FEDERAL COURT OF AUSTRALIA SZLYN v Minister for Immigration and Citizenship [2008] FCA 1325 SZLYN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL NSD 637 of 2008 GRAHAM J 11 AUGUST 2008 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 637 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZLYN Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAHAM J DATE OF ORDER: 11 AUGUST 2008 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed 2. The appellant pay the first respondent's costs. 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 637 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZLYN Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAHAM J DATE: 11 AUGUST 2008 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant claims to have been born in Bangladesh. He says that he was married on 15 January 1996 and that he and his wife have five sons who were born on 10 December 1997, 22 June 1999, 2 August 2000, 20 April 2002 and 7 November 2004. He obtained a passport from Bangladesh on 14 September 2006 and a visa permitting him to enter Australia for a three month period on 27 March 2007. On 9 June 2007 he flew out of Bangladesh from Dhaka Airport arriving in Australia on 10 June 2007. 2 On 9 July 2007 the appellant applied for a Protection (Class XA) visa. The appeal book contains a number of documents bearing dates from 11 June 2007 to 10 September 2007 which relate to the circumstances in which the appellant found himself out of Bangladesh and in Australia. On 10 September 2007 a delegate of the Minister decided that the application for a Protection (Class XA) visa should be refused. 3 On 8 October 2007 the appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of the Minister's delegate's decision. When the appellant filed his Application he also submitted additional material to the Tribunal under cover of a one and a half page letter dated 8 October 2007. On 22 October 2007 an invitation was extended to the appellant to attend a hearing before the Tribunal, the relevant letter indicating that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. A hearing was appointed for 19 November 2007. On 7 November 2007 the appellant responded to the hearing invitation indicating that he wished to attend, as indeed he did, the hearing occupying a little over three hours on 19 November. 4 Prior to the hearing taking place a letter was sent by the Tribunal to the appellant on 22 October 2007 inviting the appellant to comment on or respond to information that the Tribunal considered would, subject to any comments/response he may care to make, be the reason or a part of the reason for affirming the decision that was under review. That letter dated 22 October 2007 was responded to by the appellant providing information to the Tribunal in the form of a series of documents. 5 Following the hearing on 19 November 2007, a further letter was sent by the Tribunal to the appellant on 20 November 2007 inviting him to comment on/respond to information that the Tribunal considered would, subject to any comments/response he may make, be the reason or a part of the reason for affirming the decision that was under review. That letter included the following: 'Your comments/response should be received at the Tribunal by 13 December 2007. If the comments/response is in a language other than English it must be accompanied by an English translation from an accredited translator. If you cannot provide your written comments/response by 13 December 2007, you may ask the Tribunal in writing for an extension of time in which to provide the comments/response. If you make such a request, it must be received by the Tribunal before 13 December 2007 and the request must state the reason why the extension of time is required. The Tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted. If the Tribunal does not receive your comment/response within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain your views on the information.' 6 In response to this letter further material was provided by the appellant to the Tribunal and a letter was sent by the appellant giving comment on the information that had been drawn to his attention. That comment was recorded in 17 numbered paragraphs within the letter. The letter dated 12 December 2007 then concluded: 'Further I would like to inform you that I need some extra few weeks time to submit some more evidences regarding the judgment of the case against me and medical certificates regarding my medical treatment in the hospital and other evidences in support of my claim. Please also note that those evidences already been sent from Bangladesh to Australia. ….' (emphasis added) 7 On 20 December 2007 a letter was sent by the Tribunal to the appellant inviting him to the handing down of the Tribunal's decision at 2.30 pm on 15 January 2008. As it transpires the Tribunal decided on 18 December 2007 to affirm the decision of the Minister's delegate not to grant the appellant a Protection (Class XA) visa. That decision was handed down on 15 January 2008 at the appointed time and place. 8 A Tribunal file note of 19 December 2007 recorded that a telephone call had been placed by a Tribunal officer to the appellant at 4.18 pm advising him that the extension of time to comment on/respond to information in writing, which was contained at the end of the appellant's letter of 12 December 2007, had not been granted. However, he was informed that the Tribunal would consider submissions received before the date of handing down and that he would receive notice of the handing down date. The appellant advised that he was expecting to receive evidence from overseas 'in the next few days' and asked if he should send the evidence to the Tribunal when he received it. He was advised that he could send any evidence to the Tribunal until the decision was handed down. 9 It is clear that the Tribunal was conscious of the appellant's application for an extension of time before the decision of the Tribunal was reached. This is apparent from the fact that the Tribunal's 'FINDINGS AND REASONS' included the following: '... the Tribunal has decided not to grant the applicant more time to provide further materials, noting also that the applicant could provide such information prior to the handing down of the Tribunal's decision.' 10 On 19 December 2007 a letter was sent by the Tribunal to the appellant at his address for correspondence advising him as follows: 'The Tribunal has considered the request carefully but has decided not to grant an extension of time for comment/respond to information. However, the Tribunal will consider any information received prior to the handing down of the decision.' 11 It is apparent that whilst the Tribunal formed a view about the appellant's Application for Review on 18 December 2007, nevertheless, the Tribunal was conscious of the request for an extension of time in which to provide supplementary documentary material and was prepared to entertain such material, provided that it was received by the Tribunal prior to the handing down of the Tribunal's decision. That, of course, meant that the Tribunal was prepared to entertain further material that may have been submitted in the ensuing three and a half weeks. There was no evidence to suggest that any further material was submitted by the appellant to the Tribunal before the ultimate shut-off date of 15 January 2008. 12 It is not entirely clear what the basis was for the appellant's claim to refugee status. It may be assumed that he was propounding that he had a well-founded fear of being persecuted for reasons of religion or political opinion. In his application for a Protection (Class XA) visa he provided an explanation for his claims which suggested that fundamentalist Muslims and the principal of a school with which he was associated did not like the views which the appellant was espousing in respect of the role of women in society. He said in his application: 'I left Bangladesh because I was scared of the fundamentalist students and Principal Habibur Rahman's people attacking and harassing me. They made allegation against me saying I am not muslim I converted my religion and now I am an atheist. They want to punish me for this. Fundamentalists order is to kill a person who is an atheist and that is what they want to do with me. Being scared of them and their order I ran away from my village and now I ran away from my country and came to Australia just to save my life. … ... They want male workers everywhere, they don't want females to be in anything. ... Muslim females should stay home and be a housewife, nothing more than that. ... These people attacked me few times and I was saved only left with injuries. ... … … I told the authorities of my country some secret information about Principal Habibur Rahman and soon after they arrested him. Now his people and fundamentalist students are very upset with me and if they see me anywhere in Bangladesh then they will kill me. Also I had my own NGO organization where we helped poor women ... do small businesses to support their families ... . We opened primary schools for kids, and also we had opportunities for young boys and girls to work. Fundamentalist students and Principal Habibur Rahman don't like this, they think whatever we are doing is against Muslim religion. And young girls should not be working they should stay home. ...' The application also included: 'After I left my country they threatened my family and friends saying if I go back then they will kill me ...' 13 The above claims seem to suggest that the appellant, if he feared any persecution, was fearful of individuals and a group of people who themselves were of interest to the authorities. 14 In the letter of 8 October 2007 in support of the Application for Review of the Minister's delegate's decision, the appellant made a number of claims in relation to Principal Habibur Rahman's people having charged him with several cases which were still going on in court and had not yet been resolved. He indicated that he had gone into hiding in several places on this account. 15 He indicated that he had family businesses, one of which appears to have been a restaurant, and another a groceries business. He also referred to another family business being a fishery firm. His case was that those businesses had also been the subject of attack. 16 He indicated that, notwithstanding the receipt of his visa permitting him to enter Australia on 27 March 2007, he did not leave Bangladesh until 9 June 2007 because he apparently had some business of his own that he needed to take care of before he could leave the country. 17 It is unnecessary for present purposes to detail any more of the claims made by the appellant, given the grounds of appeal upon which the appellant relies in the Notice of Appeal, which is presently before the Court. 18 The Tribunal's reasons for decision occupied some 27 closely typed pages. The Tribunal's Findings and Reasons were recorded on approximately four of those pages. A series of reasons were advanced by the Tribunal to support the proposition that the appellant had not been in hiding since 1996 as he had claimed before the Tribunal. The Tribunal found that the appellant had not been truthful with respect to some five items of evidence, which the Tribunal took into account in relation to his claimed living in hiding. The findings of the Tribunal led it to make the further finding that the appellant was not a credible witness. 19 Amongst other things, the Tribunal found that the totality of the information indicated that there were no outstanding cases against the appellant at the time when his passport was issued or thereafter. The Tribunal found that the appellant did not have a genuine fear of persecution while in Bangladesh. Amongst other things, the Tribunal had regard to the fact that the appellant had remained in Bangladesh until 2007, despite the fact that he claimed that he had been living in hiding since 1996, that he had been threatened, attacked and hospitalised on a number of occasions. The evidence, which he had placed before the Tribunal, had included a certificate in respect of his alleged hospitalisation between 10 and 19 July 2004. 20 A number of matters were detailed by the Tribunal which were relied upon by the appellant but not accepted by the Tribunal. The Tribunal rejected the appellant's claims that he suffered persecution and found that there was no real chance that the appellant would face persecution for any Convention reason if he were to return to Bangladesh now or in the reasonably foreseeable future. The Tribunal found that he did not have a well-founded fear of persecution and decided to affirm the decision of the Minister's delegate not to grant the appellant a Protection (Class XA) visa. 21 On 7 February 2008, the appellant sought constitutional writ relief in respect of the Tribunal's decision. On 28 March 2008, an Amended Application was filed by the appellant in the Federal Magistrates Court of Australia. That Amended Application was heard and determined by Driver FM on 16 April 2008. His Honour reached the conclusion that the Tribunal decision was free from jurisdictional error and ordered that the Application for Review be dismissed and that the appellant pay the respondent Minister's costs fixed in the amount of $5,000. 22 From that decision, an appeal was instituted by the appellant by a Notice of Appeal which was filed on 6 May 2008. The Notice of Appeal specified three grounds of appeal. The first two may conveniently be taken together: '1. The Honourable Federal Magistrate erred in not considering that the Refugee Review Tribunal (the Tribunal) made a jurisdictional error that the Tribunal mentioned in its letter that the request for the extension of time to provide the comment/response must be received before 13 December so the Tribunal gave an opportunity to the applicant to make a request. 2. The Honourable Federal Magistrate erred in finding that the Tribunal did not make a procedural mistake when the Tribunal refused applicant's extension of time 19 December 2008 (sic) after the signing of the Tribunal decision on 18 December 2008 (sic) and from 18 December 2008 (sic) when the Tribunal was processing to handing down the decision, not to take any comment/response from the applicant.' 23 It is apparent from the history of the matter, which has been recounted above, that the Tribunal did not, either by letter or orally, communicate to the appellant that the provision of further material, after 19 December 2007, would be to no avail. It is clear that the Tribunal had regard to the request for the provision of extra time in which the appellant might submit to the Tribunal 'more evidences regarding the judgment of the case against me and medical certificates regarding my medical treatment in the hospital and other evidences in support of my claim', which the appellant had indicated had 'already been sent from Bangladesh to Australia' as at 12 December 2007. 24 There was nothing to indicate that the Tribunal would bring anything other than an open mind to the consideration of further material which may be submitted. There was nothing to suggest that additional material would be rejected or that there would be no point in submitting further material to the Tribunal. 25 I would observe that there was a considerable amount of material which had already been provided by the appellant to the Tribunal which had been sourced from Bangladesh. 26 In support of his Notice of Appeal, the appellant filed a submission on 4 August 2008. That submission addressed grounds 1 and 2 in the second, third, fourth and fifth paragraphs on page 2 and in the paragraph on page 3. I have had the advantage of reading the appellant's written submission. 27 When asked whether there was anything further that he wished to say in support of grounds 1 and 2, the appellant came out with what I would describe as an outrageous submission that the Federal Magistrate did not hear him at all and made his decision with a pre-set mind. 28 After taking the appellant to paragraphs [4], [7] [8], [9] and [12] of the reasons for judgment of the learned Federal Magistrate of 16 April 2008 (see SZLYN v Minister for Immigration & Citizenship [2008] FMCA 493), the appellant was asked whether he wished to apply to amend the Notice of Appeal to add further grounds suggesting bias or apprehended bias on the part of the learned Federal Magistrate. 29 The appellant indicated that he did not wish to press any application for such an amendment to the grounds of appeal included in the Notice of Appeal. 30 There is nothing in the reasons for judgment of the learned Federal Magistrate which could support the proposition that the Federal Magistrate did not hear the appellant at all in respect of what have become grounds 1 and 2 before me or that the Federal Magistrate made his decision with a pre-set mind. 31 The appellant indicated that there was nothing further that he wished to say in support of grounds 1 and 2. In my opinion there is no substance in those grounds. 32 Ground 3 was expressed in the following terms: '3 The Honourable Federal Magistrates did not consider that the Tribunal make procedural mistake when the Tribunal asked the applicant about his faith and his attendance regarding religious prayer.' 33 In respect of this ground there was one paragraph at the foot of page 2 in the written submission of the appellant which touched upon it. Given the matter that was raised by the appellant in support of his claims to refugee status as quoted above it seems to me that it was entirely proper for the Tribunal to have explored the question of the appellant's own faith and his religious adherence. There is certainly nothing to suggest that by exploring such a matter the Tribunal engaged in conduct which amounted to jurisdictional error. 34 In my opinion there is no substance in ground 3. 35 When asked to address the Court as to whether there was anything else that he wished to say in support of his appeal the appellant's response was to the effect 'Is there any opportunity to submit those documents again'. The documents that he sought to rely upon were identified by him by a gesture at the bar table indicating a pile of documents that appeared to be approximately one to two inches in thickness. The appellant said that the documents that he wished to have taken into consideration were the documents for which the extension of time had been sought in his letter of 12 December 2007. 36 Plainly, it is not open to this Court to undertake a merits review. Equally, it was not open to the Federal Magistrates Court to accept into evidence documents which the appellant failed to place before the Tribunal before 15 January 2008. In relation to this aspect of the matter the learned Federal Magistrate said at [9]: '... I find there was no practical unfairness resulting from the refusal of the applicant's request because the period of time following the refusal of that request up to the handing down of the decision in effect gave the applicant the additional time he was seeking.' 37 In my opinion, the appeal should be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 26 August 2008 The Appellant appeared in person. Counsel for the First Respondent: G R Kennett Solicitor for the First Respondent: Australian Government Solicitor The Second Respondent filed a submitting appearance. Date of Hearing: 11 August 2008 Date of Judgment: 11 August 2008