SZNHC v Minister for Immigration

[2009] FMCA 1063

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNHC v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 1063

MIGRATION – Application to review decision of Refugee Review Tribunal – whether bias, failure to consider claims or breach of s.424 of the Migration Act.

Migration Act 1958 (Cth), ss.65, 414A, 415, 422B, 424, 424A, 424B, 424C, 425, 441A

Minister for Immigration and Citizenship v SZKTI (2009) 83 ALJR 1017; [2009] HCA 30
Minister for Immigration and Citizenship v SZLFX (2009) 83 ALJR 1029; [2009] HCA 31
Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NAIS and Others v Minister for Immigration and Multicultural and Indigenous (2005) 228 CLR 470; [2005] HCA 77
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SJSB v Minister forImmigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 215 ALR 358; [2004] FCA 1595
SZHVL v Minister for Immigration and Citizenship [2008] FCA 356
SZIGH v Minister for Immigration and Citizenship [2008] FCA 1885
SZIJG v Minister for Immigration and Citizenship [2007] FCA 1652
SZKTI v Minister for Immigration and Citizenship and Another (2008) 168 FCR 256; [2008] FCAFC 83
SZNAV and Others v Minister for Immigration and Another (2009) 229 FLR 461; [2009] FMCA 693

Applicant: SZNHC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG475 of 2009

Judgment of: Barnes FM

Hearing dates: 13 July, 27 August & 15 September 2009

Date for Last Submission: 28 September 2009

Delivered at: Sydney

Delivered on: 4 November 2009

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: DLA Phillips Fox

Counsel for the Respondents: Ms  Nolan

ORDERS

1. The application be dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG475 of 2009

SZNHC

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal made on 10 February 2009 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The applicant, a citizen of Bangladesh, arrived in Australia in November 2007 and applied for a protection visa.  In a statement accompanying his protection visa application he claimed that he had been involved in the Awami League (AL) from a young age, that he was elected and remained assistant general secretary of a political college in Dhaka for five years and that at the end of 1999 he was elected general editor of a committee in a particular place (T).  He claimed that he started advancing his political career but when he refused to leave the AL and join the BNP on the urging of a BNP member of parliament, the BNP member of parliament filed a false terrorism case against him although he was found not guilty.

3. The applicant claimed that he “was well known in [T] as a political leader” and that with his father (who was an active member of the AL) and the local member of parliament he started campaigning for the 2001 election.  However the 2001 election was won by the BNP.  The applicant claimed that thereafter “harassment against the Awami League workers started, false cases were lodges (sic) against [him] and [his] father” by the BNP leaders.  His father was gaoled.  The applicant claimed that he moved to another town but that after a few months his whereabouts was discovered.  BNP leaders captured him and took him to the police, who arrested him on false charges and gaoled him for five months, during which time he was harassed.

4. The applicant claimed that thereafter he returned to his home but that the harassment continued.  The local BNP member of parliament told him to “quickly join BNP or else [he would] have troubles”.  He claimed that a few days later a number of men detained him and beat him.  After he escaped he realised he could not stay in Dhaka or in his village.  The applicant claimed he moved to “the other side of my country” and worked in a hotel, but that during that time BNP workers went to his parents’ home and threatened his family, at which point his father asked him to leave the country. 

5. The applicant travelled to a couple of countries in Africa and then to South Africa.  He applied for asylum in 2004.  However after he married a South African girl he obtained permanent residency in South Africa on that basis.  He claimed that in South Africa he continued his political activities for the AL but that he felt unsafe living there.  He claimed on two occasions in 2005 groups of African men came into a shop he was working in and beat him up and demanded money and in January 2007 a similar event occurred.  One of his assailants was captured.  When he was released from gaol, this person threatened to kill the applicant.  The applicant claimed that these people again came to his shop at the end of August 2007 and beat him up.  He required hospitalisation for a month.

6. The applicant and his wife separated. He claimed that his wife’s boyfriend threatened him so he “started hiding in different friend’s places”, realised his life was not safe and obtained a visa to come to Australia. 

7. The applicant claimed that while preparing to come to Australia he heard that his father had died on 31 October 2007 so he decided to return to Bangladesh.  When he did so found he that politicians were “being tortured in the hands of the Caretaker Government”.  He claimed he spent three days in hiding, but with the help of his family and after bribing immigration officers he escaped.  The applicant claimed that he could not stay in Bangladesh and also that his life was not safe in South Africa.  

8. A delegate of the first respondent found that the applicant had a “current right to enter and reside in South Africa” and that he did “not have a well-founded fear of being persecuted in South Africa” or “that the South African authorities will return him to Bangladesh” and hence that he was not entitled to seek protection in Australia.

9. The applicant sought review by the Tribunal.  He attended a Tribunal hearing at which the issue of whether or not he had a right of entry and residence in South Africa was discussed.  The Tribunal reasons for decision are the only evidence of what occurred in the Tribunal hearing.  The Tribunal also recorded a discussion with the applicant of his involvement in the political activities of the AL. 

10. The hearing was adjourned to enable the Tribunal to obtain further evidence regarding the applicant’s residence status in South Africa and so that it could write to the Department of Foreign Affairs about his claimed membership of the AL and documentary evidence in that respect. 

11. The Tribunal recorded that after the hearing it made a number of general inquiries with the government authorities of the Republic of South Africa but was unable to confirm the rights of residence of a person in the position of the applicant without disclosing his personal details.  Consequently it was unable to verify whether the applicant’s permanent residence permit remained valid for South Africa since it did not disclose his personal details.

12. The Tribunal also made inquiries regarding the authenticity of a letter endorsed with the titles, but not the names, of the general secretary and the president of a particular district branch of the AL provided by the applicant regarding his membership of the AL Youth League in a particular district in Bangladesh. 

13. On 25 September 2008 the Tribunal wrote to the applicant inviting him to comment on information provided by the Australian Department of Foreign Affairs that the Department had “contacted the current General Secretary of the Bangladesh Awami Youth League of [name of the location] District Branch and the General Secretary advised that he had no recollection of the applicant”, “could not recall issuing a letter to anyone regarding the matters raised in that letter” and “usually signed letters in his own name”.

14. The applicant’s migration agent responded on 8 October 2009 claiming that the applicant had obtained the undated letter of support during the emergency situation in Bangladesh in January 2007 at a time when no one was in the office to sign the letter which had been provided by someone from the ward committee.  The applicant claimed that he had been president of the ward committee under the relevant municipality in 2000 and provided the Tribunal with a letter dated 7 October 2008 from the president of that ward committee stating that he had been advised that inquiries with the district committee could not identify the applicant, but that the applicant had been president of the particular ward committee during 2000 and “was an active worker of the party in the locality”.

15. The applicant was invited to attend a further hearing on 22 January 2009 at which time the Tribunal advised him that as it could not be satisfied that he had a right to enter and reside in South Africa it would assess his claims of refugee status against Bangladesh, his country of nationality.  It also advised the applicant that further Tribunal inquiries indicated that the letter of support of 7 October 2008 was genuine and that the author was president of the Awami Youth League for that area.

16. The Tribunal asked the applicant why he feared returning to Bangladesh, especially in light of the fact that the Awami League was now in power.  It was put to him that in those circumstances he would not face harm for reason of his political opinion or previous affiliation.  The applicant claimed nonetheless to fear that he would be killed, that the political situation could change and the BNP could win the next election, that his family had warned him not return and that even if he relocated the BNP would find him wherever he was and would torture him.

Tribunal decision

1. In its findings and reasons the Tribunal found on the basis of the inquiries it had made about the applicant’s residence status in South Africa that it accepted “for the purpose of this decision that he [did] not have a current right to enter and reside in the Republic of South Africa”.  Hence it assessed his claims against Bangladesh, his country of nationality.  It recorded his claim to fear persecution from his political opponents in Bangladesh because he was a member of the AL and that if he returned he would be mistreated by his political opponents and would not be provided with reasonable state protection. 

2. The Tribunal accepted that the applicant and members of his family were AL supporters and that he had been involved in school and college AL organisations, that in 2000 he had been president of a ward committee of the youth wing of the party and also that he ceased to be an active member of the Jubo League (the youth wing of the AL) in 2001.   It noted that the ward level of the AL and Jubo League was the lowest level of the organisation and accepted that “the applicant had an involvement in a number of low level youth branches of the Awami League from 1996 to 2000/2001”. 

3. The Tribunal also accepted that the applicant was involved in the October 2001 election campaign and that he and his father were victims of harassment by BNP workers during that time and thereafter. 

4. It accepted that the applicant moved to other parts of Bangladesh for a period of time between 2001 and 2004, but did “not accept that he went into hiding for reasons of his political opinion”, having regard to the fact that “[h]e ceased to be a member of the Jubo League by 2001”.  The Tribunal was of the view that the applicant went to these other places “to look for work and returned to his home village and to his family home in Dhaka from time to time”.  It found his claim that he had been traced through a mobile phone company and threatened in another city by BNP members to be implausible. 

5. The Tribunal referred to the fact that at the hearing the applicant claimed that “he ceased to be an active member in 2001 and his membership was cancelled in 2004 when he left to live in South Africa”.  However “in his written statement he claimed to have continued to be a member and supporter of the Awami League in Bangladesh and South Africa after 2001”.  The Tribunal preferred the applicant’s evidence at hearing and found that “he was not an active member of the Awami League at anytime (sic) after he ceased his involvement in 2001” although it accepted that “he always remained a supporter of the Awami League”.

6. The Tribunal had regard to the fact that “[i]n his written statement the applicant made many claims of mistreatment by his political opponents and police” that he “did not repeat” at hearing.  It found his evidence in relation to his claimed mistreatment “to be confused and at time (sic) contradictory”.  However it found that in view of the country information on the current situation in Bangladesh, it was “unnecessary to refer to each written claim of mistreatment and make specific findings”.  It accepted in general that “the applicant may have suffered some harassment and been the occasional victim of political violence at the hands of BNP supporters prior to 2001”, but did not accept that he had “any active involvement in political matters since 2001” or that “he suffered any mistreatment after 2001”. 

7. It stated that it “considered the letters provided by the applicant to support his claims of previous mistreatment”, but gave those letters “little weight as they [did] not indicate the basis of the information stated in those letters and [could] not be tested”.  In particular, the Tribunal did not accept that the applicant was “detained on false charges for 5 months” having regard to his vague and generalised oral evidence in relation to that claim and the lack of detail.  It did not accept that, if the applicant “had serious pending charges against him… he would have been able to move around Bangladesh freely after being charged or to depart Bangladesh without restriction in 2004”.

8. The Tribunal had regard to current independent information indicating that “Bangladesh ha[d] been governed by a caretaker government since 2006 and that in December 2008 the Awami League won” what were generally regarded to be free and fair national elections, “in a landslide victory”.  It found that there was “nothing to suggest that the government of Bangladesh [would] not be durable and stable in the foreseeable future”.  In those circumstances, the Tribunal found “the applicant would not be at risk of any harm from the current Bangladeshi government authorities for reasons of his political opinion or previous political affiliation should he return to Bangladesh now or in the foreseeable future as Bangladesh now ha[d] an Awami League government”. 

9. Nor did the Tribunal accept that the applicant faced “any risk of harm from members of opposition parties, in particular, from members of the BNP”, having regard to the level of his activity as an “office bearer of a small low level local committee” of the youth league in 2000, the fact that he “ceased being an active member in 2001”, ceased to be a member in 2004 and had “lived outside Bangladesh since 2004”.

10. The Tribunal found that, although the applicant claimed he had been “involved in Awami League politics in South Africa”, he had “not participated in political activities in Bangladesh as an officer bearer or member since 2001”.  Given this fact and “[h]is absence from Bangladesh since 2004”, it found that the applicant “would not be at any risk of harm from members of the BNP or any party opposed to the Awami League if he returned to Bangladesh now or in the foreseeable future”, there being “no plausible reason as to why any members of the BNP would have any adverse interest in” him.

11. The Tribunal addressed the claim by the applicant’s representative that there had been no change at “grass roots level”, there were numerous incidents not reported by the media and that because the applicant was a low-profile AL support he would not be protected by the authorities.  The Tribunal did not accept this submission, which it found to be “essentially speculative”.  Nor did the Tribunal accept the applicant’s claim “that he would be on a list of Awami League members who would be targeted by a network of BNP members throughout Bangladesh”, finding that this was a “speculative and implausible” claim having regard to “the applicant’s low profile, his cessation of activities and his absence from Bangladesh for a lengthy period of time”.

12. Finally, the Tribunal considered the applicant’s claim that a named local identity, who was a BNP member and member of parliament, had “mistreated him and made threats against him in 2000 and 2001”, which he continued to make “through the applicant’s mother”.  The Tribunal did “not accept that the applicant was threatened when he returned to Bangladesh in 2007” as claimed or that this person continued to threaten him.  It did not accept that there was “any plausible reason as to why he would continue to threaten the applicant during his lengthy absence from his family home in Bangladesh”.  The Tribunal did “not accept that the applicant would have returned to Bangladesh for a visit in 2007 if he had a genuine fear he would be killed or seriously harmed” by this person and did not accept his evidence that this person “pose[d] any personal threat to [him] for reasons of the (sic) his political opinion”. 

13. The Tribunal concluded on the basis of the material before it that it did not accept that the applicant faced a real chance of persecution for reasons of his political opinion or for any other Convention-related reason should he return to Bangladesh now or in the foreseeable future. 

Bias

1. The applicant sought review by application filed in this court on 2 March 2009.  The first ground in the application is that the applicant was “denied procedural fairness” because “the Tribunal was biased”.  In written submissions the applicant took issue with the Tribunal’s finding that he did not face a risk of harm from members of opposition parties and the reasons given. 

2. It was submitted that “[h]aving found that there was no evidence to find that there was a real chance that the applicant would be persecuted for any Convention reason should he return to Bangladesh, it is not clear why the Tribunal…then went on to make several enquiries regarding the authenticity of the letter provided by the applicant regarding his membership of the Awami League”.  The applicant referred to the fact that the Tribunal inquiries had confirmed that the letter of 7 October 2008 was genuine and suggested that the Tribunal could have arranged a hearing in October and November 2008, but that it waited another three and a half months to hold the resumed hearing on 22 January 2009.  It was submitted that “[t]he Tribunal purposely acted unfairly” and “knew the Awami League will be in power” by that time. 

3. In oral submissions the applicant took issue with the fact that the Tribunal had not produced an outcome within 90 days and submitted that the Tribunal had dealt with his case in a manner that suggested that it was biased as it waited until his party came into power before making an adverse decision.

4. Neither actual nor apprehended bias is established in the manner contended for by the applicant.  There is nothing in the material before the court to establish that the Tribunal was biased in the sense considered in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17. Actual bias is not easily proved and, as stated in SZHVL v Minister for Immigration and Citizenship [2008] FCA 356, it would only be in a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal. In this case there is, in addition, the timing of the various events relied on by the applicant but this is not such as to establish either actual bias or apprehended bias considered from the perspective of the appropriately informed lay observer in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28.

1. Contrary to the contentions of the applicant, it is not apparent that the Tribunal first determined that there was no evidence that the applicant would be persecuted for any Convention reason should he return to Bangladesh, before making inquiries about the authenticity of the letter supporting his claimed membership of the AL.  On the contrary, his claims were based on his activities and involvement in the AL.  In conducting the review the Tribunal investigated the authenticity of the documents provided in support of the applicant’s claim about membership of the AL before assessing his claim to fear persecution on that basis.

2. There is nothing in the material before the court to suggest that the fact or timing of these inquiries or the time taken to arrange a second hearing after the Tribunal made its inquiries gave rise to an apprehension of bias.  Insofar as the applicant seemed to suggest that the Tribunal in some way anticipated the victory of the AL in the Bangladesh elections there is nothing to suggest that this is other than speculation.  It does not establish actual or apprehended bias on the part of the Tribunal.

3. Associated with this contention, the applicant referred to the Tribunal’s obligation to produce an outcome within 90 days. At the hearing counsel for the Minister was unable to assist as to the derivation of such a requirement but submitted that it did not go to the Tribunal’s jurisdiction to make the decision. In post-hearing submissions the respondent referred to s.414A of the Migration Act 1958 (Cth) which requires the Tribunal to review a decision and record it within 90 days, but also states in sub-s.(2) that failure to comply with this section does not affect the validity of a decision made under s.415.

4. While it was accepted that it could be presumed that the relevant period of time had been exceeded in this case, as submitted for the first respondent, it is clear from s.414A(2) that a failure to comply with s.414A(1) does not affect the validity of the decision simply by reason of failure to meet the time specified in s.414A(1).

5. There may be circumstances in which delay on the part of the Tribunal is problematic.  In NAIS and Others v Minister for Immigration and Multicultural and Indigenous (2005) 228 CLR 470; [2005] HCA 77 the appellants had applied on 5 June 1997 for review of a decision. The first hearing took place on 6 May 1998, with a further hearing on 19 December 2001. It was not until 14 January 2003 that the Tribunal handed down its decision affirming the delegate’s decision to refuse to grant protection visas to the appellants. Gleeson CJ stated at [9] – [11]:

   Because the Tribunal’s reasons ignored the question of the time that had elapsed between the taking of evidence and the final assessment of that evidence, it can never be known how that assessment was in fact affected by the delay.  What must be kept in mind is that the question concerns the fairness of the procedure that was followed.  It was an inquisitorial procedure that, in the circumstances of this case, depended to a significant extent upon the Tribunal’s assessment of the sincerity and reliability of the appellants.  That is one of the reasons why they were entitled to, and were given, a “hearing”.  An important purpose of the hearing was to enable the Tribunal to do just what it ultimately did, that is, make a judgment about whether the appellants were worthy of belief.  …  A procedure that depends significantly upon the Tribunal’s assessment of individuals may become an unfair procedure if, by reason of some default on the part of the Tribunal, there is a real and substantial risk that the Tribunal’s capacity to make such an assessment is impaired.

   …The procedures required by the Act were designed to give the appellants a reasonable opportunity to state their claims and to have those claims competently evaluated. If the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk.  The delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal’s capacity to assess the appellants was impaired.  That being so, the appellants did not have a fair hearing of their claims by the Tribunal.

   … when the Tribunal, exercising the control over its own procedures given to it by the Act, without explanation or justification, and without any fault of an applicant for review, draws out those procedures to such an extent that its capacity to discharge its statutory obligations is likely to be materially diminished, and there is nothing in the Tribunal’s reasons to displace that likelihood, then a case of procedural unfairness arises.

   (Also see Callinan and Heydon JJ.) 

6. However, as counsel for the first respondent submitted, the delay in this case is not comparable and does not give rise to the concerns expressed in NAIS.  The delay in this instance was partly attributable to the extensive inquiries made of the foreign post by the Tribunal, none of which have been shown to be unnecessary or unreasonable.  The Christmas vacation may or may not have contributed. 

7. It is apparent that the adjourned Tribunal hearing was originally scheduled for 2 January 2009 and was postponed by the Tribunal until 22 January 2009.  The Tribunal decision, however, was made on 10 February 2009, less than three weeks after this hearing.  Hence, contrary to the position in NAIS, this is not a case in which there was a delay between the hearing and the ultimate decision of the Tribunal such as to vitiate the decision (and see in any event s.422B of the Act).

8. The time taken by the Tribunal and the fact that the government of Bangladesh changed after the first Tribunal hearing and before the second Tribunal hearing and the decision, does not establish bias or give rise to an apprehension of bias on the part of the Tribunal. 

9. This ground is not made out.

Failure to consider claims

1. The second ground in the application for review is that the “Tribunal’s decision was unjust and was made without taking into account the full gravity of the applicant’s circumstances”.  This appears to be a contention that the Tribunal failed to consider the applicant’s claims.

2. In written submissions the applicant reiterated his claims to fear persecution should he return to Bangladesh and claimed that the Tribunal could not “excluded (sic) the real chance of persecution” and that he would not “get effective protection from the Awami League government”, as there was “no credible or reliable evidence that there [was] no real chance that the applicant [would] not be persecuted if he return[ed] to Bangladesh”.

3. It was also claimed that the Tribunal “did not consider the current situation of Bangladesh” and evidence that “Awami League (AL) supporters are victimised”.  The Tribunal was said to have erred in that there was said to be “no evidence or other material” to justify its findings. 

4. In the alternative, it was said to be a wrong application of the law to the facts for the Tribunal to find that the applicant would get “‘effective protection’ under Awami League government without considering the applicant country situation properly”.  It was submitted that the Tribunal did “not appear to have made a specific finding whether the applicant can be effectively protected from harm under the Awami League government” and that in coming to its conclusion it had failed to take into account a relevant consideration. 

5. It is for an applicant to advance his own case.  As stated in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [17], s.65 of the Migration Act “requires a visa to be rejected in the absence of a positive finding of satisfaction.  It does not require the visa to be granted in the absence of an adverse finding” (and see SJSB v Minister forImmigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]). The Tribunal is not required to accept a claim “merely because positive evidence to the contrary is absent” (see SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 215 ALR 358; [2004] FCA 1595 at [36] per Hely J).

6. The Tribunal considered but did not accept the claim that the applicant would be at risk of harm from the current Bangladeshi authorities.  It also considered but did not accept that he faced any risk of harm from members of opposition parties as claimed.  In such circumstances it was not necessary for it to consider the availability of effective State protection. 

7. Insofar as it was contended that the Tribunal did not consider the current situation in Bangladesh, the applicant’s adviser had submitted to the Tribunal that although there was a change of government there had not been any change at “grass roots level” and that because the applicant was a low-profile AL supporter he would not be protected by the State authorities.  This claim was considered but not accepted by the Tribunal which found it to be essentially speculative.  Similarly, the Tribunal considered but rejected the applicant’s claim that he would be on a list of AL members who could be targeted by a network of BNP members as well as his claim to fear a specific local identity.  It has not been established that the Tribunal failed to consider an integer of the applicant’s claims in a manner constituting jurisdictional error or that it otherwise erred in the manner contended.  Insofar as the applicant seeks merits review, merits review is not available in this court. 

8. Insofar as the applicant takes issue with the Tribunal’s consideration of independent country information in relation to the situation in Bangladesh, the choice and weight to be attributed to items of country information are matters for the Tribunal (see SZIJG v Minister for Immigration and Citizenship [2007] FCA 1652). It is apparent that the Tribunal took into account the most recently available country information in relation to the situation in Bangladesh (see SZIGH v Minister for Immigration and Citizenship [2008] FCA 1885). This ground is not made out.

Section 424 of the Migration Act

1. While none of the grounds relied on by the applicant are established, the other issue that arose for consideration in this case was the possibility that there had been a failure by the Tribunal to comply with s.424 of the Migration Act which was as follows at the relevant time:

   (1)     In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. 

   (2)     Without limiting subsection (1), the Tribunal may invite a person to give additional information. 

   (3)     The invitation must be given to the person: 

   (a)     except where paragraph (b) applies—by one of the methods specified in section 441A; or 

   (b)     if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

   What was in issue was whether the Tribunal had invited a person to give additional information within s.424(2) so that it had to meet the requirements of s.424(3) and s.424B having regard to the law as it stood at the time this matter was first before the court (see the decision of the Full Court of the Federal Court in SZKTI v Minister for Immigration and Citizenship and Another (2008) 168 FCR 256; [2008] FCAFC 83 and the decision of Raphael FM in SZNAV and Others v Minister for Immigration and Another (2009) 229 FLR 461; [2009] FMCA 693).

2. The hearing was adjourned to enable the first respondent’s solicitors to file and serve a supplementary court book containing material in relation to the various inquiries made by the Tribunal member during the course of the review.  Each of the parties was given the opportunity to make further written submissions. The first respondent did so.  The applicant did not. 

3. The adjourned hearing resumed on 27 August 2009.  At that time, the High Court had just handed down its decisions in Minister for Immigration and Citizenship v SZKTI (2009) 83 ALJR 1017; [2009] HCA 30 and Minister for Immigration and Citizenship v SZLFX (2009) 83 ALJR 1029; [2009] HCA 31 in which it allowed appeals and overruled the decisions of the Full Court of the Federal Court in relation to the scope of s.424(1) of the Migration Act.

4. While the first respondent had prepared written submissions in relation to the High Court’s decision in SZKTI and also its relevance to the approach taken by this Court in SZNAV to the Tribunal’s letter of acknowledgment of receipt of the review application, in light of the fact that the decision of the High Court in SZKTI had only been made the day before the hearing and the nature of the respondent’s submissions (which suggested that certain issues may have been left open by the decision in SZKTI to be resolved by the Federal Court on appeal in SZNAV), I considered it appropriate to allow the applicant the opportunity to have further time to address the legal issues raised and to obtain legal advice, which he indicated that he intended to seek.

5. Initially it was contemplated that a further hearing would be necessary.  However after the decision of the Full Court of the Federal Court in SZNAV, the matter was brought back before the court pursuant to the liberty to apply granted to the parties.  Further written submissions were filed and served by the first respondent and the applicant was given the opportunity to file and serve any written submissions in reply by 28 September 2009.  He has not done so.

6. In any event it is now clear from the decisions of the High Court in SZKTI and of the Full Court of the Federal Court in Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109 that it cannot be said that the Tribunal failed to comply with s.424 of the Act in a manner constituting jurisdictional error.

7. This possibility had arisen in relation to two aspects of the review by the Tribunal.  First, in the course of the review the Tribunal made a number of requests for information, including requests to the South African High Commission in relation to the applicant’s right to reside in South Africa and through the Department of Foreign Affairs and Trade in Bangladesh to verify the authenticity of a supporting letter.  Secondly, on 26 March 2008 the Tribunal wrote to the applicant acknowledging receipt of his review application and advising that he should “immediately send us any documents, information or other evidence you want the Tribunal to consider”.

8. The Full Court of the Federal Court in SZKTI had considered that a telephone call made by the Tribunal to a church leader who had signed a letter concerning the applicant was a request for “additional information” within s.424(2) of the Act and hence that the Tribunal was under an obligation to comply with s.441A of the Act in the manner in which it sought that information. However on appeal the High Court in SZKTI found that the Tribunal was entitled to get any information that it considered relevant under s.424(1) and that the only limit on that power was that the Tribunal “must have regard” to the information in making its decision (at [37] per French CJ, Heydon, Crennan, Kiefel and Bell JJ). The High Court referred to the fact that no adverse consequences flowed against the applicant, if the applicant or any other person from whom information was sought failed to cooperate or give information sought under s.424(1). On the other hand, if the specific power in s.424(2) was utilised by the Tribunal to give an invitation in writing to provide additional information, there would be adverse consequences for an applicant who failed to respond to an invitation in writing, in that such person could be deprived of the entitlement to a hearing. (SZKTI at [45]).

9. The High Court found that the procedural restrictions on the specific power to issue an invitation to give additional information under s.424(2) did not qualify the Tribunal’s general power in s.424(1) to get any information that it considered relevant.

10. As was stated in SZKTI “[t]he general power to "get" information and the specific power to "invite" in writing the giving of additional information are capable of co-existing without the latter being repugnant to the former.” (see SZKTI at [46] per French CJ, Heydon, Crennan, Kiefel and Bell JJ). Under s.424(1) of the Migration Act the Tribunal has a statutory power to obtain information by asking questions and no adverse consequences flow against the applicant for review if the applicant, or any other person questioned, fails to co-operate or to give the information sought. Conversely, where the specific power in s.424(2) to give an invitation in writing to provide additional information is exercised, an applicant who fails to respond to such invitation is deprived of the entitlement to a hearing. As French CJ, Heydon, Crennan, Kiefel and Bell JJ stated in SZKTI at [45] “[t]hese critical distinctions emphasise the fact that the powers in ss 424(1) and 424(2) are, in law, significantly dissimilar.”  The High Court pointed out at [38] that there was “statutory silence” in s.424(1) about how the RRT "may get any information that it considers relevant” and that the “phrase "[w]ithout limiting subsection (1)", as it occurs in s 424(2), means that the procedural restrictions on the specific power to issue an invitation to give additional information do not qualify the RRT's general power in s 424(1) to ‘get any information that it considers relevant’” (at [48]).  As the Full Court of the Federal Court subsequently observed in SZNAV at [21], s.424(1) is facultative. Failure to comply with such a request has no consequences adverse to the applicant for review.

11. In the course of its review the Tribunal requested the South African High Commission in writing for advice on whether a person in the situation of the applicant would be able to re-enter and reside in South Africa.  It received a response from the Commission on 11 September 2008.  It made an email request to the Department of Foreign Affairs and Trade on 1 October 2008 for information from the post in South Africa. DFAT sought “clarification” from the South African Department of Home Affairs.  There is no evidence as to the form in which it sought such clarification. 

12. The Tribunal has the power to “get any information that it considers relevant” under s.424(1) and information in relation to whether the applicant could legally reside in South Africa was relevant to his claim that he did not have a current right to enter and reside in that country. There is no fetter on the manner in which the Tribunal may get information under s.424(1) except that the Tribunal must “have regard to that information in making the decision on review”, which it did in its reasons for decision.  It had the power to request such information and the exercise of that power did not contravene any provision of the Act, as there was no question of it making a decision on the applicant’s application in the absence of a response from the third party (see the Federal Court in SZNAV at [22]). The procedural restrictions on a s.424(2) invitation in s.424(3) and s.424B do not apply, as the statutory power in that provision is distinct from the Tribunal’s powers to obtain information under s.424(1) (see SZKTI at [48] per French CJ, Heydon, Crennan, Kiefel and Bell JJ).

13. The Tribunal also wrote to the Department of Foreign Affairs in Bangladesh via email to a section of that Department in Canberra to investigate the authenticity of the letter regarding the applicant’s membership of the AL Youth League.  An officer from the Department “contacted” the current general secretary who advised him that he had no recollection of the applicant and did not know anyone by that name. The Tribunal invited the applicant to comment on this information by letter of 25 September 2008 in compliance with s.424A of the Act. The applicant responded with written submissions and provided a further letter from the president stating that the applicant had been an active worker of the party. Further email enquiries were made in relation to the authenticity of this letter. DFAT contacted the signatory of the letter by phone and in writing. The Tribunal considered this information was relevant to the applicant’s claim that he would be at risk of harm from members of political parties opposed to the AL if he returned to Bangladesh and had regard to the information in its reasons for decision.

1. These requests for information were also a valid exercise of the Tribunal’s powers under s.424(1). Hence there were no procedural restrictions in relation to the method adopted by the Tribunal in obtaining this information (see SZKTI at [48] per French CJ, Heydon, Crennan, Kiefel and Bell JJ) such as would apply to a s.424(2) invitation.

2. While the decision in SZKTI was concerned with the specific situation of making inquiries by telephone, there seems no reason to limit the application of this principle to telephone inquiries by the Tribunal. Hence on this basis, even if the information sought by the Tribunal could be classified as additional information, it was not required to proceed in the manner provided for under s.424(2) of the Act or to meet the procedural obligations that would apply if it chose to do so. The Tribunal had the power to get information under s.424(1) (or otherwise under the Act) without meeting the requirements in s.424(3) (see in particular s.441A) or s.424B. It had regard to the information it obtained. The Tribunal put the information it obtained as a result of its inquiries to the applicant under s.424A of the Act and also raised such matters with him in the course of the second hearing.

3. No jurisdictional error is established in relation to the written enquiries made by the Tribunal in the course of the review. 

4. Similarly, any argument that the Tribunal’s letter acknowledging receipt of the review application and asking the applicant to send to it any documents, information or other evidence was an invitation which fell within s.424(2) of the Act in the manner considered by Raphael FM in SZNAV is no longer sustainable in light of the decision of the Full Court of the Federal Court on appeal.  The Federal Court in SZNAV referred to the fact that to a large extent the issues before it had been overtaken by the decision of the High Court in SZKTI.  As the Federal Court in SZNAV stated at [16], the High Court in SZKTI explicitly rejected a submission to the effect that the power given by s.424(2) was a subset of the general power in s.424(1). In SZNAV their Honours also rejected a contention that the Tribunal’s power to seek information still had to be found in s.424, on the basis that, following the decision in SZKTI it could not be said that s.424 was the only source of the Tribunal’s power to obtain information. The Federal Court found that s.424(1) was “facultative” (at [21]), so that failure to comply with a request for information under s.424(1) had no consequence adverse to the applicant for review.

5. The letter from the Tribunal acknowledging receipt of the application requested the applicant to “immediately send us any documents, information or other evidence you want the Tribunal to consider…”  In SZNAV Stone, Jacobson and Jagot JJ stated at [23] that: “[t]he relevant part of the acknowledgment letter, construed in context, is nothing more than advice to the respondents about how to ensure that their application is complete.” The Federal Court considered that the Tribunal’s powers under ss.424(1) and 424(2) could be distinguished by the adverse consequences that would follow non-compliance with a request under s.424(2) (such as the Tribunal making a decision on the review without inviting the applicant to appear at a hearing (ss.424C(1) and 425(2)(c)). Accordingly, requests for information under s.424(2) are formal and must be given in a particular manner (s.424(3)) and satisfy certain requirements (s.424B) (see SZNAV at [21]).  However the applicant did not suffer any adverse consequences as “there was no question of the Tribunal proceeding to make a decision on the respondents’ application if they did not provide any "documents, information or other evidence" in response to that letter” (at [22]). The Tribunal was exercising its power under s.424(1) or otherwise under the Act to obtain information and was not required to follow the requirements of s.424(3).

6. As in SZNAV (at [22]) the Tribunal had the power to say what it did in the acknowledgment letter. No adverse consequences flowed to the applicant from a failure to respond to the request to provide information to the Tribunal. The applicant was not deprived of a hearing. No provision of the Act was contravened. The Tribunal’s acknowledgement of the application for review was not a formal request within s.424(2) of the Act in relation to which the Tribunal had to comply with s.424(3) or s.424B of the Act. Thus it is not necessary to determine whether such requirements were met.

7. Accordingly, neither the Tribunal’s requests to third parties for information nor the letter to the applicant of 26 March 2008 gave rise to jurisdictional error.

8. As no jurisdictional error has been established, the application must be dismissed. 

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  4 November 2009