SZTNL v Minister for Immigration

[2015] FCCA 227

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTNL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 227

Catchwords:
MIGRATION – Application for review of the decision of the Refugee Review – whether the Tribunal complied with s.424A of the Migration Act – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91R, 424A, 476

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 47

Applicant: SZTNL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2858 of 2013

Judgment of: Judge Nicholls

Hearing date: 3 October 2014

Date of Last Submission: 3 October 2014

Delivered at: Sydney

Delivered on: 6 February 2015

REPRESENTATION

Solicitors for the Applicant: Mr N Dobbie of Dobbie and Devine Immigration Lawyers

Solicitors for the Respondents: Mr L Dennis of Sparke Helmore

ORDERS

1. The application made on 19 November 2013 and amended on 1 May 2014 is dismissed.

2. The applicant pay the first respondent’s cost in the amount of $5300.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2858 of 2013

SZTNL

Applicant

And

MINISTER FOR IMMIGRATION & 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 19 November 2013 and amended on 1 May 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 October 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

1. The evidence before the Court is the material contained in the bundle of relevant documents filed by the Minister in these proceedings (“Court Book” – “CB”).

2. The applicant is a citizen of Bangladesh. He arrived in Australia as a visitor on 19 April 2012. He applied for a protection visa on 28 May 2012 (CB 1 to CB 49). The application was refused by the Minister’s delegate on 27 November 2012 (CB 96 to CB 110).

3. The applicant applied to the Tribunal for review of the delegate’s decision on 17 December 2012. He was assisted by a registered migration agent (CB 111 to CB 119). The applicant attended a hearing before the Tribunal on 9 September 2013. His representative was present (CB 133). On 16 September 2013 the Tribunal wrote to the applicant inviting him to comment on, or respond to, certain information (pursuant to s.424A(1) of the Act) (CB 184 to CB 189). The Tribunal affirmed the decision of the delegate (CB 210 to CB 222).

4. The applicant’s written submissions provide a summary of the applicant’s claims to protection, and the Tribunal’s decision. Having regard to the material in the Court Book, I am satisfied that this is a fair and reasonable summary, and for convenience, I adopt the following for the purposes of this judgment ([1] – [12] of the applicant’s written submissions):

   “[1] The Applicant is a citizen of Bangladesh.  On 28 May 2012, he applied for a Class XA (subclass 866) visa ('the Protection visa application').  He claimed that he was a businessman in Bangladesh, and that he was Muslim. His problems arose when he was accused by his business partners of having converted to Christianity and of having an extra-marital affair with his receptionist, who was Christian.  They also assaulted him at work.  Those partners were members of the Jamat-e-Islami party. He reported the assault to the police, but they showed no interest, after the partners told them he had converted to Christianity and that was the reason why he was assaulted.  The partners later spread rumours that the Applicant had converted and that he had had an affair with his Christian receptionist. 

   [2] The Applicant went to England with his wife on 10 December 2011, but he was asking about Christianity when he was there, much to the displeasure of his wife. She terminated their holiday, and they returned to Bangladesh on 23 December 2011. Upon return, his wife told others that her husband had become a Christian and that she had decided to divorce him for that reason.  He was later assaulted on two occasions in January 2012.

   [3] The Applicant decided to leave Bangladesh, out of ‘constant fear and random religious persecutions, assaults and attacks’.

   [4] The Applicant was granted a visitor visa on 15 March 2012. He departed Bangladesh on 18 April 2012 and he arrived in Australia on 19 April 2012.

   [5] The Applicant attended Hillsong Church in Australia, and was baptized on 11 May 2012. The Applicant was a regular attendee at the church.

   [6] On 27 November 2012, a delegate of the First Respondent refused the Protection visa application. The delegate found that the Applicant was not a credible witness and that he had fabricated his claims. The delegate also found that he had not genuinely converted to Christianity, and that his conversion was for the sole purpose of strengthening his claim to be a refugee.

   [7] The Applicant sought review at the Refugee Review Tribunal (‘the Tribunal’) on 17 December 2012.

   [8] On 9 September 2013, the Tribunal held a hearing with the Applicant. Following the hearing, the Tribunal sent the Applicant a letter, dated 16 September 2014, purportedly pursuant to s424A of the Migration Act 1958 (‘the Act’).

   [9] The Tribunal affirmed the delegate’s decision on 28 October 2013.

   [10] The Tribunal accepted that the Applicant had converted to Christianity in Australia. However, in the light of what it considered to be ‘significant credibility concerns’ that it had outlined in the preceding paragraphs of its reasons, its concerns about ‘letters of support’, and its findings that the Applicant did not have any involvement in Christianity in Bangladesh, it found that the Applicant’s ‘involvement with the Hillsong Church in Australia was solely for the purpose of strengthening his claim to be a refugee with the meaning of the Convention.’ The Tribunal therefore disregarded that conduct, in accordance with s91R(3). The Tribunal was not satisfied that the Applicant has any genuine interest in Christianity or that he would participate in Christianity if he returned to Bangladesh. The Tribunal found that the Applicant was not a person to whom Australia owed protection obligations under the Refugees Convention.

   [11] The Tribunal then considered whether the Applicant was a person who should be accorded complementary protection, pursuant to s36(2)(aa).

   [12] The Tribunal was not satisfied that the Applicant has any genuine interest in Christianity or that he would participate in Christianity if he returned to Bangladesh, such that he was not a person to whom Australia had protection obligations under s36(2)(aa).”

Application before the Court

1. The sole ground of the amended application to the Court asserts that the Tribunal failed to comply with the requirements of s.424A of the Act. That section was, at the relevant times, in the following terms (s.424A of the Act):

   “Section 424A. Information and invitation given in writing by Tribunal

   424A. (1) Subject to subsections (2A) and (3), the Tribunal must:

   (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c) invite the applicant to comment on or respond to it.

   (2) The information and invitation must be given to the applicant:

   (a) except where paragraph (b) applies — by one of the methods specified in section 441A; or

   (b) if the applicant is in immigration detention — by a method prescribed for the purposes of giving documents to such a person.

   (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

   (3) This section does not apply to information:

   (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b) that the applicant gave for the purpose of the application for review; or

   (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c) that is non-disclosable information.”

2. The ground and the  particulars to the ground are, relevantly, as follows (the ground, and particulars (ii) – (v) of the amended application):

   [(i) omitted as it simply states the terms of s.424A of the Act.]

   “1. The Tribunal failed to comply with s424A of the Migration Act 1958.

   Particulars:

   (A) The Tribunal failed to comply with s424A of the Migration Act 1958 (‘the Act’).

   …

   (II) The Tribunal relied on the following information, provided by the Applicant in relation to an Australian visitor visa application that he had previously made, as a reason or part of the reason for affirming the delegate’s decision:

   (a) A Memorandum of Understanding for Ribak Fashion Limited (CB213 at [14] setting out the Board of Directors, but not a Mr Robert Kakamar; CB215 at [20] setting out the share allocation for Mr Ahmed as 5000 shares, 2000 shares for the Applicant, 2000 shares for Mr Hossain and 1000 shares for Mr Alam).

   (b) A letter of support from Mr Jubair Ahmed, managing director of Ribak Fashion Limited, dated 1 March 2012 (CB214 at [18]).

   (c) Comments made by the Applicant at an interview held by the delegate in relation to his Protection visa application; namely that he obtained the letter of support from Mr Jubair Ahmed, managing director of Ribak Fashion Limited in 2009 (CB214 at [19]).

   (d) A bank statement showing that the Applicant, as at 29 February 2012, had a bank balance of 9,64,838 taka and access to a credit card (CB217 at [29]).

   (iii) The Tribunal relied any or all of the information at Particular (ii) above to find that the Applicant’s conversion to Christianity was solely for the purpose of strengthening his claim to be a refugee within the meaning of the Refugees Convention and had to be disregarded for pursuant to s91R(3) of the Act (CB218-219 at [35]).

   (iv) The Tribunal relied any or all of the information at Particular (ii) above to find that it was not satisfied that the Applicant has any genuine interest in Christianity or that he would be involved in any Christian activities if here were to return to Bangladesh. If then concluded that it was not satisfied that there was a real risk that the Applicant would suffer significant harm as required by s36(2)(aa) of the Act (CB219 at [39]).

   (v) Subsection 424A(1)(b) required the Tribunal to ensure, as far as was reasonably practicable, that the Applicant understood why the information at Particular (ii) was relevant to the review of the purposes of s91R(3) and s2(2)(aa), and the consequences of it being relied on in affirming the decision that is under review. The Tribunal failed to do so, thereby committing jurisdictional error.”

   I note that at the hearing the applicant advised that he did not press particular (ii) (a) and (d).

3. Before the Court the applicant explained that the gravamen of his complaint arises from what he says is the Tribunal’s failure to comply with s.424A(1)(b) of the Act, in relation to two pieces of information on which it relied, to find adversely to the applicant’s case.

4. The first piece of information was a letter which the applicant had provided, not in connection to his application for a protection visa, or for the purposes of the review, but in support of his application for a visitor visa to come to Australia.

5. That letter, dated 1 March 2012, was said to be from a business associate, Mr Jubair Ahmed, who was the managing director of Ribak Fashion Australia Ltd, a company of which Mr Ahmed said the applicant was the chairman.

6. A copy of that letter is not reproduced in the Court Book. However, the relevant parts of the letter were reproduced in the Tribunal’s letter of 16 September 2013, to the applicant. Relevantly, the Tribunal’s letter stated (at CB 186):

   “…6. In support of your application for a visitor visa you provided a letter dated 1 March 2012 from Jubair Ahmed, Managing Direction, Ribak Fashion Ltd which states

   This is to certify that [the applicant]…is the Chairman of this Company from 2006 to till now…

   We learned from him that he is willing to visit to Australia. We extend all our best wishes and a pleasant rest and recreation.

   I wish him a pleasant trip at the Australia and hope he will join with us after completion of his proposed visit.

   The information above is relevant to the review because it appears to be inconsistent with your evidence to the Tribunal that you ceased to be involved with Ribak Fashion Ltd in mid February 2012 and that you have an acrimonious relationship with Mr. Jubair Ahmed because of your interest in Christianity.

   If the Tribunal relies on this information in making its decision  it would find that the letter you provided from Mr Ahmed with your visitor visa application is a genuine one and that at the time you left Bangladesh both you and he were still partners in Ribak Fashion Ltd. This would lead the Tribunal to find that your partners in Ribak Fashion Limited do not have any conflict with you in relation to Christianity. The Tribunal would also find that you have not been truthful about aspects of your evidence which may cast doubt on the credibility of your claims overall, and would cause the Tribunal to find that you are now owed protection obligations as claimed…”

   [Emphasis in the original.]

7. The second piece of “information” is comments made by the applicant at the interview with a departmental officer, in relation to his protection visa application. These comments concern the letter referred to immediately above.

8. The Minister submits that the reason the Tribunal found adversely to the applicant was its view of the information, and evidence, presented by the applicant, and the implausibilities and inconsistences in his claims. The Minister refers to the Tribunal’s decision record to make good this argument.

9. It is the case, as the Minister submits, that inconsistencies, gaps, or the view that the Tribunal takes of the applicant’s claims, is not “information” for the purposes of s.424A of the Act. He appropriately relies on SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) (and see the reference in SZBYR at [17]-[18] to VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 47) for that latter submission.

10. That latter submission is, undoubtedly correct. However, the difficulty otherwise with the Minister’s argument is that he relies only on the Tribunal’s decision record, its published reasons, to make good his argument.

11. In SZBYR, the High Court drew attention to the temporal effect of the words “would be”, as they appear in s.424A of the Act (see SZBYR at [17]).While the Tribunal’s published reasons may assist in determining what the Tribunal considers “would be” the reason, or a part of the reason, for affirming the delegate’s decision, it is to a point anterior to the published reasons, that attracts focus as to what “would be” the reason (SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 at [20] per Jacobson J, and SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36] per Siopis J).

12. The Minister argues that the Tribunal was not obliged to send its letter of 16 September 2013, pursuant to s.424A of the Act, because the reasons for the decision were as referred to at [13] above. In this light, therefore, the Minister argues that the applicant is unable to establish the initial premise of his ground. That is, that “the information” was caught by s.424A(1) of the Act.

13. The difficulty for the Minister is that on the evidence before the Court the Tribunal did send its letter of 16 September 2013. That cannot be ignored. In that letter the Tribunal identified, relevantly, two pieces of information that it said “would be” the reason, or a part of the reason, for affirming the delegate’s decision. That identification of what it relevantly “considered” was made at a time, and point, anterior to the published reasons. That evidence, the Tribunal’s own statement of what it relevantly said, is sufficient for the applicant to make out the initial premise of his grounds.

14. I should note that this situation can be contrasted with the situation where an applicant asserts that the Tribunal failed to meet the obligation in s.424A(1) of the Act, and relies solely on the Tribunal’s decision record to make good that assertion. Here the Tribunal did send a letter where it made its relevant consideration clear.

15. It is also important to note that neither piece of information falls within any of the exceptions in s.424A(3), from the obligation in s.424A(1)(a) of the Act. What the applicant gave in support of his visitor visa application, and what he said about it at an interview with the delegate, falls outside any of the exceptions.

16. The focus of the applicant’s case is that the Tribunal did not comply with the requirements of s.424A(1)(b) of the Act in relation to these two pieces of information. The applicant’s argument is as follows.

17. There are two “parts”, or elements, to s.424A(1)(b) of the Act. One, that the Tribunal must ensure as far as reasonably practicable that the applicant understands why the information is relevant to the review. Two, the Tribunal must ensure that the applicant understands the consequences of its reliance on that information.

18. The applicant submitted that the Tribunal only complied with the second of these two elements, and not the first. That is, that the Tribunal’s reference, in relation to both pieces of information, to the information causing it to find he was not owed protection obligations, was sufficient to meet the element relating to “consequences”, as that is set out at s.424A(1)(b) of the Act.

19. The applicant referred to the Tribunal’s decision record to make good the proposition that the Tribunal did not fulfil the first element. The Tribunal had a number of reasons for affirming the delegate’s decision (see CB 213 to CB 217). He submitted that the “fourth” and “fifth” of those reasons are relevant to his argument before the Court now (see [18] at CB 214 and [20] at CB 215).

20. The applicant’s submission was that he claimed to fear harm if he were to return to Bangladesh because of what he said were his Christian beliefs, and being perceived to be interested in Christianity. The Tribunal did not believe him, and set out eleven reasons for this disbelief (see [13] - [31] at CB 212 to CB 218).

21. The applicant then referred to [35] of the Tribunal’s decision record (at CB 218 to CB 219):

    “[35] The applicant was able to demonstrate some knowledge of Christianity and in light of the letters of support and baptism certificate the Tribunal accepts that he has been attending at Hillsong Church and been baptised.  When the Tribunal discussed s.91R(3) with the applicant at the hearing he stated that everything was true and from his heart and inconsistencies were due to his heart operation.  However, in light of the significant credibility concerns outlined above, the concerns of the Tribunal in relation to the letters of support and the Tribunal's finding that the applicant did not have any interest or involvement in Christianity in Bangladesh the Tribunal finds that the applicant's involvement with the Hillsong Church in Australia was solely for the purpose of strengthening his claim to be a refugee with the meaning of the Convention.  Therefore, in accordance with s.91R(3) the Tribunal disregards the applicant's conduct since arriving in Australia.  The Tribunal is not satisfied that the applicant has any genuine interest in Christianity or would participate in Christianity if he returned to Bangladesh.”

1. The applicant’s argument was that there is no reference in the Tribunal’s letter of 16 September 2013 to s.91R(3) of the Act. The argument was that while the Tribunal may not have considered the applicant to be credible in relation to his claims, that did not mean that he was not a “genuine convert” to Christianity in Australia.

2. In short, the Tribunal’s letter should have made reference to s.91R(3) of the Act, so as to comply with the requirement in s.424A(1)(b) of the Act, such as to ensure that, as far as reasonably practicable, the applicant understood why the information was relevant to the review. The information therefore, was not only a part of the Tribunal’s adverse credibility finding, but, was also a part of the Tribunal’s findings which led to its disregarding the applicant’s conduct in Australia in converting to Christianity (with reference to s.91R(3) of the Act).

3. The applicant emphasised that it was not sufficient for the Tribunal’s letter to have referred to the “overall assessment” of credibility. It needed to give a specific explanation, as to the relevance of the information to its finding, as to the conduct in Australia.

4. I do not agree with the applicant’s argument. First, the Tribunal’s letter reveals that it was alert to what the applicant now says are the two elements in s.424A(1)(b) of the Act. The Tribunal made specific reference to the relevance of the “information” it identified in its letter, to the review, and the consequences of relying on the information.

5. Second, I agree with the Minister that it is reasonable to say that the applicant should have understood what the Tribunal sought to tell him in its letter. That is, that the contents of the letter of support from Mr Ahmed, and what the applicant told the delegate about the letter, was inconsistent with his claim to have been involved in an acrimonious relationship with Mr Ahmed, because of his claimed interest in Christianity while in Bangladesh. In this regard the Tribunal did not accept the applicant’s subsequent evidence that he had changed the date and contents of the letter, so as to make it relevant to his application for a visa for Australia, because it had been provided by Mr Ahmed in support of a separate application to travel to England ([18] at CB 214).

6. Third, the applicant should have reasonably understood that these inconsistences may cast doubt on his credibility. Importantly, given the applicant’s argument now, the Tribunal also made clear that this matter of credibility, potentially could cast doubt “on the credibility of your claims overall and would cause the Tribunal to find that you are not owed protection obligations as claimed” (see 186.6 and CB 186.10).

7. The applicant now seeks to rely on [35] (at CB 218 to CB 219) and [39] (at CB 219) of the Tribunal’s decision record to argue that the Tribunal failed to put the applicant on notice of s.91R(3) of the Act in connection with the information which it said would be the reason for affirming the delegate’s decision. In my view, the requirement in s.424A(1)(b) of the Act, was met by the terms of the Tribunal’s letter. The two pieces of information were relevant to the review because they, in turn, led to findings of certain inconsistences in the applicant’s claims and evidence, which were part of a larger number of inconsistencies and difficulties with his evidence that were identified by the Tribunal.

8. I agree with the Minister that the Tribunal’s obligation was to put the applicant on notice that the information was relevant to the assessment of his credibility, and, that an adverse finding as to his credibility may lead to a finding that he was not owed protection.

9. That obligation did not extent to the Tribunal having to put the applicant on notice of the entirety of its subsequent analysis, as revealed in its decision record. I agree that the Tribunal was not required to note every section of the Act, including s.91R(3) of the Act, that may be referred to in its subsequent analysis.

10. It is relevant to note that the Tribunal did not find that the applicant was not owed protection in Australia, because he had engaged in certain conduct in Australia. Rather, it found (in relation to both the criteria at s.36(2)(a) and (aa) of the Act) (albeit for different reasons) that he was not owed protection, in spite of his having engaged in certain Christian related conduct in Australia. Conduct which it otherwise accepted had occurred.

11. In all, the Tribunal’s letter referred, relevantly, to the two pieces of information set out above. The information was sufficiently identified. The applicant was put on notice as to the relevance of the information to the review.  He was also on notice of the adverse effect on the credibility of his claims overall, and the consequences for him if the Tribunal relied on this information.

Conclusion

1. The applicant’s ground of the amended application is not made out. It is appropriate to dismiss the application. I will make an order accordingly.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  6 February 2015