SZFCT v Minister for Immigration
[2007] FMCA 801
•31 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFCT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 801 |
| MIGRATION – Review of RRT decision – where Tribunal sent a s.424A Migration Act 1958 (Cth) letter to the applicant – where the Tribunal accepted the truth of information provided by the applicant but did not give it weight – where information Tribunal received did not relate specifically to applicant – whether the Tribunal is required to comply with s.424A once it invokes the provision. |
| Migration Act 1958 (Cth), s.424A |
| Minister for Immigration v SZGMF [2006] FCAFC 138 AWAN v Minister for Immigration [2002] FCA 594 |
| Applicant: | SZFCT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3857 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 23 May 2007 |
| Date of last submission: | 23 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms B Nolan |
| Solicitors for the Applicant: | AAT Legal |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,750.00.
The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3857 of 2005
| SZFCT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh. He arrived in Australia on
7 February 2004. On 16 March 2004 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 29 April 2004 a delegate of the Minister refused to grant a protection visa. On 10 June 2004 the applicant applied for review of that decision and on 7 October 2004 the Tribunal affirmed the decision not to grant the protection visa. On
25 November 2004 the applicant appealed the Tribunal’s decision to the Federal Magistrates Court which on 9 May 2005 remitted the matter to the Tribunal for redetermination by consent. The second Tribunal invited the applicant to a hearing which took place on 26 July 2005. On 5 August 2005 the Tribunal wrote a letter to the solicitor for the applicant advising him of certain information which would, subject to any comments the applicant might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The letter was responded to. On 18 November 2005 the second Tribunal determined to affirm the decision under review. It handed that decision down on 1 December 2005. The applicant has sought review of the decision of the Tribunal from this court. At the hearing on 23 May 2007 which the applicant was represented by counsel one of the matters referred to in his amended application was proceeded with; the other matters having been abandoned.
The applicant’s claim to be a person to whom Australia owed protection obligations arose out of his association with the Awami League in Bangladesh. It was the applicant’s case that he was a prominent member of that political party and as a result of his activities on behalf of the party and his association with prominent members of the party he had been assaulted by the rival BNP and threatened by a BNP Commissioner in February 2002. The applicant claimed to have been arrested and imprisoned on false charges in March 2002. The applicant claimed to have been arrested and imprisoned on false charges in March 2003 although he was released on bail. On 1 October 2003 he claimed to have been seriously injured by police at a demonstration and was beaten and charged for false offences on
12 November 2003. The applicant claimed a particular fear of a Mr Hussein who he felt would kill him if he returned to Bangladesh.
The applicant provided various evidences and materials in support of his claims. Amongst these was a letter from Md. Abdul Jalil, the General Secretary of the Bangladesh Awami League [CB81]. The letter states:
“TO WHOM IT MAY CONCERN
This is to certify that Mr [name of applicant] son of [name of father] of [address] is known to me. He was an active worker of Bangladesh Awami League. Due to his political belief and activities he became a target of present government and his life is really unsafe under the present regime. If he comes back to Bangladesh he will be incriminated in false cases and a subject of brutal torture.
I wish every success in life.
Md. Abdul Jalil MP
General Secretary
Bangladesh Awami League”It was this letter which was the subject of the s.424A Migration Act 1958 (Cth) (“the Act”) letter on 5 August 2005.
The letter of 5 August 2005 relevantly stated as follows:
“5 August 2005
Dear [name of Applicant]
Your Application for Review
At the Tribunal hearing held on Tuesday, 26 July 2005, you were given 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,
1. At the hearing, the Tribunal drew to your attention advice from the Australian High Commission in Dhaka in November 2004 regarding supporting documentation provided by Awami League officials. The High Commission reported that, during a discussion with ‘a reliable senior Awami League member’ about some specific documents, it was informed that ‘many members within the Awami League are prepared to offer such documents on request from such applicants, in a humanitarian attempt to help their former supporters.’ The letter from Md. Abdul Jalil, General Secretary of the Bangladesh Awami League, may fall into this category because: (a) the text of his letter is almost identical to letters which have been submitted for other refugee applicants from Bangladesh, and (b) his references to you as ‘an active worker’ and that ‘you will be incriminated in false cases’ are so generalised that they cast doubt on whether he in fact knows your personal circumstances. This information is relevant because it casts doubt on the weight which the Tribunal can attach to this letter in assessing your claims.”
At [CB243] the Tribunal in its findings and reasons stated in regard to this matter:
“Whilst the Tribunal accepts that the Applicant supported and associated himself with AL figures, it is not satisfied that he had any responsibilities within or to the party, formal or informal, or any consequent political profile. Regarding the letter from the AL General Secretary Abdul Jalil, even if the Tribunal were to take the most beneficial interpretation (leaving aside its concerns as outlined in its letter of 5 August 2005 that the letter is so formulaic that it suggests he does not in fact know the Applicant), it is still left with a reference to the Applicant merely as an ‘active worker’. The absence of any more specific information about the Applicant’s profile or position leads the Tribunal to conclude that the Applicant did not, to the knowledge of Abdul Jalil as signatory of the letter, have such a profile or position, and that that is a reflection of the truth.”
The applicant argues at [13] of his counsel’s helpful written submissions:
“[13] It is apparent that the information from the ‘reliable senior Awami League member’, was relied upon to form part of the Tribunal’s reasons for affirming the decision under review. The Tribunal drew from this information that letters of this nature, being formulaic and generalised, were usually issued to members regardless of their prominence within the Awami League. This particular however was not given to the applicant. Nonetheless the Tribunal found that the letter from Md Abdul Jalil issued to the applicant was one such letter and on this basis the Tribunal used this information to support its conclusion that he was not of the political profile he claimed to be.
[14] It is on this basis that it is submitted that the Tribunal constructively failed to comply with its statutory obligation under s.424A(1)(a). This constitutes jurisdictional error: Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138.
In my view the applicant’s submissions cannot be sustained. I am unable to accept the reading put on the Tribunal’s findings in relation to that letter. I fully accept that the Tribunal was suspicious of the letter and at the time it wrote the s.424A letter it was considering making a finding consistent with the information, namely that it was a letter offered on request in a humanitarian attempt to help former supporters. Then the letter could have no probative value as to the applicant’s position within the Awami League hierarchy. However, maybe as a result of the response received from the applicant’s advisor, or because of its consideration of the case as a whole, the Tribunal determined not to make such a finding but to accept the letter on its face as genuine and to rely upon the statement there made about the applicant, that he was an active worker, as the truth of and limitation of his position and prominence. In that way the Tribunal avoided any reliance upon the ‘information’, whether or not that information was information that would have fallen within the confines of s.424A or not. As the Tribunal did not rely upon the information there could be no breach of s.424A and therefore no jurisdictional error.
Mr Riley who appeared for the Minister made some additional points. He says that the ‘information’ was information that came within the exception provided in s.424A(3)(a) being information that was not specifically about the applicant or another person and was just about a class of persons for which the applicant or other person was a member. He distinguishes this case from that considered by the Full Bench in Minister for Immigration v SZGMF [2006] FCAFC 138 where the information received, while identical to that received in this particular case, was specific to the applicant (at [35]). The Court there set out the relevant part of the Tribunal’s decision:
“[35] . . . ‘Because of the advice received by the Australian High Commission in Dhaka from a senior source within the Awami League I am unable to give any weight to the [respondent’s letter of support]’
[36] The above statement provides no basis for a finding that the Tribunal considered that only the general, and not the specific, information which it had received concerning the respondent’s letter of support would be the reason, or a part of the reason, for affirming the decision under review. It is therefore appropriate to conclude that the information which specifically related to the respondent’s letters of support was information which the Tribunal considered would be (at the least) part of the reason for affirming the decision under review. It necessarily follows that the Tribunal failed to comply with its statutory obligation under s.424A(1)(a).”
The information which this Tribunal received does not relate specifically to the applicant and thus it would fall within the exception. Ms Nolan responds to this argument with a submission that as the Tribunal has invoked s.424A it is bound to act in accordance with its requirements and cannot escape from them just because there was no need to have written the letter in the first place. I have some difficulty in accepting this argument. I cannot understand how there can be a jurisdictional error in failing to comply with the provision of a statute with which there was no obligation to comply in the first place. Halsbury’s Laws of Australia provides at [10-2099] that:
“The question of whether or not a breach of a statutory duty to give reasons renders the decision invalid is a matter of construction of the relevant Act to determine whether it was a purpose of the Act that an act done or not done, in breach of the provision, should be invalid. Thus, a failure to give reasons where there is a statutory duty to supply reasons may indicate that the decision-maker has made a jurisdictional error.” [emphasis added]
There is no suggestion that such a failure in the absence of a statutory duty to provide particular information or give reasons would also amount to jurisdictional error.
In AWAN v Minister for Immigration [2002] FCA 594 Weinberg J discussed the obligations of the Tribunal in the context of s.359A(1) of the Act which is in similar terms to s.424A and provides that the Tribunal must:
“. . .give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”.
At [176]-[177] his Honour opined:
“[176]The statutory context of s359A(1) strongly points to the conclusion that compliance with the section is a precondition for the exercise of the power to determine a review.
[177]Support for the conclusion just expressed is to be found in the language of s359A(1). This section provides that the Tribunal “must” give certain information to the applicant. This is the language of compulsion …”
Clearly the Tribunal ‘must’ comply with s.424A in relation to the information specified in the section. However, this is an obligation which applies to certain information within the confines of s.424A. Such an obligation does not extend to information that the Tribunal is not required to provide to the applicant.
In all the circumstances I must dismiss this application and order that the applicant pay the respondent’s costs, which I assess in the sum of $4,750.00. I order that the name of the First Respondent be changed to the “Minister for Immigration and Citizenship”.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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