SZEYK v Minister for Immigration & Anor
[2006] FMCA 1473
•10 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEYK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1473 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Bangladesh claiming fear of persecution as a Hindu on the basis of his religion – where applicant provided copies of earlier statements to the Tribunal – whether breach of Migration Act 1958 (Cth), PRACTICE & PROCEDURE – Counsel are required to decide on the aspects of the case they wish to argue during the hearing rather than after the hearing has concluded. |
| Migration Act 1958 (Cth), ss.420, 424A, 425, 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 and Multicultural Affairs v Yusuf (2001) 206 CLR 323 referred to Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 referred to Re Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 referred to Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126 referred to Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 referred to Liu v Minister for Immigration and Multicultural Affairs (2001) 187 ALR 348 referred to Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671 referred to Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 distinguished VBAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 804 distinguished Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 distinguished W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1050 distinguished Antipova v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 584 distinguished |
| Applicant: | SZEYK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3445 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 30 August 2006 |
| Date of Last Submission: | 4 September 2006 |
| Delivered at: | Sydney |
| Delivered on: | 10 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nair |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Multicultural Affairs.
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $7,500.00.
I allow three (3) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3445 of 2005
| SZEYK |
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 signed on 6th October and handed down on 27th October 2005. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant seeks writs of certiorari and mandamus.
Background
The applicant is a citizen of Bangladesh who arrived in Australia on an Indian passport in May 1996. He applied for a protection (class AZ) visa on 25th June 1996. After a considerable amount of correspondence with the applicant’s then advisers, a delegate of the Minister refused his application on 14th August 2003, which still appears to be a surprisingly long time. An application for review by the Tribunal, made on 25th August 2003, was unsuccessful on 22nd June 2004.
The applicant sought judicial review of that decision, and on
23rd March 2005 the Federal Magistrates Court made orders by consent remitting the application to the Refugee Review Tribunal.
The Refugee Review Tribunal invited the applicant to attend a hearing on 3rd August 2005. The applicant gave oral evidence where he said that he had suffered discrimination in Bangladesh from extremist Muslims all his life. He said that both his elder brother and elder sister had met violent deaths at the hands of Muslim fundamentalists.
After the hearing had concluded, the Tribunal wrote to the applicant on 14th August 2005. In that letter, the Tribunal expressed its concern about certain parts of the applicant’s evidence, particularly a statement by the applicant dated 6th February 2003. The Tribunal asked the applicant to reply to the letter with his comments on the material in it by 9th September 2005.
The applicant replied in writing on 9th September 2005. He enclosed a number of documents, including a transcript of the hearing, and a statement prepared by his former migration agent in July 1996.
The applicant said in his letter that he discovered that there were many discrepancies in the document and he stated:
I now can’t remember what the agent exactly advised me on that occasion but I can vividly remember requesting him not to send that declaration to the DIMIA as some of the information was incorrect and misleading.
The applicant later said in his letter:
I therefore would like to mention that the tribunal’s letter dated 17/08/2005 whatever anomaly and discrepancies were raised are not relevant for me to reply to because it has happened out of enormous confusion and I was not given the opportunity by the tribunal, at the hearing, to have a look at the statement to which the tribunal referred. The tribunal only mentioned the dates of the two subsequent statements to me but did not show me despite seeing my utter confusion and denial of my submission of two statements in 2003.
Here the applicant was referring to one of the two 2003 statements mentioned in the Tribunal’s letter to him.
The Tribunal’s findings and reasons
The Tribunal handed down its decision on 27th October 2005.
The Tribunal’s findings and reasons are set out on pages 315 to 322 of the Court Book.
The Tribunal noted that the applicant had “chosen simply not to address the issues raised in the Tribunal’s invitation issued in accordance with s.424A of the Act”. The Tribunal went on to say that the applicant did not exhibit any confusion when the Tribunal asked him about the two statements (from 2003) at the beginning of the hearing and
There was no reason for me not to believe that he was familiar with a statement which he admits he signed on 6 February 2003 and the text of which is, moreover, identical with the statutory declaration which he claims he signed in July 1996.[1]
[1] Court Book page 316
The Tribunal noted that it appeared that the statutory declaration was never given to the Department and that the applicant said that he told his original representatives not to send the statutory declaration to the Department. The Tribunal accepted that his February 2003 statement was prepared in its original form as a statutory declaration in 1996 but did not accept that this fact explained the inconsistencies in the applicant’s evidence. The applicant’s evidence to the Tribunal on
3rd August 2005 about the violent death of his sister was very different from his statement dated 6th February 2003.
The Tribunal noted independent evidence that fundamentalist Muslims had little influence in Bangladesh at the time and noted that minority religious communities were generally able to live and worship with few difficulties. The Tribunal had regard to the inconsistencies in the applicant’s own evidence and found that it did not accept the applicant’s account of the events that he claims led him to leave Bangladesh for India in around December 1991.
The Tribunal did not accept the documents that the applicant produced were genuine, noting that forged or fraudulently obtained documents are readily available in Bangladesh, referring to country information from the Australian Department of Foreign Affairs and Trade and from the US State Department.[2]
[2] See Court Book at page 320.
The Tribunal accepted that the applicant is a citizen of Bangladesh and not India. The Tribunal also accepted that the applicant is a Hindu by religion.
The Tribunal did not accept that the applicant had a well-founded fear of persecution for reason of his religion if he were to return to Bangladesh at the time of the hearing or in the reasonably foreseeable future. The Tribunal relied on independent country information from the Canadian Immigration and Refugee Board and the US State Department.
The Tribunal stated at page 321:
The Applicant repeated that the government tried to show it was giving police protection but still incidents kept happening. However once again I prefer the independent evidence on this point to the Applicant’s evidence, having regard to the view I have formed of the Applicant’s credibility. Since I have rejected the Applicant’s claims regarding his religious, social and political activism in the past in Bangladesh, I do not accept that the Applicant will be ‘vocal against the injustice on the minorities’ if he returns to Bangladesh (as he claimed in his statement dated
26th June 2003).
The Tribunal did not accept that there was a real chance that the applicant would be persecuted for reasons of his religion, his political opinion (real or imputed, including the imputation that, because of his religion, he supported the Awami League) or his membership of any particular social group for the purposes of the Refugees Convention if he were to return to his home in the Gopalganj district of Bangladesh. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution if he returned to Bangladesh and affirmed the decision not to grant a protection visa.
Application for Judicial Review
The applicant filed an application for review on 24th November 2005 and an amended application on 27th June 2006. The applicant’s counsel, Mr Nair, sought leave to file a further amended application in court on the morning of the hearing, without objection. Mr Nair told the court that Ground 1 would not be relied on. However, the further amended application contained a fifth ground, upon which the applicant did rely.
Ground 2 of the further amended application claims that the Tribunal’s decision is vitiated by jurisdictional error by way of a failure to comply with s.424A of the Migration Act 1958.
Ground 3 claims that the tribunal ignored relevant material or failed to take into account a relevant consideration.
Ground 4 claims that the Tribunal decision is vitiated by apprehended bias.
Ground 5 claims a denial of natural justice and denial of procedural fairness pursuant to ss.420 and 425 of the Migration Act.
Submissions
As to Ground 2, claiming a breach of s. 424A of the Act, the applicant refers to the Tribunal’s letter to the applicant under the provisions of s.424A asking the applicant to explain apparent inconsistencies between the evidence he gave to the Tribunal and the contents of his statement dated 6th February 2003. When the applicant replied on
9th September 2005 he included with this letter a copy of the February 2003 statement. He also provided the original copy of a statutory declaration prepared in July 1996, saying that the contents of that statement were incorrect and misleading and that he had instructed his migration agent not to forward the statutory declaration to the Department in connection with his protection visa application.
The applicant claims that he did not put forward the 1996 statutory declaration in support of his application. Nevertheless, the Tribunal gained the knowledge that the applicant may have intended to forward the contents of statutory declaration in support of his application for a protection visa and that the contents of that document may be closer to what the applicant’s uncle had supposedly told him in 1995.
The applicant further claims that this information was the reason or part of the reason for the Tribunal affirming the decision under review. The applicant also claims that the Tribunal did not put this information to the applicant in writing as required by s.424A.
The applicant’s counsel relied on SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [20]-[22] per Moore J and per Weinberg and Allsop JJ at [157]-[163].
As to Ground 3 of the application, claiming that the Tribunal ignored relevant material and/or failed to take into account a relevant consideration, counsel for the applicant refers to the s.424A letter sent by the Tribunal to the applicant on 17th August 2005. The applicant replied on 9th September 2005, and his counsel submits that the letter contains an explanation for the apparent inconsistencies between the evidence the applicant gave the Tribunal and the February 2003 statement. The applicant submits that the Tribunal did not consider this explanation.
Counsel for the applicant referred the court to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82], where their Honours explained what is meant by the term “jurisdictional error” under the general law.
Ground 4 of the application claims that the Tribunal’s decision is vitiated by apprehended bias. Counsel for the applicant referred to the transcript of the hearing, at page 258 of the Court Book, where the applicant was telling the Tribunal about the violent death of his elder sister. The Tribunal member says at one point:
Just take your time, (Applicant’s name)[3]. Do you want to take a break?
[3] The applicant’s name is not published to comply with s 91X.
Counsel for the applicant submits that the Tribunal took the view that what the applicant said at the hearing was inconsistent with what was said in the 6th February 2003 statement and this apparent inconsistency was put to the applicant in the Tribunal’s letter of 17th August 2005.
Mr Nair submitted that the statement was not incontrovertibly inconsistent with the evidence the applicant gave at the hearing.
Mr Nair then embarks on an analysis of the Tribunal’s reasons for rejecting the applicant’s explanations of various inconsistencies in his evidence. He also submits that the applicant gave a cogent explanation of how he came to sign the February 2003 statement and that the applicant did not adopt that statement.
Counsel for the applicant submitted that the applicant complained at the hearing that he was confused as to the identity of the documents to which the Tribunal was referring and that the Tribunal failed to identify those documents when it became clear that the applicant was confused and uncertain.
Counsel for the applicant referred the court to the decisions of the High Court in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 at [27] and [28] and minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 per Kirby J at [111].
The summary of the submission is that:
72. It is clear that in all the circumstances a fair minded lay observer might entertain a reasonable apprehension that (the) Tribunal might not have brought an impartial and unprejudiced mind to the resolution of the question to be decided.[4]
[4] Applicant’s submission filed 21 August 2006.
With respect, I disagree. Counsel for the applicant also relied on the decision in Antipova v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 584 at [88]. In my view the decision is not on point and can be distinguished.
Counsel for the applicant relies on the same facts in support of Ground 5, denial of natural justice and procedural fairness pursuant to ss.420 and 425 of the Migration Act. He referred to Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003)128 FCR 553; [2003] FCAFC 126 at [30]-[38] in support of the proposition that failure to afford natural justice is a jurisdictional error and that, under
s.425 of the Act, the Tribunal is under a statutory obligation to issue an invitation to attend a hearing. The invitation must not be a hollow shell or an empty gesture (Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31]).
Counsel for the applicant also referred the court to Liu v Minister for Immigration and Multicultural Affairs (2001) 187 ALR 348, where it was held at [44] that the applicant’s right to appear before the Tribunal is more than a merely right to be invited. It includes the right to present argument before the Tribunal and to receive notice of the hearing, as well as a right to be invited to comment on adverse material. I might comment at this stage that there is no evidence that the applicant was denied the right to appear, to present argument, to receive notice of the hearing or to comment on adverse material.
Counsel for the applicant cited Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671 as authority for the proposition that s. 425 of the Act does not require the Tribunal to assist the applicant actively in putting his or her case, nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be.
Counsel for the applicant submitted that s.425 of the Act imposes an objective requirement on the Tribunal, in that the statutory obligation on the Tribunal to provide a real and meaningful invitation exists whether or not the Tribunal is aware of the actual circumstances that would defeat the obligation. He referred to Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140, VBAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 804, Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 and W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788, all of which, in my respectful opinion, can be distinguished on their facts.
There is no evidence that the applicant was unable to attend because of ill health, that statements made by the Tribunal prior to the hearing misled the applicant as to the issues likely to arise before the Tribunal or that there was no interpreter or no adequate interpreter. There is no evidence that the applicant was under any disadvantage of which the Tribunal was not aware.
On the morning of the day when I had indicated I intended to deliver judgment in this matter, counsel for the applicant submitted a further submission in which he resiled from the position that he took at the hearing that the applicant did not intend to rely on a breach of s.424A in regard to the information to the statement of 6th February 2003.
He indicated in his submission that he had forwarded copies of his further submission to the first respondent’s solicitor and counsel.
He relied on SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (supra) at [77] where it was held that:
There can be no “partial compliance” with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act.
I should comment at this stage that during the hearing I asked counsel for the applicant during the hearing whether he sought to argue a breach of s.424A in respect of both the 1996 statement and the
6th February 2003 statement. I formed the impression during the hearing that it was to be argued that there was a breach of s.424A in respect of both statements. At the conclusion of the hearing, my notes show that counsel for the applicant specifically submitted that:
It is not a ground of appeal that there was a breach of s. 424A in re the February 2003 submission.
Counsel then went to advise that the 1996 statement had not been provided for the purpose of the review and that the applicant had specifically disavowed the contents of that statement.
The later, uninvited, submission argues the opposite of what was put by counsel at the conclusion of the hearing. I do not think it unreasonable for a court to expect practitioners to make up their minds about the points they are actually arguing prior to the conclusion of the hearing.
Counsel for the first respondent, Mr Reilly, submitted that the July 1996 statutory declaration was given to the Tribunal by the applicant in his letter in reply to the Tribunal’s s.424A letter. It accordingly falls within s.424A(3)(b).
As to the applicant’s third ground, Mr Reilly submitted that it cannot be said that the Tribunal did not consider the applicant’s letter of
9th September 2005 attempting to explain the inconsistencies the Tribunal had raised in its s.424A letter. The tribunal did consider the applicant’s explanation at pages 316 and 317 of the Court book, but rejected the explanation.
As to the applicant’s fourth ground, Mr Reilly submitted that nothing in the transcript of the hearing suggests an apprehension of bias.
The applicant’s submissions disagree with the Tribunal’s conclusion that the applicant’s written and oral accounts of his sister’s death were different. The applicant was invited to comment in this in the s.424A letter but his response was that he was confused. It was open for the Tribunal to reject this explanation.
Counsel for the first respondent submits that the applicant’s reliance on Minister for Immigration & Multicultural & Indigenous Affairs v SCAR is misplaced, as this decision related to an applicant’s fitness to give evidence. The applicant, he submits, has not identified how the decision in SCAR is relevant.
Counsel for the first respondent made no written submission in respect of the statement dated 6th February 2003 as it was not referred to in the applicant’s original outline of submissions. During the hearing, he submitted that the Tribunal’s letter of 17th August 2005 specifically the 2003 statement to the applicant and therefore there was no breach of
s.424A(1) of the Act.
Conclusions
I will deal first of all with Ground 2 of the application, claiming that the Tribunal failed to comply with the provisions of s.424A of the Migration Act in respect of applicant’s statement dated 6th February 2003 and an earlier statement prepared in July 1996.
It is clear from the transcript of the hearing that the Tribunal was unaware of the 1996 statement at the time of the hearing on 3rd August 2005. The transcript, at pages 260 and 261 of the Court Book, records the Tribunal asking the applicant about his February 2003 statement.
At that stage, at Court Book 260, the applicant referred to his 1996 statement:
Interpreter[5]: That was given in the statement, that was written statement before.
Tribunal: Sorry, what was written in the statement before?
Interpreter: Which I have given in 1996.
Tribunal: You didn’t give any statement in 1996.
Interpreter: I gave a statement in 1996.
Tribunal: Well, I am afraid that statement never made it to the Department of Immigration.
[5] The applicant
Interpreter: I have given a statement, I had given a statement.
The Tribunal then went on to explain to the applicant that after he was detained he put in a statement of his claims.
Tribunal: That is the February 2003 statement and that is the first statement that you have provided of your claims.
Interpreter: I cannot understand.
Tribunal: There is no 1996 statement on the department’s file.
Interpreter: I gave it to my lawyer but I do not know exactly what happened.
The Tribunal wrote to the applicant on 17th August 2003, asking him to comment on his statement dated 6th February 2003. The applicant replied on 9th September 2003. The applicant enclosed the original of a statutory declaration prepared in July 1996 by his former migration agent. The applicant went on to concede that the statement of February 2003 “is the statutory declaration which was prepared in July 1996 in my aforenamed migration agent’s office with the assistance of a Hindi speaking acquaintance”[6]. It is the applicant who submitted this 1996 document to the Tribunal in answer to the Tribunal’s s.424A letter, and it is the applicant who correlated the 1996 document with the
6th February 2003 statement.
[6] See Court Book 234
It defies logic that the applicant would bring to the Tribunal’s attention a document he knew the Tribunal did not have, only to say that it was not to be relied on. It clearly falls within s.424A (3) (b).
The 6th February 2003 statement, admitted by the applicant to be identical to the July 1996 document, was specifically referred to by the Tribunal in its s.424A letter of 17th August 2005. The Tribunal made it clear, in the preamble to the letter:
The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.
At the conclusion of the letter, which deals with the 6th February 2003 statement in considerable detail, the Tribunal concludes:
You are invited to comment on this information. Your comments are to be in writing and in English.
It appears to me that, in regard to the 6th February statement, the Tribunal has complied with s.424A (1) to the letter. There is no basis at all for submitting that the Tribunal did not comply with s.424A in respect of the statement, and I fail to understand how such a submission could have been made in the face of such clear evidence to the contrary.
Ground has no merit and must fail.
Ground 3 claims that the Tribunal ignored relevant material and failed to take into account a relevant consideration by not considering the applicant’s explanation in his letter of 9th September 2005. This is clearly not the case. At pages 316 and 317 of the Court Book the Tribunal considered in some detail the matters raised in the applicant’s letter and even quoted from that letter several times. I am satisfied that the Tribunal did consider the matters raised by the applicant in his letter. It considered them and rejected them.
This ground fails.
The applicant claimed apprehended bias, based on the transcript of the hearing and the Tribunal’s findings of inconsistencies in his evidence. There is nothing in the transcript of the hearing that gives rise to any suggestion of bias. It is hard to see how the passage referred to by counsel for the applicant at Court Book 258, where the Tribunal says “Just take your time…Do want to take a break?” conveys any suggestion of bias. The Tribunal clearly saw that the applicant was exhibiting some signs of distress and offered him the opportunity to take a break to recover his composure. That is not evidence of bias – quite the reverse, in fact.
The applicant disagrees with the Tribunal’s findings of various inconsistencies in the applicant’s evidence. The applicant’s counsel devotes some 7 pages of his submission (from pages 8 to 15) to an analysis of the Tribunal’s factual findings in what appears to be no more than a challenge to the Tribunal’s factual findings in order to show that the applicant’s disagreement with the Tribunal’s findings of inconsistency establishes an apprehension of bias. It clearly does not.
The ground is not made out. There is no evidence of any apprehended bias.
The applicant submits in Ground 5 that in some way he was not given a proper opportunity to attend a hearing and that therefore a breach of
s.425 has been made out. This ground is not made out. He attended a hearing and gave oral evidence. He was invited at the hearing to comment on adverse material (see, for example at Court Book 264 and 265) and was invited, in writing, to comment on adverse material, by the Tribunal’s s.424A letter of 17th August 2005.
In my view, the evidence shows that the applicant was afforded the very right to a hearing under s.425 laid down by the Full Court of the Federal Court in Liu v Minister for Immigration and Multicultural Affairs (2001) 187 ALR 348 AT [44] and in SCAR at [33]-[38].
This ground fails.
No jurisdictional error has been made out. The Tribunal decision is a privative clause decision as defined in s.474(2) of the Migration Act.
The application will be dismissed with costs.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 3 October 2006
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