FEDERAL COURT OF AUSTRALIA

SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195

SZEZI v minister for IMMIGRATION and multicultural and INDIGENOUS affairs

NSD 1739 of 2004

ALLSOP J

9 SEPTEMBER 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.

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

1                     This is an appeal against orders made by a Federal Magistrate dismissing an application for review by the appellant in respect of a decision of the Refugee Review Tribunal (the “Tribunal”) which affirmed the decision of a delegate of the respondent Minister not to grant a protection visa.

2                     The matter was heard by me, in the appellate jurisdiction of the Court, sitting as a single Judge, pursuant to a direction of the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth).

3                     The appellant is a citizen of Bangladesh.  The Tribunal’s decision recorded the appellant’s claims as follows.  He claimed that he feared persecution on the basis of his homosexuality.  He claimed that after family and societal pressure was placed on him in Bangladesh for him to marry he went to Saudi Arabia to work.  When he returned to Bangladesh on one occasion with his male friend, their relationship was discovered.  The two were disciplined by the local union council and the Mosque committee.  His father then cut off contact with him and he was eventually forced to leave the country.  The appellant claimed that he feared that Muslim fundamentalists will persecute him and that Bangladeshi authorities will discriminate against him.

4                     The delegate of the Minister accepted that the appellant was homosexual and found that the claim that he and his friend had been arbitrated by the local mosque and council plausible.

5                     Before the Tribunal, the appellant was invited to attend a hearing on the basis that the Tribunal was unable to make a favourable decision on the limited information the appellant had provided.  The appellant initially responded to the invitation by indicating that he would attend.  However on the day before the hearing the appellant's migration adviser wrote to the Tribunal and advised that the appellant did not want to attend the hearing.  The Tribunal telephoned the appellant’s representative to advise him again that on the basis of the limited information provided in the appellant’s application it was unable to make a decision favourable to the appellant.

6                     The claims of the appellant recounted by the Tribunal were taken from information that the appellant had provided to the Department or the delegate, not to the Tribunal.

7                     The Tribunal proceeded to determine the application on the papers finding that appellant had not provided sufficient information in support of his claims to satisfy it of facts that would enable it to be satisfied that he had a well-founded fear of persecution in Bangladesh. 

8                     The relevant reasons of the Tribunal were as follows:

The applicant [name provided] has not provided the level of detail necessary to satisfactorily establish the relevant facts in his case.  Questions which remain unanswered include precisely when and how [the applicant’s] alleged homosexuality became known to others, what he means when he says that he and his boyfriend were “arbitrated” by the local council and mosque, how he was able to leave Bangladesh unharmed if, as he claims, he is a risk of [sic] being killed or crippled because of his sexual preference, why he returned to Saudi Arabia after his sexuality became known in Bangladesh if, as claimed, he was in danger there and how he was able to live in Saudi Arabia for five months after his sexuality became known in Bangladesh if, as claimed, he was in danger there and how he was able to live in Saudi Arabia for five months after his sexuality became known to others given his claim that his sexual preference would be known if he returned there now.  If [the applicant] had attended the hearing it would have been possible to investigate these matters more fully.  However, despite being advised that I had reviewed the papers related to his case and could not make a favourable decision on the basis of that information alone, he has provided no further information in support of his claims and declined to attend the hearing and, on the evidence currently before me I am not satisfied that his claims regarding his sexuality and the problems it has caused him in Bangladesh are true.  I therefore cannot be satisfied that he has a well-founded fear of persecution in Bangladesh because of [sic] he is a member of the particular social group of Bangladeshi homosexuals or for any other reason contained in the Convention.

9                     Before the Federal Magistrate, the appellant filed an amended application setting out nine grounds of review. 

10                  Ground one claimed that there was a denial of procedural fairness.  The first particular related to the appellant’s failure to attend the Tribunal hearing.  The particular mentioned that a letter that he had allegedly written to his migration agent was not included in the Court Book.  However, it would appear from the documents in the Court Book that the appellant initially indicated that he wished to attend the hearing and that later his authorised migration agent notified the Tribunal that he had been instructed by the appellant that the appellant did not wish to attend the hearing.   The Federal Magistrate could discern no reviewable error in respect of this matter.  I agree.

11                  The second procedural fairness particular was that the Tribunal failed to provide him with an opportunity to deal with adverse information contained in the independent country information.  The Federal Magistrate held that the Tribunal's decision did not depend in any way on country information or any other adverse information that was required to be brought to the appellant’s attention. The Tribunal’s reasons were related to the insufficiency of the material placed before it by the appellant and its express state of lack of satisfaction.  This claim of denial of procedural fairness was and is groundless. 

12                  The third procedural fairness particular referred to Muin v Refugee Review Tribunal (2002) 190 ALR 601 and asserted that the appellant’s case was identical to that case.   There was no apparent evidentiary foundation laid for reliance on the Muin decision.  The Federal Magistrate directed himself to the decision of the Full Court in NADR v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 465 as authority for this finding.  There was no error displayed here.

13                  The appellant also said that he sought to rely on the decision in NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494.  The appellant was unable to expand on this.  In any event, NARV was not followed by later Full Courts in VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82, Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178.

14                  The Federal Magistrate rejected the procedural fairness claim.  I perceive no error in that conclusion.

15                  The second ground related to s 424A of the Migration Act 1958 (Cth) (the “Act”) and suggested that the appellant was not provided with independent country information.  This ground was not properly particularised. The Federal Magistrate held that the Tribunal did not rely on independent country information when reaching its decision.  I agree.  In any event Full Courts in the case referred to above have clearly decided that country information falls within the exception in s 424A(3)(a).

16                  Grounds three to nine were not particularised. They included the claims that procedures required under the Act were not observed; that the Tribunal ignored the merits of the claim; that the Tribunal failed to take into account relevant considerations; that the Tribunal incorrectly interpreted the applicable law; that the Tribunal decision was unjust; that the Tribunal decision was not justified by the evidence used in the decision; that the decision was an improper exercise of power.  At the hearing before the Federal Magistrate the appellant was unable to address any of these grounds.

17                  The Federal Magistrate dismissed the application.

18                  The notice of appeal to this Court (entitled “draft notice of appeal”) asserts seven grounds.  None is particularised. 

19                  The first ground asserts that the Federal Magistrate failed to find error of law, jurisdictional error, procedural fairness, relief under s 39B of the Judiciary Act 1903 (Cth).

20                  The second ground seeks to rely on the Muin decision. The Federal Magistrate dealt with this ground. The ground does not particularise how the Federal Magistrate erred with respect to this decision.

21                  The third and fifth grounds assert factual issues and fail to raise any error or ground of appeal.

22                  The fourth ground asserts that due to two recent High Court judgments s 474 of the Act is ineffective and that the Federal Magistrate erred by not considering this. This ground discloses no coherent ground of appeal.

23                  The remaining grounds simply cite the judgments of “Plaintiff S157 v Commonwealth [2003] HCA 1” and “SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74.”

24                  In his written submissions of some 8 pages, the appellant reasserts his reliance on the Muin ground, but fails to expand upon it. The appellant also raises for the first time the grounds of actual bias and bad faith on the part of the Tribunal member. These grounds are unsubstantiated and without basis.

25                  At the hearing the appellant declined the offer to put any submissions orally.

26                  Subject to one issue, to which I will come, the appeal is without merit.  The Tribunal made plain to the appellant that he needed to come to the hearing to put matters to it.  He did not.  The Tribunal thus remained unsatisfied of the relevant criterion under the Migration Act 1958 (Cth) and regulations thereunder:  that Australia had protection obligations to the appellant under the Refugees Convention.  The reasons of the Tribunal, which I have set out, in a rational way express why it was not satisfied that the appellant had a well founded fear of persecution.  In NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119 I said the following at [52]-[56]:

If the Refugee Review Tribunal (the Tribunal) comes to the view, apparently within the bounds of reason, that, having considered the papers, it is not satisfied that Australia owes protection obligations to an applicant such as the appellant, it is required to inform the applicant of that fact and invite him or her to a hearing to put his or her case.

That was the position here. Such an invitation was given.

The appellant did not take up that invitation.

The Tribunal remained unsatisfied of the relevant matter to which I have referred.

In those circumstances, unless the Tribunal somehow misdirected itself, or otherwise failed to comply with the Migration Act 1958 (Cth) (the Act) or other applicable law, ss 36 and 65 of the Act, read together, required the refusal of the visa.

27                  Those comments apply here.

28                  I raised with Mr Reilly, who appeared for the respondent, whether the High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 when read with the Full Court’s reasons in Minister for Immigration and Ethnic Affairs v Al Shamry (2001) 110 FCR 27 meant that there was a failure to comply with s 424A of the Migration Act.  In this respect I refer, without repeating it, to my reasons in SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200.

29                  On one view, it might be said that since the only information that was before the Tribunal about the appellant’s circumstances was information not withdrawn from the operation of s 424A(1) by s 424A(3)(b), it must be that that information was the reason or part of the reason for the decision.  That is too simplistic an analysis.  In SZECF I discussed the purpose of s 424A.  Its operation is to be understood conformably with that purpose.  Whilst in some cases an “unbundling” is necessary in order, sensibly, to apply s 424A to the expressed reasons of the Tribunal, here, the reason for the decision is plain.  The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state.  It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information.  The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited.  It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision.  It was the lack of the requested further assistance and explanation that was the reason.

30                  Thus, in my view, there was no failure to comply with s 424A.

31                  If I be wrong about the characterisation of the reason for the decision, I would remit to the Federal Magistrates Court the following questions:

(a)      whether the letter inviting the appellant to a hearing complied with s 424A(1)(b);

(b)     whether the manner of sending complied with s 424A(2); and

(c)      if no to either (a) or (b), whether in the circumstances (including any additional evidence) relief should be granted.

32                  As to (c) above, one issue which may arise is whether any differently framed letter would have brought the appellant to the hearing.  He was after all told (twice) by the Tribunal that without his assistance and further information, it could not make a decision favourable to him.   He was told this and he had a migration adviser at the time, yet he did not attend.

33                  The appeal should be dismissed with costs.

Associate:

Dated:              9 September 2005