SZHFX & Ors v Minister for Immigration & Anor
[2007] FMCA 1575
•17 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHFX & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1575 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicants are citizens of Bangladesh claiming fear of persecution for reasons of membership of social group and political opinion – whether Tribunal breached Migration Act 1958 (Cth) s.424A . |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 424A |
| SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 150 FCR 214 referred to. VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965 referred to. SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 referred to. |
| First Applicant: | SZHFX |
| Second Applicant: | SZHFY |
| Third Applicant: | SZHFZ |
| Fourth Applicant: | SZHGA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2781 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 March 2007 |
| Date of Last Submission: | 1 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mrs Sirtes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The title of the First Respondent is changed to Minister for Immigration & Citizenship.
The First Applicant is appointed the litigation guardian of the Second, Third and Fourth Applicants.
The Application is dismissed.
The First Applicant is to pay the First Respondent’s costs fixed in the sum of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2781 of 2005
| SZHFX |
First Applicant
| SZHFY |
Second Applicant
| SZHFZ |
Third Applicant
| SZHGA |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was handed down on
1st September 2005. The Tribunal affirmed the decision of a delegate of the Minister not to grant the four Applicants, a mother and her three children from Bangladesh, protection visas.
The Applicants seek judicial review of that decision. They filed an application and an affidavit in support on 29th September 2005.
They filed an amended application in court on 1st March 2007. In that amended application the Applicants seek the following orders:
a)A writ of certiorari directed to the Second Respondent removing the purported decision into this Court to be quashed.
b)A writ of mandamus directed to the Second Respondent to rehear and redetermine the Applicants’ applications for review according to law.
c)A writ of prohibition directed to the First Respondent preventing her[1] or her servants, agents and delegates from acting on or giving effect to or enforcing the purported decision.
d)A declaration that the decision of the Second Respondent is null and void.
e)Costs
[1] The First Respondent was by that stage a man.
Ground of Review
The Applicants rely on the ground that the Tribunal committed jurisdictional error by failing to disclose to the Applicants, in the manner required by s.424A of the Migration Act 1958, information that was a part of the reason for affirming the decision under review. The particulars of this ground are:
a) Information relating to “the cunning and ruthless behaviour attributed to…” Kala Jahangir by “independent reports” and
b) Information “…located by the Tribunal after an extensive Google search of news media sites and commentary pages, [that] did not appear to support a position to the effect that Jahangir had been aligned with the ruling faction of the BNP.”
Background
The Applicants are a mother and her three young children who are all nationals of Bangladesh. In passing, I note that the three children are all minors and I propose to appoint the mother, who is the First Applicant, to be the litigation guardian of the three children.
The Applicants all arrived in Australia on 30th July 2004. They applied for Protection (Class XA) visas on 27th August 2004. As the Tribunal noted:
The Applicant mother and her first son were included as Part C applicants with their own refugee claims. The second and third child were included as Part D applicants, meaning that they did not have their own refugee claims but were nevertheless included in the application as members of the Part C applicants’ immediate family.[2]
[2] See Court Book at 471
A delegate of the Minister refused to grant protection visas to the Applicants on 20th October 2004. The Applicants then applied to the Refugee Review Tribunal on 15th November 2004.
Refugee Review Tribunal Application
The Applicants provided copies of their Bangladeshi passports to the Tribunal in support of their application. The Tribunal wrote to the Applicants care of their authorised recipient on 27th January 2005, inviting them to attend a hearing on 24th February. The First Applicant completed a Response to Hearing Invitation form, indicating that she would like to attend the hearing and would need an interpreter in the Bengali language. The First Applicant also indicated that she would like the Tribunal to hear the evidence of a witness, a Mr Ahmed. The First Applicant provided a copy of a statutory declaration by Mr Ahmed, setting out what his evidence would be. The First Applicant also provided a statement by a Mr Golam Mostafa Khan, a lawyer from Bangladesh.
On 7th April 2005 the Applicants’ advisers provided to the Tribunal a statutory declaration by a former resident of Bangladesh[3] who is now a permanent resident of Australia. In his statutory declaration, the former resident of Bangladesh set out the activities of Kala Jahangir, whom he described as:
A hired gun for senior BNP politicians who use him to terrorise and kill their political enemies.[4]
[3] The name of this man will not be disclosed in order to comply with s 91X of the Migration Act because he applied for a protection visa.
[4] The statutory declaration is set out in full on pages 370 and 371 of the Court Book.
The former resident of Bangladesh gave details of an incident that had occurred in Bangladesh about four years earlier, where he said that Kala Jahangir had threatened him and demanded a large sum of money from him. As a result, he left the country.
The Applicants’ advisers wrote a submission to the Tribunal on 13th April 2005 about the First Applicant’s credibility and her claims generally. They also provided the original of the former resident’s statutory declaration. In addition, they provided a copy of the decision of the Refugee Review Tribunal made on 23rd May 2003, where the Tribunal was satisfied that the former resident of Bangladesh was a refugee.
The Tribunal wrote to the Applicants’ advisers on 24th May 2005. The letter was clearly intended to comply with the requirements of s.424A of the Migration Act. The letter told the Applicants that the Tribunal had information that would, subject to any comments they made, be the reason or part of the reason for deciding that they were not entitled to protection visas. The letter set out certain information from the Internet about Kala Jahangir, who was convicted of murder during the term of the BNP Government.
The letter told the Applicants that the information was relevant because:
The evidence before the Tribunal to date does not seem to support a position to the effect that Jahangir is under the protection of powerful persons in the BNP, as he has been convicted during the government of the BNP.[5]
[5] Court Book 393
There were other items of information referred to in the letter. The letter invited the Applicants’ comments.
The Applicants’ migration advisers replied on 12th July 2005. Their letter enclosed a number of documents, including a statutory declaration from the First Applicant and some newspaper articles about Kala Jahangir. The letter also referred to Kala Jahangir, noting that he was still at large despite having been convicted and continued to pose a threat.
The Applicants’ advisers wrote to the Tribunal again on 20th July 2005. Their letter enclosed a further press article referring to the activities of Kala Jahangir and his gang. They wrote again on 8th August 2005, enclosing photographs of the Applicants’ house in Bangladesh and translated copies of newspaper articles. These articles related to the kidnapping of various individuals, although there was no specific reference to Kala Jahangir.
The Refugee Review Tribunal Decision
The Tribunal handed down its decision on 1st September 2005. A copy of the Tribunal Decision Record appears at pages 470 to 500 of the Court Book.
The decision set out the Applicants’ claims in this way:
The Applicant[6] claims of fear of being persecuted and her three sons being persecuted in Bangladesh for Convention-related reasons of ‘political opinion’, relating to the claimed involvement of her husband with the ruling Bangladesh Nationalist Party (BNP). She claims that his affiliation with the BNP and his status as a businessman led to a threat to kidnap her first son and to other forms of harassment. Her claims, and those of her three sons, have also been characterised as claims relating to ‘membership of a particular social group’, the claim being that they are all members of a ‘family’ that includes a person, the Applicant’s husband, who is being targeted for his ‘political opinion’ and for his membership of a ‘particular social group’ that she has characterised as ‘businessmen in Bangladesh’.[7]
[6] The first Applicant is referred to as “the Applicant” throughout the decision.
[7] Court Book at 474
The Tribunal then proceeded to set out a summary of the evidence from the primary application including the claim that the First Applicant’s husband had received several threats from Kala Jahangir, demanding a sum of money from him, other wise he would kidnap their son. The Tribunal referred to the Applicants’ further submissions and evidence provided at the hearing.
The Tribunal referred specifically to independent evidence about Kala Jahangir:
The Tribunal found abundant material reporting and alleging Jahangir’s role as a notorious gangster in murder, terrorism and extortion. The Tribunal found a report to the effect that Jahangir was convicted in May 2003 of the August 2000 murder of a local BNP leader, Advocate Habibur Rahman Mondal…He was convicted during the current BNP incumbency. The BNP was elected to government in October 2001. The evidence located by the Tribunal, after an extensive Google search of news media sites and commentary pages, did not appear to support a position to the effect that Jahangir had been aligned with the ruling faction of the BNP.[8]
[8] Court Book at 480-481
The Tribunal’s findings and reasons are set out on pages 493 to 500 of the Court Book.
The Tribunal’s Findings and Reasons
The Tribunal accepted that the Applicants are all nationals of Bangladesh. They had provided copies of their passports to the Tribunal.
The Tribunal also accepted a number of facts about the Applicants’ case. However, the Tribunal noted that the Applicants “did not apply for protection in Australia expeditiously”.[9] The Tribunal also doubted, from the First Applicant’s evidence at the hearing, that the First Applicant “held a genuine significant, personal fear, on her own part of for her children, in relation to Kala Jahangir.”[10]
[9] Court Book at 494
[10] Court Book at 495
The Tribunal also noted that the First Applicant’s son was not kidnapped nor was any ransom ever paid, and found that there was no reliable evidence of the kidnap threat having taken place.[11]
[11] Court Book at 496
The Tribunal stated:
Even if one accepts that, sometimes in Bangladesh, ransoms are sought in connection with merely threatened harm, and even if one accepts that Kala Jahangir and people working for him have been involved in such ventures, the Tribunal finds that the Applicant’s account of the alleged threat from Kala Jahangir on her family lacks credibility.
The behaviour the Applicant attributed to Kala Jahangir in her claims does not closely, or otherwise convincingly, resemble the cunning and ruthless behaviour attributed to him in independent reports…
The Tribunal is confident on the evidence before it that the real improvisation has been the Applicant’s improvisation (with or without the help of others) of the whole ‘kidnap’ story.[12]
[12] Court Book at 497
The Tribunal did not accept the Applicants’ claim that the police and the BNP government were all working for or with Kala Jahangir, finding that:
The independent evidence about campaigns against Jahangir and other gangsters negates that position very strongly. The Tribunal finds that the Applicant’s claims about the lack of rule of law in Bangladesh are grossly exaggerated, particularly in relation to the kind of problem she claims she and her family faced there.
The Tribunal does not accept that the Applicant’s family was the target of a kidnap threat, let alone from Kala Jahangir.[13]
[13] Court Book at 498
In summary, the Tribunal was not satisfied that the Applicants faced a real chance of Convention-related persecution in Bangladesh and found that their claimed fear of persecution was not well-founded. The Tribunal found that the Applicants were not refugees and affirmed the delegate’s decision not to grant protection visas to the Applicants.
The Applicants’ Submissions
Mr Karp of counsel appeared for the Applicants. He submitted that the Tribunal rejected the Applicants’ claims because:
a)it did not accept that the kidnap threat took place, and it was influenced by the independent reports about Kala Jahangir; and
b)it did not consider that the kidnap threat, if it occurred, was Convention related, which relates back to the Tribunal’s ‘extensive Google search of news media sites and commentary pages’ relating to Kala Jahangir’s motives and allegiances. The information utilized by the Tribunal goes beyond that which was disclosed in the Tribunal’s s.424A letter at pages 393 and 394 of the Court Book.
Mr Karp submitted that s.424A of the Migration Act requires that particulars of information personal to the Applicant or another person must be disclosed to the Applicant in writing if that information is the reason or part of the reason for affirming the decision under review. The Full Court of the Federal Court held in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs[14] that this disclosure must be made where the information is part of the reason for the affirmation.
[14] (2005) 150 FCR 214 at 253 [164] and 262 [215]
Mr Karp submitted that the information sourced by the Tribunal about Kala Jahangir was information that fits squarely within s.424A. It was information that was a part of the reason for affirming the decision under review, and it was personal to a particular person, Kala Jahangir. Particulars of that information should have been disclosed to the Applicant in writing and the Tribunal’s failure to do so amounted to jurisdictional error.
The First Respondent’s Submissions
Counsel for the First Respondent Minister, Mrs Sirtes, submitted that there was nothing to suggest that the information about the ‘cunning and ruthless behaviour attributed to Kala Jahangir by independent reports’ and the impression that the Tribunal might have formed about Jahangir’s modus operandi did not emanate from the volume of independent country information provided by or on behalf of the Applicant.
Mrs Sirtes submitted that the information to which the Tribunal had regard in relation to Jahangir appears at pages 480-481 of the Court Book. The Tribunal considered:
a)a report relating to Jahangir’s conviction for murder in May 2003; and;
b)a report regarding Jahangir’s involvement in an ‘elimination drive against Awami League’s stalwarts’.
However, the Tribunal put these reports to the Applicants for comment in the s.424A letter of the 24th May 2005. Mrs Sirtes submitted that the Tribunal prefaced the summary of these reports by stating that there was abundant information alleging that Jahangir was a notorious gangster who engaged in murder, terrorism and extortion. However:
i)These were not matters that were in contention and were in fact matters alleged by the Applicants and did not amount to adverse information; and
ii)The Tribunal’s statement related to information that Jahangir was involved in criminal activities and did not, on the face of the decision, inform the Tribunal as to Jahangir’s modus operandi in undertaking these criminal activities.
The Applicant provided information about the Jahangir’s modus operandi and kidnapping activities. The Tribunal referred to the statutory declaration of the former resident of Bangladesh provided by the Applicants in support of their claims.[15] The Tribunal also noted:
A 20 July 2005 submission from the Applicant’s adviser provides a copy of a newspaper article about extortion threats in Bangladesh and about Kala Jahangir’s role in such activities. The article is clumsily translated but it does suggest that some extortionists in Bangladesh including Kala Jahangir demand money from citizens under threat of carrying out kidnappings if the money is not paid. The article also provides evidence of success on the part of police in capturing extortionists based on information provided by their intended victims.[16]
[15] Court Book at 492
[16] Court Book at 493
Mrs Sirtes submitted that the information in question was:
a)not adverse to the First Applicant insofar as she herself contended that Jahangir was a well known and experienced criminal extortionist and kidnapper; and
b)on the face of the Tribunal’s decision, information which most likely emanated from the Applicant’s own material about Jahangir.
Further, even if the Court did find the information fell outside the exception in s.424A(3)(a), and if it were the case that the Court found that the Tribunal had fallen into error, there were other bases upon which the kidnapping claims were rejected. There were also, she submitted, other bases than the kidnapping claims upon which the decision turned.
Mrs Sirtes referred to the decision of North J in VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs[17] where it was held at [33]:
SAAP[18] does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which a decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established.
[17] [2005] FCA 965
[18] SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Mrs Sirtes submitted that each of the other reasons in the decision under review was an independent finding that did not require s.424A notification and was sufficient to justify an adverse credibility finding. She submitted that the Tribunal rejected the First Applicant’s claims about the kidnapping threat because:
(a)the First Applicant’s son was never kidnapped;[19]
(b)there was no reliable evidence that the threat to kidnap the son had ever taken place;[20] and
(c)even if the Tribunal accepted that a kidnap threat had been made, there was no evidence that this was for a reason other than a criminal matter and was therefore not Convention-based.[21]
[19] Court Book at 495
[20] Court Book at 496
[21] Court Book at 498
The decision therefore contained at least one separate and independent basis and this would have been sufficient to withhold relief (SZEEU at [233]).
As to the second piece of information which the Applicants claimed should have been put to them for comment, that the information “did not appear to support a position that Jahangir had been aligned with the ruling faction of the BNP”, Mrs Sirtes submitted that the substance of that information was put to the Applicants by the Tribunal in its s.424A letter. The Tribunal stated:
The Tribunal put to the Applicant, in the 24 May 2005 letter, that independent evidence did not appear to support a position to the effect that Kala Jahangir is under the protection of powerful persons in the BNP, as he has convicted during the government of the BNP. Referring to Sheikh Hasina allegations about Kala Jahangir being a BNP-directed assassin working against the AL, the Tribunal posited that even if these allegations were correct, they did not provide evidence of Kala Jahangir being used to help purge parts of the BNP from within. In reply, in the 12 July 2005 submission, the Applicant said that if Kala Jahangir were not protected by the authorities, he would be in jail. She did not provide detail.[22]
[22] Court Book at 490
Mrs Sirtes submitted that information to the effect that Kala Jahangir was protected by or aligned with the BNP is, in substance, the same. Therefore, the Applicants were given an opportunity to comment on that information and did in fact comment.
In any event, she submitted, there were other separate and independent bases, unaffected by error, upon which the Tribunal’s decision was based.
Conclusions
In my view, the reasons why the Tribunal was not satisfied that the Applicants were the target of a kidnapping threat by Kala Jahangir were:
(a)the absence of evidence, particularly from the First Applicant’s husband;[23] and
(b)the First Applicant’s own account of the alleged threat.
[23] Court Book at 496
The Tribunal had this to say about the First Applicant’s account of the alleged threat:
The behaviour the Applicant attributed to Kala Jahangir in her claims does not closely, or otherwise convincingly, resemble the cunning and ruthless behaviour attributed to him in independent reports. In the Applicant’s account, Jahangir did not use any agents or intermediaries but made the telephone calls himself. More odd than that, though, he set no deadline for the payment of the money he was demanding. Bearing in mind the claimed circumstances, he somewhat illogically went into some detail in his telephone call as to where he wanted the ransom money to be left, but did not say when he wanted it left there. He personally provided his intended targets with enough information to allow them to advise the police where to set up covert surveillance (of the kind that has probably led to the arrest of other extortionists, mentioned in independent material provided by the Applicant). Then, just a few days later, Jahangir reduced the ransom by 90% for no apparent reason. He specified the harm he was threatening to perpetrate so that the intended victims could take evasive action, pulling the child out of school. According to the Applicant’s evidence, he behaved throughout the whole affair like an amateur, or at least as though he was improvising the plot as he went along.[24]
[24] Court Book at 497
The Tribunal was not convinced by this evidence, which was given by the First Applicant for the purpose of the application. There is no breach of s.424A in this regard.
The Tribunal was not satisfied that Kala Jahangir was under the protection of powerful persons within the BNP because he had been convicted of murder during the time that the BNP was in government. This information was set out in the Tribunal’s s.424A letter of the 24th May 2005.[25]
[25] Court Book at 393
I am satisfied that the information upon which the Tribunal relied to cast doubt on the Applicants’ claims was in fact covered by the Tribunal’s letter of 24th May and put to the Applicants for comment. There is no breach of s.424A of the Migration Act.
It follows that the application will be dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 14 September 2007
2
2
2