SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2006-05-24|Before: Heerey J

REASONS FOR JUDGMENT 1 The appellant, a citizen of Bangladesh, sought judicial review in the Federal Magistrates Court of a decision of the Refugee Review Tribunal refusing to grant him a protection visa. Barnes FM refused the application: SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1739. The appellant now appeals to this Court.

Claims before the Tribunal 2 The appellant claimed that he came from a "high profiled political oriented family" who had "political and business opponents to eradicate them". He claimed that while undertaking a Bachelor of Commerce degree at a university in Bangladesh in 1998 he became involved in the Awami League and participated in "different party programs including anti-government and anti-fundamentalism movement to uphold the party objectives". He became the assistant organising secretary of the branch of the Awami League for 2001-2002 and an "influential leader of (his) area". 3 In October 2001 the new BNP government in Bangladesh, in alliance with the Jamat-e-Islami of Bangladesh, "started oppression against activists and leaders of the Awami League". This became so critical that the appellant went into hiding in July 2002 because the government filed a "false case" against him and the police started searching for him. 4 The "false case" arose from his alleged involvement in a procession which resulted in an outbreak of violence in which one person was killed and many others injured. The appellant was charged with throwing bombs, damaging property, fighting opponents and looting shops. 5 In October 2002 a group of "BNP thugs" tried to kill him. He received a minor injury but the police failed to register his complaint. 6 He obtained a visa to visit Australia and bribed an immigration official when leaving Bangladesh. He arrived in Australia in February 2003. Later his family in Bangladesh had informed him that police were searching for him and had a warrant for his arrest.

Tribunal's decision 7 Under the heading "Claims Made at the Hearing" the Tribunal recounted that it had asked the appellant about his response to question 6 on his protection visa application which asked, inter alia, whether he had "been charged with any offence that is currently awaiting legal action". The appellant had ticked the "no" box. The Tribunal noted that in answering its query the appellant initially claimed that in Bangladesh he was not safe so that he did not want to disclose this when applying for the visa. The Tribunal pointed out that the answer was in his application made after he arrived in Australia. The appellant replied that he did not mention it as it was a false case so that he did not think it important. The Tribunal put it to the appellant that "a case is a case whether there is a legitimate basis to it or otherwise". In reply the appellant then claimed that he did not understand the question. 8 Under the heading "Findings and Reasons" the Tribunal summarised the appellant's claims. It noted that at the hearing it had "…put to the (appellant) that it found from his protection visa application, application for review, and subsequent statements that his claimed association with the Awami League was very vague and general, lacking details and substance..." The appellant's response was that he gained knowledge of the Awami League when undertaking his studies and supported it because of its secularism and the support it gave to the 1971 freedom war. 9 The Tribunal accepted that the appellant became a member of the Awami League in 1998 and was selected to be an assistant organising secretary for 2001-2002. However, it did not accept that he held a leadership position of any significance or a position of authority or even that he took a high profile role in his own area. It also noted that the appellant said that he had never stood for parliament, local government or public office. The appellant had stated his duties were arranging processions, inviting new members to join and putting up posters. The Tribunal did not accept that these were the duties of an "influential leader of (his) area". 10 The Tribunal recorded that it had questioned the appellant about his knowledge of the philosophy, goals, manifestos and objectives of the Awami League. The appellant had replied that its main focus was on liberation and independence, making Bangladesh a secular state, and working against fundamentalism. The Tribunal noted that despite two attempts to obtain a more comprehensive answer from the appellant, none was forthcoming. The Tribunal had not been able to satisfy itself that the appellant had a detailed knowledge or understanding of the Awami League. The Tribunal was not satisfied that he was involved in anything other than a most basic way in his immediate local area. 11 The Tribunal found that the appellant had embellished his claims with the objective of enhancing his claim for refugee status, thus raising doubts about his credibility. 12 The Tribunal referred to the appellant's claim about the charge arising from the procession in July 2002. The Tribunal accepted that the appellant as a young Awami League member had participated in that procession. However it accepted the following Department of Foreign Affairs and Trade independent country information (which had been put to the appellant at the hearing) concerning politically motivated charges: "The general response is that politically motivated false charges have been made against opposition party activists. Such charges are not confined to opposition leaders but mere membership of an opposition party would not usually be sufficient to attract such attention. While making charges against opposition political figures may also be politically motivated, there is often also a real basis to the charges as the practice of politics in Bangladesh can be violent. Charges against political activists may stem from their involvement in violent political demonstrations, intimidation and extortion." 13 The Tribunal went on to find that, based on the independent country information and the claims of the appellant, serious charges have been made against him. These included allegations of throwing bombs, damaging property, fighting opponents and looting shops "in regard to an incident in which one person was killed and many more were injured". The Tribunal found that, given the seriousness of those charges, the appellant would be wanted for at least questioning by the appropriate authorities in Bangladesh and that the police there had a legitimate reason to issue an arrest warrant and visit his house immediately after the incident. The Tribunal accepted that because the appellant was wanted in connection with these incidents he paid a bribe to an Immigration Officer of about A$10,000 to leave the country. However, the Tribunal was satisfied that these were properly matters for determination by the courts in Bangladesh. 14 The Tribunal then went on to make findings about the independence of the courts in Bangladesh and what would be the situation if charges, and in particular false charges, had in fact been laid against the appellant. The Tribunal was satisfied that the independent country information showed that the courts were independent in Bangladesh and could be relied upon to provide protection for those falsely charged, even if a governing party's activists persisted in pursuing them. The Tribunal quoted country information stating that all Bangladeshi government since 1974 have used the Special Powers Act for preventative detention and to settle political scores but that most of those detained had been released as a result of orders of courts. A Bangladeshi parliamentary committee in January 2001 had found that 99 per cent of the 69,010 people arrested by governments of the day since 1974 on false charges under the Special Powers Act had been released because the grounds for detention had been judged by the courts to be weak and vague. 15 The Tribunal found that even if the appellant were to face false and politically motivated charges on his return (a claim it did not accept) he could in those circumstances seek legal redress from the courts in Bangladesh. It followed that the Tribunal was satisfied there was not a real chance that in the course of such process he would be subject to serious harm amounting to persecution for a Convention reason. The Tribunal did not accept that he would be put in gaol if he returned and that he could be held for three or four years before he faced a trial or that he would be arrested by the police and would "remain in jail custody and torture without trial". 16 The Tribunal went on to deal with the claim that in October 2002 a group of BNP thugs tried to kill him. For reasons which it gave in detail, the Tribunal found that he had embellished this claim. 17 The Tribunal found that in any event, having regard to his age and education and language skills, it would be reasonable for the appellant to live in another part of Bangladesh if he chose not to live in Dhaka.

Arguments on the appeal 18 On the appeal, with one exception, counsel for the appellant argued grounds which had been rejected by the Magistrate. The one exception is a new ground, namely that the Tribunal failed to comply with the obligation under s 424A(1) of the Migration Act 1958 (Cth) to give to the appellant in writing particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review. 19 The appellant should be given leave to raise this ground, primarily because, as counsel for the appellant pointed out, the operation of s 424A has been the subject of a recent Full Court decision, handed down on 24 February 2006: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. In SZEEU there crystallised for the first time at appellate level what Weinberg J at [121] described as the "unanticipated but potent combination" of the Full Court's decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry (2001) 110 FCR 27 and the High Court's decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162. 20 The arguments on the appeal, including the s 424A point, are discussed below.

Special Powers Act 21 The appellant argued that the Tribunal failed to deal with the claim that he might be falsely imprisoned under the Special Powers Act; even if the charges were found to be false he could face up to six to twelve months in gaol before a court could deal with them. The Tribunal had failed to consider whether such imprisonment was capable of amounting to persecution. 22 However, while there was some mention of the Special Powers Act in the material put before the Tribunal on behalf of the appellant, his claim was not that he feared that the Act would be applied to him, or that he would necessarily be imprisoned for six to twelve months under that Act. On his own case, the charge against him arose out of his alleged involvement in serious violence which resulted in death, injury and property damage. His guilt or innocence under the ordinary criminal law was a matter for determination by the ordinary courts of Bangladesh, which the Tribunal found, on the basis of independent country information, to be independent. As the Magistrate said at [29], the Tribunal addressed but rejected the specific claims of three to four years gaol before trial or that the appellant would remain in custody without trial. It was not, in these circumstances, necessary for the Tribunal to go on to address specifically the possibility of six to twelve months incarceration prior to a hearing. 23 The Tribunal could not reasonably be expected, as was argued on the appeal, to consider the appellant's possible liability to imprisonment under the Special Powers Act because that might have been within his fear of persecution constituted by, as he claimed, "other unforeseen events".

Random acts of political violence 24 The appellant claimed that the Tribunal failed to consider whether the government condoned or encouraged violence and provided effective protection to its political opponents. 25 The Tribunal did find that there was criminal violence in Bangladesh, but there was nothing to suggest the government condoned it. No material supplied by the appellant, or the country information, was to the contrary; see the Magistrate's reasons at [34]-[36]. More importantly, the appellant's claim was not that he had a fear of persecution as the target of non-state violence from which the Bangladeshi state was unable or unwilling to protect him. Rather the substance of his claim was that he was a target of persecution by the BNP government itself because of his political opinion.

Irrational and illogical assumptions 26 The appellant contended that a number of findings were irrational and illogical and based on unwarranted assumptions. 27 First, it was said the Tribunal made an adverse finding about the appellant's credibility based, amongst other things, on the answer to question 6. 28 Read as a whole, the reasons of the Tribunal do not indicate that it made any findings based on this answer. It simply recorded the questions that it asked the appellant. This was by way of introduction to the discussion of the issue concerning the charge against him. 29 Secondly, it was said that the Tribunal's finding that the appellant was not a significant member of the Awami League was based on his never having stood for parliament, local government or public office. 30 This was by no means the only reason for the Tribunal's finding as to the level of the appellant's involvement with the Awami League. In itself, the point about not standing for public office was relevant to an assessment of the nature of his prominence in the League. The weight to be given to this fact, in the light of all facts bearing on that issue, was a matter exclusively for the Tribunal. 31 Thirdly, it was said that if the appellant were detained he would spend a considerable time in gaol before the courts would deal with the matter and that "all the evidence before it, and the logical inferences, pointed to the possibility that the charges laid against the appellant were false". Therefore, it was said, the Tribunal should have considered whether the time in custody could amount to persecution. 32 The Tribunal made no finding that the charges against the appellant were false. On the appellant's own case they arose out of a seriously violent event at which he was present. Of course he might be acquitted, but this was an ordinary criminal prosecution. To the extent that there might be any detention prior to trial, or failure to grant bail, there was no evidence that that was a result of any persecutory intent as opposed to the ordinary operation of the criminal justice system in Bangladesh. There could be no reasonable inference that such detention meant the charge itself was false.

Section 424A 33 Section 424A(1) provides that the Tribunal must "(a) 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; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it." 34 Where the section applies the information must be given in writing: subs (2)(a) and s 441A. The section does not apply to information that, amongst other things, "the applicant gave for the purpose of the application": subs (3)(b). 35 The "application" in s 424A(3)(b) means the application before the Tribunal. So information which an applicant might have given in the initial protection visa application is not excluded by subs (3) from the requirements of subs (1): Al Shamry. 36 If s 424A(1) applies, the obligation is not met by putting the information orally to the applicant in the course of the Tribunal hearing, it must be put in writing: SAAP. And this is so whether or not failure to provide the information would result in any unfairness, as long as the information formed the reason, or part of the reason, for affirming the decision: SZEEU at [215]. 37 In the present case the appellant submitted that the relevant "information" was information contained in his application for a protection visa. This was referred to in the following passage in the Tribunal's reasons: "At the hearing the Tribunal put to the (appellant) that it found from his protection visa application, application for review, and subsequent statements that his claimed association with the Awami League were very vague and general, lacking details and substance, and asked him a series of questions about his claims and, in reply, the (appellant) claimed that when he was undertaking his studies he gained knowledge of AL and supported it because of its secularism and support it gave to the 1971 freedom war." The part underlined is said to be the "information" which attracted the operation of s 424A(1). Immediately after this passage the Tribunal goes on to discuss the appellant's joining the Awami League, the position he held in it, the League activities in which he engaged and his knowledge of its philosophy, goals, manifesto and objectives. 38 The appellant submitted that the obligation under s 424A(1) arose at the time the Tribunal received the "information", which in this case was prior to the hearing and at the stage when the Tribunal received from the Department the appellant's file containing his protection visa application. This was before the Tribunal sent a letter of 23 September 2003 to the appellant stating that it had considered the material before it but "was unable to make a decision in your favour on this information alone" and advising of the date, time and place of a hearing, as required by s 425. Thus, so the argument goes, since the Tribunal then had before it the Departmental file, including the protection visa application, the information contained in that application was the reason, or part of the reason, for the Tribunal's affirming the decision under review. The Tribunal should have set out particulars of the information, and explained its relevance, in its letter of 23 September. The Tribunal could not avoid the application of s 424A(1) by asking the same questions at the hearing to elicit the same information. 39 The s 424A argument must fail, primarily because the protection visa application, and its characterisation as vague and general, were not the Tribunal's reason, or part of its reason, for its decision. Read in context, the passage quoted above at [37] above was no more than an account by the Tribunal of the way the hearing took the course it did and why it then proceeded to question the appellant in detail about his involvement with the Awami League. No doubt part of the reason for the Tribunal affirming the decision under review was its assessment of the nature of the appellant's involvement in the Awami League. But that reason was based on questioning of the appellant at the hearing and not in the s 424A(1) sense on "information" from the protection visa application. 40 In any case, I do not accept the appellant's argument that the Tribunal contravened s 424A(1) at the time it sent the 23 September letter. The Tribunal had not then reached a stage where it considered that the information in the protection visa application, or indeed any other information, would be a reason for affirming the refusal of the visa. It had not reached a decision to affirm (or set aside) the decision under review. All that had happened by this stage was that the Tribunal considered that the information then before it did not enable it to make a decision in favour of the appellant. The whole point of fixing a hearing, as required by s 425, was to obtain further information, and in particular information from the appellant himself, which might, or might not, result in a decision to affirm the decision under review. The Tribunal was obliged to consider information which came before it: s 424(1). Until the Tribunal has in fact considered all the material, whether from a hearing or otherwise, it could not form any view as to whether any particular information would · tend to show the decision under review should be affirmed; or · tend to show the decision under review should be set aside; or · be irrelevant. 41 The obligation under s 424A(1) does not attach at any particular stage of the Tribunal's internal decision-making process. In the course of that process, as the Tribunal member thinks about material which is progressively obtained and considered, some matters will emerge as significant and others will assume less significance. Their respective significance may change again. The only constraint arising from s 424A(1) is that the Tribunal cannot make a decision, that is a final, operative decision, to affirm when it possesses information which would be the reason, or part of the reason, for that decision unless it gives particulars of that information to the applicant, ensures the applicant understands why it is relevant, and invites him or her to comment. 42 Even if the "information" here were caught by s 424A(1), the exception in s 424A(3)(b) would apply. If the "information" is given by the applicant at the Tribunal hearing, it is excluded from the operation of subs (1), even though it might have also been provided to the Tribunal from another source. In SZEEU at [91] Moore J, with whom Weinberg J at [173] and Allsop J at [264] agreed on this issue, said: "While it appears that the Tribunal originally came to know that the appellant entered Australia on a business visa from sources other than the appellant (an inference which could be drawn from the way the letter of 4 February 2004 was framed) it is tolerably clear from the Tribunal's reasons that it discussed this fact (that the appellant had entered Australia on a business visa) with the appellant and he affirmed he had. Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source." This construction is consistent with the purpose of providing procedural fairness in Tribunal reviews (albeit in exclusively statutory form: Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61) which underlies Div 4 of Pt 7. If an applicant "gave" the "information" for the purpose of the Tribunal review application (in contrast to SAAP,where the Tribunal had obtained the information from a witness other than the applicant) that is something necessarily within the knowledge of the applicant himself. It is not unfair for the Tribunal to then make such use of the information as it thinks fit. 43 To conclude that an applicant "gave" information for the purpose of the Tribunal application it is not necessary that the information was initially volunteered by the applicant. Information is equally given if it comes in response to questioning by the Tribunal.

Orders 44 The appeal will be dismissed with costs. I certify that the preceding forty four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Migration Act 1958(Cth)ss 424A, 425

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