SZRBN & Ors v Minister for Immigration & Anor
[2012] FMCA 384
•11 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRBN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 384 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – application made out of time – no application made for an extension of time – application dismissed as not competent. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.36, 65, 91R, 422B, 424A, 424AA, 425, 425A, 426, 426A, 441A, 441C, 476, 426A, 486F Migration Litigation Reform Act 1995 (Cth), s.3, Sch.1 |
| SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 SZQDG & Anor v Minister for Immigration & Anor [2011] FMCA 836 SZNZI v Minister for Immigration & Anor [2010] FMCA 57 SZNZU v Minister for Immigration & Anor [2010] FMCA 197 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1 Saeed v Minister for Immigration & Citizenship [2010] HCA 23 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592 Minister for Immigration and Multicultural & Indigenous Affairs v SZFML & Anor [2006] FCAFC 152 SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026; (2005) 144 FCR 251 Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 SZQDZ v Minister for Immigration & Citizenship [2012] FCAFC 26 SZQPN v Minister for Immigration & Citizenship [2012] FCA 424 |
| First Applicant: | SZRBN |
| Second Applicant: | SZRBO |
| Third Applicant: | SZRBP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 92 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 4 May 2012 |
| Date of Last Submission: | 4 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2012 |
REPRESENTATION
| The First Named Applicant: | In Person |
| The Second Named Applicant: | No Appearance |
| The Third Named Applicant: | By His Litigation Guardian |
| Appearing for the Respondents: | Ms L Weston |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application made on 16 January 2012, and as amended on 26 March 2012, is dismissed as not competent pursuant to s.477(1) of the Migration Act 1958 (Cth).
The first and second named applicants pay the first respondent’s costs set in the amount of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 92 of 2012
| SZRBN |
First Applicant
| SZRBO |
Second Applicant
| SZRBP |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 16 January 2012, initially said to be pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), and amended on 26 March 2012, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 9 December 2011, which affirmed the decision of a delegate of the respondent Minister to refuse protection visas to the applicants.
Background
The applicants are all citizens of Bangladesh and members of one family. That is the husband (the first applicant – “the applicant”), wife (the second applicant – “the applicant’s wife”) and their son, aged twelve years (the third applicant – “the applicant’s son”). Only the applicant appears to have initially made claims to be a refugee (Court Book – CB – CB 1 to CB 25). The applicant’s wife and their son applied as members of his family (CB 26 to CB 39).
The applicant and his family claimed to have lived in Italy since January 2001 (the applicant had gone there some years earlier) ([25] at CB 205). The applicant’s son was born in that country. The applicant claimed to have left Italy in February 2011 because he feared harm for himself and his son from a “Mafia group” who had threatened to kidnap his son for ransom, and had threatened to kill him.
The applicant also claimed that, although they returned for a short period, he had to leave Bangladesh because of his previous involvement with the Bangladesh National Party (“BNP”), an “opposition” political party. He feared harm from other political parties.
The Delegate
By letter dated 18 March 2011 the applicants were invited to attend an interview with the delegate on 11 April 2011 (CB 52 to CB 53). The applicant so attended.
The delegate found that the harm feared in Italy was not Refugee Convention related. The delegate considered claims as against Italy, given the applicant’s evidence that he had permanent resident status there (CB 62).
In relation to Bangladesh the delegate found that the applicant did not currently have the type of profile that would attract the attention of members of rival parties (given he had been only a “mere” supporter of the BNP some years ago) (CB 67). The delegate refused the grant of visas to the applicants (CB 70).
The Tribunal
The applicants applied for review to the Tribunal on 18 May 2011 (CB 77 to CB 80). Following a request by the applicants for two postponements of the hearing date (the applicant and the applicant’s wife were each sick on the first two attempts at a hearing), all three applicants attended on 24 October 2011, and on a second occasion on 30 November 2011 (CB 124 to CB 125 and CB 164 to CB 165). The applicant and his wife gave evidence (CB 124 and [33] at CB 207 to [100] at CB 220). The only account before the Court of what occurred is that contained in the Tribunal’s decision record.
The Tribunal found that the applicants were citizens of Bangladesh ([101] at CB 220). Further that, given the effluxion of time, there was nothing in the evidence to suggest that the applicants had any legally enforceable right to reside in any country other than Bangladesh. Therefore the applicants were not excluded from Australia’s protection by s.36(3) of the Act ([102] at CB 220 to [103] at CB 221).
It was therefore the claims of feared persecution as they related to Bangladesh to which the Tribunal turned its attention. The Tribunal concluded that there was no real risk of harm to any of the applicants arising from the applicant’s claimed political associations, activities and opinion ([105] at CB 221).
The Tribunal’s reasons for this were, variously:
1)It did not consider the applicant’s past actions, at relevant times, to be consistent with his claimed fear ([106] at CB 222).
2)The applicant’s inconsistent account and evidence as to the level of his involvement with the BNP: given his lack of relevant knowledge, the Tribunal did not accept that he was a prominent or significant leader within the BNP. Nor did it accept that the political opponents of the BNP would still be interested in the applicant over fifteen years after he had left Bangladesh ([107] at CB 222).
3)Inconsistent evidence given by the applicant and the applicant’s wife about past claimed relevant events: the Tribunal rejected their explanations for this. While it accepted that the applicant’s wife had serious medical issues, these were not of such a nature as to affect her memory, or recall, of significant events ([108] at CB 222)
4)The unsatisfactorily explained inconsistencies in the evidence, particularly in relation to the claimed events in Bangladesh in 2010, were significant ([109] at CB 223).
5)It rejected the applicant’s new claims, raised at the second hearing in an attempt to explain these inconsistencies. It also rejected further attempts at explaining these inconsistencies ([110] at CB 223).
6)Country information available to it did not support the applicant’s claims about events in Bangladesh in 2007 ([111] at CB 224).
In light of the above, the Tribunal rejected the claims that any of the applicants were, or would be, the subject of adverse attention from political opponents. It rejected the factual account given in support ([112] at CB 224).
In relation to the applicant’s “thought” at the hearing that the family would be targeted because they would be returning from abroad and because of a presumption of wealth, the Tribunal found that there was only a remote chance of this occurring ([113] at CB 224). It also rejected the applicants’ claim of general lawlessness in Bangladesh as a basis for bringing them within the definition of “refugee” ([114] at CB 225).
The Tribunal found that the applicant would not face a real risk of persecutory harm for a Convention reason if he returned to Bangladesh ([115] at CB 225). The applicant’s wife’s application failed as it depended on her husband’s claims succeeding. As to the applicant’s son, the Tribunal found that there was also no real risk he would suffer persecution, as claimed by his parents for him, given that these claims depended on, and flowed from, the claims made by the applicant in his own right ([117] at CB 225).
Application to the Court
An amended application was filed in these proceeding on 26 March 2012. It is in the following terms:
“1. The Tribunal made a jurisdictional error that the Tribunal rejected the applicant’s claim on the basis of the wrong findings that the applicant’s claim for fear of persecution in Bangladesh was not consistent with his part actions.
[Particulars omitted.]
2. The Tribunal made a jurisdictional error that the Tribunal rejected the applicant’s claim on the basis of wrong findings and reasons and also irrelevant requirements to seek protection under United Nations Convention.
[Particulars omitted.]
3. The Tribunal made a jurisdictional error that the applicant did not get enough time and opportunity to address the inconsistency according to the Migration Act 1958 (the Act). The applicant needed much time to reply the inconsistencies found by the Tribunal. The applicant was not able to discuss with his wife about the Tribunal’s findings of inconsistencies from her evidence to the Tribunal. The Tribunal found many inconsistencies but the Tribunal willingly did not give written to the applicant to understand the inconsistencies. The Tribunal also was not fair to collect the information from the second applicant and the Tribunal tested the applicant’s information by the applicant’s wife’s information which is a wrong procedure to assess a claim for protection in Australia. The second applicant was not fit to provide information to the Tribunal. The Tribunal adjourn the hearing but did not provide any letter about adverse information about his claim and information, the Tribunal made a procedural mistake in this regard, the Tribunal did not understand its obligation under the Act.
[Particulars omitted.]”
Before the Court
At the hearing the applicant appeared in person. He was assisted by an interpreter in the Bengali language. At the first Court date he had been appointed as the litigation guardian for his son. The applicant’s wife did not appear. The applicant stated that she knew of the proceedings, but was content to let him speak for her. Ms L Weston appeared for the respondent Minister.
Application Made Out of Time
At the first Court date in this matter I raised with the applicant that one difficulty for his family’s case arose from s.477(1) of the Act. Applications to this Court must be made within 35 days of the date of the Tribunal’s decision. The application to this Court was made outside of that time.
There is discretion for the Court to extend that that time, pursuant to s.477(2)(b) of the Act if it is in the interests of the administration of justice to do so. That however depends on the applicants making an application pursuant to s.477(2)(a) to engage the Court’s consideration under s.477(2)(b) of the Act.
I emphasised to the applicant the need to attend carefully to the lawyer on the panel of the Court’s “RRT legal Advice Scheme” who would be in a position to explain to the applicant how such an application for an extension of time could be effected.
The applicants would also have been on notice of this issue as a result of the formal Response by the Minister, made on 10 February 2012, to the application and the Minister’s formal Response, made on 16 April 2012, to the amended application. The Minister also raised the issue in written submissions, made on 27 April 2012.
When the matter of the competence of the application was raised at the beginning of the hearing the applicant said that he thought the relevant time commenced from the date of notification of the Tribunal’s decision, not the date of the decision. He sought an adjournment of the hearing to obtain legal advice on this matter.
I refused the adjournment. Notwithstanding the applicant’s submissions as to his misapprehension as to when time commenced for this purpose, I was persuaded by the large number of explanations proffered to the applicant to the contrary, by the Court and the first respondent, that he had had more than reasonable notice of this issue.
Further, he was specifically provided with the opportunity to obtain legal advice as to how to go about rectifying the situation. A certificate from the panel lawyer, on the Court’s file, reveals that the applicant attended a meeting with the panel lawyer on 16 March 2012. Before the Court the applicant confirmed that he had attended this meeting.
The applicants not only made an amended application, but filed written submissions. The opportunity, both in terms of relevant legal advice, and occasion, was certainly presented to the applicants to address this deficiency in their application.
The applicants’ originating application specifically answered “no” to the question, set out in the approved form for the making of such applications, as to whether an extension of time was sought. The amended application (further deficient in other ways – see below) was silent on this matter.
I found it difficult to accept that the applicant did not understand the importance of this matter given the emphasis put on it on a number of occasions (see [19] – [20] above) and the opportunity to consult a panel lawyer (in this case, counsel who often appears for applicants in matters of this type before the Court). Nor it must be said did the applicant proffer any explanation for his claimed misapprehension beyond mere assertion.
I did also consider whether the applicant should be given, at the hearing, the opportunity to make his application to the Court. I was persuaded against such a course for two reasons. First, the ample opportunity already offered to the applicants for this purpose. Second, the grounds of the amended application are so lacking in merit, in fact they are hopeless, that any such course would be an exercise in futility.
In my view the language of s.477(2) is plain. The relationship between its constituent parts, s.477(2)(a) and s.477(2)(b), is one of dependence for its engagement and operation of the latter on the former. I do not see that there is discretion for the Court to consider the matter in s.477(2)(b) without an application pursuant to s.477(2)(a). This is not a matter as elsewhere in the Act where the Court may act on its own motion (see for example s.486F(3)(a)).
The application to the Court is out of time. Notwithstanding that this is only by a matter of a mere three days, the only discretion available to the Court to extend time is contained in s.477(2)(b) of the Act. The engagement of that consideration is dependent, or contingent, on the matter set out in s.477(2)(a). The applicants, despite ample opportunity, have not acted to comply with s.477(2)(a) of the Act.
The application is not competent and the applicants have not taken the necessary and mandatory step to open the door to the only possible avenue to enable the application, as amended, to be made competent. Accordingly I will make an order dismissing the application as not competent.
The Application to the Court
As referred to above, there were a number of other deficiencies in the application to the Court. For the applicants benefit in particular, I set out the following.
The Basis of the Originating Application, as Amended
In contrast to the originating application, the amended application was said to be made under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”), and with reference to “s.475A”. It is some time since this Court has seen such references in matters of this type.
That is because s.475A of the Act was repealed with effect from 1 December 2005 (Migration Litigation Reform Act 1995 (Cth)). Section 39B of the Judiciary Act does not apply because of the amendments in the Migration Litigation Reform Act 1995 (Cth) (No.137 of 2005. See s.3, Sch.1)
In any event, I took the view that, as the originating application was made under s.476 of the Act, the references contained immediately above were in error and I would have proceeded on the basis that the amended application should be treated in the same fashion as the originating application.
The Application For The Extension Of Time, If It Had Been Made
In any event, even if an application for an extension of time had been made, I would not be moved in the circumstances of this case to extend time pursuant to s.477(2)(b) of the Act.
The various elements relevant to such an extension have been traversed many times by this Court (see my consideration in SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 at [44] and SZQDG & Anor v Minister for Immigration & Anor [2011] FMCA 836 at [23] and SZNZI v Minister for Immigration & Anor [2010] FMCA 57 at [11] per Smith FM and SZNZU v Minister for Immigration & Anor [2010] FMCA 197 at [52] per Barnes FM). They are:
1)The extent of the delay and the reason for the delay.
2)Whether there is any merit in the application.
3)Whether there is any prejudice to the respondents.
4)The impact on the applicants.
5)The interests of the public at large.
6)The Court’s discretion itself.
The delay itself, being a short period of three days, would not, in the circumstances, be a significant factor in refusing any extension. The reason for refusing any extension would have been the lack of any prospect of success of the grounds of the amended application. The grounds are so unmeritorious that it would not have been in the interest of the administration of justice to extend time merely to immediately dismiss the application.
Grounds One and Two
Grounds one and two, in their stated terms and when regard is had to the particulars, do no more than express grievance with the Tribunal’s factual findings. This is emphasised in the applicant’s written submissions by the complaint that the Tribunal’s findings were based on the “wrong assessment”. As such, the grounds seek impermissible merits review by this Court (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).
A number of additional arguments are raised in the applicants’ submissions which may have been intended as relevant to grounds one and two as stated. First, the applicant’s submissions appear not to understand that the relevant legislative scheme governing the disposition of their application for review is predicated on the Tribunal, as the sole finder of fact, once constituted to conduct the review, reaching a requisite level of satisfaction that the applicant (who made claims to be a refugee) met the definition of “refugee” as set out in Art.1A(2) of the United Nations Refugees Convention and having regard to s.91R of the Act (s.65, s.36(2) and SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 (“SJSB”)).
Second, bearing that in mind, the applicant’s submission, that he “tried many times to settle” in Bangladesh and that he told the Tribunal this, is simply a complaint that the Tribunal did not agree with him that his return to Bangladesh in 2007 and 2010 (and his return on three other occasions since 1995) revealed circumstances that meant he was at a real risk of persecution.
The Tribunal understood this claim, but rejected the applicant’s assertion that he was at risk. This was, in part, based on inconsistencies in his own evidence, his wife’s evidence, and as between both their sets of evidence. Further, the Tribunal rejected the applicants’ explanations as to the reasons for these inconsistencies. The Tribunal’s findings, and those as to the lack of credibility in aspects of their evidence, were all findings within jurisdiction (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407), and for which the Tribunal gave reasons (Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547).
Third, there is nothing illogical in the Tribunal making an assessment not acceptable to the applicants. Nor can I see that illogicality can even be argued in the circumstances, let alone made out, even if regard were had to either of the two relevant tests, or the direction provided by Heydon J, in Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (per Gummow ACJ and Kiefel J, and Crennan and Bell JJ).
Fourth, the complaint that the Tribunal did not have knowledge about the relevant political system and what occurred during the time of the caretaker government in Bangladesh, in particular, is a reference to the Tribunal’s analysis in [110] (at CB 223) and [111] (at CB 224).
The answer to that complaint is that the Tribunal did have the benefit, and, in part, relied on (the remainder was a reliance on the applicants’ own evidence), country information in the form of a Department of Foreign Affairs and Trade (“DFAT”) Report. It is the case that the choice, and weight, to be assigned to such information is for the Tribunal in the exercise of its jurisdiction (Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1).
Fifth, the applicant complains that the Tribunal was wrong in rejecting his claims on the basis that he was not a prominent or significant member of a political party. The submission is that the Refugees Convention does not require an applicant to be politically prominent before he can meet the definition of “refugee”. As a general observation that may be true. But what it misunderstands is that whether a particular applicant meets the definition of “refugee” depends on the specific and particular circumstances presented.
In the current case the applicant claimed to fear persecutory harm from political opponents after a fifteen or sixteen year absence (other than for five visits in the intervening period) from Bangladesh. In these circumstances it was not only appropriate, but necessary, for the Tribunal to test the depth of the applicant’s political involvement and knowledge such as to determine whether he would draw the specific attention of political opponents after such a long time.
It was reasonably open to the Tribunal, given the applicant’s lack of knowledge of political leaders and events, and the inconsistencies in his evidence, to come to the conclusion that he was not politically prominent or significant. It was open to the Tribunal to reason that he would not be considered an ongoing threat after fifteen to sixteen years absence if all that he was previously was a minor political activist (see [107] at CB 223).
Further, the applicant complains that the Tribunal was mistaken in its observation that, as the applicant was not in his country for a long time, he did not have a fear of persecution. Again, given the Tribunal’s analysis outlined above, this is nothing more than an expression of grievance with a part of the facts as found by the Tribunal.
Grounds one and two therefore lack merit, even as “explained” by the written submissions.
Ground Three
Ground three appears to assert a number of elements. The first is that the applicants were not given sufficient time to address the inconsistencies in their evidence. Second, that it was unfair of the Tribunal to “collect” information from the applicant’s wife and then to assess, or test, the applicant’s evidence as against hers. Third, that the applicant’s wife was “not fit” to provide information to the Tribunal. Fourth, that the Tribunal made a “procedural mistake” under the Act by not putting its concerns to them in writing.
The written submissions assert that the applicant was not given the opportunity to explain about these inconsistencies. Given the actual terms of ground three this is probably a complaint that he was not given an appropriate opportunity, or sufficient time, to do so. This appears to be confirmed elsewhere in the written submissions.
All these complaints can, to varying degrees, be characterised as a complaint that the Tribunal denied the applicants procedural fairness under the Act. When properly understood therefore it is possibly a complaint that the Tribunal breached its obligation pursuant to s.424A(1), or s.425, of the Act.
Both sections appear in Div.4 of Pt.7 of the Act. I note the operation of s.422B of the Act and the understanding of its operation provided by the High Court in Saeed v Minister for Immigration & Citizenship [2010] HCA 23. The matter of the applicants being given the opportunity to comment, or provide further explanations, is a matter dealt with by those sections. Therefore they are the exhaustive statement of the natural justice hearing rule for the purposes of the current case. This is consistent in any event with the applicant’s specific references to the Act in submissions. The complaints set out above therefore need to be seen in this light.
Section 424A(1) of the Act obliges the Tribunal to give to the applicants, for comment, any information that it considers would be the reason, or a part of the reason, for affirming the decision under review. This should be done in writing (SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162).
However there are at least two difficulties with the applicants’ complaints. The first is that perceived inconsistencies in the applicants’ evidence to the Tribunal, the Tribunal’s evaluation of that evidence, and its adverse views of that evidence, are not “information” for the purposes of s.424A(1) of the Act (SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17] – [18]). It therefore did not need to put these inconsistencies to the applicants, in writing or otherwise.
The second is that, in any event, the Tribunal did put these inconsistencies to both of the applicant and the applicant’s wife. The Tribunal purported to do so by the use of the facility available in s.424AA of the Act in order to discharge the perceived obligation in s.424A(1) (see s.424A(2A) of the Act and SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415). However no legal error is revealed in circumstances where the Tribunal was not obliged to do so, as s.424A(1) was not engaged in the first place.
The applicants have not sought to challenge by any other evidence (for example a transcript of the hearing) the Tribunal’s account of what occurred at both of the hearings. It is therefore not open to this Court to draw inferences as to what may otherwise have occurred (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241).
The Tribunal’s account reveals that at the first occasion, on 24 October 2011, it squarely put to the applicants its concerns as to the inconsistent evidence provided by the applicant and his wife
([69] – [70] at CB 213). The Tribunal’s account also shows that, contrary to the complaint now, the Tribunal advised the applicants on two occasions as to the relevance of these inconsistencies to its final analysis of their claims. The applicants were also given the opportunity to respond immediately, or to seek an adjournment and make comments in writing. The applicant chose to respond immediately ([69] to [70] at CB 213).
What makes the applicant’s complaint now, it must be said, extraordinary is that the Tribunal provided a second opportunity, about five weeks later, for the applicants to further explain the inconsistencies, and indeed to give evidence about matters not raised at the first hearing (see [72] – [74] at CB 214 in relation to the first hearing and [75] – [77] at CB 214 for the second hearing). The Tribunal emphasised the inconsistencies and gave them a further opportunity to respond ([81] – [83] at CB 216). Both the applicant and his wife were in the hearing room at the time the offer was made (see [85] at CB 216 to [95] at CB 219).
While the Tribunal was under no legal obligation to put inconsistencies in the applicant’s and his wife’s evidence to them, pursuant to s.424A(1) of the Act, using the facility in s.424AA, it may be that what the Tribunal was in effect doing was meeting its procedural fairness obligation pursuant to s.425 of the Act. That is by exposing to the applicants for comment the issue, or issues, that determined the review. Relevantly, an issue in the disposition, or determination, of the review was the Tribunal’s rejection of the applicant’s factual account, and claimed consequences of events in Bangladesh over fifteen years ago, and in relation to each of the five times they visited.
The Tribunal is required to discuss, or raise, such an issue with the applicants in order to discharge its procedural fairness obligations pursuant to s.425 of the Act and the applicants’ right to be invited to, and participate in, a meaningful hearing (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592).
The Tribunal did not purport to put this issue to the applicants in discharge of its duty pursuant to s.425 of the Act. It did so mistakenly pursuant to s.424AA of the Act. However no legal error arises in circumstances where a dispositive issue is put to applicants at a hearing and where the invitation to the hearing was clearly issued pursuant to s.425 of the Act.
Two further points must be noted. First, the invitation to the hearing complied with all of the relevant statutory and regulatory requirements (s.425, 425A, 426, the reference to ss.426A, 441A, 441C and r.4.35D of the Migration Regulations 1994 (Cth)).
The invitation was sent on 22 August 2011 (CB 89). The hearing was scheduled for 21 September 2011. The applicants sought a postponement of that date on two occasions. The first was on 20 September 2011, the day before the scheduled hearing (CB 96). The second on the day of the rescheduled hearing (CB 107).
The Tribunal agreed to a postponement on each occasion (CB 98 and CB 115). Having already met the relevant statutory and regulatory requirements the Tribunal was not obliged to provide a similar period of notice on subsequent occasions where the postponement was at the applicant’s request and not the convenience of the Tribunal (Minister for Immigration & Multicultural & Indigenous Affairs v SZFML and Anor [2006] FCAFC 152 at [ 76] – [83] per Spender, French and Cowdroy JJ and the reference there to SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026; (2005) 144 FCR 251 per Conti J)
The applicant, in particular, cannot assert that the Tribunal acted unfairly in these circumstances. In light of the obvious deficiencies in the medical certificate he provided (CB 97) it would have been quite open to the Tribunal to have refused the postponement. It did not do so. The applicant has no cause to complain in circumstances where the postponement meant that, due to the effluxion of time, the family lost their right to re-enter Italy as residents, a matter which was of advantage to them before the Tribunal. It was a matter which counted against them before the delegate, given s.36(3) of the Act, and of which the applicant was well aware, as he confirmed at the hearing before the Tribunal ([34] at CB 207).
The second point is that the Tribunal raised at the hearing its concerns about the applicant’s evidence as to his level of knowledge of political events in Bangladesh ([95] at CB 219), the applicant and his wife’s evidence that their son would be at risk because of the father’s claimed political involvement, and the claimed targeting of members of the families of political activists ([97] at CB 219 to [99] at CB 220).
The applicant also complains now that it was unfair of the Tribunal to question his wife, “collect’ her information and then to assess that applicant’s evidence against this.
The applicants do not say why, in the circumstance, that is unfair, beyond the claim that the applicant’s wife was ill. In this regard the Tribunal well understood, and accepted, that the applicant’s wife had medical problems. But it found that, even in light of the medical evidence before it, there was no evidence that her back and stomach problems affected her memory or ability to recall significant events such as to explain the inconsistencies in the evidence ([108] at CB 222).
The applicant’s attempt to raise this same matter now as an explanation for the inconsistencies in evidence is simply a challenge to the facts as found by the Tribunal, and lacks merit in judicial review proceedings of this type.
There is nothing to show that the applicant’s wife was compelled by the Tribunal to give evidence. There is nothing to show she gave evidence other than voluntarily in the applicants’ cause. The Tribunal had told the applicants that the invitation to the hearing was for all (including the applicant’s wife) “to give evidence and present arguments” (CB 89 and CB 115).
There is no evidence that the applicant did not want her to give evidence. Nor that she did not want to, or was not able to. Indeed, quite to the contrary. At the beginning of her giving evidence the Tribunal noted her “recent medical issues” and asked her if she was able to give evidence, in response to which “she confirmed that she was” ([61] at CB 212).
When the Tribunal raised its concerns as to the inconsistencies in their evidence, at the first occasion of the hearing, the applicant gave as explanation that both he and his wife could not remember details because the events being discussed were “a long time ago” ([69] at CB 213) and that his wife was scared at the time of events in 2010, and was nervous at the hearing ([70] at CB 213).
It was only on the second occasion of the hearing (some five weeks later) that the applicants themselves raised the applicant’s wife’s medical condition in explanation to the inconsistencies in her evidence, and as against the applicant’s evidence ([73] at CB 214).
In all ground three lacks merit.
The Applicant’s Oral Submissions
Before the Court the applicant’s oral submissions were that:
1)He “could not convince in my application about the reasons for my medical treatment and the reasons to stay in Australia”. [It was unclear whether the former related to the applicant or his wife’s medical treatment.]
2)There had been “mistakes” in their application and he was not given sufficient time to rectify these “mistakes”. He subsequently explained that these “mistakes” were made by his wife in her evidence which led to the perceived inconsistencies with his evidence. He wanted further time to “rectify” those mistakes.
3)His wife was nervous at the hearing with the Tribunal. She was “not ready to give correct answers”.
The applicant complains that he could not convince the Tribunal that he wanted to stay in Australia. With respect to the applicant his personal wishes are irrelevant in relation to the application he and his family made. That application was for a protection visa. In essence, and ultimately it was, and is, understood that he and his family wanted to remain in Australia.
The question for the Tribunal, given the nature of the application for a protection visa (s.65 and s.36(2) of the Act), and the review of the delegate’s decision, was whether the applicant had a well-founded fear of persecution for a Convention reason if he were to return to Bangladesh in the foreseeable future. The test the Tribunal was required to apply was whether there was a real chance of persecution on return (Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 per Mason CJ at 389, Toohey J at 406 - 407, Dawson J at 396 – 398, McHugh at 428 – 429, noting that Gaudron J did not adopt the “real chance” test). There is no possible legal error in the Tribunal being unable to reach the requisite level of satisfaction such that the visa must be granted (SJSB). Even in the face simply of the applicants’ stated desire to remain in Australia.
As to the applicant’s own medical treatment, if that is what the applicant meant in his oral submission to the Court, it was not raised by the applicant in the context of his claims for protection, nor at the hearing before the Tribunal. The applicant provided a medical certificate in support of his request for an adjournment. That adjournment was granted.
There are two related elements to the complaints regarding the applicant’s wife. The first was that she was nervous before the Tribunal and, implicitly, this led to her making “mistakes” in her evidence. The second may be some attempt to complain (“she was not ready ….”) that her medical condition was such that she was prevented from properly giving her evidence.
There is no evidence before the Court to support the assertion that the applicant’s wife was so nervous before the Tribunal that she was incapable of understanding what was being asked of her. To the contrary, what evidence there is (the Tribunal’s own account) shows that her responses were lucid. For example, she was able to distinguish between her husband’s claim to be a refugee and her own situation. She made plain that her presence at the hearing, and her giving of evidence, was so that they could be allowed by to remain in Australia “for the sake of their son” ([68] at CB 213).
As to her medical condition, as stated above, the Tribunal accepted that the applicant’s wife had “serious medical issues”. It assessed, and found, that the medical evidence did no support the claim that there had been some impact on her memory or ability to recall significant events ([108] at CB 22 and [110] at CB 223).
This was reasonably open to the Tribunal on what was before it. I cannot see that the Tribunal fell into legal error in these circumstances (Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 and Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575).
In all this complaint appears to seek to re-agitate now one of the explanations given to the Tribunal as to the inconsistencies in the applicant’s and his wife’s evidence. It therefore seeks impermissible merits review (Wu Shan Liang).
The Tribunal considered the various explanations for the inconsistencies in the applicant’s and his wife’s evidence. Its reasons for rejecting these were cogent and probative of what was before it. The Tribunal’s finding that: “… the inconsistencies are a result of fabrication of the applicant’s evidence” was reasonably open to it in the circumstances.
The applicant’s complaint now, that his wife was “not ready” to give “correct answers”, can only be seen, given the Tribunal’s finding, as an admission of failure as to the efficacy of their attempt to fabricate their evidence.
The complaint that he had insufficient time to explain the inconsistencies has been dealt with above. To the extent that the applicant complains that the Tribunal decision was unfair, then this must be rejected as being an unmeritorious attack on the procedure adopted, and conducted, by the Tribunal.
Conclusion
There is nothing in any of the grounds of the amended application, or what the applicant told the Court, that are of such character, or sufficient merit, to have engaged the interests of the administration of justice such that time would have been extended to enable a competent application to be made, had such an application be made to the Court.
The grounds, even as explained by the applicant’s submissions, lack merit such as to have warranted further consideration. Nor in the circumstances can I see any other matter that could be said to have raised a reasonable ground of sufficient merit to warrant the extension of time if such an application had been made. In all therefore, even if the applicants had made an application for an extension of time, I would, in the circumstances, have declined to extend time.
In light of recent direction and guidance provided by the Full Federal Court in relation to s.477(2) (see SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 per Keane CJ, Rares and Perram JJ and SZQPN v Minister for Immigration and Citizenship [2012] FCA 424 per Jagot J) it is important to note for current purposes that the circumstances of this case are distinguishable.
The order that I make in this case, in dismissing the application as not competent, is not made subsequent to, or consequentially from, s.477(2) of the Act. Nor is it made under that sub-section. No application was made to engage s.477(2) of the Act. The order dismissing the application to the Court, as amended, is made under s.477(1). The application is not competent because it is out of time. I will make an order dismissing it on that basis.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 11 May 2012
11
32
4