FEDERAL COURT OF AUSTRALIA

SZANI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1298

MIGRATION - Refugees - Appeal from decision of Federal Magistrate refusing application for judicial review of a decision of the Refugee Review Tribunal - Failure of the Refugee Review Tribunal to refer to, consider or give reasons for the rejection of documentary evidence - Failure by Refugee Review Tribunal to give appellant opportunity to comment on evidence - No finding by Refugee Review Tribunal that the appellant's evidence was so discredited that corroborative evidence could be rejected without further analysis -  Denial of procedural fairness - Jurisdictional error - Grounds of review imperfectly formulated before Federal Magistrate - Matter remitted to Refugee Review Tribunal for determination in accordance with law.

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth)

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited

WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 discussed

WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188 discussed

SZANI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N988 of 2004

TAMBERLIN J

SYDNEY

24 SEPTEMBER 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT THE:

1.         Appeal be allowed.

2.         Orders of the Magistrate are set aside.

3.         Matter is remitted to the Refugee Review Tribunal for determination in accordance with law.

4.         Minister pay the appellant’s costs on the appeal and before the Magistrate.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of a Federal Magistrate refusing an application for review of a decision of the Refugee Review Tribunal (“the RRT”) made on 9 April 2003.

2                     The appellant is a national of Bangladesh who arrived in Australia on 10 May 2001. On 22 June 2001, he lodged an application for a Protection Visa.  This was refused by a Ministerial delegate.  He then lodged an application for review with the RRT and attended a hearing on 9 April 2002.  The appellant was there represented by an adviser, who attended half the hearing before leaving for another appointment.  The appellant called no witnesses.

3                     After the hearing before me had been completed, I made an order allowing the appeal with costs, setting aside the orders made below and remitting the matter to the RRT for determination in accordance with my reasons.  I indicated that I would give reasons for my judgment in the near future and these are set out below.

4                     Prior to the hearing before me, the appellant sent an outline of written argument, dated 20 September 2004. 

5                     The Notice of Appeal is uninformative, in that it simply alleges that the Federal Magistrate failed to find error of law, jurisdictional error, lack of procedural fairness, or grant relief under s 39B of the Judiciary Act 1903 (Cth).  The Motion states that the appellant would provide more grounds later.

6                     On the hearing the appellant appeared in person, with the assistance of an interpreter, but without legal representation and made brief oral submissions. 

7                     With one exception, the submissions of the appellant do not warrant any interference with the judgment of the learned Magistrate or the RRT.  However, one of the appellant’s submissions is that the RRT ignored relevant evidence, and made its finding in the face of independent evidence, and that this indicated actual bias constituting jurisdictional error.

8                     In my opinion, there is insufficient material to indicate any form of bias in the present case.  However, I consider that important relevant evidence has been either ignored, rejected, overlooked, not considered, or not given any weight by the RRT without adverting to it and without giving any ruling or reasons as to why this was done.

The RRT decision

9                     The RRT found that the appellant was a national of Bangladesh but made strong findings to the effect that the appellant’s evidence lacked credibility.  The appellant had advanced claims about persecution on the basis of homosexuality.  These were considered by the RRT to be ill-considered and unresearched fictions, thereby creating the impression in the member that the appellant was prepared to manipulate facts to secure residence in Australia.  In the light of this conclusion, the RRT considered that it was all the more important that the appellant’s other claims, concerning his fear of persecution on the basis of his political opinion as a supporter of the Bangladesh Nationalist Party (“BNP”), be given close examination.  The RRT considered overall that the evidence provided by the appellant in relation to his claimed political career was damaged by gross inconsistency and poorly reasoned improvisation.  These are adverse findings in strong terms.

10                  The RRT was prepared to accept that the appellant joined some kind of student or youth wing of his preferred party, noting that this appeared to be what Bangladeshi youths normally did.  The RRT did not accept that the appellant was a figure who would attract significant attention as a result of his activities.  In other words, he had a low political profile.  The RRT compared the appellant’s claims with the available country information, being information from sources other than the appellant, and concluded that if the appellant had joined the BNP, the evidence did not support his claim that he quickly rose to office on the strength of his past political affiliation.  The RRT did not accept that the appellant had become prominent in a BNP district committee.  It rejected the appellant’s contention that he had made a rapid rise in status and importance within the BNP.  The RRT concluded that the appellant was not the target that he claimed to have been either on the basis of his membership of a particular social group or as a supporter of the BNP. 

11                  In conclusion, the RRT made the adverse finding as to the appellant’s lack of credibility.  The member was “extremely confident” that the appellant was an unreliable witness.  The reasons add that if, for any reason, the RRT was misled in its conclusions about the trouble the appellant claimed to face over his perceived links with the BNP, the facts were that the BNP is now in power, that their Ministers now have responsibility for the police, and that there was no relevant evidence before the RRT of politically motivated false charges ever having led to prosecutions.  Accordingly, the RRT was not satisfied that the appellant faced a real chance of Convention-related persecution in Bangladesh, and concluded that he was not a refugee.

Decision of the federal court magistrate

12                  The appellant made an application for an adjournment on the hearing before the Federal Magistrate, submitting that he had not received any legal advice.  In considering this application, the Magistrate noted the history of the matter, including the fact that the Minister had given reasonable notice, prior to the hearing, that any application for an adjournment would be opposed, and that the appellant had had ample time to obtain legal advice.  His Honour therefore refused to grant the adjournment, on the basis that the appellant had almost a year in which to seek advice, and that his failure to do so should not provide him with an excuse for any further delay.

13                  I can see no error in the decision of the Magistrate in this respect.

14                  His Honour’s reasons then deal with submissions made in relation to several grounds raised by the appellant.  With the exception of the fourth ground raised before the Magistrate, I am not persuaded that any of the grounds referred to and dealt with by his Honour disclose any error of principle or law which would warrant judicial review.

15                  The fourth ground raised by the appellant, as stated by the Magistrate, was that the RRT had “denied the evidentiary proof” of the appellant’s claim.  The Magistrate said in respect of this:

“ I am in two minds whether to say that this phraseology is incapable of proper comprehension or have a guess at what the applicant may have meant by it.  The problem about undertaking the latter is that I may be wrong and any views that I express would at best be otiose.  I therefore pass over that ground.”

16                  It is correct to observe that the ground of review as formulated on behalf of the appellant and quoted by his Honour was not a model of lucidity.

reasoning on appeal

17                  The appellant in his oral submissions referred me to three documents at pages 81-83 of the Appeal Book before the Federal Magistrate.

18                  The first is a document bearing what appears to be two official seals, which is stated to be attested on 2 August 2001, and is addressed “TO WHOM IT MAY CONCERN”.  It purports to be signed by the Secretary of the BNP and relevantly reads:

“This is to certify that [the appellant] is personally known to me.  He is a Permanent Citizen and national of Bangladesh by birth.  His nationality is Bangladeshi.

He is an active Organize worker of Bangladesh Nationalist Party (BNP) & also a leader of BNP.  His contribution in Democratic movement is praiseworthy for his good and successful Performance the Party and leaders of the Party are very much satisfied on him.  For this reason he is elected as an Assistant Organizing Secretary under Lakshmipur Zilla unit BNP and till now he is Engaged with the same.  His always involved in anti Sentiments of Awami Govt. prevailing in the Country & also fighting against the black lows proclaimed by the Awami Govt. Deferent cases against him & also W/A issued against him, Police forces is searching him all over Bangladesh.  So he mostly wanted by Bangladesh police force.

The Present political situation of Bangladesh is very alarming.  Because of that his life is not safety and secured in Bangladesh that is why he needs political asylum to save his life.

I wish him all success in life.

Sincerely Yours,

(signature)

Secretary

Bangladesh Nationalist party (BNP)

Lakshmipur Zilla Unit

Lakshmipur, Bangladesh” 

19                  The second document again bears two seals.  It is on the letterhead of a lawyer and states in somewhat broken English that police have filed a case against the appellant and that the Magistrate in Dakar and the Bangladesh police are searching for him all over Bangladesh to secure his arrest.  The letter goes on to say that:

“The position of your case is very danger.  All witnesses of your case are ready to give their evidence.  Against you on political conspiracy as per instruction of the prsecution [sic].  I think, if you arrested, you will be harassed, tortured and persecuted lethally and diabolically and sent to jail custody, for unlimited period.  You have no safety and security in Bangladesh.  I am dealing with your case as a contracted lawyer.

So, I suggest you, try to take political asylum for safe of your life.  You will not come back to Bangladesh until my further information.

…”

20                  The third document referred to by the appellant is a letter and is on the letterhead of the Laxmipur Adhunic Hospital at Laxmipur, Bangladesh.  It is dated 2 August 2001.  It also bears two seals.  It is addressed “To Whom It May Concern” and it says that the appellant was admitted to the hospital on 23 August 1999, that his body was examined and it was found that he was seriously injured by his enemy.  The letter states that the appellant was treated in hospital from 23 August 1999 to 4 September 1999, and that after proper treatment he was released from the hospital.  It is said that the certificate is issued from the office record and the injuries referred to are stated to be that he was: “Injured in his right hand hinted by Hockey Stick”; “Injured his back sides hinted by Rod”; and “Injured in his head hinted by Bayonet.”  It is purportedly signed by Eda Amin, a Medical Officer of the Hospital.

21                  On their face these documents have a strong flavour of self-serving assertions.  Nevertheless, if accepted as true and correct, they could significantly advance the case propounded by the appellant in support of his claim for refugee status on the ground of political belief, opinion and affiliation and support his credibility.

22                  I could not find any reference to these documents in the reasons for decision of the RRT.  Counsel for the Minister was also unable to find any reference to them, but pointed to the RRT’s assertions referred to above, that even if it were misled in its conclusions about the trouble the appellant faced over perceived links with the BNP, the RRT could rely on the fact that the BNP is presently in power, that BNP Ministers have responsibility for the police, and that there was no evidence before the RRT of politically-motivated false charges ever having led to prosecutions.

23                  This statement, however, does not address the objections raised by the appellant to the effect that relevant evidence and claims were simply not dealt with or even referred to, and that the appellant was given no opportunity to address any concerns which the RRT might have had about the documents being false, or otherwise not acceptable as reliable evidence.

24                  The three documents referred to above were sent to the Department on 9 August 2001, by the Migration Agent who was then acting for the appellant, along with other documents.

25                  In my opinion, the failure by the RRT in its reasons to refer to, consider, or give reasons for rejection of the documents in question, constitutes jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].

26                  In WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171, a claim was made on the basis of a well-founded fear of persecution to the effect that, if returned to Iran, the appellant would be persecuted because of involvement with a reformist cleric.  Subsequent to the RRT hearing the appellant provided a translated copy of two letters which, if genuine, corroborated the appellant’s claim of involvementwith the cleric.  One purported to be a letter from the cleric to the appellant’s father, testifying to his relationship with the appellant.  The RRT found that the appellant was not a credible witness, and was not prepared to accept either of the letters as genuine.  It considered they were contrived to assist the appellant’s claim.  The RRT did not indicate to the appellant at any stage that it doubted at any stage the letters were genuine.  Nor did it invite him to comment on that issue. The Full Court held that the letters were central to the appellant’s claim, in that they were tendered as evidence of his relationship with the cleric.  It noted that it may have been may have been possible to find that they were forgeries, but then it would have been necessary to hear the appellant in relation to this conclusion, as a matter of procedural fairness.  The Full Court concluded that the appellant had shown that the purported decision of the RRT was affected by jurisdictional error, for not providing procedural fairness to the appellant by denying him an opportunity to answer the suggestion that the letters were not genuine.

27                  In WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188, an Iranian national claimed to be in danger of persecution if returned to Iran because he was a member of an illegal group known as the “Movement for Freedom” which had been involved in student demonstrations.  He said his work in this group had been to distribute literature, and claimed to have been arrested and detained for interrogation by officers of the Iranian Security Forces.  On his review application, the appellant claimed that there had been a breach of the rules of natural justice because the RRT failed to give him an opportunity to deal with its concerns about the genuineness of a document the appellant had submitted in support of his application.  The RRT stated that it held those concerns in light of the unsatisfactory nature of the appellant’s evidence, and the timing of the provision of the document.  At [52] the Full Court said:

“On its face the foregoing was a statement by the RRT that the document was not authentic.  This was not a case where dishonesty on the part of the appellant had been demonstrated thereby providing support for the further conclusion that the appellant had arranged for the preparation, and tender of, a non-authentic, or forged, document which the RRT could disregard.  There was no finding by the RRT that the evidence of the appellant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis.” (Emphasis added)

28                  These emphasised words are apposite in the present circumstances.

29                  The Full Court in WAEJ was of opinion that if the RRT did not in fact believe that the document was authentic, then it should have advised the appellant and his solicitor accordingly, and provided an opportunity to make the necessary inquiries to enable the appellant to produce further material to the RRT, or to otherwise satisfy the RRT in respect of the document.

30                  In the present case, the documents in question are not mentioned in the RRT decision and no reason is given for rejection of any of the documents.  It is apparent that if the documents were found to be genuine they would provide some corroborative evidence in support of the appellant’s case.  Accordingly, the appellant has been deprived of the opportunity of having the case he presented considered.  Further, he was not alerted to the necessity to address the genuineness of the documents, nor given any opportunity to make submissions in respect of these documents, which were an essential part of his case.  Accordingly, I am satisfied that there has been a denial of procedural fairness because the case presented by the appellant was not considered by the RRT, and information which on its face was significant and relevant, was simply not dealt with.

31                  In relation to the other grounds raised by the appellant, I mention them only to reiterate my view that they do not appear to have any substance.  The first was that the RRT did not find that the appellant was a refugee despite many evidentiary proofs.  This goes to the merits and is a general objection.  It is in a broad sense capable of including the three documents in question, but is cast in a very generalised manner.  The second was that the procedures required to be observed under the Migration Act 1958 (Cth), in connection with the making of a decision, were not observed.  However, this submission was not developed.  The third was that the RRT ignored the merits of the claim and did not take into consideration the verdict from the Bangladesh country report.  There is no indication or evidence that this unspecified country information was not taken into account.  The fourth was that the RRT did not act in good faith.  As noted below, there is no substance in this claim.  The fifth was that the RRT misjudged the appellant’s claim.  This is a bald assertion.  The sixth was that the RRT made a number of errors in deciding the fate of the appellant’s claims.  This is too generalised and does not assist the appellant. 

32                  The seventh ground raised by the appellant is that the RRT ignored relevant evidence, and that its finding in the face of contradictory independent evidence indicated actual bias and therefore jurisdictional error and a breach of procedural fairness.  Although this ground is somewhat opaque and is imperfectly framed, and there is no substance in the claim of actual or imputed or inferred bias, I am persuaded that in substance the ground is sufficient to encompass the failure of the RRT to deal with the documentary evidence referred to above.

33                  The final ground is simply a further assertion that the appellant is a genuine refugee.  Again this does not advance the appellant’s case.

conclusion

34                  For the above reasons, I am satisfied that there was a jurisdictional error in the decision of the RRT.

35                  When the matter was before the learned Magistrate, the grounds raised before his Honour, although in my opinion barely sufficient to raise the issue as to the documents, were cast in terms of considerable generality, and do not appear to have specified the particular documents referred to above.  Nevertheless, I am persuaded that there has been an error of law pointed to by the appellant on the part of the RRT which requires that the decision below should be set aside and the matter remitted to the RRT for determination in accordance with law.  The Minister should pay the costs of the appeal and of the hearing below.

36                  I have already made the necessary orders.  Accordingly, there is no necessity to repeat them in these reasons.  

Associate:

Dated:              19 October 2004