SZDDS v Minister for Immigration
[2006] FMCA 598
•27 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDDS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 598 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of Bangladesh claiming fear of persecution because of the political opinion of her husband, because of Muslim religion and because of being a member of a particular social group unable to obtain adequate state protection – credibility – relocation. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 441A, 474
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW & Ors [2004] FCAFC 264; (2004) 84 ALD 325
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72; (2005) 222 ALR 411
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Perampalam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
VBAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965
| Applicant: | SZDDS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 920 of 2004 |
| Delivered on: | 27 April 2006 |
| Delivered at: | Sydney |
| Hearing date: | 30 March 2006 |
| Date of last submission: | 3 April 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Ms Pepper |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Leave to join Refugee Review Tribunal as a Respondent.
That the Application is dismissed.
That the Applicant is to pay the First Respondent’s costs fixed in the sum of $7,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 920 of 2004
| SZDDS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 27th February 2004 after a hearing that took place on 10th February 2003. The Tribunal handed down its decision on 18th March 2004, over a year later.
The decision of the Tribunal was to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant a protection visa to the Applicant.
Background
The Applicant is a citizen of Bangladesh who arrived in Australia on 15th February 2001. On 14th March 2001 she applied for a protection (class XA) visa, which was refused on 28th May 2001. On 20th June 2001 the Applicant sought a review of that decision from the Refugee Review Tribunal.
The Applicant attended a hearing of the Tribunal on 10th February 2003 and gave oral evidence. She was accompanied by her migration adviser.
The Applicant’s adviser had forwarded a written submission to the Tribunal on 20th January 2003. That submission included a statement from the Applicant in which she departed from her previous statements to the Department of Immigration and Multicultural and Indigenous Affairs and to the Tribunal.
The Applicant blamed her previous adviser, or rather the adviser’s
19 year old daughter, for submitting an incorrect statement in order to meet the deadline before her visa ran out on 15th March 2001.
The adviser was overseas at the time.
The Applicant claimed that her husband and his family had mistreated her, including beating her up. Eventually the Applicant left her husband. The Applicant claimed to have formed a relationship with an officer of the Australian High Commission in Dhaka, who took advantage of her. The applicant said that she left Bangladesh for Australia.
The Applicant stated that her first migration adviser “misguided’ her in the account she gave when she lodged her application for a protection visa. The Applicant said that her first adviser tried to persuade her to return to Bangladesh. She claimed that both her husband and the man from the Australian High Commission were trying to force her to return to Bangladesh.
The Applicant claimed in her statement that she could not return to Bangladesh she would be seen as a “fallen woman” and would face persecution.
The Tribunal wrote to the Applicant on 10th February 2003, after the hearing, putting to her that there were major differences between her initial application for a protection visa made in March 2001, the claim based on domestic violence received on 20th January 2003, and applications made by the Applicant and her husband for visitors’ visas between November 2000 and January 2001. The Applicant was given until 6th March 2003 to provide a written reply.
The letter also contained this advice:
“As explained at the hearing, this information is relevant because it casts doubts on your credibility.”
The letter also said that the information upon which the Applicant’s were sought would, subject to those comments, be the reason, or part of the reason, for deciding that she was not entitled to a Protection Visa.
The Applicant’s adviser provided a written submission in reply on
28th February 2003.
Findings and Reasons
The Tribunal’s findings and reasons are set out on pages 176 to 188 of the Court Book. The Tribunal found that the Applicant was a citizen of Bangladesh.
The Tribunal set out three Convention grounds upon which the Applicant’s case was assessed:
i)Persecution for reasons of political opinion, namely threats to the applicant from her husband and his political allies in the BNP.
ii)Persecution for reasons of religion, because of her failure to act as expected by a strict Muslim family of a wife and mother.
iii)Related to ground (ii), as a member of a particular social group, the Applicant was subjected to domestic violence and was unable to obtain adequate protection from the State from that violence.
The Tribunal defined the particular social group as ‘middle class Muslim separated women with children in Bangladesh who are widely known to have had an extra marital affair.’
The Tribunal took an adverse view of the Applicant’s credibility, especially in respect of the admitted false claims. The tribunal gave several for the adverse findings on credibility, including:
“She was invited by the delegate to an interview to discuss her claims. She did not attend that interview, which would have given her the opportunity to correct her false claims. She gave no reason why she did not attend.
In her application for review, by which time she was using another adviser, she expanded on her initial (false) claims. There was no evidence that she was coerced by that adviser to persist with false claims, which by then she had considerably expanded upon and added to.”[1]
[1] See Court Book at page 180.
The Tribunal then set out, on pages 180 through to 182, various reasons why the Tribunal doubted the Applicant’s credibility, leading to the finding at page 182:
“From the extensive evidence before it, the Tribunal can only find that the applicant is not a credible witness.”
The Tribunal went on to consider other aspects of the Applicant’s claim, and made a finding that she would be able to relocate elsewhere in Bangladesh to avoid harm and that relocation was reasonable for her.
The Tribunal affirmed the decision not to grant a protection visa.
Application for Judicial Review
In her Amended Application under s.39B of the Judiciary Act 1903 (Cth) that was filed in court on the day of the hearing, the Applicant seeks writs of certiorari, mandamus and prohibition on three grounds.
The grounds for review upon which the Applicant relies are:
i)Jurisdictional error constituted by failure to inform the applicant in writing as is required by ss.424A and 441 (sic)[2] of the Migration Act of particulars of information that was a part of the reason for affirming the decision under review.
ii)Denial of procedural fairness.
iii)Jurisdictional error in the consideration of the issue of internal relocation in failing to consider whether relocation was reasonable in all the circumstances.
[2] This is clearly a typing error and obviously it was intended to refer to s. 441A.
The Applicant’s submissions
The Applicant’s counsel, Mr Karp, referred to various passages from the transcript of the hearing before the Tribunal. In considering the Tribunal’s findings on credit, he submitted that certain facts upon which the Tribunal’s findings on credit depended were not disclosed to the Applicant in writing, contrary to ss.424A(2) and 441A. The word “must” in s.424A (1) is one of absolute imperative (SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162).
The Applicant’s contention is that the following facts were not disclosed to her in the manner required by s. 424A:
b)The Applicant made certain false claims in her original application (Court Book 180).
c)There is no evidence (meaning any indication on the protection visa application form) that she claimed a particular migration agent and her daughter assisted her in making those claims (Court Book 180).
d)The abandoned claim was not consistent with the record of an interview with the applicant and her husband in the Australian High Commission at Dhaka (Court Book 182).
The Applicant submits that there was no written disclosure of that information all of which the Tribunal utilised in finding that the Applicant lacked credit, which was central to the rejection of her claims. The Applicant relies on the decision of Allsop J in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 2, where his Honour says at [215]:
In my view, in the light of SAAP, in circumstances where one is faced with a decision of the Tribunal with reasons and the complaint is a contravention of s.424A(1), the question to ask, by reference to the reasons of the Tribunal in the context in which one finds them (as revealing what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is, any part) of the reason for affirming the decision…
The Applicant submits that the findings on credit, made partially in breach of s.424A, permeated the decision and affected the Tribunal’s assessment of uncorroborated claims.
The Applicant also submits that there is a breach of procedural fairness in the Tribunal’s failure to disclose unspecified country information on which it relied that Bangladesh society is tolerant and the Applicant would not be persecuted in Bangladesh as a result of that infidelity. The Applicant submits that this is a breach of the rules of procedural fairness (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW & Ors [2004] FCAFC 264; Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72; (2005) 222 ALR 411).
In addition, the Applicant submits that there are errors in the Tribunal’s treatment of the issue as to whether the applicant could safely relocate within Bangladesh. It is trite law that relocation must be reasonable in all the circumstances (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442; Perampalam v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 274). The Tribunal noted that the applicant was “unfettered by her children” (Court Book 187), but the Applicant submits that it would be unreasonable for a mother not to want to see her children and that there was a risk that she could take unacceptable risks in attempting to do so.
The Respondent’s Submissions
For the Respondent Minister, Ms Pepper of counsel submits that the issue of the false claims made by the Applicant in her original application was the subject of two s.424A letters to the Applicant (Court Book 112 and 121) and the Applicant replied both orally at the hearing and in writing afterwards (Court Book 123-125). In any event, this information came from the Applicant herself (Court Book 94).
The information therefore falls within the exception contained in s.424A (3) (b).
Similarly, the Respondent submits that the fact that there was no evidence that the migration agent and her daughter assisted the Applicant in making those false claims falls within the exception in s.424A(3)(b). The information about the source of the false claims came from the Applicant herself.
Third, the Respondent submits that the abandoned claim being inconsistent with the record of the interview was the subject of a s.424A letter by the Tribunal and, in any event, was provided to the Tribunal by the Applicant.
As to there having been a breach of the requirements of common law procedural fairness, the Respondent submits that the gravamen of the independent country information was discussed with the Applicant by the Tribunal Member at the hearing. Further, the Respondent submits that it is not clear what “practical injustice” the Applicant can claim to have suffered as a result of any failure to apply the principles of common law natural justice (see Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1, per Gleeson CJ at [37]).
The Respondent submits also that, even if there is any error in the Tribunal’s earlier reasons, the decision in relation to relocation provides a complete alternate basis for the decision (see VBAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965). The Respondent submits that the relocation finding cannot be impugned, as the suggestion that the Applicant might put herself at risk by wanting to see her children is mere supposition and did not come from the Applicant herself.
Conclusions
I consider that the Tribunal decision reflects a desire by the Tribunal to be fair to the Applicant by considering every point in her favour. I am satisfied that the findings adverse to the Applicant’s credibility do not breach s.424A of the Migration Act, in that the material was either dealt with in the s.424a letters to the applicant or reflect no more than a conclusion reached as a result of consideration of information supplied by the Applicant herself. In the latter case, the matters clearly attract the protection of s.424A (3) (b).
I am not satisfied that any breach of common law procedural fairness has been established. In my view, the time taken by the Tribunal to arrive at the decision is justified by the procedural steps taken to ensure that the Applicant was treated fairly.
In any event, I accept the Respondent’s submission that any error by the Tribunal, and I do not consider that there has been any error, will not avail the Applicant, as the Tribunal’s finding on the reasonableness of relocation within Bangladesh is free from error. The relocation finding, set out at Court Book 187, shows a correct appreciation of the principles to be considered, and I am satisfied that there is ample evidence from which the Tribunal was entitled to find that the harm, if nay, to the Applicant was localised and relocation elsewhere in Bangladesh was reasonable.
The submission that the Applicant might somehow be tempted to take an unacceptable risk in attempting to see her children is fanciful, to say the least. There is no error in the Tribunal’s finding on relocation.
For the above reasons, I am satisfied that there is no reviewable error and the Tribunal’s decision is a privative clause decision as defined in s.474 of the Migration Act. The application is dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 26 April 2006
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