FEDERAL COURT OF AUSTRALIA

SZMSZ v Minister for Immigration and Citizenship [2009] FCA 877

MIGRATION — applicant declines invitation to attend hearing before Refugee Review Tribunal — Tribunal unable to be satisfied based upon materials before it — appeal dismissed — no obligation to invite applicant to provide further materials — lack of state of satisfaction

Held: Appeal dismissed

Migration Act 1958 (Cth) s 424A

Abebe v The Commonwealth of Australia [1999] HCA 14, 197 CLR 510, applied

Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, applied

Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCAFC 21, cited

SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782, cited

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, 96 ALD 1, applied

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

SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771, cited

SZLHR v Minister for Immigration and Citizenship [2008] FCA 1160, cited

SZLJW v Minister for Immigration and Citizenship [2008] FCA 1230, cited

SZLKY v Minister for Immigration and Citizenship [2008] FCA 1755, cited

SZLPF v Minister for Immigration and Citizenship [2008] FCA 1692, cited

SZLSM v Minister for Immigration and Citizenship [2009] FCA 537, cited

SZLYI v Minister for Immigration and Citizenship [2008] FCA 1809, cited

SZMSZ v Minister for Immigration and Citizenship [2009] FMCA 475, affirmed

Tran v Minister for Immigration and Citizenship [2008] FCA 1826, 105 ALD 555, cited  

SZMSZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD 510 of 2009

FLICK J

13 August 2009

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The Notice of Appeal as filed on 1 June 2009 is dismissed.

2.                  The Appellant is to pay the costs of the First Respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT
(Revised from Transcript)

1                     The Appellant is a citizen of Bangladesh. He arrived in Australia on 10 January 2008 and applied for a Protection (Class XA) visa on 18 January 2008.

2                     A delegate of the Respondent Minister refused that application on 14 April 2008 and an application for review was lodged with the Refugee Review Tribunal on 28 April 2008. The now Appellant was invited on 8 May 2008 to attend a hearing to be held before the Tribunal on 6 June 2008. He completed a Response to Hearing Invitation form on 26 May 2008 and stated that he did not wish to attend any hearing. He did, however, forward to the Tribunal a statement in support of his application. In such circumstances the Tribunal proceeded to conduct its review upon the basis of the materials before it and by way of a decision signed on 29 July 2008 it affirmed the decision of the delegate. In doing so, the Tribunal noted that there were “matters which could have been discussed at a hearing before the Tribunal but … the applicant declined that opportunity”. It found in respect to a number of matters that it was “unable to be satisfied” of the applicant’s account upon the materials placed before it for consideration.

3                     An applicationfor review was then filed with the Federal Magistrates Court on 18 September 2008. An amended application was filed on 19 February 2009. That Court dismissed the applicationon 11 May 2009: SZMSZ v Minister for Immigration and Citizenship [2009] FMCA 475.  

4                     The Appellant filed a Notice of Appeal in this Court on 1 June 2009 setting forth the following purported Grounds of Appeal (without alteration):

1.      1. The Refugee Review Tribunal failed to exercise its duty under the Migration Act that the         Tribunal did not put any weight to my political involvement with the BNP and subsequently             being persecuted.

2.      The Refugee Review Tribunal said in its decision that many questions were unanswered as I       did not attend at the hearing. However the Tribunal did not send me any notice under section   424A of the Migration Act 1958 to provide the unclear matter in details.

3.      The Refugee Review Tribunal acted in excess of its jurisdiction by making the comment that        “if the applicant returns to Bangladesh now or in the reasonably foreseeable future, there is a          real chance that he will be involved in any form of political activity or that he will be         persecuted (.…..) for reasons of his real or imputed political opinion or for nay other          Convention reason.

These were the same grounds upon which reliance was placed before the Federal Magistrate. In support of the Appeal, the Appellant also filed an Outline of Submissions — as did the Respondent Minister.

5                     The Notice of Appeal, however, fails to identify any ground upon which it is said that the Federal Magistrate has erred. The Notice of Appeal and the Appellant’s written Outline of Submissions are both directed to errors said to have been made by the Tribunal. But it is not the task of this Court on appeal to again review the decision of the Tribunal. In Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCAFC 210 Finn, Marshall and Goldberg JJ correctly observed:

[10] … that much of the appellant’s submissions were directed to the proposition that the Tribunal had made errors in the way it had considered the evidence and issues before it. Although this occurred under the rubric of a consideration of the primary judge’s reasons it was of little assistance in understanding why it was said that the primary judge fell into error. The Court wishes to emphasise that an appeal to the Full Court in a refugee matter should not be taken as an occasion to re-consider the Tribunal’s reasons as distinct from considering the primary judge’s reasons.

“[S]ubmissions in this Court with little reference to the conclusions of the Federal Magistrate … [do] not assist an appeal court”: NBDY v Minister for Immigration and Multicultural Affairs [2006] FCAFC 145 at [26] per Branson and Stone JJ. See also: SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782; SZLJW v Minister for Immigration and Citizenship [2008] FCA 1230 at [13].  

6                     This deficiency is not a mere matter of form as no original jurisdiction is vested in this Court to review errors perceived to have been committed by the Tribunal: SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771 at [7]. And, as has been observed in other decisions of this Court, Grounds of Appeal expressed in like terms to the present “seek to impermissibly review on appeal the decision of the Tribunal by seeking a review on the merits”: SZLYI v Minister for Immigration and Citizenship [2008] FCA 1809 at [16].

7                     But, in circumstances where an Appellant is unrepresented, it may be appropriate to consider the Grounds of Appeal as an inelegant attempt to contend that the Federal Magistrate erred in not concluding that the Tribunal itself had erred in the three respects identified. If error could be discerned, it may then be appropriate to either grant leave to amend the Notice of Appeal or simply construe the Notice of Appeal as conveying such error on the part of the Federal Magistrate.

8                     The Respondent Minister did not oppose this approach being explored.  

9                     No matter how the Notice of Appeal may be construed, no error is discernible and the Appeal should be dismissed.

10                  The Appellant appeared before this Court this morning unrepresented, although he did have the assistance of an interpreter.

A Failure To Put Weight on Political Involvement 

11                  The first Ground of Appeal, construed as a contention that the Federal Magistrate erred in not concluding that the Tribunal had failed in its duty by not putting any weight on the now Appellant’s political involvement, is to be rejected for a number of reasons.

12                  First, the Ground fails at the outset because the Tribunal did address the claim to fear persecution based upon “political involvement” but rejected the claim. The Tribunal thus for example stated:

[22] In the present case the applicant claims that he fears persecution at the hands of a leader of the Awami League as a result of a dispute over a piece of land which began in 1988. The applicant claims that this dispute became a political dispute when he himself started working as a field worker for the BNP in 2002. He also claims that after the caretaker government took control of the country the army arrested him and beat him ‘[a]s I am a terrorist of the BNP government’.

[23] The applicant’s claims are brief and lacking in detail. As they stand they raise numerous questions. Unfortunately, as referred to above, the applicant requested that the Tribunal make a decision without obtaining oral evidence from him so those questions remain unanswered. It is unclear, for example, how the land dispute could have continued since 1988 without any resolution if, as the applicant claims, the person who wants his piece of land is a famous leader of the Awami League and the police and the courts listen to the government of the day. It is likewise unclear how the Awami League leader and his people were able to continue to attack the applicant and to threaten to kill him during the period after 2001 when, as referred to in the decision under review, the BNP was in power in Bangladesh.

[24] The applicant claims that during this period he started working as a field worker for the central office of the BNP but he has provided no details of his claimed involvement in political activity. He states that he has been working as a seaman since 1992 and that he tried to jump ship in other countries but that he did not have the chance to do so. Once again, however, he has provided no details of the countries in question or his efforts to leave his ship. These matters are obviously relevant to whether he genuinely fears being persecuted as a result of the dispute with the Awami League leader if he returns to Bangladesh, as he claims.

[25] The applicant also claims that he was arrested by the army after the caretaker government currently in power took control of the country and he claims that everybody in Bangladesh is being ‘tortured’ by the caretaker government. He also claims that he was fortunate to escape being fired on. Once again the applicant has provided no details beyond the bare outline of these events. It is unclear on what basis the army would have arrested him as a ‘terrorist of the BNP government’, as he claims, how he obtained his release (as he presumably must have done) or in what circumstances he claims he was fired on and was fortunate to be saved.

Attention was thus given to the claim and the evidence in support. But the evidence relied upon by the now Appellant was lacking in detail and unclear.

13                  A short adjournment was granted to enable these passages in the Tribunal’s reasons to be translated for the benefit of the Appellant. The assistance being sought from the Appellant was the identification of any further material or information relevant to these claims other than that referred to. After the adjournment the Appellant contended that there was a further letter which he said had been forwarded by post to the Tribunal but which was not contained within the materials now before this Court and, more relevantly, not contained in the materials considered by the Tribunal. The letter was said to be a letter from the President of the BNP party setting forth his involvement in that party. The date of the letter and the date upon which it was said to have been forwarded to the Tribunal were not able to be provided. No such letter is referred to in that part of the Tribunal’s reasons for decision which identifies the material available to it. Neither a statement provided to the Department in January 2008 nor a letter faxed to the Tribunal in May 2008 make reference to any such further letter. Indeed, the May 2008 letter states in part:

Unfortunately I cannot provide any supporting documents to the Tribunal now in relation to my involvement with the BNP.

Taken at face value, this letter seems to convey that there were no “supporting documents”. Contrary to the submission of the Appellant, it is not considered that any such letter was in fact sent to the Tribunal. No error can arise from failing to give weight to this further letter or in any failure to consider this letter in circumstances where it is concluded that no such letter was in fact sent to the Tribunal.

14                  Second, if the Ground is intended to convey that the Tribunal should have placed greater weight upon the claims being advanced, notwithstanding the fact that the now Appellant elected not to appear before the Tribunal, the weight to be given to the evidence advanced is a matter for the Tribunal — and not a matter for the Federal Magistrate or this Court on appeal: Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 291 to 292 per Kirby J.

15                  This Ground is without substance.

The Failure To Attend a Hearing and Section 424A

16                  The second Ground of Appeal, again construed as a contention that the Federal Magistrate erred in not concluding that there had been a failure on the part of the Tribunal to comply with s 424A of the Migration Act 1958 (Cth), is also to be rejected.

17                  Section 424A(1) and (3) provides as follows:

Information and invitation given in writing by Tribunal

(1)     Subject to subsections (2A) and (3), the Tribunal must:

(a)        give to the applicant, in the way that the Tribunal considers appropriate in the   circumstances, clear particulars of any information that the Tribunal considers     would be the reason, or a part of the reason, for affirming the decision that is        under review; and

(b)        ensure, as far as is reasonably practicable, that the applicant understands why it               is relevant to the review, and the consequences of it being relied on in             affirming the decision that is under review; and

(c)        invite the applicant to comment on or respond to it.

…

(3)     This section does not apply to information:

(a)        that is not specifically about the applicant or another person and is just about a                 class of persons of which the applicant or other person is a member; or

(b)        that the applicant gave for the purpose of the application for review; or

(ba)      that the applicant gave during the process that led to the decision that is under                 review, other than such information that was provided orally by the applicant to the Department; or

(c)        that is non‑disclosable information.

18                  Section 424A, it is considered, had no application to the facts as presented to either the Tribunal or the Federal Magistrate. The Magistrate was correct in rejecting the same argument as was advanced before her.

19                  The Tribunal proceeded to resolve the claim upon the basis of the material provided to it by the now Appellant. In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, 96 ALD 1 Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ concluded:

[18] … if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [[2004] FCAFC 123, 206 ALR 471] that the word “information”:

… does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.

If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

The concept of “information”, as that term is used in s 424A, thus does not extend to the “subjective appraisals” of the Tribunal in its consideration of such materials as are placed before it by a claimant: see s 424A(3)(b). Nor does it extend to “doubts, inconsistencies or the absence of evidence”. Decisions of this Court have obviously adopted and applied these conclusions: e.g. SZLPF v Minister for Immigration and Citizenship [2008] FCA 1692 at [8]; Tran v Minister for Immigration and Citizenship [2008] FCA 1826 at [26], 105 ALD 555 at 563; SZLKY v Minister for Immigration and Citizenship [2008] FCA 1755 at [30]; SZLSM v Minister for Immigration and Citizenship [2009] FCA 537 at [31].

20                  Moreover, in circumstances where a claimant fails to attend at a hearing before the Tribunal — as in the present proceeding — and where the Tribunal cannot reach the requisite state of satisfaction upon the materials before it, s 424A is of limited operation. In SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 Allsop J thus stated:

[29] … 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.

See also: SZLHR v Minister for Immigration and Citizenship [2008] FCA 1160 at [11] per Sundberg J.

21                  The Federal Magistrate was correct to conclude that s 424A had no application to the case before her. The now Appellant, having expressly declined an invitation extended by the Tribunal to attend a hearing before it, cannot now complain that the materials he had forwarded to the Tribunal left unanswered the concerns the Tribunal identified in its reasons for decision.

22                  Indeed, it would be curious if any contrary conclusion were to be reached. It is for a claimant to advance whatever evidence or arguments he wishes to advance in support of a claim that he has a well-founded fear of persecution for a Convention reason; it is then for the Tribunal to decide whether the claim is made out: Abebe v The Commonwealth of Australia [1999] HCA 14 at [187], 197 CLR 510 at 576 per Gummow and Hayne JJ. It would be a curious result (and an unacceptable result) if a claimant could unsuccessfully advance some materials and thereafter have an entitlement, perhaps a repeated entitlement, to supplement the original material until he may ultimately prevail. The unacceptability of such a course is only compounded by a claimant shunning an invitation to attend and to participate in a hearing so that the material originally provided could then be discussed.

A Real Chance of Political Activity?

23                  The passage in the Tribunal’s “Findings and Reasons” which is the subject of the final Ground of Appeal, together with the “Conclusions” thereafter expressed, provide as follows:

[26] … I am unable to be satisfied on the evidence before me that, if the applicant returns to Bangladesh now or in the reasonably foreseeable future, there is a real chance that he will be involved in any form of political activity or that he will be persecuted (whether by the Awami League leader and his people, the Awami League more generally, the caretaker government or the army) for reasons of his real or imputed political opinion or for any other Convention reason.

CONCLUSIONS

[27] I am unable to be satisfied on the evidence before me that the applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future. It follows that I am not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Consequently the applicant does not satisfy the criterion set out in paragraph 36(2)(a) of the Act for a protection visa.

24                  By reference to the reasons for decision of the Federal Magistrate, it is understood that “the applicant contended that the Tribunal had acted in excess of its jurisdiction by giving him a guarantee that he would not have any real chance of persecution …”. But, as correctly observed by the Federal Magistrate, no such “guarantee” was given. The conclusion of the Tribunal was that it was “unable to be satisfied on the evidence” that the now Appellant would be “involved in any form of political activity or that he will be persecuted …”.

25                  So understood, the final Ground of Appeal is also to be rejected.

Conclusions

26                  The Notice of Appeal should be dismissed. There is no reason why costs should not be awarded in favour of the First Respondent.

ORDERS

27                  The Orders of the Court are:

1.                  The Notice of Appeal as filed on 1 June 2009 is dismissed.

2.                  The Appellant is to pay the costs of the First Respondent.

Associate:

Dated:         14 August 2009