SZKDS v Minister for Immigration
[2007] FMCA 1263
•24 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKDS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1263 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of Bangladesh claiming a well-founded fear of persecution as a Muslim who married a Hindu woman – where Tribunal found that the marriage was “a concoction” – where delegate had not found that there was any question about the marriage – procedural fairness – whether Tribunal failed to notify the applicant adequately of the issues to which its reasoning processes were directed – whether failure of Tribunal to ask the applicant to address issues that it considered might be important amounted to a denial of procedural fairness – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – jurisdictional error. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.424A, 425 |
| SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 followed. |
| Applicant: | SZKDS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 374 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 July 2007 |
| Date of last submission: | 20 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Mitchell |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
That there be an order in the nature of certiorari quashing the decision of the Second Respondent signed on 21 December 2006 and handed down on 18 January 2007.
That there be an order in the nature of mandamus requiring the Second Respondent to determine the application of the Applicant according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 374 of 2007
| SZKDS |
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 signed its decision on 21st December 2006 and handed that decision down on 18th January 2007. The Tribunal affirmed the decision of a Delegate of the Minister not to grant the Applicant a Protection (Class XA) visa. The Applicant seeks judicial review of that decision. He filed an application and a supporting affidavit on
6th February 2007.He filed an amended application on 25th June 2007. In that amended application the Applicant seeks the following orders:
i)A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated
21st December 2006.ii)A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine, according to law the application for review.
Background
The background to this matter is that the Applicant is a citizen of Bangladesh. He arrived in Australia on 28th March 2006 and applied to what was then the Department of Immigration & Multicultural Affairs for a Protection (Class XA) visa on 24th April in that year. On 14th July 2006 a Delegate of the Minister refused the application for a visa. The Applicant then, on 8th August 2006, applied to the Refugee Review Tribunal for a review of the Delegate's decision.
The Tribunal wrote to the Applicant and invited him to attend a hearing on 22nd September 2006. The Applicant attended that hearing and gave evidence with the assistance of an interpreter in the Bengali language. The Applicant claimed a fear of persecution for a Convention reason because he had engaged in a mixed marriage. The Applicant is a Muslim and married a Hindu girl. This, the Applicant explained, caused a lot of difficulty, not only with the family of the Applicant but also with members of the Applicant's wife's family.
The Applicant indeed claimed that because of threats by Islamic fundamentalists who sanctioned a ‘Fatuya’ against him. He found it necessary to not only leave his home but actually to leave Bangladesh, which he did on 10th June 2004. He travelled to the United Arab Emirates (UAE) where he obtained employment with a Muslim person. This too caused the Applicant some difficulties because the Applicant claimed that his boss, who was also a Muslim, harassed him about his marriage to a Hindu lady.
The Applicant's wife did not travel to the United Arab Emirates with him but remained in Bangladesh. The Applicant claimed that Bangladeshi people in the United Arab Emirates also came to find out that he had married a Hindu girl and as a result they also started to harass him for doing these things. He claimed that he was threatened and in fact threatened with death. The Applicant then claimed that when the pressure was beyond his control he decided to leave the United Arab Emirates and travel to Australia.
The Applicant produced certain documents in support of his claim, including a statement by the priest who he said had married him and his wife and a statement from his wife written in Bengali, which was translated into English. The Applicant gave evidence at the hearing. He presented his Bangladeshi passport to the Tribunal Member and the Tribunal Member noted that he was able to verify that the Applicant had indeed left Bangladesh for the United Arab Emirates in September 1998 and returned to Bangladesh in January 2004. He left Bangladesh in June 2004 for the United Arab Emirates and left the United Arab Emirates in March 2006 and arrived in Australia on 28th March.
The Tribunal Member questioned the Applicant about the wedding ceremony and at page 138 of the Court Book the Tribunal Member noted:
I commented that this procedure did not follow what I understood to be Bangladeshi requirements for a mixed marriage, which involved registering the marriage before a magistrate. The applicant seemed unaware of this.
The Applicant indicated to the Tribunal that his wife's uncle had attended the ceremony and he provided the name and contact telephone number of the wife's uncle. The Tribunal wrote to the Applicant on 28th November 2006. This was a letter intended to comply with the provisions of s.424A of the Migration Act and it was headed, "Invitation to Comment on Information". The letter began:
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.[1]
[1] See Court Book at page 126
The information related to the letter submitted by the Applicant to the Tribunal on 20th October 2006 from the Brahmin priest who performed the marriage and the information referred to questions asked by the Tribunal of the Australian High Commission in Dhaka about that letter and the priest. The Information included a reply from the Department of Foreign Affairs and Trade on Friday 24th November relating to contact with the priest. The letter went on to tell the Applicant at page 127 of the Court Book that:
This information is relevant because in several respects it contradicts claims made by you and may be the reason or part of the reason for the Tribunal to conclude that there is not a real chance of your suffering harm amounting to persecution should you return to Bangladesh.
You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 21 December 2006.[2]
[2] See Court Book at page 127
The Applicant replied to the Tribunal's letter on 19th December 2006 and a copy of his letter to the Tribunal can be found at pages 128 and 129 of the Court Book. That letter related to, first, the reluctance by the priest to perform the marriage but eventually relented and did so and set out what is really speculations about what the priest meant in his letter.
The Tribunal’s Findings and Reasons
The Tribunal signed its decision on 21st December 2006 and handed it down on 18th January. A copy of the Tribunal decision record can be found at pages 133 through to 145 of the Court Book. The Tribunal's findings and reasons appear at pages 143 to 145. The Tribunal accepted that the Applicant was a citizen of Bangladesh. I note that the Applicant had produced his Bangladeshi passport to the Tribunal. However, the Tribunal went on to say:
I do not accept the rest of the applicant's claims relevant to his application for protection. I believe that the story of his marriage to a Hindu and resulting problems is a concoction.[3]
[3] See Court Book at page 143
The Tribunal then went on to set out the reasons why the Tribunal formed the view that the marriage was a concoction. They included this reason:
The applicant's description of the wedding ceremony was unconvincing. The absence of any post-wedding social function with at least his wife's family is not believable.[4]
[4] See Court Book at page 143.
The Tribunal then went on to find that on the basis of Independent Country Information the Tribunal did not accept that there was a real chance of the Applicant suffering harm amounting to persecution even if he were married to a Hindu woman although the Tribunal Member indicated that if the Applicant were so married the Tribunal accepted there may be familial opposition. The Tribunal went on to make this statement:
The applicant's credibility is further undermined by his claims regarding his treatment in Dubai, possibly the most westernised Middle Eastern city, as shown by the report quoted above. Even if his particular boss disapproved of the marriage of a Muslim to a Hindu, in the city as a whole it would be a matter of no consequence. I am not considering a claim to fear persecution in the UAE, as the applicant has no right of entry and residence there. I am addressing this issue only as an indication of the applicant's general lack of credibility.
The Tribunal went on to consider the fact that:
The Australian High Commission in Dhaka has spoken to two people who support the applicant's claims - men claiming to be the wife's uncle and the priest who married the applicant and his wife. However, in view of the above considerations I believe that both men, whoever they are, are knowingly making false statements to the High Commission, wishing to aid the applicant. Since I do not believe he is married, I give no weight to the letters purporting to have been written by his wife. [5]
[5] See Court Book at page 144.
The Tribunal did not accept that the Applicant was married to a Hindu woman. It did not accept that he had suffered persecution for that reason and did not accept that even if the Applicant were married to a Hindu woman that there was a real chance that he would suffer harm amounting to persecution and the Tribunal found the Applicant therefore did not have a well founded fear of persecution in Bangladesh for a Convention reason. Accordingly the Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
In his application the Applicant sets out three grounds. They are as follows:
(1)The Refugee Review Tribunal (RRT) failed to attain, or failed to exercise, jurisdiction, by reason that it failed to comply with the Migration Act, s.424A(1) by not giving to the Applicant particulars of communications held between the Australian High Commission in Dhaka and the Applicant wife's uncle and inviting him to comment on such information.
(2)Further, or in the alternative, the RRT failed to attain, or failed to exercise jurisdiction by reason that it failed to afford the Applicant natural justice by not giving to the Applicant particulars of the communications held between the Australian High Commission in Dhaka and the Applicant's wife's uncle and inviting him to comment on such information.
(3)The RRT failed to attain, or failed to exercise, jurisdiction, by reason that it failed to consider the Applicant's claim that he had suffered persecution in the United Arab Emirates.
The Applicant provided a written outline of submissions in which he claimed that there was a lack of procedural fairness; that he was denied natural justice and that the Tribunal did not ask material questions. The submissions do not take the matter much further than that and appear largely to relate to factual issues. Counsel for the First Respondent Minister submitted that the Tribunal gave the Applicant particulars of the information conveyed by communications between the Australian High Commission in Dhaka and the Applicant's wife's uncle that gave rise to the Tribunal's concerns regarding the credibility of the Applicant's claims.
He submitted that those matters were set out in the Court Book at pages 126 and 127. With respect, that does not appear to be correct. At pages 126 and 127 there appears a copy of the letter written to the Applicant under the provisions of s.424A. It quite clearly refers to communication with the Brahmin Priest and refers to the Applicant and the lady said to be the Applicant's wife. There is no mention of any communication with the uncle at all.
In respect of the third ground counsel for the First Respondent submitted the Tribunal was not obliged to consider whether the Applicant had a well founded fear of persecution in the United Arab Emirates because the Applicant claimed he was a national of Bangladesh. Dealing with the Applicant's grounds it must be made quite clear with ground 3, relating to the Refugee Review Tribunal's failure to consider the Applicant's claim that he had suffered persecution in the United Arab Emirates, is completely misconceived.
The Applicant has always claimed to be a citizen of Bangladesh. As the Tribunal correctly pointed out he had no right of entry or residence in the United Arab Emirates and his claim had to be considered against Bangladesh. Whether or not the Applicant faced persecution in the United Arab Emirates is entirely irrelevant. That ground must fail.
The claim in ground 1 about the failure to comply with sub-s. 424A(1) of the Migration Act however, appears to me to be on stronger ground. The Tribunal made it quite clear that the Tribunal had considered the fact that the Australian High Commission in Dhaka had spoken to two people supporting the Applicant's claims, the uncle and the priest, and came to the conclusion that both men were knowingly making false statements to the High Commission. That is a most far reaching statement. The reality is that communication with the priest was covered in detail in the s.424A letter of 28th November 2006, but there was no mention of the communication with the wife's uncle at all. That matter was not mentioned.
I am of the view that that is clearly a breach of sub-s. 424A(1); that ground must succeed and I am satisfied that jurisdictional error has been made out on that ground alone. However, there is another ground where, in my view, jurisdictional error has been made out and that is a ground that is set out by the High Court of Australia in the recent decision of SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63.
The area where I believe the jurisdictional error has also been made out relates to the Tribunal's finding that the marriage of the Applicant to the Hindu lady was a concoction. This was not an issue that appeared in the Delegate's decision. The Delegate's decision, or the reasons for the Delegate's decision, can be found in the Court Book at pages 65 through to 74. The Delegate's decision did not raise any question of the falsity of the Applicant's claim of a marriage to a Hindu girl. The Delegate dealt with the issue of mixed marriages at pages 70 through to 73 of the Court Book. At page 72 the Delegate said:
The applicant has not indicated that he has experienced any problems with the authorities on the basis of his marriage. Given this fact and on the basis of the above information, I find he does not have a well founded fear of persecution from the authorities for a Convention reason.
The applicant's main claim centres on threats from non-state agents, including his family and Islamic fundamentalists, on account of his marriage.
There is no indication that the applicant is at risk of a degree of harm amounting to persecution from his family. Although they have threatened to disinherit him, there is no indication that they have threatened to inflict harm on the applicant. I am not satisfied that the applicant has a well founded fear of persecution from his family.
The applicant fears Islamic fundamentalists and claims to have been beaten up in April 2004 and to have received death threats. He claims that he and his spouse went to Dhaka and he subsequently returned to the UAE. He does not state where his spouse went after he went to the UAE, although in the letter from his spouse submitted in support of his application it would appear that she returned to her home village. Notwithstanding the claimed threats and beating, the applicant claims to have been subjected to in his local area, I am not satisfied that the applicant's risk of harm extends beyond his local area, and that it is reasonable for him to relocate to another part of Bangladesh to remove any risk of localised harm.[6]
[6] See Court Book at page 72.
Quite clearly the Delegate approached the matter on the basis that the Applicant was married to a Hindu but there was no a risk of harm sufficient to amount to persecution in Bangladesh because of that fact. The Delegate did not at any stage question the validity of the Applicant's marriage. The finding by the Tribunal that the Applicant's marriage to the Hindu lady was a falsity was not previously raised and is not a matter of which the Applicant could reasonably be aware.
The High Court of Australia in SZBEL per Gleeson, Kirby, Hayne, Callinan, Heydon JJ dealt with this procedural fairness issue. At paragraphs[25] and [26] their Honours had this to say:
25. Counsel for the respondent Minister correctly submitted, at the outset of his argument of the appeal to this Court, that "what is required by procedural fairness is a fair hearing, not a fair outcome". As Brennan J said, in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36
"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
26. It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires.
Their Honours went on to say at [35] and [36]:
35. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
36. It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
The High Court found that the Tribunal did not accord the appellant in that case of procedural fairness because it did not give the appellant a sufficient opportunity to give evidence or make submissions about what turned out to be two of the three determinative issues arising in relation to the decision under review. Their Honours made three further general points, two of which, with respect, I consider to be relevant in this case. At [47]:
First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways.
Again their Honours said at [48]:
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
With respect, both of those principles are directly relevant to many of the applications for review before this Court. In this case I am satisfied that the Tribunal did not accord the Applicant procedural fairness because the Tribunal did not give the Applicant a sufficient opportunity to give evidence or make submissions about what turned out to be one of the determinative issues in relation to the decision under review, namely the question of whether he was married or not.
For these reasons I am satisfied that the application must succeed and I make the following orders.
I note that the Applicant is not legally represented and I make no order for costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 2 August 2007
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