FEDERAL COURT OF AUSTRALIA

SZMSI v Minister for Immigration and Citizenship [2009] FCA 1378

SZMSI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 924 of 2009

COWDROY J

25 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The Appellant 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.

REASONS FOR JUDGMENT

1                     The appellant appeals from the decision of Federal Magistrate Cameron delivered on 6 August 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 7 August 2008. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection (Class XA) visa to the appellant.

BACKGROUND

2                     The appellant is a citizen of Bangladesh who arrived in Australia on 29 November 2007. On 28 December 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 11 March 2008. On 27 March 2008 the appellant applied to the Tribunal for a review of that decision.

3                     In his application for a protection visa, the appellant claimed to be a Christian, who worked as chief accountant for a ‘Christian authorised NGO’, the Participatory Development Initiatives of the Masses (‘the PDIM’). The organisation is a ‘micro-credit’ organisation, handing out loans to help people start small businesses.

4                      The appellant claimed to have become the target of fundamentalist Muslims as he allegedly influenced many Muslims and Christians and encouraged local poor people to become Christians while working for the PDIM. The appellant asserted that as a consequence of this in July 2006 fundamentalists from the Jagrata Muslim Bangladesh (‘the JMB’) entered his house in Gazipur and threatened to kill him and his family if they did not leave the area. As a result of continual harassment, the appellant and his family moved to Dhaka and went into hiding from late 2006. However, the appellant claimed to return to Gazipur occasionally for work.

5                     The appellant claimed that on 11 October 2007 a ‘bunch of fundamentalist Islamic people’ attacked and assaulted him and threatened to kill him when he was returning to Dhaka from Gazipur, leaving him with five broken teeth and psychological harm. He later learned that his attackers were the same fundamentalists who were responsible for the deaths of ten Christians during an attack on a church, as well as a series of bomb attacks in Bangladesh. After the October 2007 attack he received telephone death threats from unknown people.

6                     The appellant claimed that there are still violent and dangerous fundamentalist people in Bangladesh and he is not safe there. He claimed that the police are corrupt and sometimes sympathetic to the fundamentalists. The appellant claimed that if he returned to Bangladesh there would not be enough police to protect him from the threats he faces and the authorities are unable or unwilling to provide him with adequate and effective protection.

THE TRIBUNAL’S DECISION

7                     Following the hearing before the Tribunal, the Tribunal sent two letters pursuant to s 424A of the Migration Act 1958 (Cth) (‘the Act’) to the appellant seeking further information. The first was dated 27 May 2008 and the second was dated 13 June 2008. The second letter is relevant for the purposes of the present proceedings (‘the s 424A letter’). The s 424A letter disclosed to the appellant that the Tribunal had, through the Australian High Commission in Dhaka (‘the High Commission’), contacted a Mr Sharful Islam, a senior manager of a donor organisation to the PDIM. The s 424A letter quoted the full response of the High Commission to the Tribunal which was to the effect that Mr Islam knew of the appellant’s resignation from the PDIM, that as far as he knew the appellant had left the PDIM because of internal problems within the organisation and that he was not aware of the PDIM having religious issues with the local population. The letter also stated that Mr Islam knew the appellant personally and he stated that he was not aware of any physical attack on the appellant or problems while he worked in Gazipur.

8                     The Tribunal accepted that the appellant was a practising Christian and that he had worked for the PDIM until he departed from Bangladesh. However, the Tribunal found that the appellant was not a credible witness, noting that he presented untruthful claims about his Christian profile, activities and the alleged attack on him in October 2007. The Tribunal did not accept that he had been the target of fundamentalist Muslims. The Tribunal concluded that whilst some of the appellant’s claims related to real events and experiences, other incidents were either untruthful or had been exaggerated or misconstrued so as to establish a basis for refugee status.

9                     The Tribunal found that the appellant’s delayed departure from Bangladesh, being almost two months after he obtained his visa, was inconsistent with the conduct of a person who fears persecution and the appellant’s explanations for this delay did not resolve the Tribunal’s concerns. The Tribunal also found that the appellant gave minimal evidence of having taken credible precautions in response to the alleged threats from Islamic militants.

10                  The Tribunal noted that although micro-credit organisations in Bangladesh have attracted the adverse attention of Muslim extremists from time to time, there was no persuasive evidence that the PDIM have faced problems or that their employees have been at risk. The Tribunal found that the PDIM was a secular organisation with some Christian links, not a Christian NGO. The Tribunal further noted that country information discussed with the appellant identified certain Christians who face a higher level of risk, particularly those who actively proselytise.

11                  In response to a letter from a Ms Angela Malakar (provided by the appellant to the Tribunal in response to the comments of Mr Islam) the Tribunal concluded that it appeared to simply repeat the claims of the appellant, and consequentially the Tribunal did not place weight on the letter. The Tribunal did not consider it to outweigh the information provided by Mr Islam.

12                  The Tribunal rejected the proposition that the appellant was an evangelising Christian, particularly that he actively promoted the religion while working for the PDIM. The Tribunal did not believe that being a regular Christian parishioner in Bangladesh gave rise to a real chance of persecution. The Tribunal found that if the appellant returned to Bangladesh he would be able to continue his religious practice with no real chance of Convention-related persecution.

13                  The Tribunal therefore affirmed the decision of the delegate not to grant the appellant a Protection (Class XA) visa.

FEDERAL MAGISTRATES COURT

14                  By Application filed in the Federal Magistrates Court of Australia on 4 September 2008 and by Amended Application filed on 2 March 2009, the appellant sought judicial review of the Tribunal’s decision.

15                  Before Federal Magistrate Cameron in the Amended Application the appellant claimed:

1.    The Tribunal committed jurisdictional error of law in that it failed to comply with s 424 of the Migration Act.

       Particulars

       (a)   The invitation to one Sharful Islam to give information, directed to Mr Islam through an Australian overseas mission, was not given in the way prescribed by s 424(3) of the Migration Act

2.    The Tribunal failed to comply with the requirements of s 424(1) of the Migration Act, read with s 422B(3) of that Act.

       Particulars

       (a)   Failure to ask specific questions as to the applicant’s claimed circumstances, rather than rely on inferences from answers to general and obscure questions.

3.    The Tribunal failed to comply with s 424A(1) and (2) of the Migration Act, read with s 422B(3) of that Act.

       Particulars

       (b)   Failure to disclose the precise questions asked of Mr Sharful Islam, and,

       (c)   Failure to disclose the precise answers that were given.

16                  All three contentions raised by the appellant related to the actions undertaken by the Tribunal when it sought information in Bangladesh, and enlisted the support of the High Commission for this purpose. As mentioned, the substance of the Tribunal’s request to the High Commission, as well as the substance of the response to that request, was put to the appellant pursuant to the s 424A letter.

17                  In respect of the first ground, the Federal Magistrate noted that the Court was bound by the decision of the Full Court of the Federal Court of Australia in SZLPO and Others v Minister for Immigration and Citizenship and Another (No 1) (2009) 177 FCR 1. The only submission made on the ground of appeal by the appellant was that the decision of the Full Court in SZLPO was wrong.

18                  In support of the second ground, counsel for the appellant submitted that if the Tribunal chose to exercise its power under s 424A of the Act, fairness and justice required that any questions posed to a witness on its behalf be specific, rather than general and obscure as he submitted was the case on this occasion. It was submitted that the Tribunal should not have drawn inferences from the High Commission’s response which paraphrased the witness’s responses to those allegedly general and obscure questions. The appellant submitted that by acting as it did, the Tribunal breached its obligations under s 422B(3) of the Act.

19                  Cameron FM found that the circumstances of this case did not justify a conclusion that the appellant had been denied procedural fairness in connection with the information obtained pursuant to s 424A. His Honour noted that the appellant was given the information he was entitled to have (contained in the s 424A letter sent to him on 13 June 2008), and he was given an opportunity to address it. By providing the appellant with such an opportunity the Federal Magistrate found that the requirements of s 422B(3) were met and there was no unfairness to the appellant, citing Minister for Immigration and Citizenship v SZMOK and Others (2009) 257 ALR 427 at [60].

20                  In support of the third ground, the appellant submitted that the requirement that the Tribunal provide ‘clear particulars’ of information that would be the part of the reason for it affirming the decision under review could not be discharged unless the Tribunal gave the appellant the questions to which the informant had responded citing SZKCQ v Minister for Immigration and Citizenship and Another (2008) 170 FCR 236 at [4].

21                  The Federal Magistrate found that the Tribunal had complied with its obligations under the Act. His Honour stated that the fact that the questions and answers may not have been reproduced verbatim did not mean that the manner in which they were reproduced was not clear. His Honour noted that the information which was provided to the appellant was the information which was before the Tribunal, and there was no basis to conclude that the Tribunal had more information, or information more clearly expressed, than that which was supplied to the appellant.

22                  Additionally, the Federal Magistrate distinguished the decision in SZKCQ from the application before him on the basis that the former was concerned with inferences drawn by the Tribunal regarding what two informants contacted on behalf of the Tribunal did not say rather than what they did say in circumstances where the Tribunal failed to advise the applicant of the terms of the questions put to the informants. His Honour considered that SZKCQ was not authority for the proposition that clear particularisation of relevant information, as required by s 424A(1)(a) of the Act, will only be achieved if the actual terms of the questions posed to an informant are supplied to an applicant before the Tribunal.

23                  Having found no jurisdictional error in the Tribunal decision, Cameron FM dismissed the Application.

APPEAL TO THIS COURT

24                  On 25 August 2009 the appellant filed in this Court a Notice of Appeal from the decision of Federal Magistrate Cameron. One ground of appeal is raised and the ground of appeal is in the nature of submissions. The ground of appeal is extracted in full below:

His Honour committed an error of law in dismissing that the decision involved a jurisdictional error of law involving an incorrect interpretation of the applicable law to the facts of the case found by the Refugee Review Tribunal. The Tribunal decision was an improper exercise of the power conferred by the Migration Act or the regulations.

The Tribunal breached its obligations under S.424A (1) of the Act. The Tribunal made a number of findings to reject my claims. The Tribunal did not discuss with me of this finding, to provide an explanation in relation to those findings. The Tribunal had an obligation to do so according to s.424A of the Act. In SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) at [10] where His Honour stated”… whether there was information which the Tribunal considered would be the reason, or part of the reason for affirming the decision under review and, if so, whether the Tribunal met is obligations under s 424A of the Act to provide the appellant with the particulars of that information in writing. In SZEEU Allsop J., in considering this issue, relevantly said at [204]: “The assessment of whether the Tribunal has complied with s 424A(1) requires close attention to the reasons of the Tribunal, because it is the information that the Tribunal considers relevant that must be assessed in order to see whether, prior to the decision being made, it would be the reason or part of the reason for affirming the decision. “The withholding of the full contents of particular information in the case deprived the applicant of knowledge of some of the particulars of information relied upon by the Tribunal, and also the opportunity to understand in their relevant context, such pieces of it as were put to the applicant. This was a failure by the Tribunal to take an obvious and practical step to ensure that the applicant could be sufficiently informed to understand, and then comment effectively upon, the particulars of information which were put to him. “Particulars of information” within s. 424A (1) (a) includes particulars relating to the derivation of adverse evidence which is accepted by the Tribunal. Such particulars must inherently be a part of the reason for affirming the delegate’s decision, since they provide information which allows reliance by the Tribunal on the adverse evidence. Particular information identifying the derivation of adverse evidence is distinct from the reasoning process which assesses the relevance and weight of the adverse evidence. Alternatively, the Tribunal’s obligations under s.424A(1)(b) encompass the giving of particulars as to the derivation of adverse evidence which might affect a consideration of whether the information is reliable, since those particulars inherently assist a proper understanding of the relevance of the adverse evidence to the Tribunals’ review.

Federal Magistrate Cameron dismissed the appellants Review application instead of remitting the matter back to the Tribunal for reconsiderations according to law even though the Tribunal failed to comply with the mandatory obligations and also the lawful effect while the Tribunal made its decision.

[all errors are those of the Notice of Appeal]

SUBMISSIONS OF THE APPELLANT

25                  Prior to the hearing the appellant provided written submissions. Such submissions do not relate to the ground of appeal in the Notice of Appeal. Instead, the submissions refer to a new ground of appeal as follows:

The Tribunal member failed to properly consider whether or not applicant face real chance of convention related persecution.

The Tribunal has failed to consider it in terms required by the principal [sic] set out in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220; (1999) 56 ALD 42:

26                  The submissions then extract [60]-[67] of the judgment in Rajalingam.

27                  The appellant appeared at the hearing assisted by an interpreter. It was pointed out to the appellant that the written submissions which he had provided did not have any bearing upon the ground of appeal which he had referred to. The appellant made a reference to the fact that he had seen various decisions on the internet.

28                  When asked for the precise matter upon which his appeal was based, the appellant referred to the s 424A letter which was discussed at [7] of this judgment. He stated that he also wished the Court to consider his written submissions.

29                  By letter dated 25 June 2008, a response was provided to the s 424A letter by the appellant to the Tribunal via the appellant’s migration agent. Such response provided:

PKSF [the organisation Mr Islam worked for which was a donor to the the PDIM] provides Micro credit to my company, which is PDIM and also Monitor my company activities. Information provided by Mr Islam from PKSF was formally official but he also knows I work for Christianity and I was attacked by Islamic fundamentalist. I have spoke to him over the telephone and he denied issuing me any official letter. We can’t expect more then this from a Muslim person of Bangladesh. I have attached a letter from a Christian lady called Miss Angela Malakar who is presently working at PKSF. Angela is aware o f my Christianity Preach and following deadly attack on me, which occurred at October 2007.

[all errors are those of the letter]

30                  The appellant submitted before this Court that he had telephoned Mr Islam who told him, ‘I can’t give you an official letter. I would lose my job’, or words to that effect. The appellant submitted that Mr Islam was not aware of the appellant’s involvement with Christianity and for this reason the information relied upon by the Tribunal, namely the information provided by Mr Islam, was incorrect. The appellant submitted that instead of accepting Mr Islam’s evidence, the Tribunal should have relied upon the letter of Ms Malakar which was contained within his supporting material and which supported his claim that he was preaching Christianity, that he was threatened several times by Islamic militants and that he was attacked by militants in October 2007.

FINDINGS

Appellant’s submissions

31                  The ground referred to in the appellant’s submissions is new and the appellant requires leave to rely upon it. Matters for the Court to consider when deciding whether to grant leave are discussed in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [166], see also SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[11]. The Court is required to consider the new ground sought to be raised, in order to determine if it is ‘expedient in the interests of justice’ to allow the new ground to be argued and determined: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168 at [26].

32                  The appellant seems to suggest by such submissions that the Tribunal erred because it failed to consider whether there is a real chance that he might face Convention-related persecution. However, in Rajalingam the decision maker was uncertain whether the applicant might face persecution. The Tribunal record in these proceedings reveals no such doubt. Further, as submitted by the Minister, the Tribunal expressly referred to Rajalingam when making its decision, so it must have had that judgment in mind when it considered that it did not assist the appellant’s claim. Accordingly, there is no basis for such claim, and the Court declines to grant leave for it to be raised.

Notice of Appeal

33                  The Notice of Appeal alleges that the Tribunal did not discuss with the appellant or provide an explanation of its findings to him regarding why his claims would be rejected. The appellant refers to and relies upon the decision of Allsop J in SZEEU. From his oral submissions before the Court, it is still not clear precisely what the ground of appeal refers to. Accordingly, the Court is required to speculate upon the precise nature of the information which the appellant claims was not provided to him.

34                  If the appellant asserts that the s 424A letter is the true issue in the proceedings, it appears that such ground was comprehensively considered by Cameron FM in his judgment in so far as it relates to the inquiries made of the High Commission.

35                  Before Cameron FM the appellant claimed that he was entitled to be provided with the text of the actual request and of the reply, rather than simply the summary thereof which was put to him in the s 424A letter. The letter clearly stated that the Tribunal had requested the Australian High Commission to make inquiries, and the essential details of the request and the response were set out in the letter. The Tribunal also specified the reason why it considered that such information was relevant to its decision. In these circumstances the facts particular to those in SZEEU are readily distinguishable.

36                  The Court has considered the finding of Cameron FM on this issue and is unable to discern any error in his Honour’s findings.

37                  If, by the Notice of Appeal, the appellant does not rely on the issue regarding the s 424A letter, but rather that by his statement that ‘[t]he Tribunal made a number of findings to reject my claims. The Tribunal did not discuss with me of this finding, to provide an explanation in relation to those findings’ he suggests that the Tribunal ought to have provided him with information regarding its decision-making process, then this ground cannot succeed either. It has been conclusively established by the High Court of Australia in SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at [18] that the word ‘information’ in s 424A does not include ‘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’.

Submissions before the Court

38                  The Court now turns to the issue raised by the appellant orally before this Court. At the outset, the Court observes that the issue referred to by the appellant was not raised before the Federal Magistrate and accordingly the same considerations apply as that considered by the Court earlier in this decision in respect of the appellant’s claim concerning the decision in Rajalingham. Accordingly, leave is required for the Court to entertain the ground.

39                  The appellant in substance alleges that the Tribunal should not have relied upon the statements made by Mr Islam. In his written statement to the Tribunal (more fully set out at [29] above), the appellant gave as the reason for the Tribunal to reject Mr Islam’s information that:

We can’t expect more then [sic] this from a Muslim person of Bangladesh.

40                  However, such statement was written on 25 June 2008, after the appellant had apparently spoken to Mr Islam by telephone. The appellant now states that Mr Islam was not prepared to provide a letter to him because of a concern of Mr Islam that he would lose his job. No such allegation was provided in the letter which the appellant provided to the Tribunal on 25 June 2008 in answer to the s 424A letter. Nor did the appellant suggest to the Tribunal that which he has now put forward before this Court, namely that Mr Islam declined to give a letter in support of the appellant’s claims to be a refugee because it may have jeopardised his employment prospects.

41                  When this was pointed out to the appellant, he stated that English was not his first language and that there was confusion in his communication with his legal adviser. However, he acknowledged that he read and understood English.

42                  Cameron FM found at [34] of his Honour’s decision that the Tribunal had not failed to provide clear particulars of the information upon which the Tribunal would rely to the appellant. That information included the information provided by Mr Islam. The Tribunal accepted that information. In effect the appellant now seeks to have a merits review as to whether the Tribunal should have accepted the statements of Mr Islam. The Tribunal’s decision makes it clear that it did not regard the appellant as a witness of truth and in particular found against his claim to have been attacked and persecuted because of his Christian beliefs.

43                  The issues concerning Mr Islam’s letter were directly provided to the appellant in the s 424A letter. The letter, after referring to Mr Islam’s knowledge of the appellant and of his ceasing employment then stated (with reference to Mr Islam’s comments):

However, he [Mr Islam] appears to be not aware of any immediate physical attack upon you, any problems in Gazipur or any factors apart from the internal office matters that caused you to leave Bangladesh.

44                  The Tribunal informed the appellant in its s 424A letter that such evidence cast doubt upon the appellant’s stated reasons for leaving Bangladesh and could lead it to conclude that the appellant’s claims were not truthful.

45                  The Court does not consider that the new issues sought to be raised in oral submissions have any prospect of success. The issue would involve a factual re-hearing of the proceedings and merits review upon a matter not previously raised. The Court is not satisfied that it is in the interests of justice that such leave should be given. Accordingly, the Court refuses leave.

46                  The Court dismisses the appeal with costs.

Associate:

Dated:         25 November 2009