SZSCU v Minister for Immigration

Case •

[2013] FCCA 2261

•

23 December 2013

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSCU v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2261
Catchwords:
MIGRATION – Application for review of decision of the Refugee Review Tribunal – whether the Tribunal failed to afford the applicant procedural fairness – whether material was “information” for the purposes of s.424A – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 476
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Minister for Immigration and Citizenship v SZHXF [2008] FCAFC 36
VAF v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 123
Applicant: SZSCU
First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 2489 of 2012
Judgment of: Judge Nicholls
Hearing date: 12 November 2013
Date of Last Submission: 12 November 2013
Delivered at: Sydney
Delivered on: 23 December 2013

REPRESENTATION

Counsel for the Applicant: Mr M Jones
Solicitors for the Applicant: Parish Patience Immigration Lawyers
Counsel for the Respondents: M D Hughes
Solicitors for the Respondents: Clayton Utz

ORDERS

  1. The title of the first respondent is amended to “Minister for Immigration and Border Protection”.

  2. The application made on 31 October 2012 is dismissed.

  3. The applicant pay the first respondent’s costs set in the amount of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2489 of 2012

SZSCU

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 31 October 2012 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 3 October 2012, which affirmed the decision of the delegate of the Minister, the first respondent in these proceedings, to refuse the grant of a protection visa to the applicant.

Background

  1. The applicant is a national of Bangladesh (“Court Book” – “CB” – CB 13). He arrived in Australia on 5 April 2011 as a crew member on a vessel (CB 13). He remained in Australia after the ship departed. Relevantly, the applicant was described as a ship “deserter” (CB 49 to CB 52). He applied for a protection visa on 12 May 2011 (CB 1 to CB 29).

  2. The applicant’s claims to protection were initially set out extensively in a statement attached to the application (CB 31 to CB 35). He claimed to fear “persecution” in Bangladesh as a member of a minority religious group (a “sect”). The source of harm was said to be “members of the [applicant’s] community” and “fundamentalist Muslims”


    ([8] – [9] at CB 35). His family and in-laws were also said to be “acting against” him ([9] at CB 34).

  3. The delegate found that he had no reason to question the applicant’s “core claims” (CB 74.7). However, the delegate found that the “little country information” available about the applicant’s “sect” “tends to indicate that there is not more than a remote chance of future harm” (CB 78.8). The application for a protection visa was refused (CB 67 to CB 79).

  4. With the assistance of a firm of solicitors, whose relevant “partner” was an accredited specialist in migration law and a migration agent (CB 80), the applicant applied for review to the Tribunal (CB 81 to CB 85). The applicant also provided a transcript of the interview with the delegate (CB 132 to CB 182).

  5. Further, the applicant provided a Statutory Declaration in which he set out his claims to protection again. An additional claim was as follows ([16] at CB 190):

    “… In addition, I also fear that I will be imprisoned if I go back to Bangladesh because I deserted the ship…”

  6. The applicant attended a hearing before the Tribunal on 25 July 2012. He was accompanied by a representative (CB 192 to CB 194). The Tribunal wrote to the applicant by letter dated 26 July 2012, sent to his representative who was authorised to receive correspondence on his behalf (CB 202).

  7. The letter sent to the applicant contained copies of certain documents described as “country information” (CB 205 to CB 213). The documents were about, amongst other matters, the law in Bangladesh relevant to ship deserters. The documents were sent as a result of what was said to have occurred at the hearing (CB 204.5):

    “As discussed at the hearing, the Presiding Member has advised to send this information for your consideration.”

  8. The documents included, and made reference to, the following:

    1)An article written by Captain Zaki Ahad who was said to be the “principal of Bangladesh Maritime Training Institute & International Maritime Academy” (CB 207.2 and CB 205 to CB 207). The article was about the law and penalties in relation to ship deserters.

    2)A number of emails (from another case) which included correspondence about Captain Zaki Ahad, information about ship deserters and made reference to “MD Jahangir Hossain (aka “Advocate Jahangir of Mirpur Rupnagor Law House” and Mr M.A Matin. All concerned information about ship deserters and the relevant situation in Bangladesh (CB 208 to CB 213).

  9. The applicant’s representatives responded to the Tribunal by letter on 31 August 2012 (CB 221 to CB 222). That letter posed a number of questions about the experience and qualifications of the persons named above.

  10. In a further letter, the representatives made submissions as to why the applicant should be given protection, in effect, pursuant to s.36(2)(aa) of the Act. The submissions included reference to a number of international conventions relevant to “complementary protection” (CB 224 to CB 240).

  11. In its decision record, the Tribunal assessed the applicant’s claims to fear harm under two headings. The first, under the heading “Members of Jamaat-e-Islami”, the “sect” to which the applicant claimed membership, need not concern us further, due to the applicant’s grounds in his application before the Court. (See [68] at CB 267 to [74] at CB 268)

  12. The second was under the heading of “Harm as a ship deserter” ([75] at CB 268 to [79] at CB 269). The following parts of the Tribunal’s analysis are relevant to the disposition of his case before the Court ([75] at CB 268 to [79] at CB 269):

    “[75] I have also considered the Applicant’s claim that he comes within the scope of Australia’s complementary protection legislation because he would face significant harm through torture and cruel and inhuman treatment or punishment as a consequence of being imprisoned for the offence of deserting his ship.

    [76] I accept that the relevant section of Bangladesh’s Merchant Shipping Ordinance, 1983, provides for a term of imprisonment up to five years together with other financial penalties for the offence of deserting a Bangladesh or foreign ship. I note, however, that there is information before the Tribunal from Captain Zaki Ahad and Mr M A Matin which indicates that Bangladeshis who desert ship do not receive prison sentences. Having considered the information before the Tribunal relating to the practical application of the law in this area, I am not satisfied that there is a real risk that the Applicant would be sentenced to prison. I accept that he might be arrested and that he might be required to post bail or pay a fine. I also accept that his seaman’s travel document (CDC) might well be cancelled and that he might be unable to find work in the merchant navy again. However, I am not satisfied that these penalties would represent anything more than the implementation of a law of general application, adopted for the legitimate purpose of regulating Bangladesh’s maritime trade and the reliability of Bangladeshis as merchant seamen. I am not satisfied that they would be applied to the Applicant in a discriminatory fashion, so that he was punished more severely than others, for any reason. Nor am I satisfied that they could reasonably be seen as disproportionate or excessive, or that they would lead to him suffering significant harm through torture or cruel or inhumane treatment or punishment.

    [77] I have reached these conclusions taking into account the advisor’s concerns, expressed in the submission of 31 August 2012, about the reliability of country information given to the Applicant regarding the likelihood of imprisonment for ship desertion in Bangladesh. I note that she raises a number of questions about the ability of the three persons who provided this information to do so with authority. She asks, for example, about the educational qualification, experience or expertise of Captain Zaki Ahad, whether he has written any peer-reviewed articles and whether he has done any ‘qualitative and quantitative research’ on the subject. She asks some similar questions concerning the lawyer Mr Jahangir Hossain and Mr M A Matin. She asks whether the Tribunal has verified the emails from these figures, whether it has contacted Captain Ahad directly and whether it has incorporated this material into its Country advice.

    [78] I accept that these queries reflect a genuine concern to understand the background to the information which was provided to the advisor. However, I am satisfied on the information before the Tribunal that the position and considerable experience of Captain Zaki Ahad are such as to make him an authoritative source of information. I am also satisfied that Mr Matin, who was recommended by Captain Zaki Ahad as the person responsible for managing deserter matters within the country’s largest employer of seafarers, is also a reliable source of information in this field. M  Jahangir Hossain was approached for information by another advisor in a different case before the Tribunal and he appears in the information largely because he was involved in the chain of emails between that adviser, Captain Zaki Ahad and Mr M A Matin. Apart from the fact that Mr Hossain is a lawyer who appears to be familiar with the subject matter there is no information before the Tribunal as to his background or relevant experience. For this reason I have not placed any weight on the information he has provided.

    [79] I note, finally, that the advisor has not produced any independent information concerning a single incident of the imprisonment of a ship deserter in Bangladesh which might suggest that the Applicant would suffer such a fate.”

    [Emphasis added.]

  13. The application before the Court contains three grounds. Only ground one was pressed at the hearing:

    “The Tribunal fell into jurisdictional error by failing to comply with s 424A or s 424AA of the Migration Act 1958.

    Particulars

    The Tribunal had before it information about particular persons, being the sources of other information on which it relied. It considered the status, identity or credentials of those persons to be part of the reason for affirming the decision under review. The Tribunal was required to comply with the provisions of s424A or s424AA in respect of the information that it had about the status, identity or credentials of those persons, but it failed to do so.”

  14. At the hearing Mr M Jones appeared for the applicant. Mr D Hughes of counsel appeared for the Minister. The affidavit of Ms S Archer of 30 January 2013, annexing the transcript of the Tribunal hearing was put before the Court (with no objection by the Minister). Further, the bundle of relevant documents filed by the Minister was also before the Court.

  15. The gravamen of the applicant’s complaint before the Court is that the Tribunal had before it certain information about the three persons referred to above at [9], and that it relied or considered this information in its analysis by making reference to this information (see [78] at CB 269 and as extracted at [13] above).

  16. The applicant argues that such information should have been put to the applicant pursuant to s.424A(1) of the Act. Further, that the information was not caught by the exemption in s.424A(3)(a) of the Act. Nor had the information been put to the applicant at the hearing utilising the facility available in s.424AA of the Act (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46). The transcript of the hearing was relied upon for purpose of supporting that last proposition.

  17. The applicant’s argument was that the information about Captain Ahad and Mr Matin was used by the Tribunal to “undermine” the applicant’s claims and therefore formed part of the reason for affirming the decision under review.

  18. I should note that the Tribunal said that there was no “information’ before it as to Mr Hossain’s background or relevant experience”. Therefore, it did not place any weight on the information he provided. The applicant’s complaint then must only refer to the “information” about Captain Ahad and Mr Matin.

  19. In this regard, the applicant is entitled to point to the Tribunal’s own use of the word “information” as it appears at [78] (at CB 269) in relation to the ‘information” about these two individuals (see above at [13]).

  20. The High Court reference in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30] to not read decisions “with an eye keenly attuned to the perception of error” provides a cautionary note here. However, the Tribunal’s use of the word “information” in its decision record about the two individuals provides the opening for the applicant now to put his argument.

  21. Further, earlier in its decision record, when setting out “Independent country information” (see the sub-heading at CB 261.6) under the heading of “Ship deserters” (CB 263.3), the Tribunal makes reference to the information authored by Captain Ahad, and further information obtained from Captain Ahad (at [56] at CB 263). The applicant takes no issue with this, as plainly this was the subject of what was sent to the applicant’s representatives. What he does point to, however, is the “information” at [57] (at CB 264) about Captain Ahad.

  22. The applicant sought to rely on SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) at [182] (per Weinberg J), for the proposition that “information”, for the purposes of s.424A of the Act, must be a part of the reason for affirming the decision under review. That is, that the information “in question” must be linked in some way to the decision.

  23. Some caution must be exercised in considering the applicant’s submissions, drawing on SZEEU in light of the subsequent High Court judgment in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”). Noting of course that the High Court said in SZBYR that the parties before it (which included the Minister) were prepared to accept the “correctness” of SZEEU. But, in my view, it was not clear how this proposition from SZEEU can, ultimately, assist the applicant in the current case (see further below).

  24. As the Minister submitted, as is made clear in SZBYR (at [17]), the starting point for any consideration as to whether any “information” (material) is “information” for the purposes of s.424A of the Act is the statutory criterion which regulates the making of the decision, or a part of the decision.

  25. In the current case the relevant criterion is s.36(2)(aa) of the Act. It was clear from the applicant’s submissions to the Tribunal that the harm he feared as arising from the issue of ship desertion and to which the subject information about ship deserters related (to use the “applicant’s proposition” from SZEEU) was directed to the statutory criterion of complementary protection. (The references in the submissions to the various international treaties relevant to s.36(2)(aa) and s.36(2A) of the Act make that clear).

  26. As set out above, the Tribunal had before it information obtained from certain persons about ship deserters which it put to the applicant pursuant to s.424A(1) of the Act (see [22] above and further, at CB 204 to CB 213 and CB 224 to CB 240). To the extent that this information contained references to those individuals it is not necessary to concern ourselves about this for current purposes, because that “information” (whether it falls within the meaning of “information” as explained in SZBYR or not) was given to the applicant in a form and manner consistent with the obligation in s.424A(1) of the Act.

  27. The current question revolves around the meaning of the “information” (as the Tribunal itself described it) that is referred to at [57] (at CB 264) and [78] (at CB 269). That is, “information” about the qualifications and experience of Captain Ahad and Mr Matin.

  28. In my view, the applicant has confused two concepts. The first is “information” that is the reason or a part of the reason for affirming the delegate’s decision. The information put to the applicant in writing by the Tribunal about ship deserters plainly falls within that description. It is clear that, at some point antecedent to its final decision, the Tribunal considered that this information would be the reason or part of the reason for affirming the delegate’s decision. However, it fulfilled its obligation in s.424A(1) of the Act by giving this information, in writing, to the applicant.

  29. The second is the Tribunal’s reasoning process. That is, its evaluation of that information and how it weighed it in the disposition of the applicant’s claim, relevantly, to fear “significant” harm in Bangladesh, because he would be seen to be a “ship deserter”.

  30. As the Minister submits, the “information” about Captain Ahad and Mr Matin, their experience and background,  “did not contain in their terms a rejection, denial or undermining of the applicant’s claims” (SZBYR at [17]).

  31. I should note that the information about Mr Matin appears to be the information in the “chain of emails” (as referred to at [78] (CB 288) of the Tribunal’s decision and with reference to the material at CB 208 to CB 213. The background material about Captain Ahad is also partly derived from that and the material given to the applicant by the Tribunal (at CB 205 to CB 207), but also material taken from Captain Ahad’s “LinkedIn Entry” ([57] at CB 264).

  32. The following from the Tribunal hearing provides background (T17 line 48 to T18 line 20):

    “Member: I assume you’re aware of the country information that indicates that (indistinct) not since independence in 1971 or at least in the last ten years, no Bangladeshi deserter has been jailed.

    Adviser: I have actually come across that information that the Tribunal has put to another applicant about but I, I think that the source of that information is not broad enough. It does come from, from what I have seen, one Bangladeshi attorney so it is – I mean whether the actual crime has gone unpunished for the last 10 years, I don’t think it’s exactly entirely clear.

    Member: Well the information came from a person whom – I don’t have it with me at the moment, but it was a person who as I understand it was the principal of the Marine Training Institute in Bangladesh. And it was very substantially supported by another person who was a senior official or executive in the major shipping agency of Bangladesh. But I’m sure you’ll access all that information.

    Adviser: I haven’t seen that information so I will, yeah, ask for it.

    Member: I can certainly refer it to you and – no I don’t have it here I’m afraid, but what I will do is ask one of the staff members to contact you and give you those references. They are available I think, or one of them is certainly available on the internet. If the other one isn’t I’ll make sure that it’s sent to you.

    Adviser: Sure”

  33. While the experience and background of Captain Ahad, and for that matter, Mr Matin, was part of the Tribunal’s analysis or thought process, it cannot be said to be the reason or part of the reason for affirming the delegate’s decision. It was part of the Tribunal’s evaluation of the information about ship deserters and how much weight could be assigned to that information. That was the reason or a part of the reason for affirming the delegate’s decision.

  1. That view of the “information” is reinforced by the applicant’s representative’s letter to the Tribunal of 31 August 2012


    (CB 221 to CB 222). When plainly read that letter is not a direct challenge or even directed to the information the Tribunal relied on about ship deserters. The letter, when plainly read, is a caution to the Tribunal as to how much weight could be placed on the information given the lack of detail as to the education and experience of Captain Ahad and Mr Hossain. As the Tribunal noted ([78] at CB 269):

    “I accept that these queries reflect a genuine concern to understand the background to the information which was provided to the advisor. However, I am satisfied on the information before the Tribunal that the position and considerable experience of Captain Zaki Ahad are such as to make him an authoritative source of information. I am also satisfied that Mr Matin, who was recommended by Captain Zaki Ahad as the person responsible for managing deserter matters within the country’s largest employer of seafarers, is also a reliable source of information in this field. Mr Jahangir Hossain was approached for information by another advisor in a different case before the Tribunal and he appears in the information largely because he was involved in the chain of emails between that adviser, Captain Zaki Ahad and Mr M A Matin. Apart from the fact that Mr Hossain is a lawyer who appears to be familiar with the subject matter there is no information before the Tribunal as to his background or relevant experience. For this reason I have not placed any weight on the information he has provided.”

  2. This was a caution which the Tribunal accepted in relation to Mr Hossain. The Tribunal cannot be said to have relied on information “about” Mr Hossain in circumstances where it plainly stated there was no information about his background or relevant experience before it. Nor was the material or “information” attributed to Mr Hossain a reason or a part of the reason for the decision, given the Tribunal plainly said it placed no weight on it. A statement which was borne out on a plain reading of the totality of its decision record. No breach of s.424A(1) of the Act is revealed in relation to Mr Hossain.

  3. But, for reasons given, the Tribunal found contrary to the position in relation to Mr Hossain, that Captain Ahad’s information, and for that matter, Mr Matin’s information, could be relied upon.

  4. I note here, and am directed by, what the Full Federal Court said in Minister for Immigration and Citizenship v SZHXF [2008] FCAFC 36 (“SZHXF”), in circumstances where a Tribunal, in that case, placed “great weight” on certain information because the source “had been found in the past to be a careful and reliable source…” (SZHXF at [10]).

  5. The Full Federal Court said (SZHXF at [12] – [14]):

    “[12] The views of the Tribunal as to the reliability of certain information or sources of information are not generally material which in itself goes to affirming the decision under review. Those views are part of the evaluation or appraisal of the evidence itself and are properly characterised as part of the Tribunal’s reasoning or thought processes. As such, they are not required to be disclosed to an applicant on the basis that they constitute "information": see SZBYR 235 ALR at 616; VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at 477.

    [13] Where a source of information is perceived by the Tribunal to be generally reliable, the information derived from that source may then be used to weigh and assess evidence about the claims advanced by an applicant. The consequences of this assessment of the applicant’s evidence may support a conclusion that he or she is owed protection obligations, or it may not. Whatever the conclusion, this process of assessment cannot properly be described as materially undermining the applicant’s claim. Rather, it is a process which allows the Tribunal to investigate and evaluate the claims advanced by the applicant by weighing his or her evidence against another reliable source of information. Although information derived from such sources is used as part of the Tribunal’s process of consideration of the evidence advanced by an applicant, it is not of itself ‘information’ within the meaning of s 424A of the Act, which is required be disclosed to the applicant.

    [14] In this case, the observation of the Tribunal that the AMJB is a ‘reliable’ source of information does not undermine the first respondent’s case to obtain a protection visa under s 36 of the Act, nor does it disclose an error of law in the reasoning of the Tribunal. Indeed, the Tribunal often refers to evidence of general country information when assessing credibility of an applicant, and the weight it attributes to that evidence depends heavily on its acquisition from a reliable source. Comments which expound upon that reliability will often, as in this case, constitute nothing more than an indication of the reasoning or thought processes which underpin the Tribunal’s decision. Accordingly, such observations of reliability cannot be regarded as ‘information’ for the purposes of s 424A of the Act.”

  6. That is directly applicable to the circumstances of this case and provides the answer to the sole ground pressed of the application before the Court. The material about Captain Ahad and Mr Matin was part of the Tribunal’s “evaluation or appraisal” of the material before it. It was part of the Tribunal’s thought process, which, as is made clear in SZBYR and VAF v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 123, is not “information” for the purposes of s.424A(1) of the Act.

Conclusion

  1. As this ground is not made out the application should be dismissed. I will make an order accordingly.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 23 December 2013

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Cases Citing This Decision

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SZSCU v Minister for Immigration [2019] FCCA 2542