Hossain, Wakil v Minister for Immigration & Multicultural Affairs [1998] FCA 738

FEDERAL COURT OF AUSTRALIA MIGRATION - application to review decision of Refugee Review Tribunal refusing to grant a protection visa - whether Refugee Review Tribunal failed to comply with Migration Act 1958 (Cth) s 425 - whether Refugee Review Tribunal failed to provide fair procedures. Migration Act 1958 (Cth) ss 36, 420, 425, 476. Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 (FC), cited. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited. WAKIL HOSSAIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 205 OF 1998 SACKVILLE J SYDNEY 24 JUNE 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 205 of 1998

BETWEEN: WAKIL HOSSAIN

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: SACKVILLE J.

DATE OF ORDER: 24 JUNE 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal dated 19 February 1998 be affirmed. 2. The applicant pay the respondent's cots. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 205 of 1998

BETWEEN: WAKIL HOSSAIN

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: SACKVILLE J

DATE: 24 JUNE 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT This is an application to review a decision made by the Refugee Review Tribunal ("RRT") on 19 February 1998. The RRT affirmed a decision by a delegate of the Minister for Immigration and Multicultural affairs ("the Minister"), made on 7 March 1997, refusing the grant of a protection visa to the applicant. A criterion for the grant of the protection visa is that the applicant for the visa is a non-citizen in Australia, to whom Australia has protection obligations under the Convention relating to the Status of Refugees, as amended by the 1967 Protocol ("the Convention"): see Migration Act (1958) Cth (the Migration Act"), ss 5(1), 36(2); Migration Regulations, Schedule 2, cl 866.21. The applicant was born in Dhaka, Bangladesh in 1969. He is of the Islamic faith. The applicant has some limited understanding of the English language. However, the proceedings in this Court were translated for him by a Bengali interpreter. The applicant gave evidence in support of his case, which was also translated by the Bengali interpreter. The applicant was not legally represented at the hearing. The application filed by the applicant in this Court states that he has fears of persecution if he were returned to Bangladesh. The applicant says that he is not satisfied with the decision of the RRT, because it "failed to properly assess my situation in Bangladesh, which I tried to establish about my fears of prosecution and possibly facing life imprisonment on my return". The application for review does not identify any specific error of law upon which the applicant relies to set aside the decision of the RRT. As often occurs with unrepresented applicants in migration cases, the applicant in these proceedings assumed that the role of the Court was to reassess the merits of his claim to refugee status. His complaint, as I understood his oral submissions, was essentially that he feared arrest and prosecution for political activities if he were to be returned to Bangladesh, and that the RRT had been wrong not to accept his account of events. As I endeavoured to explain to the applicant, the Court's role on applications for review of migration decisions is much more limited than he had assumed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 271-272, per Brennan CJ, Toohey, McHugh and Gummow JJ. The Court has power to set aside (relevantly) a decision of the RRT only if one of the grounds specified in the Migration Act is made out. In the circumstances, I think that the appropriate course is to set out the relevant events, in order to determine whether any ground for review specified in the Migration Act might reasonably be available to the applicant. I have been assisted in this task by the written submissions of Ms Backman, who appeared for the Minister. These submissions, while pointing out the difficulties confronting the applicant, raise for consideration the possibility that the RRT might have failed to comply with s 425 of the Migration Act. Section 425 provides as follows: "425(1) Where section 424 does not apply, the Tribunal: (a) must give the applicant an opportunity to appear before it to give evidence; and (b) may obtain such other evidence as it considers necessary. (2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review." Section 424, referred to in s 425(1), provides that if, after considering the material contained in documents given to the Registrar in accordance with procedures set out in the legislation, the RRT is prepared to make the decision or recommendation on the review that is "most favourable to the applicant", the Tribunal may make that decision or recommendation without taking oral evidence. It is also necessary to take into account the possibility that the RRT failed to provide procedures that were fair and just, and directed to ensuring that the application could be decided according to its substantial justice and merits: Migration Act, ss 420, 476(1)(a); Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 (FC), at 303-304, per Davies J; at 320, per Burchett J. The applicant's claim, as outlined in written material before the RRT, was that he had been an active member of the Bangladesh Nationalist Party ("BNP"), and that he had organised and led public demonstrations against the ruling party, the Awami League. In February 1996, a clash occurred between student members of the Awami League and supporters of the BNP at Tejgaon College, where the applicant claimed to have completed his education in 1992. During that clash, according to the applicant, an Awami League supporter was killed. Although the applicant stated that he had no involvement in the murder, he says that he and six other BNP members or supporters were wanted for the offence. Fearing arrest, the applicant went into hiding until July 1996, when he arrived in Australia. He travelled to this country on a Bangladeshi passport, issued in April 1996. The RRT found that, on the evidence as a whole, it was not satisfied that the applicant was a person to whom Australia owes protection obligations under the Convention. It found that the claims made by the applicant were merely a series of unsupported assertions and were not independently verified. The RRT was not satisfied that the applicant had a well-founded fear of persecution, within the meaning of the Convention, if he were to be returned to Bangladesh. The critical factor in the present case is that the RRT notified the applicant in writing, on 11 December 1997, that it had examined the papers relating to his application and was unable to make a favourable decision on the basis of that information alone. At that stage, the applicant was represented by solicitors, to whom the RRT's letter was addressed. The RRT's letter was clearly written in order to comply with the requirements of s 425(1) of the Migration Act. Despite this notification, neither the applicant nor his solicitor appeared at the hearing appointed by the RRT on 11 February 1998. Thus, as the RRT pointed out in its reasons, it did not have the opportunity to put to the applicant a series of questions that would have tested the credibility of "a number of aspects of his claims which are in conflict with the independent evidence, or which are inconsistent or implausible". For example, the RRT would have sought details as to how the applicant obtained his passport in April 1996, at a time when he claimed to have been in hiding in consequence of a warrant being issued for his arrest. It would also have explored inconsistencies between the claims made in a letter submitted by his solicitors and the claims put forward in his interview with the delegate. Similarly, the RRT would have put to the applicant the difficulty it had in accepting his claim that false charges were filed against him for political reasons, when the BNP (of which he claimed to have been a member) was in government at the relevant time. In addition, the RRT also wished to put to the applicant the proposition that even if he had been incorrectly charged with murder, he would have received a fair trial in Bangladesh, including the opportunity to be represented at such a trial. Since the applicant did not appear at the RRT hearing, none of these factual issues could be explored with him. At the hearing in this Court, the applicant tendered what purported to be true copies of a series of official documents issued by the Bangladeshi authorities. These included copies of a warrant of arrest dated 11 June 1996 naming the applicant as a person charged with certain offences designated only by numbers; a "first information report" relating the circumstances of an "occurrence" at Tejgaon College, Dhaka, on 12 February 1996; a request for proceedings to be instituted against a number of accused, including the applicant, in respect of an incident on 11 February 1996 in which one Awami League worker is said to have been killed on the spot and another five or six persons were said to have been fatally injured; a Charge Sheet requesting the issue of summonses to witnesses; an "Order Sheet" recording that all accused were absconding and providing for the issue of a warrant; and a document headed "Arrest of Warrant" directing the relevant officer to arrest the applicant. In addition, the applicant tendered two undated references, one of which suggests that he was the General Secretary of "Tejgaon Collage [sic] Shangshat, Dhaka" and a "proficient political leader". The certified copy documents are not photocopies of original documents, but purport to be typed versions of the originals. The copy document described as an "Order Sheet" contains the following curious sentence "This case is Political." There are some other curious features of the documents, but it is unnecessary to explore them further. It might be argued that the RRT had denied the applicant a fair opportunity to obtain documents from Bangladesh which, on their face, appear to support his claims that he faces charges arising out of the events at Tejgaon College in February 1996. It might perhaps be said that, if the applicant had been afforded more time, he might have been able to obtain the documents and to present them to the RRT. In order to assess this argument, it is necessary to provide some further details of the procedural history of the matter before the delegate and the RRT. The applicant gave evidence that, as early as February 1997, he had requested his family in Bangladesh to obtain documents supporting his case from the Bangladeshi authorities. That claim receives some support from a letter dated 6 February 1997, written by the applicant's then solicitors to the Department, requesting that the applicant's appointment on 26 February 1997 for an interview be postponed. The letter asserted that the applicant would be in receipt of the necessary documents "within the next two months". In the event, the delegate refused to postpone the interview, giving as the reason the fact that the applicant had already had seven months to obtain documentation from Bangladesh. At the interview, which was held on 26 February 1997, the delegate noted that the applicant's solicitor had indicated that the applicant wished to produce copies of the charge sheet and of the arrest warrant naming him in connection with the events of February 1996. The applicant, in answer to a question, stated that he was trying to get these documents from Bangladesh, but that it would take about four to six weeks to do so. Following the delegate's rejection of the applicant's claim, his solicitors lodged an application for review of the decision by the RRT. The covering letter enclosed a number of documents and stated that the applicant would provide the RRT, as soon as possible, with a statutory declaration outlining the reason for his dissatisfaction with the decision made by the delegate, together with all necessary documents in order to establish his claim for refugee status. On 11 December 1997, the RRT wrote to the applicant, care of his solicitors, in the terms to which I have already referred. The letter advised the applicant that he was entitled to attend a hearing of the RRT in order to give oral evidence. The letter invited the applicant to lodge a "Request for Hearing" form, and advised him that the hearing would take place on 4 February 1998. On 19 December 1997, the applicant signed a form in which he stated that he wished to give oral evidence at the hearing. The form, which was duly forwarded to the RRT, also indicated that there was no other person or persons from whom the applicant wished the RRT to take oral evidence. On 3 February 1998, a request was made to the RRT, apparently by the applicant's solicitors, for an adjournment of the hearing, on the ground that the applicant was suffering from a chest infection and would be unfit to attend until 4 February 1998. Nothing was said about more time being needed to obtain documents from Bangladesh. In response to this request, the RRT sent a letter to the applicant, again care of his solicitors, agreeing to postpone the hearing until 5 February 1998. However, the applicant's solicitors were apparently unable to contact the applicant and thus he did not arrive at the hearing scheduled for 5 February 1998. On that day, the RRT sent a further letter to the applicant, addressed to his home, with a copy to his solicitors. The letter was as follows: "You were offered a hearing on Wednesday 4 February 1998. Because you submitted a medical certificate indicating that you have a throat infection and would be unfit to work on 3 and 4 February 1998, the hearing was rescheduled for 12:00 pm on 5 February 1998. Your solicitor has indicated that he was unable to contact you by telephone and indicate the new hearing date, so he sent a letter to you by express post. You did not arrive at the hearing scheduled for 5 February 1998. In the event that you did not receive that letter, the Presiding Member is prepared to offer you a new hearing date. This will be the final opportunity for you to provide oral evidence. Your new hearing is: Date: Wednesday, 11 February 1998 Time: 1.30 pm." The letter invited the applicant to telephone a named officer to confirm his attendance at the hearing. The letter contained this notation: "Please note that if you do not respond, the hearing will not go ahead and a decision will be made on the basis of the evidence already before the Tribunal." The applicant acknowledged in his evidence and submissions that he had received this letter. He also acknowledged that he had made no contact with the RRT between the date of receiving the letter and the scheduled date for the hearing, namely, 11 February 1998. At one stage in his evidence, the applicant appeared to suggest that he had asked his solicitors to contact the RRT in order to postpone the hearing. However, he later said that the solicitors had told him that he had a choice as to whether he would attend the RRT or take the matter up with the Court if and when papers became available. He gave as his reason for not attending the RRT that he knew he had not been able to obtain any documents from Bangladesh and that there was no point in appearing before the RRT without the supporting documents. His evidence was that the documents did not arrive in Australia until May 1998, by which time it was too late to do anything. I find that the applicant did not ask his solicitors to seek an adjournment of the hearing scheduled for 11 February 1998, and that the solicitors made no such request of the RRT. This conclusion is supported by the applicant's acknowledgment in the course of his submissions that it was his own fault that he had not attended the scheduled hearing. It was also supported by the absence of any reference in the RRT's reasons to any request of this nature. Had the applicant's solicitors requested an adjournment, it is hardly likely that the RRT would have omitted mention of the request in its detailed account of the procedural background to the applicant's non-attendance at the scheduled hearing. In making this finding, I have taken into account a notation appearing in the RRT's file as follows: "10.2.98 agent rang to say a/n wants dop - written confirmation will be faxed - rcook." I think it is clear that this notation does not refer to a request to adjourn the hearing. There is nothing in the evidence to suggest that the applicant's solicitors sent a faxed confirmation to the RRT. Had the conversation referred to such a request, it is highly likely that the solicitors would have confirmed the request in writing and the confirmation would have been on the file. In any event, I think the applicant's evidence, taken as a whole, makes it clear that he did not ask his solicitors to seek an adjournment of the scheduled hearing. In these circumstances, it cannot be said that the RRT failed in any obligation it had to provide procedural fairness to the applicant. He had known, at least since February 1997, that documentation from Bangladesh was or might be important to his case. He had told the delegate that he would obtain the necessary documentation within four to six weeks. He presented no documentation to the RRT, beyond that which had been before the delegate, and some formal material. No suggestion was made to the RRT that the proceedings should be adjourned in order to enable important documentation from Bangladesh to be obtained. The applicant simply did not appear on the date scheduled for a hearing. In these circumstances, the RRT was fully entitled to proceed on the basis that the only material to be considered was that already provided by the applicant. It also follows that the RRT did not breach s 425 of the Migration Act. I do not think it can be said that the RRT itself was under some obligation to attempt to obtain documents that the applicant had said some twelve months earlier that he intended to obtain from Bangladesh. I should add that the applicant had been put on notice that, if documents were produced from Bangladesh, an issue might well arise as to their authenticity. At the interview of 26 February 1997, the delegate allowed the applicant seven days in which to provide further documentary evidence in support of his case. The delegate informed the applicant that, when documents from Bangladesh were checked by the Department, many were found to be fraudulent. The applicant was therefore aware that a question might well arise as to whether documents purporting to be copies of official documents were genuine or not. I do not think that the applicant can rely upon any other ground in order to set aside the RRT's decision. The RRT referred correctly to the relevant principles governing the application of the Convention. The RRT's refusal to accept the applicant's account of events was open on the material before it. There were clearly elements in the applicant's account of events, having regard to the objective circumstances, that cast serious doubts on the credibility of that account. The failure of the applicant to appear at the scheduled hearing deprived the RRT of the opportunity to test the applicant's claims. He had been warned in writing that the RRT could not make a decision favourable to him on the papers alone. Had the applicant appeared, the RRT would have had the benefit of hearing him give evidence in person in assessing whether his account was truthful. In his absence, the RRT was faced, as it said, with unsupported assertions, some of which were inconsistent with other evidence and others of which appeared inherently implausible. It follows that an order should be made affirming the decision of the RRT. The applicant must pay the Minister's costs. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville