SZGNE v Minister for Immigration - [2006] FMCA 1179

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGNE & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1179

MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicant claiming religious persecution in Bangladesh – applicant invited to comment on adverse information pursuant to s.424A of the Migration Act 1958 (Cth) – whether the RRT failed to ensure that the applicant understood the significance of the information considered.

Migration Act 1958, s.424A

Minister for Immigration v SZGMF [2006] FCAFC 138
SZEEU v Minister for Immigration [2006] FCAFC 2

First Applicant:

SZGNE

Second Applicant:

SZGNF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1529 of 2005

Judgment of:

Driver FM

Hearing date:

15 August 2006

Date of Last Submission:

14 September 2006

Delivered at:

Sydney

Delivered on:

29 September 2006

REPRESENTATION

Counsel for the Applicant:

Mr J R Young

Counsel for the Respondents:

Mr L Leerdam

Solicitors for the Respondents:

Phillips Fox

ORDERS

A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal handed down on 26 May 2005.
A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the review application before it, according to law.
There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1529 of 2005

SZGNE

First Applicant

SZGNF

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 26 May 2005. The RRT affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants, a husband and a wife from Bangladesh[1]. They made claims of religious persecution. The relevant claims were made by the applicant wife (“the first applicant” or “the applicant”).
[1] court book, pages 12, 27
The applicants arrived in Australia on 24 June 2004[2] and applied for protection (class XA) visas on 14 July 2004.[3] The applicant’s claims were set out in a statement accompanying the application.[4]

The application was refused on 16 September 2004.[5]
[2] court book, page 14
[3] court book, pages 1-82
[4] court book, pages 31-33
[5] court book, pages 85-86
The applicant applied to the RRT for review of the original decision on 29 September 2004.[6] The RRT handed down its decision on 26 May 2005.[7]
[6] court book, pages 97-100
[7] court book, pages 117-131

The applicant's claims

The applicant claimed to fear persecution from other Muslims because she was Kadiany Muslim. She claimed that her husband had a taxi business in Dhaka and in November 2003, one of her husband's taxis was torched. At the hearing, the applicant also claimed that she organised a meeting with other Kadiany people and she was hit in the leg by bombs that were thrown.

The decision of the RRT

The applicant gave oral evidence before the RRT on 2 February 2005. After the hearing, the RRT sent the applicant a letter pursuant to s.424A with respect to the information that was in her initial visitor visa application.[8] In that application, she had provided documents showing that she and her husband were business people in the ready-made garment sales sector.
[8] court book, pages 112-113
In response, the applicant's adviser said that the applicant's husband had both a taxi business and an import/export business for ready-made garments.[9]
[9] court book, page 114
The RRT did not accept that the applicant was a Kadiany Muslim or that she had been, or would be, persecuted for that reason. It found that there were too many discrepancies and other matters in which her evidence was wrong for it to be satisfied of the applicant's claims.[10]
[10] court book, pages 128-129
a)The RRT found that the evidence regarding the applicants' businesses in Bangladesh was confusing. It noted that nowhere in the papers submitted with the visitor visa application was there any mention of a taxi business or a computer shop.
b)There was also confusion about who owned the taxi business – the applicant stated at the hearing that her father gave it to her but the adviser stated in his written submission after the hearing that her husband owned it.
c)The applicant showed considerable ignorance at the hearing about the Kadiany beliefs. She was not aware of the founder of the sect, who was considered one of the prophets. The RRT said that the applicant's ignorance on this point was like a Christian not knowing of Jesus Christ.
d)The applicant also showed ignorance of the situation of Kadianys in Bangladesh, stating that there were 5000 in Bangladesh when the figure was approximately 100,000.
e)The RRT found that the statements the applicant made about her religious practice in Australia were not credible. It found that her husband would not have gone to a non-Kadiany mosque and that the applicant never attended the Kadiany mosque.
f)
The RRT therefore found that the applicant was not Kadiany.

It decided to give no weight to the medical report submitted in support of her claim to have been injured in a bomb blast.

The RRT was sceptical about the claim because it was not mentioned in the PVA. However, it found that even if the incident occurred, it was not for reason of the applicant's religion because it had found that she was not Kadiany.

The application

The present proceeding began with a judicial review application filed on 14 June 2005. Between September 2005 and the date of the trial of this matter on 15 August 2006 the applicants relied upon an amended application filed on 20 September 2005. On the day of the trial Mr Young appeared for the applicants on a direct brief and, on instructions, abandoned the amended application entirely. He sought and received leave for the applicants to file and serve a further amended application raising a single ground, namely that the RRT fell into jurisdictional error in that it failed to comply with s.424A(1)(b) of the Migration Act 1958 (Cth) (“the Migration Act”) by failing to ensure that the applicant understood why the particulars of information provided were relevant to the review. The further amended application was filed on 23 August 2006.

The evidence

The only evidence I have before me is the court book filed on 15 July 2005. An affidavit by the applicant made on 16 September 2005 was not read.

Submissions

Mr Young filed in court by leave on 15 August 2006 the applicants’ written submissions. Relevantly those submissions are:
The (wife) applicant made claims under the Refugee Convention. The (husband) relied on membership of the family.
The wife stated she was Kadiany Muslim. She feared persecution if she returned to Bangladesh.
The Tribunal made its decision firstly on the basis of evidence relating to her employment and that of her husband in Bangladesh.
In the letter under section 424A (in the Court Book on page 127), the Tribunal said that the information in the application for protection compared with the information in the application’s for visitors visa ”might lead the Tribunal to conclude that it could not rely on other information provided with your application for protection”.
This limited basis was not the basis for which the Tribunal used the information. It used the information to conclude that most of the applicant’s evidence was untrue. This included the sworn oral evidence. The Tribunal did not limit its conclusions flowing from information to “other information provided with the application for protection” (meaning in context the application for a protection visa and not the application to, or any evidence to, the Tribunal).
The response from the adviser (CB 114) was very poor but perhaps he would have taken greater care had he known that the Tribunal would use the information referred to in the first paragraph of the two paragraphs at CB 127, not just for the limited purpose of concluding that it could not rely on other information provided with “your protection application”, but to assess the credibility generally of the applicant including to assess the credibility of her sworn oral evidence.
Section 424A requires that the Tribunal ensures that the applicant understands why the information is relevant. If the answer given by the Tribunal is that it might lead the Tribunal to conclude that other information “provided with your application for protection” could not be relied upon , that will not ensure that the applicant understands that the Tribunal may also use it to disbelieve the whole of the applicant’s evidence on the review.
The Tribunal did not comply with section 424A.
The Respondent in her submissions at para 12 accepts that the RRT used the section 424A information to make an adverse credit finding. This is agreed.
However, it is not agreed, that “the potential consequences” of the information were notified to the applicant in the section 424A letter.
In fact, the RRT suggested a further more limited potential consequence relating to reliance by the RRT of the information in the protection visa application as distinct from disbelief of the evidence of the applicant generally.
Mr Leerdam, who appeared for the Minister, was taken by surprise by the turn of events on the day of trial. In his oral submissions he put to me that, properly read, the information derived from the protection visa claims made by the applicant was not determinative. In other words, the Minister’s submission is that, on a proper reading, the information referred to in the s.424A letter did not ultimately prove to be the reason, or part of the reason, for affirming the decision of the delegate. Mr Leerdam sought and was granted the opportunity to put in further written submissions. I also called for submissions from both the Minister and the applicant on costs.
The Minister’s further written submissions were filed on 5 September 2006. Relevantly, those submissions[11] are:
The applicant’s challenge to the decision of the Refugee Review Tribunal (“the Tribunal”) is now confined to the adequacy, in terms of section 424A of the Migration Act 1958 (“the Act”), of the Tribunal’s letter dated 18 February 2005 (CB112).
That letter (“the section 424A letter”) identified the subject “information” as follows:
In your primary application for protection, you claimed that, prior to coming to Australia, you were a student and your husband was in the taxicab business. However, with your applications for visas to visit Australia, you and your husband submitted documents showing you to be business people, in the ready-made garment sales sector.
[11] prepared by Mr G T Johnson of counsel
The section 424A letter then explained that “this information is relevant because this information is inconsistent with the information supplied in your primary application, it might lead the Tribunal to conclude that it could not rely on other information provided with your application for protection”.
Comment was then invited by 15 March 2005 and the applicant was warned that if such comment was not given by 15 March 2005, the Tribunal may make a decision on the review without further notice. The applicant’s advisor’s reply, dated 3 March 2005 (CB114), was summarised by the Tribunal at CB127.8. It stated that the applicant was a student when she applied for her visa for Australia and that the husband had the taxicab business, as well as an export and import business for ready-made garments. The advisor’s letter further explained that “they submitted export and import business documents at the time of visitor visa application as they believed it might be helpful to get the visa”.
At the hearing before this Court on 15 August 2006, I understand that the applicant relied particularly upon the top paragraph at CB128 in support of a submission that the Tribunal failed to ensure, as far as is reasonably practicable, that the applicant understood why the “information” was relevant to the review.
The conflict identified by the Tribunal in the section 424A letter was confined and was resolved in a way that did not impact upon the applicant’s general credibility. It is simply not established that the “information” in question was one of the matters not accepted by the Tribunal in the top paragraph on CB128, or that it was, in any way, part of the reason for the Tribunal’s decision.
The second paragraph on CB128, starting with the phrase “as to her employment” and the following paragraph bear upon the information in question. The Tribunal, whilst stating itself to be confused by the applicant’s response (neither the response nor the confusion being itself “information” attracting an obligation under section 424A), did not make any adverse credibility finding against the applicant based (wholly or in part), on the “information” that it raised in its section 424A letter.
The Tribunal, in the section 424A letter, was addressing ostensibly conflicting statements as to whether the applicant or her husband had a taxicab business. The statement attached to the protection visa application had made a claim to the effect that the husband’s taxicab business was subject to violent attack (CB32). If there was no taxicab business, then, that claim would not be true. The applicant’s response (CB114), whilst in some ways inadequate or confusing, nevertheless had the effect of persuading the Tribunal that the taxicab business was a business owned by the applicant or her husband. The findings or the observations by the Tribunal upon the evidence as to the type of business conducted did not bear at all upon the Tribunal’s reasons for rejecting the application.
In contrast, the Tribunal’s reasons, at CB128.6-129.5, amount to a comprehensive rejection that the applicants were Kadianys as claimed, or members of the Kadiany faith. Those were plainly core claims.
For that “same reason”, “that is, that (the Tribunal does) not accept that the applicants are members of the Kadiany community”, the Tribunal, at CB129.6, did “not accept that the applicant suffered in any way in the past for reason of her religion”.
That then led to a number of consequential findings, at CB129.6, including that the Tribunal did not accept that the applicant’s “taxi business suffered for this reason”. That, at least impliedly, involved acceptance that the applicant did have a taxi business.
Clearly, it was the Tribunal’s non-satisfaction that there was a Convention reason for any harm suffered by the applicants – not (wholly or in part) whether the applicants did in fact have a taxi business or whether any attack on that business occurred – that grounded the Tribunal’s decision. The “information” described in the section 424A letter played no part in the Tribunal not accepting that the applicants were Kadianys or members of the Kadiany religion.
Plainly, no section 424A obligation will arise in relation to “information” unless it is at least “part of the reason” for the Tribunal’s decision in the sense described in SZEEU v MIMIA (2006) 150 FCR 214 per Weinberg J at [164]-[165] and [182] and per Allsop J at [215]-[216] and [227]. Those references leave no doubt that the Tribunal’s reasons will determine what was in truth the reason or part of the reason for the Tribunal’s decision. See also SZEPZ v MIMIA [2006] FCAFC 107 at [40], where Emmett, Siopis and Rares JJ explain that whereas the requirement in section 424A is limited to information “that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review”, the section, “in so far as (it) refers to a state of mind or mental process”, “must be taken to refer to the state of mind or mental process of the particular member constituting the Tribunal for the purposes of the review”.
Because the “information” described in the section 424A letter ultimately was not the reason, or part of the reason, for the Tribunal’s decision, no obligation under section 424A truly arose in relation to that “information”. It follows that no question arises as to the adequacy of any step taken by the Tribunal to “ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review”. The fact that it may have been thought by someone, when the section 424A letter was sent, that the “information” may turn out to have that quality is irrelevant.
No breach of section 424A is demonstrated and the application should be dismissed, with costs.
Protectively, in the event that the Court does sustain the applicant’s argument, the following submission is made in relation to the costs. The application dated 14 June 2005 did not provide any proper particulars of jurisdictional error. It was overtaken by the amended application, dated 20 September 2005 and filed pursuant to directions made on 28 June 2005, but that was then abandoned at the hearing on 15 August 2006. The sole ground then relied upon was that addressed above, which became the subject of a further amended application filed on 22 August 2006. The respondent is accordingly entitled, regardless of the outcome of the case, to costs thrown away up to and including 15 August 2006. If the applicant succeeded, the Court should not allow the applicant any more than those costs incurred in filing the further amended application. Another alternative would be to make no order as to costs upon the basis that it is not apparent that any costs incurred by the applicant, that the Court would be inclined to allow, meet or exceed the costs thrown away by the respondent in meeting arguments that were abandoned.
In submissions in reply filed on 14 September 2006 the applicants join issue with the Minister in the following respects:
a)the “discrepancies” referred to by the RRT at CB128 must relate to the employment and business evidence, which in turn supported the adverse credibility finding made by the RRT;
b)the s.424A letter failed to warn of the potential credibility impact of the discrepancies;
c)the RRT’s reasons cannot be read as an acceptance of the response to the s.424A letter;
d)the Minister should receive her costs thrown away by reason of the late amendment of the application, but those costs should be minimal because the grounds of review abandoned by the applicant were hopeless on their face;
e)costs thrown away should not exceed $1,500. The applicant should receive $2,500 to $3,500, after setting off those costs.

The legislation

Section 424A(1) of the Migration Act provides as follows:
(1) Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.

Reasoning

On 18 February 2005 the RRT wrote to the applicant pursuant to s.424A to invite comment on apparently inconsistent information about the applicant’s employment prior to coming to Australia. The letter relevantly stated:
In your primary application for protection, you claim that, prior to coming to Australia, you were a student and your husband was in the taxi cab business. However, with your application for visas to visit Australia, you and your husband submitted documents showing you were business people in the ready made garment sales sector.
This information is relevant because this information is inconsistent with the information supplied in your primary application, it might lead the Tribunal to conclude that it could not rely on other information provided with your application for protection.

This letter was sufficient to put the applicant on notice that, because of inconsistency between what was said in her protection visa application, and what was said in her application for a visa to visit Australia, the RRT might place no reliance upon any information in her protection visa application. The letter does not, however, put the applicant on notice that the RRT might rely on information in the protection visa application for the purpose of supporting an adverse credibility conclusion. Put simply, the letter informed the applicant that information in the protection visa application might not be reliable and hence might not be relied upon by the RRT. The letter did not inform the applicant that the information in the protection visa application might be relied on by the RRT in order to affirm the decision under review. It follows that if the information in the protection visa application was in fact relied upon by the RRT to affirm the decision under review, the significance of that information was not explained to the applicant in the s.424A letter and jurisdictional error would have been established.
It is then necessary to consider what the reasons of the RRT were for affirming the decision under review. If the information the subject of the s.424A letter was not a reason, or part of the reason, for affirming the decision under review by reference to the reasons of the RRT, there would be no jurisdictional error[12]. The reasons of the RRT are relevantly set out at pages 127-129 of the court book. The presiding member began by accepting that the applicant and her husband were citizens of Bangladesh. She then continued:
I am unable to accept most of the rest of her evidence. There are simply too many discrepancies and too many matters in which her evidence is simply wrong or where she demonstrated ignorance about things about which she should be knowledgeable, if she were what she claims to be.
As to her employment and that of her husband prior to coming to Australia, the documents submitted with her original visa application showed her husband as having a Trade Licence for a business called Pari Fashion, described in the translation of the licence as “seller of ready made garments”. Further documents (not including a translation) showed one or other of the applicants (or both) as members of the Bangladesh Grocery Business Association. These certificates were dated May 2004, one month before they left for Australia. A tax certificate submitted (with translation) for Pari Fashion shows its activity as “Ready made garments sales centre”. Yet the applicants’ adviser referred in his letter to their business as export and import, further confusing the situation. Nowhere in the papers submitted with their original visa applications was there a business certificate or any other evidence for their ownership of a taxi business or of a computer shop.
Adding to the confusion, her adviser, in his letter of 3 March 2005, refers to the taxi business as being her husband’s, whereas she claimed that it was given to her by her father.
[12] see SZEEU v Minister for Immigration [2006] FCAFC 2 at [23], [204], [208] and [215]
The presiding member then went on to consider the applicants’ claim that they were Kadianys (Ahmadis). That claim was clearly rejected, although the expressed reason for doing so (that the applicant did not know that the founder of the Ahmadi sect was regarded by members of the sect as a prophet) is derived from an unidentified source.

The presiding member did not rely on any country information and I do not know where the information came from that led to the presiding member’s finding. Apart from that, the rejection of the applicants’ claim to be Kadianys was based upon what the first applicant had said at the hearing and information in the delegate’s decision. That was country information relied upon by the delegate.
The presiding member went on to consider the applicant’s claim of having been injured in a bomb blast and, although she referred to the fact that this claim was not mentioned in the protection visa application, she ultimately found that it was not determinative because she found that there was no Convention nexus with the harm, if indeed the incident asserted had occurred.
The presiding member continued:
For the same reason, that is, I do not accept that the applicants are members of the Kadiany community, I do not accept that the applicant suffered in any way in the past for reason of her religion. I do not accept that she had to leave her home or that her taxi business suffered for this reason. I do not accept that she received threats from Muslim extremists. I do not accept that she organised a meeting of Kadiany adherents at which bombs were thrown. (emphasis added)
The presiding member concluded that the applicants did not have a well-founded fear of persecution in Bangladesh for reason of their religion or for any other Convention reason.
The key paragraphs in the RRT reasons bearing on the resolution of the issue in dispute between the parties are the paragraphs quoted above.

It is difficult to draw a firm conclusion on the question of whether the protection visa information supported the adverse credibility conclusion reached by the presiding member. There is no doubt that the essential and significant reason that the application failed was because she was not believed. The area of doubt relates to whether she was not believed in part because of the protection visa information relating to her employment. On the one hand, the presiding member refers to that information in the first paragraph following the adverse credibility finding. This suggests that the information relating to her employment derived from the protection visa application supported that adverse credibility finding. On the other hand, there is no express rejection (or acceptance) of that information. It is, rather, left to hang with a general reference to “confusion”. In addition, on page 129 of the court book, the presiding member appears to proceed on the basis that the applicant did in fact have a taxi business in Bangladesh as she had claimed in her protection visa application. This suggests that the information at issue in the protection visa application may have been accepted.
The presiding member’s reasons are open to two constructions.

The first is the construction advanced by the applicants, that the adverse credibility finding made by the presiding member was in part based upon the information contained in the protection visa application that the RRT treated as being inconsistent with other information.

The other construction, which is pressed by the Minister, is that although that information was discussed, the key information relating to the running of the taxi business was, ultimately, accepted.

The employment information was, in the Minister’s submission, not determinative in any event.
Although the issue is finely balanced, I have come to the view that the applicants’ construction should be preferred. In the first paragraph on page 128 of the court book the presiding member said:
I am unable to accept most of the rest of her evidence. There are simply too many discrepancies and too many matters in which her evidence is simply wrong or where she demonstrated ignorance about things that which she should be knowledgeable, if she were what she claims to be.
The reference about evidence being “simply wrong” and the reference to “demonstrated ignorance” are, clearly in my view, references to evidence given at the hearing by the applicant about her Kadiany beliefs and the Kadiany sect. That was not information derived from the protection visa application. However, the reference to “discrepancies” could only be, in my view, a reference to the perceived discrepancies within and between the protection visa application and the visitor visa application. Seen in that light, the perceived discrepancies in the protection visa application and between that application and the visitor visa application formed part of the factual matrix leading to the conclusion by the presiding member that the applicant was not “what she claims to be”. In other words, the information derived from the protection visa application supported the adverse credibility finding that the applicants were not Kadianys at all. The reference to “her taxi business” on page 129 of the court book is explicable as a reference to a hypothetical possibility. That paragraph follows a paragraph in which the presiding member discussed the hypothetical possibility that the applicant had been injured in a bomb blast. The presiding member concluded that, whether or not the incident occurred, there was no Convention nexus because the applicants were not members of the Kadiany faith. The following paragraph begins “for the same reason”. In other words, this was a hypothetical consideration of the possibility that the applicant had had a taxi business which had suffered. The sentence in the paragraph should be read as if it contained the words “I do not accept that she had to leave her home or that her taxi business (if she ever had one) suffered for this reason” (emphasis added). The presiding member did not accept that the applicant had had a taxi business. Rather, she regarded the claim of having a taxi business as inconsistent with both the original visa application and the applicants’ advisor’s response to the s.424A invitation. The discrepancies supported the conclusion that the applicants were not Kadianys, which removed the only basis for granting a protection visa. It follows, and I find, that the RRT did use information about the applicant’s employment in her protection visa application to affirm the decision under review. This possibility was not explained in the s.424A letter and, hence, the RRT did not comply with its obligation to explain the significance of the information in that letter. This constitutes jurisdictional error[13]. The applicants should receive relief in the form of constitutional writs of certiorari and mandamus.
[13] Minister for Immigration v SZGMF [2006] FCAFC 138 at [44]
As to costs, I accept the Minister’s submission that she should have her costs thrown away by reason of the late and total abandonment of the amended application. I estimate those costs, on a party and party basis at $3,000. I take into account that the Minister had been represented at a directions hearing on 28 June 2005 and had prepared for a final hearing in relation to the now abandoned grounds of review. It may be true that the grounds were hopeless, but the Minister’s solicitors had been retained to deal with them, and had prepared 10 pages of submissions about them, including the serious allegation of bias.

The applicants should have their costs of the hearing on 15 August 2006, and Mr Young’s preparation for it, his preparation of the further amended application filed after the hearing (by leave) on 23 August 2006, and his preparation of the applicant’s submissions in reply. I also estimate those costs on a party and party basis to be $3,000. Mr Young’s estimate of those costs as $5,000 is excessive. Although $5,000 is commonly awarded to the successful party in migration proceedings in this Court after a final hearing, the applicant had no legal representation until very shortly before the final hearing and so had not before then incurred any legal costs. The result is that the competing costs claims cancel each other out. In view of that result I will order that there be no order as to costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 29 September 2006