SZGLM v Minister for Immigration
[2007] FMCA 1119
•12 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGLM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1119 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious persecution in Bangladesh – whether the Tribunal breached s.430 of the Migration Act 1958 (Cth), gave genuine consideration to the applicant’s response to a s.424A invitation or prejudged that response considered – observations on when a tribunal decision is made and when the statutory function of a tribunal is exhausted. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.54, 424A, 430, 430B, 430D |
| Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 Craig v State of South Australia (1995) 184 CLR 163 Ex parte Schofield; Re Austin (1953) 53 SR (NSW) 163 Grassy v The Queen (1989) 168 CLR 1 Hosler v Maughan (1989) A 40 Crim R 281 Khadem v Barbour (1995) 38 ALD 299 Livesy v New South Wales Bar Association (1983) 151 CLR 288 NAFT v Minister for Immigration [2003] FCAFC 254 Singh v Minister for Immigration [2001] FCA 73 Singh v Minister for Immigration [2001] FCA 389 Sun v Minister for Immigration (1997) 81 FCR 71 SZBLY v Minister for Immigration [2007] FCA 765 Yusuf v Minister for Immigration (2001) 180 ALR 1 |
| Applicant: | SZGLM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG48 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 12 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 July 2007 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr J A C Potts |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG48 of 2007
| SZGLM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 24 November 2006 and was handed down on 14 December 2006. The Tribunal affirmed a decision of a delegate of the minister not to grant the applicant a protection visa. Background facts relating to the applicant's arrival in Australia, his protection visa claims, his review application and the Tribunal's decision on it are set out in written submissions filed on behalf of the minister on 5 July 2007. The applicant had not received those submissions before coming to Court today but read them before I came onto the bench. I adopt as background, with minor amendments, paragraphs 2 to 10 of those written submissions:
The applicant is a 32 year old citizen of Bangladesh.[1] He arrived in Australia on 4 July 2004.[2] He submitted an application for a protection visa on 15 July 2004.[3] He claimed to fear persecution on the ground of religion.[4]
Following the refusal of his application on 12 October 2004, on 9 November 2004 the applicant sought review by the Tribunal.[5] On 14 February 2005 the applicant attended a hearing before the Tribunal as originally constituted.[6] On 15 February 2005 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) ("Act").[7]
On 5 May 2005 the Tribunal, as originally constituted, handed down its decision affirming the delegate’s decision.[8] By order of this Court made on 20 April 2006 that decision was set aside.[9] The applicant attended a further hearing before the Tribunal as reconstituted on 25 July 2006.[10]
On 29 August 2006 the Tribunal wrote to the applicant pursuant to s.424A of the Act.[11] The letter noted that the applicant’s original claims and supporting materials had been referred by the Tribunal to the Australian High Commission in Dhaka and that the High Commission had given certain information to the Tribunal. The applicant responded to this letter by letter dated 19 September 2006.[12] He also submitted a number of further documents.[13]
The Tribunal wrote a further s.424A letter to the applicant on 31 October 2006.[14] The letter related to further material received from the Australian High Commission in Dhaka. The applicant responded by a letter dated 19 November 2006, but not received by the Tribunal until 30 November 2006.[15] Again, further documents were enclosed.[16] It is evident from a file note made by the Tribunal member that this material was received after the signing of the decision but prior to its handing down. It is also evident from this file note that the Tribunal member considered the response to the second s.424A letter.[17] The Tribunal’s decision was handed down on 14 December 2006 and affirmed the decision of the delegate.[18]
The Tribunal’s decision
The Tribunal concluded that the information obtained from the Australian High Commission left the applicant: “Devoid of credibility as to his claim to have a role in his church, to have been involved in converting Muslims to Christianity and to have suffered on various occasions as a result. The general country information on the conversion of Muslims to Christianity is also contrary to the claims and history in the documents submitted by the applicant.”[19]
The Tribunal noted that the applicant had submitted letters and other documents in support of his claims, but to the extent that those documents conflicted with the advice from the High Commission, the Tribunal preferred the advice of the High Commission.[20]
Accordingly, the Tribunal did not accept that the applicant was assaulted or threatened in any way on any occasion by reason of his religious activities. It did not accept that he was at any time involved in proselytising activities amongst Muslims or that he would so engage in such activities if here were to return to Bangladesh.[21]
The Tribunal did not accept that there was a real chance of the applicant suffering harm amounting to persecution in Bangladesh for reason of his religion or any other Convention reason. To the extent that the applicant’s claims were capable of implying a fear of persecution for reason of his political opinion, the Tribunal rejected that claim for the same reason.[22]
[1] court book (CB) at 13-14.
[2] CB at 15.
[3] CB at 1-66.
[4] CB at 28-30.
[5] CB at 80-102.
[6] CB at 135.
[7] CB at 136.
[8] CB at 140.
[9] CB at 143.
[10] CB at 161-162.
[11] CB at 179-182.
[12] CB at 183-186.
[13] CB at 187-192.
[14] CB at 193-195.
[15] CB at 198-200.
[16] CB at 201-204.
[17] CB at 205-206.
[18] CB at 209.
[19] CB at 228.2.
[20] CB at 228.3.
[21] CB at 228.5.
[22] CB at 228.6.
These proceedings began with a show cause application filed on 8 January 2007. In that application, the applicant asserted actual notification of the Tribunal decision on 14 December 2006. On that basis, I find that the show cause application was filed within time.
I gave directions in relation to that application on 14 February 2007. On 26 April 2007 I conducted a preliminary hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). I ordered the Minister to show cause why relief should not be granted in relation to grounds contained in an amended application filed on 30 March 2007, by reference to discussion occurring at the show cause hearing conducted on 26 April 2007. The terms in which I framed that order could have been more clear and there was an issue whether rule 44.13(2) of the Federal Magistrates Court Rules imposed restrictions on the grounds the applicant was entitled to rely upon at the final hearing. In the result, the Minister was content to address all issues on the face of the amended application on which applicant now relies, as well as the issues raised during argument at the show cause hearing.
The applicant also filed written submissions on 9 July 2007. Those submissions broadly repeat the assertions in the amended application. The applicant no longer relies on his affidavit filed with his original application. The only evidence I have before me is contained in the court book filed on 7 March 2007.
The applicant chose not to make any oral submissions in support of his amended application.
There is no substance to the three grounds of review in the amended application. I agree with and adopt for the purposes of this judgment paragraphs 13 to16 of the Minister's submissions:
The first ground of review alleges that the Tribunal failed to exercise its jurisdiction under the Act. Particulars to this ground allege that the Tribunal gave no weight to the documents which the applicant submitted and that the Tribunal did not make any positive attempt to resolve the conflict between the Australian High Commission’s findings and the applicant’s response in relation to his claims.
The Tribunal resolved any conflict between information obtained from the Australian High Commission and materials submitted by the applicant by preferring the material obtained from the Australian High Commission. The weight to be given to particular pieces of information was entirely a matter for the Tribunal when assessing the merits of the applicant’s case. The way in which the Tribunal weighed that evidence involved no error, let alone a failure to exercise jurisdiction.
Second ground of review
The applicant alleges that the Tribunal acted in excess of its jurisdiction by making comments that it did not accept that there was a real chance of the applicant suffering harm amounting to persecution in Bangladesh by reason of his religion, or for any other Convention reason should he return there in the foreseeable future. By making this statement, which summarised its ultimate conclusion, the Tribunal did not in any way act in excess of its jurisdiction. To make an ultimate finding in these terms was precisely the task the Tribunal was charged by statute to perform.
Third ground of review
The applicant alleges that the Tribunal applied “the wrong test to assess my credibility”. The applicant also alleges that the Tribunal ignored his claim about converting Muslims to Christianity, did not follow the proper procedure to assess his credibility and ignored his claim to have had a role in the church in converting Muslims to Christianity. The reality is that the Tribunal did not ignore any of these matters, nor did it err in the way in which it assessed the applicant’s credibility. The factors which the Tribunal used to assess the applicant’s credibility were both logically probative and entirely open on the evidence before the Tribunal.
The real issues in this case are those which arose at the show cause hearing. These are correctly identified in paragraph 17 of the Minister's written submissions:
At the show cause hearing, the Court raised questions as to whether or not:
(a)the Tribunal breached s.430 of the Act;
(b)gave meaningful consideration to the second s.424A reply; and/or
(c)prejudged the applicant’s second s.424A reply, as the file note was dated the same day as the s.424A reply was received and the Tribunal had had ample time to amend its written reasons but chose not to do so.
The Minister's submissions in relation to those issues are contained in paragraphs 18 to 23 of the submissions:
Failure to comply with 430 of the Act is not jurisdictional error, see: NAFT v MIMA [2003] FCAFC 254 at [7].
The Tribunal’s obligation in relation to the response to the second s424A letter was to consider that material. It plainly did so, as is evidenced by the Member’s file note.[23]
In any event, the Minister does not accept that it is jurisdictional error to not give a matter “meaningful consideration”.
The recognised category of jurisdictional error is in fact “to ignore relevant material” (Craig v State of South Australia (1995) 184 CLR 163 at 179.7). This category of jurisdictional error is not concerned with the weight to be given to material put before a decision maker, or an assessment of whether that material has been considered “adequately”, but rather, whether or not that decision maker has had regard to, and considered, the material in question in making its decision, or, to use the language of Craig, whether it has “ignore[d] relevant material”.
To the extent it is necessary to give “meaningful consideration” to material, the Tribunal plainly did so in this case.
The fact that the Tribunal Member chose not to recall and alter reasons which were signed but not handed down does not in any way demonstrate bias in the form of pre-judgment by the Tribunal Member. The material in the response to the second s424A letter was not at hand when the Tribunal Member originally signed the decision. There was no forewarning that that material was coming. Upon receipt of that material, the Tribunal Member considered that material as evidenced by the file note. An ordinary lay observer, cognisant of the circumstances, would not conclude that there was an apprehension of bias in such circumstances. The Tribunal was not under any obligation to redraft reasons in order to refute bias in those circumstances. The fact that a decision-maker has formed a preliminary conclusion about an issue is not sufficient to indicate bias: “There will be actual bias only when preliminary views are incapable of alteration”, see: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 123.
[23] CB at 206.
The first issue is whether he Tribunal met its obligation to provide reasons pursuant to s.430 of the Act and, if not, whether that discloses any jurisdictional error. The section relevantly states:
(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.
I accept from the decision of the Full Federal Court in NAFT v Minister for Immigration [2003] FCAFC 254, as well as the High Court decision in Minister for Immigration v Yusuf (2001) 180 ALR 1 referred to in that case, that it is for the Tribunal to determine the issues to be addressed in its reasons and a failure to comply with the terms of s.430 does not itself establish a jurisdictional error, although it might point to one.
In my view the Tribunal in this case, misunderstood when a decision of the Tribunal is made. The presiding member had before him the applicant's response to the second of two invitations to comment sent pursuant to s.424A of the Migration Act. The relevant invitation is that set out on page 193 of the court book. That invitation called for a response to be received by 23 November 2006. As is noted on page 198 of the court book, the applicant's response was received a week late, on 30 November 2005. That was six days after the presiding member had signed the Tribunal decision but well before the decision was handed down.
The presiding member signed, and presumably wrote, his file note relating to the applicant's response to the second s.424A invitation on 30 November 2006. He states that he had considered the applicant's response, notwithstanding that it was late, but that it did not alter his decision for eight numbered reasons. It concludes:
For all the above reasons, I see no need to recall or alter my decision.
The file note is preceded by a Tribunal form (CB 205) where either the presiding member or a Tribunal officer has ticked a box stating:
I have decided not to recall my decision record.
The Migration Act is silent about the signing of decisions. I can see no legal obligation, either under the Act or generally, for a decision to be signed by a presiding member. The Act does impose an obligation on the Tribunal to hand down its decisions, with the exception of decisions given orally or where the decision is on the application of a person who is in immigration detention (see s.430B of the Migration Act). Subsection (4) of s.430B states that:
The date of the decision is the date on which the decision is handed down.
The legal effect, in my view, is that there is no Tribunal decision until it is handed down, where there is an obligation for a decision to be handed down. There is no question of recalling a decision before it has been handed down; no decision has been made. The apparent error by the presiding member is reinforced by the statement in the reasons, on page 227 of the court book, immediately above the heading, "Findings and Reasons":
No reply had been received from the applicant at the time of the decision.
It is clear from the context in which that statement is made that the Tribunal was referring to the reply received on 30 November 2006.
At that time there was no decision and the statement is erroneous. The presiding member should have known it was erroneous because he had the applicant's response prior to the handing down of the decision. It is, in my view, unfortunate that the presiding member did not take the trouble to correct the Tribunal reasons and to incorporate into those reasons the substance of what is contained in the file note.
There is a question whether what is in the file note is properly part of the reasons, even though not included in them. Mr Potts, for the Minister, submits that it should not be considered part of the reasons because, obviously, the file note was not handed down as required by s.430B and the file note was not provided to the parties in accordance with s.430D. I accept that the presiding member’s file note was not intended to be, and is not, part of the Tribunal’s reasons.
A fair reading of the eight reasons given by the presiding member in his file note why the applicant's response to the second s.424A invitation did not alter the decision, leads me to the view that the Tribunal considered that there was nothing of any real weight in the second response which altered the position already dealt with in the reasons. Consistently with the view that it is for the Tribunal to decide what the issues are that are worthy of specific mention in reasons, there was, in my view, no breach of s.430. As I have already noted, even if there had been, on the basis of existing authority that would not itself establish jurisdictional error. Nevertheless, good administration suggests that it would have been preferable for the Tribunal to hand down a decision which was factually correct and which included the presiding member's consideration of the response to the second s.424A invitation.
The next question is whether the Tribunal gave meaningful consideration to the applicant's response to the second s.424A invitation. The choice of the term "meaningful" was mine and I accept that it is an unhelpful gloss on established legal principles. In Singh v Minister for Immigration [2001] FCA 389, the Federal Court considered the quality of consideration which must be given to information pursuant to s.54 of the Migration Act. In my view, what Sackville J says at paragraphs 57 to 59 of that judgment is equally applicable to a review Tribunal. The question is whether the Tribunal gave realistic or genuine consideration to the applicant's second response. The question is whether there was an active intellectual process directed at the information. There is no real doubt that the Tribunal was not relieved of the obligation to engage in that active intellectual process simply because the response from the applicant was received late (see Singh v Minister for Immigration [2001] FCA 73).
I accept the Minister's submissions that the file note by the presiding member demonstrates satisfactorily that there was an active intellectual process directed at the applicant's second response. The reasons set out in the file note satisfy me that the presiding member considered, genuinely and properly, the further matters that the applicant put before the Tribunal.
The final issue is whether the Tribunal prejudged the applicant's reply to the second s.424A invitation, given that the file note was dated the same day as the reply was received and that the Tribunal had ample time to amend its written reasons but chose not to do so.
Mr Potts, for the Minister, properly drew to my attention the very recent decision of the Federal Court in SZBLY v Minister for Immigration [2007] FCA 765. At paragraph 27 of that judgment, his Honour Cowdroy J stated:
In view of the adverse findings made by the Tribunal member relating to the credit of the appellant, the withdrawal of the first decision gives no confidence that an impartial mind could be brought to [bear on] the further enquiry. Apprehension of bias has been found to exist in proceedings where an adjudicator has made previous findings as to a witness’s credit on the same set of facts: see Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 422, 447; Livesey 151 CLR 288; Grassy v The Queen (1989) 168 CLR 1; Ex parte Schofield; Re Austin (1953) 53 SR (NSW) 163; Hosler v Maughan (1989) A 40 Crim R 281; Khadem v Barbour (1995) 38 ALD 299.
The reference by his Honour to the withdrawal of the first decision is a reference to a bizarre circumstance in which the Tribunal purported to withdraw a decision which had been handed down and to make a second decision, when the solicitor for the applicant pointed out to the Tribunal that it had neglected to send a letter to the applicant that the Tribunal assumed had been sent. It appears not to have occurred to those advising the Minister in that matter that, having handed down a decision, the Tribunal had discharged its function and any second purported decision was no decision at all[24]. Even if that be wrong, there is a qualitative difference between the recall of a decision that has been made and the so called recall of a decision which has not yet been made[25].
[24] Once a tribunal has validly discharged its statutory function of review it is functus officio. It is for the courts, not the Tribunal, to decide whether its function has been validly discharged.
[25] In the case of a tribunal decision that had been invalidly made, any reconsideration would normally involve a reconstitution of the Tribunal. In the case of a decision not yet made but which requires amendment, reconstitution of the Tribunal is not normally an issue.
If the presiding member had refused to consider the second response by the applicant, having signed his reasons, there would have been a real issue of apprehended bias. However, he did consider it and recognised that he was in a position to amend his reasons, should he see a need to do so. He did not see such a need but the file note recorded by the presiding member satisfies me that, at the time he considered the applicant's second response, the presiding member's mind was not closed.
The applicant has failed to demonstrate that the decision of the Tribunal in this matter is vitiated by jurisdictional error. Neither is any jurisdictional error established on my own consideration of the material. I accordingly find that the decision of the Tribunal is a privative clause decision and the application must be dismissed.
The application having been dismissed, costs should follow the event. The minister seeks scale costs of $5,000. The applicant did not wish to be heard on costs. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 July 2007
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