SZDRB v Minister for Immigration
[2005] FMCA 10
•29 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDRB v MINISTER FOR IMMIGRATION | [2005] FMCA 10 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.56-58, 425, 474
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), Rule 13.03A(d)
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1994) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238
NAUV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 124
Re Minister for Immigration & Multicultural Affairs; Ex parte P T (“Ex parte PT”) (2001) 178 ALR 497
Ridge v Baldwin [1964] AC 40
Local Government Board v Arlidge [1915] AC 120
Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487
Chen v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591
Liu v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 541
Wakim v Mathiew Pty Ltd [2002] NSWSC 405
Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140
NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121
R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212
Minister for Immigration & Multicultural Affairs v Rajamanikkam & Anor (2002) 210 CLR 222
Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 203 ALR 112
SWCB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1178
R v Moodie; Ex parte Mithen (1977) 17 ALR 219
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Twist v Randwick Municipal Council (1976) 136 CLR 106
| Applicant: | SZDRB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1569 of 2004 |
| Delivered on: | 29 April 2005 |
| Delivered at: | Sydney |
| Hearing dates: | 21 December 2004 and 7 February 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Counsel for the Applicant: | Mr R A Slattery |
| Counsel for the Respondent: | Ms R Henderson |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1569 of 2004
| SZDRB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for review of the decision of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the delegate”) handed down on 8 January 2002 to refuse to grant the applicant a protection (Class XA) visa.
On 20 October 2003 the applicant filed an application for review with the Refugee Review Tribunal (“the Tribunal”). On 17 May 2004 the Tribunal found that it did not have jurisdiction to review the decision to grant the applicant a protection visa. The application for review was received after the allowable time period had expired and there was no provision for extension of time. The Tribunal held that as the review application was received by the Tribunal outside the mandatory time limit it was not a valid application and the Tribunal had no jurisdiction to review the delegate’s decision.
On 26 May 2004 a new application was filed in the Federal Magistrates Court seeking a review of the delegate’s decision.
Background
In a statutory declaration filed with the applicant’s application for a protection visa (Court Book pp.26-30) (“CB”), the applicant stated he was born on 2 March 1966 in Shayampur, Dhaka, Bangladesh. He stated he completed his secondary education (SSC) in 1993 at Laxmi Narayan Cotton Mills High School, Narayanganj and Higher Secondary (HSC) in 1995 at Tolaram College, Narayanganj in Dhaka, Bangladesh. The applicant also claimed to have completed his graduation from Tolaram College to National University in 2000. He claimed he was attracted to the political ideology of the Bangladesh Awami League and joined the student wing (known as the Chattra League) in 1992. The applicant claimed he was actively involved in student politics during his whole college education (from 1993 to 2001) at Narayanganj, popularly known as a major political platform in establishing student and human rights in the Greater Dhaka District.
The applicant claimed he became the organising secretary of the Chattra League in the Tolaram College branch through a regular party convention. He later held the position of vice president in a branch of the Awami League in Narayanganj. The applicant listed a series of incidents between rival organisations and noted the severe hostility in Dhaka from the rival Bangladesh National Party (“BNP”) terrorists. He claimed local senior BNP leaders had taken the decision to kill him at any cost and because of these hostilities and to avoid persecution and death, the applicant’s family decided to send him abroad. A relative obtained a visa from the Australian High Commission and the applicant arrived in Sydney on 29 September 2001.
The delegate’s findings and reasons
On 8 January 2002 the delegate advised the applicant that his application for the grant of a protection visa was refused because he did not meet the criteria and provided the applicant with the following reasons:
“3.4Reasons
3.4.1I accept that the claimant may have been a member of the Awami League through its youth wing. I also accept that he might have experienced difficulty with some members of the BNP. I do not, however, accept that he was charged with murder in connection with the killing of a Chattra Dal member. I note that he stated that several charges including murder was lodged against him in early 2000. However, prior to his departure, he was able to obtain a passport. I do not accept that a person facing a serious charge like murder would have been allowed to obtain a passport and leave the country legally.
3.4.2I accept that the claimant might have had conflicts with members of the opposition. According to the US State Department Report on Human Rights Practises, political violence is pervasive in Bangladesh. However, most violent incidents occur during elections or strikes organised by a political party. The claimant may still remain committed to his political beliefs without resorting to violent activities or being involved in actions which may provoke violence. The Awami League is a legal party and is freely operating. The claimant is therefore not in danger of being persecuted on the basis of his membership to the Awami League or Chattra League alone. He may also avoid being harmed by rival groups by not resorting to provocative acts. I therefore find the claimant not to be in danger of being persecuted for his political opinion.
3.4.3During the last elections, the Awami League won about 60 seats. This indicates that it still commands respect and is influential in several areas. The US State Department Report states that citizens are generally able to move freely within the country. This means that the claimant can relocate to other areas in Bangladesh, specially in those places where the Awami League enjoys support.” (CB p.47)
The delegate’s finding was that the applicant did not have a real chance of Convention based persecution if he returned to Bangladesh and that his fear of persecution on return was consequently not well founded.
Application for review of the delegate’s decision
On 26 May 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 2 September 2004 the applicant attended a directions hearing and, by consenting to Short Minutes of Order, agreed to file and serve an amended application giving full particulars of each ground of review relied upon by
29 October 2004, together with any written submissions five days prior to the hearing date. The applicant complied with the first of the orders and filed an amended application on 29 October 2004 which contained the following grounds:
“1.In making his decision dated 8 January 2002 the Minister’s delegate made a jurisdictional error by denying the applicant procedural fairness.
Particulars
a)The Minister’s delegate made adverse findings as to the credibility of the applicant, disbelieving his evidence that he was falsely charged with murder.
b)The applicant was not invited by the Minister’s delegate to give additional information with respect to that issue.
c)The Minister’s delegate did not afford the applicant an opportunity for an oral hearing on the issue.
2.The Minister’s delegate made a jurisdictional error by denying the applicant procedural fairness.
Particulars
a)The Minister’s delegate made a finding that the applicant would remain committed to his political beliefs without resorting to violent activities or being involved in actions which may provoke violence.
b)The applicant was not invited by the Minister’s delegate to give additional information with respect to this issue.
c)The Minister’s delegate did not afford the applicant an opportunity for an oral hearing on the issue.
3.The Minister’s delegate mis-applied the Convention test of refugee.
Particulars
a)The delegate found that the applicant may still remain committed to his political beliefs without resorting to violent activities or being involved in actions which may provoke violence.
b)The applicant did not give evidence that he was prepared to cease his violent political activities or to cease being involved in actions which provoke violence in Bangladesh, or otherwise be discreet as to his political opinion.
4.In making its decision dated 17 May 2004 the Tribunal constructively failed to exercise jurisdiction.
Particulars
a)The applicant was not notified of the decision of the Minister’s delegate.
b)The Tribunal found that the applicant was taken to have received the notice of decision of the Minister’s delegate on 17 January 2002.
c)The Minister’s delegate failed to make a decision under the Migration Act 1958 (Cth) (“the Act”).
d)The application for review by the Tribunal was not made outside the time limits prescribed by ss 494B(4), 494C(4) and 494D of the Act.”
The law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: S157/2002 at [76] and S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Hearings (21 December 2004 and 7 February 2005)
This matter was originally set down for final hearing on 21 December 2004. At that time there was no appearance by the applicant or any representative on his behalf. The applicant had previously appeared before Registrar McIllhatton on 2 September 2004 and consented to Short Minutes of Order requiring him to file an amended application by 29 October 2004. The applicant had complied with this order and filed an amended application which contained four grounds, all of which were particularised. However, there were no written submissions or appearance by the applicant at the scheduled hearing. In light of the material filed in Court I decided to proceed with the hearing pursuant to Rule 13.03A(d) of the Federal Magistrates Court Rules 2001 (Cth). The respondent, who filed written submissions prior to the hearing, provided the Court with additional oral presentation during the hearing. At the completion of the hearing, the judgment was reserved.
Approximately two days after the hearing the solicitors for the respondent advised the Court that they in turn had been advised that the applicant had been placed in detention for a breach of visa conditions and this was the reason for his non appearance at the scheduled hearing. A new hearing was set down for 7 February 2005 to enable the applicant to make an appearance. Shortly prior to the second hearing the Court was advised that the applicant was now represented and that his Counsel would appear at the hearing on 7 February 2005.
Applicant’s submissions
Mr R A Slattery of Counsel, appearing for the applicant, filed written submissions on the day of the hearing which contained the following contentions:
a)The Applicant arrived in Australia, from his country of birth, Bangladesh, on 29 September 2001 (CB p.35) and subsequently applied for a protection visa on 26 October 2001 (CB pp.2, 13). The applicant employed the services of a migration agent in relation to the protection visa application (CB p.1). The agent was authorised to act on the applicant's behalf and receive communication from the Department to the applicant in relation to such (CB p.12). The form authorising the agent to so act gave the applicant's place of residence as [Unit Number] 146 Pitt St Redfern, NSW 2016 (CB p.12). The "Part C Application for an applicant who wishes to submit their own claims to be a refugee" gave the same address (CB p.14). The Statutory Declaration attached to Part C as part of the application gave the applicant's address as [Unit Number] 148 Pitt St Redfern 2016 (CB p.26).
b)The invitation from the Department to the applicant to provide "any more information relevant" to the application dated 30 October 2001 was addressed to [Unit Number] 146 Pitt Street, Redfern, 2016 (CB p.38). No certification of the mail sticker was attached. In comparison, the Department’s letter, informing the applicant of material that may lead the decision-maker to refuse the application, had the certification sticker attached (CB p.40). That letter dated 26 November 2001, informing the Applicant of adverse material, was addressed to [Unit Number] 156 Pitt St, Redfern 2016 (CB p.40). The letter, intending to inform the applicant of his failure to meet the criterion for the grant of a protection visa, dated 8 January 2002 was also addressed to [Unit Number] 156 address (CB p.42) and had no certification of mail sticker attached (CB pp.42-43). The applicant's statement in his application to the Tribunal gave his previous address as [Unit Number] 156 Pitt St, Redfern 2016.
c)On 8 January 2002, the delegate made his decision to refuse refugee status without affording the applicant an oral hearing. According to the absence of any indication to the contrary in the delegate's decision, the delegate did not attempt to contact the applicant or his agent by telephone or otherwise before deciding to proceed to the completion of the decision. The Part B evidence before the delegate stated the Departmental file number which related to the applicant as 2001/056786 (CB p.45). Previous correspondence from the Department to the applicant quoted his file number as 2001/058360 (CB pp.40-42) or, in the case of the first letter dated 30 October 2001, file number 2001/58360 (CB p.38). The file number at the head of the delegate’s decision gave the file number of the applicant as 2001/058360 also (CB p.44).
d)The delegate did not accept that the applicant was charged with murder as he did not accept that the applicant would be able to obtain a passport and leave the country legally if this was so (CB p.47). The delegate found that the applicant may still remain committed to his political beliefs without resorting to violent activities or being involved in actions which may provoke violence (CB p.47). The applicant applied to the Tribunal for a review of the delegate's decision on 20 October 2003 (CB pp.49-52). The Tribunal found that the applicant stated he did not receive the notification of the delegate's decision despite having informed the Department of his change of address (CB p.51). On 17 May 2004 the Tribunal notified the applicant that it had no power to determine his application.
e)The applicant now seeks certiorari in relation to the decisions of the delegate and the Tribunal. The grounds for such an order in relation to the delegate’s decision were the denial of procedural fairness and error of law or, in other words, that the delegate exceeded his jurisdiction as he did not make a decision under the Act as he ought to have done as a matter of law. The particulars of the denial of procedural fairness in the amended application related to the submission that the applicant was not invited to give additional information in regards to certain determinative issues and that in the circumstances an oral hearing ought to have been afforded to the applicant. The grounds of the errors of law related to the misapplication of the Convention test for refugee status or, in the alternative, the making of a finding of fact for which there was no evidence. The ground for certiorari in relation to the Tribunal related to a constructive failure of the Tribunal to exercise its jurisdiction as required by law.
In respect of the delegate’s decision, the applicant made the following submissions in respect of procedural fairness:
a)The exercise of the delegate’s power was conditioned upon the principles of natural justice: S157/2002; Re Minister for Immigration & Multicultural Affairs; Ex parte Miah; NAUV v Minister for Immigration & Multicultural & Indigenous Affairs. In the circumstances, the failure of the delegate to seek an oral hearing amounted to an arguable departure from what the rules of natural justice required: Re Minister for Immigration & Multicultural Affairs; Ex parte P T (“Ex parte P T”) per Kirby J at [26]. What was done on the day of the decision was an inadequate substitute for what was required: Ridge v Baldwin per Lord Reid at 79. On the day of decision an oral hearing was necessary to the lawful jurisdiction of the decision. In the alternative, to a different degree of the requirement of natural justice in the circumstances, an attempt, if not actual verbal communication, with the applicant or his agent was required.
b)Whilst the opportunity to afford an oral hearing was not mandatory, that was not the end of the matter, as the power to not afford an oral hearing is not absolute or reposed as an unfettered discretion: Local Government Board v Arlidge at 133; Heatley v Tasmanian Racing and Gaming Commission (“Heatley”) per Aickin J at 516 and Stephen and Mason JJ at 494; Chen v Minister for Immigration and Ethnic Affairs (“Chen”) at 597-602; Ex parte PT per Kirby J at [25]-[26]; Liu v Minister for Immigration & Multicultural Affairs at [49]; Wakim v Mathiew Pty Ltd per O'Keefe J at [25]-[27]; Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (“NAHF”) per Hely J at [33]-[39].
c)Following Ex parte P T per Kirby J at [25]-[26], the discretion is subject to the circumstances of the applicant's case being:
i)not limited in any way in the materials which could be put forward in support of the claim;
ii)opportunity to make oral representation and verbal elaboration before the Tribunal not lost due to the applicant's fault; and
iii)no failure on the delegate's part to put something unexpected or surprising to which the applicant should have been given an opportunity to respond.
Following Chen at 597-602 the discretion is subject to the circumstances of the applicant's case being:
i)materials relied upon in reasoning of decision maker being made available and an opportunity to respond been given;
ii)no existence of a real issue of credibility; and
iii)no otherwise apparent disadvantages due to being limited to submissions or responses to the decision-maker made in writing.
Following Heatley the discretion is subject to the circumstances of the applicant's case where:
i)inconsistencies between the delegate's information and applicant’s written submissions can be resolved without such a hearing.
d)Although the delegate may make a decision in the absence of an oral hearing or any response from the applicant they are required to consider whether or not such a hearing ought to occur. The above principles guide that decision. The following applies those principles to the circumstances. The next two paragraphs relate to constructive jurisdictional errors giving rise to a denial of procedural fairness. These are further to those mentioned in the amended application.
e)The delegate failed to consider that due to the mistakes, especially by the Department in regards to the address for service of notice to the applicant, the applicant had not been invited to provide additional information and respond to matters which would be relied upon in making the decision as is required under the scheme of the Act. The delegate was required to consider this in his decision to not afford an oral hearing as the invitation prevents limitation on the applicant in the materials he can put before the delegate.
f)There is a requirement that the invitation to provide further information be real and meaningful and not just an empty gesture or hollow shell: NAHF per Hely J at [35]; NALQ v Minister for Immigration & Multicultural & Indigenous Affairs at [30].
g)The decision to refuse the protection visa whilst based upon doubts as to the ability of the applicant to be charged with murder and still obtain a passport and leave Bangladesh was also predicated upon a finding that the applicant was lying and thus that he was not credible (CB p.47). It also involved the resolution in inconsistencies between the delegate's information and the written submissions of the applicant. Such in all fairness of the circumstances required an oral hearing.
h)The decision to refuse the protection visa was also based upon the reason that the applicant would remain committed to his political beliefs without resorting to violent activities or being involved in actions which may provoke violence. This finding was made via a failure on the delegate's part to put something unexpected or surprising to which the applicant should have been given an opportunity to respond. As such, an oral hearing ought to have been afforded so that the contention could have been put to the applicant.
In respect to the errors of law relating to the finding of facts which have no evidence, it was submitted:
i)The making of a finding of fact critical to the making of the delegate’s decision must be based upon evidence, not a non-existent fact: R v Deputy Industrial Injuries Commissioner; Ex parte Moore per Diplock LJ at 487-488; Australian Broadcasting Tribunal v Bond per Deane J at 367; Curragh Queensland Mining Ltd v Daniel (“Curragh”) per Black CJ at 220-221; Minister for Immigration & Multicultural Affairs v Rajamanikkam & Anor (“Rajamanikkam”) per Gleeson CJ at [35] & [43], per Gaudron and McHugh JJ at [58] and per Kirby J at [100].
j)A fact is critical to the making of the decision if it is a link in the chain of reasoning that leads the decision-maker to take one path in the process of reasoning rather than another and so come to a different conclusion: Curragh; Rajamanikkam per Gleeson CJ at [33], [35] & [43] and per Kirby J at [100], [113], [115]-[117] & [119]. A fact is also said to be critical if it is that but for which the decision would or would not have been reached: Rajamanikkam per Gaudron and McHugh JJ at [58].
k)The delegate’s finding that the applicant did not have a real chance of Convention-based persecution or fear of persecution on return to Bangladesh was based upon the finding that the violence risked would be negated if he remained committed to his political beliefs without resorting to violence or being involved in action which may provoke violence (CB p.47). The applicant did not give evidence that he would be able to do such. If the delegate did not make the finding that the applicant’s political beliefs were capable of commitment without violence then the delegate would have still been left at the cross-roads of his conclusion, a loose end in the chain or reasoning or incapable of making a decision one way or the other.
In respect to the misapplication of the Convention test, it was submitted:
a)In so far as the decision of the delegate was based upon the requirement or expectation that the Applicant take reasonable steps to avoid persecutory harm, it is wrong in principle and should not be followed: Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (“Appellant S395/2002”) per McHugh and Kirby JJ at [50] and per Gummow & Hayne JJ at [80]. In this case, the applicant was expected in the future to be committed to his political beliefs at the same time as avoiding the provocation of violence by demonstrating them.
b)The delegate considered the applicant as a person in a social class of people who would not be persecuted for their political beliefs if they were able to not bring them to the attention of those that would use violence against him because of those beliefs. By bifurcating the genus of those committed to political beliefs capable of provoking violence into those who were committed but inactive or discreet and those who were active or indiscreet the delegate fell into further error: Appellant S395/2002 per McHugh and Kirby JJ at [55] & [60] and per Gummow & Hayne JJ at [90]. The delegate did not consider how this applicant may be treated if they returned to Bangladesh: Appellant S395/2002 per Gummow & Hayne JJ at [78]; SWCB v Minister for Immigration & Multicultural & Indigenous Affairs per Finn J at [1], [28]-[30] & [37].
In respect to the Tribunal’s decision, it was contended there was constructive failure to exercise discretion in that the Tribunal’s decision to conclude that they did not have jurisdiction was based upon the finding that notice of the delegate’s decision had complied with the Act and that the error as to addresses was the fault of the applicant. The Tribunal failed to consider whether or not the delegate had otherwise made a valid decision or that, in any event, the Department records as to the address were inconsistent and such that there had been a substantial contribution to failure of the notice to reach the applicant by the Department or alternatively the applicant’s agent.
Respondent’s submissions
Ms R Henderson of Counsel, appearing for the respondent, filed written submissions prior to the hearing held on 21 December 2004. Those submissions addressed each of the grounds contained in the applicant’s amended application for review together with a separate ground relating to the Tribunal’s decision. Due to the late filing of the applicant’s submission the respondent was granted leave to file further submissions prior to the second hearing. The amended application, filed on 29 October 2004, remained the grounds before this Court and the basis of the issues to be resolved.
The respondent’s written submissions contained the following contentions:
a)Grounds 1 and 2 of the amended application contend that the applicant was denied procedural fairness in relation to findings made by the delegate in relation to an alleged murder charge and the possibility that the applicant could maintain his political commitment without becoming involved in violence. In the particulars of grounds 1 and 2, the applicant claimed that the delegate was required as a matter of procedural fairness to invite the applicant to give additional information with respect to each issue and also to give the applicant an opportunity for an oral hearing.
b)Procedural fairness, viewed in isolation from any statutory requirements, does not involve an obligation to convene an oral hearing: R v Moodie; Ex parte Mithen at 225, nor did it require a decision maker to notify an applicant in advance that aspects of his claim may not be believed: Abebe v Commonwealth of Australia at [87] per Gummow and Hayne JJ, see also Commissioner for ACT Revenue v Alphaone Pty Ltd at 591. It was submitted that it followed that there was no obligation on a decision maker, who is unpersuaded by an applicant’s claims, to offer an applicant an opportunity to submit more information or an opportunity to give oral evidence before the decision maker.
c)The general rule is subject to any statutory qualifications and that s.57(2) of the Act required certain types of information to be disclosed to an applicant, and that he or she be invited to comment on the information. Counsel contended that the delegate complied with that requirement by forwarding to the applicant a letter dated 26 November 2001 which addressed a range of topics relevant to the applicant’s application and asked the applicant to respond with his comments within 28 days (CB p.40). It was submitted that the matters raised in that letter included the two issues relied upon in grounds 1 and 2, namely, the applicant’s allegation that he was the subject of a false murder charge, and the incidence of violence in Bangladeshi politics.
d)The Act does not impose a requirement that the respondent’s delegates are to conduct oral hearings. Section 425 of the Act requires the Tribunal to invite applicants to appear before it to give evidence and make submissions if the Tribunal found itself unable to make a favourable decision on the material before it. However, it was submitted, the Act does not contain a similar provision in relation to decisions made by delegates.
e)The assertion made in paragraph (b) of ground 3 of the amended application that “the applicant did not give evidence that he was prepared to cease his violent political activities” was confusing and that the applicant had depicted himself in his statutory declaration as an innocent victim of persecution by BNP supporters who wrongly regarded him as having responsibility for the murder of one of their leaders and subsequent attacks. Counsel submitted that the applicant claimed BNP leaders assumed he was “patronising” the attacks and was “the main think tank” of the group. It was further submitted that while the applicant made reference to violence occurring between people whom he described as “my supporters” and the BNP, he made no claim that he personally engaged in any violent political activities or that he had encouraged anyone else to do so. Counsel argued that the applicant claimed to have been in hiding when the violent clashes between his supporters and their rivals occurred.
f)The applicant’s claims of persecution depended entirely on the claim that he was a leader in the Chattra League and subsequently the Awami League and that he was targeted because he was perceived by the BNP to be a leader who could be blamed for harm against BNP leaders and supporters. It was submitted that the findings of fact in paragraphs 3.4.1 and 3.4.2 of the delegate’s decision (CB p.47) were clear: the delegate accepted that the applicant may have been a member of the Awami League through its youth wing, that the League was an operating political party and that membership alone did not place the applicant in danger of persecution. Counsel submitted that the delegate also found that most violent incidents occurred during elections or strikes and the applicant could remain committed to his political beliefs without resorting to violent activities or being involved in actions which may provoke violence.
g)The delegate did not make a finding that the applicant should or must “be discreet as to his political opinions” or that he should modify his conduct as a member of the Awami League. It was contended that the reasoning the delegate used did not manifest the error which was identified in Appellant S395/2002.
h)Ground 4 of the amended application contended that the Tribunal constructively failed to exercise jurisdiction and the delegate failed to make a decision, a proposition which was manifestly baseless. Counsel submitted that the Tribunal could not exercise jurisdiction in a matter in which it does not have jurisdiction and that it had no jurisdiction in circumstances where an application is lodged after the time prescribed by the Act and Regulations.
i)The Tribunal’s Reasons for Decision demonstrated its careful consideration of the applicant’s claims that he had notified the Department of his change of address, and that he had not received the delegate’s decision. It was submitted that after examining the Departmental file, the Tribunal ascertained the following:-
i)The applicant directed the Minister to send correspondence to an authorised recipient;
ii)On 8 January 2002 the delegate’s decision was sent by registered mail to the authorised recipient;
iii)A copy of the delegate’s decision was also sent to the applicant at his residential address;
iv)Neither letter was returned unclaimed;
v)The Departmental file contained no record of any change of address notified by either the applicant or his authorised recipient.
j)The Tribunal also noted that the applicant never claimed that his authorised recipient did not receive the delegate’s decision. The Tribunal had calculated that the final date for lodgment of the application for review was 14 February 2002 and that the application received on 20 October 2003 was not valid. It was submitted that the Tribunal thoroughly considered the question of notification and that the applicant did not expose any error in the Tribunal’s decision but merely re-asserted in ground 4 that he did not receive the delegate’s decision.
The respondent Counsel assisted the Court by making detailed oral submissions during the second hearing in response to the written submissions tendered by the applicant’s Counsel immediately prior to the hearing. Those oral submissions have been of assistance in the preparation of my reasons for judgment.
Reasons
Both Counsel made detailed submissions in respect of the applicant’s residential address. Clearly the address recorded on Form 956 (CB p.12) and the visa application Form C (CB p.14) (“the Redfern address”) was different from the address appearing on the statutory declaration (CB p.26) and was again different from the address on the Department’s letters to the applicant dated 26 November 2001 (CB p.40) and 8 January 2002 (CB p.42). When the applicant filed his application to the Tribunal he advised of a new Blacktown address which was used by the Department in all subsequent correspondence. The address at issue was the Redfern address which clearly contained errors and was the subject of detailed submissions. However, at all times when the Redfern address was used by the Department in correspondence to the applicant, that correspondence was also copied to the applicant’s agent/solicitor Mr Mofazzai Haque Kazi at his Marrickville address. Importantly, none of that correspondence forwarded to the applicant’s authorised recipient by Registered Post was returned unclaimed. The respondent contended that the service upon the migration agent was sufficient and that facts before the Court indicated no deficiency in the correspondence sent. I accepted those submissions.
It was the applicant’s contention that when the delegate made his decision on 8 January 2002 he did so without affording the applicant an oral hearing. As a consequence, the applicant was denied an opportunity to rebut the information that the delegate held which was contrary to the applicant’s position in his claim for a protection visa and that this amounted to a denial of procedural fairness. Nevertheless, despite the applicant’s contention, I am persuaded by the respondent’s position in that the delegate clearly identified in their letter dated
26 November 2001 six issues which led the delegate to reject the application. The invitation was extended to the applicant to make comment on any of these issues and to submit any further information in support of his position which may have been used to persuade the delegate to the contrary position. Although the Department’s letters to the applicant may have been wrongly addressed, the alternative notification system to his agent Mr Kazi was deemed to be an effective communication. No response to the Department’s letters was received from the applicant or his agent.
The argument that communication was not made with the applicant cannot be sustained. Also, the argument that the applicant should have been accorded a hearing, despite not being the necessary practice of the delegate, cannot be sustained. The applicant referred the Court to three authorities, namely: Ex parte P T, Chen and Heatley. The respondent put the contrary contention that the natural justice requirements are not prescribed but the Court is mindful of these decisions. The respondent submitted that the three cases cited by the applicant were not in context. In each case the Court acknowledges but does not say oral hearings must be or should be given: Ex parte P T per Kirby J at [25.1]:
“The Act expressly empowers the Minister, and thus the delegate, to refuse a protection visa without giving the applicant an opportunity to make oral or even written submissions. No rule of natural justice could be expressed by this Court that would contradict or qualify that provision.”
Then at [25.3] it is stated:
“The scheme of the Act reinforces the provisions of s54. A person dissatisfied with a decision of the delegate may apply for review before the Tribunal where there is a full opportunity to make an oral representation and verbal elaboration. The only reason that the applicant lost that opportunity was a mistake about, and delay in, filing her application to the Tribunal within time. Whilst interviews by the primary decision-maker are often desirable and probably useful in most cases, it would contradict the scheme of the Act to hold that they are universal or obligatory in a case such as the present.”
Then at [26] it is stated:
“The delegate might, indeed, have invited the applicant to an interview. On the evidence before me that is the usual practice. However, I cannot accept, in the circumstances proved, that the failure of the delegate to do so amounted to an arguable departure from what the rules of natural justice required in the applicant’s case. I bear in mind the fact that the asserted failure would deprive the delegate of jurisdiction to reach the decision that she did or any decision.”
In the case of Heatley Aickin J (at [5]) referred to the decision of Twist v Randwick Municipal Council (“Twist”) and quoted the following passage from the judgment of Barwick CJ:
“The common law rule that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power is both fundamental and universal: see Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180; 143 ER 414, and; R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 at 205; [1923] All ER Rep 150. But the legislature may displace the rule and provide for the exercise of such a power without any opportunity being afforded the affected person to oppose its exercise. However, if that is the legislative intention it must be made unambiguously clear. In the event that the legislation does not clearly preclude such a course, the court will, as it were, itself supplement the legislation by insisting that the statutory powers are to be exercised only after an appropriate opportunity has been afforded the subject whose person or property is the subject of the exercise of the statutory power. But, if the legislation has made provision for that opportunity to be given to the subject before his person or property is so affected, the court will not be warranted in supplementing the legislation even if the legislative provision is not as full and complete as the court might think appropriate. Thus, if the legislature has addressed itself to the question whether an opportunity should be afforded the citizen to be relevantly heard and has either made it clear that no such opportunity is to be given or has, by its legislation, decided what opportunity should be afforded, the court, being bound by the legislation as much as is the citizen, has no warrant to vary the legislative scheme. But, if it appears to the court that the legislature has not addressed itself to the appropriate question, the court in the protection of the citizen and in the provision of natural justice may declare that statutory action affecting the person or property of the citizen without affording the citizen an opportunity to be heard before he or his property is affirmed is ineffective. The court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice to the citizen. Where the legislation is silent on the matter, the court may presume that the legislature has left it to the courts to prescribe and enforce the appropriate procedure to ensure natural justice. In my opinion, this statement of relevant principle is in accord with the authorities, including particularly the case of; Wiseman v Borneman [1971] AC 297; [1969] 3 All ER 275.”
These decisions clearly draw the distinct and specific circumstances where an oral hearing must or should be held to satisfy the common law rule of natural justice. As each of the cases point out it is normal that an oral hearing is held except in the circumstances where the legislation clearly articulates that the holding of the hearing is not required.
At the time of the delegate’s decision (8 January 2002) the relevant section of the Act was Subdivision AB – Code of Procedure for Dealing Fairly, Efficiently and Quickly with Visa Applications and in particular ss.56, 57 and 58. Section 56 covered further information that may be sought and s.57 covered the situation where certain information was given to the applicant for the applicant to comment upon. Section 58 covered the mechanics of the invitation to give further information or comments:
“56Further information may be sought
(1)In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.
(2)Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.
57Certain information must be given to applicant
(1)In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for refusing to grant a visa; and
(b)is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c)was not given by the applicant for the purpose of the application.
(2)Subject to subsection (3), the Minister must:
(a)give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c)invite the applicant to comment on it.
(3)This section does not apply in relation to an application for a visa unless:
(a)the visa can be granted when the applicant is in the migration zone; and
(b)this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
58Invitation to give further information or comments
(1)If a person is:
(a)invited under section 56 to give additional information; or
(b)invited under section 57 to comment on information;
the invitation is to specify whether the additional information or the comments may be given:
(c)in writing; or
(d)at an interview between the applicant and an officer; or
(e)by telephone.
(2)Subject to subsection (4), if the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specific in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3)Subject to subsection (5), if the invitation is to give information or comments at an interview, the interview is to take place:
(a)at a place specified in the invitation, being a prescribed place or if no place is prescribed, a reasonable place; and
(b)at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
(4)If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be made in the extended period.
(5)If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:
(a)a later time within that period; or
(b)a time within that period as extended by the Minister for a prescribed further period;
and then the response is to be made at an interview at the new time.”
Regardless of the characterisation of the letters forwarded to the applicant, that is whether it was a request for further information under s.56 or alternatively an invitation to comment on material that the delegate held under s.57, both provisions indicated that the request could be made in writing and that request complied with the requirements as noted by Barwick CJ in Twist that the legislative intention must be unambiguously clear.
The next element of this argument was that the applicant should have been contacted by the delegate by telephone to bring to the applicant’s attention the fact that letters had been issued by the Department seeking information and no response had been received. The respondent quite correctly pointed out that this contention was not supported by any line of authority which indicated that the alternative notification arrangement should take place. The Act as it was at the time of the delegate’s decision set out in s.58(4) the requirements of the appropriate notice and the method of responding clearly in the letter. The relevant paragraph in the letter stated as follows:
“You are not required to make comments, or submit further information, however you may wish to respond to the information contained in this letter. If so, you should submit comments or information to me at the above address within 28 days of receipt of this letter. You are taken to have received the letter 7 working days after the date of the letter. If you submit documents which are not in English, you should also submit English translations of those documents.” (CB p.41)
A copy of the letter was forwarded to the applicant’s agent. There were no submissions that that correspondence was not received nor were there any submissions that the time provided in that invitation was inadequate in respect of the requirements of the Act. Further, there were no submissions that any aspect of the legislative provisions was not clear. The suggestion that a telephone call should have been made pursuing the applicant or his agent was not specified within the Act and cannot be sustained as an argument that the delegate failed in the decision making process in determining the applicant’s visa application.
Counsel for the applicant contended that the delegate misapplied the Convention test and the decision of the delegate was based upon the requirement or expectation that the applicant take reasonable steps to avoid persecutory harm by acting discreetly. The applicant submitted that this was the wrong principle and supported the submission by quoting the passages from Appellant S395/2002 per McHugh and Kirby JJ at [50] as follows:
“In so far as decisions in the Tribunal and the Federal Court contain statements that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed.”
His Honours Gummow and Hayne JJ stated at [80]:
“If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be "discreet" about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant's fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.”
The applicant claimed in his statutory declaration of 24 October 2001 which was attached to his visa application that he was the target of hostility because of his involvement in the Awami League. The delegate had some reservation as to the significance of the applicant’s claimed post as a leader and the attention he would attract from holding such a position. The delegate acknowledged that “the [applicant] may still remain committed to his political beliefs “without having to resort to violent activities or being involved in actions which may provoke violence”. The delegate continued by stating:
“He may also avoid being harmed by rival groups by not resorting to provocative acts.” (CB p.47)
The submissions in respect of bifurcating the members of the political group to which the applicant belonged to those who act discreetly and those who act non discreetly, was the effect of the delegate’s decision. By bifurcating the genus of those committed to political beliefs capable of provoking violence into those who were committed but inactive or discreet and those who were committed but active or indiscreet, the delegate fell into error: Appellant S395/2002 per McHugh and Kirby JJ at [55] as follows:
“In our opinion, the Tribunal also fell into jurisdictional error by failing to consider the issue of persecution in relation to the correct "particular social group". As we have indicated, the Tribunal found that homosexual men in Bangladesh constituted a "particular social group" for the purpose of the Convention. As a matter of law, this finding was open to the Tribunal. Indeed, if the Tribunal had held otherwise, its decision would arguably have been perverse. However, by declaring that there is no reason to suppose that the appellants would not continue to act discreetly in the future, the Tribunal has effectively broken the genus of "homosexual males in Bangladesh" into two groups – discreet and non-discreet homosexual males in Bangladesh. This inevitably invited error. It leads to the Federal Court and the Tribunal examining a claim for refugee status in the way that Ryan J did in Applicant LSLS v Minister for Immigration and Multicultural Affairs when his Honour said:
‘I have therefore confined my examination of this issue to considering whether the applicant had a well-founded fear of persecution if he were to pursue a homosexual lifestyle in Sri Lanka, disclosing his sexual orientation to the extent reasonably necessary to identify and attract sexual partners and maintain any relationship established as a result.’”
Their Honours also stated at [60]:
“By declaring that there was no reason to suppose that the appellants would not continue to act discreetly in the future, the Tribunal effectively broke the genus of "homosexual males in Bangladesh" into two groups – discreet and non-discreet homosexual men in Bangladesh. By doing so, the Tribunal fell into jurisdictional error that renders its decision of no force or effect.”
And per Gummow and Hayne JJ at [90] as follows:
“Further, as the reasons of McHugh and Kirby JJ demonstrate, the Tribunal can also be seen as falling into error by dividing the genus of homosexual males in Bangladesh into two groups – discreet and non-discreet homosexual males in Bangladesh. That false dichotomy also appears to have provided a basis for the reasoning of Kennedy J in R v Secretary of State for the Home Department; Ex parte Zia Mehmet Binbasi.”
The delegate did not consider how this applicant may be treated if he was to return to Bangladesh: Appellant S395/2002 per Gummow and Hayne JJ at [78] as follows:
“The central question in any particular case is whether there is a well-founded fear of persecution. That requires examination of how this applicant may be treated if he or she returns to the country of nationality. Processes of classification may obscure the essentially individual and fact-specific inquiry which must be made.”
I do have some concerns regarding the language used by the delegate in this section of the reasons addressing this issue (CB p.47). However, I have considered the respondent’s submissions set out in paragraph 19 (e) and (f) above which addressed the behaviour of the applicant. I believe that the delegate when he made these statements had a clear profile of the applicant in that he did not personally engage in any violent political activities nor had he encouraged anyone else to do so. The material available indicated that the applicant claimed he had been in hiding because of the occurrence of violent clashes between his supporters and their rivals. The delegate commented that the applicant would be able to avoid harm by rival groups by not resorting to provocative acts, and that was further qualified by the notion of violent provocative acts and that it would have been out of character for the applicant to participate in these activities. There was no suggestion that the applicant would be required to withdraw his membership or participation from any political activity that would produce a result that was similar to the suggestion being made to the homosexuals that were subject to the decision of Appellant S395/2002. The discretion that is the subject of that decision is the abandonment of the basic character or behaviour that may be identified by any third party as being that of a homosexual. I believe that the circumstances of this case and those referred to in Appellant S395/2002 are clearly distinguishable on the facts.
Conclusion
In this matter, I have had the benefit of well prepared written submissions together with soundly argued oral submissions. I do not believe that the grounds argued by the applicant can be sustained and that no jurisdictional error has been committed by the delegate in his decision making process. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 29 April 2005
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