SZQEH v Minister for Immigration

[2011] FMCA 795

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQEH v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 795

MIGRATION – Review of Refugee Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and was given the pseudonym SZQEH.

Migration Act 1958 (Cth), ss.91X, 422B, 424, 425

Minister for Immigration & Ethnic Affairs v Wu Shang Liang [1996] HCA 6
Namj v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 983
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SZGIY v Minister for Immigration [2008] FCAFC 68

Applicant: SZQEH

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 813 of 2011

Judgment of: Lloyd-Jones FM

Hearing date: 15 July 2011

Delivered at: Sydney

Delivered on: 14 October 2011

REPRESENTATION

Applicant: The Applicant appeared in person with the assistance of a Bengali interpreter

Solicitors for the Respondents: Ms N. Johnson of Sparke Helmore

ORDERS

1. The Application filed on 28 April 2011 is dismissed.

2. The Applicant is to pay the First Respondent’s costs and disbursements, of and incidental to this Application, fixed in the sum of $4,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 813 of 2011

SZQEH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In accordance with the Court Orders made on 17 May 2011, the solicitors for the First Respondent were required to file a folder of materials which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing.  This order was complied with and the volume of materials provided is identified as the Court Book (“CB”).  On the date of the hearing the Court Book was marked Exhibit “A” and is the only evidence before the Court. 

2. At the First Court Date directions hearing, the Applicant was granted leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon together with any supporting affidavit material.  As the Applicant indicated that he wished to participate in the NSW RRT Legal Advice Scheme, he was advised he should file any amendments after receiving legal advice.   The Applicant elected not to pursue this option and relied upon the original Application.  The Applicant was also required to file and serve, in the Registry, a short written outline of submissions and a list of Authorities 14 days before the hearing.  This Order was not complied with.  

The proceedings

1. The background material contained in the Tribunal decision indicated that the Applicant is a citizen of Bangladesh and arrived in Australia in September 2008 and applied for a Protection (Class XA) visa on

   
   

   16 September 2008.  A decision made by a delegate of the Minister for Immigration and Citizenship on 15 September 2008, refused an Application for a Protection (Class XA) visa.  An application for review was lodged with the Refugee Review Tribunal (“Tribunal”) on 16 January 2009.  It is the decision of the Tribunal member Gyles Short dated 30 March 2011, RRT Case Number 0900306, that is the decision subject to review in this Court. 

2. According to the details in the original visa application, the Applicant has completed 10 years of schooling in Bangladesh.  The only details he provides of his employment history related to claims that he had been a business owner, partner or managing director of various businesses in Bangladesh.  In a statement accompanying his application, the Applicant said that he had had no enthusiasm for study and that three or four years after leaving school he had started work as an assistant to a builder.  He had worked for a building company for five years looking after their supply of raw materials, before he started his own business.

3. The Applicant said that he had been a supporter of the Awami League and that he had left Bangladesh as the Bangladesh Nationalist Party (BNP) and the Janaat-e-Islami had tried to confiscate his business and tried to kill him with the cooperation of the law enforcement authorities.  He said that in his business he had successfully built high-rise buildings but after the BNP and the Janaat-e-Islami had come to power in 2001, he had faced problems from contractors.  He said that his office bearers were attacked and threatened when they went to drop tenders for construction work that he himself had been threatened and harassed. 

4. The Applicant says that they had tried to kill him three times in 2007 and 2008.  He said that in September 2007 he had been in a meeting when some “goons” sent by the contractors backed by the BNP and Janaat-e-Islami had targeted him but he said that some of his colleagues had been able to manage them.  He said that the following month “some of the miscreants” had caught him “in a business site” and had hit him with a rod and cycle chain threatening that they would kill him if he did not behave properly.  He said that he had been taken to hospital.  The Applicant said that he had gone to another part of Dhaka but he had continued in business.  He said that finally they had found his behaviour inappropriate and had decided to kill him.  They said that one day they had come to his home looking for him but he had hidden in a secure place and they had gone away.  He said that they had “put some false cases against me”.  He said that he had gone to the Awami leaders but they had not got any positive results.

5. The Applicant referred to the caretaker government lead by Fakhruddin Ahmed which had taken over in January 2008 but he had said that the government had continued to arrest and detain people arbitrarily and that the judiciary was subject to executive influence and suffered from corruption.  The Applicant said that he had tried to get visas from different countries before he finally succeeded in obtaining a visa to travel to Australia.  He said that there was every chance that if he returned to Bangladesh he would be killed by his rivals in business or politics or by the “authorities” as they have a “list from whom got a severe criminal case”.  He said that he was a “refugee because of his political ideology and belief” (CB 150 – 151 at [13] –[17]). 

6. In a typed 8 page statement submitted with his protection visa application he set out the claims that are detailed above and that he had left Bangladesh to work in South Korea in 1999, but his troubles increased when he returned in 2006 and started his business.  He claimed that he was attacked on multiple occasions, had false cases lodged against him and was nearly killed (CB 27 – 34).

The delegate’s decision

1. In setting out the following background material I have quoted from the written submissions prepared by Ms Johnson and I have not made any further attribution as this would make the summary unwieldy.  The information is provided to assist in the understanding of the nature of the Application.

2. On 29 October 2008 the delegate of the First Respondent invited the Applicant to attend an interview scheduled for 7 November 2008 (CB 37).  The Applicant attended his interview and gave evidence in support of his claim (CB 64.8).  The Applicant also submitted to the delegate a number of documents in relation to his business in Bangladesh (CB 38 – 55) and in relation a letter stating that he was “an active political worker of the Bangladesh Awami – Jubo league” (CB 52).  

3. In the decision dated 15 December 2008 a delegate refused to grant the Applicant a protection visa (CB 60 - 71).  The delegate was not satisfied that the Applicant had suffered serious harm and/or significant ill treatment amounting to persecution on the basis of his political opinion (CB 68.5). The delegate was not satisfied that the Applicant claimed support for the Awami league in the past would have given him a political profile that would bring him to the adverse attention of the BNP or Janaat-e-Islami (CB 64.9).  The delegate was therefore not satisfied that the Applicant suffered persecution or mistreatment in the past or that he faced a well founded fear of harm if he returned to Bangladesh (CB 69.9).

The Tribunal proceeding

1. Again I have relied upon the written submissions of Ms Johnson as an effective summary of the proceedings before the Tribunal. 

2. On 16 January 2009 the Applicant lodged an application for review with the Tribunal, seeking review the delegate’s decision (CB 72 – 75).  By a letter dated 6 February 2009, the Tribunal validly invited the Applicant to attend a hearing before the Tribunal scheduled on

   
   

   23 March 2009 (CB 78 – 79).  The Applicant accepted the invitation (CB 80 – 81) however on 22 March 2009 he wrote to the Tribunal to inform them that he would not be attending the hearing due to his “poor health condition” (CB 82).  The Applicant requested that the hearing be rescheduled and enclosed a referral letter from BHC Medical Centre, addressed to a consultant physician (CB 83). 

3. By letter dated 23 March 2009, the Tribunal informed the Applicant that the hearing would not be rescheduled on the basis of the information he had provided (CB 86). On 6 April 2009 the Applicant provided further information to the Tribunal in relation to his medical condition (CB 87 – 89) including a medical certificate dated 30 March 2009 (CB 88).  By a letter dated 7 April 2009, the Tribunal validly invited the Applicant to attend a hearing before the Tribunal rescheduled for 27 May 2009 (CB 90 -91).  By a further letter dated

   
   

   7 April 2009 the Tribunal also invited the Applicant to comment or respond to information (CB 92 – 96).  The letter also invited the Applicant to provide any further information in support of his case (CB 96).  The Applicant accepted the invitation for the hearing (CB 97 – 98) and on 7 May 2009, informed the Tribunal that he was unable to provide comments on his case but wished to make comment at the Tribunal hearing (CB 99).

4. The Applicant attended a hearing on 27 May (CB 100 – 101) and provided the Tribunal with a copy of his passport (CB 102 – 125). The Applicant also provided the Tribunal with a copy of blood-test results and a prescription (CB 126 – 128). The Tribunal adjourned the hearing to the following day (CB 153 at [27]).  Following the hearing on

   
   

   28 May 2009, the Tribunal sent a further invitation to the Applicant to comment on or respond to information (CB 129 – 134).  The letter requested that any comment or response be provided to the Tribunal by 23 July 2009.  On 26 June 2009 the Tribunal received a letter from the Applicant requesting an extension of time of a “few months” to respond on the basis that his father had passed away and he was “extremely depressed” (CB 135).  The letter attached a certificate of his father’s death (CB 136). 

5. By letter dated 29 June 2009, the Tribunal informed the Applicant that he had decided not to grant an extension of time (CB 137).  The Tribunal member who had been presiding over the proceedings up until this date was unable to complete the review before he ceased to be a member of the Tribunal which consequently required the completion of the matter by a differently constituted Tribunal.  By letter dated 7 July 2009, the Tribunal informed the Applicant that there had been a change to the Tribunal member deciding his application for review and invited the applicant to a further hearing on 14 August 2009 (CB 138 – 140).  The Applicant attended that hearing (CB 141 – 143) and provided the Tribunal with a copy of a prescription (CB 145). 

The Tribunal’s findings and reasons

1. Again, I have substantially relied upon the summary prepared by Ms Johnson in her written submissions as an effective summary of the Tribunal’s decision. 

2. In the decision dated 30 March 2011, the Tribunal affirmed the delegate’s decision to refuse the Applicant’s application for a protection visa (CB 147 -164). On the basis of comprehensive adverse credibility findings, the Tribunal did not accept that the Applicant generally feared being persecuted for reasons of his political opinion if he returned to Bangladesh (CB 160 at [65]).  The Tribunal’s adverse credibility finding was based on a number of factors that were open to it as the sole arbiter of the facts and evidence.  For example, the Tribunal found that:

   …much of what was claimed on the Statement accompanying the Applicant’s original application was not true.  (CB 160 at [65]). 

3. The Tribunal also did not accept as credible the Applicant’s evidence about the reason why his business was targeted (CB 161 at [67] - [69]) and found it significant that he had failed to mention at the hearing that “false cases” had been lodged against him (CB 162 at [72]). 

4. The Tribunal found further that his claimed fear of harm was undermined by his failure to travel to either Singapore in December 2007, or Malaysia in April 2008, despite having visas for those countries (CB 162 at [74]).  The Tribunal found that the Applicant’s delay in leaving Bangladesh until he was able to obtain a visa to Australia indicated that he was not in fear for his life in Bangladesh (CB 162 at [75]).  The Tribunal concluded that the Applicant had not been telling the truth about his involvement in business and politics in Bangladesh (CB 163 at [76]).   The Tribunal accepted that the Applicant had come into conflict with criminals or terrorists in his local area who wanted to stop him from operating his business.  However, the Tribunal did not accept that they target the Applicant’s business because they held a grudge against him or that they filed false cases against him or wanted to kill him (CB 163 at [77]).  The Tribunal found that the Applicant did not sustain serious injuries during these altercations and that the Applicant had not been singled out for reasons of his membership of any “particular social group” but rather because criminals considered him to be “a suitable victim” (CB 163 a [77] – [78]).

5. The Tribunal found that whilst it accepted that the Applicant had been involved in politics, he had “exaggerated the importance of his position”, which had only been “low level” (CB 163 at [79]).  The Tribunal therefore did not accept that any of the problems that he had faced in Bangladesh were due to his political opinion or that there was a real chance that he would be persecuted for reason of his political opinion if he returned to Bangladesh (CB 163 at [79])

Grounds of review

1. In the Application for Review filed in this Court on 28 April 2011 the Applicant relied on the following ground:

   The third respondent failed to comply with a mandatory provision of the Migration Act 1958 (Cth) (section 425) in failing to invite the applicant to attend, give evidence and present argument in relation to issues arising out decision under review.

   The Refugee Review Tribunal’s decision was unjust and was made without taking into account the full gravity of the applicant’s circumstances of the decision.

   The grounds of the application are:

   The Tribunal breached its obligation under s.424A(1) of the Act.  The Tribunal made a number of findings to reject my claims.  The Tribunal did not discuss with me about my case or give me an opportunity to provide an explanation in relation to those findings.  The Tribunal had an obligation to do so according to s.424A of the Act.  In SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) at [10] where his Honour stated: … “Whether there was information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review and, if so, whether the Tribunal met its obligation under s.424A of the Act to provide the applicant with particulars of that information in writing.  In SZEEU Allsop J in considering this issue, relevantly said at [204]: “The assessment whether the Tribunal had complied with s.424A(1) requires close attention to the reasons of the Tribunal, because it is the information that the Tribunal considers relevant that must be assessed in order to see whether, prior to the decision being made, it would be the reason or part of the reason for affirming the decision”.

Consideration

1. When the Applicant was asked whether he had filed an Amended Application or written submissions he confirmed that he had not.  When invited to make any oral submissions in support of his Application, the Applicant in effect sought an adjournment of the proceedings on the basis of his ill health preventing him from preparing his case.  He advised the Court that since his arrival in Australia in 2009 he had not been able to sleep and suffered from insomnia.  He stated that because of his problem he was unable to think clearly, remember or perform any job.  When asked when he was under medical treatment he confirmed that he was.  He indicated that he was unable to make any submissions because he was very sick and wanted more time to prepare the Application and requested the Court to grant him an extension of time. He indicated that his ill health prevented him from preparing his written submissions.

2. I requested that the Applicant confirm that since attending the First Court Date directions hearing on 17 May 2011, that he had received legal advice from the panel advisor allocated to him.  He confirmed that he had received this advice.  The Applicant was then asked what further steps he had taken since receiving that advice to prepare for this hearing.  The Applicant indicated that he was not working and because he was ill, he was unable to do anything properly and this prevented him from preparing any submissions.  The Applicant was asked what period of time he would require to prepare his submissions and be in a state of readiness to advance his case before the Court.  The response given by the Applicant was non specific in that he needed more time in which to prepare. 

3. I indicated to the Applicant that in the two days prior to the hearing the Court had received two letters indicating that he was so ill that he could not walk.  However, he appeared in Court and was able to stand at the bar table when required to address the Court.  The Applicant then sought permission to be seated, which was granted. 

4. Then the following exchange occurred:

   HIS HONOUR:   Now I see you’ve got letters from Dr Andronicus.

   SZQEH:   Yes.

   HIS HONOUR:   Well, I will hear what the other side has got to say.  But, if you want an extension of time you will have to get an affidavit from Dr Andronicus setting out the complete details of your illness and why you can’t proceed with the hearing.  And that would have to be in the form of a sworn affidavit.  Now, what I will do is, Ms Johnson, I’ve read your written submissions.  Is there anything you wish to add to that?

   MS JOHNSON:   No, your Honour.  But if I could respond to the applicant’s application for further time?

   HIS HONOUR:   Yes.

   MS JOHNSON:   He has indicated that he seeks further time to file a submission.  As your Honour has pointed out, the applicant has had almost two months since the directions hearing to do so.  The applicant has claimed that he has been too ill to do so but the only medical certificate provided to the court only relates from yesterday, which is almost two weeks after his submission was due.  There’s simply no evidence before the court to suggest that the applicant was ill for the last two months.  And so ill that he was unable to prepare a written submission.  In those circumstances, I oppose the applicant having any further time.  The applicant is obviously fit enough to come to court this morning.  And in my submission, he is capable of explaining to your Honour what his submissions are.  I would otherwise rely on my written submissions, your Honour.

   HIS HONOUR:   Yes.  And thank you.  I will come back to what I am going to do.  Now, moving back to the applicant.  You’ve received a copy of the first respondent’s outline of submissions?

   SZQEH:   Yes.

   HIS HONOUR:   You’ve had that read to you?

   SZQEH:   Yes.

   HIS HONOUR:   Is there anything arising in that document you wish to comment on?

   SZQEH:   My comment is when my hearing authority was held, at the time I was not feeling well.  But they did not accept my point.  So despite that, they continued.

   HIS HONOUR:   Well, I will tell you what I will do.  I will reserve my decision and I will give you a week in which to get your treating doctor to forward a sworn affidavit to the court setting out the full details of your medical condition and why you’ve been in a condition that you haven’t been able to prepare for the court.  What medication and therapy you are receiving and when you will be in a position to prepare and appear in court in a fit state.  Now, if I don’t receive that in one week.  That’s by next Friday.  I will proceed to make a judgment in writing.  If I do receive that sworn affidavit, then I will make a decision whether further time should be granted for you to lodge submissions with the court.  Now, do you fully understand what is to be done?

   SZQEH:   Yes.

   HIS HONOUR:   My associate will prepare a short note that you can give the doctor, telling the doctor what has got to be contained in the sworn affidavit.  And that may mean that the doctor has got to come to court and give sworn testimony about your medical condition.  Now, do you have any questions?

   SZQEH:   No.

1. There has been no affidavit filed in these proceedings nor has the Applicant made any contact with the Court Registry indicating any delay or problems with obtaining the medical affidavit.  Consequently, the decision was prepared on the documentation before the Court. 

2. The ground of review contained in the application for judicial review filed in this Court on 28 April 2011 claims that the Tribunal failed to comply with ss.425 and 425A of the Migration Act. As indicated at [13] above, the Applicant initially appeared before the Tribunal on

   
   

   27 May 2009 but did not give any evidence on that occasion as the Tribunal acceded to his request for an adjournment on medical grounds (CB 153 at [27]).  Prior to any further proceedings, the initial Tribunal member retired as his commission had expired and a new member in a differently constituted Tribunal then had carriage of the matter.  On

   
   

   7 July 2009, on behalf of the new member, the Applicant was informed that the Tribunal had been reconstituted and that any material that he had submitted to the Tribunal would be considered by the new member (CB 138). The Applicant reappeared before the Tribunal to give evidence and present argument to the new member on 14 August 2009. 

3. Section 425 which forms part of Division 4 of Part 7 of the Migration Act and forms an integral part of that Division under s.422B which is an exhaustive statement of natural justice hearing rule, s.425 requires:

   (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2)  …

   (3)  …

4. At that hearing the Applicant was clearly put ‘on notice’ that the credibility of his claims were in issue (CB 154 at [35], CB 155 at [40], CB 157 at [49] – [50], CB 158 at [55] and [57]). In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ at [47] their Honours stated:

   [47] First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

5. From the only evidence before this Court which is the Court Book and particularly the decision record, the Court has fulfilled that requirement to adequately point out to the Applicant that his credit was in issue and was central to the ultimate decision-making process of the Tribunal.

6. The Tribunal also considered in its reasons whether the Applicant was able to effectively participate at the hearing such that the invitation to the hearing was ‘real and meaningful’.  The Tribunal took into account the Applicant’s letter dated 22 March 2009, which attached a referral from a General Practitioner to see a specialist and stated that he was suffering from “high blood pressure”.  The Tribunal also took into account the Applicant’s letter dated 6 April 2009, which attached a letter from a different General Practitioner stating that the Applicant suffered from anxiety and depression and that he would not be fit to testify for at least one month (CB 159 at [58]).  The Tribunal considered further the Applicant’s letter dated 7 May 2009 and 22 June 2009, in which he claimed that he was “extremely depressed after the ill health and subsequent death of his father” (CB 159 at [59] – [60]). 

7. At the commencement of the newly constituted Tribunal on 14 August 2009, the Applicant again referred to his high blood pressure and the fact that he had trouble sleeping, but the Tribunal put to him that it did not consider that the evidence before it provided a basis to postpone the hearing (CB 153 at [29], CB 159 at [60]).  The Tribunal noted that the Applicant did not appear to have any difficulty participating in the hearing as he was able to respond appropriately to the questions put by the Tribunal and discuss the issues discussed with him (CB 159 at [61]).  Where an Applicant suffers from an illness, this is relevant to, but not determinative, of his fitness to participate in a Tribunal hearing.  In Namj v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 983 her Honour Branson J at [52] sets out the approach to individuals with mental and emotional disturbances. Her Honour stated:

   [52] The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [207]-[208] recognizes that determinations of refugee status may need to be made in respect of individuals suffering mental and emotional disturbances. The legislature may also be presumed to have been aware of this need. For this reason it seems unlikely that the legislature would have intended to set a jurisdictional standard of 'fitness' that might prevent a significant number of individuals seeking asylum in Australia from being able to progress applications before the Tribunal to the stage of a hearing when the Tribunal is not able to decide the applications 'on the papers'. That is, it seems likely that the legislature intended that a Tribunal hearing should be able to proceed notwithstanding some measure of psychological stress and disorder in the applicant. The decision in MIMIA v SCAR establishes, however, that there is a point at which an applicant's psychological state renders a Tribunal hearing a nullity.

8. The Applicant advised the Tribunal member that he suffered from depression; however, the Tribunal’s decision record does not reveal that he was denied the opportunity to give evidence and present argument in support of his case.

9. An Applicant who has a diagnosed mental impairment does not render him or her ‘entirely unfit’ to attend a Tribunal hearing and answer questions and the Applicant in this matter cannot be said to have been denied a ‘real and meaningful’ opportunity to participate in a hearing.  It must be demonstrated that an Applicant was unfit, in the sense of being unable to give evidence, present arguments and answer questions in the course of the hearing.  In the Tribunal decision at [30] the Tribunal member has set out in some detail a range of issues canvassed between the member and the Applicant during that hearing.  On a fair reading of that material, there is nothing to suggest that the Applicant was in any way inhibited or prevented from responding to the questions put to him by the member.  In the absence of the transcript of the hearing or any other evidence to the contrary, it must be assumed that this exchange took place in the absence of any inference that the Applicant was in any way being prevented from participating in the hearing in a meaningful way because of any physical, psychological or intellectual impairment. 

10. I agree with the written submissions relied on by Ms Johnson that based on the evidence before the Court it is not established that the Tribunal’s processes were in any way ‘subverted’ to the Applicant’s detriment.

11. The Applicant further asserts that the Tribunal’s decision was unjust and was made without taking into account the gravity of the Applicant’s circumstances.  This claim is also made without particulars, oral or written submissions to support it.  The Tribunal is not required to accept the Applicant’s claim at face value and the weight to be given to his claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function.  The Tribunal’s conclusion that the Applicant’s claims were not credible was a finding of fact.  Clearly, a merits review is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shang Liang [1996] HCA 6 per Brennan CJ, Toohey, McHugh and Gummow JJ at [31]:

    …any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.

12. The merits review is an assessment of the appropriateness of the decision as distinct from judicial review which focuses on the lawfulness of the earlier decision.  Judicial review asks whether a decision maker was authorised to do what he did under the prevailing law not whether the actual decision was the best decision which could have been made in the circumstances. 

13. In respect of the alleged s.424A(1) breach of the Migration Act, this claim is not supported by any particulars, oral or written submissions, and the ‘information’ that is integral to a claim under this section has not been identified. The Tribunal was under no obligation to provide the Applicant with an opportunity to comment on its findings before it made its decision, because the Tribunal did not rely on any of the information that would invoke the obligations under s.424A(1). The Tribunal did send invitations to the Applicant to comment on the information in letters dated 7 April 2009 and 28 May 2009 (CB 92-96, 129 – 134). The matters referred to in those letters were not ‘information’ for the purposes of s.424A(1) as they did not contain ‘in their terms’ a ‘rejection, denial or undermining’ of the Applicant’s claim to be a person to whom Australia owed protection obligations and so it cannot constitute ‘information’ for the purposes of s.424A(1): SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17].

14. The information forming the essential part of the Tribunal’s findings constituted the Tribunal’s ‘subjective appraisals, thought processes and determinations’ as well as the ‘conclusions arrived at by the Tribunal in weighing up the evidence’ to indentify gaps and inconsistencies in the evidence which does not constitute information for the purposes of s.424A(1): SZBYR v Minister for Immigration and Citizenship (supra) at [18]. As indicated in the decision of SZGIY v Minister for Immigration [2008] FCAFC 68 per Dowsett, Bennett and Edmonds JJ at [30] their Honours stated:

    The Tribunal may, out of an abundance of caution or concern for fairness, put a particular line of reasoning to an applicant in circumstances where s 424A has no application.

15. This is the approach that has been taken by the Tribunal in this matter although the provision of s.424A(1) have not been invoked. On a fair reading of the material available in the Court Book and particularly the Tribunal decision, the Tribunal member has effectively summarised his reasons in the last paragraphs of his decision and nothing found in that material is contrary to anything that is available or that has been advanced by the Applicant to indicate that these findings are inconsistent with the material. The Tribunal decision states at [77] – [79]:

    77.  I accept that the applicant came into conflict with criminals or terrorists in his local area who wanted to stop him from supplying sites because they wanted the business for themselves.  I do no accept, however, that the criminals or terrorists targeted the applicant’s business because they held a grudge against him or because their main aim was to kill him, as he said at the hearing before me.  I accept that the criminals or terrorists assaulted the applicant on two occasion, in September and October 2007, but I find on the evidence before me that on neither occasion did the applicant sustain serious injuries.  I accept that in January and February 2008 the criminals or terrorists threatened the applicant but I do not accept that in May 2008 they fired shots at him in an attempt to scare him or intimidate him or kill him.  I do not accept that they brought false cases against him.

    I accept that, as the applicant said at the hearing before me, people doing business in Bangladesh may face demands for money and they may be threatened by criminals or terrorists who are either business competitors or people acting on behalf of business competitors.  However I do not accept that in these circumstances people like the applicant are being singled out for reasons of their membership of any ‘particular social group’ in Bangladesh such as businessmen.  I consider that, as was said by Burchett J (with whom O’Loughlin and R.D Nicholson JJ agreed) in Ram v Minister for Immigration and Ethnic Affairs(1995) 57 FCR 565 at 569, the criminals or terrorists in these circumstances are simply targeting someone whom they consider to be a suitable victim: “Their forays are disinterestedly individual’.  I do not accept, therefore, that, if the applicant returns to Bangladesh now or in the reasonably near future, there is a real chance that he will be persecuted for reasons of his membership of any particular social group such as businessmen in Bangladesh.

    I accept that the applicant first became involved in politics when he was at school, when he was 14 or 15 years old, as he said at the hearing before me, and that he became Organising Secretary of the Jubo League in Kafrul Thana in 2006 as he said (and as it stated in the letter he produced to the Department).  However, I consider that the applicant exaggerated the importance of this position in his evidence at the hearing before me.  I do not accept that, as he claimed, all the political activities of the Awami League are in fact carried out by the Jubo league.  As I put to him, I consider that his political involvement was at a low level.  I do not accept that the applicant had the problems he claims to have had in Bangladesh because of his involvement in politics.  I accept that on one occasion before he first left Bangladesh to go to South Korea eh was at a meeting at which he was attacked and he injured his forearm and finger.  However, I consider on the basis of the applicant’s evidence that this was an isolated incident and that he was not targeted personally.  I do not accept on the evidence before me that there is a real chance that the applicant will be persecuted for reasons of his political opinion if he returns to Bangladesh now or in the reasonably foreseeable future. 

16. In the absence of particulars, oral or written submissions, it is not apparent as to what aspect of s.425 the Applicant is using to attack the method adopted by the Tribunal. In the absence of this material, it must be assumed that this is a misunderstanding by the Applicant of the function of the rule.

Conclusion

1. The Applicant in these proceedings is a self-represented litigant who appeared with the assistance of a Bengali interpreter.  The Court provided the Applicant access to a panel advisor as part of the NSW RRT Legal Advice Scheme who provided the Applicant with advice but indicated that he did not provide the Applicant with a draft Amended Application.  The original Application had been prepared or provided by some unidentified third party who does not appear to be fully conversant with the operation of the Migration Act.  The grounds of review do not specifically arise from the published decision of the Tribunal member and I accept the written submissions of Ms N. Johnson as the appropriate approach to the pleaded grounds and I am satisfied that none of the grounds pleaded in the Application can be sustained.  Neither is it apparent that any other ground of review exists which suggests that the Tribunal member has made a jurisdictional error in its decision to reject the Applicant’s application for a protection visa.  The Applicant’s claim should be dismissed with costs. 

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Date:  14 October 2011