SZIXG v Minister for Immigration
[2007] FMCA 1331
•30 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIXG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1331 |
| MIGRATION – Review of Refugee Review Tribunal decision – applicant afforded the opportunity to comment on “information” within the meaning of s.424A – Tribunal not obliged to put to the applicant for comment its subjective appraisals of the applicant’s oral evidence – information before a previously constituted Tribunal is information before the Tribunal that forms part of the applicant’s application for review – determinative issues put to the applicant for comment either at the hearing or in writing by way of the Tribunal’s letter – applicant was afforded procedural fairness – complaint does not rise above impermissible merits review – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.424A, 422B |
| SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 SZHIB v Minister for Immigration and Multicultural Affairs [2006] FCA 611 Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 SZBEL v Minister for Immigration and Multicultural Affairs (2006) 213 ALR 592 Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 406 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
Applicant: | SZIXG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1594 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 30 July 2007 |
| Date of Last Submission: | 30 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 30 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr J Mitchell |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship.”
That the application to this Court made on 5 June 2006 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1594 of 2006
| SZIXG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore: Revised from Transcript)
I have before me an application filed in this Court on 5 June 2006 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 19 April 2006 and handed down on 9 May 2006, which affirmed the decision of a delegate of the respondent Minister made on 5 February 2004 to refuse to grant a protection visa to the applicant.
Background
The applicant is a citizen of Bangladesh who arrived in Australia on 30 July 2003. On 10 September 2003, the applicant lodged an application for a protection visa with the first respondent’s Department. This application was refused on 5 February 2004 by a delegate of the respondent Minister, and on 2 March 2004 the applicant applied for review of that decision.
The applicant’s claims to protection can be found variously in his application for a protection visa (reproduced in the Court Book (“CB”) at CB 3 to CB 85 with annexures). I note the application for review to the Tribunal is reproduced at CB 98 to CB 101.
The Tribunal affirmed the decision of the delegate of the Minister in its decision signed on 17 May 2004 (“the earlier constituted Tribunal”) (reproduced at CB 125 to CB 143).
By letter, which is reproduced at CB 145 and CB 146, the applicant was advised that his case had been remitted to the Tribunal for reconsideration, and a differently constituted Tribunal, that is, the Tribunal which created the present decision which is before the Court, reheard the matter on 9 March 2006. (The Tribunal’s decision record is reproduced at CB 246 to CB 258.)
I should note that the applicant’s claims to protection are essentially based on his claimed membership of the Awami League, his claim to be an activist of the Awami League, and his claim to be a Hindu in Bangladesh. The Refugee Convention grounds therefore were described as religion and political opinion. A claim of being the holder of secular opinion was also put forward, and subsequently, before the Tribunal, the applicant raised the claim of a fear of harm because of his homosexuality.
It appears from the Tribunal’s account of the hearing that the applicant appeared before the Tribunal and gave evidence. I also note that by letter dated 10 March 2006, the Tribunal invited the applicant to comment on particulars of information relevant to the Tribunal’s decision (reproduced with attachments at CB 152 to CB 239). I note that among those attachments to the letter was the applicant’s application for a protection visa, and the letter informed the applicant as to the relevance of this information to the Tribunal’s consideration of his application, and invited the applicant’s comments.
I note that the applicant responded to the Tribunal’s invitation by letter dated 4 April 2006 (reproduced at CB 242 to CB 243), but it does not appear that the applicant directly addressed the substantive issues as put to him by the Tribunal. Nonetheless, for the purposes of the relevant legislative provisions, in particular s.424A of the Migration Act 1958 (“the Act”), the applicant was given the opportunity to comment on information on which the Tribunal subsequently relied. That information being information which had not been provided by the applicant for the purposes of the review, as understood in light of the relevant illumination provided by the Full Court of the Federal Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 (“SZEEU”) (at [9], [154] and [184], per Moore J, Weinberg J, and Allsop J, respectively), and the majority of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 (“Al Shamry”) (at [17], per Ryan and Conti JJ).
The Tribunal’s findings, importantly, are as follows:
a)The applicant is a national of Bangladesh and a Hindu, but that the Tribunal could not “rely on the Applicant’s evidence” of societal discrimination against Hindus in Bangladesh as evidence of “persecution towards [the applicant] for reasons of his religion” (CB 254.6).
b)It did “not accept that the Applicant was attacked for reasons of ‘religion’ or ‘political opinion’ in 1995, or for that matter in 1996 … let alone by the parties that he claims” (CB 254.7). The Tribunal reached this conclusion on the basis that the applicant “did not make asylum-seeking a factor of his choice of domicile outside of Bangladesh” and was able to re-enter Bangladesh in 2002 “not only without relevant incident but without evident fear of ongoing harm,” even though the opposition parties to the Awami League, the BNP and its partner JEI, were back in power at that time (CB 254.7).
c)It could not accept, nor “give weight” to, the documents provided by the applicant in support of his claim, and in light of that, did not accept the applicant’s claims that false charges had been brought against him (CB 254.8). It further found that the applicant’s return to Bangladesh in 2002 “for the purpose of ‘checking’ leaves the Tribunal confident that he was not concerned about any charges coming back to haunt him, even with the BNP back in power” (CB 254.9).
d)It did not accept that the applicant was an Awami League activist on the basis that the applicant had “not provided any detailed evidence or account of any ongoing relationship with or interest in the AL” (CB 254.10).
e)The applicant’s claims to homosexuality were “vague, contradictory and unimpressive” (CB 255.2). In particular, the Tribunal stated that it was unimpressed with the delay in the applicant seeking asylum in a country where asylum was available to homosexuals (CB 255.3). Further, the Tribunal was unable to accept that the applicant visited a certain establishment, the Pleasure Chest, “for the homosexual purposes claimed, or that his visits resulted [in] homosexual experiences or encounters” (CB 255.4).
f)The applicant’s explanation as to the absence of references to his homosexuality in his primary protection visa application was “vague and unimpressive, passing the blame on to someone else (his then adviser) even though he himself had signed an attestation as to the correctness and completeness” of that application (CB 255.9).
g)The applicant’s suggestion at the hearing that his reference to “life style” in his application for protection visa was a reference to his homosexuality amounted to “a revision inspired by afterthought” (CB 256.2).
h)The applicant was “not homosexual and that he ha[d] made his homosexuality claims, like the ones about false charges and mob attacks, for purely opportunistic reasons, the only difference being that the homosexuality claims were invented long after the Minister’s delegate had dismissed ‘political opinion’ and ‘religion’ claims on which his original application had been based” (CB 256.5).
i)The applicant was “not a reliable witness in the present matter” (CB 256.7).
In light of all these findings, the Tribunal concluded that it could not be satisfied that the applicant was a person to whom Australia owed protection obligations pursuant to the Refugee Convention.
On 5 June 2006, the applicant filed an application in this Court which was subsequently amended by way of amended application filed on 12 September 2006. In the amended application, the applicant put forward two grounds, with particulars, in relation to ground one. The first ground asserts failure on the part of the Tribunal to meet its obligations as set out in s.424A of the Act. Ground two asserts (I note here the reference to plural “applicants,” but I am satisfied that there is only one applicant in this matter), that:
“2. The applicants claim that the Tribunal denied him natural justice when the Tribunal made findings and reasons.”
And under the heading “particulars,” the applicant states:
“The applicant rely on particulars of the ground 1, and the Tribunal willingly did not give the applicant opportunity to clear his position.” (Errors in original)
The Hearing Before the Court
At the hearing before the Court today, the applicant appeared unrepresented. He was assisted by an interpreter in the Bengali language. Mr J Mitchell of Counsel appeared for the second respondent. The applicant stated that he had nothing new to add, confirmed that he relied on his amended application, and when pressed by the Court, he confirmed that he had nothing new to add even in light of the Minister’s written submissions filed in this matter.
As I explained to the applicant, the role of the Tribunal and the role of the Court differ in a significant particular. The role of the Tribunal is to address the issues as to whether the applicant, in effect, met the definition of refugee as set out in the Refugee Convention, and the role of the Court, of course, is to focus on whether the Tribunal had conducted the exercise of its function according to law.
Ground One
In ground one of his amended application, the applicant asserts that the Tribunal erred in failing to act in accordance with the requirements of s.424A of the Act. In particular, the applicant complains that he was not provided with an opportunity to give an explanation of certain findings made by the Tribunal. Relevantly, the issue for this Court is whether, in part of its reasons for affirming the decision under review, the Tribunal relied on information which was not subject to the exceptions set out in s.424(3) of the Act, and which was therefore information that should have been put to the applicant in writing pursuant to s.424A(1) of the Act.
This Court is clearly mindful of what the High Court said in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) and in particular what the Court said (at [22]) regarding the “limited scope of s.424A” and the “proper meaning of the word ‘reason’ in s.424A(1)(a).” As the Court stated (at [21]), the “limited operation” of s.424A of the Act is that it obliges the Tribunal to put to the applicants “information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review.” As I said earlier, with reference to Al Shamry and SZEEU, and also with reference to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 (“SAAP”), information not given to the Tribunal by the applicant for the purposes of the application for review must, if such information is to form a reason, or part of a reason, for the Tribunal rejecting the application, be put to the applicant pursuant to s.424A(1) and (2) of the Act for the applicant’s comment in writing.
I further note what the High Court said in SZBYR, in particular, what the High Court said at [18]:
“[I]f the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting ‘information’ within the meaning of par (a) of s.424A(1).”
I note that the High Court in that paragraph endorsed as a correct observation what Finn and Stone JJ said in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (“VAF”) as to the meaning of the word “information,” and that, as their Honours said (at [24]) “information”:
“[D]oes not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.’
With these authorities in mind, I agree with the submissions made by Mr Mitchell that the Tribunal is not obliged to put to the applicant for comment its subjective appraisals of the applicant’s oral evidence. To the extent, therefore, that the applicant asserts by way of particulars in his amended application that the Tribunal did not give him an opportunity to give an explanation for its findings, it is plain that the Tribunal is not obliged to give the applicant an opportunity to comment in writing on its analysis.
I note further, and agree with, the submissions made by Mr Mitchell in sub-paras.(a) and (b) of para.5.2 of his written submissions, that in relation to the finding that the applicant failed to make claims of being a homosexual before the delegate, that this was information that was the subject of a letter inviting comment in writing. I have already made reference to what is reproduced at CB 152 to CB 154, and that as such the Tribunal met its obligation in relation to this information pursuant to s.424A(1) and (2) of the Act. I also note, and agree with, Mr Mitchell’s submission that information before the previously constituted Tribunal, that is, information taken by the Tribunal from what occurred at the hearing before the previously constituted Tribunal, is of course information before the Tribunal that formed part of the applicant’s application for review. I note the reference in those submissions to SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 (at [39], per Emmett, Siopis and Rares JJ).
In all, on the material that is before the Court, the information relied on by the Tribunal was either information provided by the applicant himself for the purposes of the review, information that was the subject of a letter pursuant to s.424A(1) of the Act, or information in the nature of independent country information which falls within the exception contained in s.424A(3)(a) of the Act from the requirements of s.424A(1) and (2) of the Act. But I note, as submitted by Mr Mitchell, that in any event, with reference to SZHIB v Minister for Immigration and Multicultural Affairs [2006] FCA 611 (at [16]), that to the extent that any findings of the Tribunal were based on the applicant’s answers to questions asked at the hearing, those answers were given by the applicant for the purposes of the application to the Tribunal, notwithstanding that the questions may have been informed by material that did not form part of that application.
In any event, for the reasons that I have already stated, I cannot see that the Tribunal failed in its obligation pursuant to s.424A of the Act. The applicant’s first ground in the amended application, therefore, does not succeed.
Ground Two
The applicant’s second ground asserts that the Tribunal denied him natural justice when the Tribunal made its findings and reasons. The applicant’s particulars link this complaint to the same particulars as put forward in support of ground one.
When read in that context, it could be that this is a complaint that the applicant was denied the opportunity to comment on those matters set out under the heading, “particulars,” in ground one, and that this was a failure by the Tribunal to give the applicant the opportunity to comment, not within the statutory context, but within the principles of procedural fairness at general law.
I note in this regard that this is a case to which s.422B of the Act applies so as to make the matters set out in Division 4 of Part 7 of the Act the relevant requirements of the natural justice hearing rule, absent bias. (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62.) The applicant’s complaint, if indeed it is a complaint, that the particulars set out in ground one should be viewed in light of the Tribunal’s failure at general law to provide an opportunity for comment, fails. But, in any event, even with those principles at general law in mind, I cannot see, on the material before the Court now, that any such failure occurred.
The Tribunal’s unchallenged account of what occurred at the hearing reveals that the critical and determinative issues were discussed with the applicant at the hearing, and that further, important and relevant matters important to the Tribunal’s ultimate findings were put to the applicant for his comment in writing. This was an opportunity to which the applicant responded, albeit by not directly addressing the issues of concern raised by the Tribunal, so the complaint, if indeed it is a complaint in the terms that I have set out, would clearly fail. Mr Mitchell also submitted that this could be viewed as a complaint within the statutory context of a failure of the Tribunal’s obligations pursuant to s.425 of the Act to have raised with the applicant the determinative issues at the hearing with him.
There is, as Mr Mitchell correctly submits, no transcript of the Tribunal hearing before the Court, and therefore, with reference to the Full Court of the Full Federal Court authority in NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241, it is not open to the Court to draw inferences as to what may have occurred at the Tribunal hearing. I note that the material that is before the Court, that is, the Tribunal’s unchallenged account of what occurred at the hearing, again provides no evidence that the determinative issues in this matter were not put to the applicant for his comment during the hearing. This is of course with reference to the recent High Court authority of SZBEL v Minister for Immigration and Multicultural Affairs (2006) 213 ALR 592. In fact, as Mr Mitchell, again in my view, correctly submits, the material before the Court reveals that the determinative issues were put to the applicant for comment either at the hearing or in writing by way of the Tribunal’s letter. In all, therefore, even if ground two were to be taken as also being a complaint of failure by the Tribunal to fulfil its obligations pursuant to s.425 of the Act, this also does not succeed.
When again pressed by the Court at the conclusion of the hearing today, the applicant said that he could provide evidence to show that what he had said to the Tribunal was true. The applicant explained that he did not agree with the Tribunal’s finding that Hindu people were living peacefully in Bangladesh, and that he could provide evidence to the Court to show that the Tribunal’s finding in this regard was not true.
As I explained to the applicant, however, what the applicant was seeking in this regard was to challenge factual findings made by the Tribunal. As His Honour, McHugh J, explained in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 406 at [67], findings of this nature, findings of fact, including findings as to credibility, are matters for the Tribunal as the decision maker “par excellence.” In any event, and further, the applicant’s complaint in this regard really does not rise above a request for impermissible merits review to be conducted by this Court, and as I explained to the applicant, this Court is not permitted such a review. (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.)
In all, therefore, having carefully considered all the material before the Court, I cannot discern jurisdictional error in the Tribunal’s decision, either on the basis of what has been put forward by the applicant or otherwise. Therefore, the application to the Court is dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: A Douglas-Baker
Date: 13 August 2007
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