SZNSI v Minister for Immigration
[2009] FMCA 1027
•7 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNSI v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1027 |
| MIGRATION – VISA – Protection (Class XA) visa – application for review of Refugee Review Tribunal decision refusing to grant a Protection (Class XA) visa – citizen of Bangladesh claiming fear of persecution on the basis of political opinion – credibility – no jurisdictional error. PRACTICE & PROCEDURE – Undesirability of amended applications being filed in court on the day of the hearing – directions for hearing should be observed – whether adjournment should be granted. |
| Migration Act 1958 (Cth) ss.424A, 424AA, 425, 474 |
| SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515 |
| Applicant: | SZNSI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1546 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 October 2009 |
| Date of Last Submission: | 7 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 7 October 2009 |
REPRESENTATION
| Applicant: | Appeared In Person |
| Solicitor for the Respondent: | Mr. Johnson |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,900.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1546 of 2009
| SZNSI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application to review a decision of the Refugee Review Tribunal that was made on 2nd June 2009. I note that a corrigendum to the Tribunal decision was issued on 30th June 2009. That corrigendum was issued to make one correction which clearly related to a clerical error.
In paragraph 81 of the decision, the Tribunal had, clearly inadvertently, referred to Lebanon when it was obvious from the decision that the Applicant was claiming a well-founded fear of persecution in his country of nationality, namely, Bangladesh. Accordingly, the corrigendum required the deletion of the word “Lebanon” and the substitution of the word “Bangladesh.”
I would comment that correction of a clerical error is an appropriate function for the use of the corrigendum. It is, of course, no substitute for proper proofreading of a decision in the first place. In my view, the issue of the corrigendum does not disclose any error that could in any way be said to be a jurisdictional error.
In its decision of 2nd June 2009, the Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant relies on an amended application which was filed in Court on the morning of the hearing. The application was before the Court on 27th July 2009, at which stage directions were made to get this matter ready for hearing. Those directions allowed the Applicant until 15th September 2009 to file and serve any amended application. The directions also required the Applicant to file and serve written legal submissions and list of authorities 14 days before the hearing, and required the First Respondent to file and serve legal submissions and list of authorities seven days before the hearing date.
The First respondent in fact filed a written outline of submissions on 29th September 2009, which is just over seven days prior to the hearing. At that stage, the amended application had not been filed, and the written outline of submissions addressed the grounds that were set out in the original application.
The amended application sets out three completely different grounds, although in fairness, they relate to the same subject matter and could be described as three parts of the one general ground. Nevertheless, they marked a complete departure from the grounds in the original application, and I understand that the Applicant had legal advice from a lawyer who was not the lawyer who provided advice from the RRT Legal Panel scheme.
The concern, of course, is that the Respondent was taken by surprise, and I stood the matter down so that Mr Johnson, who appeared for the First Respondent, could obtain instructions.
The Applicant told the Court that he had faxed the amended application to the Court, and indeed he did, because that fax has now been made available. I note that the stamp at the bottom of the fax on the cover page indicates that it was received at 22:59pm on 6th October 2009, and was in fact printed at 23:01pm on 6th October 2009. In other words, it came out of the fax machine at one minute past 11 last night.
Quite clearly, the lawyers for the First Respondent could not have been aware of this document until this morning. Nevertheless, I was disposed to grant leave to file the amended application, but had there been an application for adjournment on the part of the Respondent’s lawyers, I would have given favourable consideration to an adjournment. However, the First Respondent elected to proceed.
The Applicant also sought to file in Court a copy of the transcript of the Tribunal hearing, which took place on 26th March 2009. It appears that that transcript was prepared on 4th October 2009. Again, that is outside the time prescribed in the directions. I admitted the transcript into evidence, but as I said before, had there been an application for an adjournment, I would have given favourable consideration to it, because the Court has made it clear on many occasions that the directions that are made at the First Court Date are usually orders made by consent and indicate an agreement between the parties and the Court as to an appropriate timetable for getting the matter ready for hearing.
My colleagues and I have noticed a disturbing number of last-minute amended applications, sometimes accompanied by written outlines of submissions. In most cases, the Minister’s lawyers have been prepared to deal with them on the spot, but the last-minute filing of amended applications and documents is a practice to be deprecated and will not receive the support of the Court. The directions made on a First Court Date are not an expression of a pious hope or some vague belief as to an approximate time when things might be made ready. They are Court orders, made by consent.
The fact that they are made by consent does not make them any less Court orders than those which are imposed unilaterally by the Court. The Court expects them to be followed and if they are not followed, then the party who is at fault can expect to suffer a disadvantage as a result. Whether that disadvantage is accompanied by an order for costs or some other sanction will be a matter to be decided on a case-by-case basis.
Nevertheless, after a reasonably short adjournment on the morning to obtain instructions, the First Respondent has been ready to meet the amended application.
Background
The background to this matter is that the Applicant is a citizen of Bangladesh who arrived in this country on 14th September 2008. He applied for a Protection (Class XA) visa on 15th October 2008, in which he claimed a fear of persecution on the basis of his political opinion. In paragraph 41 of his application for a protection visa, the Applicant in reply to the question “Why did you leave that country?” said:
Due to my political affiliation with the Bangladesh Awami League and finally I was forced to leave the country after arrival of this government.[1]
As to his fear as to what may happen to him if he were to return, he said:
I was targeted by the RAB and other military forces in the country to arrest me. If I return home, I will be persecuted.[2]
[1] See Court Book at page 18.
[2] See Court Book at page 19.
The Department of Immigration and Citizenship wrote to the Applicant on 31st October 2008, inviting him to attend an interview with a Departmental officer, to take place on Monday 1st December 2008.[3] The Applicant provided a statement in support of his claim, in which he set out in some detail his political involvement, commencing with his involvement in student politics. In that statement, he set out how he was attacked on a number of occasions by his political opponents in 2002. He also claimed to have been targeted by the new caretaker government in Bangladesh in 2007. He claims in particular that four people who were sacked as a result of an email that he wrote had opposed him, and he feared harm from them. He said:
There is no position for me to live in Bangladesh. These people are so powerful.[4]
[3] See Court Book at pages 36-37.
[4] See Court Book at pages 43-45.
The Applicant provided an additional statement and number of items of Independent Country Information, as well as a written submission from his migration agent.[5]
[5] See Court Book at pages 82-83.
A delegate of the Minister for Immigration and Citizenship refused the application for a protection visa on 13th January 2009. The Applicant was advised by registered post on 19th January 2009.[6]
[6] See Court Book at page 89.
The delegate noted that the Applicant had provided little documentary or other evidence in support of his claims, and went on to say:
I do not accept that if the applicant has been so deeply involved in the Chattra and Awami Leagues and Bangladeshi politics, over such an extended period of time (approximately 22 years) that he has not provided even a single piece of corroborative documentary evidence. Whilst I accept that it is not always possible for an applicant to provide such corroborative materials, I believe that in the circumstances in this case, the applicant has had ample opportunity to have gathered such material to substantiate, at least in part, the claims which he is now making.[7]
[7] See Court Book at pages 103-104.
The delegate also had comments to make about the credibility of the Applicant’s evidence and claims. The delegate stated:
I also find that the applicant’s main claim for his current fear of persecution lacking in credibility and substance.
Further, on that same page, the delegate said:
I also take into account in making my decision the applicant’s responses at the interview of 1 December 2008. The applicant maintained at interview that he came to Australia to flee persecution in Bangladesh however his responses were without veracity or substance.[8]
[8] See Court Book at page 104.
Application to the Refugee Review Tribunal
After the Applicant’s application for a protection visa was refused, he applied to the Refugee Review Tribunal on 13th February 2009 for review of that decision.
The Tribunal wrote to him on 24th February 2009 inviting him to attend a hearing scheduled to take place on 26th March 2009. The Applicant attended that hearing on 26th March 2009.
The hearing was recorded, as I understand all hearings of the Refugee Review Tribunal to be, and the Applicant received copies of the compact disc or compact discs containing the record of the tribunal hearing. On the hearing record, the Tribunal officer has written the words:
Applicant will wait for copies of CDs.[9]
[9] See Court Book at page 118.
The Applicant had provided documentary evidence to the Tribunal at the Tribunal hearing by way of a number of items downloaded from the internet, and he also provided his Bangladeshi passport.
The Tribunal made its decision on 2nd June 2009, and a copy of the decision was posted to the Applicant that day. The Tribunal affirmed the decision not to grant the Applicant Protection (Class XA) visa.
In its decision, the Tribunal found that the Applicant was a citizen of Bangladesh, as evidenced by the copy of the passport which he provided. The Tribunal did not, however, find the Applicant to be a credible witness. The Tribunal described the Applicant in this way:
The Tribunal found the applicant to be evasive in giving evidence at the hearing. He avoided giving answers to questions from the Tribunal; regularly attempted to speak over the Tribunal; gave convoluted and diversionary answers to questions. After he ceased using the notes he had with him, his answers became hesitant and confused.[10]
[10] See Court Book at page 189.
The Tribunal found, at [95], that the Applicant was not a credible or truthful witness, and set out in [83] through to [94] the reasons why it made that finding. In [95], the Tribunal said:
The nature and extent of the contradictions and omissions in the applicant’s evidence, which have not been adequately or even logically explained by the applicant, together with his evasiveness, confused evidence and hesitancy at the Tribunal hearing, leads the Tribunal to find that he is not a credible or truthful witness. The Tribunal is therefore not prepared to rely on the applicant’s evidence alone in deciding on the genuineness of his claims for protection.
The Tribunal also made this statement at [96], which is relevant to the grounds contained in the amended application filed in Court today:
The applicant has not availed himself of the opportunity to provide a submission following the hearing and has not provided any further evidence. [11]
[11] See Court Book at page 191.
The Tribunal considered the Applicant’s substantive claims but dismissed them on the basis of its adverse credibility finding at [97] to [104] inclusive.[12]
[12] See Court Book at pages 191-192.
Application for Judicial Review
The Applicant commenced proceedings in this Court by filing an application and an affidavit in support on 29th June 2009. He later filed a Notice of a Change of Address for Service, which was filed in Court on the First Court Date.
It was at the hearing this morning that the Applicant brought the Court’s attention to his amended application and the transcript of the Tribunal hearing upon which he seeks to rely. I have granted leave to file in Court the amended application and I have admitted the transcript of the Tribunal hearing into evidence, although I note that it is not annexed to an affidavit.
Mr Johnson, however, who appeared for the Minister, did not object to the transcript in that form, and it is obvious that it is a transcript of the Tribunal hearing.
In the amended application, the Applicant seeks writs of certiorari, mandamus, and prohibition. It has been explained that in order to make such orders, the Court must be satisfied that the Tribunal decision is affected by jurisdictional error. If it is not affected by jurisdictional error, then, of course, it is a privative clause decision, and under s.474 of the Migration Act, it would be final and conclusive and not subject to orders in the nature of certiorari, mandamus, or prohibition.
In the amended application, there are three grounds. They are as follows:
1) The Second Respondent made jurisdictional error by inviting the Applicant to make a submission in writing in English within 11 days of the hearing, without making any inquiry of the Applicant as to his capacity to do this.
2) The Second Respondent made jurisdictional error by requiring the Applicant to provide a written response in English to the issues arising in relation to the review and, where the Second Respondent:
i) did not allow the Applicant sufficient time to provide the statement in English; and
ii) did not provide sufficient information to an unrepresented Applicant to enable him to make a comprehensive and sensible reply.
3) The Second Respondent made jurisdictional error by depriving the Applicant of the hearing to which he was entitled under section 425 of the Migration Act, by orally stating (at p46 to 48 of the transcript) that the Applicant was required to respond in writing to 17 separate matters in respect of which the Applicant was given no proper notice other than the Second Respondent requiring him to listen as the matters were stated at length.
Those are the grounds.
The first two grounds clearly relate to the Tribunal offering the Applicant an opportunity to make a post-hearing submission in writing following the procedure set out in s.424AA of the Migration Act. The third ground arises out of that same situation, but alleges a breach of s.425 of the Act by depriving the Applicant of the hearing to which he was entitled, or, perhaps more properly, a fair hearing. These grounds are opposed by Mr Johnson, who appeared for the Minister.
In order to consider the submissions, it is appropriate to read on to the record the discussions between the Tribunal and the Applicant at pages 46 to 48 of the transcript. The Applicant was offered the opportunity to make an oral submission to the Court, but as he told the Court, he is not a lawyer and does not have a barrister representing him, and it is not possible for him to make submissions on the particular legal points raised in the amended application.
In my view, that is perfectly understandable, and also, in my view, as I told the Applicant at the hearing, the grounds in the amended application are clear as to the points which the Applicant seeks to have argued.
At the Tribunal hearing, towards the end of the hearing, the Tribunal Member then raised issues with the Applicant that she offered the Applicant the opportunity to make submissions on. The Tribunal sets out the discussion as follows:
MEMBER:Now, there are a number of issues that I have raised with you where I am concerned about contradictions in your evidence, or omissions in your evidence.
Now, I would like you to listen to me without speaking until I am finished.
And if you wish to respond when I am finished you can, or I can give you a short time to put a response in writing.
Now, one issue was the conflict about the dates of your marriage.
Another was your failure to include the details of your wife on your application form.
Right. The other is the lack of detail in your application form about your various addresses.
Including the fact that you had a home and lived in Pabna for many years.
There is the fact that you have travelled to Australia in 2003, while at a time when you claimed to have been threatened and at risk of harm, but did not claim protection on that occasion.
There is the conflict between the, statement where you say you paid money to an army officer to keep you safe at that time, whereas now you say that you paid the money to the BNP MP.
Now the fact that you have attempted on three previous occasions, at least that you’ve told me about, to migrate to Australia and were unsuccessful, may indicate that you are now manufacturing claims for protection in order to finally succeed in staying in Australia.
There was no mention in the statement about moving to a remote area in January 2008.
There is no mention in your statement of any of the events that you claim occurred in 2008 in Bangladesh, when you were attacked, when you had to flee, when you had to move around from place to place, where you were questioned by the police who were in plain clothes. None of those things were mentioned in your application.
And in fact, those things were only mentioned, as far as I know, for the first time today.
There was the conflict between the evidence that you’ve given today and what you wrote in your statement about the positions you did or did not hold in the Chatra League and the Awami League.
THE INTERPRETER: Can you repeat that last line?
MEMBER:There’s the conflict in the evidence that you’ve given me today about the roles that you held in the Chatra League and the Awami League as against the statement that you wrote.
There is the conflict in the dates that you say your house was looted.
And there is also now, the evidence that you’ve given, which you have not mentioned before, that in fact that happened on several occasions.
You did not mention that you have been harmed a number of times in Bangladesh in your statement.
Now, all those issues are important because, as I explained earlier, what I have to do is to assess whether your claims about what has happened in Bangladesh and your claims for protection are genuine.
Now these conflicts and omissions might firstly lead me to conclude that you are not a credible or truthful witness.
And they may also lead me to believe that your claims are not genuine, and that you are simply manufacturing them now in order to strengthen or invent claims for protection.
Now, I do not expect, you’ve responded to a number of those issues already as we went through.
And I’ve taken a note of those.
So you do not have to respond now, and if you want to add anything to what you have already told me on those issues, I can give you a week or so to prepare a written response.
APPLICANT: Actually, I need more than a week. I need two months time.
MEMBER:No unfortunately we can’t allow that period of time, I am simply giving you time, in order to write me a response to the things that we discussed today.
And a week would be more than adequate, because I am quite happy to accept the facts.
APPLICANT: I will not be able to collect the papers from Bangladesh.
MEMBER:Well you’ve had some considerable time to obtain whatever documents you need, and you did indicate that you were going to do so in your original application. So I am afraid that a week is the most that I can give you.[13]
[13] See Transcript at pages 46 – 48.
A discussion took place as to whether a week would be sufficient, and the Member was obdurate that she would not allow a lengthier period than a week. However, a little later in the transcript, the Member relaxed that position slightly, and said:
MEMBER:Alright, so you need to get me anything else that you are able, including any statement, written statement from yourself, which should be in English, translated into English.
You should get that to me by the 1st April. I will tell you what, I’ll make that the following Monday, because I will not have a chance to look at it, so the following Monday is the 6th April, so it is a little over a week.
There’s your passport. Thank you.
APPLICANT: 6th April I will not be able to come and I will not be able to…
MEMBER:No, no, no, you do not come, you do not have to come back here.
What I’m wanting is you, if you wish, to write an explanation of why there were contradictions and problems with what you said to the Department in your statement and your application and what you have told me.
And you have already given me some explanation today. I’m simply giving you more time to make a more detailed explanation in writing if you wish.[14]
[14] See transcript at page 51.
Those then are the grounds in the amended application and the exchange in the Tribunal upon which those grounds are based.
It is, perhaps, of minor concern that whilst ground three of the amended application refers to the Applicant being required to respond in writing to 17 separate matters my own reading of the list leads me of the view to 15 at most, but that is a relatively minor quibble.
Mr Johnson, who appears for the Minister, dealt with grounds one and two, which relate to s.424AA of the Migration Act or the procedure to be followed on the basis that there were no obligations under either s.424AA or, more importantly, s.424A of the Migration Act, that would require the Member to give the Applicant an opportunity to make submissions in writing about those points.
The submission is that unless there is a s.424A obligation there is no obligation or need to follow the procedure at the hearing set out in s.424AA of the Act. What is submitted is that all of the material dealt with in this way arises from the Applicant’s own evidence to the Tribunal or from inconsistencies within that evidence. This does not qualify as information for the purpose of s.424A because consistencies are not information, or if it is information that comes from the Applicant’s evidence to the Tribunal then it is excluded by the operation of s.424A(3)(b) of the Migration Act.
In particular, the Court was referred to the decision of the High of Australia in SZBYR v Minister for Immigration and Citizenship[15], particularly, I would believe, at paragraphs [13] to [21] inclusive.
[15] [2007] HCA 26
In respect of ground three, which is the s.425 point, Mr Johnson submitted on behalf of the Minister that, first of all, the Tribunal was not requiring the Applicant to make a written submission, but was giving him the opportunity to do so if he wished. Indeed, in the transcript the words “if you wish” are used twice, once in each of the final two sentences.[16]
[16] See Transcript at page 51.
I am also being referred to the decision of the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[17]. It was submitted that there is nothing in the High Court decision in SZBEL that requires a Tribunal to invite further submissions from the Applicant in order to comply with the fair hearing requirement of s.425 of the Migration Act. Especially if the Applicant was given a meaningful chance, as it is submitted that he was, to deal with the Tribunal’s concerns at the hearing.
[17] [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515
It was also submitted that the issue upon which the Tribunal decision was made was that of its dissatisfaction with the Applicant’s credibility. That was the issue that, essentially, motivated the decision of the delegate.[18]
[18] See Court Book at page 99.
Considerations
Dealing with the grounds in the amended application, the first ground claims jurisdictional error by inviting the Applicant to make a submission in writing in English within 11 days of the hearing without making any inquiry of the Applicant as to his capacity to do so.
The matter should not be considered in a vacuum. It certainly appears that the Tribunal was attempting to follow the procedure set out in s.424AA of the Migration Act. That procedure sets out:
Section 424AA - Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
It is established that s.424AA, if it is breached, does not constitute a jurisdictional error. All that a breach of s.424AA does (or a failure to comply with s.424AA) is that the Tribunal then cannot take advantage of the matters set out in subsection (2A) of section 424A of the Act.
Section 424AA sets out a procedure which, if followed, allows the Tribunal to give oral particulars at a hearing rather than follow the strict procedure set out in sub-section 424A(1) of the Act. But neither s.424A nor s.424AA apply if what is being referred to is not information within the meaning of s.424A or, if it is information that comes within the exceptions set out in sub-section 424A(3) of the Act.
The High Court, in SZBYR, said, at [21]:
Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the Tribunal.
In my view, the fact that the matters referred to by the Tribunal do not lead to a s.424 obligation is an effective answer to the matters raised in ground 2. It is clear from the decision in SZBYR that, as their Honours said at [17]:
The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act.
The High Court went on to look at the appropriate criterion in sub-section 36(1) of the Act, and said:
The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
Importantly, the High Court also stated at [18]:
Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s.424A(1).
Their Honours went on to say in that same paragraph:
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
My reading of the matters set out by the Tribunal at pages 46 to 48 of the Transcript indicate that all of the matters come within those areas to which the High Court referred and do not constitute information as contemplated in sub-section 424A(1) of the Act.
It may well be argued that grounds 1 and 2 also reflect on the claim that the Applicant was not given a fair hearing under the provisions of s.425. Ground 3 certainly makes that point, and I propose to consider the argument of a breach of s.425 in looking at all three of the grounds because, as I said earlier, one way that the grounds may be considered is not as three separate grounds, but as one ground divided into three sub-grounds.
Ground 3 says that the Tribunal made jurisdictional error by depriving the Applicant of the hearing to which he was entitled under s.425 of the Migration Act by orally stating that the Applicant was required to respond in writing to 17 separate matters in respect of which the Applicant was given no proper notice other than the Second Respondent requiring him to listen as the matters were stated at length.
The Tribunal invited the Applicant to a hearing, as it was required to do under s.425 of the Act because it was not satisfied on the material before it that it could make a decision favourable to the Applicant just on that material. Therefore it had to have a hearing. It invited the Applicant to a hearing and it provided him with an interpreter in the language of his choice.
The big issue at the hearing was the credibility of the Applicant’s account of the persecution, for political reasons, to which he said he had been persecuted in Bangladesh. It was the issue of credibility that had been the reason for the delegate to reject the Applicant’s application for a visa. It was clearly the issue for the Applicant to feel at the hearing before the Tribunal. It was issues of credibility and inconsistencies in his account to the Tribunal that persuaded the Tribunal to offer him the opportunity to respond by means of a post-hearing submission in writing.
Now it could be argued that the time limit imposed by the Tribunal was unreasonably narrow. That is certainly the Applicant’s argument in the amended application, that he was given too little time, that the Tribunal did not inquire as to his ability (a) to understand what was required of him and (b) to provide a statement in reply in English.
Indeed, the timetable set by the Tribunal was relatively tight, from 26th March 2009 to 6th April 2009. It is difficult to see why, when the Tribunal decision was not made until 2nd June 2009. If the Tribunal was going to take that length of time to prepare the decision one could argue that another week or two would not have made any difference as far as the Tribunal was concerned. However, there was no obligation on the Tribunal to give the Applicant any opportunity to make a post-hearing submission.
As to the fact that the Applicant only had an account of all the things that the Tribunal wanted his comments on and whether they are 14, 15 or 17 is irrelevant, it should be noted that the Tribunal hearing record shows that the Applicant was to wait to pick up the compact disc or discs setting out the recording of the Tribunal hearing. So he had that material that day. It is also significant that the Applicant did not make any written submission to the Tribunal, whether it was before 6th April 2009 or after.
As the Tribunal noted at [96]:
The applicant has not availed himself of the opportunity to provide a submission following the hearing, and has not provided any further evidence.[19]
This is not a case where an applicant put in a submission two weeks late but before the decision was made and the Tribunal ignored it. The Applicant did not put in a submission. In my view, there is no breach of s.425 of the Migration Act.
[19] See Court Book at page 191.
That said, in circumstances where an obligation under sub-section 424A(1) of the Migration Act would apply, and the Tribunal considers following the procedures set out in s.424AA of the Migration Act, if there is a lengthy list of matters upon which the Tribunal seeks, or upon which the Tribunal offers the opportunity to make a written submission, caution may direct, in the appropriate circumstances, that a letter should be sent to the Applicant couched in the terms required by s.424A(1) of the Migration Act.
This is not such a case but in a case where such an obligation does arise, it may well be an appropriate procedure. However, in the matter before me, I am satisfied that there is no breach of s.424A or s.425 of the Migration Act.
Conclusion
I am satisfied that there is no jurisdictional error. Accordingly, the Tribunal decision is a privative clause decision as defined by s.474 of the Migration Act and therefore it is not subject to orders in the nature of certiorari or prohibition or mandamus, as the Applicant seeks.
Accordingly the application will be dismissed.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 22 October 2009
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