SZDPF v Minister for Immigration - [2004] FMCA 1057

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDPF v MINISTER FOR IMMIGRATION

[2004] FMCA 1057

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – applicant a citizen of Bangladesh.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.414, 424, 424A, 475A

NAFF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62

Applicant:

SZDPF

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1488 of 2004

Delivered on:

21 December 2004

Delivered at:

Sydney South

Hearing dates:

10 & 21 December 2004

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Hammond

Counsel for the Respondent:

Mr Beech-Jones

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs in the sum of $4,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1488 of 2004

SZDPF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision made by the Refugee Review Tribunal handed down on 27 April 2004. The Refugee Review Tribunal affirmed a decision by the delegate of the Minister not to grant the Applicant a protection visa.
In his amended application filed in Court on 10 December 2004, the Applicant claims:
a)a writ of certiorari;
b)a writ of mandamus; and
c)an order for costs.
In that amended application, the Applicant relies on three grounds: first, the Tribunal by failing to put to the Applicant that it was going to draw an adverse inference against him for failing to proffer further corroborative evidence after the hearing and prior to the decision committed a breach of procedural fairness that amounted to a jurisdictional error; second, the Tribunal by making findings of fact, for which there was no evidence based on the country information, committed a jurisdictional error; third, the Tribunal failed to put adverse material to the Applicant as it should have done pursuant to s.424A(1) of the Act and thereby did not conduct a proper review pursuant to s.425 of the Act and the Tribunal thereby fell into jurisdictional error.
On the day of the hearing, the Applicant's counsel then sought to file a further handwritten amended application, in which he referred to an additional ground, that is the Tribunal, in its decision making process, made errors of fact. Those errors of fact went to jurisdiction and as such the Tribunal committed a jurisdictional error.
Now, whilst this was described as an amended application, it was in fact a supplementary application, as it was not intended to replace the earlier amended application, but to supplement it.

Background

The Applicant is a citizen of Bangladesh, who was born on 1 April 1969. He is now 35 years of age. He arrived in Australia from Brunei on 10 July 2002 on a temporary business visa. On 16 August 2002, he applied for a protection visa.
On 29 November 2002, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grand the Applicant a protection visa. On 23 December 2002 the Applicant sought a review of this decision from the Refugee Review Tribunal. The Refuge Review Tribunal heard the application on 27 August 2003 and handed down its decision on 27 April 2004. On 19 May 2004, the Applicant lodged his original application to this Court.
The Applicant claims that he has a fear of persecution for reasons of his political opinion. He said he was a supporter of one of the main political parties in Bangladesh, the Awami League. He campaigned for an Awami League candidate at the elections held in February 19991. His candidate was unsuccessful. The Applicant said he was arrested in March 1991 on fake charges. He remained in gaol for a number of months, but the case was quashed by the Magistrates Court.
The Applicant remained politically active, although he says that he was attacked from time to time by hoodlums who supported the BNP, the other main political party in Bangladesh.
The Applicant left Bangladesh in March 2001 to take a job in Brunei. Whilst he was away, on 1 October 2001, another election was held in Bangladesh. The coalition led by the BNP won by a landslide. The Applicant says that on 10 October 2001 a group of BNP supporters attacked his family home. They ransacked the house and beat his father and two brothers. The applicant says his family told him not to return to Bangladesh, as the BNP hooligans asked where he was. The Applicant remained in Brunei.
On 28 June 2002, he obtained a temporary business visa valid until

10 October 2002. He left Brunei and entered Australia on 10 July 2002.
Shortly before the Refugee Review Tribunal hearing, the Applicant's migration advisor forwarded to the Refugee Review Tribunal, a letter purporting to be the president of the Applicant's local branch of the BNP. That letter said that it certified that the Applicant was a reputed leader of the District Awami League Committee. It went on to say that he has undergone enormous political sufferings at the hands of the previous BNP Government:
At present his life will not be safe in Bangladesh. Any assistance extended to him to secure his life in Australia will be highly appreciated. I wish him well in Australia and would be pleased to provide a further reference.
On 26 August 2003 the Applicant's migration advisor provided a written submission to the Refugee Review Tribunal. On 27 August the Applicant attended the Refugee Review Tribunal with his migration advisor. He gave evidence with the aid of an interpreter. The Applicant told the Refugee Review Tribunal that he had not applied to extent his Brunei visa or applied for protection in that country. He said that Australia was his goal and, in any case, Brunei did not offer refugee status. The Applicant told the Refugee Review Tribunal that he would not be able to avoid harm by moving to another party of Bangladesh. He said that if he moved anywhere in Bangladesh, the BNP would find him and threaten him. He would not be safe anywhere.
The Refugee Review Tribunal noted that the Applicant had no corroborative evidence of the attack on his family home. When the delegate of the Minister refused his application for a protection visa, one reason was the absence of corroborative evidence.
On page 222 of the Court Book, the Tribunal had this to say:
The Tribunal reminded the Applicant that one of the reasons given by the delegate in November 2002, now more than nine months ago, was the absence of corroborative evidence. The Applicant must have been aware that the same issue would be raised by the Tribunal. For him now to say that he had the evidence but it was not available yet, casts further doubts on the existence of those events.

The Tribunal Decision

The Tribunal formed the decision of the delegate not to grant a protection visa. The Tribunal made it plain that the Tribunal did not find the Applicant to be a credible witness. Page 236 of the Court Book in the final full paragraph, the Tribunal said:
From the differences between his protection visa application, the statements made, the statutory declaration and the changes during his verbal evidence, the Tribunal finds the Applicant not a credible witness. It has weighed his evidence accordingly.
The decision was most critical of the Applicant's failure to provide corroborative evidence, which had been the case when the delegate refused the application. I refer to pages 237, 238 and 239 of the Court Book. At page 237, on the third full paragraph, the Tribunal said:
As he more than ample time to produce it for the hearing the Tribunal does not accept that any such evidence exists, which conclusion leads the Tribunal to question whether or not the experience of events asserted ever existed.
At page 238, the second full paragraph, the Tribunal said:
There was however no corroborative evidence to support the claim that he was vice president, which claim the Tribunal rejects.
In the next paragraph the Tribunal said:
Or that he left college for the reasons stated, a claim the Tribunal also rejects for want of supporting detail.
In the next full paragraph relating to the Applicant's claims to have been arrested:
There was no corroborative evidence before the Tribunal.
As I said the applicant claims that there was a failure to tell him that the Tribunal was going to find against him, that there was no evidence as to a finding of fact, and that the Tribunal failed to put adverse material to the Applicant.
The Applicant also submitted, through his counsel, that the Court should not follow a decision of the Full Court of the Family Court in NAMV and the Minister. The Applicant also relied on the decision of the High Court of Australia recently handed down in NAFF and the Minister for Immigration and Multicultural Affairs. That is cited as (2004) HCA 62 handed down on 8 December 2004.
I think it is important to make clear what it is that the decision in NAFF is authority for. I note that I have had this decision quoted to me in a number of cases since 8 December and I should make it clear that NAFF is not authority for every proposition that an Applicant wishes to advance.
The facts in NAFF are somewhat unusual although in my experience, I have seen one similar case over the last year. What happened in NAFF is set out in paragraph 11 of the Judgment of McHugh, Gummow, Callinan and Hayne JJ:
The parties agreed the proceedings before the Tribunal member on that day came to an end in the following way: the Tribunal member said "Given that there are some inconsistencies with regard to the dates of the detentions and the number of detentions, I will have to write to you about those". After that statement had been interpreted the Tribunal member said "So what I will do is write to you in the next couple of days and you will have 21 days in which to respond to my questions and to put any more information that you wish to the Tribunal".
In fact, contrary to the procedure indicated on 5 February 2002, the Tribunal member did not write putting any questions to the Appellant within a couple of days, or at all. On 25 February 2002, the Tribunal sent the appellant a letter saying that he had:
considered all the material relating to your case
and had:
made its decision and that the decision would be handed down on 19 March 2002.
It is quite clear that the Tribunal member had indicated to the Applicant, who became the Appellant, a particular course of action which was to be followed. It is also clear that for some reason, possibly an oversight, the Tribunal did not follow that procedure. It is not difficult, with respect, to see how the High Court came to the conclusion that it did. I refer to paragraph 32 of the Judgment where their Honours said:
It is possible that the reason why the Tribunal member failed to send the promised questions was that, on reflection, she thought that everything she required had in fact already been put before her, or that a resolution of the perceived inconsistencies in the appellant's statements was not crucial in deciding the review again him. If either of these explanations or any other explanation existed, it is to be expected that the Tribunal member would have advanced that either by a letter to the appellant or in her detailed reasons for decision. She did not do so. It is probable when the work load under which the Tribunal labours is borne in mind, that the Tribunal member did not send the promised questions because she had forgotten or overlooked the fact that she had made the promise to send them. Her failure to give any indication otherwise suggested that her original impression that the review process was incomplete had not altered on reflection and was soundly based. It would not be completed until the steps which she had thought could remedy its defects had been carried out. The failure to complete the review process was a failure to comply with the duty imposed by s 404 (1) to conduct the review and the duty under s 425 (1) to hear from the Appellant.
In my view, the decision in NAFF of 2002 and the Minister for Immigration does not assist the Applicant. The facts of the decision of the Tribunal before me contain a significant difference. This is not a case where at the conclusion of the hearing the Tribunal member offered the Applicant a chance to provide further material, being the corroborative material, which the Tribunal had said was lacking from the Applicant's case.
The case before me can therefore be distinguished on its facts from the situation in NAFF 2002. In my view counsel for the Applicant has perhaps misunderstood the comments made by the Tribunal. Whilst there was a delay of some months between the Tribunal hearing in August of 2003 and the decision being handed down in April 2004 there was no invitation offered by the Tribunal to the Applicant to provide further corroborative evidence.
What there was in fact was a serious criticism by the Tribunal member to the effect that the original decision maker, the delegate of the Minister, had commented on the absence of corroborative material and at the hearing before the Tribunal some nine months later that material was still absent.
The Tribunal was not saying the Tribunal will give the Applicant a further opportunity to produce corroborative material. The Tribunal was saying that the Applicant had been put on notice that the original reason for the decision was an absence of corroboration and had done nothing in the intervening time to produce that material. That is the point which the applicant seems to have misunderstood.
Turning to the other grounds raised by counsel for the Applicant I note that the Applicant criticises the Tribunal for making findings of fact for which there was no evidence based on the country information and that that was therefore a jurisdictional error. I am referred to page 239 of the Court book and asked to compare that to pages 232 and 234.
Page 232 there are quotes from country information, including a reference to
a routine use of actual of threatened violence to achieve political ends. Violence is a common feature during rallies, demonstrations and general strikes.
There is a reference to procedures under the Special Powers Act exercised by the Courts and by police. Page 234 bear references to the country information relating to the holding of valid passports and a policy of the Government to make acquiring a passport easy, there being little incentive to bribe officials to issue a passport.
There is also reference to arrest warrants.
The standard procedure for arrest was for the police to seek permission from a Court to issue an arrest warrant. The police are required to produce the arrest warrant. They do not leave warrants anywhere because without them they cannot legally effect arrests. People with arrest warrants on them are not permitted to leave the country. However, the border with India is porous and immigration officials at international airports are bribed.
There is a reference to a statement by a Bangladeshi journalist in Montreal of all places that arrest warrants can be obtained by bribery and that copies of arrest warrants were not generally given to an accused person, it could be obtained through their lawyer who provides a copy to the accused.
But on page 235 of the Court book there is a reference to a professor specialising in Bangladeshi affairs who says that
under Bangladeshi law copies of arrest warrants must be given to the accused persons. But in practice these persons are usually not provided with copies.
I am asked to compare that with the statements about provisions of copies of warrants or lawyers papers at page 239 of the Court book.
To my mind there is no discrepancy between the statements. The Tribunal agreed that criminal acts by political party supporters are common as a criminal act generally. In October 2001, at a time I might point out when the Applicant was out of Bangladesh, there was likely to have been considerable unrest for a variety of reasons.
The Tribunal also looked at whether the Applicant had any corroborative evidence, such as statements of complaint, police reports, Court or lawyer papers or release documents which could reasonably be expected to be available, but the applicant did not have any of them.
To my mind that does not necessarily contradict what was quoted from the Bangladeshi journalist in Montreal or the British professors specialising in the law of Bangladesh about whether or not arrest warrants are provided to defendants or whether they are made available to defendants' lawyers. In any event, arrest warrants are only one form of paperwork relating to the activities about which the Applicant complains. I am not of the view that there is any contradiction.
I am also asked to compare page 238 of the Court book with pages 234 and 238. I am not of the view that any discrepancy appears and in fact I have difficulty in working out exactly what the Applicant's counsel means in respect of that submission. I am not satisfied that the Tribunal has made a finding of fact for which there was no evidence which therefore would not indicate a jurisdictional error has been committed.
It is also put as the third ground that the Tribunal failed to put adverse material to the applicant as it should have done pursuant to s.424A of the Migration Act. Certainly subsection 1 says that the Tribunal must give to the Applicant in the way that Tribunal considers appropriate in the circumstances particulars of any information the Tribunal considers would be the reasonable part of the reason for affirming the decision that is under review and ensure as far as is reasonably practicable that the Applicant understands why it is relevant to the review and invite the Applicant to comment on it.
Now, it is quite clear that that can be done during a hearing. It is also quite clear from sub-s.3 that that section does not apply to information that is not specifically about the Applicant or another person and is just about a class of persons of which the Applicant or other person is a member or information that the applicant gave for the purpose of the application or that is non-disclosable information.
In my view the only information, apart from the material specifically put by the applicant, upon which the Tribunal relied is the country information, which is general information and is not about the Applicant or another specific person. It would follow, therefore, that there is no breach of s.424A of the Migration Act.
It is also put that the Tribunal did not conduct a proper review pursuant to s.425 of the Act. Section 425 seems also to be a subject of some misunderstanding. Subsection 1 says:
The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Subsection 2, however, says:
Subsection 1 does not apply if
(a)the Tribunal considers that it should decide the review in the Applicant's favour on the basis of the material before it; or
(b)the Applicant consents to the Tribunal deciding the review without the Applicant appearing before it; or
(c)subsection 424C (i) or (ii) applies to the Applicant.
Well, subsection 424C(i) or (ii) does not apply. There was no consent and the Tribunal was not of a view that it could decide the review in the Applicant's favour on the basis of the material before it.
The Tribunal did invite the Applicant to appear before the Tribunal at a hearing. The Applicant did attend accompanied by his migration adviser who provided material by way of written submission and a copy of a letter for the hearing. These matters were considered by the Tribunal. The Applicant did give evidence to the Tribunal with the aid of the interpreter. In my view there is no basis for a finding that the Tribunal did not comply with the requirements of s.425 of the Act.

I turn again to the additional ground and this says:
The Tribunal in its decision making process made errors of fact. Those errors of fact went to jurisdiction and as such the Tribunal committed a jurisdictional error.
Now, there is a reference to a number of errors of fact and what is submitted is that those errors of fact which would not normally constitute jurisdictional error of themselves must be considered cumulatively so that there was a combined error of fact of such magnitude that it constituted a misconception of the applicant's case and a failure by the Tribunal to ask itself the correct questions.
I am not of the view that ground has been made out. Whilst it could well happen that a Tribunal could misconceive the evidence to such an extent that the entire process proceeds on a wrong premise I am not satisfied that there is anything in the Court book which would indicate that the Tribunal failed to understand the basic thrust of the Applicant's case.
The decision of NAFF and the Minister sets out at paragraphs 22, 23 and 24 the nature of proceedings for the Tribunal. Included in this is a reference to s.414 of the Migration Act which the Applicant's counsel mentioned in his supplementary submission which was forwarded to my Associate last Friday. Paragraph 22 contains a general introduction saying that the legislation provided for an inquisitorial merits-based review by an independent Tribunal. As might be expected in view of the importance of the proceedings, particularly for persons in the position of the appellant, the legislation was detailed and it provided for procedures of some solemnity.
Paragraph 23 goes on to say:
Once an Applicant had made a valid application for review of a delegate's decision the Act imposed on the Tribunal a duty to review that decision.
The reference there is to s.414 of subsection 1. Section 414(1) says:
Subject to subsection 2 if a valid application is made under s 412 for review of an RRT reviewable decision the Tribunal must review the decision.
The High Court goes on to refer to the obligation or to the power of the Tribunal to exercise all the powers and discretions conferred by the Act on the delegate and that is provided in s.415. There is an obligation to pursue the objective of providing mechanism and review that is fair, just, economical, in form and quick which is set out in s.420.
The reference is also made to provisions in s.423 and 424 by which the Applicant for review might supply and the Tribunal might seek information. Section 423 provides that in subsection 1:
An Applicant for review by the Tribunal may give the Registrar:
(a)a statutory declaration in relation to any matter of fact that the applicant wishes the Tribunal to consider; and
(b)written arguments relating to the issues arising in relation to the decision under review.
I would comment that that is exactly what the Applicant in this case did through his migration agent. Section 424 empowers the Tribunal to seek additional information saying that in subsection 1:
In conducting the review the Tribunal may get any information that it considers relevant, however, if the Tribunal gets such information the Tribunal must have regard to that information in making a decision on the review.
In my view, that is certainly made clear by the Tribunal relying on the country information which is referred to in the decision. The High Court goes on to say that s.425 subsection 1 compelled the Tribunal to invite the Applicant to appear before it and detailed provision was made about the terms of that invitation. Of course, s.425 certainly requires the Tribunal to invite the Applicant to appear but sub-section 2 provides that sub-section 1 does not apply if the Tribunal considers that it should decide the review in the Applicant's favour on the basis of the material before it.
In other words, if when conducting the review required of it the Tribunal is satisfied on the papers that it is in a position where it can come out with a decision that is favourable to the Applicant, the Tribunal has the power to make that decision in the Applicant's favour without the necessity of calling the Applicant. The Tribunal cannot however do the reverse. The situation is in this case that the Tribunal was not of the view that the evidence that it had before it would allow it to make a decision favourable to the Applicant so it took the decision of calling the Applicant and giving the Applicant the opportunity to give evidence and provide evidence, and that was done.
At the end of the proceedings before the Court it is clear that the Tribunal was not satisfied as to the credibility of the Applicant's evidence. The Tribunal was critical of the Applicant's failure to provide corroborative evidence noting that the Applicant had been made aware by the decision of the Delegate to the Minister months before that corroborative evidence was required and that the Applicant had failed to bring any corroborative evidence before the Tribunal. It was on that basis that the Tribunal affirmed the decision of the Delegate and the Minister. It was not, as I have said before, an invitation to the Applicant to provide that information at a later date. The Tribunal was saying that if the Applicant had that information then the Applicant should have provided it at the date of the hearing and the Applicant did not have that information to the extent that the Tribunal formed a doubt, as it was entitled to do, that that information would ever be forthcoming.
In my view, the Tribunal has complied with its responsibilities under the appropriate sections of the Migration Act. In my view the fact situation in this case is distinguishable from the fact situation in Applicant NAFF of 2002 and the Minister for Immigration, and in my view there is no reviewable error.
The application is dismissed.
This is a matter where the Applicant has been unsuccessful, costs follow the event. In my view, it is appropriate for an order for costs to be made.
Well, this is certainly a case where the matter was protracted. There was a need to provide additional submissions in answer to the submissions put by the Respondent's counsel. There was a need for the matter to come back on a further day and I note that it is surprising that counsel for the Applicant has not appeared and no explanation has been given. In my view, the order for costs that is sought is within the range that the Court would award subject to Schedule 1 of the Federal Magistrates Court Rules 2001.
I require a transcript of my reasons for this decision. The application is otherwise removed from the list of cases awaiting finalisation.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 24 January 2004