FEDERAL COURT OF AUSTRALIA

SZBNK v Minister for Immigration & Multicultural &
Indigenous Affairs [2005] FCA 998

MIGRATION – Refugee Review Tribunal – statutory obligation on Tribunal to give applicant for review particulars of information the Tribunal considers would be the reason or part of the reason for affirming decision under review – applicant’s migration agent re-supplying to Tribunal information contained in original application for protection visa – exception contained in s 424A(3)(b) of Migration Act 1958 (Cth) applies.

Migration Act 1958 (Cth) s 424A

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 cited

Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110

FCR 27 discussed

NAZY Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744 distinguished

VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 cited

M 55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131 referred to

SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931 cited

SAAY v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 393 cited

Minister for Immigration & Multicultural & Indigenous Affairs v Awan (2003) 131 FCR 1 referred to

SZEIE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 987 cited

SZBNK v MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS

NSD 454 of 2005

LINDGREN J

25 JULY 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs of the appeal.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Introduction

1                     The appellant appeals from a decision of the Federal Magistrates Court of Australia (‘FMCA’) delivered on 7 March 2005 (SZBNK v Minister for Immigration [2005] FMCA 361), by which the learned Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 22 August 2003 and handed down on 18 September 2003.  By that decision, the Tribunal affirmed a decision of a delegate of the respondent Minister (respectively ‘Delegate’ and ‘Minister’) not to grant the appellant a protection visa.

Background

2                     The appellant, a national of Bangladesh, arrived in Australia on 12 August 2001.  On 12 September 2001, he lodged an application for a Protection (Class XA) visa subclass 866.  The application was lodged on his behalf by his migration agent.  The approved standard form of application was accompanied by a statutory declaration in which the appellant claimed to have suffered persecution in Bangladesh for reason of political opinion and to fear persecution on that ground if he should return to Bangladesh.

3                     On 8 February 2002, the Delegate wrote to the appellant setting out certain information which the letter said might be taken into account on, and lead to rejection of, the protection visa application.  The letter invited the appellant to comment on the information or to submit further information.  The appellant did not reply.

4                     On 27 March 2002, the Delegate refused to grant the appellant the visa.  On 6 April 2002, the appellant applied to the Tribunal for review of the Delegate’s decision.  The Tribunal held a hearing on 7 May 2003, and, as noted earlier, handed down its decision on 18 September 2003.

Tribunal’s reasons

5                     At the heart of the appellant’s application for the protection visa was his claimed membership of, and association with, the Islami Chattra Mojlish (or Majlish).  The Tribunal found that this was an obscure student group, not clearly linked to any political party, but aligned with Islamist movements and militants.  The appellant claimed that he had been a leading member of this ‘organisation’, that he had been attacked by members of the Awami League in 1997, and that false charges had been brought against him by his political foes.

6                     He claimed to have lived in Saudi Arabia from June 2000 until he came to Australia in August 2001.

7                     The Tribunal noted numerous inconsistencies and implausibilities in the appellant’s claims and supporting documents, and described him as an ‘unreliable witness’.  The Tribunal rejected all of the appellant’s claims to have suffered harm.

The application for review

8                     Before Barnes FM, the appellant relied on three grounds of review:

1.         ‘The Tribunal failed to take into account a relevant consideration when it assessed whether there was a real chance of the appellant being persecuted in Bangladesh based on the fact that he was charged with a false case of his political engagement with Islami Chattra Majlish’;

2.         The Tribunal’s satisfaction that the appellant was not a refugee was not based upon reasoning which provided a rational or logical foundation for that satisfaction (her Honour treated this ground as being that there was no evidence or logical basis for the Tribunal’s finding that it was not plausible that the appellant was charged with false cases because of his political engagement with Islami Chattra Majlish); and

3.         The Tribunal failed to inform the appellant of adverse information that was a reason or part of a reason to affirm the decision under review.

9                     Particulars given of this third ground were that the Tribunal did not inform the appellant that the documents he provided were fraudulent.  The learned Federal Magistrate considered this third ground as raising both a contention that the Tribunal had not complied with s 424A of the Migration Act 1958 (Cth) (‘the Act’), and a contention that it had failed to accord procedural fairness to the appellant.

10                  Her Honour found none of the three grounds established.

The present appeal

11                  The appellant’s amended notice of appeal can be summarised as raising the following grounds:

  1.       Failure of the Federal Magistrate to find ‘error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act 1903’;

  2.       Muin v Refugee Review Tribunal (2002) 190 ALR 601 (‘Muin’) [the ground of appeal does no more than cite the case and its catchwords];

  3.       Failure of her Honour to consider ‘the real state of affairs of the [appellant]’ and the appellant’s fear of harm;

  4.       Section 474 of the Act is ‘ineffective as per the recent two decisions of the High Court of Australia’;

  5.       Error of law in not accepting that the appellant was a member of Islami Chattra Mojlish, notwithstanding documents submitted by the appellant to the Tribunal sufficient to prove that membership;

  6.       Failure to find that the Tribunal erred in law ‘in determining that [the appellant] was a member of Islami Chattra Mojlish although it had sufficient evidence in front of it to examine’;

  7.       Failure to find that the Tribunal did not disclose adverse country information which was used against the appellant, in non-compliance with the Act;

  8.       Failure of the Federal Magistrate failed to find that error [sic];

  9.       That the appellant was not satisfied with the Federal Magistrate’s reasons;

10.       That the appellant is not represented by a barrister because of financial hardship;

11.       That the appellant provided relevant documentary evidence on which the Tribunal did not comment, and its lack of proper investigation signified that there was jurisdictional error within Plaintiff S 157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

12.       ‘More details’ to be provided in the appellant’s written submissions.

12                  The appellant provided a written submission making factual assertions which he said should be accepted in preference to the findings of the Tribunal.  His written submission included the following:

‘The Tribunal member has taken irreverent [sic] consideration to deciding the fate of claim in accordance with former section 476(3)(d) of the Migration Act 1958.’

I will ignore the reference to the repealed provision.  The written submission does not identify any particular irrelevant consideration, although it refers to matters which, according to the submission, the Tribunal should have found persuasive.

13                  Counsel for the Minister did not oppose the appellant being granted leave to raise grounds which had not been raised in the FMCA.

14                  The first ground of appeal was not particularised, and, in these circumstances, adds nothing to the other grounds of appeal.

15                  In relation to the second ground of appeal, neither the written nor oral submissions of the appellant explain how the High Court’s decision in Muin is relevant to the circumstances of the present case.  I am not enlightened in this respect by anything that occurred before the learned Federal Magistrate because the appellant did not take the point before her.  I note, in passing, that there were not, in the present case, as there were in the Muin, agreed facts which might have disclosed a failure of the Minister to send documents to the Tribunal or some misleading of the appellant.  The second ground of appeal is not made out.

16                  I refer to grounds 5 and 6 at [28] below.  Ground 7 is answered by s 424A(3)(a) of the Act.  I accept the submission of counsel for the Minister that ‘the remaining grounds at most seek merits review or are meaningless in the absence of proper particularisation’.

17                  Counsel for the Minister properly raised for consideration s 424A of the Act and the decisions of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 (‘SAAP’), of a Full Court of this Court in Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27 (‘Al Shamry’), and of Jacobson J in NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744 (‘NAZY’).  Following the hearing of the appeal, the Minister’s solicitors also referred me to the decision of Madgwick J in SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931 (‘SZFKL’).  Reference might also have been made to Minister for Immigration & Multicultural & Indigenous Affairs v Awan (2003) 131 FCR 1 (‘Awan’). 

18                  Section s 424A provides:

‘(1)      Subject to subsection (3), the Tribunal must:

(a)       give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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

(c)        invite the applicant to comment on 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.

(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; or

(c)        that is non‑disclosable information.’

19                  Counsel for the Minister raised the question on the basis that information contained in the appellant’s application for the protection visa was or may have been within s 424A(1), unless it fell within the exception provided for in s 424A(3)(b).

20                  In Al Shamry, a Full Court of this Court held that information that an applicant for a protection visa had given at the airport upon entering Australia, that is to say, prior to the making of the application for the protection visa, did not fall within s 424A(3)(b).

21                  In NAZY, Jacobson J seemed to regard Al Shamry as authority for the proposition that information contained in the later application for a protection visa also did not fall within s 424A(3)(b) (and cf the earlier case, SAAY v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 393 at [33]).  However, in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471, Finn and Stone JJ pointed out (at [18]) that the relevant passages in Al Shamry are strictly obiter dicta, the correctness of which their Honours were not required to decide: see [22].  In Awan, Gray ACJ doubted the correctness of those passages in Al Shamry.  

22                  Counsel for the Minister informed me that the Minister has requested that a Full Court hear the appeal from the FMCA in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (NSD 521 of 2005) in order that the Minister have the opportunity to argue that Al Shamry was in error on the present issue.

23                  NAZY is distinguishable from the present case because, in the present case the information contained in the application for the protection visa was also supplied by the appellant to the Tribunal for the purpose of his application for review.  Counsel for the Minister submitted that this happened on two occasions.  The first occasion relied on was in the course of the hearing before the Tribunal.  According to the Tribunal’s reasons for decision, the appellant assured the Tribunal member that everything he said in conjunction with his application for the visa was ‘correct, true and complete’.  In support of her submission, the Minister asks me to infer from this that the appellant ‘gave for the purpose of the application’ before the Tribunal, the information contained in his primary application.  On the basis that I draw that inference, the Minister relies on a passage from the judgment of Gray J in M 55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131 (‘M 55’) at [25], where his Honour said:

‘By means of the written submission of his counsel to the Tribunal, the appellant relied expressly on the terms of his protection visa application.  He informed the Tribunal that the detail of the claims was set out in the protection visa application and his earlier statements.  He thereby invited reference to the copy passport, which was attached to the application form.  There can be little doubt that the appellant intended that the Tribunal should look at this material.  In my view, he thereby provided the passport, and the information to be derived from it, to the Tribunal for the purpose of the application for review.  This was sufficient for the appellant to have been taken to give the information contained in the copy passport to the Tribunal for the purpose of his application for review, and therefore for that information to fall within s 424A(3)(b) of the Migration Act.  This provision operated to exclude the copy passport from the Tribunal’s obligations pursuant to s 424A(1) and (2).’

In NAZY, Jacobson J (at [37]) construed this passage as requiring that, in effect, in order to fall within s 424A(3)(b) the information contained in the primary application ‘must be put forward in chief’, the assumption being that by doing so the applicant is aware of the significance of the information.

24                  In NAZY, as in the present case, the transcript of the hearing before the Tribunal was not in evidence, and counsel for the Minister asked his Honour to infer from what was contained in the Tribunal’s reasons that the appellant had himself given to the Tribunal, as part of his application for review, information which had been contained in his original application for the visa.  Jacobson J considered, however, that the relevant passage in the Tribunal’s reasons showed that the Tribunal had raised the question of information contained in the protection visa application form, and that it was in response to questioning by the Tribunal member, that the appellant affirmed that the contents of the visa application were ‘correct, true and complete’.

25                  In this respect, NAZY was similar to SZFKL, in which, however, Madgwick J had no difficulty in concluding that the effect of the applicant’s responses to questioning by the Tribunal was that the applicant was giving the relevant information in his visa application to the Tribunal for the purposes of s 424A(3)(b).  SZFKL was not referred to in NAZY.  This is readily understandable:  SZFKL was decided on 20 June 2005, only three days before NAZY, and the written reasons in SZFKL issued after the decision in NAZY.

26                  The relevant passage in the Tribunal’s reasons in the present case reads:

‘At the RRT hearing, the Applicant assured the Tribunal that everything he said in connection with his primary application was “correct, true and complete”, stating that his adviser provided a translation into Bengali of all the material that was forwarded to the Department in English.’

27                  I do not infer, on this slender basis, that the present appellant ‘put forward in chief’ the information in question in his application before the Tribunal, as distinct from responding to a question asked by the Tribunal member.  I express no opinion, however, as to the correctness of Al Shamry, NAZY or SZFKL on the present issue, as to the correctness of Jacobson J’s understanding of the passage from Gray J’s judgment in M 55 (set out at [23]), or as to the appropriateness of the distinction between putting forward information ‘in chief’ and responding to a question by the Tribunal.

28                  I find it unnecessary to express an opinion on these matters because I uphold the second basis on which the Minister relies for distinguishing NAZY,namely, that the appellant, through his migration agent, wrote to the Tribunal on 26 March 2003 making a submission in support of the application for review, and, subject to minor adjustments (such as a change from the first person to the third person), that the agent’s letter repeated the content of the appellant’s statutory declaration which had accompanied his application for the visa.  I accept the Minister’s submission that, even on the assumption that Al Shamry and NAZY are correct in the present respect, the information in question is within s 424A(3)(b) with the result that the Tribunal is not shown to have failed to comply with the requirements of subs 424A(1) and (2) in relation to the information contained in the appellant’s application for the visa.

29                  Before passing from the s 424A issues, I note the obviously unsatisfactory state of the authorities on them and the need for the position to be clarified either by authoritative decision or legislative amendment.  The frequency with which these issues arise emphasises that unsatisfactoriness:  since judgment was reserved in this case, yet a further decision touching on the same issues has been given (SZEIE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 987). 

30                  I do not propose to scrutinize the Tribunal’s reasons with a view to detecting mere possibilities that the Tribunal did not comply with s 424A(1) and (2) or with the requirements of procedural fairness.  The transcript of the proceeding before the Tribunal is not in evidence before me.  It is desirable, however, that I address the third ground of the application for review in the FMCA: see [8] and [9] above.  This ground is not reflected in the grounds of appeal to this Court, unless the fifth and sixth grounds of appeal (set out at [11] above) were intended to raise it.

31                  As the learned Federal Magistrate observed, the Tribunal did not find that the documents put before the Tribunal by the appellant were forgeries.  The Tribunal member studied the documents on their face, and he compared aspects of their contents to the appellant’s claims, and found numerous inconsistencies and implausibilities.  The Tribunal member ‘dismissed’ one of them, a letter, as ‘an absurd, self-serving concoction’, and had in mind a letter in which the writer would say anything, no matter how implausible, to support the appellant in his attempt to stay in Australia.

32                  In the absence of the transcript, I do not know how many of the numerous implausibilities and inconsistencies mentioned in the Tribunal’s reasons for decision were put to the appellant for his response, but the Tribunal’s reasons indicate at least that some were.  Perhaps all were.

33                  The learned Federal Magistrate dealt with the third ground of appeal that was before her in more detail that I have just done.  For the more detailed reasons she gave, I agree that the evidence does not establish a non-compliance with s 424A(1) or a failure by the Tribunal to accord procedural fairness.

Conclusion

34                  For the above reasons, the appeal will be dismissed with costs.

Associate:

Dated:              22 July 2005