SZLWP v Minister for Immigration
[2009] FMCA 792
•27 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLWP v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 792 |
| MIGRATION – Visa – Protection (Class XA) visa – application for review of decision of the Refugee Review Tribunal – citizen of Bangladesh claiming fear of persecution on the basis of political opinion – credibility – bad faith – merits review – model litigant – whether the Tribunal breached Migration Act 1958 (Cth) s.424 or s.424A – whether the Tribunal failed to make a finding on a substantial clearly articulated argument relying upon established facts – Tribunal’s letter of acknowledgement not a request for additional information under Migration Act 1958 s.424(2) – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.91R(3), 423, 424, 424A, 424B, 424C, 425, 425A, 426, 427, 429, 474, 476 |
| W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 followed W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 followed SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 followed NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 followed Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 followed SZNAV v Minister for Immigration & Anor [2009] FMCA 693 not followed. SZNPH v Minister for Immigration & Anor [2009] FMCA 788 MZXRE v Minister for Immigration and Citizenship [2009] FCAFC 82 followed. |
| Applicant: | SZLWP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3318 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 July 2009 |
| Date of Last Submission: | 7 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2009 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3318 of 2008
| SZLWP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant is a citizen of Bangladesh who has applied to the Court for review of a decision of the Refugee Review Tribunal dated 18 November 2008. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship (the first respondent) not to grant the applicant a Protection (Class XA) visa.
In his Amended Application filed on 16th February 2009 the applicant seeks the issue of writs of certiorari, mandamus and prohibition. He relies on three grounds of review:
a)Ground 1 – the Refugee Review Tribunal made the decision in bad faith.
b)Ground 2 – The Refugee Review Tribunal acted in excess of its jurisdiction.
c)Ground 3 – The Refugee Review Tribunal made a wrong assumption about the applicant’s credibility.
Background
The applicant arrived in Australia on 1st April 2007. He applied for a Protection (Class XA) visa on 1st May 2007. In a statement submitted with his application the applicant claimed to have been involved in politics in Bangladesh as a member of the Awami League. He claimed that after he became a member of the executive committee of the Awami League in the District of Gazipur in 2002 he was attacked on 25th March 2003 by BNP and Jamat activists, who beat him “mercilessly”. He spent two days at a local clinic recovering from his injuries. He also claimed that “false cases” were filed against him by his political opponents.[1]
[1] See Court Book at pages 28-30
A delegate of the Minister refused to grant the applicant a Protection (Class XA) visa on 30th July 2007. The delegate found the applicant’s claims not to be credible and found that his fear of persecution was not well founded.[2]
[2] Court Book 82
Application to the Refugee Review Tribunal
The applicant applied to the Refugee Review Tribunal on 24th August 2007 for review of the decision to refuse him a protection visa. He nominated a migration agent, Md. Sirajul Haque, as his adviser. With his application he submitted a short statement claiming that the delegate did not consider the current situation in Bangladesh and misconstrued his claim.[3] He also supplied some photographs of himself taking part in a demonstration.[4]
[3] Court Book 89
[4] Court Book 90
The Tribunal wrote to the applicant on 27th August 2007, acknowledging receipt of his application. The letter told the applicant, under the heading “What does the Tribunal expect me to do?” that he should (inter alia):
· Immediately send us any documents, information or other evidence you want the Tribunal to consider. Any documents not in English should be translated by a qualified translator.[5]
[5] Court Book 93
It does not appear that the applicant forwarded any documents or information “immediately” to the Tribunal.
The Tribunal again wrote to the applicant care of his migration agent on 5th October 2007, inviting him to attend a hearing scheduled to take place on 15th November 2007.
On 15th November 2007, the day of the hearing, the applicant’s migration agent provided a written submission to the Tribunal[6] together with two testimonials from members of the Bangladesh Awami League.[7] The migration agent also provided copies of media reports about the situation in Bangladesh.[8]
[6] Court Book 99-106
[7] Court Book 107-108
[8] Court Book 110
The applicant attended the Tribunal hearing on 15th November 2007 and gave evidence. The Tribunal signed its decision on 5th December 2007 and handed the decision down on 13th December 2007, affirming the delegate’s decision not to grant the applicant a Protection (Class XA) visa.[9]
[9] Court Book 189
The applicant sought judicial review of the Tribunal’s decision and on 28th July 2008 Cameron FM made orders by consent issuing writs of certiorari and mandamus, quashing the Tribunal decision and remitting the matter to the Tribunal for determination according to law.[10]
[10] Court Book 200-201
The Proceedings before the Refugee Review Tribunal
The Tribunal wrote to the applicant on 5th August 2008, advising him (relevantly):
The Federal Magistrates Court of Australia has remitted your case to the Tribunal for reconsideration.
You are invited to provide any documents or written arguments you wish the Tribunal to consider which you have not already provided to the Tribunal. Any documents should be provided as soon as possible. Any documents not in English should be translated by a qualified translator. You should send both the documents and the translations.
In the meantime, your case will be allocated to a Member of the Tribunal who has not previously made a decision in relation to your case. The member may do one or more of the following:
· Seek further information
· Seek your comments on particular information
· Invite you to a hearing
before making a decision on your case.[11]
[11] Court Book 203
The applicant attended a hearing of the Tribunal on 16th September 2008. He was accompanied by his migration agent, Mr Haque. The applicant gave evidence with the assistance of an interpreter in the Bengali language.
The Tribunal reconvened the hearing and heard further evidence from the applicant on 14th October 2008.
On 21st October 2008 the Tribunal wrote to the applicant. The letter was headed “Invitation to Comment on or Respond to Information in Writing”. From the text of the letter it was clearly intended to comply with the requirements of s.424A of the Migration Act.
The Tribunal’s letter put various items of information to the applicant for his comments or response, taken from the following sources:
a)His evidence to the previously constituted Tribunal on 5th December 2007;
b)His evidence to the Tribunal on 16th September 2008;
c)His statement accompanying his application for a protection visa;
d)His evidence to the Tribunal on 14th October 2008;
e)His application for a protection visa;
f)Independent country information about Bangladesh; and
g)A reference to the operation of s.91R(3) of the Migration Act.[12]
[12] Court Book 347-354
The Tribunal’s letter sought the applicant’s comments or response by 4th November 2008. The applicant sought an extension of time to provide his comments or response. The Tribunal replied to that request as follows:
The Tribunal has considered the request carefully but has decided not to grant an extension of time for providing the comments or response. However the Member has advised that she will make her decision on 11 November 2008 and she is willing to consider any information supplied to the Tribunal by that date.
If the Tribunal does not receive your comments or response within the period allowed, it may make a decision on the review without taking any further action to obtain your views on the information.[13]
[13] Court book 360
The applicant provided written comments to the Tribunal on 10th November 2008.[14]
[14] Court Book 361-362
On 22nd October 2008 the Tribunal contacted the Department of Foreign Affairs and Trade (DFAT) by email, seeking information about the two letters or testimonials[15] purporting to be from the Bangladesh Awami League were genuine.
[15] Copies of the letters are at pages 107 and 108 of the Court Book.
The email said:
Please ascertain whether the two attached letters attesting to the applicant’s membership of the Bangladesh Awami League are genuine, and provide information about the inquiries made in this regard.[16]
[16] Supplementary Court Book at page 2
The Department of Foreign Affairs and Trade replied to the Tribunal on 17th November 2008, saying:
DFAT contacted by phone signatories of both letters referred to in the request.
2. One of the signatories of the first letter, Mostafizur Rahman Bulbul (Secretary, Awami League – Sreepur Upazilla Unit, Gazipur) confirmed that the letter provided by the applicant was genuine. Advocate Md. Rahmat Ali (Ex minister, Awami League), signatory of the second letter, however, did not personally recognize the applicant and said that he signed many letters every day and did not remember the content at all.
3. DFAT sent formal letters to the signatories of both letters on 22 October 2008, attaching a copy of their letter to the applicant, and requesting the signatories certify in writing that the letter in question was written by them. To date, we have not received a response to our letters. When followed up by phone on 13 November 2008, Mostafizur Rahman Bulbul explained that he was busy preparing for the upcoming national and upazilla elections and had not had time to draft a reply. He did undertake, however, to try to provide a written response. Advocate Rahmat Ali could not be contacted for further follow up.[17]
[17] Supplementary Court Book at 5
The Refugee Review Tribunal Decision
The Tribunal’s decision dated 18 November 2008 affirmed the decision not to grant the applicant a Protection (Class XA) visa.
In its Findings and Reasons the Tribunal accepted that the applicant was a national of Bangladesh based on his passport and his claim to be a Bangladesh national.
The Tribunal did not accept the applicant’s credit, saying:
The Tribunal firstly finds that the applicant is not a witness of credit. The applicant’s evidence was inconsistent and lacking in detail. The applicant’s oral evidence given at his hearings differed from his written statement. The evidence also differed from documents he provided to the Tribunal including the letters from Awami league. The Tribunal put to the applicant its concerns in relation to his inconsistency. The applicant provided some response however the response did not address the concerns or gave another version of his evidence. The applicant did not give the Tribunal an adequate reason for the inconsistencies.[18]
[18] Court Book 380 at [124]
The Tribunal accepted that the letter signed by Mostafizur Rahman bulbul was genuine and that the applicant was a member of the Awami League. However, the Tribunal did not accept that the applicant was subjected to assaults and a stabbing, as he claimed.
The Tribunal did not accept the applicant’s claims of having sustained harm as true and found that there was no real chance that he would be persecuted for the reason of his being an Awami living in Bangladesh. It did not accept that he or his family were persecuted by a political party or terrorists as he had claimed or that he would be so persecuted in the future.[19]
[19] Court Book 383 at [142] and [145]
The Tribunal stated that it had considered the photographs provided by the applicant showing him taking part in a peaceful demonstration outside the Bangladesh High Commission in Canberra and found:
The Tribunal has formed the view that the applicant was photographed taking part in the peaceful demonstration outside the Bangladesh High Commission in Canberra simply in order to strengthen his claim for refugee status. As the Tribunal is not satisfied that the applicant’s conduct was otherwise than for the purpose of strengthening his claim to be a refugee under the Refugees Convention it must disregard his conduct in Australia as required by section 91R(3) of the Act.[20]
[20] Court Book 384 at [148]
The Tribunal found that because it did not accept the applicant’s claims it did not accept that the applicant faced a real chance of persecution if he went back to Bangladesh.
Application for Judicial Review
The applicant filed an application and an affidavit in support on 15th December 2008. He filed an amended application on 16th February 2009 and a written outline of submissions on 22nd June 2009. The applicant attended Court on the hearing date and made oral submissions.
The applicant said that the Tribunal made a bad assumption that was not fair to him and therefore acted in bad faith. He complained that the Tribunal had said that if he went back to Bangladesh there would be no problem and he asked rhetorically how the Tribunal could guarantee that. He took issue with the Tribunal’s finding that the photographs of him at the demonstration in Canberra were taken to strengthen his case to be a refugee.
In his amended application, the applicant sets out three grounds of review.
Ground 1 claims that the Tribunal made the decision in bad faith. The particulars of that claim are that:
A. The Tribunal made the decision in bad faith. The Tribunal made the following comment that:
i) The applicant was photographed taking part in the peaceful demonstration outside the Bangladesh High Commission in Canberra simply in order to strengthen his claim for refugee status.
Ground 2 claims that the Tribunal acted in excess of its jurisdiction. The particulars of that claim are that:
A. The Tribunal acted in excess of its jurisdiction by making the following comment that:
i) The Tribunal is not satisfied that there is a real chance of the applicant being persecuted for any of the Convention reasons in the foreseeable future; and
ii) The Tribunal does not accept that the applicant faces a real chance of persecution if he goes back to Bangladesh.
Ground 3 claims that the Refugee Review Tribunal made a wrong assumption about the applicant’s credibility. The particulars of that claim are:
A. The Tribunal made a wrong assumption about my credibility. The Tribunal did not follow the principle of W148/00A v MIMA (2001) 185 ALR 703 by making the following comment that:
i) The Tribunal firstly finds that the applicant is not a witness of credit.
The applicant submitted that, in respect of Ground 1, the Tribunal acted in bad faith because he had been involved with the Awami League and in Australia and the Tribunal’s finding that he attended the demonstration in Canberra in order to strengthen his claim for refuge status “contempt” his political beliefs, his party and political leaders.
As to Ground 2, the claim that the Tribunal acted in excess of its jurisdiction, the applicant submitted that:
The Tribunal did not consider the reality of the chance of my persecution because of my political opinion and social activities in the reasonably foreseeable future if the regime under which I claimed persecution and political violence rife was reinstated. The failure of the Tribunal to address this issue prevented it from having the rational basis to determine the chance of persecution of me in the future and resulted in the Tribunal not considering an essential substantial matter in my claims W396/01 v MIMA (2000)[21] 68 ALD 69 at [33].
[21] sic
As to the applicant’s Ground 3, the complaint that the Tribunal made the wrong assumption about his credibility, the applicant submitted:
In W148/00A v MIMA (2001) 185 ALR 703 held in majority that “on the cumulative weight of the matters referred to by the Tribunal, it was open to the Tribunal to reach its conclusion as to credibility.
In my case, on the cumulative weight of the evidence it was not open to the Refugee Review Tribunal to its conclusion as to credibility. Lee J in the minority held that the Refugee Review Tribunal erred in relation to the credibility finding. I submit that that Refugee Review Tribunal erred in my case.
The First Respondent’s Submissions
Mr Johnson of counsel, who appeared for the Minister, submitted that there is no jurisdictional error evident either in the procedure or in the reasoning of the Tribunal.
As to the applicant’s first ground, he submitted that nothing amounting to bad faith was put, much less made out. The ground does nothing more than cavil with the merits of the Tribunal’s finding upon a factual issue.
The applicant’s second ground, Mr Johnson submits, cavils with the Tribunal’s lack of satisfaction that the applicant had a well-founded fear of persecution in Bangladesh. Ultimately, this does not rise above a plea to engage in merits review and fails to demonstrate any jurisdictional error.
Mr Johnson also submitted that the applicant’s third ground also goes only to the merits, as it seeks only to argue about the Tribunal’s finding as to the applicant’s credibility. The authority cited by the applicant, W148/00A v Minister for Immigration and Multicultural Affairs, is not authority for any proposition otherwise than that a finding as to credibility is a matter for the Tribunal “par excellence” (Re
Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[22] at [67]).[22] (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1
Mr Johnson also raised the issue of the Tribunal’s actions in contacting the Department of Foreign Affairs and Trade about the two letters from the Bangladesh Awami League. I take this submission to be made in the light of the Minister’s policy of being a “model litigant”.
The submission sets out that the first respondent had considered whether there was a breach of s.424 or s 424A of the Act and states that, essentially in the light of SZLPO v Minister for Immigration and Citizenship[23] , there was no breach of s 424 as:
a)The Tribunal contacting DFAT was not a step under s.424(20 of the act, as DFAT is not a natural person (see SZLPO at [105]). That subsection is engaged only when the Tribunal is seeking “additional information” from a natural person who has previously given information to the Tribunal (SZLPO, especially at [99], [102] and [105]);
b)No natural person contacted by DFAT was someone who had previously given information to the Tribunal (see SZLPO at [99] and [102]). The two letters dated September 2007 had been given to the Tribunal by the applicant and not by their authors.[24]
[23] [2009] FCAFC 51
[24] First Respondent’s Written Submissions at [10]
It was further submitted that there was no breach by the Tribunal of s.424A of the Act in relation to the Tribunal obtained by DFAT from the signatories. The Tribunal recited in its decision record at paragraph 135[25] the inquiries made by DFAT and their result. In the same paragraph the tribunal referred to information in the letters themselves being inconsistent with information given by the applicant, but the Tribunal appears to have accepted the letters as being signed as they purport to have been. Also, the information obtained by DFAT did not undermine the applicant’s claims as it was either supportive (in relation to the first person contacted by DFAT) or, at worst, inconclusive (in the case of the second person contacted by DFAT). There was accordingly no obligation to issue an invitation under s.424A in relation to that information, as it would not be information that “would be the reason, or part of the reason, for affirming the decision that is under review” within the meaning of that section. The information obtained by DFAT from the signatories neither figured in the reasons actually given by the Tribunal for affirming the delegate’s decision, nor contained “a rejection, denial or undermining of the (applicant’s) claims…” (SZBYR v Minister for Immigration and Citizenship[26] at [17]).[27]
[25] Court Book 382
[26] (2007) 235 ALR 609; [2007] HCA 26
[27] First Respondent’s Written Submissions at [11]
Conclusions
The Tribunal based its decision on a comprehensive finding that the applicant was not a witness of credit[28] for which it gave reasons. It did not accept the applicant’s claims as being true.[29] It is well established that a finding on credibility is “essentially a finding as to whether the prosecutor[30] should be believed in his claim – a finding on credibility which is the function of the primary decision-maker par excellence” (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[31] per McHugh J at [67]).
[28] Court Book 380 at [124]
[29] Court Book 383 at [140]
[30] In this case, the applicant
[31] Supra
The applicant’s Ground 1 claims bad faith on the part of the Tribunal in its finding that the applicant’s involvement in the demonstration outside the Bangladesh High Commission was conduct entered into simply in order to strengthen his claim for refugee status. This finding led to the Tribunal’s finding that it had to disregard the applicant’s conduct under s 91R(3) of the Migration Act.
An allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker. The allegation is not to be lightly made and must be clearly alleged and proved (SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[32] per Tamberlin, Mansfield and Jacobson JJ at [43]).
[32] (2002) 194 ALR 749; [2002] FCAFC 361
The applicant has not set out how the Tribunal acted in bad faith and has not provided any evidence of it. Essentially, this ground is just a disagreement with the Tribunal’s finding on an issue of fact. It was open to the Tribunal to make that finding on the evidence before it and there is nothing to show that it acted in bad faith when it did so.
The applicant’s first ground has not been made out.
The applicant’s Ground 2 complains that the Tribunal acted in excess of its jurisdiction by not being satisfied that there is a real chance that the applicant would be persecuted if he returned to Bangladesh for any Convention reason. This ground is no more than attempt at merits review of the applicant’s refugee claims.
The Tribunal considered the applicant’s claims and rejected them on credibility grounds. There is no evidence of any failure to address any of the applicant’s claims (NABE v Minister for Immigration and Multicultural Affairs (No.2)[33]. In NABE, Black CJ, French and Selway JJ held at [55]:
Although the discussion in S20[34] did not set any precise limit upon the scope of factual error which may amount to or indicate jurisdictional error there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction…
[33] (2004) 144 FCR 1; [2004] FCAFC 263
[34] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30
That is not the case here. The applicant has not shown any such failure to make a finding on a clearly articulated argument relying upon established facts and the Tribunal Decision Record does not show any such failure.
The applicant’s second ground of review has not been made out.
The applicant’s Ground 3 takes issue with the Tribunal’s finding that he was not a credible witness. He claims that it was not open to the Tribunal on the cumulative weight of the evidence to make that finding. He relies on the decision of Lee J in W148/00A v Minister for Immigration and Multicultural Affairs[35], but, as he concedes, his Honour was in the minority.
[35] supra
This ground is no more than an attempt to argue the factual basis of the Tribunal’s credibility finding but, as I have previously pointed out at [45] above, this is a matter for the Tribunal.
In W148/00A, Tamberlin and R.D. Nicholson JJ held at [64]:
A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.
No jurisdictional error is shown and the applicant’s third ground of review fails.
The applicant is not legally represented in these proceedings. I propose to consider whether any jurisdictional error appears that has not been referred to by the applicant. Division 4 of Part 7 of the Migration Act deals with the way that the Refugee Review Tribunal conducts a review of an RRT-reviewable decision. The decision of the Full Court (Emmett, Kenny and Jacobson JJ) in Minister for Immigration and Citizenship v SZMOK[36] provides at [11]-[18] a helpful guide to the operation of Division 4. With respect, it contains at [11] a “checklist” for courts conducting judicial review of decisions of the Refugee Review Tribunal.
[36] [2009] FCAFC 83
As allowed by s.423, the applicant provided written arguments[37], which the Tribunal considered.[38]
[37] Court Book 28, 89, 99
[38] Court Book 369
As counsel for the Minister submitted, the Tribunal did not breach s.424 in the way it contacted DFAT to verify the authenticity of the two testimonials from the Bangladesh Awami League.
In SZLPO v Minister for Immigration and Citizenship[39], the Full Court (Lindgren, Stone and Bennett JJ), held at [103]-[105] that the word “person” in s.424(2) means only a natural person. At [99]-[100] their honours construed the words “additional information” in s.424(2) to mean “information additional to information previously given to the Tribunal by the invitee”.
[39] supra
In the decision under review, DFAT is not a natural person. The persons who were contacted by DFAT had not previously given information to the Tribunal. It was the applicant who gave the two testimonial letters to the Tribunal.
I have also considered the effect of the letter written by the Tribunal to the applicant on 27th August 2007 when it first received his application for review. That letter told the applicant that he should “immediately send us any documents, information or other evidence you want the Tribunal to consider.”[40]
[40] Court Book 93
The letter is in identical terms to the letter in SZNAV v Minister for Immigration & Anor[41] which Raphael FM found constituted jurisdictional error because it was an invitation to give additional information under s.424(2) but did not comply with the requirements to give the applicant the prescribed period of time to provide that information. Thus, it was held to be an error because it did not comply with Regulation 4.35 and s.424B(2).
[41] [2009] FMCA 693
For the reasons I have expressed in SZNPH v Minister for Immigration & Anor[42] at [38]-[44] I am not satisfied that SZNAV was correctly decided. In my view, the Tribunal’s letter was not, nor was it ever intended to be, a letter inviting the applicant to give additional information under s.424(2).
[42] [2009] FMCA 788
In any event, the letter had no adverse effect on the applicant at all. He was invited to attend a hearing that was later set aside by consent for different reasons.
The Tribunal wrote to the applicant again on 5th August 2008, advising him that his application for review had been remitted by the Federal Magistrates Court. The text of that letter is in different terms, which are identical too the letter referred to by North and Rares JJ in MZXRE v Minister for Immigration and Citizenship[43] at [7]-[8]. Their Honours said at [8]:
It is common ground that this letter did not amount to an invitation to the appellant to give additional information within the meaning of s 424(2) of the Act. This was because it had not specified a date, in accordance with s 424C(1)(b), before which any information had to be provided.
[43] [2009] FCAFC 82
There is no breach of ss.424, 424B or 424C of the Act.
I am satisfied that the Tribunal did not breach s 424A of the Act in relation to the information obtained by DFAT from the two people in Bangladesh who signed the letters. The Tribunal accepted what the letters had to say which, in the case of the first letter, actually supported the applicant’s claims. The Tribunal accepted that the letter signed by Mostafizur Rahman Bulbul was genuine.[44] The second letter was signed by a man who said he could not remember the content of all the letters he signed. The letters did not undermine the applicant’s claims and the information did not form the reason, or part of the reason, for affirming the decision under review. Hence, there was no need to write to the applicant under the provisions of s.424A(1).
[44] Court Book 382 at [137]
The Tribunal did write a comprehensive s.424A letter to the applicant on 21st October 2008.[45] The applicant provided a written reply on 10th November 2008[46] which the Tribunal considered in its decision.[47]
[45] Court Book 347-354
[46] Court Book 361-362
[47] Court Book 379-381
There is no breach of s.424A of the Act.
The Tribunal invited the applicant to a hearing, where he gave evidence and presented arguments relating to the issues arising in relation to the decision under review (s.425). The applicant attended the hearing, which took place on 16th September and 14th October 2008. On each occasion he was accompanied by his migration agent, Mr Haque, and the Tribunal provided a Bengali interpreter.
There is no breach of s.425 of the Act.
The Tribunal’s invitation to the hearing of 11th August 2008 complied with the requirements of s 425A of the Act.
The applicant did not ask the Tribunal to obtain oral evidence from another person (s.426).
The Tribunal took evidence on affirmation. It adjourned the review. It arranged for an investigation by DFAT of the authenticity of the two testimonial letters from the Bangladesh Awami League (s.427).
There is nothing to show that the hearing of the application for review was not in private (s.429).
There is no jurisdictional error.
The Tribunal decision is a privative clause decision as defined by s.474(2). It is final and conclusive and not subject to mandamus or certiorari.
The application will be dismissed with costs.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 19 August 2009
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