SZGCF v Minister for Immigration - [2006] FMCA 1923

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGCF & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1923

MIGRATION – Review of Refugee Review Tribunal decision – the Tribunal did not comply with the mandatory obligations contained in s.424A of the Migration Act – reference to reported authorities constitutes information – Tribunal’s failure to ensure applicants understood relevance of “this information” – Tribunal did not give the applicants notice of the particulars of the authorities – Tribunal generalised the applicants’ claims.

Migration Act 1958, ss.44A(3)(a), 44(3), 424A, 475A

Judiciary Act 1903 (Cth)

Vaf v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Miea v Wu Shan Liang (1996) 185 CLR 259

First Applicant:

SZGCF

Second Applicant:

SZGCG

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 947 of 2005

Judgment of:

Burnett FM

Hearing date:

8 December 2006

Delivered at:

Brisbane

Delivered on:

22 December 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Ms V McWilliam

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the application filed 27 June 2005 is dismissed.
That the applicants pay the respondent’s costs fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 947 of 2005

SZGCF

First Applicant

SZGCG

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By application made 18 April 2005, and subsequently amended on 27 June 2005, each of the applicants seek orders pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.475A of the Migration Act 1958 (Cth) (“the Migration Act”) seeking to set aside a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 March 2005, refusing the applicants and their child a protection visa.

Background facts

The first applicant is married to the second applicant. Their daughter was not an applicant in the application before the Court. The daughter’s rights will be determined upon the outcome of this application as each of the first and second applicants are applicants for substantive relief for provision of a protection visa pursuant to s.36(2)(a) of the Migration Act. If the applicants fail in their application before this Court then their daughter would not be entitled to a protection visa, pursuant to s.36(2)(b). In other words, her rights will follow upon a determination of the applicants’ rights in accordance with this application.
The applicants are citizens of Bangladesh. Each of them was born in Bangladesh.
The applicants, as a family, departed Bangladesh on or about 3 March 2004 and proceeded from there to New Zealand. On or about 15 August 2004 the applicants departed from New Zealand and travelled to Australia, arriving in Australia that same day. The applicants travelled from Bangladesh to New Zealand and subsequently on to Australia by passport. Each of the first and second applicants noted in their travel to Australia that they entered as visitors for the purpose of a “visit”. It does not appear that they had any other material aside from their passports for the purposes of travel.
Despite arriving in Australia on or about 15 August 2004 an application for a protection visa was not made by each of the applicants until 12 September 2004.
The first applicant applied for a protection visa on the basis that he was a refugee within the meaning provided for in the Convention because of political association he had with a political party in Bangladesh entitled the Jatiya Party. He maintained that he had been a leading member of that party between 1988 and 2004. He further maintained that by reason of his membership of that Party he had in particular become involved in a controversial programme advocating for the construction of a dam in the Dhaka City and Mohammdapur region. He maintained his involvement on behalf of the Jatiya Party in respect of that matter brought him to the advert attention of the Party’s political opponents, including the BNP and Awami League. He claimed that by reason of this affiliation his brother was assaulted. He maintained that his brother subsequently died from the injuries sustained during that assault. He claimed further that after the death of his brother he was subject to threatening telephone calls and calls threatening to kill and or hurt his family. These events were alleged to have occurred sometime in late 2000.
The first applicant alleged that in late 2002 he was confronted by a group of persons unknown to him who attacked he and his wife as they approached the Party office.
He alleged that out of desperation he and his family left Bangladesh and sought to travel to Australia for protection.
The second applicant also claims Convention status on her own behalf. She alleges that by reason of her relationship with her husband she was subject to a serious assault in late 2002 by reason of which she has suffered a significant injury to her right hand.
By letter dated 20 September 2004 the applicants were informed that their application for a Class (XA 866) visa had been refused. A copy of the Delegate’s decision record in respect of their applications was attached to that letter. In a reasoned decision the Delegate concluded that after taking into account all of the evidence he was satisfied that in the foreseeable future the prospect of the applicants facing mistreatment amounting to persecution in Bangladesh on account of their political opinions or for any other Convention reason was remote.
The applicants subsequently made application for review to the Tribunal by application dated 19 October 2004.
By letter dated 13 December 2004 the Tribunal wrote to the applicants inviting them to attend at the Tribunal to give oral evidence and to present arguments in support of their claims. They were also informed that they would be permitted to ask the Tribunal to obtain oral evidence from another person or persons. The appointed time for the hearing was Thursday, 17 February 2005 at 1.00pm.
Upon being informed of that hearing date the applicants, by their migration agent, East West Immigration Services, wrote to the Tribunal requesting another date because the second applicant was to undergo surgery in respect of the injury to her hand. Accordingly, by letter dated 18 January 2005, the Tribunal informed the applicants that the hearing date for the application had been brought forward to Monday, 14 February 2005 commencing at 1.00pm. Subsequently, by notice of a “response to hearing invitation” dated 28 January 2005, the applicants informed the Tribunal of their intention to attend at the hearing and their requirement to have available an interpreter. It was foreshadowed in their application that both the first and second applicants would give evidence.
The Tribunal hearing proceeded on that date and by letter dated 8 March 2005 the Tribunal forwarded the applicants an invitation to attend upon the handing down of the decision which was scheduled to occur at 2.30pm on 29 March 2005.
In accordance with the foreshadowed determination the decision was handed down on 29 March 2005. By letter of that date, the Tribunal’s formal determination that the applicants were not entitled to a protection visa was notified to them. A copy of the Tribunal’s decision and reasons was attached.
In broad terms, whilst accepting the applicants claim that they had been subjected to life threatening harm in Bangladesh and that the applicants’ brother was beaten by unknown persons and that the applicants themselves were attacked and beaten by unknown persons and, further, that the applicants had received anonymous telephone calls from a person or persons who threatened members of his family, the Tribunal was not satisfied that there was sufficient evidence to conclude that these attacks were politically motivated or that the first applicant’s involvement with the Jatiya Party motivated the attacks.
Accordingly, the Tribunal concluded that the applicants did not have a well-founded fear of persecution in Bangladesh for reasons of political opinion and, accordingly, they were not Convention parties.

Grounds of review

In their amended application, the applicants maintained that the Tribunal’s decision was “infected by jurisdictional error”. They alleged five particulars of that allegation, namely:

Ground 1: The Tribunal did not comply with the mandatory obligations contained in s.424A of the Migration Act.

In the amended application the applicants contend that s.424A of the Migration Act was introduced to impose upon the Tribunal a “similar regime” providing procedural fairness.” It noted the obligation of the Tribunal to give the applicants particulars of information would be a part of the reason for affirming the decision under review. It then proceeded to complain that the Tribunal had regard to information that was part of the reason for its decision however “apparently the requirements of s.424A of the Migration Act were not practiced in this instance and therefore there is a non-compliance of s.424A of the Migration Act by the Tribunal.”
Beyond that bald assertion there was no particularisation of the information to which the Tribunal is said to have had regard for the reason for its decision but to which it did not afford particulars to the applicant.
From a review of the material which was considered by the Tribunal and from a review of the Tribunal’s decision it does not appear to me that there was any “information” formed part of the reason for its decision in respect of which the Tribunal failed to afford the applicants notice as required by s.424A. A significant part of the Tribunal’s decision concerns country information which information from s.424A obligations by operation of s.44(3).
I do not accept that the applicants have made out this ground of their application.

Ground 2: Reference to reported authorities constitutes information.

The second ground of the applicants’ application is that various authorities which were referred to in the Tribunal’s determination being reported authorities constituted information for the purposes of s.424A. Furthermore it is contended that the information was the basis for rejecting the applicants’ application and that the Tribunal erred in its failure to serve the details of materials or part of those materials used in making the decision of the applicants’ application.
In her submissions Counsel for the Minister submitted that reported authorities did not constitute “information” in the meaning provided for in s.44A. In support of her submission she referred to the decision of the Full Court of the Federal Court of Australia in Vaf v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206ALR 471. At paragraph 24 the majority, Finn and Stone JJ observed:
“[24] --, there is now a considerable volume of case law concerned with the compass of the term “information” in its s.424A setting. The following propositions emerge from it:
(i)the purpose of s.424A is to provide in part a statutory procedural analogue to the Commonwealth of procedural fairness;
-- however the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice--;--
(ii)“information” in s.424A has the same meaning as in s.424; --
-- and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal; --
-- irrespective of whether it is reliable or has a sound factual basis; --
(iii)the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations; --; nor does it extend to identify gaps, defects, lack of details or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc; --.”
Clearly legal authorities do not constitute facts or circumstances and their consideration involves the Tribunal’s subjective appraisals or thought processes or determinations. Upon the basis of those two criterion, it is clear that legal authorities do not constitute information. As to whether it constitutes information in terms of having part of the “statutory procedural analogue to the common law of procedural fairness” is a matter that must be considered by the further observations of the Full Court of the obligation that is imposed to be coextensive with that which might be imposed by the common law to avoid practical injustice. The authorities referred to by the Tribunal concern the definition of a refugee. They provide guidance to the Tribunal as to the manner in which the term is to be construed. Irrespective of whether the authority proffered to the applicants it is clear from an analysis of the authority’s decision of the factual matters against which the authorities provide the definition is to be measured were matters which were necessarily addressed by the Tribunal in the course of its hearing irrespective of whether the authorities themselves were expressly referred to the applicants. Whilst it is clear that if the Tribunal were to proceed upon the hearing of the application and rely upon an argument which one party had not had the opportunity to consider or make submissions upon there would have been a denial of procedural fairness. That is not the case in this instance. In this instance the authorities simply point to the relevant evidentiary matters to be addressed. It appears to me with respect to be the very essence of the majority’s decision in Vaf noting in particular that the obligation imposed by common law is one to avoid “practical injustice”. In this case the authorities provide guidance on the facts. What is critical is that the factual issues are addressed in such a way as to satisfy the matters which the authorities now require to be satisfied in order to demonstrate the applicants were refugees. In my view no injustice or procedural fairness was occasioned by any express absence to refer to the authorities in the course of matters preliminary to the determination. This is particularly so in circumstances where although the authorities are referred to as identifying occasions that the High Court has considered the definition of refugee, the authorities themselves are not further discussed and so it does not appear that beyond their broad reference the authorities could be said to have raised arguments or issues that should have been expressly identified to the applicants beyond the application. Quite clearly the authorities are referred to in a very general sense and indeed could be said to be odious to the overall decision. I accept the submissions made by Counsel for the Minister that the authorities referred to in the Tribunal’s determination did not constitute “information” within the meaning provided for in s.424A.
Furthermore even if I were wrong on that matter, I agree with the submission made by Counsel for the Minister that even if the information was “information” for the purposes of s.424A, s.424A is not enlivened because information was not specifically about the applicants and accordingly fell within the exclusion of clause s.44A(3)(a).
In my view the second ground thus fails.

Ground 3: Tribunal’s failure to ensure applicants understood relevance of “this information”.

With respect to the applicants, this particular allegation is broad in its expression and in the absence eof particularisation and/or argument to support it, appears to be without foundation. At its highest it appears to me that the effect of the submission is that the Tribunal failed to ensure that as far as reasonably practical, the applicants understood why they being refugees was relevant to the review. It appears to me that that approach would interpretate into the circumstances of the applicants’ case, the effect of the Tribunal’s express failure to inform them of the authorities that it relied upon.
It can be seen from the earliest documentation in respect of this claim, being the application for a protection visa that the question of refugee status was paramount at all times. The status of that question did not diminish as the review process progressed. In my view, there can be no basis to support the submission made by the applicants that the Tribunal failed in its obligation to ensure as far as reasonably practicable that the applicant understood why its need to demonstrate it was a refugee was relevant to the outcome.
I consider this ground fails.

Ground 4: The Tribunal did not give the applicants notice of the particulars of the authorities.

For reasons discussed at paragraphs … above I do not consider the Tribunal was under any obligation to provide the applicants with that information in this case. I will not rehearse those reasons here. In my view this ground also fails.

Ground 5: The Tribunal generalised the applicants’ claims.

The applicants’ claims in this regard appear to collect together and broadly allege complaints by the applicant concerning the merits aspect of the Tribunal’s decision making process. It is well settled that the court cannot review the merits of the Refugee Review Tribunal’s decision: Miea v Wu Shan Liang (1996) 185CLR 259 at 272.
In my view, this ground too must fail.

Conclusion

In conclusion I consider that the applicant has failed to demonstrate any basis upon which the determination of the Tribunal can be reviewed. The application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate: Bev Schmidt

Date: 22 December 2006