SZGMF v Minister for Immigration - [2006] FMCA 283

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGMF v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 283

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – application rejected as not credible – apprehended bias – RRT enquiring as to the authenticity of documents submitted by the applicant – adverse information disclosed to the applicant after the RRT hearing – other information that could have assisted the applicant to deal with the adverse information withheld – implication that the presiding member may have formed an immovable adverse credibility view about the applicant by the time the adverse information was disclosed.

Migration Act 1958 (Cth), ss.424A, 441C
Migration Regulations

Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Ling v Minister for Immigration [2004] FCA 1069
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Review Tribunal; ex parte H [2001] HCA 28
W148/00A v Minister for Immigration (2001) 185 ALR 703

Applicant:

SZGMF

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1474 of 2005

Judgment of:

Driver FM

Hearing date:

1 March 2006

Delivered at:

Sydney

Delivered on:

1 March 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Ms S McNaughton

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

A writ of certiorari issue, quashing the decision of the Refugee Review Tribunal signed on 5 May 2005 and notified on 26 May 2005.
A writ of mandamus issue requiring the Refugee Review Tribunal to redetermine the matter before it according to law.
There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1474 of 2005

SZGMF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

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 RRT”). The decision was signed on 5 May 2005. It was notified to the applicant by letter dated 26 May 2005. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and had made claims of political persecution. The relevant background is contained in the Minister's written submissions. I adopt paragraphs 2-8 of those written submissions as background for the purposes of this judgment:
The applicant, a citizen of Bangladesh[1], arrived in Australia on 17 September 2001[2] on a visitor’s visa issued in Dubai[3].
On 30 October 2001 the applicant lodged an application for a protection visa, together with annexures, with the Department of Immigration and Multicultural and Indigenous Affairs (as it then was) pursuant to the Migration Act 1958 (Cth) (“the Migration Act”)[4]. A delegate of the first respondent refused to grant a protection visa on 17 June 2002[5]. The applicant applied to the second respondent, the RRT for a review of that decision on 1 July 2002[6], and on 17 April 2003, the RRT affirmed the decision not to grant the applicant a protection visa[7]. The applicant applied for a review of the RRT’s decision by the Federal Magistrates Court and, on 22 June 2004, the Court, by consent, set aside the decision and remitted the matter to the RRT to be determined according to law. On 5 May 2005 the RRT re‑affirmed the delegate’s decision. On 7 June 2005, the applicant filed an application for review of the RRT’s decision, and on 7 September 2005 he filed an amended application for review.
Nature of applicant’s claim for refugee status
The applicant set out his initial claims in a four page statutory declaration at pages 26–29 of the court book. He claimed to have been actively opposed to the BNP and involved in the Rajnagor Thana committee, having been nominated as the Social Welfare secretary. BNP supporters forced him to move from his locality. A false case was filed against him in August 1997 charging him with organizing a terrorist attack and destroying a BNP party office.
The applicant moved to the UAE in 1998, and even there had to avoid BNP supporters. He applied to come to Australia from the UAE.
The applicant attended a RRT hearing before the RRT as originally constituted and the freshly constituted RRT. The hearing before the freshly constituted RRT took place over two days: 9 September and 6 October 2004[8]. A summary of this hearing is set out by the RRT at pages 336 - 337.
The RRT’s approach
The RRT proceeded on the basis that the applicant was an active supporter of the Awami League[9]. It did not accept, however, that he had any prominence in the party or locally, even if he was active. It stated: “His account of his wanderings around Bangladesh between the time he left his home area and the time he left the country strained credibility. If it was unsafe for him to be in the country, he would have left.”[10] The RRT found that the applicant’s behaviour while still in Bangladesh was not that of someone who fears for his life. Moreover, whatever small profile he may have had in 1998 he would have lost it entirely now[11].
Accordingly, the RRT did not accept the applicant’s claims that he was persecuted, threatened or suffered any harm for any reason before he left Bangladesh, nor that his family had been threatened or had suffered in any way. It did not accept there was a real chance of his suffering harm amounting to persecution should he return to Bangladesh in the foreseeable future.
[1] Page 3 of court book
[2] Page 35
[3] Page 35
[4] Pages 1 - 37
[5] Pages 43 - 51
[6] Pages 52 - 55
[7] Pages 244 - 253
[8] Page 333.7
[9] Page 339.2
[10] Page 339.2
[11] Page 339.5
I have before me as evidence the court book filed on 8 July 2005. That is the only evidence I have before me. I also have the benefit of written submissions by the Minister and by the applicant. The applicant relies upon his amended application filed on 7 September 2005. The application asserts a denial of procedural fairness including a breach of s.424A of the Migration Act. There is also a general ground of a violation of duty by the RRT in satisfying itself as to the eligibility of the applicant for a protection visa. There is also an allegation of misapplication of the law. The applicant's written submissions generally traverse the same ground as the amended application although the applicant draws particular attention to an asserted failure on the part of the RRT to follow proper procedures in relation to reports obtained from the Australian High Commission in Dhaka.
Ms McNaughton deals with the amended application in her written submissions in paragraphs 9-19 of her written submissions. I agree with and adopt for the purposes of this judgment paragraphs 17-19 of those written submissions:
Ground 2 – findings not based on evidence
The applicant contends that the RRT’s adverse findings as to the authenticity of the documents and as to the evidence provided by the applicant during the hearing were not based on evidence. This ground must fail.
The findings in relation to the documents were clearly based on evidence, as set out at pages 337 and 338. The adverse credibility findings were based on matters set out by the RRT at page 339 and were properly open to the RRT: Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 558-9; W148/00A v Minister for Immigration (2001) 185 ALR 703 at [64] - [69].
Ground 3 – error in making finding that applicant can seek effective protection from other states of Bangladesh
This ground is misconceived, and appears to have been copied from an unrelated matter. No such finding was made by the RRT in coming to its decision. The ground must fail.
The real issue in this case is whether there was a want of procedural fairness in the RRT proceeding and whether the RRT complied with its statutory obligation under s.424A of the Migration Act. The applicant had presented documents purportedly coming from Awami League officials supporting his protection visa claims[12]. The applicant also had presented a bundle of documents supporting his claim to have been subjected to false criminal charges in Bangladesh[13].
[12] Pages 72-73, 280-284, 319
[13] Pages 74-91
The RRT conducted two hearings in the matter on 9 September 2004 and on Wednesday, 6 October 2004. Following those hearings the RRT received information that threw doubt upon the documentary material that had been submitted by the applicant. It appears that the documents had been sent by the RRT to the Australian High Commission in Dhaka for investigation. Comment had been sought from a senior Awami League member. On 5 November 2004 the Department of Foreign Affairs and Trade advised that the senior Awami League member had provided information that the letters of support were genuine. However, the official considered that the documents were worded in such a way as to provide support for economic refugee status abroad. In other words, the official considered that while the documents were genuine, the content of them was unreliable. The official had gone on to say that he did not have the competence to resolve the question of the authenticity of the purported court documents although the official believed, because of the dates involved, that the applicant was not charged because of political activities. The official also expressed the opinion that the applicant may at the time have left the Awami League because of personal disagreements with certain Awami League members. The DFAT report[14] concluded that there may need to be a site visit to authenticate the court documentation.
[14] Page 340
A further DFAT report incorrectly dated 20 January 2004 appears on page 347 of the court book. It appears very likely that the document should have been dated 20 January 2005. In this document DFAT reported that an examination of records at the relevant court in Bangladesh had led those involved to the conclusion that the documents submitted by the applicant did not match the original case documents held at the court. The report concluded that the applicant's documents were not authentic.
This was clearly information that required disclosure to the applicant pursuant to s.424A. The RRT sought to comply with that obligation by letter dated 11 March 2005[15]. It is necessary for the purposes of this judgment to recite the terms of the letter in full. After the salutation and heading the letter reads:
[15] Pages 320-321
The Tribunal has 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.
The information is as follows:
The applicant submitted documents in support from prominent political figures in Bangladesh in support of his claims. He also submitted documents purporting to be police documents involving a charge against him.
The Tribunal has received reliable information as follows:
1.Many members of the Awami League are prepared to offer such documents on request in a humanitarian way to help former supporters. They are worded in a way to offer support to obtain economic refugee status, rather than to verify any particular status within the Awami League.
2.The purported police documents do not match with the original case documents held at the Moulvibazar Additional District Magistrates Court and are not authentic.
This information is relevant because it may undermine the general credibility of the applicant and may cause these documents to be disregarded.
You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 5 April 2005.
If you do not give comments by 5 April 2005 the Tribunal may make a decision on the review of your case without further notice.
The applicant responded to the invitation in person although it had been directed to his former migration agent. He asserted that he had an entitlement to more time to respond[16]. The applicant was in error in that belief. He was confusing the possibility of additional time being granted should information be required from overseas with an invitation to comment directed to a person in Australia. Pursuant to s.441C of the Migration Act and Regulation 4.35(3) of the Migration Regulations 1994 a response was properly required within 14 days. Regulation 4.35B permitted the RRT to extend time up to 28 days.
[16] Page 322
The RRT re-affirmed the original deadline by letter dated 30 March 2005[17]. The applicant re-affirmed his belief that he had 91 days to respond by letter dated 4 April 2005[18]. By letter dated 6 April 2005 the RRT in effect granted the maximum 28 day extension of time available[19]. I see no error in the approach taken by the RRT in relation to the question of time to respond.
[17] Page 323
[18] Page 324
[19] Page 325
In my view the RRT also met its statutory obligation under s.424A of the Migration Act. The section relevantly requires the RRT to give an applicant notice of information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT is also required to ensure as far as is reasonably practicable that the applicant understands why the information is relevant to the review and must also invite the applicant to comment on it. Clearly the applicant was invited to comment.
In my view the letter of 11 March 2005 set out in sufficient detail the information that was likely to lead to affirmation of the delegate's decision. The significance of that information was also set out in sufficient clarity for the applicant to understand it. However, while the RRT met its statutory obligation it does not follow that the procedures followed were fair.
The question here is whether there is a reasonable apprehension that the presiding member did not have an open mind at the time the s.424A letter was sent. This is a question of apprehended bias. The High Court dealt with that issue in Re Refugee Review Tribunal; ex parte H [2001] HCA 28 at paragraphs 27 to 28 and 30 to 31. The Court said:
The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
…
Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view.
In this case the question is not whether the applicant was overborne or intimidated. The question is whether there is a reasonable apprehension that the presiding member had already made up his mind at the time the invitation to comment was given. This is not a simple question to answer.
In Ling v Minister for Immigration [2004] FCA 1069 at [57] the Federal Court noted that a willingness on the part of the RRT to receive additional evidence from applicants and provide a reasonable time frame within which such additional information could be provided could alleviate concerns about what had happened at a hearing.
Here, the situation is somewhat different. The question in my mind is whether, following the hearing and in the light of the circumstances of the giving of the invitation, it was simply an empty gesture or might be perceived to be so. It is apparent to me from reading the reasons for decision of the RRT that following the two hearings the presiding member had formed an adverse view of the applicant's credibility. The presiding member said on pages 338 and 339 of the court book:
He [that is the applicant] demonstrated so little knowledge of the Awami League at the first hearing that I had serious doubts as to whether he was even a member. He came to the second hearing much better informed. However, his description of his own role was so vague that I cannot accept that he had any prominence in the party or locally, even if he was active. His account of his wanderings around Bangladesh between the time he left his home area and the time he left the country strained credibility. If it was unsafe for him to be in the country, he would have left.
The presiding member dealt with the invitation to comment and the applicant's response to it in the following way:
… following inquiries made through the Australian High Commission in Dhaka, the Tribunal wrote to the applicant in the following terms on 11 March 2005:
“The Tribunal has received reliable information as follows:
1.Many members of the Awami League are prepared to offer such documents on request in a humanitarian way to help former supporters. They are worded in a way to offer support to obtain economic refugee status, rather than to verify any particular status within the Awami League.
2.The purported police documents do not match with original case documents held at the Moulvibazar Additional District Magistrates Court and are not authentic.
Why this information is relevant to the review:
This information may undermine the general credibility of the applicant and may cause these documents to be disregarded.”
The letter sought a reply by 5 April 2005, after which a decision would be made.
The applicant replied that he needed more time to reply, as documents had to come from overseas. He stated that he understood that he was entitled under the Migration Act to 91 days in which to obtain papers from overseas. The Tribunal replied to him clarifying to him that the extra time to which he referred applies in the event that the Tribunal requests an applicant to obtain material from overseas and grants an extension of time to do it. It does not apply to his situation.
On 4 April, the applicant replied that the information in the Tribunal’s letter of 11 March 2005 was not true. He repeated his claim that he had court cases against him in Bangladesh and that he wanted to obtain further information from his lawyer. He repeated his request for 91 days in which to obtain the information.
The Tribunal replied that he was not entitled to 91 days, but that the Tribunal would not be taking any action on his case for a further 4 weeks, that is, before 4 May 2005. The letter stated that the Tribunal would make a decision immediately thereafter in the light of the information then before it.
No further communication was received from the applicant.

In effect, the applicant's response in seeking further time only tended to reinforce the presiding member's views. The presiding member said on page 338 of the court book:
His [that is the applicant’s] request for more time to obtain and submit other documents would have been more persuasive if they also had not been intended to demonstrate that he had court cases against him.
In other words, the presiding member was concerned that the applicant sought more time in order to demonstrate that false charges had been laid against him. That statement is indicative of a strong view held by the presiding member at the time the extension of time was sought that the false cases claim was false.
Some of the content of the information relied upon by the presiding member also gives me some concern when compared with the content of the letter dated 11 March 2005. There can be little quarrel with the proposition that the second report from DFAT about the court documents seriously undermined the applicant's credibility. However, the first report from DFAT referring to a "reliable senior Awami League member" was more equivocal. The Awami League member had ventured the opinion that the documents relied upon by the applicant were genuine. That was not mentioned in the letter dated 11 March 2005. Secondly, the DFAT report described the Awami League member as a reliable senior Awami League member. That was converted in the letter dated 11 March 2005 to “reliable information”. The reference in the letter is open to the interpretation that the presiding member had already accepted the information. Thirdly, the senior Awami League member had stated the belief that the applicant, at the time of the alleged charges against him, may have left the Awami League because of personal disagreements with certain Awami League members. That appears to be related to the issue of the alleged false charges but was more generally relevant to the veracity of the information from the Awami League officials relied upon by the applicant.
The belief on the part of the DFAT informant that the applicant may have left the Awami League because of personal disagreements was not mentioned in the letter of 11 March 2005. The informant must have known who the applicant was because he was given the documents to comment on[20]. There is an implication open on the material that the informant may have previously known the applicant. The significance of that possibility and the particular comments made by the informant were not revealed to the applicant. If they had been revealed the applicant may have been enabled to respond effectively to at least the first issue raised in the letter of 11 March 2005. For example, the applicant may have been able to assert that the informant was one of those with whom the applicant had disagreed, and was motivated by animosity towards him.
[20] The wisdom of such an approach is open to question, as it could expose an applicant to an increased risk of harm.
Section 424A of the Migration Act did not require the disclosure of information useful to the applicant because it was not information tending to lead to the confirmation of the delegate's decision. It was information that might, hypothetically, have led to a different decision. In other words, it was information not adverse to the applicant’s claims but potentially supporting them. By withholding that information from the applicant there is an implication arising that the presiding member preferred not to give the applicant the opportunity to use it.
The circumstances when viewed overall cause me to come to the view that a fair minded observer so informed could form the view that the presiding member had already made up his mind when the letter of 11 March 2005 was written. A reasonable apprehension of bias is thereby established and the RRT proceeding must be found to have been unfair.
For that reason the applicant is entitled to receive relief in the form of constitutional writs of certiorari and mandamus. I will order first that a writ of certiorari issue quashing the decision of the Refugee Review Tribunal signed on 5 May 2005 and notified on 26 May 2005. Secondly, I will order that a writ of mandamus issue requiring the RRT to redetermine the matter before it according to law.
The applicant has not incurred any legal costs in these proceedings. I will order that there be no order as to costs.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 9 March 2006