SZBFO v Minister for Immigration - [2005] FMCA 207

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBFO v MINISTER FOR IMMIGRATION

[2005] FMCA 207

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Bangladesh as a homosexual – procedural fairness – applicant invited to a hearing on the basis that the RRT was unable to make a favourable decision on his written claims but applicant not told what the problem was – applicant not given an opportunity to respond to all embracing credibility concerns held by the presiding member – inquisitorial procedure followed by the presiding member not giving a deferential applicant a sufficient opportunity to provide unstated details sought by the presiding member.

Migration Act 1958 (Cth), ss.422B, 424A, 425

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1993) 49 FCR 576
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Hussein v Minister for Immigration [1999] FCA 288
Kioa v West (1985) 159 CLR 582
Meadows v Minister for Immigration (1998) 90 FCR 370
Minister for Immigration v SGLB (2004) 207 ALR 12
NATF & Ors v Minister for Immigration [2003] FMCA 244
Re Minister for Immigration; Ex parte MIah (2001) 206CLR 57
Re Minister for Immigration; Ex parte S154/2002 (2003) 210 ALR 437
SZATB v Minister for Immigration [2004] FMCA 512
SZBFD v Minister for Immigration [2005] FMCA 139
WACO v Minister for Immigration [2003] FCAFC 171

Applicant:

SZBFO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG1630 of 2003

Judgment of:

Driver FM

Hearing date:

2 March 2005

Delivered at:

Sydney

Delivered on:

2 March 2005

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Dr M Allars

Solicitors for the Respondent:

Sparke Helmore

ORDERS

A writ of certiorari shall issue, directed to the Refugee Review Tribunal removing the record of the decision of the Tribunal into the Court for the purpose of quashing it.
A writ of mandamus shall issue directed to the Refugee Review Tribunal requiring it to redetermine the application for a protection visa according to law.
There is to be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1630 of 2003

SZBFO

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 5 July 2003 and handed down on 23 July 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 a fear of persecution by reason of his homosexuality. He arrived in Australia on 27 May 2000. On 23 June 2000 he applied for a protection visa with the Minister's Department. The Minister's delegate rejected the application on 27 October 2000 and on 7 November 2000 the applicant applied to the RRT for a review of the decision.
The background to this matter is otherwise adequately summarised in written submissions prepared on behalf of the Minister by Mr McInerney. The Minister was represented at trial today by Dr Allars. I adopt paragraphs 12-17 of the respondent's written submissions as background for the purposes of this judgment:
On 9 December 2002, the applicant gave oral evidence before the RRT. A witness, Mr Godfrey McCormick, also gave evidence on the applicant’s behalf.
The RRT’s decision
The RRT did not consider the applicant to be an entirely reliable or credible witness [court book, page 294.5]. For that reason, the RRT was unable to be satisfied that the applicant had faced Convention related persecution in Bangladesh in the past, or that he faced a real chance of Convention related persecution in the foreseeable future if he returned to Bangladesh [court book, page 294.5].
The RRT found that the applicant’s claims were “vague, general, and lacked specific detail” [court book, page 294.4], that his evidence was “inconsistent and contradictory” [court book, pages 295.5, 295.8, 96.2 and 296.7], and found his evidence as to his past treatment in Bangladesh to be “relatively vague and generalised” [court book, page 294.6].
The RRT did not accept the credibility, or the veracity, of the applicant’s claims:
a)that he had been subjected to the punishment of 20 lashes by Shalish ‘for his involvement in a homosexual relationship’ [court book, page 295.1].
b)that he had been sacked from his job at a general store in Dakar in 1986 after the owner became aware that the applicant was engaged in a homosexual relationship with a member of staff [court book, page 295.3].
c)that the applicant suffered discrimination in his employment after 1986 for an extended period of time (although the evidence was inconsistent as to whether he had been unable to obtain a job, or had been discriminated against in his next job as a result of his homosexuality becoming apparent to his employer) [court book, page 295.6].
d)as to the applicant’s explanation for moving to Saipan in 1995 or 1996 [court book, page 296.1].
e)as to the applicant’s account of his life, and homosexual activities, in Saipan during the time that he was there [court book, pages 296.2-296.7].
As to Mr McCormick who gave evidence in support of the applicant’s claim, the RRT found his evidence to be “somewhat vague and general” [court book, page 297.4], and found that the RRT was unable to accept it as “credible”, or having “any veracity” [court book, page 297.4].
The RRT was not satisfied that the applicant had a well-founded fear of persecution in Bangladesh for a Convention Reason, or that the applicant had a well-founded fear of persecution in the foreseeable future if he returned to Bangladesh [court book, page 297.7].
The applicant relies upon an amended application filed on 10 November 2003 and an affidavit in support filed on the same day. He also relies upon written submissions that were filed on 25 February 2005. I received into evidence the court book which was filed on 27 October 2003.
In his amended application the applicant raises only one ground of review. He asserts a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) because of the asserted failure by the RRT to disclose to him two decisions of the Federal Court and one decision of the High Court on which the RRT allegedly relied. I am aware of no authority requiring the RRT to disclose, pursuant to s.424A(1) of the Migration Act, legal authorities. In my view s.424A(1) deals with factual matters. There is no substance to the ground of review advanced in the amended application and I reject it.
The affidavit in support of the amended application augments it by raising additional issues. Those issues are, first, an assertion that the RRT overlooked a relevant consideration in failing to consider or properly consider the applicant’s claim of a fear of persecution by reason of his homosexuality. I reject that assertion. While there may be debate about the quality of the consideration of the applicant's claims by the RRT in this case there is no doubt whatsoever that the claims were considered. The presiding member did not fail to consider any element or incident of the applicant's claims.
Secondly, the applicant expresses concern about an observation by the presiding member that he had failed to bring with him a copy of a work permit the applicant had said he held in Saipan. This appears at paragraph 32 of the presiding member's reasons on page 290 of the court book. The applicant says that he was not required to bring a copy of the work permit to the RRT hearing. I accept Dr Allars' submission on this point that the failure by the applicant to bring a copy of his work permit to the RRT hearing was in no way determinative of the outcome of his application before the RRT. The observation by the presiding member at paragraph 32 of his reasons gives rise to no jurisdictional error.
Thirdly, the applicant says that he was suffering panic at the RRT hearing and that his was not taken into account by the presiding member. Dr Allars referred me to the decision of the High Court in Minister for Immigration v SGLB (2004) 207 ALR 12 in particular at paragraph 126. There is no obligation at large on the RRT to satisfy itself of the fitness of an applicant to give evidence. The applicant does not assert that he alerted the RRT to his panic.
In this case I accepted an invitation from the applicant to listen to the tape recording of the RRT hearing. There was no indication on that tape recording that the applicant was suffering any difficulties. On the contrary, the applicant expressed himself clearly and with apparent authority. He did not draw attention to any problem during the hearing. There is no evidence that he pointed to any problem at any other time. I reject the applicant's contention.
The balance of the issues raised in the applicant's affidavit, in my view, simply contest the merits of the RRT decision which I cannot review.
In his written submissions, the applicant raises three further issues which I permitted him to advance as if they had been put in a further amended application. The applicant asserted that there were interpretation difficulties at the RRT hearing that resulted in procedural unfairness. In particular, the applicant asserts that the Bengali interpreter was not physically present at the hearing and was interpreting from Melbourne, apparently by video link. However, the applicant was unable to see the interpreter because he could not see the video screen and had no eye contact with her. He says he was unable to understand the questions of the presiding member and put through the interpreter. I accept that interpretation difficulties can lead to procedural unfairness. As to the general principles, I refer to my earlier judgment in NATF & Ors v Minister for Immigration [2003] FMCA 244 at paragraphs six and seven. I listened to the tape recording of the RRT hearing from the commencement of the hearing to the end of the applicant's evidence. Neither the applicant nor Dr Allars saw any need for me to listen to the balance of the tape. There were no interpretation difficulties of any significance apparent from the hearing tape. The presiding member at the start of the hearing satisfied himself that the applicant and the interpreter could both hear properly and understood one another. He satisfied himself a second time before he commenced asking the applicant questions. He invited the applicant to draw attention to any problem he may have. The applicant asked for three questions only to be repeated. He had no difficulty answering them when they were repeated. I reject the contention that there was any procedural unfairness by reason of interpretation difficulties.
The second issue raised in the submissions relates to a submission made on the applicant's behalf on 26 June 2003, after the hearing conducted by the RRT. The applicant contends that the submission was not read and was not taken into account. He asserts that this was procedurally unfair. It is true that, as the applicant contends, the presiding member signed his reasons before considering the submission received from the applicant's adviser on 26 June 2003. Page 278 of the court book establishes, however, that the submissions were considered by the presiding member who included reference to them in his reasons for decision. An amended decision was provided. The presiding member deals with the submission in paragraphs 43 to 47 of his reasons on page 292 and 293 of the court book. At paragraph 47 the presiding member concludes, in effect, that there was nothing in the submissions that caused him to change his mind. Plainly, the submissions were considered by the presiding member and there was no procedural unfairness.
The third issue raised by the applicant in his written submission relates to the situation of homosexuals in Bangladesh. This is my view no more than a further challenge to the merits of the RRT decision. As I have already noted, I am unable to review the merits of the decision.
A further issue was raised by me as a result of listening to the hearing tape. That issue is whether the hearing conducted by the RRT was fair. I was concerned about the apparent failure by the presiding member to provide the applicant with a real opportunity to satisfy the RRT that he should be given a protection visa. I dealt with this issue very recently in the case of SZBFD v Minister for Immigration [2005] FMCA 139, in particular at paragraphs 7 to 12. In that case unlike this case, s.422B of the Migration Act was relevant. Section 422B has no application in this case because the application to the RRT was made before the commencement of operation of that section. Also, in SZBFD I had no evidence before that would enable me to conclude that there had been a failure on the part of the RRT to inform the applicant of the issues that he needed to deal with. In this case I had the benefit of listening to the hearing tape. The hearing tape was played in court and both the applicant and Dr Allars had the opportunity to hear it and make submissions on it.
The important points that I made in SZBFD concern both s.425 of the Migration Act and the requirements of the fair hearing rule under the general law. I referred in particular to the Federal Court's decision in WACO v Minister for Immigration [2003] FCAFC 171 at paragraph 33 where their Honours dealt with the obligations arising from s.425. Their Honours said:
The Tribunal must give the appellant an opportunity to appear before it and give evidence: s 425 of the Act. If an appellant seeks to give evidence, the Tribunal is under a duty to raise plainly and unambiguously the critical issues on which his or her application might depend so that he or she may have an opportunity of being heard on them: Meadows v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 370 at 388 (per Merkel J) and see 382 (per Einfeld J) and 383 (per von Doussa J); Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 288 at [29]-[30] per O'Connor, Tamberlin and Mansfield JJ.
Further, their Honours dealt with the general law fair hearing rule at paragraph 43 in WACO. Their Honours said:
In the broadest sense procedural fairness requires that an administrative tribunal is bound to hear a person affected by its decision before exercising its powers: FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 360 per Mason J. Underlying it is the entitlement of the person to know the case sought to be made against him or her and to be given the opportunity of replying to it: Kioa v West (1985) 159 CLR 550 at 582. As Mason J pointed out in that case at 583, `natural justice and fairness are to be equated'. Whether procedural fairness must be afforded and the content of it will, where the decision made arises in a statutory framework depend upon the legislation pursuant to which the decision is to be made and all the circumstances of the case.
I went on in the light of those words to make a cautionary note. I said at paragraph 12 of my decision in SZBFD:
While there is an obligation on the RRT to explain to an applicant what it is that prevents the RRT from making a favourable decision, the presiding member is pursuing an inquisitorial process. The presiding member is not obliged to put an applicant on notice of every detail of his or her claims that the presiding member is minded to reject.
I referred with approval to a decision of Federal Magistrate Raphael to this effect in the case of SZATB v Minister for Immigration [2004] FMCA 512. His Honour said in that case that:
The Tribunal is not obliged to expose his or her reasoning process or subjective determinations for comment to the person affected Re Minister for Immigration; Ex parte S154/2002 (2003) 210 ALR 437 at [54]; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1993) 49 FCR 576 at [591]. Neither is the Tribunal required by the rules of procedural fairness to give the applicant a running commentary on his prospects of success so that there is a full warning of all possible reasons for failure Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57 at [31].
Notwithstanding those qualifications to the general principle, I have the following concerns about the fairness of the hearing conducted in this case. First, the applicant was invited to a hearing by letter dated 5 November 2002[1]. The applicant was put on notice that the RRT had considered the material he had submitted but was unable to make a decision in his favour on this information alone. As I said in SZBFD, in order for the hearing invitation to be meaningful, an applicant needs to know what it is that is preventing the RRT from making a favourable decision. I see no evidence in this case that that was pointed out to the applicant prior to the hearing that was conducted. Nothing was said during the course of the hearing to put the applicant on notice of what was preventing the RRT from making a favourable decision.
[1] court book, pages 164-165
Secondly, the applicant failed before the RRT because he was not believed. The presiding member appears to be a student of logic and in a very organised way went through each of the applicant's claims and his evidence and one by one rejected them on credibility grounds. At paragraph 62 of his reasons[2], the presiding member referred to a “dichotomy”. I take this to be a use of the secondary meaning of the word in the Macquarie Dictionary relating to logical analysis. The secondary meaning is “classification by division”. I take this to mean that the presiding member was saying that as an exercise in logic he had classified all of the applicant's claims and divided them up and rejected them one by one.
[2] court book, page 297
Where an applicant's claims and evidence are rejected in their entirety on credibility grounds, I would expect the presiding member to say something to an applicant to indicate that there was a credibility concern. I heard nothing on the hearing tape to indicate that such notice was given to the applicant. The presiding member simply asked questions and received the responses. While the RRT does not need to give the applicant a running commentary or give warnings as might be required under cross-examination, in order for a fair hearing to be conducted the decision maker must explain clearly and unambiguously the issues upon which the decision is likely to turn. In this case, it is obvious from the presiding member's reasons that the obstacle confronting the applicant was the presiding member's complete rejection of his evidence and his claims. The presiding member needed to explain to the applicant at least in general terms what the problem was. He failed to do so.
The third concern I have with the hearing is that the presiding member, at paragraph 54 and 60 of his reasons[3], formed critical views adverse to the applicant based upon his failure to reiterate claims that he had made in writing prior to the hearing and his unwillingness, in the presiding member's view, to talk about his homosexuality, homosexual relationships or incidents. The presiding member took the view that the applicant had not been frank and open and had not taken the opportunity given to him to explore these issues with the RRT. The presiding member was also concerned with what he saw as inconsistencies between the applicant's oral evidence and his earlier written claims. The description by the presiding member of what was said at the hearing between paragraphs 27 and 37 of his reasons is very comprehensive. It is entirely consistent with the sound recording. The presiding member followed an inquisitorial procedure as he was entitled to do.
[3] court book, pages 295-296

However, in my view, it was unfair of the presiding member to draw the conclusions he drew based upon what occurred at the hearing. First, as I have already noted, the applicant had no idea what concerns the RRT had about his written claims. Secondly, the applicant was given only one open ended opportunity to reiterate his written claims. That occasion is dealt with at paragraph 28 of the reasons[4]. On that occasion, as the presiding member records, the applicant said that he had made many submissions about the sorrows and risks to his life in Bangladesh. I take this to mean that the applicant was expressing reliance upon his written submissions. It was not apparent to him that he needed to repeat them. A second opportunity was given to the applicant, as is recorded at paragraph 33 of the reasons[5]. However, the applicant was deflected from expanding upon a general answer by specific questions about his employment history. The final opportunity is dealt with by the presiding member at paragraph 36 of his reasons[6]. The problem is not apparent from that paragraph and would not be fully apparent from a transcript. It is apparent from the sound recording. The applicant started to explain what it was that concerned him about his situation in Bangladesh as a homosexual. The presiding member interrupted the applicant in order to allow the interpreter to translate what the applicant was saying in small bites. However, the presiding member did not invite the applicant to continue. There was a pause during which the presiding member apparently made some notes and then he moved on to another question. The applicant was not prevented from saying anything further but he was not invited to do so.
[4] court book, page 289
[5] court book, page 290
[6] court book, page 291
The applicant is a South Asian gentleman and my impression of him in this hearing and from listening to the tape is that he is deferential to authority. He asked me on several occasions for permission to speak when he felt he needed to say something. In my view the applicant felt inhibited in speaking in the absence of an invitation or in the absence of the question to which he was to respond. This was reinforced at the RRT hearing by the rigid inquisitorial process followed by the presiding member. The impression conveyed was the applicant was there to answer questions and nothing more.
I find that there was an inadequate opportunity given to the applicant to explain fully and comprehensively the harm he feared in Bangladesh as a homosexual. The conclusion I draw is that the presiding member breached the fair hearing rule both under the general law and as expressed in s.425 of the Migration Act. The hearing opportunity given to the applicant was inadequate because the applicant did not know the concerns of the RRT that he needed to address. He was not given the opportunity to respond to the all-embracing credibility concerns held by the presiding member. He was not given an adequate opportunity, having regard to cultural issues, to put to the RRT all that the presiding member felt that he needed to. It follows and I find that the decision of the RRT is vitiated by jurisdictional error.
The remaining question is whether I should in the exercise of discretion decline to provide relief upon the basis that it would be futile. On the basis of the case advanced by the applicant it would have been open to the presiding member to conclude that the claims of the applicant, even if genuine, did not support a well founded fear of persecution. The applicant had not pointed to any serious harm since 1986. While it was obvious that the applicant considered that he would have a better life in Australia than in Bangladesh it was by no means obvious that he feared harm in Bangladesh that would satisfy the definition of persecution.
Nevertheless, in order to refuse relief on the basis of futility, I would need to be satisfied that the outcome at a rehearing of the applicant's claims would be the same. While the outcome might well be the same that does not necessarily follow. At a further hearing the applicant would be able to revisit his claim that he was subjected to Sharia law corporal punishment. He would be able to attempt to deal with the inconsistencies in his evidence about his employment history in Bangladesh and any connection to his homosexuality. I conclude that a rehearing before the RRT would not be futile.
The applicant is self represented and accordingly he has not incurred any legal costs. In addition, the issue upon which this case turns was raised by me from the bench after listening to the hearing tape. All of the issues advanced by the applicant have been rejected by me. In the circumstances, I have formed the view that there should be no order as to costs.
I will order that a writ of certiorari shall issue directed to the RRT removing the record of the decision of the RRT into the Court for the purposes of quashing it; a writ of mandamus shall issue directed to the RRT requiring it to redetermine the application for a protection visa according to law. There is to be no order as to costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 9 March 2005