SZHRD v Minister for Immigration

Case •

[2006] FMCA 551

•

31 March 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHRD v MINISTER FOR IMMIGRATION [2006] FMCA 551
MIGRATION – Visa  – protection visa – Refugee Review Tribunal –  application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of Bangladesh.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.475A
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
VBAM v Minister for Immigration & Multicultural Affairs [2003] FCA  504
Applicant: SZHRD
Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
File Number: SYG 3448 of 2005
Judgment of: Scarlett FM
Hearing date: 31 March 2006
Date of Last Submission: 31 March 2006
Delivered at: Sydney
Delivered on: 31 March 2006

REPRESENTATION

Counsel for the Applicant: Mr Karp
Solicitors for the Applicant: Parish Patience Immigration Lawyers
Counsel for the Respondent: Mr Reilly
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. That the title of the First Respondent is Minister for Immigration and Multicultural Affairs

  2. That the application is granted.

  3. That there be an order in the nature of certiorari quashing the decision of the Refugee Review Tribunal signed on 21 October 2005 and handed down on 27 October 2005.

  4. That there be an order in the nature of mandamus remitting the Applicant’s application for review of the decision not to grant him a protection visa to the Refugee Review Tribunal for determination according to law.

  5. That the First Respondent pay the Applicant’s costs fixed in the sum of $6,750.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3448 of 2005

SZHRD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal.  The decision was signed on 21st October 2005 and handed down on 27th October 2005.  The decision of the Tribunal was to affirm the decision of a delegate of the Minister not to grant a protection visa to the applicant.  The applicant is a citizen of Bangladesh who arrived in Australia on 8th May 1999.  On 22nd November 2001 he applied for a protection class XA visa which was refused on 22nd February 2002. 

  2. It appears that there was some difficulty relating to certainty as to the date of notification of the decision to the applicant and, in fact, it appears that the applicant was re-notified.  The applicant made his application for review on 19th November 2004. It can be seen that had there been satisfaction about notification in February 2002 that the application would have been out of time under the provisions of s.412 of the Migration Act.

  3. Neither counsel sought to take any point in respect of that issue and I do not propose to regard it as having any relevance.  The Tribunal invited the applicant to attend a hearing at 1 pm on 27th July 2005.  That morning the Tribunal received a new statement from the applicant under cover of the applicant's new solicitor and migration agent,


    Mr Bitel.   It appears that Mr Bitel had only received instructions to act the previous day. 

  4. The new statement contained grounds which varied significantly from the applicant's initial statement.  Indeed, the applicant claimed that he had previously made up certain problems.  In the new statement he said that his family certainly did support the Awami League in Bangladesh and that he was afraid that he would be caught up in political violence if he were to return to that country.  He has learnt to think freely since he has lived in Australia and has rejected certain aspects of Islam. 


    He feared that if he returned to Bangladesh he was afraid that he would be forced to return to a strict observance of that faith.

  5. Relevant to this application and the matter before me is the applicant's claim that he is homosexual and that he feared he would be persecuted for being homosexual if he were to return to Bangladesh.  


    The particular point upon which this case turns relates to what happened at the hearing and subsequently.  It is hardly surprising that the Tribunal exhibited some scepticism about the applicant's last minute change of his account.  The Tribunal formed a view that matters of that nature would lead to a degree of concern about his credibility.  The Tribunal, it is conceded, looked unfavourably at the applicant's credit and in particular was not satisfied that he was a homosexual.

  6. The particular event to which I would refer relates to a document forwarded to the Tribunal after the hearing.  That document was forwarded under cover of a letter dated 11th October 2005 from the applicant's migration agent.  A copy of that letter appears at page 417 of the Court book.  The letter says:

    Further to our letter of 28th September 2005 we now enclose statement from Shantu, the applicant's friend, which corroborates his claims.  The Tribunal is invited to confirm the statement with Mr Shantu.  We trust that in the event the Tribunal does not do so that the Tribunal will accept as accurate the contents of this statement.

  7. The statement was dated 2nd October 2005.  A copy of it appears at page 418 of the Court book.  The statement, which is addressed "To Whom it May Concern" says this:

    I am writing to you regarding the fact that -

  8. And I will leave the applicant's name out -

    is one of my best friends.  We knew each other since our school life back in Bangladesh.  I know him and his family personally.  My parents also have personal correspondence with his parents.  I continued my friendship with him while we're in Australia.  Moreover I used to live with him in the same house for two years.  After he came in Australia I came to know that he is homosexual in nature.  At the end of 2004 I came to know that he was in need of legal advices for his visa.  Thus I took him to Refugee Advice and Casework Service, RACS Sydney, for necessary legal advices in January 2005.  I would be very happy for any further correspondence.  If you have any queries please feel free to contact me on my mobile.

  9. And the letter is signed and the writer gives his name.  That material was received by the Tribunal on 12th October.  What had happened was the Tribunal had already sent out a letter, on 7th October, saying that it was going to hand down its decision on 27th October.  What the Tribunal then did is to recall the decision, which was done on


    18th October, and a copy of the documentation relating to that appears at page 419 of the Court book. 

  10. What then happened appears to be set out at page 449 of the Court book.  The Tribunal considered the written material from the applicant's friend and the Tribunal, it appears, telephoned that person and asked him some questions about his case.  A description of that appears at page 436 of the Court book where the Tribunal records that on 17th October the Tribunal took oral evidence from that person by telephone link from Canberra.  There is then a description on pages 436 and 437 about the questions asked by the Tribunal of this person and that person's replies. 

  11. The Tribunal makes it clear that in the Tribunal's opinion the Tribunal took oral evidence from this person by telephone link and the Tribunal referred to that person as "a witness". What did not happen was that this taking of oral evidence from this person took place in the presence of the applicant. It did not. It was a telephone conversation by the Tribunal with the person known as Shantu. Now, clearly, were it not for the effect of s.422B of the Migration Act, there would be a denial of natural justice. Counsel for the applicant concedes that s.422B precludes this but submits that this is a breach of s.424A of the Migration Act.

  12. The reference to the evidence taken over the telephone from this person appears at page 449 of the Court book in the second-last paragraph.  The Tribunal says:

    The Tribunal has considered the evidence provided by the witness but given that the witness never observed any homosexual activity by the applicant and was never told clearly by him that he was a homosexual, it is not satisfied that this evidence adds any significant weight to the applicant's claims in this area.

  13. The Tribunal then went on to refer to the applicant's account of his own claimed homosexuality, which the Tribunal described as being vague and lacking in detail.  What the applicant's counsel submits is that whilst the Tribunal regarded this person as a witness, the applicant did not put him forward as a witness who would give oral evidence on his behalf.  It was the Tribunal's decision to obtain further evidence pursuant to sub-s.424(1), just as it was the Tribunal's decision in SAAP v Minister for Immigration (2005) 215 ALR 162; [2005] HCA 24.

  14. In those circumstances it is submitted the information should have been put to the applicant in writing for comment pursuant to s.424A of the Migration Act. This would be the case unless the information given by the witness was not the reason or a part of the reason for affirming the decision under review. The applicant submits that the evidence taken from this person should be regarded as part of the reasons for affirming the decision under review. Counsel for the applicant referred to the decision of Weinberg J in SZEEU v Minister for Immigration [2006] FCAFC 2 at [164].

  15. The paragraph referred to indicates the width of the extent of the section.  His Honour said:

    Although the Tribunal dealt with the matter as though it simply bolstered a conclusion that he had already arrived at rather than as an element in the decision making process, it does not follow that it did not play "a part in" its reasons for decision.  It would be both artificial and dangerous to determine whether there is a causal link between a piece of information that is seriously adverse to a claimant and a decision rejecting that person's claim by focusing largely upon where, in the reasons for decision, the information is discussed.  The actual process by which a decision is reached is, of course, a complex matter.  It is not always as neat as the reasons themselves may suggest.  The reasoning may not proceed in a linear fashion and the Tribunal's reasons must of course be read as a whole.

  16. I am also referred to the decision of Allsop J at [215] of the same decision. What the applicant submits is that there is a jurisdictional error by the Tribunal failing to deal with the information in the way required by s 424A because the applicant submits that the evidence of the witness was a part of the reason for affirming the decision under review. Against this counsel for the respondent submitted that the information given by the person known as Shantu was not part of the reasons for the Tribunal's decision within s.424A (1). The brief mention of the person's evidence at page 449 of the Court book, which I have already read on to the record, does not show that this information became part of the reason for the Tribunal's decision.

  17. The submission is that the evidence was not regarded as being against the applicant's case but as essentially irrelevant to the Tribunal's credibility concerns about the applicant.  I am referred to the decision of SZEEU at [216] where Allsop J said:

    The mere fact that a matter is mentioned in the Tribunal's reasons does not necessarily make it part of the reason for the Tribunal's decision.

  18. And also [226], oral questioning on a matter does not make it so:

    If the information on which the questioning occurred can be seen to play no part in the reasoning leading to the affirmation of the decision.

  19. The submission is that the evidence of this person did not play any part in the Tribunal's reasons for affirming the applicant's decision. 


    The second claim raised by counsel for the respondent is that the evidence of this person is excluded by s.424A(3)(b) which applies to evidence given by a witness called by an applicant. I am referred to the decision in VBAM v Minister for Immigration and Multicultural Affairs [2003] FCA 504, which is a decision of Gray J. In particular at paragraph 44 his Honour said:

    Section 424A of the Migration Act did not oblige the Tribunal to give notice to the applicant of the finding it proposed to make about the witnesses. That section relates only to, "Information that the Tribunal considers would be the reason or a part of the reason for affirming of the decision" under review.


    Section 424A(3)(b) excludes from the obligation information that the applicant gave for the purpose of the application. 


    The evidence of the three witnesses was information that the applicant gave for the purpose of the application.

  20. To my mind and following the decision of the Honourable Weinberg J in SZEEU (supra), the evidence obtained from the witness was part of the reason, as his Honour set out at paragraph 164. Whilst I am referred by counsel for the respondent to paragraphs 62 to 65 of SZEEU, which related to the rejection by the Tribunal of evidence given by a person referred to as "Mr W" in a letter which was sent to the Tribunal shortly after the hearing, that letter was described at paragraph 252 as having been attached to a submission from the adviser of the applicant - or the appellant in that case - and s.424A(3)(b) applied to it.

  21. It was certainly held that whichever one of my colleagues it was, was correct in rejection submissions concerning the letter, that the Tribunal had not been under a duty to contact the author and the perceived inconsistencies were not information for the purpose of s.424A.


    The difference here that I can see which leads me to distinguish those paragraphs in SZEEU is that it was not the letter from the person submitted by the applicant's adviser that is the case in point here. 


    To my mind it would have been appropriate for the Tribunal to consider the letter, which the Tribunal did, but not give that letter any weight or any sufficient weight to persuade the Tribunal to grant the application.

  22. What this case turns on is whether the evidence taken by the Tribunal over the telephone makes the writer of the letter a witness for the purpose of these proceedings.  The submission was made by counsel for the applicant that this person cannot be regarded as a witness called by the applicant, or sought by the applicant to the extent that information given by that person could be information protected by


    s.424A(3)(b). The question was asked rhetorically how can information given in the absence of the applicant, and information not known by the applicant, be part of the information given by the applicant? In my view it cannot be.

  23. The letter was provided to the Tribunal for a limited purpose.  It was certainly indicated, both in the applicant's adviser's letter and the letter from the person himself, that telephone corroboration of that information was invited.  That does not, to my mind, go so far as to permit the Tribunal to conduct a lengthy examination of that person in the absence of the applicant, because the questions asked of the person and the evidence given were not matters known to the applicant and cannot in any way be described as information given by the applicant for the purpose of the application.

  24. If the Tribunal wished to regard that person as a witness and conduct an examination of that person, it was incumbent upon the Tribunal either to reconvene the hearing so that the evidence could be taken in the presence of the applicant, or put the evidence to the applicant in writing under the provisions of s.424, explain the relevance of the evidence and why it was that it could form a reason or part of the reasons for affirming the decision under review, and give the applicant an opportunity to reply.

  25. In my view it was an error to conduct an examination of this person in the absence of the applicant and not to put this material to the applicant. I am satisfied that it is a jurisdictional error; I am satisfied it is a clear breach of s.424A of the Migration Act and I am satisfied therefore that the application for relief must be granted. I therefore make the following orders.

  26. There is an application for costs.  It is not submitted that I should depart from the practice that the costs follow the event.  The applicant seeks a figure of $7,000.00 inclusive of counsel's fees.  Ms Gray for the respondent submits that figure is somewhat on the high side and that the respondent's own costs, which should be comparable, were only $5,700.00, which could hardly be described as excessive in the circumstances.  Costs are discretionary and the figure is discretionary.  I am mindful of the fact that this case was about a discrete issue and it was a tightly and succinctly argued case and argued in a way that did credit to both counsel.  In my view an appropriate figure in the circumstances is $6,750.00

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

Associate: S.Polley

Date: 18 April 2006

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