SZBYB v Minister for Immigration and Citizenship [2008] FCA 150

FEDERAL COURT OF AUSTRALIA

SZBYB v Minister for Immigration and Citizenship [2008] FCA 150

SZBYB v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1962 OF 2007

EMMETT J

13 FEBRUARY 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1962 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZBYB

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J DATE OF ORDER: 13 FEBRUARY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The Appeal be dismissed. 2. The Appellant pay the First Respondent's costs, including reserved costs of the Appeal in the amount of $3,000. 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 NSD 1962 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZBYB

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE: 13 FEBRUARY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from the orders of the Federal Magistrates Court dismissing a proceeding seeking judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal). By that decision, the Tribunal affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), not to grant to the appellant a protection visa under the Migration Act 1958 (Cth) (the Act). The applicant is a citizen of Bangladesh who arrived in Australia on 30 November 2001. On 13 December 2001, he applied for a protection class XA visa under the Act. A delegate of the minister decided to refuse to grant a visa on 22 April 2002. The appellant then applied to the Tribunal on 21 May 2002 for review of the delegate's decision. 2 On 29 September 2003, the Tribunal affirmed the delegate's decision. The appellant then commenced a proceeding in the Federal Magistrates Court seeking judicial review in respect of that decision. The Federal Magistrates Court set aside the decision and remitted the matter for further consideration by the Tribunal on 10 January 2006. On 27 June 2006, the Tribunal, differently constituted, again affirmed the delegate's decision not to grant a protection visa to the appellant. The appellant was notified of that decision on 6 July 2006. On 7 August 2006, he commenced a further proceeding in the Federal Magistrates Court seeking Constitutional relief in respect of the Tribunal's second decision. 3 After a hearing on 13 June 2007, the Federal Magistrates Court, on 10 September 2007, ordered that the proceeding be dismissed and that the appellant pay the minister's costs of the proceeding. By notice of appeal filed on 28 September 2007, the appellant appeals to this Court from the orders of Federal Magistrates Court made on 10 September 2007. 4 At the hearing before this Court, the appellant was represented by his solicitor who also relied on detailed written submissions in support of the appeal. The grounds of appeal are that the Federal Magistrates Court erred in not upholding the grounds that were relied upon before the Federal Magistrates Court. Before explaining the grounds, I shall say something more about the decision of the Tribunal. 5 The appellant claimed that he belongs to the Awami League, and that he would be persecuted in Bangladesh if he returned. He claimed that his father had been an Awami League stalwart who had died from injuries received while leading a demonstration against the Bangladesh National Party. The appellant claimed that he had been an Awami League supporter from the time of his youth and that, in 1996, he had campaigned on behalf of an Awami League candidate. He said that, in 1999, he had been elected vice president of the youth wing of the Awami League in a particular area and had led processions against the BNP and its allies. He also claimed that he had led a political procession against the BNP, which had ended in violence, as a result of which he had to flee to Dhaka to hide from the BNP, which he claimed had been targeting him ruthlessly with false charges. He said that even in Dhaka he had not been safe and he had to leave Bangladesh. 6 The appellant claimed that he would be at risk of harm if he returned to Bangladesh, not only because of his previous political activity, but also because he belongs to a family which had fought for Bangladeshi independence from West Pakistan. At the hearing conducted by the Tribunal, the Tribunal asked the appellant to tell it about the Awami League party platform at the 2001 election. The appellant claimed that it had three main areas, agriculture, education and industry. Asked for information about its industry policy, the appellant claimed that it wanted to join big and small business and wanted a proper supply of raw materials and that there should be a loan so industry could develop. Asked about tax incentives, the appellant claimed that agriculture is underdeveloped, so if it is taxed, it would not develop. The Tribunal put to the appellant that agriculture was the main sector of the economy. The appellant replied that there are almost 68,000 villages in Bangladesh, where the majority of the population reside and in which the primary source of income is agriculture. Accordingly the Awami League wanted tax free agriculture and small industry, so that they could develop. Asked where the tax would come from if these sectors were exempt, the appellant replied that big industries should pay tax, not the small two or three village units. 7 In the section of its reasons dealing with the reasons for its decision, the Tribunal observed that when asked about the Awami League political platform, the appellant had no understanding of it or the party's detailed goals and simply claimed that it had three main areas, agriculture, education and industry. The Tribunal said that, when it tried to explore some of those in more detail, the appellant was unable to articulate or even outline any coherent policies or show he had any political knowledge, let alone understanding, of the issues involved. I shall come back to the significance of those observations by the Tribunal in due course. 8 The Tribunal also referred in its reasons to a letter tendered by the appellant. The letter purported to be from the Bangladesh Awami League in Dhaka and was purportedly signed by Sheik Hasina, the president of the Bangladesh Awami League and leader of the opposition to the Bangladesh National Party. The letter was dated 5 February 2003. In its reasons, the Tribunal referred to the fact that, by letter of 13 April 2006, the Tribunal put to the appellant that according to advice given by the Department of Foreign Affairs and Trade (DFAT), Sheik Hasina did not sign or issue the letter. The Tribunal stated that DFAT also stated that the letter was a fabrication. 9 In its letter of 13 April 2006, the Tribunal explained that this may draw the appellant's credibility into question as well as reflect badly on the genuineness of the other material he had provided, not only from the Awami League, but also from other sources in Bangladesh. The Tribunal recorded in its reasons that it had many concerns about the appellant's credibility, and the genuineness of both his claims and the information he had provided. In response to the letter of the 13 April 2006, the Tribunal received a letter from the appellant's advisor making a submission that a copy of DFAT's advice had not been provided; nor had the qualification of any witnesses been provided. The letter said that there was insufficient information provided to enable the appellant to respond in a meaningful way. 10 The Tribunal was satisfied that the information in the DFAT report, stating that the letter from Sheik Hasina was a fabrication, was properly put to the appellant. The Tribunal accepted the DFAT report over the claims made by the appellant and found that this went to his credibility. The Tribunal found that the appellant was not a credible witness, and that the letter raised serious doubts about other material that he had been provided. 11 The Tribunal accepted that the appellant was a member of the Awami League and accepted that he was an active member in Bangladesh. However, the Tribunal was not able to satisfy itself that the appellant had a high political profile in Bangladesh, even in his own local area. From his replies to questions put to him at the second hearing, the material and letters of support that he had provided from Bangladesh and the claims made in the advisor's submission of 5 June 2006, the Tribunal did not accept that the types of activities the appellant claimed to have performed were those of an Awami League leader, or gave the appellant a political profile of any sort whatsoever. Having considered all the appellant's claims and circumstances, the Tribunal was not satisfied that there was a real chance that the appellant would be subjected to serious harm amounting to persecution, for a Convention reason, if he were to return to Bangladesh. 12 In his further amended application to the Federal Magistrates Court of 31 May 2007, the appellant claimed that the Tribunal had committed jurisdictional error insofar as it failed to comply with s 424A of the Act. He also complained that the Tribunal failed to accord procedural fairness to the appellant. As I have said, the grounds of appeal are that the Federal Magistrates Court erred in failing to accept those grounds. It's therefore appropriate to deal with each of them separately. 13 Section 424A(1) relevantly provides that the Tribunal must give to an applicant particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review. The Tribunal must ensure, as far as it reasonably practicable, that the appellant understands why the information is relevant to the review and must invite the appellant to comment on it. The appellant's complaint in the present appeal is that, although the Tribunal wrote to him, drawing attention to the report that had been received from DFAT, the letter did not ensure that the appellant was fairly informed of the information adverse to his case so that investigation could be made and steps could be taken, if possible, to respond to it. The appellant complains that the extent of the particulars of information that were given in the Tribunal's letter did not fairly enable him to respond to the information in question. 14 It is clear from what I have said in relation to the Tribunal's reasons that, to the extent that there was information that was part of the Tribunal's reason for affirming the delegate's decision, that information was that the Tribunal had received a report from DFAT, saying that the letter of 5 February 2003 did not contain the genuine signature of Sheik Hasina, was not issued by her office and was not genuine. In its letter of 13 April 2006, the Tribunal said: You have provided many letters claimed to be from different Bangladesh Awami League leaders and organisations, including from Sheik Hasina dated 5 February 2003. However, according to advice given by DFAT, Sheik Hasina did not sign or issue the letter … and they state that the letter you have submitted which purports to be a letter from the President and leader of the Bangladesh Awami League, endorsing your claims, is a fabrication. 15 I do not consider that there is any substance in the appellant's complaint that the letter of 13 April 2006 did not satisfy the requirements of s 424A. As I have said, to the extent that any information was part of the Tribunal's reason, that information was the fact that DFAT had provided the report in question. Section 424A did not require the Tribunal to provide a copy of the DFAT report, so long as the information conveyed to the appellant was the information that formed part of the reason for the Tribunal's decision. There was no obligation imposed by s 424A to endeavour to ascertain further information from DFAT to enable the appellant to investigate whether DFATs conclusion was reliable. The first ground is not made out. 16 The particulars of the complaint that the Tribunal did not accord the appellant procedural fairness are as follows: 1. There was a failure to seek more information from the appellant or otherwise advise him that his answers were unsatisfactory, in circumstances where he answered questions asked of him at the hearing in a coherent manner and was given no indication of the amount of detail required by the Tribunal. 2. The Tribunal's conclusion that the appellant was unable to articulate or even outline any coherent policies or even show that he had any political knowledge, let alone understanding, of the issues involved, was a conclusion lacking reasoned foundation or evidentiary support. The latter particular was not put forward as an independent ground but simply as an aspect of denial of procedural fairness. 17 The appellant's complaint under this head is limited to the Tribunal's conclusion, to which I have referred, that the appellant was unable to articulate or even outline any coherent policies or show that he had any political knowledge of the issues involved when asked about the Awami League's political platform. The appellant points to a comment made at the beginning of the hearing before the Tribunal as follows: I've carefully read your files, so I believe I have a reasonably good understanding of your claims. At this hearing I'll only raise points on which I'd like further clarification or more detailed information and I will not necessarily cover everything you claim in detail. 18 Then in the course of the hearing, the Tribunal made this observation: Now, can I just say two things to you. Firstly, again, I'm asking very specific questions and just listen to what I'm asking, and you can answer that for me. And secondly, when you give an answer can you keep it short so that the interpreter can tell me what you've said and then I can make a note of that and then you can continue. But if you make a long statement then there's a risk that I won't hear everything that you're telling me. 19 The Tribunal then embarked on a number of specific questions, to which it received a response, prior to raising the question of the Awami League party platform. The appellant complains that the Tribunal, in order to afford fairness to the appellant, was under an obligation to require further detail from him after obtaining coherent answers in response to its questions concerning the Awami League platform. He says that the Tribunal should have asked for further detail or told the appellant that it was not satisfied with the detail, with which it had been provided. The appellant complains that, by not so doing, the Tribunal failed to give him an adequate opportunity to present his case and therefore denied him procedural fairness. 20 The appellant says that the conclusion to which I have referred lacked a rational, reasonable foundation, insofar as it was not made in accordance with a fair procedure. Thus, the appellant contends that the Tribunal failed to advise him that his answers were unsatisfactory and gave him no indication of the amount of detail required. He says that to reach a conclusion lacking reason, foundation or evidentiary support amounted to a denial of procedural fairness on the part of the Tribunal. 21 However, in the course of the hearing, in dealing with the question of the platform of the Awami League, the Tribunal asked, amongst others, these three questions. (1): Can you tell me in detail what the Chattra Awami League party platform was at the 2001 election? (2): Tell me about the culture policy. What's the culture policy in detail? (3): So tell me about the industry policy in detail. 22 I have already indicated the Tribunal's summary, in its reasons, of the responses that it got to those questions. It is fair to say that the responses were brief. Nevertheless, those three questions each use the phrase 'in detail'. It must have been clear enough to the appellant that he was being asked to respond in detail. The introductory observation that the Tribunal made about keeping his answers short can only fairly be construed as a suggestion to the appellant that, in giving long answers, he pause from time to time, so that the interpreter could translate before he proceeded with his answer. I do not consider that the Tribunal's observations could be construed as telling the appellant that he should only give short answers and should not respond in detail to any question. 23 The first remark that the Tribunal would only raise points on which it would like further clarification or more detailed information is also significant. That is to say, the Tribunal began by telling the appellant that, where matters were raised in the course of the hearing, the Tribunal was interested in obtaining more detailed information. 24 Where there are specific aspects of an applicant's account that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the appellant to explain why the account should be accepted. On the other hand, the rules of natural justice do not require a decision-maker to disclose what he is minded to decide, so that the parties may have a further opportunity of criticising the mental processes of the decision‑maker before the decision‑maker reaches a final decision. Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. To adopt such a course could run the risk of conveying an impression of prejudgment. 25 There is, of course, an obligation on the part of the Tribunal to ensure that an applicant understands the issues that may be of concern to the Tribunal. In the light of the observations that the Tribunal made, to which I have already referred, it must have been clear to the appellant that the Tribunal was interested in knowing what he could say in detail about the platform of the Awami League. In all of the circumstances, I do not consider that there was any denial of procedural fairness on the part of the Tribunal in the way it dealt with the questioning of the appellant concerning his knowledge of the Awami League's platform and the conclusions that the Tribunal reached in relation to those matters. I do not consider that the second ground is made out. 26 That is the conclusion that the Federal Magistrates Court gave in his detailed reasons for rejecting the submissions made on behalf of the appellant. I do not consider there was any error on the part of the Federal Magistrates Court in dismissing the application. The appeal therefore must be dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.