SZLGW v Minister for Immigration
[2008] FMCA 383
•17 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLGW & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 383 |
| MIGRATION – RRT decision – Bangladeshi applicant claiming persecution for participation in feminist movement – consented to Tribunal making decision without a hearing – supporting documents found to be fabricated – claims disbelieved by Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.424A |
| SZASX v Minister for Immigration [2004] FMCA 680 SZASX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 68 SZBYRv Minister for Immigration & Citizenship (2007) 235 ALR 609 SZGBU v Minister for Immigration [2006] FMCA 1192 SZGBU v Minister for Immigration & Multicultural Affairs [2006] FCA 1488 |
| First Applicant: | SZLGW |
| Second Applicant: | SZMAV |
| Third Applicant: | SZMAW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2781 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 17 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2008 |
REPRESENTATION
| Counsel for the Applicants: | In Person |
| Counsel for the First Respondent: | Ms S Sirtes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The applicant’s husband and son are included as applicants.
The application is dismissed.
The first and second applicants must pay the first respondent’s costs in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2781 of 2007
| SZLGW |
First Applicant
| SZMAV |
Second Applicant
| SZMAW |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicants are a wife, husband and son who came to Australia from Bangladesh in January 2007. On 2 February 2007, a migration agent lodged applications for protection visas on their behalf. Their claims to fear persecution were based upon the wife's involvement in a “female rights organisation” in her locality. In particular, she claimed that three incidents had occurred during 2006, which caused her to fear for her life and for her family, and to seek refuge in Australia.
She claimed that she had organised “a congregation to discuss about the development of female rights in the society” in March 2006. In the course of this event, young men shouted verbal abuse and then physically assaulted the people present, causing her to suffer injuries requiring her to spend three days in hospital. The second incident occurred in June 2006, when another feminist meeting was attacked, and acid was thrown. In August 2006, the applicant was abducted after attending a protest meeting against the previous attacks. She claimed she had been detained and raped “routinely for three consecutive days” before being released. Threats were made to kidnap her son, and neither she, nor her husband, dared to report the matter to the police.
She presented to the Department copies of newspaper reports of these three incidents, with translations identifying the name of the newspaper and the date of publication, as well as other documents.
A delegate refused the applications on 7 March 2007, indicating doubts about the authenticity of the documents and the credibility of the wife’s claims.
On appeal, the Tribunal initiated inquiries by the Department of Foreign Affairs and Trade into the newspaper reports. It received a report which suggested that they were, in fact, not published as claimed, but were fabrications. The DFAT information from Bangladesh also indicated that journalists in the area where the applicant came from could not recall the incidents claimed, and were unaware of a group named “Female Rights Organisation”.
The DFAT report was put to the applicants by letter from the Tribunal, dated 20 July 2007, with an invitation to comment. It was suggested that the information might cause the Tribunal: “to conclude that you have deliberately provided false and misleading documents to the Department in respect of your claim to be a refugee and that you may not be a credible witness”.
The Tribunal had previously invited the applicants to a hearing on 30 May 2007, but had adjourned this at the request of the applicant wife for health reasons. However, it said at the end of its s.424A letter:
As you are aware the Tribunal postponed your scheduled hearing on the 30 May 2007 at your request on the basis of advice from your adviser that you were undergoing surgery on 24 May 2007. The Tribunal has sought from you on several occasions an update on your medical condition and your availability to attend a hearing.
As the Tribunal has not received any responses to these requests and given that some two months have now passed since your operation the Tribunal intends to move to a hearing and has scheduled a hearing for you as follows.
The Tribunal then appointed a hearing for 8 August 2007.
In response, it received a letter from the applicant's agent, stating:
We have been instructed by our client that she does not wish to appear at the hearing on 8 August 2007 at 1pm. Further, the applicant also instructed us to notify the RRT to make a decision on her review application on the basis of the available information that the RRT already have with respect to her application.
The Tribunal handed down its decision on 21 August 2007, affirming the delegate's decision. It referred to the history of the matter including the s.424A invitation. It said:
In the absence of any explanation from the applicant, the Tribunal concludes that the applicant has fabricated her claims for a protection visa.
The Tribunal did not accept that the applicant wife had experienced harm in the past and, in particular, in the three incidents claimed. It did not place weight on the other documents presented by her. It said that, in her absence from a hearing, it could not be satisfied that her claimed familial circumstances were genuine and gave rise to a well founded fear of persecution on return to Bangladesh. It was not satisfied that she had a well founded fear of persecution for a Convention reason.
The Tribunal noted that no specific Convention claims were made by or on behalf of her husband and son, and said: “The fate of their applications therefore depends on the outcome of the first named applicant's application”. The Tribunal therefore refused their applications on the basis that they could not satisfy the criteria in s.36(2)(b) as secondary applicants.
The applicants have brought the present application to set aside the Tribunal's decision and remit the matter to the Tribunal. I can only make these orders if I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant wife’s refugee claims should be believed, nor whether she or her family are entitled to permission to stay in Australia.
The original application has been amended so as to join the husband and son as applicants, but otherwise maintains the grounds previously set out.
The first ground challenges the decision made by the Minister's delegate. However, that decision was superseded by the proceedings and decision of the Tribunal, and there is no purpose in examining how the delegate decided the applicants’ entitlement to protection visas.
The first ground also contains a criticism of the Tribunal for its “rush for rescheduling the hearing arrangement when the applicant was struggling with her health”. However, the Tribunal's decision to appoint a further hearing in August is not shown to have been unreasonable on the material before me. Moreover, it was also answered by an unequivocal consent by the applicants, through their agent, to the Tribunal proceeding to make a decision without their attendance at a hearing. I am unable to discern from the evidence concerning these circumstances any failure by the Tribunal to follow a procedure required by the Migration Act, whether reflective of rights of procedural fairness or otherwise.
The second ground in the amended application alleges that the making of the Tribunal’s decision was an improper exercise of its powers. However, no particulars of this are provided in the application. Nor can they be found in the applicants’ written submission, which makes further general allegations of jurisdictional error without particularisation.
I am unable, for myself, to see any ground of jurisdictional error affecting how the Tribunal decided the case. In my opinion, the Tribunal addressed the refugee claims which were before it, and the DFAT evidence clearly allowed it to arrive at a decision adverse to the applicant wife’s credibility. The outcome of the review proceeding before the Tribunal was an inevitable consequence of its conclusion as to her credibility, both in relation to the applicant wife and the other applicants.
The third ground of the amended application alleges that there was a failure by the Tribunal to follow the requirements of s.424A(1), by reason of the Tribunal's failure to raise with the applicants for their comment its citation of legal authority which eventually found its way into the Tribunal's decision. However, its discussion of legal authorities does not reveal any failure under s.424A. This was explained by Barnes FM in SZASX v Minister for Immigration [2004] FMCA 680 at [16] to [35], which was upheld in SZASX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 68. Her opinions were followed by me in SZGBU v Minister for Immigration [2006] FMCA 1192 at [20], which was upheld in SZGBU v Minister for Immigration & Multicultural Affairs [2006] FCA 1488. Recent authorities on the ambit of s.424A(1) would clearly treat the Tribunal's discussion of legal authority as part of its thought processes, not giving rise to obligations under s.424A (see SZBYRv Minister for Immigration & Citizenship (2007) 235 ALR 609).
A further ground in the amended application, which is numbered 6, contends that the Tribunal failed to take into account “all the relevant matters” in making its decision. However, I am unable to detect any legally relevant matter which was not considered by the Tribunal.
The applicants’ written submission, and her oral submissions today, somewhat unclearly invited the Court to consider the applicant wife's state of health. If this was intended to challenge how the Tribunal conducted its proceedings, I do not consider that any jurisdictional error has been established arising from the state of the applicant's health. I have discussed this issue above, in relation to the Tribunal’s appointment of a hearing.
Today, the applicant appeared to seek further time to stay in Australia because of her health. However, I consider that she has had sufficient time to prepare her arguments for today. She has attended Court and participated in the hearing without any apparent difficulty. I do not consider that an adjournment of the case is justified or appropriate.
Other arguments in the applicants’ written submission challenge the merits of the Tribunal's reasoning, but do not raise any arguable jurisdictional error.
I have considered all the documents and arguments presented to the Court, but am not satisfied that the Tribunal's decision was affected by any jurisdictional error. I must, therefore, dismiss the application.
I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 31 March 2008
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