SZOFK v Minister for Immigration
[2010] FMCA 447
•17 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOFK & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 447 |
| MIGRATION – RRT decision – Bangladeshi fashion designer claiming persecution by Islamic extremists – claims and corroborative evidence disbelieved by Tribunal – reliance on information from DFAT inquiries in Dhaka – no jurisdictional error identified – application dismissed. |
| Migration Act 1958 (Cth), ss.424, 424A, 424AA |
| Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489 Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51 Re RRT & Anor; Ex Parte H (2001) 179 ALR 425 SZDZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1782 SZJRW v Minister for Immigration & Citizenship [2008] FCA 959 SZLPO v Minister for Immigration & Citizenship [2009] FCAFC 51 SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 SZMGS v Minister for Immigration & Citizenship [2009] FCA 168 |
| First Applicant: | SZOFK |
| Second Applicant: | SZOFL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 507 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 17 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 17 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Mr P Reynolds |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 507 of 2010
| SZOFK |
First Applicant
| SZOFL |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicants are a husband and wife who came to Australia in February 2009 on temporary business visas. They are nationals of Bangladesh and had both been employed in a textile company in Dhaka for some years. The wife was employed as a fashion designer, and the husband was employed as an administration manager. Their travel was arranged to allow the wife to attend a multicultural festival in Canberra. Shortly after they arrived, they lodged an application for a protection visa on 17 February 2009.
The application did not identify any person who assisted them, and attached various documents supporting claims to fear persecution if they returned to Bangladesh. The refugee claims were presented as those of the wife arising from her gender and occupation. In short, she claimed to have been “targeted by some Islamic extremist” on the grounds that she was “the person who is presenting the new styles and attractive designs to the young generations of the society”. She claimed that this offended members of Islamic extremist groups who believe that women should cover themselves with traditional Islamic clothing.
She claimed that two incidents had occurred in which she had been threatened with violence because of her occupation. The first was in July 2006, and she claimed to have been presented with a gun by four to five Islamic extremists when she was waiting at a bus stop to return home from work. She said that she followed them at their demand, and “they tie my eyes and took me in a house”. They kicked her and punched her and their leader said to her that “this is the last warning for me. From the next day, I must put on the Islamic traditional clothes”. She said she was left at a bus stop after threats were also made against her and her husband and sons. She said she did not report the kidnapping to the police, because of threats that were made to her.
She eventually returned to work, and nothing further happened to her until immediately before she was about to travel to Australia. She said that she attended her office on the day before her intended departure, and while she was returning home in a rickshaw “some Islamic extremist came in front of me and said ‘Their leader is calling me’”. They “just took me down from the rickshaw and started kicking and punching”. They threatened to kill her and her husband and sons, but “some of the people came and took me to the hospital” She said she was under treatment for four days before being released, and she made a complaint to the police station before travelling to Australia. She claimed that further threats were made to kill her and her family due to her “refusal of wearing Islamic traditional clothes”. She said she could not return to her country for that reason.
Documents confirming the employment of her and her husband signed by the chairman of the textile company were presented to the Department, as were some additional documents from persons in Australia who supported the refugee claim. Medical records indicating a hospital treatment were also presented, and also a prescription given to the applicant by a psychiatrist in Dhaka a few days before the second incident. Some general country information concerning violence involving women in Bangladesh was submitted to the Department and later also to the Tribunal.
A delegate interviewed the applicant wife on 15 April 2009, and the delegate then made a decision refusing the protection visa applications on 14 May 2009. The delegate said that he found the applicant’s claim to have been subjected to harms and threats by Muslim extremists on the day before she was due to leave her country “to be fabricated in order to enhance the chance to obtain protection in Australia”. The delegate said there was nothing in the country information available to the Department to confirm that fashion designers, in particular, have been targeted in Dhaka. The delegate considered that the applicant would not be denied state protection if she felt threatened by those she claimed to fear.
The applicants applied to the Tribunal for review of the delegate's decision, and throughout the review they were assisted by a solicitor, Mr Bitel. He presented further corroborative documents, including a statement from a journalist friend and newspaper reports to establish that there were other incidents of fashion designers being threatened and kidnapped. The material included a report in “The Daily Joyovery” that the chairman of the textile company:
…is being harassed and threatened by the militants for the last 3 months. Militants demanded for stopping the activities of fashion designers and models and hand over of fashion designers to them who fled away overseas. Militants gave his company 3 days ultimatum for not meeting their demand. Otherwise they threatened to blow up that office with bomb. At present the chairman of that company is hiding, closing down the company. In the country, now people are very irritated by the oppression of the Islamist militants. They want to establish Islamic rule in the country. The present government has failed to control them.
A written submission by Mr Bitel to the Tribunal submitted that the applicant wife had a well-founded fear of persecution on the grounds of her membership of a particular social group. It said:
We submit she fits into one or all of the following social groups: Women in Bangladesh, Women who are victims of general related violence or female fashion designers, in the context where the state provides such persons with no effective protection.
The two applicants and Mr Bitel attended a series of hearings of the Tribunal. It first was held on the 24 August 2009 and lasted for about one and a half hours, and then was adjourned to 2 September 2009 where it continued for another two hours.
Shortly before the second hearing, a report from a consultant psychologist was submitted to the Tribunal. It arrived at diagnoses of major depressive disorder, general anxiety disorder and post traumatic stress disorder suffered by the applicant wife. It was based upon the experiences which she recounted as having suffered in Bangladesh and symptoms she displayed.
The Tribunal then arranged for the Dhaka post of the Department of Foreign Affairs and Trade to make some inquiries in Dhaka in relation to the newspaper reports presented by the applicants. The outcome of these inquiries and other matters of concern to the Tribunal were put to the applicants at a third hearing. It was held on 15 December 2009, and was attended by the two applicants and Mr Bitel.
The same matters were again put to the applicants for comment in a letter from the Tribunal dated 23 December 2009. It commenced with the following two paragraphs:
I am writing about the applications for review made by you in relation to decisions to refuse to grant protection (Class XA) visas.
You are invited to comment on or respond to information that the Tribunal considers would, subject to any comments or response you make, be the reason, or part of the reason, for affirming the decisions that are under review.
There were then particulars of information listed in dot form in relation to five topics, with statements as to why the information in relation to each topic was relevant, and warnings as to the adverse findings it might lead the Tribunal to make. I shall not extract the whole of the contents of the letter. It raised for comment some matters which the Tribunal was clearly not obliged to put to the applicants under s.424A(1) of the Migration Act, being conclusions which might be drawn from inconsistencies in the applicants’ evidence given at various times, and other possible defects in that evidence.
However, the letter also included information which was required to be the subject of a written invitation under s.424A(1), being some of the information obtained from the DFAT officer in Dhaka. Perhaps that information had already been sufficiently put to the applicants orally at the hearing, so as to satisfy the requirements of s.424AA and avoid the need for a written invitation (see s.424A(2A) and SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415). However, I need not consider the adequacy of what happened at the hearing in terms of s.424AA, since I am satisfied that the letter sufficiently complied with the requirements of s.424A(1) and (2) in so far as they were applicable.
The topics which the letter dealt with were:
i)Inconsistencies in the applicant’s evidence about how she had identified the persons who had attacked her in 2006 and 2009;
ii)The Tribunal's difficulty in relying upon the newspaper reports, in circumstances where DFAT had advised that the two newspapers in which the articles were said to have appeared were unknown to the Dhaka post and a number of journalist contacts, and were “most likely very small and not very credible”;
iii)Some inconsistencies within the applicant’s evidence and inconsistency with other information, as to whether the applicant was the only fashion designer who had encountered problems with Muslim extremists;
iv)The delay in the applicant making a claim that she had been followed for about a month before being attacked, both in 2006 and 2009;
v)An apparent inconsistency of information from the DFAT officer, with the purported newspaper articles and claims that the textile company had closed down and its chairman had gone in to hiding after it had been threatened and harassed by Islamic Muslims. The officer reported that the company had moved premises as a result of the expiry of its lease, that its location was known to its former neighbours, and that the managing director had been contactable on his published mobile phone number. When contacted by the DFAT officer, he was said to have “confirmed that [the company] had never faced any threats”.
The latter information was of particular pertinence to assessing the credibility of the applicants’ claims, and its relevance was explained to the applicants in the letter as follows:
This information is relevant as it may lead the Tribunal to find that you have given information about the closure of [the textile company], which is not consistent with information given to DFAT. The Tribunal may not accept that [the company] has closed down or relocated because the chairman was threatened by Islamic militants. The Tribunal might also find that the Chairman, (named), has maintained the same mobile phone number from at least January 2009 to December 2009, and this may also lead the Tribunal to not accept that he was out of contact or in hiding during 2009. The Tribunal might also find that [the company] has not been threatened by Islamic terrorists and, when combined with other information, the Tribunal may find that you have fabricated your claims that [the company] was threatened by Islamic militants and that you were attacked by Islamic militants because you are a fashion designer.
If the Tribunal makes these findings the Tribunal might affirm the decision to refuse the grant of the visa.
You are invited to give comments on or respond to the above information in writing.
Further correspondence between Mr Bitel and the Tribunal occurred as to the deadline for providing this information. Ultimately, Mr Bitel forwarded a response to the Tribunal on 20 January 2010. The enclosed documents included a response signed by the applicant wife. This appears to have understood the grouping of topics and the contentions put to her by the Tribunal’s letter, and to have responded relevantly to them. Her response included some further newspaper articles and two letters purportedly signed by the chairman of the textile company. These asserted that, in fact, he had been threatened and was hiding, that “I have received lots of complaints about [the applicant wife] and other women’s that some extremist people harass them while coming to the office”, that she had been attacked while she was about to fly to Australia, and that he had received threats subsequently.
The Tribunal made a decision on 11 February 2010, affirming the delegate’s decision. Its statement of reasons set out in detail the evidence before it, including a full description of the evidence taken at the interview with the Department, and the three hearings held by the Tribunal. I have no reason not to accept these narrations as accurate. It also recounted the correspondence between the Tribunal and Mr Bitel. It referred to country information about the relevant situation in Bangladesh, including the protection of women and the status of religious freedom, and the activities of Islamist militant groups. It cited the opinion of the Canadian High Commission given in July 2005 and quoted in a UK Home Office Country of Origin report dated 11 August 2009, that “many false documents exist” and that:
The content of genuine documents is often questionable…we often hear people saying that it is normal to provide incorrect information for a third party, because it is considered a duty to help ‘co-nationals/brothers’ to immigrate to a so-called ‘rich’ country.
In its findings and reasons, the Tribunal accepted that the applicant was a fashion designer, who had been employed in a textile company until she came to Australia. It then explained reasons why it did not accept her claims that she had been attacked in 2006 and again in January 2009 by extremist terrorists because she was a fashion designer, nor that she or her sons had been followed by Islamic terrorists, nor that her former employer had been forced by threats from Islamic extremists to close or relocate and that its chairman was in hiding.
The Tribunal explained those conclusions, first by examining the conflicting evidence as to the present situation of the textile company and its chairman. It gave detailed reasons for not accepting the recent letters, purportedly signed by the chairman, which had been presented to the Tribunal in response to its invitation for comments.
The Tribunal then assessed the details of the applicant wife’s claims in relation to the two incidents of violence. It found, generally, the claims to have been inconsistent with country information. It said:
When the DFAT advice was put to the first named applicant, she confirmed that the ready made garment industry in Bangladesh is large and there are many fashion designers. She gave evidence that her company alone employed 9 or 10 fashion designers. She does not claim to be a high profile or a well known fashion designer and she has not provided any explanation as to why she, in particular, would have been targeted except for the reasons that she wears clothes that are not acceptable to Islamic extremists, she promotes the wearing of such clothes and she motivates models. The Tribunal is not satisfied that these reasons account for why the applicant has been singled out by Islamic extremists.
The Tribunal also found specific aspects of her narrative not to be credible. It identified a number of apparently cogent reasons for doubting the circumstances that she claimed had occurred. The Tribunal found it improbable that a group of Islamic extremists would have been watching the applicant in the manner that she suggested, in 2006 and again in 2009, and also that the same group would have made two such attacks separated by two and a half years of lack of interest in her. It also gave other reasons, which appear to me to have been rational, for disbelieving the applicants’ claims.
The Tribunal did not accept as reliable the information presented by the applicants suggesting the disappearance of two other fashion designers.
It said it had considered the medical reports and evidence about the health of the applicant wife. It said that it was:
of the view that the first named applicant’s medical conditions do not account for her failure to mention the disappearance of a friend and fellow fashion designer, which she had claimed to have occurred in other evidence.
Later, it addressed generally the effect of the medical evidence and concluded that the reports:
do not overcome the serious adverse findings that the Tribunal has made. The Tribunal does not accept that the first named applicant and her family were attacked or threatened by Islamic extremists.
The Tribunal said that it had formed a positive view that the newspaper articles regarding the alleged disappearance of the other two fellow workers “have been fabricated”. The Tribunal accepted that the Australian witnesses believed what the applicants had told them, but said that it had not found the applicants to be credible and did not accept their evidence for that reason.
At the conclusion of its reasons, the Tribunal discussed the situation of the applicant wife if she returned to Bangladesh, as a member of particular social groups which had been claimed, but who had not suffered the past persecution claimed. It considered the information about the position of women in Bangladesh and incidents of “vigilantism against women”. It concluded:
The first named applicant is a member of Islam which is the state religion in Bangladesh. She is a Muslim woman who lives in Dhaka, a major city, and who has been employed for many years, and who is married with sons. She has not claimed to be poor or underprivileged, and she is not a member of a religious minority and she does not live in a rural area. She has made specific claims that she was twice physically assaulted and also followed and threatened by Islamic extremists only because she is a fashion designer. However, the Tribunal does not accept that the first named applicant has been targeted by Islamic extremists because she is a fashion designer. In respect of the applicant’s broader claims the Tribunal does not accept on the evidence before it that women are subjected to constant injustice and torture or that the female members of the community live in perpetual fear. Bearing in mind that the population of Bangladesh is estimated to be over 150 million the Tribunal does not accept on the evidence before it that there is a real chance that the applicant will be attacked, raped, killed or otherwise persecuted for reasons of her membership of the particular social group of women in Bangladesh if she returns to her home in that country now or in the reasonably foreseeable future.
The Tribunal has considered the totality of the applicant’s circumstances as a woman, and a fashion designer. The Tribunal has found that the first named applicant does not have a genuine fear of persecution for reasons of her membership of a particular social group or any other Convention reason. The Tribunal does not accept that the second named applicant has been followed or threatened for a Convention related reason. Based on the above findings and the evidence to which it may have regard, the Tribunal is not satisfied that the applicants have a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if they return to Bangladesh.
The applicants now ask the court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power to do that only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the evidence presented by the applicants should be believed in whole or in part, nor whether the applicants qualify for a protection visa or any other permission to stay in Australia.
The applicants’ original application contains grounds of review which contain confusingly rolled up contentions lacking in particulars. The grounds are as follows:
1.The Tribunal failed to consider the suggestion I (first named applicant) have given to the Tribunal that the fashion designers like me are being persecuted in Bangladesh and are the victims of systematic harassment as a member of a particular social group. The Tribunal failed to accept that I have a real chance of being attacked, raped, killed or otherwise persecuted for reasons of my membership of the particular social group if returned to Bangladesh. The Tribunal did not placed findings to me when I was invited for the interview to give oral evidence in support of my claims. The Tribunal made errors of jurisdiction and exceeded its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration the harm amounting to persecutions I experienced in Bangladesh for my membership of a particular social group at the time of decision.
2.I (first named applicant) gave evidence to the Tribunal that as a result of the rise of Islamic extremists my family members and I suffered violence at the hand of Islamic extremists. The Tribunal used this information for reasons that my claims lack credibility because of apparent suggestions from DFAT regarding the letters of my employer and newspaper articles I provided in relation to the abduction of fashion designers in Bangladesh. I believe that the Tribunal was affected by apprehended bias as evidence from the comments of the Tribunal member about my persecution ignoring all the evidence and supporting documents of their nature so obviously credible, relevant and significant that the Tribunal failed to consider at the time of decision.
3.The Tribunal committed errors of law by either mistaking the evidence, or drawing inferences which had no basis in evidence. The Tribunal did not accept the documents and the information I provided in support of my claims that fashion designers in Bangladesh face a real chance of sustained and systemic persecution. The Tribunal accepts that I was a fashion designer, not a high profile fashion designer, for which I was not a victim of persecution which means that the high profile fashion designers are being persecuted in Bangladesh. The Tribunal failed to consider this matter at the time of decision for my application and found I have no chance of being persecuted for reasons of being a member of a social group or for any other convention related reason. The Tribunal has made jurisdictional errors in deciding my application.
4.The Tribunal found that I shall not be discriminated on my return back to Bangladesh. I faced a real chance of harm amounting to persecution in Bangladesh simply for reasons of being a member of a particular social group. The Tribunal ignored my claimed discrimination and harassment I suffered prior to my departure from Bangladesh. The Tribunal totally ignored my the persecutions in spite of providing adequate documents in support of my claims and made errors of jurisdiction.
I have not been able to find substance in any of the contentions found in these grounds. I do not accept their suggestions that there were parts of the applicants’ claims or evidence which were not addressed by the Tribunal. The arguments presented in support of that contention appear to me to do no more than seek a reassessment of the factual conclusions of the Tribunal about the evidence. However, it is not the task of the Court to make its own decision about the merits of the application for protection.
The criticism in the first ground that the Tribunal did not explain its full reasoning to the applicants in advance of its decision has no substance. The Tribunal was not obliged to explain its thought process and, in my opinion, it more than sufficiently put to the applicants particular information which, ultimately, it relied upon when making its adverse credibility findings.
I can find no substance whatsoever in the contention that the Tribunal “was affected by apprehended bias”. No transcript of any of the hearings has been tendered to show that statements or conduct of the hearing by the Tribunal might give rise to a relevant apprehension within the principles of Re RRT & Anor; Ex Parte H (2001) 179 ALR 425. There is nothing in the Tribunal’s statement of reasons to provide any substance to a contention that the Tribunal had closed its mind prematurely before making its decision (cf. Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51 at [18], [25] and [26]).
I can identify no instances where the Tribunal “committed errors of law by mistaking the evidence, or drawing inferences which had no basis in evidence”.
Nor, in my opinion, was there any aspect of the refugee claims which was not sufficiently addressed by the Tribunal in its findings, including as to the risk which the applicant wife might face by reason of membership of any of the particular social groups which she pointed to.
The applicants have filed an amended application which contains the following grounds:
1.The Tribunal made a jurisdictional error that the Tribunal did not understand the Division 4, Part 7 of the Migration Act 1958 (the Act). The applicant did not understand the letter dated 23 December 2009 (CB 340) send by the Refugee Review Tribunal (the Tribunal). The letter of 23 December 2009 mentioned that ‘I am writing about the applications for review made by you in relation to decisions to refuse to grant Protection (Class XA) visas’. Section 424 of the Act does not allow the Tribunal to write such a letter to the applicants.
2.The Tribunal made a legal mistake that it did not also understand the application of the s424 of the Act. The Tribunal first applied s424AA of the Act at the hearing and the Tribunal mentioned in paragraph 114 of its decision (CB 401) that ‘in response to this information, which was put to the applicants at the hearing’. The Tribunal seek information at the hearing under s424 and 424AA of the Act. After the hearing on 15 December 2009 the Tribunal wrote a letter on 23 December 2009 to the applicants u/s 424A of the Act informing them decisions to refuse to grant Protection (Class XA) visas, where the Tribunal gave information to the applicants but the applicants were confused by this letter and did not quiet understand the letter according to s424A(1)(b) of the Act.
3.The Tribunal made a mistake at the time to conduct the applicants’ review application under the Act. Part 7, Division 4 of the Act does not allow the Tribunal to reject a genuine claim for protection and the Act also does not allow the Tribunal to reject a genuine claim using wrong application of s424AA and s424A of the Act, there is nothing mention in the Act that the Tribunal could apply s424AA and s424A of the Act together, particularly when it made confusion to the review applicants. Division 4 of Part 7 of the Act does not support a letter to refuse to grant Protection (Class XA) visas.
4.The Tribunal used Division 4 of the Part 7 of the Act only to reject the applicants’ claim for protection the Tribunal did not assess the. The Tribunal used very old information which was produced on 2005. The Tribunal did not follow the relevant section of the Act when it conducted the review of the applicants’ claim. Part 7 of the Act does not allow the Tribunal to appoint any one to conduct any investigations, the Tribunal can only seek information. The Tribunal mentioned in paragraph 65 (CB 378) that ‘after the hearing the Tribunal asked the post to conduct further investigations under A, B & C’. The Tribunal knew that it would reject the applicants’ claim and that’s why the Tribunal informed in relation to decisions to refuse to grant Protection (Class XA) visas on 23 December but notification letter was sent on 12 February 2010.
5.That the Tribunal did not follow the Act so the Tribunal made some irrelevant and wrong observation which is not required by the Act.
a)The Tribunal does not accept that the assailants would devote the resources needed to identify, follow and kidnap the first named applicant who is one of many low profile fashion designers (CB 399 paragraph 4)
b)Similarly the Tribunal repeated, ‘The Tribunal does not accept that the assailants would devote the resources needed to identify, follow and kidnap the first named applicant who is one of many fashion designers and who is no profile.’ (CB 399 paragraph 6)
c)The Tribunal did not take into account the harm amounting to persecutions because of her fear from the Islamic extremists.
d)The Tribunal did not put sufficient attention to the applicants’ claim for protection review application.
e)The Tribunal did not take into account the applicants’ financial persecution under s91R of the Act.
f)The Tribunal exercise its power outside of its jurisdiction which is not allowed by the Act.
The first ground was, in part, explained to me today by the applicant husband, who also represented his wife. He contended that the first paragraph of the Tribunal’s invitation for comments gave rise to confusion in the minds of himself and his wife, and misled them into thinking that they were being told that the Tribunal had, in fact, decided to refuse protection visas.
However, I do not accept that, in fact, the Tribunal’s letter did cause any confusion, nor that, objectively, it was reasonably capable of causing the confusion or misapprehension that he claimed.
The opening paragraph of the letter, when read with the subsequent paragraphs, plainly was only identifying the matter which was before the Tribunal, being a review of a decision of the delegate of the Minister to refuse visas. The letter plainly invited comment prior to the making of a decision in relation to matters which might be treated as adverse in an ultimate decision by the Tribunal.
The Tribunal was clearly intending to follow procedures indicated by s.424A(1), and it appears to me highly improbable that Mr Bitel was under any misapprehension as to the purpose of the letter or its contents. I am not persuaded that he did not sufficiently advise the applicants about the meaning and significance of the letter. The response which Mr Bitel ultimately submitted to the Tribunal, including a response signed by the applicant wife, suggests to me that, with the assistance of their solicitor, the applicants probably understood the purpose of the letter and the matters upon which they were being invited to comment.
In my opinion, the letter sufficiently complied with the requirements of s.424A(1)(a) and (b) in relation to particularising the information and ensuring “As far as reasonably practicable that the applicant understands why it is relevant to the review and the consequences of it being relied upon in affirming the decision that is under review”. I therefore do not accept the implicit contention in ground 1 that there was some formal defect in the contents of the letter by reference to the obligations under s.424A(1).
The last sentence of ground 1 in the amended application is somewhat obscure, and has not been explained to me by the applicants. It is possible that its reference to s.424 invokes complex jurisprudence which had developed in the Federal Court in relation to inquiries conducted by a Tribunal to third persons by reference to procedural obligations under section 424(2) (See for example SZLPO v Minister for Immigration & Citizenship [2009] FCAFC 51). However, the subsequent decision of the High Court in Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489 has made it clear that the Tribunal has full power under s.424(1) to conduct inquiries through informal means, either by itself or through its agents or other government departments.
The only procedural obligations on the Tribunal are that any adverse information produced by such inquiries, which the Tribunal might intend to rely upon, must adequately be put to the applicants under ss.424A or 424AA. As I have explained above, I am satisfied that this occurred in this case in relation to the DFAT information.
In relation to grounds 2 and 3, the contention appears to be made that the Migration Act does not permit a Tribunal to follow procedures suggested by both s.424AA and s.424A, that is, by inviting comment upon adverse material both orally at a hearing and in a written invitation for comment. However, I can find no such implication in the scheme or language of those provisions, as explained in relevant authorities, in particular SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415.
In relation to ground 4, the reference to the Tribunal using “very old information” which was “produced on 2005” has not been explained to me. It may refer to the Canadian information which the Tribunal had relied upon when treating some of the documentary material presented by the applicants as unreliable corroborative evidence. The Canadian information had, however, been repeated in an authoritative 2009 report relied on by the Tribunal, and I do not accept that the Tribunal did rely on any “very old information”. Moreover, the choice of the general country information used by the Tribunal was a matter within its jurisdiction, and I cannot see that any jurisdictional error arises from its reliance on such information in the present case (see SZMGS v Minister for Immigration & Citizenship [2009] FCA 168 at [9], SZJRW v Minister for Immigration & Citizenship [2008] FCA 959 at [47]-[48], and SZDZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1782 at [23]).
The second part of ground 4 criticises the Tribunal’s reliance upon the information from the DFAT post in Dhaka. No argument was developed to point to an absence of authority in the Tribunal to initiate such investigations and rely on their outcome. Section 424(1), as interpreted in SZKTI, would appear to me to confer ample authority, even if it cannot be found elsewhere in the procedures of the Tribunal.
The applicant husband today made the further criticism that the persons who had conducted the inquiries in Dhaka were not “professional or trained” and did not have “sufficient knowledge or training in relation to refugee matters”. However, there is no evidence before me as to the qualifications of the person or persons who made the inquiries, the outcome of which was conveyed in the DFAT information. The Dhaka post was asked to make straightforward, factual inquiries, not requiring any particular expertise. There is nothing before me to suggest that the Tribunal was bound to give the resulting information no weight, and that it was not open to it to prefer that information when assessing the evidence presented by the applicants.
The last sentence of ground 4 appears to assert a particular of bias, based upon the conducting of those inquiries and the putting of the outcome to the applicants in the Tribunal’s 23 December 2009 invitation for comments. However, this misapprehends the purpose of, even necessity for, the letter being written under the statutory procedures governing the Tribunal. A ‘fair minded’ observer aware of the statutory context, would not regard anything in the letter, or in the circumstances in which it was presented to the applicants, as suggesting that the Tribunal might have closed its mind, in effect, to considering the responses which it was inviting the applicants to provide. Moreover, in my opinion, the evidence suggests that the Tribunal did fully assess the applicants’ responses, including the additional further information presented by the applicants, before it arrived at a decision in the case.
Ground 5 in the amended application does not, in my opinion, present with any meaningful particulars any criticisms of the Tribunal’s reasons which do not arise above a complaint about the outcome of the Tribunal’s assessment of the evidence and its ultimate factual conclusions.
I am not satisfied that there was anything that the Tribunal was bound to take into account which it did not consider, nor that it made any other jurisdictional error.
The applicant husband, in his oral submissions today, submitted that the Tribunal overlooked the fact that, as a result of their seeking protection visas in Australia, they had lost their employment in Bangladesh, and therefore had suffered financially and would suffer financially if they returned to Bangladesh. However, such a consequence of the claim for refugee status was implicit in the history presented by the applicants to the Tribunal. It was relevant to deciding their status as refugees only if the Tribunal accepted their claims to have suffered Convention-related persecution in Bangladesh and, as a result, to be at risk of Convention-related persecution if they returned. The Tribunal fully addressed those claims and, in my opinion, it was not obliged to include further discussion about the financial consequences to the applicants of their coming to Australia and claiming refugee status here.
For all the above reasons, I have been unable to identify any jurisdictional error affecting the decision of the Tribunal. The decision is therefore a privative clause decision, and I am obliged to dismiss the application.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 6 July 2010
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