SZFTU v Minister for Immigration

Case •

[2007] FMCA 641

•

13 April 2007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFTU v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 641
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate not to grant a protection visa – applicant is a citizen of Bangladesh claiming fear of persecution for reasons of his religion, political opinion and social group – circumstances neither exceptional nor rare – no jurisdictional error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 422B, 424A, 424, 427, 474
Azzi v Minister for Immigration & Multicultural Affairs (2002) 120 FCR 48
M159 of 2003 v Minister fir Immigration & Multicultural Affairs [2004] FCA 426
SZBVM v Minister for Immigration & Citizenship [2007] FCA 332
SZFVL v Minister for Immigration & Multicultural Affairs (2005) 223 ALR 747
SZGLB v Minister for Immigration & Multicultural Affairs (2004) 207 ALR 12
SZIRO v Minister for Immigration & Citizenship [2007] FCA 270
WADU v Minister for Immigration & Multicultural Affairs [2003] FCA 1252
Applicant: SZFTU
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 3629 of 2006
Judgment of: Scarlett FM
Hearing date: 12 April 2007
Date of Last Submission: 12 April 2007
Delivered at: Sydney
Delivered on: 13 April 2007

REPRESENTATION

Counsel for the Applicant: Mr Zipser
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. The title of the first respondent is changed to Minister for Immigration & Citizenship.

  2. The application is dismissed.

  3. The applicant is to pay the first respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3629 of 2006

SZFTU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal.  The decision was signed on 30th October and handed down on 9th November 2006.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa.  The applicant now seeks a review of that decision and seeks relief by way of constitutional writs.

  2. The background to this matter is that the applicant is a citizen of Bangladesh who arrived in Australia in April 2004 and applied for a protection (Class XA) visa on 4th May in that year.  That application was refused and the applicant sought a review of that decision from the Refugee Review Tribunal.  The Tribunal affirmed the decision in a Tribunal decision handed down on 1st February 2005.  On review by the Federal Magistrates Court, a Federal Magistrate ordered on


    17th July 2006 by consent that writs of certiorari and mandamus should issue. 

  3. The application was returned to the Tribunal and the applicant attended a further hearing.  The applicant gave evidence and called another person to give evidence on his behalf.  The substance of the applicant’s claim is that he fears persecution on the basis of his religion as he is a member of the Buddhist religion.  He claimed to have been heavily involved in that religion, and produced two letters relating to his case from representatives of his religion.  The Tribunal put to the applicant that there is a possibility that letters, certainly emanating from Bangladesh, may be forged and put this to the applicant at the hearing.

  4. After the conclusion of the hearing the Tribunal wrote to the applicant on 9th October 2006 in accordance with the provisions of s.424A of the Migration Act. The Tribunal put certain information to the applicant and invited his comments. The Tribunal signed its decision on


    30th October 2006 and handed it down on 9th November. 


    The Tribunal’s findings and reasons can be found on pages 327 through to 339 of the court book.

  5. The Tribunal did not accept that the applicant was telling the truth, and did not accept there was a real chance that he would be persecuted for reason of his religion as a Buddhist or for his real or imputed political opinion, or his membership of a particular social group constituted by Buddhist monks in Bangladesh.  The Tribunal at pages 336 to 337 set out a number of reasons as to why it did not accept the credibility of the applicant’s account, and for those reasons the Tribunal found the applicant did not have a well founded fear of being persecuted for a reason provided under the Refugees Convention if he were to be returned to Bangladesh.

  6. The applicant commenced proceedings in this court for review of that decision by means of an application and an affidavit filed on


    6th December 2006.  He has since then obtained legal representation and Mr Zipser of counsel has appeared for him at the proceedings. 

  7. The applicant has provided late, but provided, a written outline of submissions. The applicant’s submissions consider three matters. First, the circumstances, if any, in which the Tribunal has an obligation to enquire. Second, if the Tribunal has such an obligation subject to s.422B of the Migration Act whether the Tribunal breached the obligation in this case, and third, the effect of s.422B of the Act. Counsel for the applicant drew the Court’s attention to cases where he submitted there were circumstances in which the Tribunal has an obligation to enquire. He referred to the decision of Azzi v Minister for Immigration & Multicultural Affairs (2002) 120 FCR 48 at [112], where Allsop J said:

    It may be, notwithstanding prevailing authority, that a duty to enquire may exist or be seen to arise in certain circumstances but these are understood as being exceptional or rare.

  8. Also in M159 of 2003 v Minister for Immigration & Multicultural Affairs [2004] FCA 426 at [21], Weinberg J stated:

    It can be accepted for present purposes that there will be cases of an exceptional or special character whereby the Tribunal will be obliged to make further enquiries in relation to matters raised by an applicant in support of his or her claim.

  9. I am also referred to the decision of WADU v Minister for Immigration & Multicultural Affairs [2003] FCA 1252 at [33] to [34] where RD Nicholson J sated:

    First, it is clear the provisions of the Act do not mandate an enquiry.  Secondly, the law is cautious in moving towards the existence of any such duty.

  10. I am also referred to the decisions of SGLB v Minister for Immigration & Multicultural Affairs (2004) 207 ALR 12 at [42] to [43] where the High Court of Australia stated, amongst inter alia:

    Secondly, while s.427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so.  Rather, s.426 provides that even if an applicant requests that the Tribunal take oral or written evidence from a witness, such as a medical practitioner or psychiatrist, the Tribunal is not required to obtain such evidence.  Thus the Tribunal is under no duty to enquire.

  11. Counsel for the applicant, however, submitted that this statement by the High Court in SZGLB v Minister for Immigration & Multicultural Affairs (supra) that the Tribunal is under no duty to enquire is limited as follows.  First, that statement was limited to whether the Tribunal had a duty to enquire into the fitness of an applicant to give evidence before it, and second in SZFVL v Minister for Immigration & Multicultural Affairs (2005) 223 ALR 747 at [42] to [43], Driver FM after referring to the decision in SZGLB continued:

    I find that the RRT was under no general duty either to accept the invitation made by the applicant at the hearing to inspect his injuries or to exercise its power under s. 427 of the Migration Act to obtain medical evidence. Neither was the failure by the RRT to enquire further into the nature and extent of the applicant’s injuries unreasonable. The presiding member accepted the applicant’s claim to have had his big toe removed. 
    Having accepted that claim there was no need to verify his enquiry.  The real issue, however, is whether it was procedurally unfair for the presiding member to make an adverse credibility finding on the applicant’s claim of torture by reference to the applicant’s claim that he was forced to attend the local security office seven days after the injury was sustained, without the RRT either obtaining a medical assessment or accepting the applicant’s invitation to inspect his injuries.

  12. The applicant’s counsel submitted that an important issue in this case was whether the applicant was a Deputy Lord Abbott of the International Buddhist Monastery in Dhaka as he claimed. 


    He provided letters from two people which stated that he was Deputy Lord Abbott, and each letter contained a contact telephone number for the International Buddhist Monastery.  Further, the applicant invited and requested that the Tribunal contact the authors of the letters to verify that the letters and their contents were genuine.  In these circumstances it is submitted a duty to enquire arose.

  13. In my view that proposition is not sustainable. I am not satisfied that a duty to enquire arose. As a general rule it may well be said that the Tribunal does not have an obligation, either under s.427 or s.424 of the Migration Act, to make such enquiries. In SZBVM v Minister for Immigration & Citizenship [2007] FCA 332, Tamberlin J said at [16]:

    The third ground of the appeal relates to an asserted duty of the Tribunal to make enquiries under s.427.  The reason why the Tribunal did not make enquiries in this case is set out in the reasons and I can see no error in them.

  14. His Honour went on to say:

    There is no general obligation on the Tribunal to make further enquiries and in my view the circumstances of this case were not such as to generate an obligation on the Tribunal to make further investigations in the absence of any indication that such enquiries would be futile.

  15. Similarly in SZIRO v Minister for Immigration & Citizenship [2007] FCA 270, Heerey J considered a claim by an applicant that the Tribunal had failed to exercise its powers under s.424 of the Migration Act.
    His Honour said at [12]:

    The Tribunal’s power under s.424 is clearly discretionary. 


    The Tribunal does not have a duty to investigate the applicant’s claims.  He referred to SZGLD v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 207 ALR 12 at [42] and [43].

  16. In my view there is no general obligation on a Tribunal to investigate the applicant’s claims either under s.424 or s.427 of the Migration Act. I note the comments by counsel for the applicant and the reference to the decision in AZZI v Minister for Immigration & Multicultural Affairs (2002) 120 FCR 48 at [112], but with the greatest of respect those comments were obiter dicta as his Honour said:

    It may be notwithstanding prevailing authority that a duty to enquire may exist or be seen to arise in certain circumstances that these are understood as being exceptional or rare.

  17. In my view on the facts of this case the circumstances were neither exceptional nor rare. It is not uncommon for applicants to produce documents from people overseas and inviting the Tribunal to contact the authors to verify their testimony. That is not exceptional, that is not rare. The fact is, however, that the prevailing weight of authority is that there is no general obligation on the Tribunal to exercise its powers to make its own enquiries. It remains the obligation of the applicant to produce evidence to the Tribunal that will satisfy the Tribunal that the applicant meets the necessary criterion under s.36(2) for a protection visa. In my view the applicant did not satisfy the Tribunal that he met that criterion, and in my view there is no jurisdictional error.

  18. Accordingly the decision of the Tribunal is a privative clause decision as defined under sub-s.2 of s.474 of the Migration Act. The application must be dismissed with costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  26 April 2007

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