SZQOS v Minister for Immigration and Citizenship

[2012] FCA 982

FEDERAL COURT OF AUSTRALIA

SZQOS v Minister for Immigration and Citizenship [2012] FCA 982

Citation:		SZQOS v Minister for Immigration and Citizenship [2012] FCA 982
Appeal from:		SZQOS v Minister for Immigration & Anor [2012] FMCA 262
Parties:		SZQOS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 530 of 2012
Judge:		COWDROY J
Date of judgment:		7 September 2012
Catchwords:		MIGRATION – review of Migration Review Tribunal decision – appellant seeking protection visa on the basis of political persecution – appellant providing letters from party officials supporting his claim – Tribunal requesting DFAT to obtain information regarding the letters – letter writers deny writing letters – appellant asked to comment – appellant provides further letters in support – whether Tribunal required to obtain information under oath – whether Tribunal required to give further opportunity to appellant to comment – interaction between ss 424 and 427 Migration Act 1958 – Tribunal can receive information instead of taking evidence on oath – Tribunal not obliged to give further opportunity to comment – appeal dismissed
Legislation:		Acts Interpretation Act 1901 (Cth) s 33 Migration Act1958 (Cth) ss 353, 370, 371 424, 424A, 424C, 427, 428, 429A, 441A Public Service Act 1999 (Cth)
Cases cited:		Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489 SZQOS v Minister for Immigration and Citizenship & Anor [2012] FMCA 262
Date of hearing:	30 July 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	46
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Ms K Morgan
Solicitor for the First Respondent:	Minter Ellison Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 530 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQOS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	7 SEPTEMBER 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the costs of the First Respondent.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 530 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQOS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE:	7 SEPTEMBER 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By Notice of Appeal filed 16 March 2012, the appellant appeals the decision of the Federal Magistrates Court: see SZQOS v Minister for Immigration and Citizenship & Anor [2012] FMCA 262. That decision affirmed a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 3 August 2011 which affirmed a decision of a delegate of the Department of Immigration and Citizenship (‘the Department’) dated 5 January 2011. The Department refused the appellant’s application for a protection visa on the basis that the appellant was not a person to whom protection obligations were owed pursuant to s 36 of the Migration Act 1958 (Cth) (‘the Act’).

2. The appellant is a national of Bangladesh. The appellant arrived in Australia on 21 August 2010 as the holder of a family visitor visa which was valid for three months. On 27 September 2010 the appellant lodged an application for a protection visa with the Department.

3. In his application the appellant stated that he was involved with the Bangladesh Nationalist Party (‘BNP’) and with a related volunteer organisation known as the Jatiotabadi Shecchashebok Dal (‘JSD’). The BNP is currently the primary opposition party in Bangladesh. The appellant claimed he was politically active and assisted the BNP by organising functions, attending demonstrations and campaigning for the party. The appellant claimed that during the 2008 election campaign, persons affiliated with the Awami League (the current ruling political party in Bangladesh) attacked the appellant, although he managed to escape. The appellant claimed that he reported this to police, but the police refused to take action. The appellant said he also received telephone death threats from Awami League supporters. In June 2010 the appellant attended a protest in support of the BNP. Shortly thereafter police issued a warrant for the arrest of the appellant. The appellant fears that he will be subject to arrest, torture and imprisonment without trial if he returns to Bangladesh.

4. In support of his application the appellant provided the Department with three letters (‘the letters’). One letter was from the Secretary General of the JSD, another was from the Convenor of JSD’s Khilgaon subdistrict unit and the third letter was from a legal advisor who the appellant’s family visited after the police raid in July 2010. Each letter purported to describe the appellant’s political activities in Bangladesh and asserted that the appellant’s life is not safe in Bangladesh as the appellant was at risk of arrest and torture. The appellant also produced a JSD identity card and stated that he was a member of the organising committee for the party’s 30 year anniversary celebrations.

5. The Department delegate found inconsistencies between the appellant’s written protection visa application and information he told the delegate in an interview. The delegate determined that the appellant was not a witness of truth.

6. With respect to the three letters, the delegate observed that the letters contained whole paragraphs which were almost identical in content. In combination with the delegate’s other findings as to the appellant’s credibility, the delegate found that the letters were false and self-serving. The delegate refused the appellant’s application for a protection visa on the ground that the appellant did not satisfy Criteria 866.221 of the Migration Regulations1994 (Cth) and was not owed protection obligations for the purposes of s 36 of the Act.

   TRIBUNAL APPLICATION

7. The appellant sought review of the delegate’s decision before the Tribunal. The Tribunal received the letters which the appellant had provided to the original decision-maker. The Tribunal decided to seek further information with respect to the letters and the appellant’s activities in the JSD. Such information was requested from the relevant Department of Foreign Affairs and Trade (‘DFAT’) post for Bangladesh.

8. DFAT contacted the writers of the letter by telephone and on 14 April 2011 and thereafter the Tribunal informed the appellant that DFAT had spoken with each of the letter writers and each had denied writing the letter and denied knowing the appellant. The JSD Secretary General confirmed that the appellant’s identity card was a JSD identity card, but that he did not recognise the appellant. The Secretary General suggested that it was possible that the appellant had obtained a blank identification card and forged his details. The JSD Secretary General provided DFAT with a list of those on the management committee for the 30 year celebrations. The appellant’s name was not included on the list. The remainder of the information obtained by DFAT was adverse to the appellant’s claims.

9. The Tribunal put all of this information to the appellant and the appellant chose not to respond at the hearing. The Tribunal sent a letter dated 6 May 2011 to the appellant which contained a recitation of the appellant’s claims and the information obtained from DFAT. The letter stated the possible adverse conclusions that the Tribunal could draw from the information and it asked for the appellant’s response.

10. On 19 May 2011 the appellant responded. The appellant provided more letters purportedly from each of the letter writers which essentially stated that when DFAT made their inquiries the letter writers were confused or did not immediately recognise the appellant. However, the letter writers each purportedly confirmed that they had written the various letters on behalf of the appellant. The appellant also provided a new letter purportedly written by an executive member of the JSD Central Committee which stated that the appellant was personally known to him and that the appellant had participated in JSD activities such as meetings, demonstrations and election campaigns. The letter also confirmed the appellant’s claim to have been kidnapped by Awami League thugs in April 2010.

11. The Tribunal referred to country information which suggested that document forgery was widespread and significant in Bangladesh. The information stated that it is possible to obtain any necessary official document as a forgery and that the information contained in legitimate documents was often questionable. The information also stated that applicants who base their claims to protection visas on their purported activities in Bangladeshi political parties often submit voluminous documentation to support their claims, including arrest warrants. Arrest warrants are not usually made available to the public and should be treated with suspicion.

12. The Tribunal noted that there were several features of the letters given to the Tribunal by the appellant that caused it to question their veracity. There were similarities in expressions between letters purportedly from different writers. There were differences in the letterhead and signatures between the original letters and the letters supplied in response to the Tribunal’s request for more information even though they were claimed to have been written by the same author.

13. With regard to one of the letters relied upon by the appellant, namely a letter purporting to be written by the JSD Secretary General dated 22 September 2010, the Tribunal noted that DFAT not only telephoned the purported author but also met with him and showed him the letter. Such person told DFAT he did not know the appellant and had not written the letter.

14. Further, in respect of the letter dated 18 September 2010 purportedly written by the Convenor of the JSD, that person was also interviewed and he stated that he could not recognise the appellant and did not issue the letter relied upon.

15. The Tribunal also refused to accept the veracity of the letters provided by the appellant. The Tribunal found that the appellant fabricated the letters and thus the Tribunal was not satisfied that the information in the letters was true. The Tribunal found that the appellant fabricated his claims that he was involved in organising the JSD’s 30^th anniversary celebrations and that he had tailored his evidence in response to the information given to him by the Tribunal.

16. The Tribunal found that the appellant was not a member of the BNP or JSD from early 2007 nor that he was beaten by the police in January 2008 or 2009 nor that he received death threats from 2008 to 2010 because of his political activities. The Tribunal also did not accept that the appellant was kidnapped. In summary, the Tribunal found that the appellant was not a witness of credit and had greatly exaggerated his claims. The Tribunal affirmed the Department’s decision.

    APPLICATION TO THE FEDERAL MAGISTRATES COURT

17. The appellant sought review of the Tribunal’s decision from the Federal Magistrates Court. In his Application for Review, the appellant stated, inter alia, that the Tribunal committed a jurisdictional error because the advice provided to the Tribunal by DFAT was not collected in accordance with ss 427 and 428 of the Act. Specifically, the appellant claimed that DFAT did not take the evidence under oath. The appellant also claimed that the Tribunal committed a jurisdictional error by failing to make further inquiries as to the supplementary letters that the appellant gave to the Tribunal.

18. Sections 427 and 428 of the Act relevantly state:

    427 Powers of the Refugee Review Tribunal etc.

    (1)For the purpose of the review of a decision, the Tribunal may:

    (a)take evidence on oath or affirmation;

    …

    (3)Subject to subsection (4), the Tribunal in relation to a review may:

    (a)summon a person to appear before the Tribunal to give evidence; and

    (b)summon a person to produce to the Tribunal such documents as are referred to in the summons; and

    (c)require a person appearing before the Tribunal to give evidence either to take an oath or affirmation; and

    (d)administer an oath or affirmation to a person so appearing.

    (4)The Tribunal must not summon a person under paragraph (3)(a) or (b) unless the person is in Australia.

    …

    428 Tribunal member may authorise another person to take evidence

    (1)The power of the Tribunal under paragraph 427(1)(a) to take evidence on oath or affirmation for the purpose of a review may be exercised by the Tribunal or on behalf of the Tribunal by:

    (a)a person appointed or engaged under the Public Service Act 1999 ; or

    (b)another person approved in writing by the Minister for the purposes of this section;

    who is authorised in writing by the Tribunal.

    (2)The power of the Tribunal may be exercised under subsection (1):

    (a)inside or outside Australia; and

    (b)subject to such limitations (if any) as are specified by the Tribunal.

    (3)If a person other than the Tribunal is authorised under subsection (1) to take evidence for the purpose of a review:

    (a)     the person has, for the purpose of taking that evidence:

    (i)     all the powers of the Tribunal under subsection 427(1); and

    (ii)     the power to administer an oath or affirmation to a person appearing before the first-mentioned person to give evidence; and

    (b)     …

19. The appellant contended that the information DFAT obtained needed to be obtained on oath. Smith FM found that such contention was inconsistent with the other procedures for obtaining information provided in the Act, especially with s 424 of the Act. Such section relevantly states:

    424 Tribunal may seek information

    (1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

    (2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

20. Smith FM referred to Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489, in which the High Court determined that the Tribunal has power to obtain information through an agent by telephone. His Honour also stated that the power in s 424 is unconfined and that s 427 serves to enable, not limit, the Tribunal’s power to obtain necessary information.

21. With respect to the appellant’s contention that the Tribunal should have made further inquiries of the authors of the letters after receiving the supplementary letters from the appellant, his Honour stated at [48]:

    If there is an implicit submission that the Tribunal should have made further inquiries or instigated further inquiries in Dhaka in relation to the authorship of the new letters submitted by the applicant, then on my understanding of authorities there was no such obligation to inquire (see Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429; Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [1], [20], [86]). In my opinion, this was not a case where the exceptional obligations on a Tribunal to make inquiries applied (cf. Minister for Immigration & Citizenship v SZIAI (supra) at [25]).

22. His Honour dismissed the appellant’s application.

    APPEAL TO THIS COURT

23. The Appellant relies upon three grounds of appeal. In summary they claim that:

    1.The Federal Magistrate erred in not considering that the Tribunal was required to obtain the information it received from the writers of the letters under oath.

    2.The Federal Magistrate erred in finding that the Tribunal was not required to make inquiries and provide an opportunity to the appellant to comment on the supplementary letters.

    3.The Tribunal committed a jurisdictional error by failing to explain clearly the relevant law when it authorised the collection of the information for the purpose of review.

    SUBMISSIONS OF APPELLANT

24. The appellant provided written submissions and also appeared at the appeal. The appellant was unrepresented but was assisted by an interpreter. The written submissions refer to the political situation in Bangladesh and allege that the Tribunal’s reasons were given ‘only to reject the applicant’s claim. There is nothing in the Tribunal’s decision that the Tribunal was doing it [sic] job according to act’.

25. The submissions claim that the Tribunal did not act in accordance with the Act and states that the appellant should be provided an opportunity to address all adverse information and circumstances used by the Tribunal to reject the claim. The submissions allege that the Tribunal did not assess the appellant’s claim properly and that the Tribunal did not ‘put proper attention to the claim’.

26. The appellant also provided brief oral submissions in which he stated that it was not possible for him to return to Bangladesh because his life is at risk; that he fears persecution from the leaders of the government and that the government will be in power for at least another two years.

27. The submissions did not directly address any of the issues raised by the Notice of Appeal, which the Court will now address:

    Ground 1: Was the information required to be obtained under oath?

28. Section 33(2A) of the Acts Interpretation Act 1901 (Cth) states:

    Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.

29. The word ‘may’ is used in ss 424, 427 and 428 of the Act. This indicates that the Tribunal has a discretion to determine the means by which it obtains the material necessary for it to make a decision.

30. The conclusion that the Tribunal has such a discretion is supported by s 353 of the Act, which states:

    353 Tribunal's way of operating

    (1)The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

    (2)The Tribunal, in reviewing a decision:

    (a)     is not bound by technicalities, legal forms or rules of evidence; and

    (b)     shall act according to substantial justice and the merits of the case.

31. Section 353 of the Act indicates that the Tribunal is not bound to apply technicalities and rules of evidence and the taking of oaths or affirmations is an example of a technicality or a rule of evidence. Section 427 of the Act should be read as enabling the Tribunal to receive evidence with the solemnity of an oath if it should choose to do so.

32. When the Tribunal determined that it would be necessary to obtain more information concerning the provenance of the letters provided by the appellant, there were three courses of action available. One course of action would have been to require the letter writers to give evidence in the Tribunal. The Tribunal could have received this evidence itself. Section 429A would have permitted the Tribunal to receive such evidence by telephone.

33. Secondly, pursuant to s 428 of the Act the Tribunal could have directed a member of DFAT or another person appointed under the Public Service Act 1999 (Cth) or another person approved by the Minister to receive the letter writers’ evidence under oath or affirmation.

1. Thirdly, pursuant to s 424 of the Act the Tribunal could seek further information from the letter writers. The Tribunal could have issued a formal written invitation to provide the requested information, provided that the invitation complied with the requirements in s 441A of the Act, or it could merely invite the letter writer by telephone as per s 424(2). If the Tribunal chooses to obtain the material by way of a request for information, then it is obliged to put the information received to the appellant.

2. The three different courses of action have different ramifications. Pursuant to s 427(3)(a) the Tribunal has the power to summon and compel a person to attend the Tribunal hearing to give evidence (as opposed to provide information). If the recipient of a summons fails to attend, then the recipient has prima facie committed an offence under s 370(1)(a) of the Act. If the recipient of the summons perjures himself or herself or refuses to answer the Tribunal’s question, then the recipient has prima facie committed an offence under s 371(1). In contrast, there is no power of the Tribunal to compel the recipient of a request for information to answer the request for information or to answer the request truthfully. Section 424C(1) of the Act merely permits the Tribunal to decide the application without seeking further information.

3. It was within the Tribunal’s discretion to choose which of the courses of action should be followed. It chose to receive information pursuant to a s 424 request. In Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 the High Court of Australia at [37] confirmed the broad power provided by s 424(1) of the Act to ‘get any information that it considers relevant’. The Tribunal is not restricted in obtaining information only through the procedures under ss 427 and 428 that require evidence to be provided under oath.

4. The Tribunal provided the appellant with an opportunity to comment upon the information as s 424A required. The Tribunal was not obliged to obtain the information upon oath. Consequently, the appellant’s first ground of appeal fails.

   Ground 2: After receiving the supplementary letters, was the Tribunal required to make further inquiries and give the appellant another opportunity to comment?

5. In Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 an applicant sought a protection visa in Australia, claiming that in Bangladesh he was a member of Ahmadiyya, an Islamic sect, and had suffered persecution from Sunni Muslims as a result of his religious beliefs. The applicant provided a certificate from a Bangladeshi Ahmadiyya organisation which purported to confirm that the applicant was a member of the sect. The Tribunal made inquiries with an Australian Ahmadiyya organisation, which in turn made inquiries in Bangladesh. The organisation informed the Tribunal that the respondent was not a member and the certificate was a forgery. The Tribunal provided the applicant an opportunity to comment on this information. The applicant appealed on the ground that the Tribunal should have made further inquiries into the veracity of the certificate by calling a telephone number printed on the certificate.

6. At [25]-[26] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated:

   [25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

   [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

7. At [52] Heydon J relevantly stated:

   The question of whether the tribunal should have made further inquiries must be assessed bearing in mind that it was for the respondent to demonstrate that his claims were genuine; it was not for the tribunal to try to achieve a demonstration that he had failed to achieve.

8. In Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [86] Heydon J relevantly stated:

   Section 424(1) is not the source of any obligation on the Tribunal to go further and seek more information that might enhance, detract from or otherwise be relevant to information which it has already received.

9. These statements clearly support the conclusion that once a Tribunal received the appellant’s comments on the information including the supplementary letters that it received from the appellant it was not obliged to go on and inquire into the authenticity of the information in the appellant’s response. Given the Tribunal’s other findings concerning the appellant’s credibility, the information it received from the letter writers via DFAT and the indicia of forgery that it found in the various letters, any attempt to obtain further information would have been redundant. If it were required to check the validity of the new letters and request the appellant to comment upon them, the Tribunal would potentially be constrained to receive further letters from the appellant in support of the appellant’s claim of involvement in the JSD and the process would continue ad infinitum. There is nothing more that repeat information requests would have obtained that the Tribunal did not already have. It follows that ground 2 of the appeal must be dismissed.

   Ground 3

10. Ground 3 of the grounds of appeal states:

    The Honorable Federal Magistrate did not consider that the Tribunal did not follow the rule of the part 7 of the Migration Act. The Tribunal did not explain clearly the relevant law when it austhorised [sic] someone to act for it and collect information for it for the purpose of review. The Tribunal did the review, collected the information for the review and made a decision but the Tribunal did not do all these procedure according to the Act particularly the collection of information was not done according to the Act so the decision made by the Tribunal is wrong but the Federal Magistrate did not consider it.

11. It is difficult to divine the meaning in this ground of appeal. To the extent that it can be interpreted as a submission that the Federal Magistrate failed to consider the appellant’s grounds of appeal, that ground is rejected. The decision of the learned Federal Magistrate clearly shows that his Honour was aware of the arguments made by the appellant and his decision responds to each of the arguments in full.

12. If it is a submission that the Tribunal did not instruct DFAT to obtain the information from the letter writers on oath, then the ground of appeal also fails for the reasons stated in consideration of the appellant’s first ground of appeal. The Tribunal was not obliged to require the information to be collected under oath.

13. For these reasons, the appeal must be dismissed.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:       7 September 2012