SZHZY v Minister for Immigration
[2006] FMCA 1732
•2 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHZY v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1732 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of Bangladesh – applicant claims fear of persecution for reasons of his political opinion – credibility – no jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.422B, 424A, 425, 426A, 430, 474 |
| Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547 Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61 Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24 Re: Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 62 SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 |
| Applicant: | SZHZY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2308 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 2 November 2006 |
| Date of Last Submission: | 2 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 2 November 2006 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2308 of 2006
| SZHZY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Application
This is an application for review of a decision of the Refugee Review Tribunal. The Tribunal signed its decision on 3rd July 2006 and handed its decision down on 25th July 2006. The Tribunal affirmed the decision of a Delegate of the Minister not to grant the applicant a protection (class XA) visa. The applicant seeks a review of that decision and in particular seeks orders both quashing and setting aside the decision of the Tribunal and an order in the nature of prohibition against the first respondent minister, no action should be taken to remove the applicant from Australia while the decision is pending.
The background of this matter is that the applicant is a citizen of Bangladesh who arrived in Australia on 21st July 2005. He applied for a protection (class XA) visa on 29th August and that visa was refused on 7th September 2005. I note that there is an error in the date in the Tribunal decision, although nothing turns on that. On 21st September 2005 the applicant applied to the Refugee Review Tribunal for a review of that decision. He submitted his application with the assistance of a migration advisor who provided a two page letter incorporating a submission about the merits of the applicant's claim.
The Tribunal wrote to the applicant inviting him to attend the hearing and the applicant accepted that invitation. He attended a hearing of the Tribunal and the Tribunal affirmed the Delegate's decision on
14th November 2005. The applicant then sought judicial review of that decision in this Court and on 5th May 2006 this Court made orders by consent setting aside the decision of the Tribunal and remitting the applicant's application to the Tribunal for reconsideration.
The Tribunal acted promptly and invited the applicant by means of a letter dated 23rd May 2006 to attend a hearing on 28th June.
The applicant replied equally promptly and forwarded his response to hearing invitation on 6th June advising that he wanted to attend that hearing. The Tribunal in the meantime wrote to the applicant on
30th May. That letter is reproduced at pages 108 through to 112 of the Court Book. The letter is couched in terms of s.424A of the Migration Act and is headed, "Invitation to Comment on Information". The letter goes on to say:
The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason for deciding that you are not entitled to a protection visa.
The information is as follows.
The Tribunal then set out on page 108 through to 111 details of information including the details of the applicant's protection visa application and claims made in that application. The letter refers to oral evidence given by the applicant to the first Tribunal on
14th November 2005. The letter referred to other information including submissions made by the applicant's migration agent.
At page 11 of the Court Book the letter under the heading "this information is relevant because" sets out reasons why the Tribunal may be satisfied that the applicant's claimed political convictions did not invoke protection obligations in Australia and why the Tribunal may find that the applicant did not have a well founded fear of harm amounting to persecution for any Convention reason if he were to return to Bangladesh. The letter goes on to say at page 112:
The Tribunal may also find that if the applicant was in fact attacked in March 2005 that the applicant was simply unfortunate to be in the wrong place at the wrong time.
And the letter also refers to the possibility that the Tribunal might find that the applicant might be able to safely relocate within Bangladesh. The letter invited the applicant to comment on that information, said that his comments were to be in writing and in English, and were to be received at the Tribunal by 22nd June. The letter went on to warn the applicant, in block capitals:
If you do not give comments by 22nd June 2006 the Tribunal may make a decision on the review of your case without further notice.
The applicant did not attend the hearing of the Tribunal on 28th June 2006, notwithstanding the fact that he had forwarded a response to hearing invitation indicating that he would attend and require the assistance of an interpreter. I note that the Tribunal's hearing record, a copy of which appears on pages 113 and 114 of the Court Book shows that an interpreter qualified in the Bengali language was available at the hearing. The handwritten note on the form in respect of the applicant contains the words "no show". The applicant conceded to the Court today that he did not attend the hearing.
The Tribunal signed its decision on 3rd July 2006 and handed it down on 25th July. A copy of the Tribunal decision appears at pages 118 through to 129 of the Court Book. The Tribunal noted at page 121 that the applicant did not attend the hearing and in those circumstances and pursuant to s.426A of the Migration Act the Tribunal decided to make its decision on the review without taking any further action to enable to applicant to appear before it. The Tribunal went on to say that it had the Department's file relating to the applicant before it as well as the file from the previously differently constituted Tribunal.
The Tribunal also had regard to the material referred to in the Delegate's decision and the decision record of the previous Tribunal. The Tribunal also referred to the s.424A letter forwarded to the applicant on 20th May. The Tribunal referred to a letter that the applicant wrote in which he said, amongst other things:
Thank you for your letter which was read to me and which is confusing because the information given to me is difficult to understand especially in my situation, I felt panic stricken because during the interview there were too many questions in a way that felt like interrogation.
That letter was dated 22nd June 2006 and the contents are set out in full in the Tribunal's decision on pages 124 through to 126 of the Court Book. The Tribunal's findings and reasons are set out on pages 126 through to 128 of the Court Book. The Tribunal noted that it had considered the evidence provided by the applicant in his primary application and the evidence he gave to the first Tribunal and also to the submission he had made to the Tribunal.
The Tribunal found that the applicant had given inconsistent and implausible evidence with regard to his movements prior to his departure to the United Arab Emirates. The Tribunal set out what those inconsistencies were. The Tribunal found certain parts of the applicant's evidence implausible and did not accept a statement made in his written submission which related to the reasonableness of relocation. The Tribunal's summary appears at pages 127 and 128 and says:
The Tribunal finds his inconsistencies and the implausibility of his claim significant and indicative of the applicant being caught up by not remembering his fabricated claims. The Tribunal believes that had he been persecuted as he claims he would never have claimed that he had resided at his home from birth until the time of his departure from Bangladesh or that he subsequently provided differing evidence with regard to how long he had allegedly stayed with his sister and cousin.
The Tribunal went on to find that in the light of the inconsistencies and implausibility of the applicant's evidence that the applicant had in fact fabricated his claims and found that there was no real chance that the applicant might suffer serious harm should he return to Bangladesh. The Tribunal was not satisfied that the applicant has a well founded fear of persecution for reason of his political opinion or for any Convention reasons.
The applicant has sought judicial review from this Court and in his amended application filed on 17th October 2006 sets out two grounds. The first ground is as follows:
(1) the applicant claims that the Refugee Review Tribunal (the Tribunal) erred in law in the decision reach not following s. 424A of the Migration Act 1958 (the Act).
The applicant then gives particulars of that claim which consists of four paragraphs which are direct quotes from the Tribunal's finding and reasons. The applicant's second ground says this:
The applicant claims that the Tribunal denied him natural justice when the Tribunal made findings and reasons.
The particulars of that, set out by the applicant involve quotes from the Tribunal's findings and reasons at page 148 of the Court Book.
The applicant had filed a written outline of submissions which was filed on 18th October. I offered the applicant the opportunity to speak to those submissions but he said that he preferred to rely on his written submissions.
That of course is the applicant's right and no adverse inference will be drawn from it. The applicant's submission sets out his litigation history and refers to the two grounds. The first ground, as I said, referred to the claim of a breach of s.424A of the Migration Act. The applicant concedes that the Tribunal wrote to the applicant on 30th May 2005. He goes on to say:
Which the applicant did not understand why he has received the letter but when the Tribunal made its findings and reasons then the Tribunal did not ask the applicant explanation on its findings which are the reasons to reject the claim.
The applicant then sets out passages from the findings and reasons at pages 127 and 128 of the Court Book. The applicant then submitted that the Tribunal should follow the decision of the Full Court of the Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 per Moore J at [10]:
Where there is information which the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review and, if so -
The next couple of words are illegible:
Its obligations under s. 424A of the Act to provide the appellant with particulars of that information in writing. I would, where necessary, grant each appellant leave to raise and argue the points dealt with in the following reasons.
The applicant also relies on the decision of the High Court of Australian in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 where, and he says:
The language of s. 424A is imperative, failure to comply with the obligation to provide the applicant with particulars of adverse information in writing constitutes a breach of that section.
As to the second ground, the applicant says:
The applicant claims that the Tribunal denied him natural justice when the Tribunal made findings and reasons, the submissions refer to s. 430 of the Migration Act and he said that the natural justice rule is a general rule to inform the applicant why his evidence and why his claim was rejected.
Section 430 of the Migration Act supports the view that the applicant must understand why his application is rejected. The applicant claims that he did not understand at all why and how the Tribunal made certain conclusions. In support of this proposition the applicant relies on the decision of Wilcox J in Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24 at [27] where his Honour said:
It is important that a reader be able to discern what conclusions the Tribunal reached about the issues relevant to the ultimate decision. One of the purposes of s. 430 is to ensure that unsuccessful applicants for a protection visa are told why their application has failed. If the reason, or one of the reasons, was that the Tribunal rejected a significant factual claim the Tribunal must say so and indicate the factual material on which the adverse was based.
As a result the applicant claims he was denied natural justice.
Dealing with these two claims in order the submission that the Tribunal's thought processes and determinations constitute information that comes within the purview of sub-s.424A(1) of the Migration Act is misconceived. As Mr Reilly of counsel for the Minister has submitted the term "information" encompasses factual information about the applicant or another person. The applicant has not identified any information falling within s.424A(1) and not included by s.424A(3)(b) nor explained how the Tribunal s.424A letter is inadequate.
In my view the s.424A letter of 30th May 2006 sent by the Tribunal to the applicant was a comprehensive document that sets out clearly the information about which the Tribunal had concerns and the letter complies with the requirements of s.424A of the Migration Act.
There is no breach of s.424A of the Migration Act.
Turning to the claim of the denial of natural justice the claim, as counsel for the respondent submits, must fail first of all because of the operation of s.422B of the Migration Act and I am referred to the decisions in Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61 at [66] and also SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 62 at [7] to [8], and also because the particulars given do not identify any breach of procedural fairness.
The Tribunal is not obliged by procedural fairness to disclose its thought processes or preliminary conclusions and in fact disclosing thought processes or preliminary conclusions is not a requirement of common law natural justice, even if common law natural justice applied in these circumstances.
The applicant had relied on the provisions of s.430 of the Migration Act. He has submitted that the Tribunal must give its reasons for affirming the Delegate's decision. True it is that the Tribunal must give reasons. In my view the Tribunal has done so. The findings and reasons which are set out in the Court Book clearly indicate why the Tribunal was not satisfied that the applicant met the criteria for a visa and in particular did not meet the relevant criterion under sub-s.36(2) of the Migration Act for the granting of a protection visa.
It is noteworthy that the applicant elected not to attend the Tribunal hearing even though he had indicated that he would attend. He was offered the opportunity to give oral evidence to support his claim but he did not take that opportunity. It is well established in decisions such as SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 and SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 that an applicant can hardly complain if he or she does not accept the opportunity given by the Tribunal to explain the situation by giving oral evidence.
The other reason why the Tribunal did not accept the applicant's claims was that the Tribunal did not believe that the applicant's written evidence and his earlier evidence to the first Tribunal were credible. The Tribunal found that evidence to be implausible and inconsistent. The question of credibility is a matter for the Tribunal; it is a finding of fact.
I am referred by counsel for the first respondent to Re:Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]. I am also referred to Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547 inter alia which is authority for the proposition that so long as the Tribunal's findings were open to it, on the evidence before the Tribunal, no error is demonstrated.
The applicant's submissions do not explain why the Tribunal's reasons do not explain why the application has failed or that the Tribunal rejected a significant factual claim. In my view, the Tribunal has done so. I am satisfied that the Tribunal has complied with s.430 of the Migration Act. It has set out its reasons fairly and clearly and in detail. The Tribunal has complied with s.424 of the Migration Act as witness the extensive letter of 30th May 2006.
The Tribunal took into account the applicant's reply to the s.424A letter of 22nd Jun 2006. That letter is quoted in full in the Tribunal's decision. The Tribunal complied with s.425 of the Migration Act. It wrote to the applicant and invited him to attend the hearing and give evidence and call evidence from other people if necessary. The applicant said that he would attend and then he did not.
The Tribunal was ready to hear the applicant's evidence as witness the provision of an interpreter, but there was no evidence to hear.
The Tribunal has complied with the provisions of s.426A of the Migration Act. The Tribunal has warned the applicant in his letter of 30th May 2006 that if he did not provide answers by 22nd June the Tribunal would make it decisions without further reference to him.
The applicant did provide a letter in reply on 22nd June and the Tribunal considered it. The Tribunal was ready to conduct a hearing on
28th June and the applicant did not attend. The Tribunal delayed making its decision until 3rd July 2006 and handed that decision down on 25th July. There is no breach of s.426A of the Migration Act. As I have said earlier, there is no breach of s.430. There is no jurisdictional error.
I am mindful of the fact that the applicant is not legally represented in these proceedings. He was given the opportunity to obtain legal advice through the Federal Court Legal Advice Scheme relating to Refugee Review Tribunal Review Cases. He was referred to a barrister, a Mr Tyson of Selborne Chambers.
An appointment was arranged with an interpreter in the Bengali language for 11th October 2006. The applicant chose not to attend.
He told the Court that he thought that the barrister would send him a written advice. The barrister did in fact send a written advice on
26th October 2006 but without the benefit, of course, of the applicant's input.
I am unable to discern any jurisdictional error whether raised by the applicant or not. As no jurisdictional error has been made out I am satisfied that the decision is a privative clause decision as defined by sub-s.474(2) of the Migration Act. As it is a privative clause decision it is final and conclusive and not subject to certiorari, mandamus, prohibition, injunction or declaration in any court. The application will be dismissed.
There is an application for costs on behalf of the first respondent Minister. As the applicant has been wholly unsuccessful in his claim, there is, in my view, no reason to depart from the practice that costs follow the event. I propose to make an order for costs in favour of the first respondent Minister. The amount sought is $5,000.00, and that is inclusive of counsel's fees. It appears to me to be an appropriate amount and I propose to make an order for costs in the amount of $5,000.00.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 17 November 2006
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