SZLXP v Minister for Immigration & Anor

Case •

[2008] FMCA 1247

•

11 September 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLXP v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1247

MIGRATION – Visa – Protection (Class XA) visa – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Bangladesh claiming fear of persecution on account of political opinion – credibility – where applicant had visited India, Estonia, Sweden and Germany before arriving in Australia – procedural fairness – natural justice – whether Tribunal failed to comply with Migration Act 1958 (Cth) – whether Tribunal failed to comply with Migration Regulations 1994 (Cth) – use of independent country information – bias – bad faith – apprehended bias – whether Tribunal failed to comply with Migration Act 1958 s.424 – no jurisdictional error.

PRACTICE & PROCEDURE – Federal Magistrates Court has no power to order that the Refugee Review Tribunal be differently constituted in making an order remitting the application to the Tribunal for determination according to law.

PRACTICE & PROCEDURE – Where leave granted to file and serve further submissions after the hearing – where applicant did not file any further submission – where first respondent filed both a supplementary outline of submissions and an affidavit – affidavit filed without leave – affidavit rejected.
Migration Act 1958 (Cth) ss.91R, 422B, 424, 424A, 424B, 474
SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 followed.
Craig v South Australia (1995) 184 CLR 163
NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494; [2003] FCAFC 262
SZLHA v Minister for Immigration & Citizenship [2008] FCA 782 followed.
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 followed.
Abebe v Commonwealth (1999) 197 CLR 510; 162 ALR 1
VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104
SZJHP v Minister for Immigration and Citizenship [2008] FCA 119 followed.
Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046
SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 distinguished.
SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 considered.
SZJSP v Minister for Immigration and Citizenship [2007] FCA 1925
SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122
SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84
SZIQB v Minister for Immigration and Citizenship [2008] FCAFC 20
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 followed.
Applicant: SZLXP
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 169 of 2008
Judgment of: Scarlett FM
Hearing date: 12 June 2008
Date of Last Submission: 16 July 2008
Delivered at: Sydney
Delivered on: 11 September 2008

REPRESENTATION

Applicant: Appeared in person
Solicitors for the Applicant: Not legally represented
Counsel for the Respondent: Mrs Sirtes
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,350.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 169 of 2008

SZLXP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. The Applicant, a citizen of Bangladesh, asks the Court to set aside a decision of the Refugee Review Tribunal made on 3rd January 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.

  2. The Applicant seeks this relief:

    i)An order in the nature of certiorari quashing the Tribunal decision;

    ii)A declaration that the Tribunal decision is null and void and has no effect in law;

    iii)An order in the nature of mandamus remitting the application to the Tribunal “for rehearing by appointing a new Tribunal Member”;

    iv)A writ of prohibition restraining the First Respondent, the Minister for Immigration and Citizenship, from acting on the Tribunal decision until this proceeding is determined;

    v)An order presumably by way of injunction restraining the First Respondent from serving any removal order on the Applicant until this proceeding is determined; and

    vi)Costs.

  3. I have previously held that it is doubtful that the Federal Magistrates Court has the power when remitting an application to the Refugee Review Tribunal to order that the Tribunal should be differently constituted (see SZEPZ v Minister for Immigration & Multicultural Affairs[1] at [30]) and my views remain unchanged.

    [1] [2006] FCAFC 107

  4. The application also seeks an order for costs. As the Applicant has not been legally represented at any time throughout these proceedings and his fees have been waived by the Court Registry, there does not appear to be any case of a costs order in his favour.

  5. The Applicant relies on six grounds for relief, which can be summarised as:

    a)Breach of procedural fairness and natural justice;

    b)Failure to comply with the Migration Act 1958 and the Migration Regulations 1994;

    c)Overlooking the merit of the protection visa application;

    d)Making its decision without referring to updated reports;

    e)Making a decision on the basis of information pre-set in the mind of the Tribunal – in effect, bias;

    f)Making a decision that was unjust without considering the full gravity of the facts and circumstances.

Background

  1. The Applicant arrived in Australia on 8th April 2007 and applied for a Protection (Class XA) visa on 10th May. In a statement submitted with his application for the visa, the Applicant claimed to have been a member of a political party called the Jatiatabadi Shattra Daal (JSD) and to have suffered persecution from the governing party, the Awami League. He claimed to have fled to India and then to Estonia. He claimed that his sister and brother-in-law invited him to visit them in Australia and he was able to apply to the Australian Embassy in Berlin for a Class TR Subclass 676 Visitor visa, which he used to travel to Australia.

  2. On 3rd August 2007 a delegate of the Minister refused the application for a protection visa. The delegate was not satisfied that the Applicant had a well founded fear of persecution because the Applicant had not provided any evidence in support of his claims. Further, the delegate noted that the Applicant claimed to have fled to India in February 2006 to avoid becoming a victim of a “crossfire” incident and stated:

    Clearly, if the applicant had a fear of persecution in Bangladesh and there had been “false cases” filed against him by the then Awami League government he would not have returned to Bangladesh after having fled the country in fear of his life.[2]

    [2] Court Book at 36

  3. The delegate did not accept the Applicant’s explanation for his return to Dhaka for reasons of his passport in May 2006.

  4. The delegate also noted that the Applicant had not explained why he did not seek protection in other countries when he was out of Bangladesh:

    The applicant does not state why he did not seek the protection of the Indian authorities or register with the UNHCR during his two trips to India, instead of returning on both occasions to Bangladesh. He does not state why he did not seek protection in Sweden (and possibly Germany) being a signatory country(s) to the Refugees Convention. He claims that he found it difficult to survive in Estonia, also a signatory country to the Refugees Convention, because of the extreme cold and language difficulties, however I believe that such matters would be of secondary importance to a person with a genuine and well founded fear of persecution, in fear of his life.[3]

    [3] Court Book 37

  5. In summary, the delegate found the Applicant’s claims not to be credible and found that his fear of persecution was not well founded.  

Application for Review by the Refugee Review Tribunal

  1. The Applicant applied to the Refugee Review Tribunal on 28th August 2007, seeking a review of the delegate’s decision. He did not provide any additional documents with his application. On 24th September 2007 the Tribunal wrote to the Applicant and invited him to attend a hearing on 24th October. That same day, a migration agent, Mr Ullah of Austar Consultant Services, wrote to the Tribunal to advise that he had been appointed to represent the Applicant. In his letter he enclosed three references and a First Information Report and Charge Sheet referring to the Applicant.

  2. The Applicant attended the Tribunal hearing on 24th October 2007, accompanied by his migration agent. He gave evidence with the assistance of an interpreter in the Bengali language. He produced his Bangladeshi passport.

  3. On 23rd November 2007 the Tribunal wrote to the Applicant’s migration agent under the provisions of s.424A of the Migration Act, asking for the Applicant’s comments on this information:

    You have provided the Tribunal with a document which purports to be from the Supreme Court of Bangladesh, relating to you; it refers to Case: No 15 1475 of 2000

    In relation to that document and on 23 November 2007, the Department of Foreign Affairs and Trade provided the following advice:

    Post contacted an Advocate of the Supreme Court of Bangladesh …to check the authenticity of the documents provided. Our contact, along with other lawyers at the Supreme Court, described the document as ‘unquestionably’ fraudulent. Several observations were made regarding the document: the stamps and seals used in the document were fake, and the language and format of the document were incorrect. In addition, it was noted that on the first page of the document[4], Mr Sayed Abu Kawser and Mrs Fara Mahmuda were cited as being the DAG and AAG respectively. It was confirmed by the Court that these two lawyers were not holding the positions of DAG and AAG at the time the document was dated…[5]

    [4] reproduced at page 67 of the Court Book

    [5] Court Book 92

  4. The Tribunal’s letter went on to advise the Applicant that:

    The above information is provided to you as it could be the reason or one of the reasons for finding that the document you have provided is fraudulent, which means that the Tribunal will not give it any weight as supporting evidence of your claims. The Tribunal takes the view that the provision of fraudulent documents is a serious matter that could also raise serious doubts about your credibility and the veracity of your claims.

    The provision of the fraudulent document could also mean that other documents you have provided are fraudulent and/or do not contain truthful information. This could mean that the Tribunal will not give any weight to those documents as supporting evidence of your claims and this matter could raise serious doubts about your credibility and the veracity of your claims.[6]

    [6] Court Book 92 - 93

  5. The Tribunal’s letter asked the Applicant to provide his comments or response by 7th December 2007. The Applicant replied by way of a letter dated 5th December 2007, saying (inter alia):

    Please note that I requested my lawyer in Bangladesh who was handling my case in Bangladesh. I requested him to send my court document were I was prosecuted. I have no idea why he sent false courts document instead of genuine one where I was entangle.

    I have tried several times to contact him after receiving your fax, but the lawyer is not responding at all. I fear that he will not helping me anymore in this matter.[7]

    [7] Court Book 96

  6. The Tribunal handed down its decision on 3rd January 2008.  

The Refugee Review Tribunal Decision

  1. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.

  2. In its Decision Record[8], the Tribunal considered the Applicant’s claims and evidence, including the Applicant’s original statement accompanying his application for a protection visa, the material the Applicant provided to the Tribunal, his evidence at the hearing, the advice obtained by the Tribunal from the Department of Foreign Affairs and Trade, and the Applicant’s response to the Tribunal’s s.424A letter sent on 23rd November 2007.  

    [8] Court Book 103 - 121

The Tribunal’s Findings and Reasons

  1. The Tribunal was satisfied that the Applicant was a citizen of Bangladesh. However, the Tribunal was not satisfied that he had a well founded fear of persecution for a Convention reason. In particular, the Tribunal was not satisfied that the Applicant was a credible witness, stating:

    In the course of the hearing, the applicant made substantial new claims that he had not made in the statement that he had not made at the primary stage (sic). Overall, his responses in the course of the hearing were vague and lacking in substantial details. The Tribunal had to repeat simple questions on many different occasions in order to give the applicant an opportunity to provide clearer and further details about his claims. However, despite being given ample opportunity to explain and clarify his claims, the applicant’s responses remained to be vague and lacking in important details. The applicant provided various documents, one of which has been found to be fraudulent.[9]

    [9] Court Book 115

  2. The Tribunal expressed concern about these aspects of the Applicant’s evidence:

    ·The fact that the Applicant had spent time in India, Estonia and Sweden before he arrived in Australia but had not applied for asylum in any of those countries.

    ·The Applicant raised for the first time in his evidence a claim that he had been the victim of a racially-motivated assault in Estonia.

    ·The Tribunal considered the Applicant’s evidence in relation to his father’s involvement in the BNP was “overall vague and lacking in details, raising doubts about his claims and general credibility”.[10]

    [10] Court Book 116

    ·The fact that the Applicant claimed for the first time at the hearing that his maternal grandfather had been a member of the BNP parliament suggested to the Tribunal “that it had been fabricated, raising about the veracity of the claims and the Applicant’s credibility”.[11]

    [11] Ibid

    ·The fact that the Applicant claimed for the first time at the hearing that he participated in political meetings and rallies with his father led the Tribunal to doubt the veracity of the claims and the Applicant’s general credibility.

    ·The Tribunal considered that the vagueness and generality of the Applicant’s claims that false complaints had been made about him and the fact that these details had not been included in his detailed statement raised doubts about the veracity of his claims.

    ·The Tribunal considered that the Applicant’s responses to the Tribunal’s questions about the extortion in which he claimed to have been involved were “vague and lacking in important details, raising doubts about the veracity of the claims and his credibility”.[12]

    ·The Tribunal was not persuaded about the lack of details and vagueness of the Applicant’s responses when questioned about his claims of involvement with the BNP during the time he attended Queens University.

    ·The Tribunal found internal inconsistencies in the Applicant’s evidence about his claims to have been charged with various offences in Bangladesh.

    ·The Tribunal referred to the omission from the Applicant’s statement his claim that a warrant for his arrest had been issued in July 2000 and stated that “the fact that it had not been claimed previously suggests fabrication raising doubts about the veracity of the claims and his credibility generally”.[13]

    ·The Tribunal expressed concerns about the veracity of the Applicant’s claims that he was able to leave Bangladesh for India when there was a warrant out for his arrest and his earlier failure to advise that he or his brother had bribed the police to enable him to obtain a police clearance.

    ·The Tribunal expressed the view that the fact that the Applicant did not mention anything about having a matter go to Court and any charges or warrant of arrest in his statement lodged with his application for a protection visa “raises serious doubts about the veracity of his claims and his credibility generally”.[14]

    ·The Tribunal considered the inconsistency between the document that the Applicant had provided stating that a case against him had gone to the Supreme Court and the Applicant’s evidence that the matter had gone to the Central Court “raises doubts about the veracity of his claims and his credibility generally”.[15]

    ·The Tribunal found that the document that the Applicant had provided, purporting to be from the Supreme Court of Bangladesh, was fraudulent. The Tribunal stated:

    The Tribunal considers that the provision of a fraudulent document to be serious, raising doubts about the applicant’s claims and his credibility generally.[16]

    [12] Court Book 117

    [13] Court Book 119

    [14] Ibid.

    [15] Ibid.

    [16] Court Book 120

  3. Because of its serious and comprehensive findings about the Applicant’s lack of credibility, the Tribunal found that it was not satisfied that the Applicant had suffered any of the harm that he had claimed or that there was a real chance that he would suffer any such harm in the reasonably foreseeable future. The Tribunal found that the Applicant did not have a well-founded fear of persecution and there was no Convention Reason why he could not return to Bangladesh.

  4. Accordingly, the Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.

Application for Judicial Review

  1. The Applicant commenced proceedings in this Court by filing an application and an affidavit in support on 23rd January 2008. Although given the opportunity to do so, the Applicant did not file any amended application.

  2. In his application for review, the Applicant sets out these grounds of review:

    i)The Tribunal made an error of law breached the rules of procedural fairness and natural justice (sic).

    ii)The procedures that were required by the Migration Act 1958 (the Act) and the Migration Regulations 1994 to be observed in connection with the making of the decision were not observed.

    iii)The Tribunal overlooked the merit of the protection visa application. The Tribunal’s decision breached the rules of the requirement of the Migration Act 1958 (the Act) and the Migration Regulation(s) 1994.

    iv)The Tribunal’s (sic) made the decision without referring updated reports of the International Human Right, US Country Reports and DFAT.

    v)The Tribunal made its decision on the basis of limited and unrelated information which was pre-set in the mind of the Tribunal.

    vi)The Tribunal’s decision was unjust and it was made without considering the full gravity of the fact and circumstances of the protection visa application.

  3. The Minister’s lawyers filed a Response on 7th February 2008 stating that:

    i)the application did not establish any jurisdictional error on the part of the Tribunal; and

    ii)The application did not provide any particulars or any legal ground of review.

Submissions

  1. In a written submission filed on 7th April 2008 the Applicant claimed that in making its decision the Tribunal made an error of law and breached the rules of procedural fairness and natural justice. He complained that the Tribunal did not rely on Independent Country Information in deciding his case.

  2. The Applicant took issue with the Tribunal’s adverse credibility finding and reiterated his claim that he was facing false criminal cases in Bangladesh.

  3. The Applicant went on to submit that the Tribunal committed jurisdictional error by wrongly interpreting his case and “making a wrong issue”. In his submission, he referred to a decision called “Lu v MIMIA” and gave the citation “(2005) FCAFC 240”. This is an incorrect citation, and whilst there have been other cases entitled Lu v Minister for Immigration and Multicultural and Indigenous Affairs I recent years, it is not clear to which decision the Applicant is actually referring. In any event, the Applicant is referring to the concept of jurisdictional error as was discussed in Craig v South Australia[17].

    [17] (1995) 184 CLR 163

  1. The Applicant submitted that the Tribunal identified the wrong issue and asked itself the wrong question, which led to an erroneous finding.

  2. The Applicant submitted that the Tribunal failed to comply with the requirements of s.424A of the Migration Act. He claimed that he was not provided with Independent Country Information which was not just a group of people of which he was a member and fell outside the meaning of s.424A(3) of the Act. He referred to the decision of the Full Court of the Federal Court in NARV v Minister for Immigration and Multicultural and Indigenous Affairs[18].

    [18] (2003) 203 ALR 494; [2003] FCAFC 262

  3. The Applicant’s submission then went on to restate factual matters that went to the merits of his claim for a protection visa. It is well established that the Court, in conducting a judicial review of the Tribunal decision, cannot review the factual merits of the decision reached by the Tribunal, so this part of the submission cannot be considered (SZLHA v Minister for Immigration & Citizenship[19] at  [5]; Minister for Immigration & Ethnic Affairs v Wu Shan Liang[20] at 272).

    [19] [2008] FCA 782

    [20] (1996) 185 CLR 259; [1996] HCA 6

  4. The Applicant also submitted that the “flat rejection” of his evidence and material amounted to bad faith and bias. He claimed that the Tribunal ignored the merits of his claims and gave its decision on the basis of unrelated information. The Tribunal did not consider any materials from United States Country Reports, Amnesty International or the Department of Foreign Affairs and Trade.

  5. The Applicant stated that his application for a protection visa covered 3 key elements of the Convention definition and referred to the definition of persecution in s.91R(1) of the Migration Act, claiming that he was persecuted by elements of the Awami League and the Bangladesh Police. Again, the submission dealt with factual matters that went to the merits of the Applicant’s claim for a protection visa.

  6. The Applicant claimed that the Tribunal had committed a jurisdictional error “being a breach of procedural fairness” and referred to the High Court decision of Abebe v Commonwealth[21] at [113].

    [21] (1999) 197 CLR 510; 162 ALR 1

  7. The Applicant summarised his submissions by submitting that:

    a)The Tribunal failed to take a relevant consideration into account.

    b)The Tribunal decision involved a jurisdictional error involving an incorrect interpretation of the applicable law.

    c)The Tribunal decision was unjust and was made without taking into account the full gravity of the circumstances.

    d)The Tribunal decision was not justified by the evidence and the Tribunal ignored its own information in deciding the case.

    e)The Applicant was deprived of natural justice.

    f)The application should be reheard by a new Tribunal Member.

  8. Mrs Sirtes of Counsel, who appeared for the Minister, made these submissions:

    i)There was no breach of the rules of procedural fairness and natural justice;

    ii)The Tribunal’s procedural fairness obligations are set out in Division 4 of Part 7 of the Act, which are an exhaustive statement by reason of the operation of s.422B;

    iii)The Tribunal complied with s.424A;

    iv)The Applicant did not provide any particulars of the procedures claimed by the applicant’s Ground 2 not to have been observed;

    v)The Applicant did not provide any particulars of the requirements of the Act and Regulations claimed by Ground 3 to have been breached and, in addition, it is not possible for the applicant to press the merits of his claim;

    vi)The use of older Independent Country Information is not, in itself, a matter which constitutes jurisdictional error (VQAB v Minister for Immigration & Multicultural & Indigenous Affairs[22]);

    vii)The range of sources from which the Tribunal obtained the information it used was a matter for the Tribunal (SZJHP v Minister for Immigration and Citizenship[23]);

    viii)If the allegation in Ground 5 that the Tribunal had a “pre-set” mind is an allegation of bias, it should be explicitly set out and the Applicant should provide evidence;

    ix)If the Applicant claims that the Tribunal brought to its decision some aspect of prior experience or material gleaned from previous hearings to assess the plausibility of the Applicant’s evidence, this is not an error (Scorgie v Minister for Immigration and Citizenship[24]); and

    x)The Applicant’s Ground 6 is a “pro forma” ground. Counsel for the Minister referred to an earlier decision of mine, SZCKB v Minister for Immigration and Anor[25], where I characterised an application containing this ground as amounting to “no more than specious nonsense” and being entirely without merit[26]. In fairness to this Applicant, I should make it clear that the application in SZCKB was dismissed as an abuse of process, which is certainly not the case here.   

    [22] [2004] FCAFC 104 at [26] and [32]

    [23] [2008] FCA 119

    [24] [2007] FCA 2046

    [25] [2006] FMCA 804

    [26] SZCKB at [10]

  9. At the hearing of this matter on 12th June 2008, Counsel for the Minister raised the question of what, if any, consequences arose from the decisions of the Full Court of the Federal Court in SZKTI v Minister for Immigration and Citizenship[27] and any other judgments delivered that addressed the principles expounded in that decision. SZKCQ v Minister for Immigration and Citizenship[28] was handed down on 27th June 2008.

    [27] [2008] FCAFC 83

    [28] [2008] FCAFC 119

  10. Accordingly, I granted leave to the Applicant file and serve any written submissions on that subject by 1st July 2008. I also granted leave to the First Respondent to file and serve any written submissions on that same subject by 16th July 2008.

  11. The Applicant has not filed any further written submission.

  12. The lawyers for the Minister filed two documents on 16th July 2008:

    a)A document headed “First Respondent’s Supplementary Outline of Submissions: and

    b)An affidavit of Bernadette Marie Rayment, solicitor.

  13. The Supplementary Outline of Submissions falls clearly within the leave that I granted to the parties at the conclusion of the hearing, and I propose to consider it thoroughly. However, the affidavit by Ms Rayment was not envisaged by the leave that I granted to the parties on 12th June 2008. It appears to contain further evidence. I did not give either party leave to reopen the proceedings and I reject the affidavit.

  14. In the Supplementary Outline of Submissions, counsel for the Minister described the effect of SZKTI as stating that, when the Tribunal obtains information from various sources in addition to any evidence it obtains at a s.425 hearing, being information the Tribunal obtains on its own initiative under s.424(1), when s.424(2) applies, the Tribunal is bound to follow the procedures in ss.424(3) and 424B (SZKTI at [39]).

  15. The First Respondent’s submission refers to the affidavit of Ms Rayment, which I have rejected. As this affidavit was filed without leave on 16th July 2008, the Applicant has not had any opportunity to meet that document. He was required to file his further submission, if he wished, by 1st July 2008. The fact that he elected not do so does not have any bearing on the matter, because the Applicant would have been unaware of the affidavit at that stage. To allow the First Respondent to rely on this affidavit at this stage would deny the Applicant procedural fairness.

  16. In her submission, counsel for the Minister conceded that, in obtaining information from the Department of Affairs and Trade, the Tribunal may not have complied strictly with the requirements of subsections 424B(1) and 424B(2), although, for the reasons I have mentioned above, the Tribunal’s request is not in evidence before the Court, other than as set out in the Tribunal decision record:

    Advice obtained from the Australian Department of Foreign Affairs (DFAT)

    The Tribunal sought advice from DFAT in relation to a document provided by the applicant, purported to be from the Supreme Court of Bangladesh, Case No: 15 1475 of 2000 (folios 29-32).[29]

    [29] Court Book 114

  17. Mrs Sirtes conceded that s.424B(2) requires that the request for information should specify the period in which the response is to be received. There is no evidence before the Court as to what, if any, period was specified. However, she submitted that the Tribunal clearly waited to receive the information before making its decision and, accordingly, neither DFAT nor the Applicant suffered any prejudice by reason of the fact that the period was not stated in the initial request (if that was the case).

  18. Counsel for the Minister submitted that the decisions in SZKTI and SZKCQ require compliance with s.424B when s.424(2) is engaged, however, she went on to submit that this is a case is one to which SZKTI does not apply or, at least, it is one where the decision in SZKTI, as confirmed by SZKCQ, does not dovetail with any great ease.

  19. First, she submitted that s.424B(1) applies only where a “person” is asked for information and it is open to the Court to conclude that information was not being sought from a person.

  20. If the Court were to consider DFAT to be a “person” for the purposes of s.424B, a plain reading of SZKTI shows that the Full Court’s reasoning relates to considerations of fairness to the provider of the information[30] rather than to the Applicant. Accordingly, it is submitted that this case can be distinguished from the situation in SZKTI.

    [30] SZKTI at [46]-[47]

  21. It is further submitted that even if the Court were to consider that there had been a relevant breach of s.424B, the Court ought to exercise its discretion and refuse relief; see SZJSP v Minister for Immigration and Citizenship[31] at [23] to [27] and [29]. However, in SZIZO v Minister for Immigration and Citizenship[32] the Full Court of the Federal Court narrowed the scope of SZJSP and declined to follow it.

    [31] [2007] FCA 1925

    [32] [2008] FCAFC 122

  22. The appropriateness of the Court’s discretion to withhold relief has been considered in SZKGF v Minister for Immigration and Citizenship[33] and SZIQB v Minister for Immigration and Citizenship[34].

    [33] [2008] FCAFC 84

    [34] [2008] FCAFC 20

  23. Counsel for the Minister submits that in this case the error was unarguably a technical error and the claim for relief is prima facie a weak one, given that the merits of the claim have been fully and properly considered and any remission would only be because of that technicality. Any remission to the Tribunal would not alter the nature of the information obtained from DFAT and would be done to remedy a hypothetical prejudice to DFAT and not any real or perceived disadvantage to the applicant. Thus, it is submitted, if the Court were to consider the Tribunal’s interaction with DFAT to be a jurisdictional error of the kind identified in SZKTI, the uncommon facts and circumstances would warrant an extension of the Court’s discretion in withholding relief.

Conclusions

  1. I will deal first of all with the matters contained in the Applicant’s application and then with the matters contained in the Applicant’s submission, which raises some slightly different issues. I will then consider the supplementary submissions made by the Minister on the question of compliance with ss.424 and 424B of the Migration Act.

The Applicant’s Ground 1 – procedural fairness and natural justice.

  1. Leaving aside the question of ss.424 and 424B, there does not appear to be any failure by the Tribunal to provide the Applicant with procedural fairness or natural justice. As s.422B, the Tribunal’s obligations in this regard are set out in Division 4 of Part 7 of the Act (Division 4 – Conduct of Review).

  2. The Tribunal complied with the requirements of s.424A of the Act. It wrote to the Applicant a letter dated 23rd November 2007 in accordance with the requirements of the section, seeking his comments on the information from DFAT about his purported Bangladesh Supreme Court document. The Tribunal considered the Applicant’s written response dated 5th December 2007 (even though it incorrectly set out in its decision that the response was dated “5 November 2007”[35]). The Tribunal’s decision was otherwise based on the credibility of the Applicant’s own evidence to the Tribunal, which is excluded from the operation of s.424A(1) by the operation of s.424A(3)(b).

    [35] Court Book 115

  3. The Tribunal invited the Applicant to a hearing as required by s.425, and he attended the hearing and gave evidence with the assistance of an interpreter. There is no suggestion that the Applicant was not able to put his arguments adequately to the Tribunal.

  4. The Minister’s delegate had refused the Applicant’s application for a visa because the delegate was not satisfied that the Applicant’s claims were credible. The Applicant’s credibility was a significant factor in the Tribunal hearing and there was no issue that would have taken the Applicant by surprise. I am satisfied that the Tribunal complied with the requirements of s.425 of the Migration Act.

Ground 2 – failure to observe procedures required by Migration Act and Migration Regulations.

  1. Again, leaving the question of ss.424 and 424B to one side for the moment, I am satisfied that the procedures otherwise required by the Act and Regulations were complied with, as set out above.

Ground 3 – overlooking the merit of the protection visa application and breach of the requirements of the Migration Act and Regulations.

  1. The claim that the Tribunal “overlooked the merit” of the application is clearly an attempt at obtaining merits review, which is not available in applications for judicial review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang[36]). Again, the Applicant is claiming a failure to comply with the Act and Regulations, a claim which has already been dealt with.

    [36] supra

Ground 4 – making a decision without referring to updated reports.    

  1. This ground must fail. The use of Independent Country Information is entirely a matter for the Tribunal. In SZJHP v Minister for Immigration and Citizenship[37], Tamberlin J held:

    In relation to the second ground of appeal, which is that the Tribunal failed to refer to sufficient independent country information to properly consider the appellant’s application, I am not persuaded that this ground has any force for three reasons. The first reason is because the decision as to what constitutes sufficient independent country information is a matter for the Tribunal; it is purely a question of fact which is not capable of giving rise to a jurisdictional error and cannot be entered into by this Court. Secondly, the decision the decision as to what type of independent country information should be consulted is again a matter for the Tribunal which cannot be the subject of review. Finally, there is no indication either in the submissions of the appellant or on the face of the Tribunal’s reasons as to any way in which other independent country information was not taken into account. In the absence of any reference to specific material which it is said ought to have been taken into account, this ground of appeal cannot succeed.[38]

    [37] [2008] FCA 119

    [38] SZJHP at [5]

  2. The Applicant in this case has set out examples of types of Independent Country Information which he said ought to have been taken into account, but his claim lacks specificity. If there was particular information which he considered was relevant, it was up to the Applicant to bring this material to the Tribunal’s attention. The Tribunal was not required to make out the Applicant’s case for him.  

Ground 5 – making a decision on the basis of limited and unrelated information which was pre-set in the mind of the Tribunal.

  1. It is not clear if this ground is an allegation of bias or bad faith. If it is, it is a serious matter involving personal fault on the part of the Tribunal Member. It should not be lightly made and must be clearly alleged and proved (see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[39]). It is no more than a bald assertion in the application.

    [39] [2002] FCAFC 361 at [43] per Tamberlin, Mansfield and Jacobson JJ

  2. At the hearing, in answer to questions from the Bench, the Applicant said that what he tried to say in his application was that the Tribunal asked him a few questions and by doing that tried to confuse him. He complained that the Tribunal asked him the same questions over and over again. He did not provide any transcript or tape of the hearing. It is a normal part of the process for the Tribunal to ask applicants questions about their claims.

  3. The circumstances in which the Court will find that the Tribunal Member has not acted in good faith are rare and extreme, particularly where all that the Applicant relies upon is the Tribunal’s written reasons for decision.[40] In any event, errors of fact will not demonstrate bad faith in the absence of other circumstances which show capriciousness.[41] There is nothing to show bias or bad faith in the decision under review.

    [40] SBBS at [44]

    [41] SBBS at [46]

  4. Counsel for the Minister has also referred to the decision of Flick J in Scorgie v Minister for Immigration and Citizenship[42] in support of the proposition that it is not an error for the Tribunal to bring to its decision some aspect of prior experience or material gleaned from previous hearings to assess the plausibility of the Applicant’s evidence. I am not certain that this is what the Applicant is claiming, and he did not make any submissions on this specific point.

    [42] [2007] FCA 2046

  5. This ground has not been made out.

Ground 6 – the decision was unjust and made without considering the full gravity of the facts and circumstances of the application.

  1. This is the ground that counsel for the Minister described as a “pro forma” ground. When asked about this ground at the hearing, the Applicant told the Court that he was trying to say that in Estonia he had “this winter problem” but the Tribunal Member kept focussing on an incident on a bus. The Tribunal was critical of the Applicant’s claim that he had been assaulted in a racist attack when he was on a bus, which was made for the first time at the hearing:

    The Tribunal is of the view that the fact that the applicant at the review stage is claiming to have been assaulted in Estonia, suggests that he is doing so in an attempt to address concerns raised by the delegate about not applying for protection in Estonia. The Tribunal considers that a claim of assault is a serious claim and the fact that it had not been made at the primary stage indicates that it had been fabricated, raising doubts about the veracity of the claims and the applicant’s credibility generally.[43]

    [43] Court Book 115-116

  2. The Applicant’s reference to “this winter problem” is a reference to the fact that the weather in winter in Estonia is very cold, which he had advanced as a reason why he did not apply for protection in Estonia. The Tribunal had taken note of that explanation in any event:

    He said in Estonia he was on a student visa but due to the extreme low temperature he did not want to seek asylum in Estonia…He said he was in Estonia for nine months but could not find a job and the weather was very cold and as such he could not finish his Masters Degree.[44]

    [44] Court Book 115

  3. In reality, this ground is no more than attempt at challenging the factual merits of the Tribunal decision and must fail.

  4. In his written submission, the Applicant claimed that the Tribunal failed to take a relevant consideration into account. This is a reference to the Applicant’s claims that the Tribunal did not ask him about aspects of his claim to have been involved in BNP politics, his fear of being caught in a “crossfire” by the Rapid Action Battalion and “extrajudicial detention of the political leaders and activists of BNP by the current regime”. It is an attempt at merits review and no jurisdictional error is made out.

  5. The Applicant claimed a jurisdictional error involving an incorrect interpretation of the applicable law, which appears to relate to his claim that the Tribunal had not accepted that he faced persecution in Bangladesh, which he alleges is a failure to apply s.91R of the Migration Act. Again, it is an attempt at merits review.

  1. In his submission the Applicant reiterated his claims that the Tribunal decision was unjust and made without taking into account the full gravity of the circumstances, which I have already dealt with.

  2. The Applicant claimed that the Tribunal decision was not justified by the evidence and the Tribunal ignored its own information in deciding the case. The Applicant did not set out what information the Tribunal ignored, nor is that apparent from the decision record. The decision, based largely on the Tribunal’s finding about the Applicant’s lack of credibility, appears to be clearly open to the Tribunal on the evidence before it.

  3. The Applicant reiterated his claim to have been deprived of natural justice, which has already been dealt with.

  4. The Applicant submitted that the application should be reheard before a new Tribunal Member. I have already indicated that it is not open to the Court to dictate who should constitute the Tribunal for the purpose of a further hearing; it is a matter for the Principal Member. In any event, it would appear that the Applicant is asking for a new Tribunal Member because he disagrees with the decision of the Tribunal.

  5. That leaves the issue of whether the Tribunal complied with the requirements of s.424B of the Migration Act. I have considered the decision of the Full Court of the Federal Court in SZKTI. As I indicated earlier, there is no evidence before the Court as to how the Tribunal sought information from DFAT about the Applicant’s purported Bangladesh Supreme Court document. Presumably it was in writing or by electronic means.

  6. In my view, the situation in this case is vastly different from that which applied in SZKTI, where the Tribunal made an informal telephone call to a local church member and then provided to the Applicant a précis of the telephone conversation. The Tribunal’s request to DFAT in this case was entirely different, as it involved a specific inquiry about the authenticity of a document supplied by the Applicant. The Tribunal then put the reply from DFAT to the Applicant for comment, in a way set out by s.424A of the Migration Act.

  7. Clearly, the situation in this case is so different from that dealt with in SZKTI that it should be distinguished. DFAT was not put in the position of the church elder in SZKTI; it was replying to a legitimate request for information from the Tribunal and there was no prejudice to the Applicant in the way that this was done.

  8. There is no jurisdictional error. The Tribunal decision is a privative clause decision as defined by s.474(2) and there is no basis for relief in the nature of certiorari or mandamus.

  9. The application will be dismissed with costs.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  3 September 2008


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Cases Cited

16

Statutory Material Cited

1

SZEPZ v MIMA [2006] FCAFC 107
Kirk v Industrial Court of New South Wales [2010] HCA 1
NANM and NANN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 99