SZLYN v Minister for Immigration

[2008] FMCA 493

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLYN v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 493

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Bangladesh by fundamentalist students – applicant not believed – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958, ss.91R, 424A, 424b

McPhee v Minister for Immigration (1988) 16 ALD 77
Minister for Immigration v Guo (1997) 191 CLR 559
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd (1979) 144 CLR 45
R v Metal Trades Employers Association; Ex parte amalgamated Engineering Union, Australian section (1951) 82 CLR 208
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
WAAF v Minister for Immigration [2003] FCAFC 316

Applicant: SZLYN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 278 of 2008

Judgment of: Driver FM

Hearing date: 16 April 2008

Delivered at: Sydney

Delivered on: 16 April 2008

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr J Mitchell

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 278 of 2008

SZLYN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was handed down on 15 January 2008.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Bangladesh.  Background facts relating to his protection visa claims and the Tribunal decision on them are set out in the Minister's written submissions filed on 14 April 2008.  I adopt as background for the purposes of this judgment with minor amendments paragraphs 2.1 to 2.9 of those written submissions:

   The applicant is a citizen of Bangladesh who arrived in Australia on 10 June 2007 on a Sponsored Visitor visa (subclass 679) granted in March 2007.  He applied for a Protection (Class XA) visa on 9 July 2007.

   The applicant claimed that he was scared of fundamentalist Muslim student groups in Bangladesh, principally those led by Principal Habibur Rahman.  He claimed that he had his own non-government organisation helping poor women which pursued aims that were contrary to the views of Principal Rahman.  He claimed that he had been threatened and attacked and that he feared serious harm in the future because he had provided authorities with secret information about Principal Rahman.  He claimed that since his departure his family had been threatened and he believed authorities would not protect him because the authorities were scared of the fundamentalist students.

   On 10 September 2007 a delegate of the Minister decided to refuse the applicant a protection visa.  The principal reason for decision was the lack of documentary evidence to substantiate his claims that were otherwise vague and lacking in specific detail.

   On 8 October 2007 the applicant applied for review of that decision.  He submitted several documents in support of his claims. 

   On 22 October the Tribunal invited the applicant to comment on certain information that was relevant to the credibility of his claims (the “first 424A letter”).  The applicant responded on 23 October 2007 and provided further documents to corroborate his claims.

   On 19 November 2007 the applicant attended a hearing before the Tribunal.  He elaborated on his claims and claimed that false cases had been lodged against him and that he had been in hiding since 1996.  At that hearing the Tribunal challenged the credibility of key aspects of his claims.

   On 20 November 2007 the Tribunal invited the applicant to comment on certain information which was relevant to the credibility of his claims (the “Second 424A Letter”): court book (“CB”) 154-8.  The applicant responded on 30 November 2007 and 12 December 2007.  In the second response the applicant requested further time to submit further evidence.  That request was refused on 19 December 2007 on the proviso that the Tribunal would consider any further information received prior to the handing down of the decision.  No further information was forthcoming.

   The Tribunal rejected the applicant’s claims to have been in hiding since 1996 and found that the applicant was not a credible witness.  Consequently, the Tribunal did not accept that the applicant was wanted by authorities as a result of false cases against him or by the fundamentalists as a result of his work for the NGO.  It rejected his claims to hold subjective fears.  It found that he was not genuinely committed to the causes he claimed and found that he did not remain in Bangladesh, despite personal risk, because of such commitment.  It gave the documents submitted by the applicant in support of his claims no weight.  It found that the applicant did not suffer persecution in Bangladesh as a result of his activities with the NGO and that there were false cases against the applicant.  It concluded that there was no real chance that the applicant would face Convention related persecution if he returned to Bangladesh.

2. These proceedings began with a show cause application filed on 7 February 2008.  The applicant now relies upon an amended application filed on 28 March 2008.  The application identifies two grounds of review:

   1.The Refugee Review Tribunal (the Tribunal) made a jurisdictional error that the Tribunal rejected the applicant’s claim on the basis of some requirements which is not the criteria u/s 91R of the Migration Act 1958 (the Act).

   Particulars

   i.The applicant has not provided a satisfactory explanation for his in his post-hearing comments to the Tribunal (CB-198, Para-2).

   ii.The Tribunal considers the birth of six children to be inconsistent with the applicant’s claim that he was in hiding since 1996 (CB-198, Para-3).

   iii. The Tribunal did not accept that the applicant would have been able to obtain a variety of documents from the authorities, including business License, the birth certificate and passport, while hiding from the authorities. (CB-199, Para-1).

   iv.The Tribunal is of the view that if the applicant had any genuine commitment to the promotion of [women’s] rights, it may be reasonable for him to [become] engaged in some activities in Australia to express such commitment.  The fact that the applicant had not done so in the past five months indicates to the Tribunal that he has no genuine commitment to the matters he claimed. (CB-200, Para-2).

   v. The Tribunal asked the applicant at the [h]earing before it that, ‘Are you Muslim?’ do you go to the Mosque?’ (Please listen the hearing cd-2 of the Tribunal)

   vi. How your 5 children were born? (Please listen the hearing cd-1&2 of the Tribunal)

   2.That the Tribunal did not apply fair procedure to assess the applicant’s claim. The Tribunal did not follow the Part-7 of the Migration Act 1958 when it rejected the applicant’s claim when it signed the [decision].

   Particulars

   i.The Tribunal sent a letter on 20 November 2007 (CB-154) where it included few wrong information such as (a) the information regarding birth of children (b) the issuance of visitor visa because the visa was not given in March 2007 by the High Commission because of their Computer system was broken down (CB-156).

   ii.The applicant sent a letter to the Tribunal on 12 December 2007 asked an [extension] of time (CB-165, Para-2) according to the Tribunal’s letter dated 20 November 2007 (CB-158, Para-3).

   iii.The Tribunal mentioned in its letter that, ‘The Tribunal will [advise] whether or not the extension has been granted.’ (CB-158)

   iv.The Tribunal sent a letter to the applicant regarding request for extension of time on 19 December 2007 (CB169) which is one day after the [signing] of the decision.

   v.The Tribunal Signed the Decision on 18 December 2007 (CB-174) (emphasis retained)

3. The Minister's submissions deal with those grounds in paragraphs 3.1 to 3.4.  Subject to what I say below at [4]-[14], I agree with those submissions and adopt them with minor amendments for the purposes of this judgment:

   In respect to ground 1, the Tribunal’s credibility findings subsumed the entirety of his claims and it was open for the Tribunal to reject his claims to have suffered past persecution for that reason and to find that his prospective fears were not well-founded: Minister for Immigration v Guo (1997) 191 CLR 559 at 575-7. The matters referred to by the Tribunal in coming to its decision were not irrelevant considerations: see R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49-50; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40; R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242-243; McPhee v Minister for Immigration (1988) 16 ALD 77 at 80.

   In respect to ground 2, the Tribunal informed the applicant that his response to the second 424A letter dated 20 November 2007 was due on or before 13 December 2007. This constituted a period in excess of that required by s.424B(2) and regulation 4.35(3). The applicant sought an extension of time to respond on 12 December 2007, one day prior to the expiry of the period provided in the second 424A letter. On 19 December 2007 the applicant was informed of the refusal of his request for an extension of time and on 20 December 2007 that was communicated in writing. The Tribunal informed the applicant that it would consider any material submitted prior to handing down its decision and no material was forthcoming. The Tribunal was not obliged to grant the applicant an extension of time to respond to the second 424A letter: s.424B(4). The applicant has not pointed to any inviolable limitation on the Tribunal’s jurisdiction or imperative duty inherent to that jurisdiction that the Tribunal breached: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76]; R v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248. 

   Further, it was not procedurally unfair for the Tribunal to refuse the extension of time in the manner it did: see for example WAAF v Minister for Immigration [2003] FCAFC 316 at [22]-[27]. The applicant had been put on notice on or about 10 September 2007 by the delegate’s decision that his application had failed in part because of the lack of corroborative documentation. The applicant was clearly aware of the need to submit such documentation at that time as he subsequently submitted a considerable amount of corroborative material on 8 October 2007, 23 October 2007 and 30 November 2007. He was afforded a reasonable opportunity to present his case and a reasonable opportunity to respond to the second 424A letter.

4. In his oral submissions the applicant dealt with two issues.  The first is his contention that the Tribunal acted in a procedurally unfair way in refusing his request for additional time to submit documents in support of his review application. 

5. I have before me as evidence the book of relevant documents filed on 12 March 2008. That discloses that on 20 November 2007 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”), inviting comment on adverse information (CB 154 to 158). It appears that the applicant provided some additional documents (CB 159 to 164) and also responded providing comments on the issues raised by the Tribunal in a letter dated 12 December 2007 (CB pages 165 to 167). In that letter the applicant requested “a few extra weeks” to submit more evidence regarding the judgment of an alleged false case against him and medical certificates regarding medical treatment in hospital and other evidence in support of his claims.

6. The Tribunal responded to that request both orally and in writing on 19 December 2007. The request for an extension of time was refused but the applicant was informed that the Tribunal would consider any information it received prior to the handing down of the decision. The applicant notes that the Tribunal decision was signed on 18 December 2007, which is the day before his request for an extension of time was refused. He appears to regard that fact as establishing that the Tribunal had closed its mind to any further information by that stage. However, in my view that implication does not arise. The Tribunal was obliged to take into account additional information it received from the applicant between the date of signing the decision and the date it was handed down. The Tribunal's letter of 19 December 2007 at CB 169 shows that the Tribunal was well aware of that obligation. The Tribunal had a discretion pursuant to s.424B(4) to extend time for the response it invited to its request under s.424A. It seems to me that the applicant's request for additional time to submit documents was a more general request than a request for additional time to respond to an invitation to comment. Whether or not the Tribunal's discretion under s.424B(4) was enlivened, the Tribunal was clearly correct in stating that it would take into account (because it had to take into account) additional information received prior to the decision being handed down.

7. In my view, the applicant got, in effect, what he had requested.  His request was made on 12 December 2007 and was a request for a few weeks.  It was made clear by the Tribunal in its letters dated 19 December 2007 and 20 December 2007, the latter which advised the applicant of the date of handing down of the Tribunal decision (CB 171), that he had until 15 January 2008 to submit additional information.  On any view, that period was the extra few weeks the applicant had requested.

8. It appears from what the applicant said from the bar table that, as matters turned out, he did not receive the additional information he was seeking until after the Tribunal decision was handed down.  If that be right, then even if the request had been granted in the terms requested it would not have made any difference.  The applicant showed me a bundle of documents that he now has which he says support his claim to be a refugee.  He told me that he received those documents after the Tribunal decision was handed down.  The applicant is free to bring those additional documents to the attention of the Minister's Department for consideration should he wish to.

9. I find that, to the extent the Tribunal was exercising its discretion pursuant to s.424B(4) of the Migration Act, that exercise of discretion did not miscarry. The Tribunal clearly took into account the request made by the applicant and would have been aware of the various warnings given to the applicant previously to submit documents to the Tribunal in support of his claims (see, for example, CB 51, 104 and 106). In any event, I find there was no practical unfairness resulting from the refusal of the applicant's request because the period of time following the refusal of that request up to the handing down of the decision in effect gave the applicant the additional time he was seeking.

10. In his oral submissions the applicant also referred to questions asked by the Tribunal about his religion and about his family which he found disconcerting or even offensive.  I took this to be an allegation of bias.  I had invited the applicant to submit a transcript of the Tribunal hearing by order 3 made by me on 3 March 2008, but the applicant has not taken up that opportunity.  He told me that he could not afford to do so.  In any event, the record of the Tribunal decision confirms that the applicant indeed was asked questions about his family and about his religion.  On CB 185 the Tribunal records that the applicant was asked when his children were born, and he said 1997, 1999, 2000, 2002 and 2004.  The Tribunal asked the applicant how this happened if he was in hiding since 1996.  The Tribunal ultimately found that the birth of six children between 1997 and 2004 was inconsistent with the applicant's claim that he was in hiding from 1996 (CB 198).  In my view, this was a reasonable line of inquiry by the Tribunal and the conclusion reached by the Tribunal was open to it in the light of the information before it.  The question asked by the Tribunal is not indicative of bias. 

11. Secondly, on CB 187 the Tribunal records the applicant as asserting that he was accused of only pretending to be a Muslim.  It was in the context of that claim that the applicant was asked about his religious faith.  Again, the question is not indicative of bias.  It does not appear from the Tribunal's reasons that the Tribunal had any doubt about the applicant's faith.

12. I reject the assertions that the Tribunal's refusal of the extension of time sought by the applicant was procedurally unfair.  I also reject the assertion that the manner in which the Tribunal conducted its hearing was offensive and indicative of bias. 

13. I find that the Tribunal decision is free from jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.

14. The application having been dismissed, costs should follow the event.  The Minister seeks scale costs of $5,000.  The applicant referred to his impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.  I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  18 April 2008