SZBYB v Minister for Immigration
[2007] FMCA 1540
•10 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBYB v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1540 |
| MIGRATION – Review of the Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.91X, 424A, 476 Federal Magistrates Court Rules 2001 (Cth), rr. 44.11(c), 44.12 |
| Australian Capital Territory Revenue, Commissioner for v Alphaone Pty Ltd (1994) 49 FCR 576 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723 Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 SZBEL v Minister for Immigration [2006] HCA 63 SZBYB v Minister for Immigration [2005] FMCA 1957 SZELA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1068 SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 SZGUP v Minister for Immigration & Anor [2006] FMCA 1130 Wight v The Honourable Chris Pearce, MP, Parliamentary Secretary to the Treasurer [2007] FCA 26 |
| Applicant: | SZBYB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2163 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 13 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr L J Karp |
| Solicitor for the Applicant | Mr N Dobbie of Parish Patience Immigration Lawyers |
| Counsel for the First Respondent: | Mr J Smith |
| Solicitors for the First Respondent: | Ms A Mansour of Clayton Utz |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration & Citizenship’.
The application filed on 7 August 2006 is dismissed.
The applicant is to pay the first respondent's costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2163 of 2006
| SZBYB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
The applicant in these proceedings is not be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZBYB”.
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Migration Act filed in the Sydney Registry of the Federal Magistrates Court of Australia on 7 August 2006 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).
The Tribunal decision was made on 27 June 2006 and sent to the applicant on 6 July 2006, affirming a decision of the delegate of the first respondent made on 22 April 2002, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act. Pursuant to r.44.11(c) of the Federal Magistrate Court Rules 2001 (Cth), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.
A Court Book (“CB”) prepared by the first respondent's solicitors was filed and served on 19 September 2006. I have marked it Exhibit “A” and it was read into evidence.
The applicant in these proceedings filed the following affidavits:
a)Affidavit of Robert Liu, solicitor, affirmed on 24 January 2007 (first affidavit of Mr Liu). Attached to this affidavit is a copy of the Tribunal hearing held on 10 April 2006.
b)Affidavit of Robert Liu, solicitor, affirmed on 17 April 2007 (second affidavit of Mr Liu) affirming that the transcript attached to his first affidavit was prepared by Accurate Professional Transcriptions’ Sydney.
A copy of the transcript of the first Tribunal hearing, reference N02/42653, was tendered. No objection was raised and it was marked Exhibit “A2”.
Background
The Tribunal decision of R Inder, reference N0653110, provides the following background information:
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 30 November 2001 and applied to the Department of Immigration and Multicultural and Affairs for a Protection (Class XA) Visa on 30 November 2001. The delegate decided to refuse to grant a visa on 22 April 2002 and notified the applicant of the decision and his review rights by letter dated 22 April 2002 and posted the same day. The applicant applied to the Tribunal on 21 May 2002 for review of the delegate’s decision and on 29 September 2003 the Tribunal (differently constituted) affirmed the delegate’s decision and the applicant applied to the Federal Magistrates Court and it was remitted to the Tribunal on 10 January 2006.(CB 492)
The relevant background material and claims of the applicant are set out in the written submissions prepared by Mr Karp. I adopt paragraphs 1 to 16 of those submissions for the purposes of this judgment:
1. The applicant, a citizen of Bangladesh, applies for the second time for judicial review of a decision of the second respondent (the Tribunal). The previous Tribunal decision, dated 29 September 2003, was quashed by order of Scarlett FM on 21 December 2005 (CB337).
2. The applicant had arrived in Australia as a sailor on an international ship on 30 November 2001 (CB13), and lodged an application for a protection visa on 13 December of that year (CB1A). Attached to his application was a statement setting out his basic claims (CB26-7).
3. In essence the applicant claimed that his father was a freedom fighter in the 1971 War of Independence. He was also a businessman and vice president of the Chittagong District branch of the Awami League. On 25 March 1991 the father was beaten severely by thugs associated with the Bangladesh National Party (BNP). He died from his injuries five weeks later. The family took legal action against the alleged perpetrator but received no satisfaction (CB26).
4. The applicant claimed that he adopted his father’s political affiliation. In 1996 he became joint secretary of his college committee Chatra League (the student wing of the Awami League). In the 1996 parliamentary elections he worked for the successful Awami League candidate.
5. In 1999 he completed his bachelor’s degree and became more involved in politics. He became vice president of the Jubo League (the youth – as opposed to the student – wing of the Awami League). He was involved in “development works” and led “hundreds of demonstrations” against the activities of the BNP. He was seriously injured during a demonstration on 27 August 2001. Also, a number of “false” cases were filed against the applicant by the unsuccessful BNP candidate at the 1996 election. He received no support from his local Awami League MP who considered the applicant to be a political rival. The situation forced him to leave the country, which he did by joining the crew of a ship.
6. Since he left Bangladesh the BNP have achieved power. The applicant claimed that the lives of freedom fighters and their families are at great risk.
7. On 18 April 2002 the applicant’s migration agent lodged a submission (CB39-44) to the effect that,
(i) In the October 2001 election the BNP won a 2/3 majority in the parliament, whereupon it sought to take revenge on its opponents (CB40-1),
(ii) The BNP allied themselves with Islamic extremist forces and those who had opposed independence in 1971 (CB41-2).
(iii) The Awami League is a legal political party, but since the October 2001 elections its members have been subject to massive repression (CB42-3).
(iv) The judiciary is not independent of the executive arm of government (CB43).
(v) Lower court judges are corrupt and verdicts are politically influenced (CB43-4).
8. This assisted the applicant not at all. On 22 April 2002 the Minister’s delegate rejected the application (CB45-53). The applicant applied to the Refugee Review Tribunal for review of this decision on 16 May 2002 (CB54). I note that this was prior to the operative date of s.422B Migration Act (i.e. 4 July 2002), and so the applicant is entitled to be accorded procedural fairness without restriction.
9. On 21 February 2003 the applicant’s agent submitted a letter purporting to be from Sheikh Hasina, leader of the Awami League, in support of his case (CB62-3). On 11 April 2003 the agent submitted letters from the President and Secretary of the Bangladesh Student League (CB152) and the form the President and Secretary of the Awami League of Chittagong District (CB153) (the letters are in identical terms), as well as what are alleged to be translations of court documents (CB154-172).
10. Also on 11 April 2003 the first Tribunal wrote to the applicant (“the first s.424A letter” – CB 173) stating that,
“As foreshadowed at your hearing, the Tribunal investigated the letter you submitted in support of your claims, purportedly from the leader of the Awami League, Sheikh Hasina. The Department of Foreign Affairs has ascertained that the letter was not signed by Sheikh Hasina and was not issued by her.”
11. The Tribunal required a response by 8 May 2003 (CB173), and declined to give further time (CB174, 176). As previously stated, its decision (CB181-201), handed down on 23 October 2003, was quashed by order of Scarlett FM on 21 December 2005 (SZBYB v Minister for Immigration [2005] FMCA 1957 – CB 337). His Honour decided that there was a denial of natural justice in one aspect of the Tribunal’s findings (SZBYB at [78] – [81]). His Honour could so find because the application to the Tribunal was made prior to 4 July 2002, and therefore s.422B Migration Act did not apply. Nor does that section apply to the current decision.
12. It might be noted that the relevant DFAT advice appears at CB336. More of that will be said later.
13. A further hearing was appointed for 10 April 2006, and a transcript of that hearing is in evidence. At that hearing two witnesses gave evidence as to the applicant’s involvement with the Awami League in Australia. Several further documents were submitted on behalf of the applicant (CB367-409). On 13 April 2006, that is three days after the hearing, the Tribunal, differently constituted, wrote a second s 424A letter to the applicant (CB462-466) covering several subjects. The part relevant to this application commences at CB465.9,
“You have provided many letters claimed to be from different Bangladesh Awami League leaders and organisations, including from Shekh Hasini (sic) dated 5 February 2003. However according to advice given by DFAT, Sheikh Hasina did not sign or issue the letter (DFAT Report 00235 – RRT Information Request: BGD15851, 9 April 2003) and they state that the letter you have submitted which purports to be a letter from the President and leader of the Bangladesh Awami League, endorsing your claims, is a fabrication.
This may draw your credibility into question as well as reflect badly on the genuineness of the other material you have provided, not only from the Awami League but also from all other sources in Bangladesh…”
14. I interpolate that it is not at all clear as to which letter the Tribunal was referring in the passage underlined above. There appears to be no such letter in the Court Book.
15. On 5 June 2006, the day before the Tribunal’s decision was to be handed down, the Tribunal received a letter from the applicant’s solicitor stridently criticising the Tribunal and the information upon which it proposed to rely (CB474-484). The part of the letter relevant to the application before the Court appears at CB485 is as follows;
“You have not provided a copy of the DFAT advice referred to, nor have you identified the witness who you have indicated has given opinion evidence about a particular document put forward by the Applicant. You have not outlined the qualifications that would enable any consideration as to whether they should be regarded as an expert witness qualified to give that opinion evidence, and you have not provided us with the exchange of correspondence regarding this document that may enable us to make submissions about the issue.
The purpose of a s 424A letter is to provide an applicant with a meaningful opportunity to respond to adverse information. The adverse information is the opinion evidence about the Sheikh Hasina letter dated 5 February 2003. You have not, however, provided us with sufficient particulars to be able to respond in any meaningful way. All we can do is deny the assertion and maintain that the documents are authentic.
16. The Tribunal reached its decision without providing further particulars.
Application for Review of the Tribunal decision
On 7 August 2006, the applicant filed an application for a review under s.39B of the Judiciary Act. In accordance with leave granted at the first Court date, the applicant filed an amended application on 1 February 2007. At the commencement of the hearing, Mr Karp sought leave to file a further amended application. As no objection was raised by the respondent, leave was granted. The further amended application contains the following grounds:
1. The Tribunal committed jurisdictional error in law in that it failed to comply with s 424A(1) Migration Act
Particulars
(a) There was a failure to provide particulars of information by which the Department of Foreign Affairs and Trade concluded that a letter purportedly signed the leader of the Bangladesh Awami League was fabricated, in circumstances where this conclusion was accepted by the Tribunal at face value.
2. The Tribunal failed to accord procedural fairness to the Applicant.
Particulars:
(a) There was a failure to seek more information from the Applicant, or advise him that his answers were unsatisfactory, in circumstances where:
a. he answered questions asked of him at hearing in a coherent manner; and
b. he was given no indication of the amount of detail required by the Tribunal.
(b) The Tribunal’s conclusion that, “…the Applicant was unable to articulate or even outline any coherent policies or even show that he had any political knowledge (let alone understanding) of the issues involved”, was a conclusion lacking reasoned foundation or evidentiary support.
(c) The conclusion referred to in (b) above was not obvious on the known evidence.
Submissions and Reasons
Mr Karp indicated that the further amended application relied on natural justice grounds under s.424A of the Migration Act and the common law. Mr Karp submits that the application to the Tribunal was made on 16 May 2002 (CB 182), before the amendments to Part 7, Division 4 of the Migration Act came into effect on 4 July 2002. I understand this is common ground between the parties and I believe this is the correct approach.
Mr Karp submits in the first ground that there was a failure to provide particulars of information conformable with s.424A(1)(a). In support of his argument Mr Karp relied upon Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 at [104] per Allsop J (with whom Heerey J agreed):
104. The evident purpose of s.424A is to play its part in the provision of a procedural analogue to the common law of procedural fairness. I think s.424A should be looked at with a purpose in mind of ensuring that the claimant is fairly informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it. The extent of particulars of any information should be looked at in a common sense way in the context of the matter in hand and with fairness to the applicant in mind. A consideration of these matters is obviously affected by the chosen approach of the Tribunal. Particulars of information need to be provided to the applicant so that the applicant understands what is the relevant information to the review. This very much depends upon what the Tribunal takes to be relevant (cf Tin, supra at [52] to [54]).
Mr Karp relies on Paul that the requirement for particulars of information as per s.424A(1)(a) is to provide the applicant with a fair opportunity to meet the information the Tribunal has relied upon.
Mr Karp submits that the application of the word “particulars” in s.424A(1)(a) was discussed in SZELA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1068 at [49]-[50] per Smith FM:
49. On the evidence before me, this provision gave rise to an obligation on the part of the Tribunal to serve an invitation in relation to information adverse to the applicant which the Tribunal obtained from the document examiner’s report. In my opinion, it undoubtedly used the information concerning the document which was "item 3" as "part of the reason for affirming" the delegate’s decision. Counsel for the respondent did not argue otherwise. Nor did she argue that the obligation was excluded under any of the paragraphs in s.424A(3).
50. The issue therefore is whether the Tribunal complied with the requirements of subsection (1) in relation to that information in its letter of 9 August 2000 extracted above at [26]. In my opinion, it did not. It did not provide "particulars" of the information, if only because it omitted to inform the applicant that the document examiner based her opinion upon "advice" given by "information from overseas". As I have explained above, I consider that this was a very material aspect of the information in the document examiner’s minute, and its omission materially diminished the applicant’s ability to answer the allegation.
The matter before this Court concerns a letter from Sheikh Hasina, leader of the Bangladesh Awami League.(CB 64) That letter, if accepted, would be evidence of the applicant’s status in the Awami League and the danger this posed to him. In this matter, two s.424A letters were issued, one by the first Tribunal and the other by the second. The letter issued by the first Tribunal states:
As foreshadowed at your hearing, the Tribunal investigated the letter you submitted in support of your claims, purportedly from the leader of the Awami League, Sheikh Hasina. The Department of Foreign Affairs has ascertained that the letter was not signed by Sheikh Hasina and was not issued by her.
This information is relevant because it may lead to an adverse finding of credibility in relation to your application.
You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 8 May 2003.(CB 173)
When the applicant was previously in the Court, Scarlett FM found that the first Tribunal letter met the requirements of s.424A. However, the legality of that letter was not in issue in those proceedings.
The second 424A letter relevant in these proceedings was issued on 13 April 2006 and states:
· You have provided many letters claimed to be from the different Bangladesh Awami League leaders and organisations, including from Sheikh Hasani dated 5 February 2003. However, according to advice given by DFAT, Sheikh Hasina did not sign or issue the letter (DFAT Report 00235 – RRT Information Request: BGD15851, 9 April 2003) and they state that the letter you have submitted which purports to be a letter from the President and leader of the Bangladesh Awami League, endorsing your claims, is a fabrication.(CB 465.9)
The Department of Foreign Affairs and Trade cable was not specifically about this particular matter but referred to a number of matters. The only information in the cable which appears to deal with the letter in question is in the first paragraph and there is a question about its source. The letter dated 5 February 2003 leads to a number of questions:
(i) How this information was confirmed;
(ii) Who was the ultimate source and how reliable was that source.
None of this was provided in the s.424A letter provided to the applicant, which stated:
According to advice given by DFAT, Sheikh Hasina did not sign or issue the letter.
Mr Karp raises the question whether there were sufficient particulars for the applicant to have a realistic chance of answering the allegation in the letter. Mr Karp submits that the applicant’s then solicitor, Mr McNally, wrote to the Tribunal on 5 June 2006 indicating that the Tribunal had not identified the witness who gave evidence about that particular document. It also did not identify whether the witness was qualified to give expert opinion, and did not provided the applicant with correspondence to enable him to make submissions on the issue.(CB 483) Mr McNally’s submissions continue:
The purpose of a section 424A letter is to provide an applicant with a meaningful opportunity to respond to adverse information. The adverse information is the opinion evidence about the Sheikh Hasina letter dated 5 February 2003. You have not, however, provided us with sufficient particulars to be able to respond in any meaningful way. All we can do is deny the assertion and maintain that the documents are authentic.
Mr Karp submits that the Tribunal gave no information which would allow the applicant to persuade the Tribunal that the letter was genuine. Without knowing who gave the information to DFAT, neither Mr McNally nor the applicant could adduce evidence refuting the DFAT information. They could only deny the assertion and maintain that the document was authentic.
Mr Karp then referred to the Tribunal’s “Findings and Reasons”:
In its letter of 13 April 2006 [s.424A letter], the Tribunal also put to him that according to advice given by DFAT, Sheikh Hasina did not sign or issue the letter he had provides (DFAT Report 00235-RRT Information Request:BGD15851, 9 April 2003) and DFAT also states that the letter he had submitted which purports to be a letter from the President and leader of the Bangladesh Awami League, endorsing his claims, is a fabrication.(CB 508.5)
The Tribunal went on to say that this may draw the applicant’s credibility into question and reflect badly on the genuineness of other material he had provided, not only from the Awami League but also from other sources in Bangladesh, such as complaints and charges. Mr Karp submits that the applicant’s profile was important because the Tribunal found that such an ordinary member of the Awami League was not in danger in Bangladesh.
Mr Smith submits that when considering whether or not the Tribunal had complied with its obligations under s.424A(1), it is first necessary to have regard to the reasons for its decision. The Tribunal referred to the letter purported to be from Sheikh Hasina in two places in its findings:
…According to advice given by DFAT, Sheikh Hasina did not sign or issue the letter he had provided…and DFAT also states that the letter he had submitted which purports to be a letter from the President and leader of the Bangladesh Awami League, endorsing his claims, is a fabrication.(CB 508.6)
And
The Tribunal does not accept this claim and is satisfied that the information in the DFAT report, stating that the letter from Sheikh Hasina dated 5 February is a fabrication…(CB 509.1)
Mr Smith submits that in this case, it is clear that the second s.424A letter set out the precise information ultimately relied upon by the Tribunal in its decision. That is, the Tribunal decision did not go beyond particulars that were given in the letter dated 30 April 2006. The decision does not suggest that the Tribunal relied on anything else from DFAT or any other source to make its adverse findings.
Mr Smith submits that the matter currently before the Court is distinguishable from the circumstances in Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138, where that Tribunal had information that was relevant to the applicant’s circumstances. The Full Federal Court concluded that the Tribunal relied on both the general and specific information in making its decision which was adverse to that applicant. However, the Tribunal letter purported to be sent under s.424A did not refer to specific information. For this reason, the Court found that the Tribunal did not comply with its obligations under s.424A(1). Justices Branson, Finn and Bennett stated at [34]-[36]:
34. The information which the Tribunal received concerning the respondent’s letters of support included advice that those very letters were worded in such a way as to offer him support to obtain economic refugee status abroad rather than to verify any particular status within the Awami League. The information also included advice, apparently by way of explanation, that many members of the Awami League are prepared to offer ‘such documents’ on request from ‘such applicants’. Yet the purported particulars of the information provided to the respondent by the s 424A letter made no reference to the advice that his documents were worded in such a way as to offer him support to obtain economic refugee status abroad rather than to verify any particular status within the Awami League.
35. In its reasons for decision the Tribunal stated:
‘Because of the advice received by the Australian High Commission in Dhaka from a senior source within the Awami League, I am unable to give any weight to the [respondent’s letters of support].’
36. The above statement provides no basis for a finding that the Tribunal considered that only the general, and not the specific, information which it had received concerning the respondent’s letters of support would be the reason, or a part of the reason, for affirming the decision under review. It is therefore appropriate to conclude that the information which specifically related to the respondent’s letters of support was information which the Tribunal considered would be (at the least) part of the reason for affirming the decision under review. It necessarily follows that the Tribunal failed to comply with its statutory obligation under s 424A(1)(a).
Mr Smith submits that it cannot be accepted that the matters the applicant identified at [17] above was required by s.424A(1)(a). Such an obligation goes beyond the clear words of the section.
The information received, which is not in dispute by either side, was contained in the following document:
DFAT REPORT 00235
REPORT RELEASED TO THE RRT
9 April 2003
RRT INFORMATION REQUEST: BGD 15851
BANGLADESH: REPLY TO REQUEST BGD15857.
The contents of that report relevant to this case are as follows:
A: WE HAVE CONFIRMED THAT THE LETTER DATED 5 FEBRUARY 2003 WITH THE LETTERHEAD “BANGLADESH AWAMI LEAGUE” WAS NOT SIGNED BY SHEIK HASINA. IT IS NOT A GENUINE SIGNATURE OF SHEIK HASINA AND WAS NOT ISSUED BY HER OFFICE.(CB 336)
The letter states:
You have provided many letters claimed to be from the different Bangladesh Awami League leaders and organisations, including from Shekh Hasani (SIC) dated 5 February 2003. However, according to advice given by DFAT, Sheikh Hasina did not sign or issue the letter (DFAT Report 00235 – RRT Information Request: BGD15851, 9 April 2003) and they state that the letter you have submitted which purports to be a letter from the President and leader of the Bangladesh Awami League, endorsing your claims, is a fabrication.
This may also draw your credibility into question as well as reflect badly on the genuineness of the other material you have provided, not only from the Awami League but also from all other sources in Bangladesh including FIRs, complaints and Charge Sheets mentioned above that you have provided.
A further matter in relation to two letters was raised but this was subsequnetly ignored by the Tribunal. The s.424A letter continues:
All the above information is relevant to the review of your case because it may indicate that your claims of persecution in Bangladesh because of your claimed political opinion as an Awami League supporter or activist are not true and accordingly that you do not have a well-founded fear of serious harm amounting to persecution for a Convention reason.
While some of these matters have been raised by the Tribunal with you before, including at the hearings on 29 March 2003 and 10 April 2006 and in the Tribunal’s earlier decision, the legislation requires that all such issues be raised with you in writing. You are therefore invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 27 April 2006.
A number of authorities deal with the adequacy of “Invitation to Comment” letters sent by the Tribunal in accordance with s.424A: Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 18; SZEOP v Minister for Immigration and Citizenship [2007] FCA 807; SZGUP v Minister for Immigration & Anor [2006] FMCA 1130. In some instances, information existed that was in the possession of the Tribunal but not been included in a letter. This is clearly not the situation in this case, as all the information in the DFAT cable was included in the letter. The term “particulars” in s.424A(1) does not encompass copies of the document, neither is there an obligation to disclose the form of the document from which the information is derived. The disclose obligation is limited to particulars of the information. However in the matter before the Court this is not in issue as the source is fully identified. I am satisfied that all of the material in the possession of the Tribunal has been included in the invitation letter.
The other obligation which arises under s.424A(1)(b) of the Migration Act is for the Tribunal to ensure that, as far as reasonably practicable, the applicant understands why the information was relevant to the review: SZGMF. The second paragraph of the Tribunal letter extracted at [26] above makes it particularly clear why the information was relevant. As the genuineness of a significant document submitted and relied upon by the applicant was identified as a fabrication, the status of all the applicant’s documents became an issue for the Tribunal and this was clearly expressed. As the “Invitation to Comment” letter was issued to an agent who was both a solicitor and a registered migration agent, the explanation the Tribunal provided would satisfy the threshold of the obligation.
Initially, Mr McNally complained that the Tribunal failed to identify the witness who said that the Sheikh Hasina letter was not genuine:
3. Letters of Support from Awami League Officials
You have not provided a copy of the DFAT advice referred to, nor have you identified the witness who you have indicated has given opinion evidence about a particular document put forward by the Applicant. You have not outlined the qualifications of the witness that would enable any consideration as to whether they should be regarded as an expert witness qualified to give that opinion evidence, and you have not provided us with the exchange of correspondence regarding this document that may also enable us to make submissions about the issue.
The purpose of a section 424A letter is to provide an applicant with a meaningful opportunity to respond to adverse information. The adverse information is the opinion evidence about the Sheikh Hasina letter dated 5 February 2003. You have not, however, provided us with sufficient particulars to be able to respond in any meaningful way. All we can do is deny the assertion and maintain that the documents are authentic.(CB 483)
Mr Karp pressed the point that the s.424A letter did not contain sufficient particulars for the applicant to answer the allegations in the letter and required as set out at [16] above.
In respect of the second ground, Mr Karp submits that the Tribunal’s lack of satisfaction that the applicant had a high profile stemmed from his alleged lack of knowledge of Awami League policies. Mr Karp referred to the transcript of the second Tribunal hearing:
Q108 Now, can I just say two things to you. Firstly, again, I’m asking very specific questions and just listen to what I’m asking, and can you answer that for me. And secondly, when you give an answer can you keep it short so that the interpreter can tell me what you’ve said and then I can make a note of that and then you can continue. But if you make a long statement then there’s a risk that I won’t hear everything that you’re telling me. Now, am I correct in understanding that you’re saying is you were a joint secretary for the Chatra League from ’95 to ’96 when you were in college?
A (int) Yes, Member.
Mr Karp submits that there was a then direction from the Tribunal member to keep answers specific and short. Further, that the only discussion of the applicant’s knowledge of Awami League policies was as follows:
Q165 That’s why I amended my remark. Can you tell me what the party platform is of the Awami League.
A(int) There are three major policy of Awami League, one is agriculture, the other one is education and the third one is culture.
Q166 Agriculture ---
A(int) Education and Culture.
Q167 Tell me about the culture policy, what’s the culture policy in detail?
A(Int) Sorry, Member, I’ve got to correct something. That is agriculture, education and industry.
Q168 So they’re the three major policies, is it? Put it back to him, agriculture, education and industry.
A(Int) Yes, Member.
Q169 So tell me about the industry policy in detail.
A(Int) The policy was to like join the big industry with the small industry and there should be a proper supply of raw materials in good price and cheap price and there should be provision of providing loan for these industry people and there should be (indistinct) so that industry doesn’t engage (indistinct).
Q170 What’s it policy on taxation for companies or incentives?
A(Int) The agriculture side is very underdeveloped in our country, so if people they’re taxed on agriculture side then they won’t be interested to develop this area.
Q170 But I thought the agriculture was one of the main industries in Bangladesh.
A(Int) Yes, Member, almost 68,000 villages most of the people live in the villages and the main source of their earnings is agriculture.
Q172 So what’s the Awami League’s approach towards taxation given what you’ve told me?
(A(Int) The policy of Awami League was to tax free agriculture and tax fee small industry so that people are more interested with agriculture and doing the small industry things, so that these two sectors get developed.
Q173 Where does the tax for Bangladesh come from if you exempt agriculture and small industry?
A(Int) The tax will come from the big industries, like in other cities, but the small industries like (indistinct) two or three village women are involved, I’m talking about those small industries.
Q174 Do you regard yourself as a leader of the Awami League?
A(Int) I work as a leader and everyone know me as a leader from my thana up to (indistinct) and everyone used to know my father as well..
Mr Karp submits that the applicant answered the questions asked. However, the Tribunal did not hint, let alone disclose, that it found his answers inadequate, or that they indicated that he was not of a particular profile. Mr Karp contends that the Court Book does not give any detailed information about the Awami League’s political platform.
The Tribunal’s summary of that part of the hearing is recorded as follows:
Asked about the platform of the Awami League, the applicant claimed that it had three main areas: agriculture, education and industry. Asked for information about its industrial policy, the applicant claimed that it wanted to join big and small businesses, and wanted a proper supply of raw materials and there should be a loan so industry could develop. Asked about tax incentives, the applicant claimed that agriculture is underdeveloped so if it is taxed it, it would not develop. The Tribunal put to the applicant that agriculture was the main sector of the economy, and he replied that 68% of Bangladeshis live in villages and are engaged in agriculture so it wanted tax free agriculture in small industry so they could develop. Asked when the tax would come from if these sectors were exempt, the applicant reply that big industries should pay tax, but not small 2-3 village units.(CB 498-499)
Mr Karp submits that the Tribunal dealt with these aspects in its “Findings and Reasons”:
The Tribunal is satisfied that if the applicant had supported Mr Mustafizur Rahman in 1996 elections then he would have known a lot more about both the Awami League and its policies in order that he would have been able to present these effectively to the electorate. He also claims that the main issue he presented to the people was that Mr Mustafizur Rhaman was a rich man and that Mr Rhaman was a good man and the farmers and the poor would benefit and they would get roads if he was elected.(CB 509)
The Tribunal then stated that it was not satisfied that the applicant’s involvement with the Awami League was more than as a supporter with limited tasks restricted to his immediate local area. The Tribunal stated:
When the Tribunal tried to explore some of these in more detail, the Applicant was unable to articulate or even outline any coherent policies or even show he had any political knowledge (let alone understanding) of the issues involved.(CB 510.2)
Mr Karp argues that there are several difficulties with the Tribunal’s summary. First, on its face the explanation given by the applicant during the hearing was coherent and not inherently nonsensical. He argues that any lack of sense stems from the Tribunal’s misinterpretation of the applicant’s evidence when it summarised his claims. Secondly, there was no information before the Tribunal as to what the platform of the Awami League was, nor does such information appear elsewhere in the Court Book. The Tribunal also did not say in its decision what it understood to be the Awami League’s platform. Thirdly, there was no suggestion by the Tribunal that the applicant’s evidence was incomplete or inadequate in any way.
Mr Karp argues that the above demonstrates that the Tribunal did not follow fair procedure and relies on Kioa v West (1985) 159 CLR 550 at 583-585 per Mason J:
It has been said on many occasions that natural justice and fairness are to be equated: see, for example, Wiseman v Borneman [1971] AC 297 at 308, 309, 320; Bushell v Secretary of State for Environment [1981] AC 75. And it has been recognized that in the context of administrative decision-making it is more appropriate to speak of a duty to act fairly or to accord procedural fairness. This is because the expression “natural justice” has been associated, perhaps too closely associated, with procedures followed by courts of law…
The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention…
In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.
Justice Brennan then stated at 612:
The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power. The variable content of the principles of natural justice was articulated by Tucker LJ in an oft-cited passage in his judgment in Russell v Duke of Norfolk [1949] 1 All ER 109.
Mr Karp contends that Their Honours were promoting the notion that natural justice was a flexible obligation to act fairly, not to be restricted by categorising or pigeon-holing different situations.
Mr Karp then referred to SZBEL v Minister for Immigration [2006] HCA 63 at [29] which referred to Australian Capital Territory Revenue, Commissioner for v Alphaone Pty Ltd (1994) 49 FCR 576:
…the argument proceeded, for the most part, by reference to what had been said by the Full Court of the Federal Court in Alphaone. The Full Court (Northrop, Miles and French JJ) said:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.(emphasis added)
Justice Allsop stated in Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723 at [3], [34] and [37]:
3. I have come to the conclusion that the material put to the Minister for her consideration including, in particular, draft reasons for the cancellation of the applicant's visa (which the Minister appears to have adopted as her own) was expressed in such a manner as to raise important and adverse factual matters beyond those which someone in the position of the applicant could reasonably have anticipated as likely to arise from the material that he understood to be before the Minister in the known statutory context. Another way of expressing the reason for my view is to adopt the words of the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Limited (1994) 49 FCR 576, 591-2 and say that the material put to the Minister for consideration contained adverse conclusions, in effect by way of Departmental recommendation, that were not obviously open on the known material in the known context of the statute and decision in question.
34. Alphaone and Palme provide the guidance to identify the circumstances where the applicant should be given an opportunity to deal with something in a Departmental submission. On the hypothesis, as here, that the applicant has been given, with some clarity, the framework and detail of the relevant universe of discourse, a submission that analyses and recommends giving detailed reasons for an available decision does not need to be disclosed if it does not materially go beyond the boundaries of the opportunity already given to deal with known issues. An applicant with ten convictions for serious violence who has had the opportunity to comment on his or her record cannot complain of unfairness if he or she is not shown the Departmental recommendation for cancellation because of the perceived seriousness, brutality and number of the offences. If, however, in considering these ten offences for violence, the author of the recommendation mistakenly concludes that one of the offences was a serious sexual assault (when in fact it was not a sexual assault at all) the error could be seen as material. Though it was not third party information, but internal consideration, it would have the effect of introducing to the decision-maker and the decision-making process a factual circumstance that was new, adverse and material. The source of the material does not matter, rather it is the unfairness of the recommendation in terms going forward without an opportunity to the subject of the decision to deal with the new matter with which is the procedural vice. There has been no opportunity to deal with the new matter because it does not obviously arise (Alphaone) from the existing material in its context; nor could a person in the position of the subject of the decision reasonably expect such a matter to be relevant. It is likewise if the "pitch" or "balance" of the recommendation is such as not to be fairly open. These words ("pitch" and "balance") were taken from the prosecutor's argument in Palme. In one sense, any recommendation that is adverse to the subject of the decision is "pitched" against him or her. But that is not, it seems to me, what the High Court were referring to.
37. It is necessary, of course, to have regard to the whole of the material in any given case in order to assess whether there is a new matter or a material mis-statement, exaggeration or distortion. Error in one document may need to be seen in the light of clarity and correctness in the balance of the material.
Mr Karp also referred to Wight v The Honourable Chris Pearce, MP, Parliamentary Secretary to the Treasurer [2007] FCA 26.
Mr Karp submits that for the Tribunal to ask questions and receive coherent answers, and then decide that the answers were incomplete and incoherent without giving the applicant a chance to expand, was inherently unfair. The Tribunal concluded that:
The applicant was unable to articulate or even outline any coherent policies or even show that he had any political knowledge, let alone understanding of the issues involved.(CB 510)
Mr Karp submits that the conclusion was not obvious or available on the information before the Tribunal, and should have been disclosed to the applicant for comment. The applicant should have been allowed to expand or to persuade the Tribunal that his knowledge went further than the questions asked by the Tribunal. To not do so was a breach of procedural fairness in the Alphaone and Navarrete sense.
Mr Karp submits that the other issue natural justice issue relates to the Tribunal’s consideration of the applicant’s activities in Australia. The applicant produced two witnesses at the hearing who gave evidence that the applicant participated in Awami League functions in Australia, which involved providing food.
Mr Karp acknowledged that the Tribunal did ask the applicant questions about what he had done in Australia. He was questioned about the kind of food he supplied and the number of people who attended the functions. However, Mr Karp submits it was never put to the applicant that he should have been involved with the Awami League at a leadership level in Australia.
In respect of the second ground, Mr Smith states that the applicant’s argument relies on two lines of one Tribunal hearing without regard to the balance of the material before the Court. Mr Smith argues that it is clear from the transcript that the Tribunal did not ask the applicant to keep his answers short. Rather, it asked him to keep each part short to allow for interpreting.
Mr Smith also submits that the Tribunal made clear that the extent of the applicant’s political knowledge was in issue. This was done y asking that the information be given “in detail”.(transcript Q167, 169) At the first Tribunal hearing, the Tribunal suggested that this claim was implausible: CB 186.2. The first Tribunal decision found that the applicant had fabricated his claims of having a political profile: CB 198, 199. The applicant adduced evidence to bolster his claim in this respect: CB 367-372. At the second hearing, the Tribunal asked numerous questions to elicit details of the applicant’s involvement in the Awami League.(transcript, Q103-Q186) The Tribunal wrote to the applicant to give him the details of information relevant to its decision, including a large amount of material relating to the political situation in Bangladesh:
All the above information is to the review of your case because it may indicate that your claims of persecution in Bangladesh because of your client political opinion as an Awami League support or activist are not true and accordingly…(CB 466, emphasised added)
Mr Smith submits that the applicant was represented by a lawyer who made oral and written submissions on his behalf. He was also on notice that the Tribunal thought he had submitted fraudulent documents and might disbelieve everything he said because of these. The second ground must be considered in this context and, therefore, must be rejected. In short, it was plain that every aspect of the applicant’s claims were in issue. The Tribunal was under no obligation to further assist the applicant on what answers to give.
Mr McNally attended the Tribunal hearing held on 10 April 2006. Mr McNally did not comment on the adequacy of the line of questions as referred to by Mr Karp at [26] above. At the end of that hearing, the Tribunal addressed Mr McNally as follows:
TM: Adviser, there have been a number of submissions, I look forward to reading these documents. Is there any addition points that you’d like to raise or is there any questions you’d like me to put to the applicant?
Adviser: No, I think you’ve covered – well, the purpose of the hearing is for you to cover the areas that you were concerned about. I will perhaps do a small sort of summary of the evidence as I saw it post-hearing, if that’s okay. There’s some more documents here which I will bring to your attention. I don’t think they’re particularly probative, but just in relation to the applicant’s activity as a chef, he’s running his own business. It’s through that business that he provides some of his support to the Awami League here and I have a bundle of business documents, including catering certificates and, you know, tax and related records of that business.
TM: Let’s get copies of those.
Adviser: I’ve also been asked to bring to your attention, although I’m sure the Tribunal is aware of it, but just in relation to the politics in Bangladesh generally, I’ll make some detailed submissions and post to you in a letter. But I’ve been given some newspapers here, which I know I’ve seen before and perhaps the Tribunal has, particularly rather gory photos of a bomb blast of 22 August 2004, bodies all over the place. I guess the point is that it’s to illustrate the violent nature of Bangladesh politics.
Well, why don’t you attach copies of those with your submission.
Adviser: I can do that, yes. In terms of evidence, what’s been painted is that the applicant’s family for a long time has been involved in the party, that’s, I guess, how he come to be specifically involved. He then undertook his own individual activities, which he claims in themselves but also bearing in mind he’s a member of that family, have raised his profile in Bangladesh politics. And then he’s continued activity here. In one area that you may wish to ask some questions, because it was hinted at before that it was a little bit interrupted, is whether – what would happen on return in terms of political activity. I don’t want to put it to you in a way that leads in any way, but what would happen given that it’s a continuous political activity until today.
A discussion about the applicant’s employment in Australia and the violence associated with some elements of politics in Bangladesh took place between the member and Mr McNally. Nothing was raised in respect of the political platform of the Awami League. The question immediately prior to the sequence record at [26] above was a clear signal of the significance of questions which followed:
Q164: Can you tell me in detail what the Chatra Awami League party platform was at the 2001 election which you participated in. Actually, no, sorry I’ll correct that. Can you tell me in detail about the Chatra Awami League party platform at the 2001 election.
Despite this, nothing was raised by Mr McNally afterwards or at the end of the hearing when invited.
Furthermore, Mr McNally’s letter of 5 June 2006 also did not mention the adequacy of the Tribunal’s questioning on the political platform issue. A significant element of the applicant’s claims involves his membership of the Awami League and its consequences. The main concern of the Tribunal was the credibility of the applicant’s claim to be a leader of the Awami League. On the material before this Court, there is nothing to suggest that the issue of the policies of the Awami League was raised at the conclusion of the hearing or in the post-hearing submissions. I am satisfied that this was dealt with fairly and that this ground of review cannot be sustained.
Conclusion
I am satisfied that neither of the grounds contained in the further amended application can be sustained and consequently the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 10 September 2007
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