SZFGV v Minister for Immigration - [2006] FMCA 866

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFGV v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 866

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) Visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 422B, 425, 425A, 426A, 441A, 441C, 483A

Yo Han Chung v University of Sydney & Ors [2002] FCA 186
SAAP v Minister for Immigration [2005] HCA 24

Applicant:

SZFGV

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3675 of 2004

Judgment of:

Lloyd-Jones FM

Hearing date:

14 June 2006

Delivered at:

Sydney

Delivered on:

24 July 2006

REPRESENTATION

Advocate for the Applicant:

The applicant appeared in person with the assistance of a Bengali interpreter

Counsel for the Respondents:

Mr G Kennett

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent should be amended to read ‘Minister for Immigration and Multicultural Affairs’.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3675 of 2004

SZFVG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 17 December 2004 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 28 October 2004 and handed down on 18 November 2004, affirming a decision of the delegate of the first respondent made on 4 June 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZFGV”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
The applicant filed an affidavit on 4 May 2005, dated 3 May 2005.
The respondents filed and served an affidavit of Ms B Mendelsohn on 8 June 2006, which was affirmed on 7 June 2006.

Background

The Tribunal decision of Robert Wilson, reference N04/49375, contains the following background information. The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 11 July 2002. On 1 April 2004, he lodged an application with the Department for a Protection (Class XA) visa under the Act. On 4 June 2004, a delegate of the Minister refused to grant a protection visa and on

21 June 2004, the applicant applied to the Tribunal for review of the delegate’s decision.(Court Book (“CB”) 325)
The applicant was born in Chittagong, Bangladesh in 1976 and claims to be an Ahmadiyya. His father and sister live in Bangladesh and his brother in Canada. The applicant has had 15 years of education in Bangladesh and India. He holds a Bachelor of Science (Hons.) degree in Mathematics from the Panjag University, India. He speaks, reads and writes Bengali and English and speaks Urdu. The applicant stated that he belonged to the Ahmadiyya Muslim Jamaat (“AMJ”), that he was born into an orthodox Sunni Muslim family and practiced the same since early childhood. The applicant stated that he came across some members of the AMJ of Bangladesh, which changed his life. He joined them in 1991 while studying in Mohsin College, Chittagong. He claims that he tried to reform present Muslim ideologies in the region.
The applicant was involved in a series of disputes because of his membership of the AMJ. This led him to escape to India, where he resided for three years before returning to Bangladesh. In India, he had problems with fundamental Hindus due to his Muslim identity. He returned to Dhaka in July 1999 and lived in the Mohammadpur area, which was popular with the AMJ. However, there were attacks on AMJ members. He ran a computer business until his affiliations with the AMJ were known, which resulted in a loss of customers and his place of business was burnt and destroyed. This led to the applicant’s bankruptcy and his ultimate decision to come to Australia to save himself from public persecution and to protect his faith.(CB 330-331)

Tribunal’s findings and reasons

The Tribunal wrote to the applicant indicating that it was unable to make a favourable decision on the information supplied in its application and invited him to give oral evidence and present arguments at a hearing on 25 October 2004. The invitation was sent by registered mail to the applicant and his authorised recipient. However, there was no reply and no attendance at the hearing. The Tribunal decided to proceed with its decision without further notice. The Tribunal noted the applicant’s claims of his conversion to the AMJ and in respect of disputes with Sunni Muslims. It also noted the time that the applicant spent in India and his claimed disputes with Indian Sunni Muslims and fundamentalist Hindus.
The Tribunal found that there were insufficient particulars provided by the applicant to enable it to be satisfied of his involvement in these disputes and his commitment to the AMJ faith. As the applicant had failed to attend the Tribunal hearing, it was unable to test its credibility in relation to these matters. Neither was the Tribunal able to ascertain details regarding his science degree from Panjag University amidst the alleged turmoil that the applicant faced due to his participation in AMJ activities. As the applicant failed to attend the Tribunal hearing, the member was not able to ask these questions to the applicant.
The Tribunal made the following observation in its decision (CB 334):
As a result, I am not satisfied that the applicant is an Ahmadiyya, nor that he has been of adverse interest to the fundamentalist Muslims, including the Islami Chhatra Sibir. Neither am I satisfied that he was a reformer of traditional Muslim ideologies, with consequent risk to his life, being tortured, put in hospital for a month, hiding for a year, missing his HSC exam, changing addresses, having his religious observances interrupted, being threatened with death on several occasions, being beaten with heavy sticks, being chased, attending and participating in public gatherings, giving a speech, being beaten again, accused of being Kafir, admitted to hospital again, having plans hatched to kill him, ‘escaping’ to India, facing misconduct and maltreatment there, being at risk of being killed, rejoining the reform movement, having his house attacked and valuables destroyed, losing his business and becoming bankrupt.
Consequently, the Tribunal was unable to be satisfied from the evidence before it that the applicant faced a real chance of persecution should he return to Bangladesh now or in the foreseeable future.

Application for review of the tribunal’s decision

On 17 December 2004, the applicant filed an application for review in this Court under s.39B of the Judiciary Act. On 4 May 2005, the applicant filed an amended application, which repeated the five original grounds and added another six. The grounds of the application are as follows:
1.The purported decision of the Tribunal does not reflect that it was made in good faith according to the rules of natural justice.
2.The Tribunal did not adequately explain the definition of refugee within the meaning of the UN Convention and Protocol and the Australian common law.
3.The Tribunal erred in law in making the decision as it is not supported by any country information. In the absence of such material it is clear that the Tribunal did not consider any country information it had available to it.
4.The Tribunal erred in law because it did not review the information the Applicant provided in writing.
5.The Tribunal erred in law in not comparing the evidence the Applicant provided with the independent information it had regarding the treatment of Ahmadiyya in Bangladesh.
6.The Applicant did not attend the hearing because he did not receive the letter from the Tribunal dated 17 September 2004 (Green Book – “GB” – p.319) inviting him to the hearing on 25 October 2004. The Tribunal was unable to test the credibility of the Applicant on the Applicant’s assertions relating to his religion and activities and thereafter proceeded to make adverse findings against the Applicant in respect of these activities, in particular: his religion, the risk to his life, torture, hospitalisation, hiding, missing exams, interruption of religious observances, death threats, travel to India, attack on his house and loss of his business. (GB p.334).
7.Whilst the address to which the letter of 17 September 2004 was apparently despatched was the home and mailing address shown on the Application for Review, if the Tribunal was proposing to make the findings it did in respect of the Applicant it should have made a further attempt to contact him at the phone numbers (2) shown at GB p.314.
8.The letter of 17 September 2004 was apparently despatched by registered mail as was a copy of letter to the Applicant dated 4 June 2004 from DIMIA (see GB pp.303/304) which the Applicant also did not receive at 2/19 Queens Road Westmead NSW 2145 (although he did receive this letter via the principal addressee Mr Mofazzal Haque Kazi). The Applicant does however acknowledge receiving a letter sent to him at 2/19 Queens Road Westmead NSW 2145 dated 21 June 2004 from the Tribunal (GB p.316) – NOT despatched by registered mail. This letter was acknowledged by the Applicant with his letter of 1 July 2004 (GB p.318). The (mobile) phone number (0431633097) shown on that letter was identical to the one shown at GB p.314 (see para. 7 above).
9.Similarly the Applicant did not receive letter to him from the Tribunal dated 29 October 2004 (GB p.321) apparently despatched by registered mail but does acknowledge receiving letter from the Tribunal dated 18 November 2004 (GB p.323) NOT despatched by registered mail.
10.Accepting the Applicant’s evidence that the letters of 29 October 2004, 17 September 2004 and 4 June 2004 were not received by him at 2/19 Queens Road Westmead NSW 2145 but the letters of 18 November 2004 and 21 June 2004 were, it is open to the Court to conclude that the letters apparently despatched by registered mail did not reach the Applicant. There is NO EVIDENCE of the Applicant receiving such correspondence (such as a signed registered letter receipt).
11.If the Court concludes that the Applicant did not receive the letter advising him of the Tribunal hearing (notwithstanding the deeming provisions in the Migration Act 1958), the Applicant has been denied procedural fairness in not having had the opportunity to personally present his case to the Tribunal, particularly in view of the Tribunal’s findings and conclusion at GB pp.334/335. (copied without alteration or correction)

Reasons

The applicant is a self-represented litigant and appears with the assistance of a Bengali interpreter. The applicant attended a directions hearing on 7 February 2005 where a number of consent orders were made. The applicant was required to file and serve an amended application giving complete particulars of each ground of review, which has been complied with. The applicant was also ordered to file and serve written submissions 14 days prior to the hearing. This order has not been complied with. When the applicant was invited to make oral submissions in support of his application, he raised the issue of not receiving notification from the Tribunal about the Tribunal hearing scheduled on 25 October 2004. The applicant indicated that there were issues which he wished to raise with the Tribunal in respect of his claim, but that he was denied this opportunity. The applicant claims that this breached the Tribunal’s duty in respect of procedural fairness and resulted in jurisdictional error.
Mr Kennett, appearing for the respondents, read the affidavit of Ms B Mendelsohn, which contained as annexure a copy of the Tribunal’s letter forwarded to the applicant and the applicant’s authorised recipient by registered mail. Attached to that letter is the registered mail reference numbers which confirms despatch and a copy of the Tribunal’s registered post records with the addresses of the applicant and his authorised recipient. Mr Kennett then reviewed the legislative regime which outlined the requirements to be observed by the Tribunal in notifying the applicant of the intended Tribunal hearing.
Part 7, Division 4 of the Act contains provisions for the conduct a review by the Tribunal. Section 422B(1) of the Act states:
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
Section 425(1) of the Act states:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Section 425A of the Act states:
(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
Section 441A(4) of the Act states:
(4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and …
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review.
In the application for review to the Tribunal, the applicant gave his residential address. He also gave the postal address of his authorised recipient.(CB 313-314)
The Tribunal letter of 17 September 2004 addresses the letter to the applicant. Annexed to this letter is the registered mail reference number RP209222692.(CB 319) At the foot of the letter appears the address of the authorised recipient and next to it the registered mail reference number RP20922691. Both of these addresses that appear in Tribunal’s registered post records match the details contained in the application for review filed with the Tribunal on 21 June 2004. There is no evidence that the addresses were changed between the date of filing and the dispatch of the relevant letters. Section 441C(4) of the Act states:
(4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document;
Section 426A of the Act states:
(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
As the applicant did not attend the scheduled Tribunal hearing, application was decided on the papers before the Tribunal. Based upon the material before it, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal member was unable to be satisfied from the evidence before him that the applicant faces a real chance of persecution should he return to Bangladesh now or in the foreseeable future.
Mr Kennett submits, and I agree with his submission, that the Tribunal did what the Act requires of it; and the evidence before me supports this contention.
In respect of all the other grounds of review, the applicant indicated that he relies upon the amended application filed on 2 May 2005 and did not wish to make any further oral submissions. Mr Kennett, appearing for the respondents, filed written submissions which addressed each of the grounds contained in the amended application.
In respect of the first ground, which raises the issues of good faith and natural justice, there is no basis for the contention that the Tribunal made its decision otherwise than in good faith. I believe that this ground has been responded to at [15] to [20] above.
The second ground complains that the Tribunal did not adequately explain to the applicant the definition of refugee. Mr Kennett submits that the Tribunal was not under any legal obligation to explain the Convention definition of a refugee. The Tribunal is entitled to proceed on the basis that someone who has applied for a protection visa has considered the criteria for grant of that visa, and has advanced such claims and supporting evidence as he or she wishes to. The Tribunal, in its decision under ‘Definition of “Refugee”’, set out briefly the Convention definition of “refugee”, together with authorities which establish criteria to be applied by the Tribunal and other judicial bodies in considering that definition. The Tribunal then set out the four key elements to the Convention definition in determining claims brought seeking a protection visa.
Grounds three and five of the amended application raise a complaint about the Tribunal’s use of country information. The Tribunal was not prepared to accept the applicant’s unsubstantiated assertions that he is an Ahmadiyya. In the circumstances, no occasion arose for the Tribunal to consider country information about the position of Ahmadiyya supporters and followers in Bangladesh. The Tribunal was unable to accept the propositions put forward by the applicant and did not reach the level requiring it to test any of those claims against independent information. Grounds three and five cannot be sustained.
The fourth ground claims that the Tribunal erred in not reviewing the information the applicant provided in writing. Mr Kennett submits that the Tribunal was under no obligation to refer in detail to material that it found unconvincing or irrelevant. Mr Kennett submits that it cannot be inferred that the Tribunal did not have regard to the written material submitted by the applicant. The Tribunal, in its decision under ‘Claims and Evidence’, set out the material that the applicant supplied but as the applicant failed to attend the Tribunal hearing as invited, the Tribunal had to rely on the information supplied by the applicant in his original visa application. This was further supplemented by a letter dated 31 May 2004. However, the Tribunal was not satisfied that it could test the veracity and reliability of this material without a hearing with the applicant present. This ground cannot be sustained.

The sixth to eleventh grounds are new and first pleaded in the amended application. They focus on the applicant’s claim that he did not receive an invitation to the Tribunal hearing. These grounds suggest that the Tribunal failed to despatch a hearing invitation in accordance with s.441A(3) and consequently s.425A(2) of the Act. Each of the relevant requirements of the Act have been addressed at [15] to [20] above. The recipient of the invitation, the applicant’s authorised recipient, is thus conclusively deemed to have received the invitation seven working days after its date of issue, being 28 September 2004. Mr Kennett submits that the Tribunal’s obligation was satisfied by issuing the invitation in the required manner. In light of s.422B of the Act, the general law principles of procedural fairness could not require the Tribunal to do more than it did. These grounds cannot be sustained.

Conclusion

The applicant in these proceedings is a self-represented litigant. As the applicant is self-represented, this places an obligation on this Court to independently consider whether any argument based on the material could have been made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186. The applicant participated in the Court’s Legal Advice Scheme and complied with the Court’s orders to file an amended application. It appears the applicant received some assistance in the preparation of his amended application, as a series of new issues were raised which focus on appropriate bases for review.
Mr Kennett, counsel for the respondents, assisted the Court with written and oral submissions addressing the issues raised by the applicant. To fulfil the Court’s obligation, I have considered all the material contained in the Court Book and reconsidered the Tribunal decision. On the face of the documents before me, I have been unable to identify any jurisdictional error; consequently the application should be dismissed. I believe the applicant appreciates that the Tribunal performed its obligation in accordance with the Act. This was apparent to the applicant at the end of the Court hearing after Mr Kennett addressed in detailed the operation of provisions of the Act. The applicant expressed his disappointment and requested that his matter be returned to the Tribunal to provide him with an opportunity to explain his claim personally to it.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to this application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 21 July 2006