FEDERAL COURT OF AUSTRALIA

SZBMC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1882

MIGRATION – application for a protection visa – whether Tribunal failed to consider an issue – whether Tribunal complied with requirements of s 424A of the Migration Act 1958 (Cth) – where similarities between appellant’s statement and statements of other visa applicants who had the same migration adviser – whether similarities were part of the reason for Tribunal affirming decision under review. 

PRACTICE AND PROCEDURE – application for leave to amend notice of appeal – whether expedient in the interests of justice to grant leave to amend. 

Migration Act 1958 (Cth) s 424A

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 cited

In Marriage of F (2001) 161 FLR 189 cited

Ling v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1069 distinguished

Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438cited

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162referred to

SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 769 referred to

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

VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 cited

SZBMC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1182 of 2005

BRANSON J

21 DECEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The orders made by the Federal Magistrates Court be set aside and in lieu thereof it be ordered:

(a)            an order in the nature of certiorari issue directed to the Refugee Review Tribunal quashing the decision made on 30 July 2003 in matter N02/41412;

(b)            an order in the nature of prohibition issue directed to the first respondent prohibiting the first respondent from giving effect to the Refugee Review Tribunal’s decision made on 30 July 2003 in matter N02/41412;

(c)            an order in the nature of mandamus issue directed to the Refugee Review Tribunal requiring it to hear and determine according to law the application for review of the decision of the delegate of the first respondent dated 18 December 2001 in matter 2001/046369.

3.         The first respondent pay the appellant’s costs of the appeal.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

INTRODUCTION

1                     On the hearing of this appeal from an ex tempore judgment of the Federal Magistrates Court the appellant sought leave to amend his notice of appeal.  The appellant was unrepresented before the Federal Magistrates Court but now has the advantage of being represented by counsel.  He wishes in this Court to rely on arguments that he did not advance when he appeared unrepresented before the Federal Magistrates Court.

2                     The notice of appeal originally filed by the appellant is in a standard form often filed in this Court by unrepresented appellants whose applications for judicial review of decisions of the Refugee Review Tribunal (‘the Tribunal’) are unsuccessful.  It bears no sensible relationship to the judgment of the Federal Magistrate.

3                     The draft amended notice of appeal upon which the appellant seeks leave to rely raises two grounds of appeal.  First, that the learned Federal Magistrate erred by failing to find that the Tribunal had itself failed to consider an issue raised by the claims and material before it, namely whether the appellant has a well‑founded fear of persecution by reason of his membership of a social group constituted by artists who practice traditional Bengali culture.  Secondly, that the Federal Magistrate should have found that the decision of the Tribunal was vitiated by its failure to comply with s 424A of the Migration Act 1958 (Cth) (‘the Act’).  The information that is characterised as falling within that section is the information that at least two other applicants for protection visas, who were represented by the same migration agent as the appellant, had made claims which were very similar to his claims.

background facts

4                     The appellant, a citizen of Bangladesh, arrived in Australia on 1 September 2001 and four days later applied for a protection visa.  On his application form he gave his occupation as ‘artist’.  In the statement which formed part of his visa application he described his family as a middle class, educated family which is progressive, and ‘politically and art culture oriented’.  The claims advanced by the statement related principally to the appellant’s political activity on behalf of the Bangladesh Nationalist Party (‘BNP’).  They included a claim that a false and fabricated case had been filed against him and a number of his political friends under sections of the Bangladesh penal code.  It also noted that on 14 April 2001 he was one of the performers in a Bengali New Year open‑air concert at which nine artists were killed by Muslim terrorists.  Additionally the statement referred to his having been attacked by fundamentalist Muslim terrorists because of his support of the feminist author, Taslima Nasrin.

5                     The appellant’s migration agent, by a letter dated 30 November 2001, submitted further information in support of the appellant’s application for a protection visa.  This letter elaborated on the appellant’s political activities in Bangladesh.  It also included the following passage:

‘In Bangladesh Muslims terrorist are very strong they are more ferocious and danger after getting the power of coalition Government.  Still my client is in threatening by Muslims terrorist because he is an Artist singer & entertainer.  Fundamentalist Muslims are against him and his activities.’

6                     A delegate of the Minister on 18 December 2001 decided that the appellant was not entitled to a protection visa.  He noted that the BNP overwhelmingly won the last parliamentary election in Bangladesh and had vowed not to meddle with the judicial process.  He rejected the appellant’s claim to be a supporter of Taslima Nasreen (an alternative spelling of Nasrin).  As to the appellant’s occupation as an artist, the delegate observed:

‘I accept that the claimant may have been an artist which made him a target of fundamentalists.  However, although the fundamentalist party has made a substantial gain during the elections and made a coalition with the BNP, the claimant’s party is still the dominant political force at the moment … State protection will not be lacking in Bangladesh for the claimant.’

decision of the tribunal

7                     The reasons for decision of the Tribunal, under the heading ‘CLAIMS AND EVIDENCE’, note the claims made by the appellant in the statement that formed part of his visa application.  Thereafter the observation is recorded that:

‘All of this was couched in many of the same details and for the most part in the same words as the statement of other applicants with the same adviser, including the applicants in N02/41411 and N02/41414.’

8                     In the same section of the reasons for decision of the Tribunal reference is made to a letter dated 30 November 2001 by which the appellant’s adviser replied to a letter from the Department of Immigration & Multicultural Affairs (‘the Department’).  The letter from the Department had invited the appellant to comment on information from Bangladesh that at the last election the BNP had won a landslide victory over the Awami League.  The letter had foreshadowed a finding that, as a member of the BNP, the appellant could seek protection against Awami League members and even against fundamentalists.  After noting the content of the adviser’s letter, the Tribunal observed:

‘Again, this letter includes the same details, for the most part in the same words, as a comparable letter by the same adviser in relation to other applicants, including the applicants in N02/41411 and N02/41414.’

9                     Additionally, in this section of the Tribunal’s reasons for decision, the appellant’s evidence at the hearing before the Tribunal is summarised.  The following is recorded:

‘The Applicant stated that also religious fundamentalists created problems for him on a regular basis because he is a performer.  Pressed for details, the Applicant stated that they had thrown explosives at the 14 April 2001 performance.  Asked if there were any other problems created for him by religious fundamentalists, the Applicant said that he had been a member of the fan club of Taslima Nasreen and that he had therefore been targeted by them … Asked to confirm that he did not have any other problems with fundamentalists apart from after 14 April 2001, the Applicant then said not really but before these episodes he had plenty of other problems.  Asked about these, the Applicant stated that when he used to do performances the fundamentalists used to come and threaten and ransack the stages.  Queried about the reason for the threats by Muslim fundamentalists if he was just playing traditional music, the Applicant stated that it is their target to destroy this cultural and tradition …

The Applicant also described the events at the concert on 14 April 2001.  The Tribunal put to the Applicant that the authorities had taken appropriate action including arrests and that the annual concert event had been held since without incident.  Asked why he thought there was a continuing threat to himself in this regard, the Applicant stated that he was targeted because they do not like folk music.’

10                  It is also recorded in this section of the Tribunal’s reasons for decision that the Tribunal put to the appellant that it had received essentially the same claims put in the same words by several other applicants with the same adviser.  The appellant’s response was that this was possibly someone else from his group, with whom he had performed, and who had also been a member of the same political party as him, who had come to Australia.

11                  The section of the Tribunal’s reasons for decision under the heading ‘FINDINGS AND REASONS’ commences in the following way:

‘Although the Tribunal does not attached importance to minor inconsistencies of detail arising from the Applicant’s original submissions, it has considered more significant variations in the claims before it arising from the Applicant’s oral evidence at hearing.  The Tribunal was also concerned that the Applicant’s original statement purporting to reflect his own personal experiences included the same details (for the most part in the same words) as the statements of other applicants with the same adviser, including the applicants in N02/41411 and N02/41414, for example in relation to having fled overseas after the 1996 elections (a claim which did not reflect the Applicant’s actual circumstances).

The Tribunal has therefore approached the Applicant’s evidence with some caution and has been unable to rely upon that evidence where implausible or inconsistent with the independent information.

In light of this conclusion, the Tribunal has also approached cautiously the submitted documentation, also against the background of evidence about the pervasiveness of false or fabricated documents provided in relation to Bangladesh cases, evidence which is consonant with the Tribunal’s own experience and observations.’

12                  The Tribunal, for the purpose of its decision, accepted aspects of the appellant’s claims including that he was a member of a group that performed traditional folk songs and that he was present, and injured, during a bomb attack on the crowd at the open‑air New Year performance in April 2001.  It also accepted that he had been convicted of charges brought under the Bangladesh penal code relating to an incident in May 2001.

13                  The Tribunal noted that press reports indicated that the New Year function was perceived by some Muslim fundamentalist extremists as a ‘primary source of secular Bengali nationhood’ and attacked for that reason.  It further observed that police action had been taken against those involved and that there was no independent evidence of subsequent bombings involving performing artists.

14                  The Tribunal concluded with respect to this aspect of the appellant’s claims:

‘The Tribunal does not accept that the attack was targeting Bangladeshi artists in general or the Applicant in particular (and none of the press reports consulted support these contentions) or that he had been threatened or has been subsequently black‑listed or targeted for this reason, or that the bomb‑blast is indicative of a real chance of persecution of the Applicant for a Convention reason or denial of reasonably available protection by the authorities.’

15                  With respect to the appellant’s conviction on allegedly false and fabricated charges, the Tribunal concluded:

‘The evidence before the Tribunal does not indicate, and the Tribunal does not accept, that the Applicant was denied due process or that he was convicted on unreasonable charges in the absence of evidence such that it could be said that this amounted to persecution for a Convention reason.  The Tribunal notes that the Applicant was convicted at a time when there had been for more than a year a settled BNP administration in Bangladesh and there was no evidence or indication that the court itself was politically biased against the Applicant or that there had been political interference by the (BNP) government against the Applicant.  If the Applicant has chosen to let the appeal period pass without taking action through his Bangladesh lawyer (as is indicated in his lawyer’s letter), that is his decision and is not a denial of his rights by the authorities.

In the circumstances, the Tribunal is not satisfied that these legal proceedings or the Applicant’s conviction amount to persecution for a Convention reason or that any legal consequences on return to Bangladesh would do so.’

REASONs FOR JUDGMENT OF the FEDERAL MAGISTRATES COURT

16                  The learned Federal Magistrate, in his reasons for judgment, noted that the appellant’s application for review of the decision of the Tribunal was ‘in template form’ and lacking in particularity.  His Honour also noted that, at the hearing of his application, the appellant said that he was unable to make any representations because he had not yet seen the barrister appointed to advise him.  His Honour declined the appellant’s request for an adjournment of the hearing concluding that the appellant had had plenty of time to secure the services of a barrister.

17                  The Federal Magistrate’s conclusion on the application before him is recorded as follows:

‘I am satisfied that the conclusions to which the Tribunal came are all conclusions supported by evidence readily available to it.  I am satisfied that the applicant was given an opportunity to present his case and did so.  The Tribunal made findings of fact in favour of the applicant and proceeded to consider his case on that basis.  I am unable to see in what way the Tribunal failed to provide the applicant with procedural fairness.  Nor am I able to identify from my reading of the green book any other jurisdictional error into which the Tribunal may have fallen.  I dismiss the application.’

leave to amend

18                  It is easy to feel sympathy with the situation in which the Federal Magistrate found himself.  The application before him was, as he described it, in template form and devoid of particularity.  Having been refused an adjournment the appellant apparently advanced no submissions in support of his application.

19                  Nonetheless, the Federal Magistrate, who proceeded to determine the application on its merits, was under a duty to provide some measure of assistance to the appellant to ensure that he was treated justly (Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 445-446; see also In Marriage of F (2001) 161 FLR 189 at 225‑227).  His Honour was aware of this duty and gave consideration to the contents of the ‘Green Book’ and the reasons for decision of the Tribunal.

20                  As the Federal Magistrate’s ex tempore judgment was given approximately six weeks after the publication of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 his Honour may be assumed to have had s 424A of the Act in mind when he gave consideration to the reasons for decision of the Tribunal.  I see no reason to conclude that his Honour did not turn his attention additionally to whether each claim raised by the material put forward by the appellant was given proper consideration by the Tribunal (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389).  It is, of course, regrettable that his Honour did not have the assistance of a qualified advocate acting in the appellant’s interest when giving consideration to these issues.

21                  In all of the circumstances I consider that it is expedient in the interests of justice to grant the appellant leave to amend his notice of appeal in the manner foreshadowed by his counsel (VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46]‑[48]).  The relevant circumstances include particularly that the appellant was unrepresented before the Federal Magistrates Court, that his Honour gave consideration to whether the decision of the Tribunal was affected by jurisdictional error (ie he did not dismiss the application for want of prosecution) and that the proposed grounds of appeal are not obviously unmeritorious.  Indeed, as is apparent from my reasons below, I consider that one of them must succeed.  I am not persuaded that the grant of leave to amend should be conditional upon the costs order made by the Federal Magistrate being unchallenged.

consideration

Approach of the Tribunal

22                  The approach taken by the Tribunal to the appellant’s evidence is explained in the passage from its reasons for decision reproduced in [11] above.  The intended meaning of the first sentence of that passage is not clear.  It may be that the ‘more significant variations in the claims before it arising from the [appellant’s] oral evidence at trial’ to which the Tribunal refers are the result of internal inconsistencies in the appellant’s oral evidence to the Tribunal.  Alternatively, the Tribunal may be referring to inconsistencies between the appellant’s oral evidence on the one hand and the statement that formed part of his visa application, or the additional information provided by his migration agent, or possibly something else, on the other hand.  I do not think that it is material to this appeal that I am unable to resolve this question.

23                  It is clear that the Tribunal attached weight to the fact that the original statement of the appellant (which I assume to be the statement which formed part of his visa application) included the same details, for the most part in the same words, as statements made by others who had the same adviser.  This fact was one of two reasons which the Tribunal identified for approaching the appellant’s evidence with caution and not relying on that evidence where, for example, it was inconsistent with independent evidence.

Did the Tribunal Fail to Consider an Issue?

24                  The first ground of appeal in the amended notice of appeal asserts that the Federal Magistrate erred by failing to find that the Tribunal had itself failed to consider whether the appellant had a well-founded fear of persecution by reason of his membership of a particular social group.  In my view, the material identified in [5], [9] and [13] above raised for consideration by the Tribunal the issue of whether the appellant has a well-founded fear of persecution in Bangladesh because, as a performer of traditional folk music, or alternatively an artist who practices traditional Bengali culture, he is a member of a particular social group  within the meaning of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (‘the Convention’).

25                  The Tribunal’s reasons for decision do not include the phrase ‘particular social group’. Nor do they record a conclusion that performers of traditional folk music, or artists who practice traditional Bengali culture, do not constitute a particular social group in Bangladesh within the meaning of the Convention.  However, I am not satisfied that the Tribunal failed to consider whether the appellant has a well‑founded fear of persecution as a member of a particular social group because of his occupation.  The Tribunal’s reasons for decision record that the Tribunal was not satisfied that the appellant was ever affected by acts of Muslim terrorists other than incidentally by his presence at the open‑air concert.  They also note that there was no independent evidence before the Tribunal of bombings subsequent to the attack on the New Year open-air concert involving performing artists.  It seems to me that these aspects of the Tribunal’s reasons for decision suggest that the preferable reading of the reasons for decision is that the Tribunal concluded either that the appellant does not fear persecution because he is, or will be, identified as a performer of traditional folk music or as an artist who practices traditional Bengali culture, or that, if he does, such fear is not well-founded. 

26                  I therefore conclude that the Tribunal did not fail to consider whether the appellant has a well-founded fear of persecution as a member of a particular social group because he is a performer of traditional folk music or an artist who practices traditional Bengali culture.  Of course, if I am wrong to so conclude, having regard to the finding recorded in [24] above, the first of the grounds of appeal in the amended notice of appeal must succeed.

 Section 424A of the Migration Act  

27                  The second ground of appeal in the amended notice of appeal contends that the Federal Magistrate should have found that the Tribunal failed to comply with s 424A of the Act.  Before it can be determined whether the Tribunal failed to comply with the requirements of s 424A, it is necessary to determine whether there was information, other than information of the kinds identified in subs 424A(3), that the Tribunal considered was the reason, or part of the reason, for affirming the decision under review (see SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 769 at [55]). For the reasons identified in [25] above, I consider it appropriate to proceed on the assumption that a reason why the Tribunal relevantly affirmed the decision under review was that it was not satisfied that the appellant has a well-founded fear of persecution as a member of a particular social group. 

28                  The appellant gave evidence that when he used to do performances Muslim fundamentalists threatened him and ransacked the stage.  The finding of the Tribunal that the appellant was not affected by acts of Muslim terrorist other than incidentally by his presence at the open‑air concert involved the rejection of this evidence.  No reason is expressly given by the Tribunal for its failure to accept the appellant’s evidence in this regard.

29                  The appellant’s evidence about threats being made to him and the stage being ransacked is not described by the Tribunal as implausible.  It seems that the Tribunal regarded it as inconsistent with the independent evidence in the sense that it found no support in the independent evidence before the Tribunal.  For this reason, having regard to the statement of the Tribunal set out in [11] above, and in particular the observation that it ‘therefore’ approached the appellant’s evidence with some caution and was unable to rely on it where it was inconsistent with the independent information, it is necessary to conclude that the Tribunal rejected the appellant’s evidence about the problems experienced by him as a performer for the reasons that caused it to approach the appellant’s evidence with caution. One of the two reasons given by the Tribunal for treating the appellant’s evidence with caution was the similarity between the appellant’s original statement and statements made by other visa applicants who had the same adviser.  I therefore conclude that at least part of the reason why the Tribunal was not satisfied that the appellant has a well-founded fear of persecution as a member of a particular social group was the similarity between his original statement and statements made by visa applicants who had the same adviser.

30                  I do not consider that the part played by the similarities was minor or unimportant in the scheme of things; rather I consider that reliance placed by the Tribunal on them was sufficiently integral to the reasoning process of the Tribunal as to require as a matter of fairness that the appellant be told the information and why it was relevant to the review (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [41] per Finn and Stone JJ; SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs at [55]).

31                  Counsel for the Minister did not suggest that the information concerning the similarities fell outside the ambit of s 424A because it is information of the kind identified in one or more of pars 424A(3)(a), (b) or (c).  The Minister did however submit that the information was simply used as part of the Tribunal’s reasoning process with the result that the matter that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review was not the fact of the similar statements but rather the outcome of the Tribunal’s appraisal of that similarity.  The Minister cited in support of this suggested distinction my judgment in Ling v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1069 at [35] (‘Ling’).  However, in doing so, the Minister overlooked my conclusion in Ling that the information the subject of the Migration Review Tribunal’s appraisal in that case was information within the meaning of subs 359A(1).  Being information which the Migration Review Tribunal considered would be the reason or part of the reason for affirming the decision under review, the Migration Review Tribunal was under an obligation to ensure, so far as reasonably practicable, that the applicant understood its relevance to the review.  Its relevance was that the Migration Review Tribunal considered that it indicated that the applicant’s credibility was undermined by his having given evasive and inconsistent responses to questions on an important topic.  However, the fact that the Migration Review Tribunal considered that it indicated that the appellant’s credibility was undermined was not itself ‘information’ within the meaning of s 359A.  I therefore reject the Minister’s submission that it was the Tribunal’s appraisal of the similarities, rather than the fact of the similar statements, that was the reason, or part of the reason, for affirming the decision under review. 

32                  For the above reasons, I accept the submission that the information in the possession of the Tribunal that:

(a)                statements of other visa applicants, including the applicants in N02/41411 and N02/41414, included the same details, and for the most part in the same words, as the statement of the appellant; and

(b)               the other visa applicants had the same adviser as the appellant,

was information that the Tribunal was obliged to give to the appellant by a method specified in s 441A of the Act.  The Tribunal was also obliged to ensure, so far as reasonably practicable, that the appellant understood why the information was relevant to the review and invite him to comment on it.  Although the Tribunal told the appellant of its concerns arising from the similarities between his original statement and statements made by other visa applicants who had the same adviser, it did not thereby comply with the requirements of s 424A of the Act.

33                  I therefore conclude that the second of the ground of appeal in the amended notice of appeal is established. 

34                  I note that counsel for the appellant also submitted that the Tribunal additionally failed to comply with the requirements of s 424A of the Act in:

(a)               concluding that the appellant did not have a well‑founded fear of persecution for a Convention reason because of the legal proceedings allegedly brought against him, or his alleged conviction for, offences against the Bangladesh penal code; and

(b)               rejecting the appellant’s assertion that, as a member and office bearer of the BNP, his position was more insecure after the October 2001 elections. 

35                  I do not accept the above submissions.  Far from rejecting the authenticity of the documents provided to it in support of the allegation that the appellant had been charged and convicted of criminal offences the Tribunal accepted them at face value.  The conclusion of the Tribunal with respect to this aspect of the appellant’s claim was based essentially on its finding that the Bangladesh judiciary is independent of political interference.  This finding was not to any significant extent based on the cautious approach that the Tribunal adopted to the appellant’s evidence.  The conclusion of the Tribunal with respect to the assertion that, as a member and office bearer of the BNP, the appellant would be more, rather than less, secure after the election won overwhelmingly by the BNP was expressly based on positive evidence before the Tribunal.  In my view, there is no reason to believe that this conclusion was based to any significant extent on the cautious approach taken by the Tribunal to the appellant’s evidence.

conclusion

36                  The appeal will be allowed, the orders made by the Federal Magistrate, including the order as to costs, will be set aside and in lieu thereof the constitutional writs sought by the appellant’s application for judicial review will issue.

Associate:

Dated:              21 December 2005