of the Minister refused to grant a protection visa and on 20 April 2002 the applicant applied for review of that decision. The applicant was offered and accepted an opportunity to attend a hearing before the Tribunal which determined to affirm the decision of the delegate not to grant a protection visa on 20 June 2003. It handed down that decision on 16 July 2003.
The applicant claims to have a well founded fear of persecution for the convention reason of political opinion. He claimed that he had joined the student wing of the Awami League (Chattra League) in 1994. He was actively involved in the Chattra League and then in 1997 in the youth wing of the Awami League (Jubo League) in his local area of Sutrapur. He claimed to have become the organising secretary for the Bangladesh Chattra League in the Kobi Nazrel branch in 1995. He continued to work within the Awami League organisations in opposition to the BNP. He claimed that the BNP workers had tried to kill him a number of times. He claimed that between 1996 and 2001 BNP workers from his college campus were attacked and badly injured. The Chattra League members were blamed for these attacks. This redounded upon him to the extent that his home was attacked and he, his father and brother were threatened.
The applicant claimed that during the 2001 election campaign the local BNP candidate ordered his killing. After October 2001 he had to hide to avoid police harassment and BNP attacks. Since the BNP has won power the applicant has become very concerned for his safety. He has no faith in the Bangladeshi Police and does not believe he can return in safety to Bangladesh. After October 2001 he had to hide in various places to avoid harassment. False charges have been brought against him. He claimed that he had been kidnapped and taken to an unknown place and beaten. Details of these false charges and copies of various documents were provided to the Tribunal. The “originals” of the documents were in English. They had been translated into Bengali. The Tribunal considered the evidence provided by the applicant and discussed with him certain independent country information including information concerning document fraud in Bangladesh and the independence of the judiciary in that country. I was provided with a transcript of the hearing before the Tribunal annexed to an affidavit of Joanne Jennifer Kinslor. There are two elements of that transcript that have importance for this decision. The first is found at P16 where the following discussion takes place:
“T:If you have problems with the BNP in your local area, why don’t you move to another part of Bangladesh?
A:As I told you before that I tried to leave my place. I have problem with and I live another place. That’s why I was trying to live in my uncle’s house where the countryside, the countryside area.
T: Is this where your grandmother lives as well?
A:Yes. That place also I’m – I have two houses so – both are in countryside. One is in Mymensingh, another is in Munshiganj. My grandma, grandmother she still lives some days there, some days here, both places. They are also died, that countryside in Mymensingh.
A: It’s my uncle place.
T: So your uncle is in?
A: Mymensingh.
T: And that’s your uncle’s house?
A:It is actually the name of the district is ….. Mymensingh. The last three line is telling that district name and his house.”
The Tribunal discusses with the applicant where his uncle lives, the applicant states that his grandmother and his uncle both died, the applicant refers to visiting another grandmother in Koomila and then the Tribunal asks:
“T:Is there anything else you want to tell me about what happened before you left?
A:The one thing I have to tell that I was not getting any safety of my life anywhere in Bangladesh. I tried various places but every time I was … by my opponent, that’s why I couldn’t find any safe place for me …. And I remember.”
The second extract is found at P22:
“T:Now, I received copies of some documents yesterday and I haven’t read through them yet so I’ll have to do that before I make a decision so I will read through those and consider them. The second thing is that I should tell you is that there is quite a lot of country information about documentation from Bangladesh. Now, that information indicates that a lot of documents that [are put] forward in support of claims are false, that it is easy to get false documents from Bangladesh.
Now that does not mean that I think that these documents are false but it’s something that I must take into account and everything else in coming to my decision. All right? But I haven’t ready them yet and when I read them I will consider them very carefully. Please consider. I’ll look at everything that you put in your case and consider everything there.
The gravamen of the Tribunal’s reasons for deciding that the applicant did not have a well founded fear of persecution for the convention reason of political opinion is found at [CB 172] where the Tribunal says:
“The Tribunal is not satisfied that the applicant was an office bearer of the Chattra League or the Jubo League. The applicant told the Tribunal he had joined the Chattra League in 1994 and had opposed the illegal activities of the BNP on the college campus. He said he joined the Jubo League in 1997. He then went on to discuss the 2001 election campaign and the resulting violence. The applicant was not able to discuss any of his activities in the intervening years. When asked to give an account of his political activities he told the Tribunal he worked full time in the family business before October 2001. He was not able to give a full and detailed account of the organisation of the Awami League and knew little about party policy. The applicant did not demonstrate the level of knowledge of the organisation and policies of the Awami League, Chattra League or Jubo League the Tribunal would have expected from a long term office bearer. Further the applicant was not able to indicate in detail the nature of his political activities between 1994 and 2001.
The Tribunal does not accept that the applicant was kidnapped and beaten by BNP supporters on 2 October 2001. It does not accept that the applicant woke up in a clinic and was unaware of where he had been held and who held him. The Tribunal considers that his account of events, which was generalised and vague, is implausible. He gave no account of the surrounding circumstances of the kidnapping, his interactions with other persons or relevant details of conversations.
He also claims that he went into hiding after this incident until he left for India on 2 December 2001. The evidence he gave to the Tribunal relating to this attempt to hide between 2 October and 2 December 2001 is unsatisfactory and the Tribunal does not accept that he went into hiding between October and December 2001. He claims he went to his uncle’s house in the country where he was found by the BNP but he managed to escape their attack. He couldn’t explain how the BNP members would know that he went to his uncle’s home and how to locate him there. When the Tribunal put to him that he had stated in writing that he had been attacked when he was staying at his grandmother’s home he claimed his grandmother lived at his uncle’s house sometimes and her house in Mymensingh at other times. He says he went to stay with his grandmother after he left his uncle’s home. When the Tribunal pointed out that he claimed in writing that the attack took place at his grandmother’s home at Comilla he said that was his other grandmother and he visited but did not stay with her. His evidence is inconsistent and implausible.”
But the Tribunal also comes to certain findings regarding the alleged false charges which is set out at [CB 173]:
“The applicant claims that he has false charges against him in Bangladesh and he faces arrest if he returns. The Tribunal does not accept the applicant’s evidence in this regard. The applicant was not detailed when he crossed the border into India. The applicant has submitted a large number of copies of court documents to support his claim that cases have been lodged against him. The Tribunal does not accept that the documents are authentic. Firstly the country information indicates that fraudulent and bogus documents are commonly and easily obtainable in Bangladesh. Secondly the documents submitted contain 2 arrest warrants. According to the country information the standard procedure for arrests is for police to seek the issue of a warrant from the courts. The police then attempt to effect the arrest with the warrant. The police do not leave warrants anywhere because without them they cannot legally effects arrests. Arrest warrants are not generally available to the public and are kept by police. Thirdly the submitted documents purport to be certified copies of the original documents. The language of the documents is English. The country information suggests that court documents are generally produced in Bengali with the possible exception being where the accused insists on English. Finally some of the court documents relate to an offence allegedly committed by the applicant on 3 January 2002. The applicant had left Bangladesh on 2 December 2001 and clearly could not be implicated in the offences set out in those documents. The applicant was not able to explain how these documents came into existence.
Taking all of the above into account the Tribunal does not accept that the documents are genuine and considers that they have been fabricated to support the applicant’s claims. As the Tribunal considers these documents to be fabricated it also considers that the letters form an official of the Awami League and the advocate from Dhaka are also fabricated to support the applicant’s claims. As the Tribunal rejects the authenticity of the documents it does not accept that the applicant has false cases lodged against him and does not accept that he is at risk of being arrested on those charges if he returns to Bangladesh.
The applicant has filed with this court a Further Amended Application in which he puts forward four matters. I will deal with each in turn.
Ground 1
“The Tribunal erred in law by failing to comply with s.424A(1) of the Migration Act 1958 (“the Act”) in relation to the provision of information made pursuant to the Act.
Particulars
The Tribunal relied upon information concerning country information indicating that fraudulent and bogus documents are commonly and easily obtainable in Bangladesh. It was incumbent on the Tribunal to invite the applicant to comment or respond to the information.
The authorities are clear that information that was a reason for the rejection by the Tribunal of an appellant’s credibility may be information the particulars of which is required to be given pursuant to s.424A(1); VAF v Minister for Immigration [2004] FCAFC 123. One of the common examples of this type of information are those cases involving document fraud where the Federal Court appeared to have accepted that this information must be put to an applicant if it is intended to find that he or she was utilising forged documents; WACO v Minister for Immigration [2003] FCAFC 171. See also NARV v Minister for Immigration [2003] 203 ALR 494 at [30-32]. Unfortunately that case was reconsidered by the Full Bench of the Federal Court comprising Beaumont, Merkel and Hely JJ in NAMW v Minister for Immigration [2004] FCAFC 264. All three Judges took the view that NARV had not been correctly decided and this type of information did fall within the exemption provided by s.424A(3).
But this is not the end of the matter because this decision is not one to which s.422B of the Act applies. There is, therefore, an obligation to provide the applicant with some procedural fairness in relation to these matters. Procedural fairness requires the disclosure of this type of information which goes directly to the credibility of the applicant NAMW supra at [145]. Thus, whilst the decision in SAAP v Minister for Immigration [2005] HCA 24 will not be of assistance to the applicant he may obtain some comfort from the general law. The relevant question is whether the extract from the transcript found at [3] of these reasons constitutes a sufficient raising of the matter with the applicant to provide him with an opportunity of answering the Tribunal’s view that the documents were not authentic. To my mind it does not. There is no real discussion of the matter between the applicant and the Tribunal. The words used would tend to indicate that the Tribunal would raise this matter with the applicant later after it has read the documents. The applicant could have had no idea from the statement made why these particular documents may have been considered suspect. They were simply not discussed at all because the Tribunal had not read them. In its findings and reasons the Tribunal points to the issues which it had with those documents. [CB 173]. The issues go far beyond the ease with which bogus documents are obtainable in Bangladesh and include matters which were in no way hinted at by the Tribunal member in her conversation with the applicant per the transcript.
I am satisfied that this failure of the Tribunal to raise the matters with the applicant either by way of a further hearing or a letter in which his comments were requested upon the additional information utilised by the Tribunal, particularly that relating to arrest warrants [CB 173.6] constitutes a failure to provide him with procedural fairness. The findings of the Tribunal in relation to the documents carried over to letters provided by the applicant from an official of the Awami League and an advocate from Dhaka. I would be comfortable that these findings constituted the reason or part of the reason for the Tribunal’s decision because it goes directly to the applicant’s credibility and his credibility (or rather lack of it) is the ground for declining to accept his claims. This would lead me to the grant of prerogative writs unless it could be shown that the Tribunal had excluded the necessity for consideration of this matter. In VAF v Minister for Immigration (2004) 206 ALR 471 Finn and Stone JJ said at [30]:
“The information concerning the appellant’s behaviour clearly was not “the reason” for the tribunal’s decision. But was it “a part of the reason”? As we have indicated, the tribunal considered it to have some relevance to the determination to be made. And the tribunal’s treatment of that information (ie the “significance” attributed to it) equally had a place in its reasoning process. However, it is not necessarily the case that for either or both of these reasons, the circumstances attract the obligation of s 424A(1)(a). The subsection itself requires identification of the reason for affirming the decision under review.”
This approach was applied and followed by Sackville J in SZDQL v Minister for Immigration [2005] FCA 769 [54-55]. Here the Tribunal states at [CB 174]:
“Even if the Tribunal were to find that the documents were genuine and there were cases lodged against the applicant the Tribunal is satisfied that the applicant could resist the charges in the Bangladeshi court system. The country information suggests that there is a right of appeal, the upper levels of the judiciary are independent and the applicant will be able to prove that he was not present at the incident occurring on the 1 November 2001 through witnesses and could clearly prove he was in Australia at the time of the offences said to be committed on 3 January 2002.”
It seems to me that by this paragraph the Tribunal has attempted to avoid the affect of its failure to provide the applicant with procedural fairness. The information utilised is clearly information which falls within the exception set out in s.424A(3)(b) and thus is not a matter in respect of which s.424A(1) applies. But because this is information that is clearly germane to the Tribunal’s decision procedural fairness would require that it at least be put to the applicant at the hearing unless the provisions of s.422B had applied. I have searched the transcript and I am unable to see any reference to this particular piece of country information and it would seem to me therefore that the finding suffers from the same problems as the principal finding concerning the documents provided by the applicant.
The respondent submits that the applicant’s claim must fail because he has not provided any evidence either that he was misled by the discussions between himself and the Tribunal concerning the documents or what he would have done had he had put to him the matters which were found by the Tribunal to have affected the documents gleaned from the independent country information. It is well established that in cases where an applicant has been misled by the Tribunal that affidavit evidence would be required of what had occurred to mislead the applicant in addition to what the applicant would have said in different circumstances: Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Muin v Refugee Review Tribunal (2002) 190 ALR 601. However this case contains no allegation that the applicant was misled. Rather, it identifies the failure of the Tribunal to provide the applicant with information that was adverse to the applicants claim. In Dagli v Minister for Immigration (2003) 133 FCR 541 the Full Court stressed that it was not the law that an applicant, whose case had been considered by a Tribunal that has before it material of an adverse kind, without informing the applicant of the fact, is not entitled to relief unless he can show that there was something useful that he could have said to rebut that material. This decision confirmed that approach taken by Hely J in Tuncok v Minister for Immigration [2003] FCA 1069 at [34]:
“..I reject the submission put by the solicitor for the Minister that this application must fail because of the failure on the part of the applicant to demonstrate by evidence that some practical unfairness accrued to him as a result of the procedures which were adopted. If the applicant was not informed of the case which he had to meet, that is sufficient to establish `practical injustice' without the applicant having to prove what he would have done had he been informed of that case. Re Minister for Immigration & Multicultural Affairs, Ex parte Lam (2003) 195 ALR 502 does not decide otherwise: NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52, at [31]; VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 at [25]: Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 497 at [61].”
I have dealt above with the second ground of the application which was:
“Further or in the alternative, the Tribunal erred in law by failing to comply with s.424A(1) of the Act in relation to the provision of information made pursuant to the Act.
Particulars
The Tribunal relied upon information suggesting that as there is a right of appeal in the Bangladesh Court system, the applicant could successfully resist charges the appellant maintains were falsely laid. It was incumbent on the Tribunal to invite the applicant to comment or respond to the information.”
The third ground of application is in the following form:
“Further or in the alternative, the Tribunal erred in law in making a finding of fact in the absence of any evidence that could reasonably support such a finding.
Particulars
At RD 175, the Tribunal found, as a matter of fact, that the applicant could relocate to another part of Bangladesh where he would not be well known and that in all the circumstances such relocation would be reasonable. There was no evidence put to the applicant, nor was any evidence tendered on behalf of the respondent, suggesting a specific, suitable and reasonably available place of relocation to the applicant’s country.”
I have extracted from the transcript the discussion between the Tribunal and the applicant concerning relocation. The Tribunal’s findings and reasons at [CB 175] deal with the matter in the following way:
“However, if the applicant does not wish to return to the place of his former resident the Tribunal is satisfied that he could relocate to another part of Bangladesh where he would not be well known and that in all the circumstances such a relocation would be reasonable. It is well established in law that an option of relocating to another part of the asylum seeker’s country [of] nationality must be one that is reasonably available in the individual case (Randhawa v MILGEA (1994) 52 FCR 437).
In this case the Tribunal is satisfied that the applicant has demonstrated resilience and flexibility in living and supporting himself in Australia with limited English skills and no family support. The Tribunal is satisfied that the applicant does not have a profile which would put him at risk if he moved to another area of Bangladesh.”
I am satisfied that the question of relocation was raised with the applicant and the Tribunal attempted to test the reasonableness of such relocation for him. It was open for the Tribunal to have come to the view that there were no compelling reasons why the applicant could not relocate such as to indicate that relocation was unreasonable. But the Tribunal’s view about this ability to relocate was based upon its finding that he was not an important Awami League activist and these findings, which have been set out earlier, were based upon his credibility. I think it would be unsafe, in the circumstances, to hold that the relocation finding should remain untouched. So whilst I would not accept that the finding was made in the absence of evidence, I would hold that the evidence upon which it was based carries the germ of jurisdictional error. I would not be satisfied that the findings in relation to relocation can save the decision from effective challenge.
The fourth ground is in the following terms.
“Further or in the alternative, the Tribunal erred in law and thereby acted without jurisdiction in failing to consider or determine relevant matters or substantive issues arising on the evidence and material before the Tribunal.
Particulars
The Tribunal failed to take account of or to determine the applicant’s evidence regarding the unavailability of a suitable place of relocation.”
This ground cannot be sustained. The applicant undoubtedly told the Tribunal that he had tried to relocate with his relatives (see P16.10). The Tribunal is the appropriate place to assess the weight to be given to such evidence.
I have come to the conclusion that this Tribunal has fallen into jurisdictional error in the manner in which it came to its findings upon the applicant’s credibility. Consistent with the authorities [Minister for Immigration v Eshetu (1999) 197 CLR 611; Minister for Immigration v Yusuf (2001) 180 ALR 1; Plaintiff 157/2002 v Minister for Immigration [2003] HCA 2] the appropriate course to take is to declare that the decision is invalid and of no effect. The matter should be returned to the Tribunal differently constituted to be heard and determined according to law. If required I will issue the necessary prerogative writs. The respondent shall pay the applicant’s costs assessed in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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