SZNNU v Minister for Immigration and Citizenship

[2010] FCA 175

FEDERAL COURT OF AUSTRALIA

SZNNU v Minister for Immigration and Citizenship [2010] FCA 175

Citation:		SZNNU v Minister for Immigration and Citizenship [2010] FCA 175
Appeal from:		SZNNU v Minister or Immigration & Anor [2009] FMCA 1245
Parties:		SZNNU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 2 of 2010
Judge:		LOGAN J
Date of judgment:		17 February 2010
Legislation:		Migration Act 1958 (Cth) s 424A
Cases cited:		Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (cited) SZIAI v Minister for Immigration and Citizenship (2009) 83 ALJR 1123 (followed) SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 (followed) SZLFX v Minister for Immigration and Citizenship (2009) 238 CLR 507 (followed)
Date of hearing:	17 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	20
Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondents:	Mr G Johnson
Solicitor for the Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNNU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	17 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The Appellant is to pay the First Respondent’s costs of and incidental to the appeal to be taxed, if not agreed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNNU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	17 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Appellant is a citizen of the People’s Republic of Bangladesh.  He came to Australia on 11 August 2008.  The following month, on 5 September 2008, he lodged an application with the Department of Immigration and Citizenship under the Migration Act 1958 (Cth) (the Migration Act) for that class of visa known as a protection visa. On 3 December 2008, a delegate of the Minister for Immigration and Citizenship (the Minister) refused that application. Later that month, on 23 December 2008, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review on the merits of the Minister’s delegate’s decision. The Minister is the only active party respondent to this appeal.

2. On 1 April 2009, the Tribunal decided to affirm the refusal decision which had been made by the Minister’s delegate.  That decision, together with the Tribunal’s reasons for it, were communicated to the appellant under cover of a letter from the Tribunal, also dated 1 April 2009.  I shall refer a little later in my reasons for judgment to the Tribunal’s reasons. 

3. The Appellant challenged the decision of the Tribunal by way of a judicial review application in the Federal Magistrates Court.  His application was heard on 14 September 2009.  In a reserved decision published on 15 December 2009, the Federal Magistrates Court decided to dismiss, with costs, the judicial review application.  It is from that decision that the Appellant now appeals to this Court. 

4. There are two grounds of appeal.  They are: 

   1.The Federal Magistrates Court erred in not considering that the Tribunal made a jurisdictional error that the Tribunal did not believe that the applicant had obtained a labour contract in Dubai and his employment as a cook for a family in Dubai and this rejection was the result of the file note at paragraph 23 of the RRT decision, received by the Tribunal from DIAC and that information lead the Tribunal to ask the applicant different questions at paragraph 42, 43, 44 and 45 and the result of the reply is the decision in paragraph 76 that the Tribunal did not believe the applicant but the Tribunal did not communicate that file not to the applicant for comment or explanation which is a jurisdictional error.

   2.The Federal Magistrates Court erred in not considering that the Tribunal’s decision was not made properly that the Tribunal did not consider the documents and the Tribunal did not ask the original documents to the applicant.  The court below wrongly mentioned that the documents did not influence the Tribunal’s consideration but the Tribunal mentioned in paragraph 80 of its decision that the applicant submitted four documents and the originals were not before the Tribunal and then the Tribunal mentioned those as fraudulent documents. [sic]

5. I shall deal with each of these grounds in turn. 

6. Ground 1 draws attention to particular paragraphs of the Tribunal’s reasons.  They are paras 23, 42, through to and including 45, and 76.  In those paragraphs the Tribunal states: 

   23.On the Departmental file (f35) is a file note, dated 12 July 2009, which was apparently prepared by officials who issued the Applicant with the visa on which he travelled to Australia from Dubai.  The note records that a telephone call was made to the Applicant’s employer, Mr Yousif Banihammand, who confirmed that:

   -He, his wife, three daughters and twelve-year old son had Australian Tourist visas and intended to travel to Australia for ten days.

   -His son required assistance as a he was confined to a wheelchair.  The Applicant was officially employed as a cook but he also assisted the son on a daily basis, taking him to school, to swimming and assisting his mobility around the house.

   -He had not sponsored any other domestic staff to accompany the family on their holiday in Australia.

   42.Asked the name of his employer in Dubai the Applicant gave it as Yousif Abdullahisa.  Asked about the spelling of this name he referred to the UAE visa in his passport and amended his evidence by saying that the person’s name was Yousif Sulaimanisa.  I noted that the name of his employer given in his application for an Australian tourist visa was Yousif Banihammad.  He repeated that his employer’s name was Sulaimanisa.  I explained that there was information before the Tribunal indicating that Australian visa officials had telephoned Banihammad who had confirmed that the Applicant was employed by him as a cook and as a helper for his handicapped son.  The Applicant repeated that his employer’s name was Yousif Abdullah Sulaimanisa.  One day the employer told him he would not renew his visa when it expired.  He explained his political problems in Bangladesh and the employer decided to help him.  He researched the internet and newspapers to arrange for the Applicant to go to another country.  He tried a number of countries unsuccessfully and Australia was the last on his list.  He handled all the arrangements for the Applicant’s travel to Australia and came here with him.

   43.I noted that there was information on the file indication that a person named Yousif Abdalla Sula Banihammad had travelled to Australia on the same flight with the Applicant.  He said he did not know about this and only knew that his employer was Sulaimanisa.  I put to him that it seemed an unusual coincidence that this person, who had confirmed that the Applicant worked for him in Dubai, should been on the same flight to Australia.  The applicant repeated that he did not know about this.  He confirmed that he was employed as a cook, that his employer had a son and a daughter and that the son was confined to a wheelchair.  His employer’s wife and children had intended travelling with him to Australia but his wife became ill in Bangkok en route and he left the family there to come on to Australia.

   44.Asked what his employer had done after arriving in Australia the Applicant said they both stayed at a hotel.  He left a day later after contacting Bangladeshis in Sydney and his employer stayed on for three or four days before leaving.

   45.Asked why his employer would have gone to such lengths to help him the Applicant said it was because his employer knew about his problems in Bangladesh.  I asked what the point had been of his travelling to Australia with the Applicant.  He said he wanted to help.  He had arranged the visa and purchased his airline ticket.  If the Applicant had not met Bangladeshi people in Sydney his employer would have let him stay for two or more days.  Nothing that the Applicant was an adult who had received fourteen years of education, had run his own business and had previously travelled internationally I asked why he would have needed his employer to come with him to Australia.  He said his employer visited Australia and did some shopping while he was in Sydney.  He denied that this person was his agent.

   76.Having considered these claims I am not satisfied they are plausible.  I am not satisfied that the arrangement for the Applicant’s departure from Bangladesh can have been completed in so short a timeframe.  I am not satisfied that his travel to Dubai was not planned significantly earlier than the date of the claimed attack on him and the declaration of emergency rule by the caretaker government on 26 January 2007.  I am not satisfied that the Applicant left Bangladesh because he had suffered an attack at the hands of people sent to harm him by Anam Uddin or because he feared harm from Anam Uddin or the caretaker government. [sic]

7. The Appellant submitted that the effect of the departmental file note referred to by the Tribunal in para 23 was to call into question his credibility, having regard to the Tribunal’s reasons, and that he had not been afforded any opportunity to explain or meet that particular questioning of his credibility. The submission was that the information in the file note described in para 23 was adverse and should, therefore, have been the subject of an opportunity for explanation. The necessary element of this submission was that such an obligation was imposed on the Tribunal by s 424A of the Migration Act, and that the learned Federal Magistrate was in error in regarding that section as not being engaged.

8. The Minister’s oral submission in respect of ground 1 developed with consummate succinctness and fairness by Mr Johnson of counsel, a written submission made on behalf of the Minister in respect of that ground.  That submission was in these terms:

   The federal magistrate correctly dismissed that ground on at least one, and possibly two, bases.  The first (explicit) basis was that any information in the file note was not a “rejection, denial or undermining of the appellant’s claims” –

   - referring, in this regard, to paragraph 20 of the Federal Magistrate’s reasons for judgment - And then to continue the quote from the Minister’s submission:

   That is supported by SZBYR v the Minister for Immigration and Citizenship (2007) 23 ALR 609 at paragraph 17. The second appears to be a rejection of the appellant’s assumption (expressed by the federal magistrate at paragraph 21) that the information was used adversely against him. In any event, it is clear from the reasons given by the tribunal that the information in the file note was not part of the reason for affirming the delegate’s decision. The Minister for Immigration and Citizenship v SZLFX (2010) 238 CLR 507 at paragraph 25 confirms that information cannot attract the obligation under section 424A, subsection (1) unless it is information “which would”, not which “could” or “might” be the reason or part of the reason for affirming the decision under review. And SZLFX also confirms, at paragraph 24, that section 424A “depends on the tribunal’s ‘consideration’, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review”.

9. Read in isolation, paras 42 through to and including 45 might be thought to have an association with why the Tribunal came not to give credit, or afford or regard as plausible, the claim made by the Appellant.  More accurately, one might state that, read in isolation, those paragraphs might be thought to provide a basis upon which the Tribunal was not satisfied that the appellant was a person to whom, on the basis of his claim, Australia owed a protection obligation under the Refugee Convention.

10. However, the reasons of the Tribunal, like any other administrative decision‑maker, must not be read narrowly and with an eye for error:  see Minister for Immigration and Ethnic Affairs and Wu Shan Liang (1996) 185 CLR 259. Rather, the reasons must be read fairly and as a whole. Reading the Tribunal’s reasons in this fashion, as I apprehend the Federal Magistrate did, and particularly that part of the Tribunal’s reasons under the heading “Findings and Reasons” discloses that the tribunal did not in any adverse way make use of the information in the departmental file note referred to in para 23 of its reasons or, for that matter, responses given by the Appellant as reported in paras 42 through to and including 45.

11. The Tribunal’s reasons are fulsome as to the course of the hearing which the Tribunal conducted.  It is apparent that there were many other issues canvassed with the Appellant, apart from employment in Dubai, and that, having regard to the Tribunal’s findings and reasons, that it was responses given by the Appellant to other issues which proved influential in an assessment of his credibility.  I, thus, find myself in agreement with the way in which the learned Federal Magistrate disposed of this particular aspect of the judicial review challenge, essentially, on the basis put forward in the appeal by the Minister in his written submissions, the pertinent part of which I have already quoted.

12. Thus, I am not persuaded that there was any obligation on the part of the Tribunal arising from s 424A of the Act to afford the Appellant an opportunity to make submissions in writing.

13. Further, and if only out of an abundance of caution, and insofar as ground 1 might be thought to seek to raise some other more generalised procedural fairness obligation, it seems to me that the Tribunal did, insofar as matters relating to Dubai employment were concerned, offer an opportunity in the course of the hearing for explanations to be given.  Paragraphs 42 through to and including 45 are eloquent in this regard.  Further, and in any event, that particular aspect of the Appellant’s evidence does not seem to have been influential in the credibility assessment.

14. It would require a jaundiced, conspiratorial reading of the reasons, predicated upon an assumption that the Tribunal had been other than frank in disclosing why the credibility findings had been made, to regard those responses, as recorded in those paragraphs, as being telling as to credibility.  However, I approach ground 1, I do not see merit in it. 

15. Ground 2 concerns particular documents which, in copy form, were put to the Tribunal by the Appellant in the course of the hearing which the Tribunal conducted.  These supplemented earlier documents which had been given to the department.  The submission in respect of this ground made by the Appellant had a number of aspects to it.  One was that it was not open to the Tribunal, as I apprehended the submission, to treat the documents as false.  Another was that the Tribunal ought to have asked for originals, or at least afforded an opportunity to present originals. 

16. The Minister’s submission, again, enlarged upon a submission earlier put in writing concerning ground 2, which was in these terms:

    The second ground of appeal alleges that the federal magistrate erred in finding that there was no jurisdictional error in the tribunal failing to ask for and consider the originals of the documents referred to in the first ground. The federal magistrate rejected this argument at paragraphs 14 and 15, finding that the tribunal decided not to give weight to the documents, not because the originals were not provided, but because of the existence of document fraud in Bangladesh and the tribunal’s findings as to the appellant’s credibility. His Honour, referring to the tribunal’s decision record at paragraph 76, noted that the tribunal put to the appellant during the hearing that falsified documents were easily obtained in Bangladesh. His Honour went on to observe at paragraphs 16 and 17 that the country information itself fell within section 424A(3)(a) (and no breach of section 424AA would have been involved for the same reason). His Honour referred to SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at paragraphs 91 to 93, per Tracey and Foster JJ, from which special leave was refused.

    That submission gives fair voice to the reasons for judgment of the learned federal magistrate.  It also, in my opinion, contains the essence of why ground 2 cannot succeed.  It was not, on a reading of the Tribunal’s reasons, an absence of originals, which provided the foundation for the discounting of the documents which he lodged with the Tribunal in the course of the hearing.  Rather, the Tribunal formed particular views which it was entitled – not obliged, but entitled – to form concerning the appellant’s credibility.  Having so done, and against the background of a general body of information concerning the prevalence and availability of forged documents, it made a conclusion that the documents submitted were false, and false because of a variance between an account, which was implausible in oral evidence and the contents of the documents.

17. It was not for the Federal Magistrates Court to embark itself upon an assessment of whether the Appellant was to be believed, but rather whether that court had erred in regarding the basis upon which the Tribunal had discounted the documents as tainted by jurisdictional error.  The Federal Magistrates Court did not err in rebuffing the challenge made to the conclusions reached by the Tribunal in respect of the documents submitted by the Appellant in the course of the hearing before the Tribunal.  It is important to recall that findings as to credibility are par excellence findings of fact for the Tribunal to make. 

18. Here, there is nothing illogical or unreasonable in the sense of findings no reasonable person could make about the conclusions the Tribunal reached.  The absence of originals truly did not form part of the reasoning process of the Tribunal.  Further, and as the Minister has also highlighted in submissions, it is to be recalled that there was no general obligation on the Tribunal itself to ask for the originals of documents.  The Tribunal is primarily charged with the review of an administrative decision.  It does have inquisitorial powers but that does not mean that it is under a duty generally to inquire, see:  SZIAI v Minister for Immigration and Citizenship (2009) 83 ALJR 1123. Further, even assuming that there is an obligation arising in singular circumstances for the Tribunal to inquire in respect of a particular subject, the circumstances of this case do not have that quality about them.

19. Finally, and again as the Minister’s submission reminds, any reference by the Tribunal to an absence of an original is but a revelation of a thought process or appraisal, and thus not “information” for the purposes of s 424A of the Act: see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 and SZLFX v Minister for Immigration and Citizenship (2009) 238 CLR 507.

1. For these reasons, then, there is no merit in either of the grounds advanced.  The appeal must be dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:        4 March 2010