SZBQT v Minister for Immigration

[2006] FMCA 1183

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBQT  v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1183

MIGRATION – Refugee – the applicant claimed that as a homosexual he would be persecuted if he were to return to Bangladesh – no duty to inquire – information provided to the Tribunal by the applicant – it is for the Tribunal to attach weight to certain material – the Tribunal met its obligation under s.424 – no jurisdictional error – application dismissed.

Migration Act 1958, ss.36(2), 65, 422B, 424A(1), 424A(3)(a), 424A(3)(b), 425.

Prasad v Minister for Immigration Ethnic Affairs (1985) 65 ALR 549
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22
Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61
SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435
Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 Minister for Immigration and Ethnic Affairsv Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural and Indigenous Affairsv SGLB [2004] HCA 32

Applicant: SZBQT

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 245 of 2005

Judgment of: Nicholls FM

Hearing date: 19 June 2006

Date of Last Submission: 30 May 2006

Delivered at: Sydney

Delivered on: 21 August 2006

REPRESENTATION

Counsel for the Applicant: Dr. J. Azzi (Direct Access)

Solicitors for the Applicant: Nil

Counsel for the Respondents: Ms. L. Clegg

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $4400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 245 of 2005

SZBQT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 28 January 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 6 December 2004 to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.

2. The applicant is a citizen of Bangladesh who arrived in Australia on
   4 March 2004. In its decision record the Tribunal described that the applicant lodged an application for a protection visa with the Minister’s Department on 13 April 2004, however the copy of the application reproduced at Court Book (“CB”) 3 appears to have been received on
   8 April 2004. On 9 July 2004 a delegate of the respondent Minister refused the application for a protection visa. The applicant made an application for review of the delegate’s decision on 3 August 2004.

3. On 4 August 2004 the Tribunal wrote to the applicant (this is reproduced at CB 42 to CB 43) confirming receipt of the applicant’s review application. That letter stated:

   “This letter explains what we will do next and what we expect you to do. Please read it carefully.

   ……

   What is a hearing and why is it important?

   A hearing is your opportunity to give the Tribunal evidence to support your application. Evidence includes:

   ·What you tell the Member at the hearing

   ·Information or documents you give the Tribunal

   ·Information or documents you ask others to give the Tribunal.”

4. The Tribunal again wrote to the applicant on 12 October 2004 (CB 44 to CB 45) advising him that it was unable to make a favourable decision on the material before it, and invited the applicant to a hearing on 12 November 2004 to give any evidence and make submissions in support of his claims. The applicant attended and gave evidence. The Tribunal’s account of what occurred at the hearing is set out in its decision record reproduced at CB 76.5 to CB 82.1. The Tribunal affirmed the delegate’s decision on 6 December 2004. The applicant’s adviser provided further written submissions in support of the application on 24 November 2004, and further material on
   29 November 2004 (CB 48 to CB 67). The Tribunal’s recording of the submissions is in its decision record at CB 82.2 to CB 88.6.

5. The applicant’s claims to protection can initially also be found in the application for a protection visa reproduced at CB 3 to CB 27, and in his application for review to the Tribunal (CB 37 to CB 41). The central aspects of his claims were that as a homosexual he would be persecuted if he were to return to Bangladesh. At the hearing before the Tribunal the applicant claimed that he “realised” that he was homosexual “around 2002”, when he was 22 years of age. He stated that he did not have any homosexual experiences prior to this. He also confirmed that he had not “gone out” with any girls prior to 2002. The applicant’s adviser made further submissions to the Tribunal after the hearing which contained claims that the applicant became aware of his sexual identity when he was “14-15 years” old. These submissions also stated that from his boyhood the applicant did not feel “biological attraction” towards the opposite gender and had been practising homosexuality secretly out of fear from his immediate family, the “Islamic Mullahs”, and society at large.

6. The Tribunal’s “Findings and Reasons” in its decision record are reproduced at CB 88.7 to CB 91.4. The Tribunal found that:

   1)There were inconsistencies in the “applicant’s story”, and he did not provide convincing supporting evidence that he was homosexual (CB 89.6).

   2)There was an inconsistency between the applicant’s comments regarding when he first realised he was homosexual (CB 89.9).

   3)There was an internal inconsistency in the post-hearing submission “where the applicant stated on the one hand, that he still ‘feels shy about his gay identity because some of his friends have known his sexual preference and always taunt him, even here in Australia’ and his adviser’s statement that ‘because of the applicant’s open gay practice and dress-ups…’ some of his friends informed his family about his homosexuality” (CB 90.1 to CB 90.2).

   4)It was not credible that the applicant “was not able to name one gay establishment in or around Oxford Street [Sydney] that he frequented” (CB 90.3).

   5)The applicant’s application to join the “New Mardi Gras” was made when the matter of proof of the applicant’s sexuality was raised, and as such the Tribunal gave very little weight to this information (CB 90.8).

   6)It did not accept that the applicant is homosexual, and therefore did not accept his claim of persecution in Bangladesh based on this (CB 90.8).

   7)It did not accept that the applicant was imprisoned “for 5-6 days”, or that he was beaten by “the Police whilst in custody”, or that false charges were initiated against him, or that he had to move from place to place to avoid the authorities (CB 90.9).

   Therefore, the Tribunal found that on the evidence before it the applicant did not face a real chance of persecution should he return to Bangladesh “now or in the foreseeable future” (CB 91.1).

7. I have before me:

   1)An originating application filed on 28 January 2005.

   2)An amended application filed on 28 April 2005 containing one ground, with particulars.

   3)An affidavit, filed for the applicant, of Judith Gayton sworn on
   10 May 2006, annexing a transcript of the Tribunal hearing held on 12 November 2004.

   4)A further amended application filed on the applicant’s behalf by his representative, Dr. J. Azzi, on 26 May 2006, containing two particularised grounds:

   “The Second Respondent committed a jurisdictional error of law by failing to act judicially in reviewing the delegate’s decision according to “substantial justice and the merits of the case” – as required by the Migration Act 1958”.

   The Tribunal committed a jurisdictional error of law by failing to afford the Applicant procedural fairness in circumstances where he was not given, in writing, an opportunity to respond to adverse findings in accordance with the mandatory obligations in section 424A of the Act.”

   5)An outline of submissions filed in this Court by the applicant’s representative on 30 May 2006.

8. At the hearing before the Court the applicant was represented by Dr. J. Azzi. Ms. Clegg appeared for the respondents.

   Dr. Azzi sought leave, which was granted, to read the affidavit of Judith Gayton sworn on

   
   

   10 May 2006 annexing a transcript (“T”) of the hearing before the Tribunal. Ms. Clegg took no objection. 

9. Dr. Azzi submitted that central to the applicant’s complaint now about the Tribunal's decision was the Tribunal's reliance on the subsequent submissions provided by the applicant’s migration adviser (Mr. Mullah) after the hearing conducted by the Tribunal with the applicant. Dr. Azzi sought to characterise the Tribunal's response to receiving these subsequent submissions from the adviser, which he said dealt with issues in such a way as to provide the contradictions on which the Tribunal subsequently relied in rejecting the applicant’s claims, as a “gift from the Gods”. In essence, Dr. Azzi’s submission, as it appeared to relate to ground 2 (and possibly touched on ground 1) of the further amended application, was that the applicant’s claim to be a homosexual was rejected by the Tribunal on what it perceived to be inconsistencies in the applicant's case, and that much of this inconsistency arose from the subsequent submissions provided by the applicant’s adviser both as to matters within the submissions (“internally”) and as it was said to be inconsistent with things that the applicant himself had earlier put to the Tribunal.

10. Specifically Dr. Azzi’s complaints appeared to be:

    1)That the adviser’s submission to the Tribunal “could not have been adopted by the applicant”.

    2)That the Tribunal attributed “a lot of weight” to the post hearing submissions and that this was “unexpected” by the applicant because the applicant did not know what Mr. Mullah was going to submit.

    3)In support of this complaint, that these submissions were not directed to the matter to which the Tribunal had provided the specific opportunity for further submissions to be made, and were provided five or six days after the “deadline” for the provision of the submissions. As I understood it, the argument was that the Tribunal accepted these submissions notwithstanding that they were late because “it’s convenient” for it to do so because it enabled the Tribunal to reject the applicant’s claims.

11. When I pressed the issue, Dr. Azzi submitted that the error of law that the applicant now puts forward is that the submissions, which were asked for by the Tribunal, were dealt with in a way that was not “expected by the applicant”, and that the applicant should have been given an opportunity to respond to the adverse findings, in accordance with the mandatory obligations in s.424A of the Migration Act 1958 (“the Act”). This is as asserted in ground 2 of the amended application, although at the hearing before me Dr. Azzi made reference to Prasad v Minister for Immigration Ethnic Affairs (1985) 65 ALR 549 (“Prasad”). Dr. Azzi did not refer the Court to any more recent authority dealing directly with the meaning of information pursuant to s.424A(1) of the Act. Dr. Azzi’s position was that having heard the applicant at the hearing before it, the submissions provided by the applicant’s adviser subsequently were so inconsistent that “alarm bells” should have sounded, and the Tribunal should have then given the applicant another “chance” by either inviting him to another hearing or writing to the applicant and giving him the opportunity to comment in that way. I should also note that during the course of the hearing Dr. Azzi also sought to argue, in relation to ground 2, that in spite of the existence of s.422B, there was a failure at general law to provide procedural fairness to the applicant arising out of the same circumstances as set out above. Namely, that the adviser’s subsequent submissions contained material that was so inconsistent with what the applicant had earlier put that as a matter of fairness the Tribunal should have given an opportunity to the applicant for comment.

12. Ground 1 in the applicant’s further amended application asserts that the Tribunal committed jurisdictional error by failing to act judicially according to “substantial justice and the merits of the case”. At the hearing before me Dr. Azzi sought to support this complaint with a particular not included in the applicant’s further amended application. This was that, as shown by the Tribunal's account of the hearing, and in particular at CB 81.7, the Tribunal reported that it discussed independent country information with the applicant and that in particular in Bangladesh the “High Courts acted in an impartial manner”. Dr. Azzi submitted that the applicant's response was that it was the publicity of any false charges going before the High Court that would be more of a problem for him, and that the applicant, while not being sure, thought that the charges brought against him were under “Act 54” (the Tribunal earlier at CB 80.4 reported that the applicant had said that police could arrest him under “Act 54” and would continue to harass him because of his homosexuality). From the material before the Court it appears that “Act 54” or “Section 54” is a reference by the applicant and his adviser to the relevant part of Bangladeshi law dealing with the arrest of “suspects”.

13. Dr. Azzi’s submission was that the Tribunal made no finding in relation to this issue, but then proceeded in its decision record at CB 90.9 to make a finding that the applicant was not a homosexual, and that false charges had not been initiated against him. His submission appeared to be that in the “sequence” of its reasoning in its decision record, the Tribunal “pre-empted” an outcome that the homosexuality claim underpinned the false charges claim (that is, the “Act 54 based claim”). Dr. Azzi appeared to submit that the Tribunal, in relation to the “Act 54 claim”, which he said could have been a claim of fear of harassment separate to the issue of homosexuality, left this claim outstanding and failed to make a finding. Dr. Azzi sought to rely on the exchange between the applicant and the Tribunal at T17. 

14. The applicant's second ground of complaint is that the Tribunal relied on information provided in a post hearing submission by the applicant's adviser in circumstances where it found this information to be both internally inconsistent, and inconsistent with what the applicant had said at the hearing. Dr. Azzi’s submission was that the information provided by the applicant's adviser (Mr. Mullah) was not adopted by the applicant, and in the absence of any confirmation by the applicant that he had adopted this information, such information did not come within s.424A(3)(b) of the Act, and therefore should have been dealt with in the way as required by s.424A(1). Further, that the Tribunal acted unreasonably by not convening a further hearing and giving the applicant an opportunity to comment on what turned out to be significant and adverse material that was contained in the post hearing submission, because it could not have been reasonably expected by the applicant that the Tribunal would have used it in the way that it did. The applicant relies on Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [141] per McHugh J. and [195] per Kirby J. Further, the submission was that in the alternative the applicant had been invited to provide additional information pursuant to s.424 of the Act by the Tribunal, and in these circumstances the Tribunal should have invited the applicant to a further hearing pursuant to s.425, given, as Dr. Azzi said, the importance of such hearings in the refugee decision making process and in circumstances where the contradictory statements made by the applicant's adviser were “glaringly” so.

15. In dealing with both grounds of complaint the relevant circumstances are:

    1)The applicant applied for review of the delegate’s decision refusing him a protection visa on 3 August 2004 (see CB 37 to CB 40 for a copy of the application).

    2)On 4 August 2004 Mr. Mullah, a registered migration agent, provided notice to the Tribunal, pursuant to s.312B of the Act, that he had agreed to represent the applicant in relation to the review application, and that he was providing immigration assistance to him (CB 41). This was consistent with the information provided by the applicant in the application for review. There was nothing before me, and nor was it argued that the signature appearing in the application for review at the appropriate place, (at CB 38) under the heading “Applicant's Declaration”, was not the signature of the applicant. Further, in answer to the question on the application form: “Do you have an adviser you authorise to act for you in relation to this application” (CB 39), the answer provided is in the affirmative, and Mr. Mullah is nominated as the person providing immigration assistance for the purposes of the review application. It should be noted (CB 40) that while the applicant nominated Mr. Mullah as his adviser, and authorised him to act for him in relation to this application, he did not nominate Mr. Mullah as the “authorised recipient” for the purposes of correspondence. He nominated that such correspondence was to be sent to his residential address.

    3)On 12 October 2004 the applicant was invited to a hearing before the Tribunal because the Tribunal advised that, on the material before it, it was unable to make a favourable decision. It invited the applicant to give oral evidence and arguments in support of his claim. The letter was sent to the applicant’s residential address, as the applicant had originally nominated, and a copy was sent to Mr. Mullah as the migration adviser.

    4)The applicant and Mr. Mullah attended a hearing before the Tribunal on 12 November 2004 (CB 47).

    5)The Tribunal's account of what occurred at the hearing is set out in its decision record at CB 76.5 to CB 82.1.

    6)Following the hearing, the applicant's adviser provided a submission to the Tribunal which it received on 24 November 2004. The submission is reproduced at CB 48 to CB 64 and contains annexures.

    7)The Tribunal's recounting of what was contained in the submission is in its decision record at CB 82.2 to CB 88.6.

    8)The applicant's adviser also wrote to the Tribunal by letter received by the Tribunal on 29 November 2004, enclosing a copy of the applicant's membership of “new Mardi Gras” (CB 65 to CB 67). Relevantly the letter stated:

    “I act on behalf of my above named client. He instructed me to submit photo copy of member ship card & letter as documentary evidence for your kind consideration and determination to support his review application.

    If you have any query regarding this, please contact me.”

16. The Tribunal’s decision record shows that it understood the applicant's claims to protection to derive from his assertions that he was a homosexual, and that in Bangladesh this would impose certain restrictions on his freedoms. Further, that he would be denied employment, and would be persecuted. His claims were that both the society and the state in Bangladesh did not allow homosexuality, and that under Shariah (religious) law (although not the law of Bangladesh) punishment for homosexuality was death. Under the civil law the punishment was imprisonment for life.

1. The applicant, therefore, feared harm from his family, society at large, the government and political parties, but particularly those that espoused Islamic principles. The applicant's claims were that the authorities would not, and could not, protect him if he was to return to Bangladesh. He further put to the Tribunal that false charges were pending against him.

2. At the hearing on 12 November 2004 (and in this regard the Tribunal's account, and what appears in the transcript provided by the applicant to the Court, relevantly appears to generally concur as to what occurred at the hearing) the Tribunal explored with the applicant whether any specific instances of harm had occurred to him. The applicant said that he thought he had been taken into custody under “Act 54”, following his being reported to police by his friends regarding his homosexuality. The applicant claimed that he had been physically beaten by the police, and that ultimately his “boyfriend” was able to get him out of prison, but the applicant was unable to explain as to how this occurred. Both from the transcript of the hearing, and the Tribunal's account of what occurred at the hearing, it is clear that the Tribunal gave the applicant opportunity to provide details of the harm that he said had occurred to him as a result of his being homosexual, and what the applicant feared would happen to him on return to Bangladesh.

3. Relevantly, the Tribunal put to the applicant independent country information that was available to it, that indicated that there had not been any prosecutions or convictions pursuant to relevant sections under the Bangladeshi penal code of any persons merely because they were homosexual. It further discussed with the applicant independent country information as to the attitudes of society towards homosexuals in Bangladesh, and the relevance of Shariah law, and “the official law”. On any plain reading of what occurred at the hearing (derived from either the transcript or the Tribunal's account) it is clear that the Tribunal, quite properly in my view, focused on seeking to obtain details from the applicant as to the harm that he claimed had occurred, and the fear of harm in the future. In this regard, it put to the applicant a range of independent country information that was available to it, that contained information that was contrary to the applicant's assertions as to how homosexuals were treated, and would be treated, in Bangladesh. This was put in context of the law, and in terms of society’s and the government's attitudes. The Tribunal advised that there was information that showed that there was an independent judiciary which would hear any charges against the applicant “in an impartial manner”.

4. The applicant's response to this, in essence, was that it was “dangerous” for him to return to Bangladesh, and that notwithstanding what the Tribunal had said, there was still Shariah law which made a return “risky”. It was in this context that the applicant's agent said that he wanted to provide further information regarding the relevant legal situation, and in particular “Section 54”, which he said was a section relevant to the criminal procedure. The Tribunal provided additional time for the adviser to make this submission. In this regard see CB 81.9 in the Tribunal's account, and T19.8 of the transcript. (I should just note that in the transcript the adviser is referred to as “Mr. Marel”, but it is quite clear in the context of the material before the Court that this is a reference to Mr. Mullah, a point not disputed by Dr. Azzi).

5. The transcript reveals that it was at this point in giving the applicant's adviser time to make submissions, that the Tribunal provided the adviser with the further opportunity to put before the Tribunal “any evidence available in Australia of the applicant's homosexuality” (T19.8). The issue of the applicant’s relevant activities in Australia had clearly been discussed previously at the hearing, and it was in this context that the Tribunal provided this further opportunity. Although clearly the transcript reveals that while the adviser sought the opportunity (which he was given) to make further submissions in relation to the “legal” situation, it was the Tribunal that initiated the opportunity for any further submissions about any relevant evidence in Australia.

6. The applicant was unsuccessful before the Tribunal for the following reasons:

   1)Inconsistencies in the applicant's claims as put by him at the hearing.

   2)A lack of “convincing supporting evidence” that he was homosexual.

   3)That there was also “internal inconsistency” in the post hearing submission.

   4)That there was inconsistency between the applicant’s comments at the hearing, and information provided in the post hearing submission, particularly as to the applicant’s age when he first realised that he was homosexual.

   5)The Tribunal did not find as “credible” the applicant’s inability to “name one gay establishment in or around Oxford Street” in light of the fact that he said he “frequented” such establishments.

   In all these circumstances therefore, the Tribunal did not accept that the applicant was homosexual, and therefore did not accept any of the claims of harm or persecution in Bangladesh arising out of being a homosexual, nor that he had been imprisoned, or that false charges were initiated against him, given that these latter claims were said to arise out of his being homosexual.

7. Dr. Azzi’s submission was that the Tribunal was not entitled to deal with the post hearing information in the way that it did because such information was significant to the Tribunal's decision and was so at odds with what the applicant had previously said. Further, that the submission went beyond the scope of what the Tribunal had agreed to being the “purpose” of the submission, and was in any event provided after the deadline set by the Tribunal.

8. Dealing first with the proposition that the information contained in the post hearing submission was not information provided to the Tribunal for the purposes of the review, and therefore cannot be said to be information that falls within the exception to s.424A(1) contained in s.424A(3)(b). That is, the information was not provided for the purposes of the review by the applicant, because it was provided by the migration agent without the applicant’s endorsement. I do not accept Dr. Azzi’s submission in this regard. In making his application to the Tribunal the applicant clearly authorised Mr. Mullah to act for him in relation to his application. Mr. Mullah attended the hearing with the applicant in circumstances where the applicant would have clearly heard that Mr. Mullah was to make further submissions on his behalf. It is clear that at the hearing an interpreter in the relevant language was present to assist the applicant (see T1 and CB 47).

9. Further, it cannot be said, in the circumstances of this case, that the applicant, coming from a non-English speaking background, was otherwise disadvantaged. The Tribunal clearly addressed the issue of any difficulty of translation at T3. The applicant raised no objection to the interpreter, nor claimed to have any difficulty in understanding the interpreter. Further, at the hearing, at T3, the Tribunal noted that in his application for a protection visa the applicant had indicated that he could “speak, read and write English”. In all the circumstances therefore, it is clear that the applicant was given every opportunity to understand, at the conclusion of the hearing, that Mr. Mullah was to make further submissions on his behalf. I agree with Ms. Clegg’s submission that there was nothing arising from the transcript to show that the applicant did not understand that a further submission was to be made on his behalf, and indeed that any further evidence about his activities in Australia was to also be provided. Further, there is nothing in any of the material now before the Court to suggest, let alone show, that Mr. Mullah acted on his own initiative in providing the post hearing submissions, or the evidence that he provided in the form of the Mardi Gras card. Nor that he acted without instruction or knowledge by the applicant. The applicant had originally authorised Mr. Mullah to act for him and was present at the hearing where it was clearly stated that Mr. Mullah was to provide further information on his behalf. Nor is there any evidence before the Court that the adviser acted without authority in providing the content of what was contained in the submissions, and the subsequent letter and its annexure.

10. Nor is there any evidence before the Court to support an inference made by Dr. Azzi at the hearing before the Court that Mr. Mullah has since been de-registered as a migration agent, and that this somehow would give rise to an inference that he would have actively sought to act on his own volition in this regard or even provide inaccurate information in this case. There is no evidence put before the Court of any wrong doing by Mr. Mullah in this regard in this case.

11. The transcript of the hearing, and the Tribunal's account of what occurred at the hearing, clearly show that the Tribunal had concerns about the lack of evidence to support the applicant's claims. In this regard the very lengthy post hearing submission by the adviser, and the annexed material provided by the adviser, can quite properly be seen as an attempt to satisfy the Tribunal as to its concern about the lack of evidence in support of the applicant's claims. I do not agree with Dr. Azzi’s submission that the Tribunal was seeking to find against the applicant, and seized on the inconsistencies in the post hearing submission as a way of achieving this purpose. There is simply no evidentiary basis to support this proposition. The only material put before the Court shows the Tribunal shared its concerns about the applicant’s claims, provided opportunities for explanation, and further submissions and evidence to be presented. The material before the Court is inconsistent with the claims that the Tribunal saw the subsequent submissions by the adviser as a “gift”. To argue this is to assert bias with no evidentiary basis to support such a claim.

12. The Tribunal, in a number of ways (both in its letter of 12 October 2004, and by what clearly transpired at the hearing) made it clear that it could not be satisfied as to aspects of the applicant's claims, and that critically the lack of evidence in support of those claims was a significant issue. Ultimately the relevant legislative scheme provides through s.65 and s.36(2) of the Act that the Tribunal is required to reach a requisite level of satisfaction that the applicant, in effect, meets the definition of refugee set out in Article 1A(2) of the Convention. Its failure to reach that level of satisfaction mandates a refusal of the protection visa. In my view it is clear on all the circumstances before me that the adviser's subsequent submissions were directed to achieving the purpose of satisfying the Tribunal that the applicant met the definition of refugee out of circumstances arising from his homosexuality, and his treatment in Bangladesh. That the submission provided information (in amongst a large amount of material) that was inconsistent with what the applicant had earlier said (the adviser was present throughout the hearing) does not in my view, in the current circumstances, lead to a situation of “alarm bells” or impose obligations on the Tribunal other than to consider what was put before it. This is what it did.

13. Dr. Azzi sought to rely on the authority of Prasad. His submission was that there was a duty on the Tribunal to have made further inquiries after receiving the submissions, for example by providing another opportunity for a hearing before the Tribunal. I agree with Ms. Clegg that I could not see the circumstances of this case giving rise to any such obligation on the Tribunal. But in any event, in terms of the authority relied on by Dr. Azzi, it is clear that pursuant to s.422B and the Full Court authority in relation to the effect of s.422B, making Division 4 of Part 7 the exhaustive statement of the matters that it deals with (Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61), that the applicant was provided with the opportunity to attend a hearing as set out in s.425, and there is no duty on the Tribunal to make any further inquiry by way of a further invitation to a hearing evident as from the relevant statutory regime.

14. I saw of particular significance in the case before me that the post hearing submissions were clearly directed to those matters arising from the hearing that the Tribunal conducted, perceived by the Tribunal to be deficient in the applicant's case. Mr. Mullah, in the absence of any evidence to the contrary, sought to quite properly address the Tribunal's concerns even though he may have gone beyond the scope of the specific matter for which the Tribunal said it would entertain further submissions. Nonetheless the extent of the matters addressed in the submissions relate to the issues about which the Tribunal had clearly indicated (or inferred at the hearing, or would have been obvious to a migration adviser) it was likely not to be satisfied. It cannot be said that what the adviser submitted was so remote from the relevant subject matter such as to cause the Tribunal to ask itself whether there was any need to make any further inquiry as to the efficacy of the submission. The submission not only dealt directly with the relevant factual aspects of the applicant's claim, but dealt directly with those issues which had emerged at the hearing, and which on any plain reading of the transcript and the Tribunal's account of what occurred at the hearing, were the matters on which the Tribunal would ultimately settle to base its decision.

15. Dr. Azzi invited the Court to draw an inference from the post hearing submission itself that, given the inconsistencies contained in that submission, it could not possibly have been submitted with the authority of the applicant. Clearly there was no evidence put before the Court to show that the applicant had withdrawn his authority from the agent to act for him, or that the agent acted on his own initiative without the knowledge of the applicant. This is particularly so when considered in the face of an initial express notification provided by the applicant, to the Tribunal, indicating that the adviser was assisting him, the presence of the adviser at the hearing and indeed the participation of the adviser at the hearing, the knowledge arising from the hearing that post hearing submissions would be made, and that further evidence in relation to the Mardi Gras membership would be provided by the adviser. Ultimately, there is no evidence whatsoever before the Court to contradict the very clear assertion made by the adviser in his letter of 28 November 2004 (CB 65) to the Tribunal (noting that this letter was sent after the date of the written submissions) where the adviser makes specific reference to the fact that he acts on behalf of his client who instructed him to submit a photocopy of the membership card for the Tribunal's consideration. But even beyond this, nor does the post hearing submission itself, in all the circumstances as set out above, give rise to any inference that the adviser was acting without instruction, or on his own volition, simply because it contained some matter that was inconsistent (even glaringly so in one particular) with other evidence presented to the Tribunal.

16. Dr. Azzi also sought to rely on a recent judgment of Rares J. in SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 (“SZGGT”). The circumstances in that case gave rise to a question as to whether information in a protection visa application made to the first respondent's Department was information for the purposes of s.424A(1). The submission was that the principal emanating from SZGGT was that “an objective reasonable person” test should be applied in looking at whether information provided in a protection visa application was republished before the Tribunal (such that it makes it into a s.424A(3)(b) issue). I could not see that the circumstances of the matter before me were analogous to this situation. This was not a case where the information provided was provided to the Minister's Department such as to bring into play such authorities as Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 1679, SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 and with reference to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, I could not see that the migration agent in the case before me could be said to be involved in any “republishing” of any information which was previously put to the Minister's Department. The issue here is clearly not one of republication as in the circumstances before His Honour in SZGGT, but whether the material provided by the migration adviser after the hearing to the Tribunal (and directed largely to issues arising from the hearing) could be said to be information provided by the applicant to the Tribunal for the purposes of the review. I do not see that any republishing aspect arises in the case before me.

17. But even in applying any “objective reasonable person test” (putting aside the issue of whether such a test should be applied to the circumstances of the case before me) any reasonable person would, in my view, see that submissions made by a migration agent after a hearing before a Tribunal, were submissions made by and on behalf of the applicant. This is on the basis that the adviser was retained by the applicant to provide migration advice and assistance, the adviser attended the hearing, participated in the hearing with the applicant, where the submissions were directed to issues raised at the hearing with the Tribunal, and where the adviser (without any evidence to the contrary) after making the submissions, and in relation to submitting further evidence, expressly stated that he was acting for the applicant under instructions. This is reinforced by there being no evidence before the Tribunal (or indeed even now before the Court) of any wrong doing on the part of the agent in relation to this case. In my view, in all the circumstances, it was open to the Tribunal to proceed in the way that it did. The inconsistencies in the submissions, and with what was said earlier, in the circumstances, could reveal a lack of creditworthiness in the applicant’s claims. In all the circumstances I cannot see that an “objective reasonable person” would see that the Tribunal was unreasonable in the view that it took of these claims.

18. In dealing specifically with each of the particulars raised in the further amended application:

    1)Ground 1

    a)The applicant complains that in its decision record at CB 90 the Tribunal found that there was “an internal inconsistency” and that this was in circumstances where the Tribunal ignored relevant material, and gave inadequate weight to what the applicant claims was a matter of great importance. This is with reference to one part of what is set out in the Tribunal’s lengthy recounting in its decision record of what was contained in the post hearing submissions (CB 87.5). That is:

    “In the applicant’s opinion, while he was in Bangladesh, he did not disclose his gay practice to others openly. Currently, his identity is open and he is totally exposed.”

    b)As to the applicant’s complaint that the Tribunal gave inadequate weight to this issue, I agree with Ms. Clegg’s submission that to enquire into the weight attached to certain material is to engage in merits review Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 per McHugh J. at [40] and such merits review is impermissible before a Court. The merits of a case including matters of weight to be given to any item of evidence before the Tribunal is for the Tribunal as decision maker to determine Minister for Immigration and Ethnic Affairsv Wu Shan Liang (1996) 185 CLR 259 at 272 and 291-292. To the extent that the complaint is that the Tribunal ignored this relevant material then a plain reading of the relevant parts of its decision record show that it did not ignore this material. It simply gave it a level of weight with which the applicant now does not agree. This does not amount to jurisdictional error on its part.

    c)The applicant complains that the Tribunal found an inconsistency as to the time when the applicant “first realised he was homosexual” (CB 89.7). The specific complaint in the further amended application is that the Tribunal attributed “excessive weight to a matter of no great importance” – that is that at the hearing the applicant stated he did not have any homosexual experiences before “turning 22” while in the post hearing submissions the applicant stated he became aware of his sexual identity when he was “14-15 years old”.

    d)To the extent that this relies on a complaint about the Tribunal’s finding of inconsistency or a compliant that the Tribunal attributed excessive weight to a matter that the applicant now says was of no great importance, then it too does not succeed for the reasons set out above.

    2)Ground 2

    The particulars of this ground all relate to the issue discussed and dealt with above, that the Tribunal was not entitled to deal with the information in the post hearing material in the way that it did.

1. At one point during submissions before the Court Dr. Azzi argued that the Tribunal sought additional information (at the conclusion of the hearing) and that it must have regard to that information. He sought to characterise the information provided in the post hearing submission as “424 information”, and because it was “424 information” it was not information for the purposes of s.424A(3)(b). I did not understand Dr. Azzi to be arguing that the Tribunal failed to have regard to the information. His argument was, as I understood it, that given it was “s.424 information” it could not be s.424A(3)(b) information. In essence, Dr. Azzi submitted in this regard, that the information contained in the submission, being information obtained pursuant to s.424, was “not countered then by s.424A(3)(b)”.

2. I should at first note that while the Tribunal does have, in a sense, an “investigative” power pursuant to s.424 in that it may seek any additional information, it is not a condition to the exercise of the Tribunal's power that it actually use this particular power; Minister for Immigration and Multicultural and Indigenous Affairsv SGLB [2004] HCA 32 at [43].

3. Nonetheless the argument appeared to be that in the case before me the Tribunal did exercise this power because it could be said that it sought the additional information. The information having been sought by the Tribunal could not therefore be said to be information provided (in the sense of initiated) by the applicant for the purposes of s.424A(3)(b) and therefore the Tribunal’s failure to deal with this information pursuant to s.424A(1) reveals error on its part. The complaint appeared to be particularised in that the Tribunal asked for further information in relation to “Section or Act 54” (Bangladesh law). It received information not on “Section 54 but something else”, then used that information to “down the applicant”.

4. Dr. Azzi’s submission in relation to “Section 54”, that is, that the Tribunal initiated the request for the further information is not in my view supported by the transcript of the hearing. A reading of the hearing transcript at T19 shows that the applicant’s adviser sought additional time to make additional submissions. It was in this context that the Tribunal asked whether the adviser could provide “some information on references being made today to Act 54”. This was in the context of the applicant having raised the issue of “Act 54”, when he was “not exactly sure what the charge against him was”.

5. In any event, looking at the transcript and the Tribunal's understanding of what occurred at the hearing as expressed in its decision record, the Tribunal asked the applicant and the adviser if there was anything further that they wanted to ask (this was towards the conclusion of the hearing – T19.6). The adviser responded by saying that he wanted (while the transcript is not clear it appears the meaning is) more time to provide information:

   “Presiding Member: Mr Marel [Mullah] was there anything you wanted to ask??

   Mr Marel [Mullah]:    Thank you,?? now??? if you give me one I ?? information.

   Presiding Member:    In a couple of days.

   Mr Marel [Mullah]:    One week.”

   In this context the Tribunal (both from the transcript and its own record) sought to provide some specificity to what the adviser was to submit. The Tribunal then clearly referred to the “Act 54” which in the applicant’s presentation had been vague, and the issue of the existence of any evidence of his “homosexuality” in Australia.

6. The Tribunal reveals that the adviser sought the applicant to make further submissions. The Tribunal provided additional time and in the context of what had been discussed at the hearing sought to confirm with the adviser that the submissions would include “some information” on references being made to “Act 54”, “and evidence that is available in Australia of the applicant’s homosexuality”. The Tribunal clearly had concerns with the vague (and somewhat contradictory) nature of the applicant’s references to “Act 54” and had concerns about the applicant’s evidence on his “homosexual” lifestyle in Australia and the lack of evidence to support his claims in this regard. On all the relevant material before me it is clear that in having agreed to receive further submissions the Tribunal properly (and in one sense helpfully) sought to direct those submissions to the issues which it clearly saw (and had communicated to the applicant and his adviser) as being deficient in presentation and lacking in supporting evidence. The Tribunal’s account of what occurred at the hearing in relation to this (CB 81.9 to CB 82.1) is consistent with this understanding where it reported that the adviser would provide information regarding “Act, Section 54” and information regarding the applicant’s homosexuality “from Australian sources”.

7. However, on Dr. Azzi’s own repeated complaint the adviser provided information on anything but “section 54”. That is, the adviser did not provide information in the post hearing submissions on “Section 54”. In this sense therefore, what the adviser provided in the post hearing submission could not be said to have been provided as a result of any request by the Tribunal pursuant to s.424, but (on the basis of the transcript) on the adviser's own request for extra time to provide additional information. In that sense, that information, even on Dr. Azzi’s construction, would fall within the exception to s.424A(3)(b) (subject to Dr. Azzi’s argument alone, which has already been rejected, that there is a difference between information provided by the adviser and information provided by an applicant or adopted by an applicant).

8. But further and in any event, even if the information was provided as a result of a request by the Tribunal pursuant to s.424 the Tribunal's obligation is that it must have regard to this information. The Tribunal fulfilled this obligation in relation to the information in the post hearing submissions and in regard to the Mardi Gras card, in that it clearly did have regard to it. As I have already set out above, it was a matter for the Tribunal in finding that it gave “very little weight” to the card and it was open to it to find inconsistencies in the submission. But I do not see that s.424A(3)(b) is not applicable in these circumstances. Even if the information was sought by the Tribunal I cannot see that its obligation under s.424A(1) is thereby excluded. The Tribunal would still be required to give the applicant (in writing) information that it considers would be at least a part of the reason for affirming the decision under review, except if it was, relevantly as in this case, information that fell within the ambit of s.424A(3)(b), that is, given by the applicant for the purposes of the review, which I have already found to be the case.

9. In all therefore even if the Tribunal (as Dr. Azzi submitted) sought the additional information pursuant to s.424, its obligation under that section was met. It had regard to the information provided in response (being the Mardi Gras card). Further, and in any event any obligation that also arose pursuant to s.424A(1) was in all the circumstances subject to the exception provided for in s.424A(3)(b). I do not see that any argument based on this complaint succeeds.

10. The applicant’s claims revolved around his fears in Bangladesh arising from his circumstances in that country, both in the past, and as they could be in the foreseeable future, from his homosexuality. Essentially this is what the Tribunal dealt with. I can see no jurisdictional error arising from the grounds put forward in the applicant's further amended application, or in terms of the complaints submitted by Dr. Azzi at the hearing. The application to the Court is accordingly dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:

Date: 21 August 2006