FEDERAL COURT OF AUSTRALIA

SZGLM v Minister for Immigration and Citizenship [2007] FCA 1840

SZGLM v MINISTER FOR IMMIGRATION AND CITIZENSHIP

AND REFUGEE REVIEW TRIBUNAL

NSD 1475 OF 2007

LINDGREN J

12 NOVEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The appellant appeals from a decision of the Federal Magistrates Court of Australia delivered on 12 July 2007 dismissing his application for review of a decision of the Refugee Review Tribunal (the RRT):  SZGLM v Minister for Immigration [2007] FMCA 1119.  The RRT’s decision was handed down on 14 December 2006.  By that decision, the RRT affirmed a decision of a delegate of the first respondent (respectively the Delegate and the Minister) refusing to grant the appellant a protection visa.

2                     The second respondent, the RRT, has filed a submitting appearance, save as to costs.

PROCEDURAL BACKGROUND

3                     The appellant was born on 15 December 1974 and is a citizen of Bangladesh.  He arrived in Australia on 4 July 2004 and submitted his application for the protection visa on 15 July 2004, claiming to fear persecution on the ground of religion.

4                     The Delegate refused the visa application on 12 October 2004, and on 9 November 2004 the appellant sought review by the RRT.  He attended a hearing before the RRT on 14 February 2005.

5                     On 15 February 2005, the RRT wrote to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) (the Act).  It is not necessary for me to address the detail of that letter.

6                     On 5 May 2005, the RRT handed down its decision affirming the Delegate’s decision.  By consent, the Federal Magistrates Court made an order on 7 April 2006 setting aside the RRT’s decision and remitting the matter to the RRT.

7                     The appellant attended a further hearing before the RRT, differently constituted, on 25 July 2006.

8                     On 29 August 2006, the RRT wrote to the appellant, again pursuant to s 424A of the Act.  What prompted that letter was that the RRT had referred the appellant’s claim and supporting materials to the Australian High Commission in Dhaka, which had supplied certain information to the RRT.  The appellant responded to the RRT’s letter by a letter which bore the date 19 September 2006.  I note, however, that this letter was not received by the RRT until 26 September 2006 (the RRT had called for any response to be furnished to it by the appellant by 21 September 2006).  With his response, the appellant submitted a number of further documents.

9                     The RRT referred the appellant’s response and accompanying documents again to the Australian High Commission in Dhaka.  The RRT wrote a further letter to the appellant on 31 October 2006 pursuant to s 424A, referring to further material that the RRT had received from the Australian High Commission in Dhaka.  The letter called for any response to be made by 23 November 2006.  No response was received by that date, and the RRT member signed his statement of decision and reasons on 24 November 2006.  On 27 November 2006, the RRT wrote to the appellant advising that the RRT’s decision would be handed down on 14 December 2006.

10                  On 30 November 2006, the RRT received from the appellant a letter which bore the date 19 November 2006.  This letter again enclosed further documents.  It will be noted that on this occasion, the letter was received eleven days after the date it bore, and the date it bore was a date four days prior to the deadline of 23 November 2006.

11                  It is evident from a file note made by the RRT member on 30 November 2006, that is, the date on which the appellant’s letter and accompanying documents were received, that the member considered the letter and documents and decided not to recall his statement of decision and reasons.

12                  On 5 December 2006, the RRT wrote to the appellant advising that the RRT had received his letter dated 19 November 2006 and that the member had considered that material.  The RRT’s letter also confirmed that the RRT’s decision would be handed down on 14 December 2006.

13                  As noted at [1], the RRT’s decision affirming the Delegate’s decision was handed down on 14 December 2006, and on 12 July 2007, the Federal Magistrates Court dismissed the appellant’s application to that Court for review of that decision.

14                  On 30 July 2007, the appellant filed his notice of appeal in this Court.

THE RRT’S DECISION

15                  The claim made by the appellant was, in general terms, that he was a practising Christian and had been persecuted by Islamists in Bangladesh.  The RRT did not accept the appellant’s claims that he had been assaulted and threatened by reason of his religious activities, and, in particular, by reason of his attempts to convert Muslims to Christianity.  The RRT pointed to inconsistencies between information provided to it by the appellant and information that had been furnished by the Australian High Commission.

16                  The RRT did not accept that the appellant had been engaged in proselytising activities or that he would be so engaged if he were to return in Bangladesh.

17                  The RRT therefore did not accept that there was a real chance of the appellant’s suffering harm amounting to persecution in Bangladesh for reason of religion or any other Refugee Convention reason.

DECISION OF THE FEDERAL MAGISTRATES COURT

18                  Before the Federal Magistrates Court, there was an amended application which stated the grounds of the application in the following terms:

1.                  The Refugee Review Tribunal failed to exercise its jurisdiction under the Act:

            Particulars:

A.       The Refugee Review Tribunal gave no weight to the documents which I submitted before the Tribunal to support my claims:

                                                                                      i)         the Tribunal did not take any positive attempt to resolve the confliction between the Australian High Commission’s findings and my response in relation to my claim.

2.                  The Refugee Review Tribunal acted in excess of its jurisdiction:

            Particulars:

A.       The Refugee Review Tribunal acted in excess of its jurisdiction by making the following comments that:

                                                                                      i)         I do not accept that there is a real chance of the applicant suffering harm amounting to persecution in Bangladesh for reason of his religious or for any other Convention reason should he return there in the foreseeable future.

3.                  The Refugee Review Tribunal applied the wrong test to asses [sic] my credibility:

            Particulars:

A.       The Refugee Review Tribunal applied the wrong test to asses [sic] my credibility and ignored my claim about the converting Muslims to Christianity that:

                                                                                      i)         the Tribunal did not follow the proper procedure to asses [sic] my credibility about the converting Muslims to Christianity; and

                                                                                     ii)         the Tribunal ignored my claim to have a role in the Church in converting Muslims to Christianity and to have suffered on various occasions as a result where the pastor reports supported that this activities were existing and conducted by some organisation in Bangladesh.

19                  In relation to the particulars of the first ground, the Federal Magistrate held that it was a matter for the RRT to determine the weight to be given to the documents that the appellant had submitted.  The comparing of those documents with the information obtained from the Australian High Commission in Dhaka was a matter for the RRT as the merits reviewing body.  The Federal Magistrate held that the first ground of the application did not reflect any error by the RRT.

20                  As his Honour noted, the second ground was a challenge to the ultimate conclusion reached by the RRT.  He held that the RRT had not exceeded its jurisdiction in reaching that conclusion.

21                  The Federal Magistrate also rejected the third ground of review, noting that the RRT had not ignored the appellant’s claim and had not erred in the procedure it followed to assess his credibility.

22                  The Federal Magistrate raised three further issues that were not raised by the amended application, and I will refer to these below.

THE PRESENT APPEAL

23                  The notice of appeal states as the grounds of appeal the very same grounds that were stated in the amended application to the Federal Magistrates Court and which were set out at [18] above.

24                  On the hearing of the appeal, I asked the appellant whether he wished to say anything in support of his appeal and he indicated that he did not wish to do so.

25                  I see no error in the way in which the Federal Magistrate dealt with the three grounds mentioned in the amended application.

26                  I turn now to the three additional matters that were raised by the Federal Magistrate and which were addressed by the Minister in submissions in the Federal Magistrates Court in response.

First Issue

27                  The first question was whether the RRT had failed to comply with s 430 of the Act and if so whether its failure to do so constituted jurisdictional error.  Subsection 430(1) provides:

Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)      sets out the decision of the Tribunal on the review; and

(b)           sets out the reasons for the decision; and

(c)           sets out the findings on any material questions of fact; and

(d)           refers to the evidence or any other material on which the findings of fact were based.

28                  The question to which the Federal Magistrate referred was whether, in order to comply with these requirements, the RRT was obliged to “recall” its reasons and revise them so as to refer to the letter and documents that arrived on 30 November 2006.

29                  His Honour cited Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 and NAFT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 254 for the proposition that it was a matter for the RRT to determine the issues to be addressed in its reasons and for the further proposition that a non-compliance with the terms of s 430 does not in itself establish jurisdictional error, although it may point to one.  I agree that a non-compliance in some respect with s 430, without more, does not establish jurisdictional error. 

30                  I agree with his Honour that the RRT’s decision was given when it was handed down on 14 December 2006 and not before.  The RRT’s reasons for decision demonstrate that the member laboured under a misapprehension in this respect.  He noted in his reasons (at p 18) “No reply had been received from the applicant at the time of decision”, and on an RRT form earlier, he had ticked a box stating “I have decided not to recall my decision record”.  This later statement is equivocal since it may be that the reference to “decision record” is no more than a reference to the written statement, but the member’s observation, “No reply had been received from the applicant at the time of decision” does suggest that he regarded his decision as having been already made prior to 30 November 2006.

31                  In my view, however, the error is inconsequential because the file note demonstrates that the member’s intention, having taken into account the letter and documents received on 30 November 2006, was to leave the already prepared statement of decision and reasons as the statement of his decision and reasons to be delivered on 14 December 2006.  That is to say, he approved of the statement as a statement of his actual decision, reasons and findings.  Section 430 of the Act is concerned with actuality, not with a norm or ideal.

32                  I agree with the Federal Magistrate that it would have been preferable for the member to have made some reference in his reasons to the content of the letter received on 30 November 2006.  I further agree that the member’s observation “No reply had been received by the applicant at the time of decision” was erroneous because a reply had been received by the time of the decision on 14 December 2006.

33                  It is not shown that s 430 of the Act was not complied with because it is not shown that the written statement already prepared and, in due course, handed down on 14 December 2006 did not in fact set out the RRT’s decision on the review, the actual reasons for that decision, the findings on any material questions of fact, and a reference to the evidence or any other material on which the findings of fact were based.

Second Issue

34                  The second issue raised by his Honour was whether the RRT had given “meaningful consideration” to the appellant’s response of 30 November 2007 to the second s 424A letter.  The Federal Magistrate did not err in his view that the member’s file note demonstrated that there was an active intellectual process on the member’s part directed to the material provided by the appellant in response to the second s 424A letter.  His Honour was justifiably satisfied that the member had considered, genuinely and properly, the further matters that the present appellant had put before the RRT.

Third Issue

35                  The third issue was whether the RRT had prejudged the reply to the second s 424A invitation, given that the file note was dated 30 November, the very day on which that reply was received.  The Federal Magistrate noted that if the member had refused to consider the second response, having already signed his reasons, there would have been a real issue of apprehended bias.  However, the member did consider the second response and recognised that he was in a position to amend his decision and reasons, should he see a need to do so.  The Federal Magistrate was entitled to conclude that the member’s mind was not closed.

36                  In the result, the learned Federal Magistrate decided that jurisdictional error was not established either on the basis of the three grounds raised by the appellant or by reason of the three further issues raised by his Honour.

CONCLUSION

37                  For the reasons given above, I do not think that his Honour fell into error.  The RRT did not commit a jurisdictional error.  The RRT’s decision was therefore a “privative clause decision” within the meaning s 474(2) of the Act, and is not amenable to judicial review by this Court.

38                  The appeal should be dismissed with costs.

39                  [After the hearing, making of orders and delivery of ex temporé reasons on 12 November 2007, the Court received (later on that date) written submissions from the appellant dated 5 November 2007.  The submissions ask the Court to exercise a merits review function.  They also make sweeping unparticularised criticisms of the RRT’s reasons for decision, such as “I was denied natural justice” and “The [RRT] applied the wrong test to assess my credibility”.  Having considered the written submissions, I have concluded that they do not advance the appellant’s case on the appeal and are without legal merit, that the appellant should not have leave to rely on them, and that it is not necessary for me to address them beyond what I have just said.]

Associate:

Dated:         26 November 2007