SZCIJ v Minister for Immigration

[2005] FMCA 1829

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCIJ v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1829

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – procedural fairness – adverse determinative information not put to the applicant at a hearing conducted by the RRT – asserted breach of the general law fair hearing rule – general law fair hearing rule excluded by s.422B of the Migration Act – s.424A covers the field in relation to the disclosure obligations of the RRT at all stages of the review process

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

Minister for Immigration v NAMW [2004] FCAFC 264
Moradian v Minister for Immigration [2004] FCA 1590
NAQF vMinister for Immigration (2003) 130 FCR 456
SAAP v Minister for Immigration (2005) 215 ALR 162
SZBDF v Minister for Immigration [2005] FCA 1493
SZBFD v Minister for Immigration [2005] FMCA 139
WAJR v Minister for Immigration [2004] FCA 106
Wu vMinister for Immigration (2003) 133 FCR 221

Applicant: SZCIJ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent REFUGEE REVIEW TRIBUNAL

File Number: SYG2911 of 2003

Judgment of: Driver FM

Hearing date: 9 December 2005

Delivered at: Sydney

Delivered on: 9 December 2005

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Counsel for the Respondent: Mr J Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Refugee Review Tribunal be joined as the second respondent to the proceedings.

2. The application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2911 of 2003

SZCIJ

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 11 December 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  I adopt as background for the purposes of this judgment paragraphs three and four of the Minister's written submissions filed on 6 December 2005:

   The applicant, a citizen of Bangladesh, claimed she was from a conservative Muslim family and that her father was a fanatic Muslim and a Mullah.  The applicant became a leader of a progressive women’s organisation whilst at university,[1] but following the completion of her education, she was forced by her family into an arranged marriage with a businessman who was also a member of the Bangladesh National Party (“BNP”). She claimed that her husband sexually and physically abused her[2] and that she could not leave the marriage because he was rich and had links with “terrorists and police” such that it was impossible for her to go against him.[3] 

   [1] Court book (“CB”) 28, 52

   [2] CB 28-29, 52

   [3] CB 29.2

   The RRT found that:

   i)notwithstanding the applicant’s claims that she came from a conservative Muslim family which was “considered one of the poorest families” they were willing to give her both an undergraduate and post graduate education in a “free thinking and free moving” environment;[4]

   ii)it rejected that the applicant’s father was a Mullah because she raised the claim for the first time at the RRT hearing;[5]

   iii)it rejected that she was a “leading activist” in women’s issues;[6] 

   iv)the applicant was not forced to marry as a child and noted country information which indicated that the practice of paying a dowry was a traditional aspect of marriage in Bangladesh;[7]

   v)it rejected that her family had the profile of a family who were “fanatic Muslim;”[8]

   vi)on the basis of the lack of evidence of her mistreatment from her husband and her failure to seek refuge from her husband, it made adverse inferences of her subjective fear of harm;[9]

   vii)it was not satisfied about the extent of her claimed abuse from her husband or that it was serious harm amounting to persecution for a Convention reason;[10]

   viii)it would be reasonable for her to relocate;[11]

   ix)the applicant would be able to seek and receive state protection if her husband or anyone else sought to inflict serious harm on her;[12]

   [4] CB 93.2

   [5] CB 93.6

   [6] CB 94.3

   [7] CB 95.9-16.3

   [8] CB 96.4-96.8

   [9] CB 97.7

   [10] CB 99.2

   [11] CB 102.5, 103.3

   [12] CB 103.1

2. This matter proceeded on the basis of an amended application filed on 28 April 2004. 

3. Consistent with the decision of the High Court in SAAP v Minister for Immigration (2005) 215 ALR 162, it is appropriate that the RRT be joined as the second respondent to the application and I will so order.

4. The application sets out two grounds of review.  Only the second ground is pressed.  The background is that the RRT made findings on a number of matters which it did not put to the applicant.  Accordingly, the applicant is said not to have had an opportunity to comment on those matters.  Those matters are, first, that the RRT found that there was not anything to prevent the applicant from returning to her family.[13]  Secondly, that the RRT found that if the applicant was abused as she claims she would have been fully aware of her rights in Bangladesh and know how to seek redress from the appropriate authorities.[14]

   [13] CB  97.5

   [14] CB 97.9

5. The asserted failure of the RRT to put these matters to the applicant and to give her an opportunity to comment is said to constitute a denial of procedural fairness and hence jurisdictional error. During the course of argument today, I confirmed with Mr Zipser for the applicant that the case is put on the basis of a denial of procedural fairness under the general law. There is no asserted breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”).

6. As Mr Zipser noted in his written submissions filed on 1 December 2005 and also in his oral submissions, the applicant faces an initial evidentiary hurdle.  The applicant seeks to deal with that evidentiary hurdle in two ways.  The first is by introducing the affidavit evidence of Ashadul Haque, a friend of the applicant.  I gave leave for Mr Haque's affidavit to be filed in court and I received it into evidence.  That affidavit establishes to my satisfaction that a tape of the hearing conducted by the RRT is not available because the sound recording was apparently defective.  In the circumstances, it is not possible for the applicant to introduce a transcript of the hearing conducted by the RRT.

7. Mr Zipser in these circumstances invites me to infer from the record of the RRT decision that the matters complained of were not put to the applicant at the oral hearing conducted.  Ordinarily, the Court should not draw such an inference.  Mr Zipser submits that this case presents an exception.  Mr Zipser drew my attention to a similar circumstance where an exception was made in Minister for Immigration v NAMW [2004] FCAFC 264. I also note that the decision of the presiding member in this case sets out extensively under the heading “Claims made at the hearing” the discussion that occurred between the presiding member and the applicant at that time.[15]  It does not appear from that recitation of the discussion that the particular matters complained of were put to the applicant.

   [15] CB 86

8. Mr Smith, for the Minister, drew my attention to page 50 of the court book, which is a “Hearing information form” that establishes that the hearing ran for one hour and fifteen minutes.  I accept that the matters set out by the presiding member under the heading of “Claims made at the hearing”, at pages 86 to 89 of the court book, could not include the entirety of what was discussed at the hearing.

9. Nevertheless, it is open to me to find that the matters dealt with by the presiding member of which the applicant complains were not raised with her.[16]  They are important matters.  There was no need for the presiding member to put in his reasons inconsequential discussions at the hearing, but the presiding member has gone to considerable trouble to include in his reasons those matters which were discussed that he apparently regarded as of some significance.  In my view, if the matters the subject of this application had been discussed it is extremely likely that the presiding member would have referred to them. 

   [16] CB 97

10. Mr Smith invited me to draw an inference, from the failure of the applicant to give affidavit evidence of what occurred at the hearing, that her evidence would not have assisted her.  I accept that submission but in my view it does not advance the position any further.  There are many reasons why the applicant's evidence may not have assisted her.  She may simply not recall the detail of what was and what was not discussed at the hearing.  On the basis of the available evidence, I find that the matters dealt with by the RRT, the subject of ground two in the judicial review application, were not raised with the applicant at the oral hearing conducted by the RRT. 

11. The applicant's submissions then deal with whether the failure to raise with the applicant those matters at the oral hearing constituted a breach of the fair hearing rule under the general law. There is, however, a preliminary question of whether the fair hearing rule under the general law has any operation following the commencement of s.422B of the Migration Act. It is not in dispute that the section commenced operation before the relevant review application was made to the RRT. The decisions of the Federal Court on this point are not consistent. Until today I had followed the decisions of the Federal Court in WAJR v Minister for Immigration [2004] FCA 106 and Moradian v Minister for Immigration [2004] FCA 1590. The former decision is binding upon this Court as a decision on appeal from this Court. Until today, I had taken the view that WAJR should be followed in preference to inconsistent decisions of single judges of the Federal Court which were not binding on the basis that they were either not on appeal from this Court, or represented merely obiter comments. 

12. However Mr Smith has drawn my attention today to a decision of which I was not previously aware.  That is the decision of Branson J in SZBDF v Minister for Immigration [2005] FCA 1493. Her Honour, in that judgment, which is binding on me as an appeal from this Court, reviewed the relevant authorities relating to the operation of s.422B.[17]  Her Honour concluded at paragraph 17 of her judgment that the decision of Hely J in Wu vMinister for Immigration [2003] 133 FCR 221 and Lindgren J in NAQF vMinister for Immigration [2003] 130 FCR 456 should be preferred to the decisions in WAJR and Moradian. Perhaps, more importantly, at paragraph 18 Her Honour said this:

    As s 424A deals with the obligation of the Tribunal to provide particulars of information to an applicant, there is no scope for a wider obligation to provide particulars of information to be implied into the Tribunal’s review process.

    [17] See paragraphs 12-17

13. In SZBFD v Minister for Immigration [2005] FMCA 139 from paragraph 3 through to paragraph 6, I dealt with the operation of s.422B and adopted the reasoning of French J in WAJR.  In my view, having regard to the more recent and thoroughly reasoned decision of Branson J in SZBDF, that course is no longer open to me.  Judicial comity and the principle of stare decisis require that I should follow her Honour's judgment. Furthermore, Her Honour's judgment precludes me from continuing to follow my interpretation of the obligations imported by s.425 of the Migration Act which I dealt with in paragraph 7 through to paragraph 11 of my judgment in SZBFD. 

14. It is clear from paragraph 18 of Her Honour's judgment that s.424A should be taken as covering the field in relation to information required to be disclosed by the RRT to an applicant at any stage of the review process. I further note that Her Honour's reasoning is consistent with the approach taken by the High Court in SAAP where the Court found s.424A to be the centrepiece of the statutory guarantee of procedural fairness in the review process.

15. It follows and I find that the general law fair hearing rule does not apply in the circumstances of this case and hence the application before me must fail.  The RRT was not legally required to disclose to the applicant the matters set out on page 97.5 to 97.9 of the court book.  That of course does not mean that the RRT should not disclose such matters.  As a matter of good administration, where an oral hearing is conducted, it is in my view highly desirable that decision-makers disclose to applicants the essential and significant issues on which the case will turn, so as to give applicants the best opportunity to take advantage of the oral hearing. 

16. Nevertheless, having regard to the decision in SZBDF I must dismiss the application and I will so order.

17. Costs should follow the event.  This was a case of at least average complexity, and a costs order of $5,000 is called for.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  20 December 2005