FEDERAL COURT OF AUSTRALIA

SZJHR v Minister for Immigration and Citizenship [2007] FCA 1901

MIGRATION – appellant requested that the Tribunal take evidence from two witnesses in Bangladesh – whether Tribunal was obliged to contact the two witnesses – where Tribunal rejected evidence of three witnesses already called – whether Tribunal gave the request genuine consideration – whether s 424 error due to inclusion of incorrect factual material in s 424A letter – appeal dismissed.

Migration Act 1958 (Cth) s 426

Abebe v The Commonwealth of Australia(1999) 197 CLR 510 cited

Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 cited

Attorney-General (NSW) v Quin (1990) 170 CLR 1 cited

Minister for Immigration and Multicultural Affairs v Maltsin (2005) 88 ALD 304 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 cited

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 cited

SZDMC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 763 followed

WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 cited

SZJHR, SZJHS, SZJHT, SZJHU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1726 OF 2007

LANDER J

4 DECEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

1                     The first and second named appellants are husband and wife and the parents of the third and fourth named appellants.

2                     They appeal against an order of a Federal Magistrate made on 14 August 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 8 August 2006 and handed down on 15 August 2006.  In that decision, the Tribunal affirmed a decision of the first respondent’s delegate to refuse to grant a protection visa to the appellants.

3                     The appellants are citizens of Bangladesh who arrived in Australia on 29 January 2006.  On 7 February 2006 the appellants each applied for a Protection (Class XA) visa.  The first appellant, being the husband and father made claims under the Refugees Convention, being the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol, being the Protocol relating to the Status of Refugees done at New York on 31 January 1967: s 5(1) of the Migration Act 1958 (Cth) (the Act).

4                     The remaining three appellants relied on their membership of the first appellant’s family unit in support of their application for a protection visa.  When I address the appellant in these reasons I am referring to the appellant husband.

5                     On 23 March 2006 the Minister’s delegate refused the appellant’s application.  On 17 April 2006 the appellant lodged an application for a review by the Tribunal.  On 8 August 2006 in a decision handed down on 15 August 2006, the Tribunal affirmed the delegate’s decision.

6                     The appellant claimed to be born in Barisal in 1961.  He said that he lived in Dhaka in Bangladesh from 1995 to October 2001, and then in Selangor, Malaysia from July 2004 to September 2005.  He said he graduated with a BSc (Honours) degree in Statistics and an MSc in Statistics from a University in Bangladesh.  He said that between 1986 and 1997 he was employed in two different companies in marketing positions.  He said he was a Director of a company named Transtech Logistics from 1997 to 1999 and Managing Director of another company, Translink Bangladesh from 1999 onwards.

7                     He said that he married the second appellant in 1989.  He has visited a number of countries since October 2002, including Singapore, Malaysia, Thailand, Hong Kong, France and the United Kingdom.

8                     His father was a member of the Awami League which the appellant also joined in 1978 whilst at University.  In 1980 the appellant became Assistant Secretary of the Chatra League at University.  He said that when General Ershad seized power in 1982 he was arrested and detained in custody for three days during which time he was tortured “inhumanely”.  He worked with the Chatra League to oust the Ershad Government.

9                     He said that he worked for the Awami League candidate in the 1991 election which was won by the BNP candidate, Abdur Rahman Biswas who later became President of Bangladesh.  Whilst in power, the BNP Government oppressed the Awami League.  In 1994 the appellant was arrested by police and detained for two days.  He again supported the Awami League candidate in 1996.  On this occasion the Awami League was successful and formed government.  The appellant claimed that he assisted in the Government.  In 1999 he was elected as an Executive Member of the Barisal City Awami League.  In 2001 he again supported the Awami League candidate by way of effort and money.  He said that his profile was such that he was identified as a leader of the Awami League.  His candidate was defeated in an election which was won by the BNP in a landslide.  The BNP formed government with the fanatical Islam party, Jamat-e Islami.

10                  On 2 October 2001 his house was ransacked and looted by the BNP and Jamat supporters who beat one of his brothers mercilessly.  The appellant was prevented from returning home for a period of two years.  His brother still cannot return home.  He said that he then travelled to Singapore, Malaysia and Thailand with his family for business reasons before he returned to Bangladesh.

11                  On 21 September 2003, whilst visiting his mother, he was attacked by BNP hoodlums who beat him “mercilessly” threatening that if he returned to Barisal he would be killed.

12                  He said that in December 2003 he again travelled, this time to the United Kingdom and other European countries on business.  Upon his return he became an Executive Member of the Barisal City Awami League which he had helped to reconvene.

13                  On 25 March 2004 he was attacked and beaten by BNP supporters who warned him to avoid Awami League politics.  He left Bangladesh, he said, to save his life and lived in Malaysia for a period of 15 months.

14                  He said that on 18 September 2005 he returned to Bangladesh and recommenced his political activities.

15                  On 12 October 2005 he led a procession in Barisal which was attacked by the BNP Jamat supporters.  He claimed he was beaten by those supporters who had the assistance of the police.  He said that in the evening his wife was informed that a case had been lodged against him and that he should attend the police station.  When he went to Dhaka to try to enter his office he was informed that the police were on their way to arrest him.  On 22 October 2005 plain clothes police officers visited his office making enquiries about him.  He came to realise that his life was in danger and he would receive no protection from the Government.  He was advised by political friends and relatives to leave the country.  He left to save his own life.  He paid a large amount of money to the airport authority by way of a bribe to allow him to leave.  His claim was that if he returned to Bangladesh he would be persecuted by reason of his political opinion.

16                  The appellant provided the Tribunal with documentary evidence which, if genuine, supported his claims.  In his response to the Tribunal’s invitation to attend a hearing, the appellant identified five witnesses to give evidence before the Tribunal.  Three resided in New South Wales.  Two lived in Bangladesh.  The appellant gave evidence at the hearing, as did the three witnesses resident in Australia.

17                  Following the hearing, the Tribunal wrote to the appellant in accordance with s 424A of the Act.  The Tribunal said that the evidence of his witnesses was inconsistent with his and that the inconsistencies to which the letter referred “may cast doubt on the accuracy of the witness evidence you have provided in support of your claims.”

18                  The Tribunal also pointed to differences in his application and his evidence in relation to the election in 2001.  It pointed to an inconsistency between his evidence and Departmental file records which showed that he had been living in Malaysia on a Business visa which allowed him to work in Malaysia.  The letter drew to his attention that his claim that he was attacked on 25 March 2004 was inconsistent with his passport which showed he had left Bangladesh on 23 March 2004 and did not return until 1 April 2004.

19                  The letter also brought to his attention that his passport indicated that he had returned to Bangladesh on three occasions after 2004 and lived in Bangladesh in total for about five months.

20                  It drew to his attention the information on the Departmental file which indicated that a Visitor visa to enter Australia had been issued on 14 November 2005 but that he had not departed Bangladesh until 25 January 2006.

21                  It also drew to his attention that the claim that he had been the subject of false charges after the procession on 12 October 2001 was not mentioned in the original application for a protection visa.

22                  The appellant did not reply within the time provided for in the letter but did reply on 7 August 2006 after, as the Tribunal said, “I had finalised my decision.”  The Tribunal stated that it would “take into account the Applicant’s responses” in reaching its decision.  The Tribunal did not take evidence from the two witnesses in Bangladesh.

23                  The Tribunal accepted that the appellant and his family are all citizens of Bangladesh.  It accepted that he was a member of the Chatra League whilst at College and University and that he later joined the Awami League in Barisal.  It accepted that he held executive positions in both Leagues and that, in that regard, he was involved in political activities on behalf of the Party.  It accepted that he had supported the Awami League candidates as he claimed.

24                  However, the Tribunal did not accept the appellant’s claim that he had achieved a prominent political profile as a result of his political activities.  It found that his political activities amounted to no more than canvassing door to door on behalf of candidates, giving speeches and taking part in public meetings, processions and demonstrations organised by the Awami League.

25                  The Tribunal was not satisfied that he had taken much interest in politics after he moved to Dhaka in 1995 when he occupied senior management positions and ran his own company.

26                  It rejected his claim that he was closely involved in the 2001 election and, in doing so, said that it had “considered the letters provided by the Applicant which are said to have been written by Awami League figures, and in one case from a leader of the Workers Party, in Bangladesh.”

27                  The Tribunal did find that the letters had been written by the persons whose names appeared on the letters and that they described the appellant’s connection with the Awami League.  The Tribunal, however, found that the letters were devoid of detail about the appellant’s political activities and “appear to have been written as general references for him, apparently in connection with his application for review.”  In those circumstances, the Tribunal was not prepared to place more than a little weight on those letters in the assessment of the appellant’s political profile.

28                  The Tribunal rejected the evidence of one of the witnesses called on behalf of the appellant.  It held that it could place little weight on the evidence of the other two witnesses.

29                  It was not prepared to find that he had been attacked in March 2004 as claimed because he was absent from the country at that time.

30                  It rejected his claim that he went to Malaysia to escape political violence and, in particular, rejected his evidence that he did not have business visits in Malaysia.  It found that he returned to Bangladesh from Malaysia about four months before he left for Australia in January 2006 during which time his mother became gravely ill and died.  It found that his return to Bangladesh at that time was inconsistent with his claim that he left for Malaysia because he feared for his life.

31                  The Tribunal was not prepared to accept his claim that he had been attacked whilst leading a procession in Barisal on 12 October 2005.  It found there was no report of such a procession or an attack in the media.

32                  Notwithstanding the Tribunal found that the appellant’s mother was gravely ill during this period of time and died on 5 December 2005, it found that his leaving Bangladesh more than two months after he obtained his visa to come to Australia was inconsistent again with his claim that he feared for his safety.  It found that his failure to leave Bangladesh for more than two months after his mother’s death was inconsistent with his claimed fear of persecution.

33                  The Tribunal was not satisfied that the appellant was a credible witness.  In conclusion, it found that the appellant never had a prominent political profile in Bangladesh as an active member of the Awami League or its associated organisations.  It was not satisfied that he had ever suffered harm in Bangladesh because of his political opinion.  It was not satisfied that there was a real chance that he would suffer serious harm if he were to return to Bangladesh.  It therefore affirmed the delegate’s decision.

34                  In their application to the Federal Magistrates Court, the appellants complained that the Tribunal had made jurisdictional error by failing to have regard to information which the appellant had supplied in answer to the s 424A letter.  The appellants submitted it also failed to obtain evidence from two witnesses in Bangladesh.  It also failed, it was claimed, to check the references which had been provided by the appellant with the authors.  It failed to consider or exercise jurisdiction in relation to the appellant’s claim that his house had been attacked, ransacked and damaged in 2001, and that he was attacked or injured by BNP supporters in September 2003 and that his business had been ruined by Tareq Zia.

35                  The Federal Magistrate rejected each of the appellant’s complaints.  In particular, the Federal Magistrate found that the Tribunal had made an assessment of the appellant’s credibility which was open to it and which was a matter for the Tribunal.  The Federal Magistrate rejected his complaint that the Tribunal had failed to comply with s 424A of the Act.  The Court also rejected the appellant’s complaint that the Tribunal had failed to comply with s 426 of the Act as there was no obligation reposing on the Tribunal to make an enquiry of the witnesses as this was not a rare and exceptional case.

36                  It found that the information contained in the reference letters was exempt from s 424A(1) of the Act and the information provided by the appellant: s 424A(3)(b) of the Act.  In any event, it was not information in the light of SZBYR v Minister for Immigration and Citizenship [2007] HCA 26.

37                  Two grounds of appeal are raised.  First, it is said that the Federal Magistrate erred in failing to find that the Tribunal had committed jurisdictional error by the Tribunal failing to obtain evidence from two named persons.  Secondly, it is said, the Tribunal committed jurisdictional error by not providing the applicant with particulars of the information the Tribunal considered was a reasonable part of the reason for affirming the delegate’s decision, contrary to s 424A of the Act.  The notice of appeal does not particularise the information which the Tribunal failed to provide under that section.

38                  The Tribunal said in its decision:

At the hearing the applicant provided the names of two of these letter writers, Showkat Hossain Hiron and Rashed Khan Menon, as witnesses who the Tribunal could contact.  He provided telephone numbers, apparently in Bangladesh, for this purpose.  In view of the strong concerns about the evidence provided by other witnesses at the hearing, noted below, and the obvious inability to positively identify those two persons simply by the telephone numbers provided (none of which appear on the letters written by them despite the fact that such letters are on the official party letterhead) I am not satisfied that the Tribunal should attempt to obtain further evidence directly from them.

39                  The thrust of the appellant’s complaint is that the Tribunal should have and was obliged to contact the two witnesses whose names were provided and the telephone numbers also provided.

40                  The Tribunal said:

At the hearing the Applicant provided the names of two of these letter writers, Showkat Hossain Hiron and Rashed Khan Menon, as witnesses whom the Tribunal could contact.  He provided telephone numbers, apparently in Bangladesh, for this purpose.  In view of my strong concerns about the evidence provided by other witnesses at the hearing, noted below, and the obvious inability to positively identify these two persons simply by the telephone numbers provided (none of which appear on the letters written by them despite the fact that such letters are on official Party letterhead) I am not satisfied that the Tribunal should attempt to obtain further evidence directly from them.

41                  Both men had written letters.  The appellant said on the appeal that on the letter written by Rashed Khan Menon the telephone number, fax number and address are included.  They are in Bengali.  Those facts were not made known to the Tribunal at the time so the Tribunal could not have known that.  Nor were those facts made known to the Federal Magistrate.  The appellant contended that as the Tribunal did have Rashed Khan Menon’s telephone number the Tribunal had made an error in asserting that the telephone numbers did not appear on that letter.  The appeal was adjourned because this issue had not been previously raised.  When the hearing resumed the appellant said that the telephone numbers that he had provided the Tribunal which the Tribunal had recorded it received was not, in respect of Rashed Khan Menon, the same number appearing on the letter.  The Minister’s counsel objected to the information being provided to the Court on appeal without there being an application to call further evidence.  That objection was properly made.  However, even if I accepted the appellant’s information as being correct, it does not assist the appellant to establish error on the part of the Tribunal.  If the telephone numbers were different, the Tribunal was correct to say that the telephone number given to it did not appear on the letter.

42                  Even assuming that the Tribunal made an error, that also does not assist the appellant.  Section 426 of the Act relevantly provides:

(2)       The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from the person or persons named in the notice.

(3)       If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.

43                  It is clear from the Tribunal’s reasons that it had regard to the appellant’s request or wishes to take evidence from the two witnesses.  It gave reasons why it declined to do so.  I agree, with respect, with Stone J who said in SZDMC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 763 at [49]:

Section 426 makes it quite clear that the Tribunal is not obliged to grant a review applicant’s request that a witness be called to give evidence even where the request is made in accordance with the statutory procedure.  That being so, there was no breach of the requirements of the natural justice hearing rule as set out in Div 4 of Pt 7 arising from the Tribunal’s failure to make arrangements to hear [a witness] at some other time.

44                  That said, however, the Tribunal must, when requested so to do by an applicant, give genuine consideration to the request.  That requires consideration of the evidence that is sought to be led, the person by whom the evidence is to be given, the current state of the evidence before the Tribunal and the potential impact that the evidence, if accepted, might have on the applicant’s claims.  Otherwise, the Tribunal would not be providing the applicant with a fair hearing which would demonstrate jurisdictional error: Minister for Immigration and Multicultural Affairs v Maltsin (2005) 88 ALD 304.  In this case, the Tribunal was not aware that it had Rashed Khan Menon’s telephone number and address.  It cannot be criticised for not knowing that.  The Tribunal was entitled to reason, having regard to the appellant’s own evidence and the evidence of his three witnesses, that any further evidence would be of no assistance and not be capable of corroborating the unsatisfactory evidence already received: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per McHugh and Gummow JJ at [49]; WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 at [45].

45                  In any event, if the Tribunal wrongly assumed that the letter did not contain Rashed Khan Menon’s telephone number that was not a jurisdictional error but an error made within jurisdiction.  An error of fact made by the Tribunal when exercising its jurisdiction is not a jurisdictional error.  An error of that kind does not provide this Court with jurisdiction to quash the decision: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137].

46                  In my opinion, the Tribunal was entitled in this review to take the view that it would not know to whom it was speaking if it were to make the telephone calls.  In those circumstances, the Tribunal would have had difficulty attaching much weight to the evidence, even if that evidence was obtained.  Moreover, it was never made clear to the Tribunal what evidence it was required to obtain, if possible, from the two witnesses.

47                  The appellant provided written submissions in support of the appeal and in both those submissions and orally before me, the appellant asserted that the Tribunal had erred under s 424A due to the inclusion of incorrect factual material in the s 424A letter it sent.

48                  In particular, the appellant said that in paragraph 4 of the s 424A letter the Tribunal noted that the appellant’s passport showed that at least one of the Malaysian visas he had been issued had working rights attached.  The Tribunal asserted that this information could cast doubt on the accuracy of the appellant’s claim that he left Bangladesh for Malaysia in order to escape political violence.  The appellant submitted that the Tribunal had incorrectly made this finding of fact and that the “visa” that the Tribunal referred to as having working rights attached, was not a visa at all.  Rather, the appellant said, it was a visa extension for six months that he could have engaged for an additional 520 Malaysian Ringgit.

49                  In his response to the s 424A letter, the appellant relevantly stated, “I did not have any business visa in Malaysia and did not have any work right in Malaysia.”  The appellant did not advise the Tribunal that it had wrongly assumed he was entitled to work visas.  He could not expect the Tribunal to discern its error from his response.  The Tribunal was therefore entitled to proceed on its assumption as it did.

50                  In any event, this Court has no jurisdiction to consider the merits of the appeal or interfere with any findings of fact made by the Tribunal, even if those findings are wrong: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 at 61-62 per Gleeson CJ and at 85-86 per Kirby J.

51                  In my opinion, both grounds have not been made out and the appeal must be dismissed.

Associate:

Dated:         4 December 2007