FEDERAL COURT OF AUSTRALIA

SZLGW v Minister for Immigration and Citizenship [2008] FCA 942

Migration Act 1958 (Cth)

SZASX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 68

SZGBU v Minister for Immigration & Multicultural Affairs [2006] FCA 1488

SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26

SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811

SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs[2005] FCA 1306

SZLGW and Ors v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 449 of 2008

REEVES J

20 JUNE 2008

DARWIN

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The first and second named appellants pay the first respondent’s costs fixed in the          sum of $2,900.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                                             This is an appeal against a judgment of Federal Magistrate Smith delivered on 17 March 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal’s decision was delivered on 21 August 2007.  It affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellants.

BACKGROUND – SUMMARY OF FACTS

2                                             The appellants are a wife, husband and child who are all citizens of the Peoples Republic of Bangladesh (‘Bangladesh’) formerly resident in Boalmari in the Faridpur district.  They arrived in Australia on 11 January 2007, on visitor visas and lodged applications for protection visas one month later, on 9 February 2007.  The application for all three family members is based on, and dependant upon, persecution allegedly suffered by the appellant wife, who is a Sunni Muslim, at the hands of Jaamat-e-Islam (‘JI’) supporters. The application was refused by a delegate of the first respondent on 7 March 2007.  On 2 April 2007, the appellant wife applied to the Tribunal for a review of that decision.

3                                             A hearing was listed before the Tribunal on 30 May 2007 but subsequently adjourned because the appellant wife was hospitalised. The hearing was re-listed to be heard on 8 August 2007 and a letter was sent on 20 July 2007 giving notice of the new hearing date. On the same date a further letter was issued by the Tribunal, this one under s 424A of the Migration Act 1958 (Cth) (‘the Act’), advising that the Tribunal had received information indicating “that the newspaper articles that [the appellant wife] provided…in support of [her] claims are a possible fabrication”, that this may lead the Tribunal to conclude that the appellant wife’s claims of persecution due to her activism in support of women’s rights in Bangladesh were also fabricated, and that the appellant wife should provide her written comments in response by 3 August 2007.

4                                             On 29 July 2007 the appellant wife’s migration agent notified the Tribunal that the she would not be attending the hearing and would not be providing any further information. The appellants did not attend the hearing on 20 July 2007 and the Tribunal subsequently affirmed the decision of the delegate. On 11 September 2007, the appellant wife lodged an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court. She later amended that application on 16 November 2007 to include all three family members.

5                                             The appellant wife lodged a statement in support of her visa application which set out her claims for protection.  In summary, she claimed to fear for her life and for the safety of her family due to persecution she suffered in 2006, namely: in March 2006, being beaten with a hockey stick at a women’s forum (which she organised and named the ‘Female Rights Organisation’) by “fundamentalists backed by political parties in Bangladesh”; in June 2006 narrowly avoiding acid which was thrown at her face at another forum; and on an unspecified date (5 August 2006 according to one of several articles on these attacks that she later provided) being kidnapped and repeatedly raped for three days following a protest meeting. The appellant wife said the kidnappers/rapists threatened to kill her “along with all [her] family members if [she] file[d] a case against them and also threatened to kidnap my only son as revenge”.

6                                             According to the appellant wife, she and her family had to escape and not just relocate, because she had “been specifically identified as Taslima Nasreen of Bangladesh” and JI would be able to reach her anywhere in Bangladesh. She claimed that her Australian step-nephew obtained visitor visas so that she and her husband and child could to escape to Australia.

THE TRIBUNAL’S DECISION

7                                             On 12 April 2007 the appellant wife’s migration agent provided a submission to the Tribunal in terms similar to her statement. As noted above, the Tribunal had unresolved concerns about the credibility of the appellant wife’s claims of persecution associated with the Female Rights Organisation, principally because of advice from the Department of Foreign Affairs and Trade (‘DFAT’) that no such organisation or events were known in Boalmari and that the references to the appellant in the articles she provided had been doctored to support her claims.

8                                             Based upon the “absence of any explanation from the [appellant wife]” at the hearing, the Tribunal concluded firstly that she had fabricated her claims; and secondly that it could not be satisfied about her claims in relation to her family circumstances. Based upon the “absence of evidence of [the Female Rights Organisation]”, the Tribunal did not accept that the appellant wife was a prominent activist for women’s rights. Accordingly, the Tribunal found that the appellant wife was not in genuine fear of persecution, was not likely to face persecution on return to Bangladesh and therefore was not eligible for a protection visa. The Tribunal noted that “[n]o specific Convention claims were made by or on behalf of other applicants. The fate of their applications therefore depends on the outcome of the first named applicant’s application” and affirmed the decision of the delegate not to grant the appellants protection visas.

THE FEDERAL MAGISTRATE’S DECISION

9                                             The amended application before the Federal Magistrate raised four grounds for review which can be summarised as follows:

(1)               The Tribunal denied the appellant wife procedural fairness because the delegate was biased and tested her credibility with “unacceptable technics”, the delegate and Tribunal’s decisions were unjust and failed to take the full gravity of the appellant wife’s circumstances into account;

(2)               The Tribunal’s decision was an improper exercise of power;

(3)               The Tribunal misinterpreted the law leading to a “jurisdictional error of law” (in relation to s424A of the Act); and

(4)               The Tribunal failed to take relevant matters into account and simply affirmed the delegate’s decision.

10                                          The Federal Magistrate set out his own summary of the amended application before him and proceeded to consider each ground in turn.  In relation to the first ground his Honour found that the methods of the delegate were not relevant to proceedings before him and that he was unable to “discern from the evidence...any failure by the Tribunal to follow a procedure required by the Migration Act, whether reflective of rights of procedural fairness or otherwise”. Likewise, in relation to the second ground, his Honour could not discern any jurisdictional error particularly as “the DFAT evidence clearly allowed [the Tribunal] to arrive at a decision adverse to the applicant wife’s credibility”.

11                                          The Federal Magistrate dismissed the third ground citing recent authorities where it had been held that case law and any discussion thereof is not “information” for the purpose of s 424A of the Act: see SZASX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 68, SZGBU v Minister for Immigration & Multicultural Affairs [2006] FCA 1488, SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609. In relation to the final ground (numbered ‘6’ in the amended application) his Honour found himself “unable to detect any legally relevant matter which was not considered by the Tribunal”.

12                                          His Honour went on to address a matter only indirectly raised in the appellants’ submissions, namely the effect of the appellant wife’s ill health, and found that no jurisdictional error could be shown to have arisen out of that, nor was it a matter which justified any adjournment of the hearing before him. His Honour noted that the balance of the submissions sought to challenge the merits of the Tribunal’s decision and did not establish any jurisdictional error.  The appellants’ application was accordingly dismissed by his Honour on the basis that it failed to demonstrate any jurisdictional error on the part of the Tribunal.

GROUNDS OF THE PRESENT APPEAL

13                                          The Notice of Appeal filed in this Court on 3 April 2008 contains three grounds.

14                                          The first ground relates only to the Tribunal’s decision and re-asserts a failure to comply with s 424A of the Act, as well as a failure to comply with s 430, and alleges jurisdictional error on the basis of apprehended bias on the part of the Tribunal at the time when it should have been complying with its obligations under s 424A of the Act.

15                                          The second ground asserts, in the alternative, that the Tribunal failed to comply with s 424A ‘because his Honour’ failed to take relevant considerations into account and took irrelevant considerations into account.

16                                          The final ground also relates to the Tribunal and asserts that the Tribunal breached natural justice in rescheduling the hearing and failing to consider the medical certificate provided.

THE CONTENTIONS

17                                          At the hearing of this appeal the appellants appeared in person and were unrepresented. The appellant wife on behalf of the family unit was assisted by an interpreter, but made no submissions.  Ms McWilliam appeared for the first respondent.

18                                          Ms McWilliam relied upon the written submissions she had previously filed.  They can be summarised as follows:

(a)                None of the grounds assert error on the part of the Federal Magistrate;

(b)               There was no error in his Honour’s findings in relation to s 424A of the Act;

(c)                The reference to s 430 is unparticularised and must fail;

(d)               There was no evidence to establish that ‘the Tribunal member had made up its mind’ or took irrelevant considerations into account or failed to take relevant considerations into account;

(e)                There was no error in relation to the Federal Magistrate’s findings in relation to the rescheduling of the hearing and it cannot now be said that the appellants were not afforded natural justice; and

(f)                 The reference to irrational reasoning in the ‘particulars’ is itself unparticularised and must fail.

CONSIDERATION 

19                                          It need not be said that an appeal to this Court from a decision of a Federal Magistrate is directed to correcting error on the part of the Federal Magistrate. With the possible exception of ground 2, which is directed to “the Tribunal” by its terms but mentions “his Honour” in passing, none of the grounds of appeal before me raises any error on the part of the Federal Magistrate. Furthermore, ground 1 raises an allegation of apprehended bias on the part of the Tribunal not raised before the Federal Magistrate. None of the grounds of appeal is particularised, instead referring to alleged breaches by the Tribunal in quite general terms.

20                                          On the assumption that ground 2 is intended to identify error on the part of the Federal Magistrate, it alleges that he failed to comply with s 424A of the Act. As I have just observed, it is in general terms and does not specify how the Federal Magistrate is alleged to have breached that section. However, given that the appellants are unrepresented, I have considered his Honour’s decision and the reasons he has given for dismissing each of the grounds of review before him.  I have been unable to detect any error in those reasons, let alone an error that could amount to a jurisdictional error.

21                                          Insofar as s 424A of the Act was raised before him, his Honour held correctly in my respectful opinion, that the section did not require case law or the discussion thereof to be put to the appellants, as “information”: see SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609, [2007] HCA 26 and the other authorities referred to at [18] of the Federal Magistrate’s reasons.

22                                          Ground 3 of the notice of appeal appears to suggest that the Tribunal failed to afford the appellants natural justice in the way that it rescheduled the hearing. Given the letter the appellant wife’s agent sent to the Tribunal stating that she would not be in attendance and ‘urging’ the Tribunal to proceed to make a decision in their absence, this ground is plainly untenable: see [8] of the Federal Magistrate’s reasons. Moreover, the appellants opted not to attend in the face of a s424A notice from the Tribunal that it had concerns about the authenticity of the newspaper articles submitted by the appellant wife in support of their claims. In these circumstances, it would appear that the Tribunal had little choice but to reach the conclusions that it did and to affirm the delegate’s decision.  

23                                          On this aspect I respectfully agree with the observations of Justice Bennett in SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 at [16] to the effect that once the appellants decidednot to attend the hearing and present evidence in support of their applications, they could not thereafter complain that the Tribunal had denied them procedural fairness.I also respectfully agree with the observations of Justice Hely inSZDXC v Minister for Immigration & Multicultural & Indigenous Affairs[2005] FCA 1306 at [16], to the effect that the affirmation of the delegate’s decision is usually the inevitable consequence of an appellant’s decision not to avail him or her self of an invitation from the Tribunal to attend a hearing and give evidence.

24                                          I therefore agree with the submissions of counsel for the first respondent that the Federal Magistrate was correct in his findings for the reasons given.  It follows that each of the grounds of appeal before me must be rejected.   

ORDERS

25                                          For these reasons I order that this appeal be dismissed. 

26                                          In the event that the appeal was dismissed counsel for the first respondent sought a fixed costs order in the sum of $2,900 on the basis of an affidavit filed in accordance with the relevant Practice Note.  Since the first respondent has been successful in this appeal, I consider that costs should follow the event and I therefore order that the adult appellants (that is SZLGW and SZMAV) should pay the first respondent’s costs fixed in the sum of $2,900.

Associate:

Dated:         20 June 2008