SZGOH v Minister for Immigration
[2007] FMCA 277
•9 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGOH v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 277 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A, 483A |
| Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 NAAH v Minister for Immigration [2002] FCAFC 354 |
| Applicant: | SZGOH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG1596 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 12 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2007 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Bengali interpreter |
| Counsel for the Respondent: | Ms R Pepper |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 30 June 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1596 of 2005
| SZGOH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 20 June 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 6 May 2005 and handed down on 26 May 2005, affirming a decision of the delegate of the first respondent made on 18 February 2005, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGOH”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Solicitors for the respondent filed a Court Book (“CB”) in these proceedings on 18 July 2005 and I have marked it Exhibit "A".
Background
The Tribunal's decision of A Mullin, reference number NO5/50762, provides the following background information. The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 27 April 2004. On 6 December 2004, he lodged an application for a protection (class XA) visa with the Department of Immigration under the Act. On 18 February 2005, a Delegate of the Minister refused to grant a protection visa and on 14 March 2005, the applicant applied to the Tribunal for a review of the Delegate's decision.(CB 70)
In his protection visa application, the applicant claims he was born in Dhaka in 1997 and that he lived at the same address there until he left for Australia. He received 16 years of formal education including a Masters Degree in Commerce in 2001. He states that he was employed as an accountant in Dhaka from January 2001 to March 2004. He married in Dhaka in January 2001 and his wife, parents and a brother live in Bangladesh while another brother lives in Australia. He states that he left Bangladesh legally from Dhaka Airport and with his own passport.(CB 72)
The applicant’s claims
Attached to the applicant’s visa application is a five page statement setting out his claims. The applicant states that he seeks protection in Australia because he was persecuted for his political activities while he was a student. He claims that he was an active member of the Awami League as a student and was general secretary of the Dhaka College Chantra League from 2000 to 2001. As his activities were against the interests of the Bangladesh Nationalist Party (BNP), he was arrested and assaulted by his opponents.
When the Awami League came to power, the applicant worked with its director, Dr Chowdhury. He said he was one of Dr Chowdhury's “closest activists in his constituency”. As a result of his participation in processions and public meetings, the applicant was the target of BNP attacks, the subject of false charges and other forms of harassment. To avoid this harassment, the applicant states that he fled to Australia on a student visa but found that he could not study due to "mental pressure". When his student visa was cancelled, he lodged his application for a protection visa.(CB 73)
Tribunal’s findings and reasons
A convenient summary of the Tribunal's reasons is contained in the first respondent's written submissions prepared by Ms Pepper and I adopt paragraphs 5 and 6 of those submissions:
5. The Tribunal was not satisfied on the evidence before it that the applicant had a well founded fear of persecution for a convention reason. This was because the Tribunal did not find the applicant to be a credible witness. (CB81.2 to 85.2)
6.In particular, in a detailed and considered decision the Tribunal:
(a) was not satisfied as to the credibility of the applicant's claim to have been working in 2001 National Election Campaign for the successful candidate, Dr Chowdhury, giving information from the Bangladesh Electoral Commission website which indicated that there was no Awami League candidate in the 2001 election who bore the name or anything close to it. (CB81.5 to 82.2);
(b) was not satisfied as to the credibility of the applicant's claim to have been a general secretary of the Bangladesh Chantra League in 2001, 2002, while he was a student at Dakar College (CB82.3);
(c) was not satisfied that the applicant had given an accurate account of the incidents in which he claims he suffered harm because of his political activism (CB82.5 to 83.6);
(d) was not satisfied that a false charge of murder has been brought against him (CB83.5 to 84.1);
(e) was not satisfied that the applicant's seven month delay in seeking protection after he arrived in Australia was consistent with a genuine held fear of serious harm in Bangladesh (CB84.2);
(f) was satisfied, despite the applicant's initial assertions to the contrary, that the applicant was able to participate effectively in the hearing (CB84.9).
Application for review of the Tribunal’s decision
On 20 June 2005 the applicant filed an application for review under s.39B of the Judiciary Act setting out the following ground:
1. The Tribunal's decision was affected by jurisdictional error in:
Particulars (a) that the Tribunal did not comply with the mandatory obligations contained in s 424A of the Migration Act.
(a) s 424A was inserted into the Migration Act in 1998 to impose upon the Tribunal a similar regime for providing procedural fairness. Further, the section invites the Tribunal to give the applicant's particulars of information that would have been the reason, or part of the reason, for affirming the decision that is under review.
The Tribunal had regard to information that was part of the reasons for its decision. Apparently the requirements of s 424A of the Migration Act were not practised in this instance and therefore it is non compliant with s 424A of the Migration Act by the Tribunal.
(b) the Tribunal information includes -
1. Chan Lee Kim v The Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379;
2. Applicant A & AMAR v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225;
3. Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559;
4. Chen Shai Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293;
5. Minister for Immigration & Multicultural Affairs v Hhai Ibrahim (2000) 2004 CLR 1;
6. Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 2005 ALR 478;
7. Applicant S v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 242.
This abovementioned information was the basis in rejecting the applicant's application. The Tribunal failed to serve the details on the material or part of these materials used in making the decision of the applicant's application and therefore it was a breach of natural justice.
(c) that the Tribunal did not ensure, as far as reasonably practicable, or at all, that the applicant understood why all of this information was relevant to the Refugee Review Tribunal application as required by s 424A(1)(b) of the Migration Act.
It may be noted that the Tribunal's reasons are to be evaluated for s 424A(1) purposes, the Court as a matter of judgment is required to isolate what were the intricate parts of the reasons for the Tribunal's decision. It appears that the Tribunal breached s 424A(1) of the Migration Act.
(d) that the Tribunal did not give the applicant notice of particulars of the information or references in the matter required by s 424A(1)(a) and s 424(2)(a) of the Migration Act. Again, the Migration Act provides that the Tribunal or a similar regime to send notice pursuant to s 424A(2) of the Act. But it is apparent that the Tribunal did not comply with s 424A(2) of the Act.
(f) the Tribunal generalised the applicant's claims with others and failed to accept that the applicant is really facing persecution in Bangladesh as a member of the Bangladesh Chantra League and subsequently Awami League and failed to grant protection on that persecution basis.
Submissions and reasons
The applicant appeared before Registrar McIllhatton at first directions on 1 July 2005. On that date, the applicant indicated that he wished to participate in the Court’s free Legal Advice Scheme and was subsequently allocated a panel adviser. The Court file indicates that the applicant participated in a conference with the panel adviser and received both oral and written advice. By consent orders made at first directions, the applicant was required to file and serve an amended application giving complete particulars of each ground review relied upon, together with any affidavit material containing additional evidence in support of his application.
Neither of those orders were complied with. On 1 July 2005, a final hearing date was allocated and the applicant was required to file and serve any legal written submissions and legal authorities 14 days prior to that hearing. That order was also not complied with. When the applicant was invited to make oral submissions to the Court in support of his application, he declined the invitation.
Ms Pepper provided written submissions supported by oral submissions which assisted the Court. Ms Pepper submits, and I accept her submission, that the invitation that this Court engage in merits review is not permissible: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [31] per Brennan CJ, Toohey, McHugh and Gummow JJ. Although the applicant did not expressly state that he was seeking the Court to re-hearing the merits of his case, it appears to be his understanding that such a review would occur.
This has been explored in numerous decisions, in particular by Allsop J in SZDFO v Minister for Immigration [2004] FCA 1192 and NARE v Minister for Immigration [2004] FCA 554 and also by the Full Court in NAAH v Minister for Immigration [2002] FCAFC 354. The Court cannot undertake a merits review and it is not part of its task to do so. Consequently, the only substantive breach alleged by the applicant concerns the Tribunal’s failure to comply with s.424A of the Act.
The application for review identifies five instances which could give rise to a breach of s.424A of the Act. These were particularised as:
(a) the electoral commission information;
(b) the general secretary information;
(c) the speech information;
(d) the false charges information;
(e) the delay information.
The applicant claims that each of these items enlivens the mandatory requirement of s.424A(1) of the Act.
Ms Pepper submits that the electoral commission information which was used by the Tribunal was not in breach of s 424A(1) because it was information obtained from the Bangladesh Electoral Commission website and falls within the exception contained in s 424A(3)(a) of the Act. The reason for the Tribunal's rejection of the applicant's claim concerning his work for Dr Chowdhury came from his "inability to name the constituency in which he claimed to have been active".(CB 81.7) This information was given to the Tribunal during its hearing and thus falls within the exception in s 424A(3)(b).
The Tribunal decision records in detail the discussion between the Tribunal member and the applicant in the respect of Dr Chowdhury and the constituency in which he was a candidate.(CB 75-76) As a transcript of the Tribunal hearing has not been tendered as evidence in these proceedings, the only material before the Court of the hearing is the Tribunal decision. That record indicates that the applicant was invited to provide information in respect of his claim of being involved in the electioneering activities of Dr Chowdhury.(CB 75)
The nature of that information first emerged during the hearing and the Tribunal member then checked the information against Bangladesh Electoral Commission website. When the information provided by the applicant could not be verified against the website, the Tribunal member asked the applicant whether certain spelling could be different or constituencies could have alternative names.
Ms Pepper submits that when this occurred, the applicant declined to give further answers or explain as he did not know.(CB 74-76) This was clearly not information which the Tribunal obtained from any source other than at its hearing and clearly falls within the exception contained in s.424A(3)(b) of the Act.
The exclusion in s.424A(3)(b) is intended to cover information which the applicant can appreciate the significance of because he has himself "given" it as "part of his application" to the Tribunal. He is therefore deemed to be fully aware of both the information and its relevance to the issue to be decided by the Tribunal. In the present situation, the information concerning Dr Chowdhury (the constituency he allegedly represented, his participation in the 2000-2001 elections and the nature of the electoral districts within Dhaka) did not become available to the Tribunal until the applicant gave evidence at the hearing. The issues that arose in respect of the anomalies referred to above were fully discussed with the applicant and only became apparent as his evidence continued. Ms Pepper submits that this material clearly falls within the exception in s.424A(3)(b) and this ground cannot be sustained.
Ms Pepper submits that the general secretary information and the speech information did not engage s.424A(1) of the Act because they did not form part of the reasons for the Tribunal affirming of the delegate's decision. Rather the answers given by the applicant to the Tribunal's questions caused it to reject his claims in this regard.(CB 82.4, 83.2)
Justice Heerey in SZCJD v Minister for Immigration [2006] FCA 609 discussed the principle in which s.424A(3)(b) applied to exclude the operation of s.424A(1) because details of the visa application in that case were discussed with the applicant at the Tribunal hearing. His Honour states at [40] - [43]:
40. The obligation under s 424A(1) does not attach to any particular stage of the Tribunal's internal decision making process. In the course of that process, as the Tribunal member thinks about material which is progressively obtained and considered, some matters will emerge as significant and others will assume less significance. Their respective significance may change again. The only constraint arising from s 424A(1) is that the Tribunal cannot make a decision, that is a final, operative decision, to affirm when it possess information which would be the reason, or part of the reason, for that decision unless it gives particulars of that information to the applicant, ensuring the applicant understands that why it is relevant, and invites him or her to comment.
41.Even if the "information" were caught by s 424A(1), the exception in section 424A(3)(b) would apply. If the "information" is given by the applicant at the Tribunal hearing, it is excluded from the operation of sub-s (1), even though it might have also been provided to the Tribunal from another source. In SZEEU at [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue said:
While it appears that the Tribunal originally came to know that the applicant entered Australia on a business visa from sources other than the applicant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal's reasons that it discussed this fact (that the applicant had entered Australia on a business visa) with the applicant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alterative source.
42. This construction is consistent with the purpose of provide procedural fairness in Tribunal reviews (ambient in exclusively statutory form: Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAAFC 6 61) which underlies Div 4 of the Pt 7. If an applicant "gave" the "information" for the purpose of the Tribunal review application (in contrast to SAAP, where the Tribunal had obtained the information from a witness other than the applicant) that is something necessary within the knowledge of the applicant himself. It is not fair for the Tribunal to then make such use of the information as it thinks fit.
43. To conclude that the applicant "gave" information for the purpose of the Tribunal application it is not necessary that the information was initially volunteered by the applicant. Information is equally given if it comes in response to questioning by the Tribunal.
In the absence of a transcript of the Tribunal hearing, the Court can only rely on the Tribunal decision and the explanations contained therein as to the sources of various information. The applicant said that he was the General Secretary of the Bangladesh Chatra League in 2000-2001 while he was a student at Dhaka College.(CB 74) During the hearing, the Tribunal member asked a number of questions relating to this post and the circumstances in which the applicant was elected. As the applicant provided more information about his role, a number of inconsistencies and implausible claims emerged.
These issues were not known until the Tribunal hearing took place. This development of the information, with some elements becoming significant while others not, was a situation referred to by Heerey J in SZCJD v Minister for Immigration. I am satisfied that this claim of jurisdictional error on the part of the Tribunal cannot be sustained.
Ms Pepper submits that the Tribunal rejected the applicant’s false charge claim because of an absence of supporting evidence and the applicant's inability at the hearing to state which month in 2003 he had learned of the false charges.(CB 83.9) Therefore, the relevant information that the Tribunal relied upon in its reasons was the applicant's lack of knowledge about the month which he knew of the false charges, rather than the false charges themselves. Section 424A(1) was not engaged by this information.
Ms Pepper referred me to VWFP & Anor v Minister for Immigration [2006] FCA 231 at [62] - [63] where Young J states:
62.In applying s 424A, it is necessary to focus on matters that, viewed prospectively, would be the reason or a part of the reason for the Tribunal’s decision, or viewed retrospectively in the light of the Tribunal’s actual decision, can be seen to be the reason, or a part of the reason, for the Tribunal’s decision. At the outset of the Tribunal hearing and prior to the appellant’s evidence to the Tribunal, I doubt that the Keskin information could be characterised as information that the Tribunal then considered, or might consider, would be the reason or a part of the reason for affirming the delegate’s decision. By itself, the Keskin information was not adverse to the appellant. Numerous cases suggest that s 424A is concerned with information that is adverse to the interests of the visa applicant: see SAAP per McHugh J at 175 [50]; VAF per Finn and Stone JJ at 476-477 [24]; WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 per French J at 637 [57]; and M17/2004 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 85 ALD 597 per Ryan J at 615-616 [79]–[83]. The Keskin information was simply factual information that might assist in testing the extent of the appellant’s knowledge of the activities of the HRA in Turkey and the veracity of her claims. The same picture is presented when the matter is viewed retrospectively in the light of the Tribunal’s reasons. The Tribunal attached some significance to the fact that in her evidence to the Tribunal the appellant displayed a lack of knowledge of the Keskin information, amongst other matters. In my opinion, the Keskin information cannot be characterised as the reason, or as a part of the reason, for the Tribunal’s affirmation of the decision under review.
63.The relevant fact that the Tribunal relied upon in its reasons for decision was the appellant’s lack of knowledge about the Keskin information, rather than that information itself. As a matter of substance, the appellant’s real criticism is directed at the Tribunal’s subjective appraisal of the credibility of the appellant’s evidence, including in particular, conclusions arrived at by the Tribunal in weighing up that evidence by reference to gaps, lack of knowledge, or lack of detail in the evidence. It follows that the Keskin information did not attract s 424A. Nor do I think that it would be consistent with the statutory purpose underpinning s 424A for the section to be construed so that it extended to the Keskin information.
The Tribunal discussed the applicant's claims in respect of the false murder charges brought against him. The Tribunal then stated:
The Tribunal's doubts are reinforced by the applicant's vagueness at the hearing as to when he had first learned of the false charges. He first told the Tribunal this has been in may 2001 but, when it was put to him that this was inconsistent with the claims in his application for protection that the police came to his parents' home with an arrest warrant some time after his marriage in January 2003, he agreed he had first learned of the charges in 2003. He was, however, unable to state in which month of 2003 this might have happened. The applicant's claims is that this event was important for him because it was, at least in part, the reason he decided he had to escape from Bangladesh.(CB 83.9-84.1)
Clearly, the false charges claim became significant only after the applicant presented evidence at the hearing. It was apparent then that his claims were vague and his answers inconsistent. Retrospectively, information given during the hearing became significant.That aspect of the claim does not engage s.424A(1). For this reason, this ground of review cannot be sustained.
Ms Pepper submits that the delay information was not relevant information for the purpose of s.424A(1) of the Act insofar as the Tribunal concluded that the applicant did not have a genuine fear of serious harm in Bangladesh.(CB 84.2) It was the unconvincing and inconsistent reasoning of the applicant at the hearing about why he did not "rush into apply for protection", that the Tribunal rejected the claim.
The information given by the applicant at the Tribunal hearing thus fell within the exception in s.424A(3)(b). For the reasons set out above, the emergence of this information and the significance it played in the Tribunal's decision did not invoke s.424A(1).
Ms Pepper submits, alternatively, that the claims and information in the applicant's protection visa application were repeated by the applicant, by a combination of his saying that he “understood everything that had been claimed and that it was true in every detail" (CB 74.5), the numerous references to his claims and his protection visa application which was lodged in the pre-hearing submission.(CB 57-59)
Accordingly, the alleged impugned information fell within s.424A(3)(b) of the Act. Ms Pepper referred the Court to SZHIB v Minister for Immigration [2006] FCA 611 at [23] where Young J said:
23. There is, moreover, a second reason for rejecting the applicant's arguments based on s 424A. In my opinion, if any material in the protection visa application was relied upon by the Tribunal as a basis for its findings concerning inconsistencies in the applicant's evidence and its adverse finding on his credibility, that material was republished by the letter accompanying the application to the Tribunal. I have already referred to the contents of that letter. The applicant's incorporates, in my view, the substantive claim made in the applicant's statutory declaration which supported his application for a protection visa. It follows that the information in the protection visa application became information given by the applicant to the Tribunal within the meaning of (3)(b) of s 424A. This view is supported by the authorities: see M55 v The Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131, VUAV v The Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1271 and SZDMG v The Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1034.
See also VWBF v Minister for Immigration [2006] FCA 851 at [44] - [51].
In this matter, the Department acknowledged that it had received the applicant's application for review of the delegate's decision on 14 March 2005. On 22 March 2005, East West Immigration Services, the authorised agent the applicant, forwarded a letter to the Tribunal in similar form to the letter referred by Young J in SZHIB v Minister for Immigration. This pre-hearing submission, lodged one week after the application for review, effectively republished the original visa application claims.
Conclusion
I am satisfied that none of the grounds raised in the original application can be sustained and the application should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 7 March 2007
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