SZNKR v Minister for Immigration

[2010] FMCA 182

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNKR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 182

MIGRATION – Review of RRT decision – applicant a citizen of Bangladesh – where applicant’s claim of conversion to Christianity in Bangladesh not accepted and attendance at church in Australia disregarded under s.91R(3) – where decision remitted for second Tribunal to determine – where Tribunal listened to the recording of first Tribunal hearing in applicant’s absence – whether applicant deprived of an opportunity to hear the evidence and make submissions in respect of it – whether Tribunal’s refusal to hear an iteration of the “background” to the applicant’s claims prevented it from properly assessing those claims.

Migration Act 1958 (Cth), ss.91R(3), 420, 424A, 424AA, 425

SZJGV v Minister for Immigration [2008] FCAFC 105
SZEPZ v Minister for Immigration [2006] FCAFC 107
SZBYR v Minister for Immigration [2007] HCA 26

Applicant: SZNKR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2579 of 2009

Judgment of: Raphael FM

Hearing date: 10 March 2010

Date of Last Submission: 10 March 2010

Delivered at: Sydney

Delivered on: 19 March 2010

REPRESENTATION

Solicitors for the Applicant: Turner Coulson

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2579 of 2009

SZNKR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh who arrived in Australia on 7 July 2008 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 15 August 2008. On 12 November 2008, after being interviewed by the Department, the applicant was refused a protection visa. The applicant then sought review of that decision from the Refugee Review Tribunal which affirmed the delegate’s decision on 11 March 2009. On 20 July 2009, by consent, the Court set aside the decision of the Tribunal to affirm the delegate’s decision and the matter was remitted to a second Tribunal to hear and determine according to law. The applicant appeared before the second Tribunal which, on 23 September 2009, also determined to affirm the decision.

2. The ground upon which the applicant claimed he was a person to whom Australia owed protection obligations was that of religion. He claimed that in 2006 he was introduced to a Christian, Mr LTB, who ran a computer training centre. He told that he went four days a week to the centre after college to study computing. During the lessons he and Mr B chatted about religion and the applicant was given books about Jesus to read. He ceased praying five times a day or going to the Mosque. He became more interested in Christianity after going to Church with Mr B.

3. The applicant’s espousal of Christianity caused problems within his family. He claims he was considered an outcast. He claims that one day he had been discovered attending church and dragged out of there by his brother who beat him. The applicant claimed that persons who converted from Islam to Christianity were commonly attacked in Bangladesh. It is not necessary for the Court to go into any more detail in relation to the applicant’s claims because the grounds upon which he filed an application to this Court to review the decision of the second Tribunal relate to procedural matters rather than to the manner in which the Tribunal treated the applicant’s claims. On 10 March 2010 the applicant filed in Court a Further Amended Application which gave two grounds. These are:

   “1. The Refugee Review Tribunal applied the wrong test.

   Particulars

   a.The Tribunal interpreted s.91R(3) of The Migration Act 1958 as requiring it to disregard any conduct by the Applicant in Australia.

   2.The Refugee Review Tribunal failed to carry out its statutory duty.

   Particulars

   a.s. 425 of the Act requires the Tribunal to invite an applicant to appear before the Tribunal.

   For the invitation to be meaningful an applicant must be present when all evidence is heard by the Tribunal.

   The Tribunal in this case relied upon, by listening to the recording of the evidence before the First Tribunal,

   a.    The evidence given to the First Tribunal; and

   b.   Re-listening to the evidence of the witness.

   By listening and re-listening to the evidence, in the absence of the Applicant, the Tribunal denied him the opportunity to hear the evidence and make submissions in respect of it or call evidence to meet it.

   b.The Tribunal declined the Applicant’s request to provide a full account of his activities.

   c.In so doing, the Tribunal denied the Applicant a meaningful invitation to appear before it.”

The first ground

1. The extract from the Tribunal’s “Findings and Reasons” about which the applicant complains is found at [113] [CB 143]:

   “I accept that he has been attending services at a church in Sydney. It is clear from his evidence that this church has no links at all with the Bangladesh community, and he does not claim that his presence at this church might have been reported to anyone in Bangladesh who may wish him harm as a result. It is generally accepted that a person can acquire refugee status sur place where he or she has a well-founded fear of persecution as a consequence of events that have happened since he or she left his or her country. However this is subject to s.91R(3) of the Act which provides that any conduct engaged in by the applicant in Australia must be disregarded in determining whether he or she has a well-founded fear of being persecuted for one or more of the Convention reasons unless the applicant satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee within the meaning of the Convention. As I do not accept that [the applicant] was a genuine convert from Islam to Christianity before his arrival in Australia, I am not satisfied that he has attended church in Australia for any reason other than for the purpose of strengthening his claim to be a refugee, and therefore disregard it.”

   The applicant submits that the reasoning of the Tribunal set out above indicates that the Tribunal disregarded all conduct in Australia “simply because it did not accept that any conversion had occurred prior to the applicant’s arrival in Australia”. He argues that the section requires the Tribunal to determine the motive for an applicant’s conduct in Australia and says that the reasoning of the Tribunal in this case could lead to the conclusion that no sur place claim could ever succeed in the face of s.91R(3). I am afraid I cannot accept the applicant’s submissions on this point. They seem to me to be made with an eye attuned to error and a very narrow reading of the Tribunal’s decision. If the decision is read as a whole, it becomes quite clear that the applicant’s conduct in Australia was alleged to have followed on from his conversion to Christianity whilst in Bangladesh. He came to Australia as a Christian. Having come to Australia as a Christian, he then attended church. The Tribunal has found that he did not come to Australia as a Christian. In those circumstances without any other evidence as to his reasons for going to church, such as a recent conversion during his residence in this country, the finding by the Tribunal that his attendance was not otherwise than for the purpose of strengthening his claim is both logical and reasonable. The Tribunal was obliged to come to a view about the applicant’s motivation; SZJGV v Minister for Immigration [2008] FCAFC 105, and it did.

Second ground

1. There are two distinct particulars of this ground. In coming to a view about this ground, the Court will take judicial notice of the following facts based upon information provided to it in the course of this hearing and its knowledge of the manner in which the delegate and the Tribunal operate from its eight years of adjudication of these matters within the Court. First, the applicant having been interviewed by the delegate would have been offered the opportunity to have a tape recording (CD) of the delegate interview. Second, the applicant would have been offered the opportunity to obtain a tape recording (CD) of the hearing before the first Tribunal. Third, in this case the applicant was represented by solicitors and counsel up to the time when the consent orders were made by the Court in respect of the first hearing. If the applicant received advice under the Ministers’ scheme then a copy of the CD of the first Tribunal hearing would have been provided to his legal advisers. Whether that occurred or not, it was always available to the applicant or those legal advisors.

2. The applicant submits that, by listening and re-listening to the evidence from the first Tribunal in the absence of the applicant, the Tribunal denied him the opportunity to hear the evidence and make submissions in respect of it or call evidence to meet it. The first concern raised by the applicant relates to a matter appearing at [75] [CB 136]:

   “I told him that I had listened to the recording of the hearing during which he had given his oral evidence to the first Tribunal, so did not need to ask him to repeat the information he had already provided. However as the hearing took place some time ago, he was welcome to give evidence about any developments that had occurred since then, either relating to events in Bangladesh or in Australia.”

   The applicant submits that the actions of the Tribunal as paraphrased above effectively prevented the applicant from giving the second Tribunal evidence upon the issues arising. As the Court has the transcript of the Tribunal hearing it is best to look to that to see what actually occurred. At [T6] of the second hearing the Tribunal says to the applicant:

   “T:Because I have listened to the previous Tribunal hearing I need you to be aware that there are some things that do concern me and I want to give you a chance to comment on them today.”

   [The Tribunal continues with a question arising from the statement of the applicant to the first Tribunal about being regarded as an enemy by his family]

   At [T7] after some further questions the applicant says to the Tribunal:

   “A: Tribunal Member, if you could please allow me some time because there is a background. If I don’t relate with the background it is very hard for me to give you the real message. It might take a bit long time but I have to tell from a-z otherwise you wouldn’t be able to understand what happened.

   T:Did you tell the previous Tribunal Member that background?

   A:     Yes, certainly I have.

   T:Well you know I have listened to the recording of that hearing so I’ve heard all of that background. That’s why I am not asking you to tell me again.”

3. The Tribunal then continues with questions about matters that have caused it concern. The matters all arise out of evidence given by the applicant to the first Tribunal. They are paraphrased between [79] [CB 136] and [86] [CB 138]. The reasons appear to me to be an accurate reflection of the transcript and it has not been suggested that they are not. At [87] [CB 138] the Tribunal moves to what is the critical area of the applicant’s evidence, being the discrepancies between the applicant’s statements and the evidence obtained by the first Tribunal from Mr B. The Tribunal’s questioning of the applicant in respect of these matters was done following an explanation of the applicant’s rights under s.424AA (see transcript of second Tribunal hearing [T17] [15-35]). After the explanation the applicant immediately commences with his own explanation of why the first Tribunal was wrong when it utilised the discrepancies between his evidence and that of Mr B to make findings upon his credibility. The applicant claimed that Mr B had confused him with another person of the same name which was why some of his responses did not tally with those of the applicant. He told the second Tribunal that he had had a subsequent telephone conversation with Mr B and Mr B had explained that:

   “I could not actually identify you because I thought you as some other MR but your full name is MMRB, that is why.”

4. The applicant suggested to the second Tribunal that it ring Mr B to clarify matters. The Tribunal then moved on to other parts of the conversation between the first Tribunal and Mr B which were causing concern. The first related to the applicant’s brother. Mr B had been asked whether he knew him and said that he did and that he was a professor who went to church regularly. This did not corroborate the applicant’s evidence that his brother had dragged him out of the church and beaten him. The applicant’s explanation for this was again that the witness had mistaken him for someone else. The Tribunal asked the applicant about another matter being the existence of a letter from Mr B which was before both Tribunals and is found at [CB 38]. In the telephone conversation between the first Tribunal and Mr B, he told that he had not written that letter (although in a letter dated 4 February 2009 [CB 94] he appears to resile from this. The Tribunal raised with the applicant a discrepancy between what he had told the first Tribunal about the time when he commenced attending the Comilla Revival Baptist Church and what he had told the first Tribunal [93] [CB 139]. Finally, the Tribunal informed the applicant that although it believed that the first Tribunal had told Mr B the applicant’s full name so that he was properly identified, he would check this from the recording and would have a further hearing if he came to the view that a misunderstanding had occurred. In the transcript of the first hearing at [T51] the Tribunal introduces itself to Mr B and asks whether he is aware of the identity of the person about whom questions are to be asked. Mr B says that he is but when asked his name finds some difficulty in remembering it. Eventually the Tribunal asks the applicant whether he is prepared for his name to be given to Mr B and when the Tribunal gives the full four names to the witness Mr B still seems a bit confused about who is being spoken about and asks to contact the address of that person and for the Tribunal to ring back. The Tribunal then says:

   “T:No I’m sorry Mr B that won’t really be possible. But if I could just ask, do you remember anybody by the name of Mr MMRB?

   W:     Yes.

   T:      You do? Ok. And were you sent any papers about him?

   W:     Yes.

   T:      Right and who sent those papers about him?

   W:     His big, like, one brother.

   T:      And is that brother in Bangladesh?

   W:     Yes, he’s a professor.”

   Having listened to this conversation, the Tribunal concluded that it was satisfied that the witness was aware of the identity of the applicant and did not make arrangements for a further hearing. The Tribunal in its “Findings and Reasons” concluded inter alia that the applicant could not be accepted as a credible witness because of the inconsistencies which it had identified.

5. The status of a second review after a first review decision has been found to have been invalid was considered by the Full Bench of the Federal Court, Emmett, Siopis and Rares JJ in SZEPZ v Minister for Immigration [2006] FCAFC 107 at [38-39]:

   “Upon the making of the First Decision, the review of the delegate’s decision undertaken pursuant to s 414(1) was at an end. Assuming the effect of the Consent Orders was to quash or set aside the First Decision, it was incumbent upon the Tribunal to embark upon a review of the delegate’s decision according to law. It was a review by the Tribunal that was required, not a review by a particular member of the Tribunal. It was the decision of the Tribunal that was set aside, not the decision of a particular member of the Tribunal (see Wang at 529).

   In any event, when ss 421, 422 and 422A refer to ‘a particular review’, they identify the review initiated under s 414(1) and culminating in a decision in accordance with s 430, being the review that a particular person, namely the applicant for review, has initiated in respect of an RRT-Reviewable Decision. The expression does not depend upon the identity of the particular member constituting the Tribunal. Rather, it refers to the function of the Tribunal to review a decision. Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made. ”

   In that case the Full Bench found that it was not necessary for the second Tribunal to repeat the steps required under s.424A in relation to certain information that had been given to the applicant by the first Tribunal. The “information” was still before the Tribunal. By analogy, the evidence given by the applicant to the first Tribunal was therefore still before the Tribunal. I do not believe that the applicant cavils with this. What he says is that he should have been given an opportunity to “give evidence and present arguments” about evidence that he has already given. It is not at all clear how he is suggesting this was to be done. He wanted the opportunity to listen to the recording together with the Tribunal. Presumably the Tribunal would have been silent until it came to a point in the recording when it had concerns. It would then have told the applicant about those concerns and asked the applicant to respond to them. But this is exactly what happened only the Tribunal paraphrased the recording. The applicant never suggests that the Tribunal wrongly paraphrased the recording and I am satisfied that the applicant either had the recording himself or had an opportunity to obtain the recording himself prior to the hearing. The way in which the applicant dealt with the first question asked of him under s.424AA would seem to indicate that he was quite well aware of what had been said at the first hearing.

6. Section 425 requires the Tribunal to give the applicant an opportunity to give evidence and present arguments. As “the Tribunal” consists of the first and second Members, it cannot be said that this opportunity was not granted. The Tribunal also has a duty, found in s.420, to conduct a review in a manner that is fair, just, economical, informal and quick. This requirement must always give way to the requirement of fairness and I suspect that what the applicant is really saying in this case is that it was “not fair” that the Tribunal should listen to the tape in his absence. The hearing before the first Tribunal lasted three hours [hearing record CB 116]. It would not be consistent with s.420 to have the applicant and the Tribunal sitting together for that period of time listening to a recording that both had an opportunity to listen to at a more convenient point in privacy.

7. On the general question of fairness, it is to be remembered that the applicant was given an opportunity to tell the Tribunal of any changes that he might wish to make to the evidence that he had given, that he was asked about specific parts of that evidence which caused the Tribunal concern and given every opportunity to respond. This is not a case like SZBYR v Minister for Immigration [2007] HCA 26 where a Tribunal makes a decision incorporating views contrary to those found by the delegate and where there was no suggestion that the particular matter was in issue. In the instant case, all matters in issue where raised directly with the applicant by the second Tribunal.

1. The views which I have expressed above apply equally to the complaint by the applicant that the Tribunal “re-heard” part of the tape of the discussions between the first Tribunal and Mr B identifying the applicant. Once again, I am of the view that the applicant had access to the tape if he wished to avail himself of it and I do not see what utility there was of the applicant and the Tribunal listening to the short extract together. There was no obligation on the Tribunal to ask the applicant any further questions about the matter. The applicant had put his case and it would not be strengthened by repetition. The Tribunal was the decision making body. It was for it to interpret the conversation from the first hearing and there was no duty upon it to provide the applicant any further opportunity to try and explain away an inconsistency that had concerned both Tribunals.

2. The second limb of the second ground is said to arise from the extract in the transcript found at [3] of these reasons where the Tribunal tells the applicant that it has listened to the tape and did not require an iteration of the “background”. The applicant confirmed to the second Tribunal that he had told this background to the first. Whilst the Court understands that background has a role to play in a Tribunal’s assessment of an applicant’s claims, it is not those claims. The applicant’s actual claims to be a person to whom Australia owed protection obligations were thoroughly investigated by the Tribunal and they were considered with the background that the applicant had given to the first Tribunal. The applicant has not explained how an iteration of the background could have assisted the Tribunal to come to a different conclusion about his claims. We have only a general assertion that by refusing to listen to a repetition of it the applicant was “unable to give evidence and present arguments”. Such a general assertion cannot be sufficient to make a finding that the Tribunal fell into jurisdictional error.

3. The applicant was represented in these proceedings and no other matters were raised. In these circumstances the application must be dismissed and the applicant shall pay the first respondent’s costs which I assess in the sum of $5,800.00.

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

Associate: 

Date:  19 March 2010