SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs

the appellant's claims 17 The appellant claimed that he was a high profile member of the Freedom Party in Bangladesh, having become a 'central member of the Party by 1992'. In September 1992 he had hosted a party conference, which had been attacked by members of the Awami League. Thereafter he became a target of the Awami League, whose members wanted to kill him and his family. Bombs had been thrown at his house. He went into hiding. Subsequently, his house was destroyed by a flood, but the police continued to look for him. 18 At the hearing before the RRT, the appellant claimed that he had continued his involvement with the Freedom Party from Australia and had been in contact with Colonels Farook and Rashid. The appellant said that he had last spoken to Colonel Rashid about a year before the hearing. He also said that, despite the passage of nearly ten years, he would still be at risk if he returned to Bangladesh, because many of the members of his group had been killed. 19 The RRT put to the appellant that his claim to have been in contact with the Colonels was difficult to believe as Colonel Rashid was dead and Colonel Farook had been in prison for years. The appellant replied that Colonel Farook was now dead, but maintained that Colonel Rashid was still alive, a proposition the RRT member rejected. The appellant was also asked to name Colonel Rashid's wife, but he could not do so. Nor could he give any of her history. The appellant was asked other questions about the Freedom Party, but had difficulty answering them. 20 The RRT's reasons record the following: 'The Tribunal put to the [appellant] that it was not accepted that he had ever had any association with the Freedom Party in particular if he had such an association he would not have told me that Colonel Farook was dead, would have known Colonel Rashid's wife (her name and history), and that for him to tell me that he was in phone contact with them during a period when they were either dead or in prison was preposterous. He commented "it looks like you will only believe me if I get some documents from Bangladesh." He was advised that he would not be granted any time to obtain any such documents and he had already had nearly 10 years to obtain whatever he wanted from Bangladesh. It was noted that it was known to the Tribunal that there was a high degree of fraud in Bangladeshi documentation. He was asked if he could offer any explanation as to why he had made no mention in nearly nine years of being in Australia (until May 2001) of any political association or problems. He said "I can only say I didn't want to be there … after the flood there was nothing left".'

the rrt's reasons 21 The RRT gave an oral decision at the conclusion of the hearing, but later reduced its reasons to writing. 22 The RRT did not accept any of the appellant's claims relating to the Freedom Party. Nor did it accept that he was of interest to Awami League members. The RRT found that the appellant's claims in this respect were 'a total fabrication and [had] been made in an opportunistic attempt to gain additional time … in Australia'. 23 The RRT said that the appellant was not a credible witness because his two applications had varied significantly; his claim pursuant to s 417 of the Migration Act had made no Convention-related claims; and he had not made any suggestion of persecution on political grounds until his second protection visa application. 24 The RRT pointed out that the appellant had had the benefit of advice from solicitors and migration agents. It therefore could be inferred that he would have been advised to submit all his claims at the appropriate time. Despite having many opportunities to present the claims ultimately relied on before the RRT, the appellant had not done so. 25 The RRT continued as follows: 'Apart from the above, I also do not accept any of his claims of belonging to the Bangladesh Freedom Party. As is obvious from what transpired at hearing the applicant was ignorant of basic matters and fanciful in his presentation of others. He knew nothing about the youth wing of the party. He did not know who Colonel Rashid's wife was and knew nothing of her history of imprisonment in 1997. I do not accept that anyone of such a claimed high profile and intimate association with the party and its leadership could have known so little. His claim of having been in telephone contact with Colonels Farook and Rashid and to have last spoken to them about a year ago is preposterous. I consider that his claims are totally opportunistic and have been made in an attempt to prolong his stay in Australia. Overall, I find that the applicant was not a credible witness and that he has fabricated his claims.' 26 Accordingly, the RRT concluded that the appellant did not have a well-founded fear of persecution for Convention reasons.

the application for judicial review 27 The appellant filed an application for judicial review of the RRT's decision in the Federal Magistrates Court on 25 May 2004, some fourteen months after the RRT's decision. The grounds identified by the Magistrate were that the RRT had (i) failed to accord procedural fairness to the appellant; (ii) failed to comply with the requirements of ss 418(3) and 424A(1) of the Migration Act; (iii) erred in not assessing whether the State was able to offer adequate protection to the appellant; and (iv) breached the rules of natural justice in connection with the making of the decision. 28 His Honour pointed out that no particulars had been provided of the first ground. However, he noted that the RRT had refused an application by the appellant to adjourn the hearing in order to give him an opportunity to provide further documents. The request had been made towards the end of the hearing. The RRT rejected the request, noting that the appellant had had many years in which to obtain and lodge documents in support of his case. The Magistrate saw no error in the RRT's refusal to adjourn the proceedings. 29 The appellant had not identified the respects in which the RRT was said to have breached s 424A(1) of the Migration Act. It was clear that the RRT, in its letter of 13 March 2003, had brought to the appellant's notice the absence of any reference to political beliefs, either in his original application for a protection visa or in the subsequent application to the RRT. The appellant had been given a specific invitation to comment on this information. The RRT had therefore complied with its obligation under s 424A(1) of the Migration Act. 30 To the extent that the RRT had regard to any country information, it was not specifically about the appellant or another person and thus was outside the scope of s 424A(1). This followed from s 424A(3)(a) of the Migration Act, which provides that the section does not apply to information: 'that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member'. The Federal Magistrates Court cited Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ('NAMW') as authority for the proposition that the country information was within s 424A(3)(a). 31 The Magistrate held that there was no substance to either the third or fourth ground his Honour had identified. 32 His Honour also considered that there was simply no factual foundation for the suggestion that the appellant could rely upon the High Court's decision in Muin v Refugee Review Tribunal. The evidence indicated that the secretary had complied with the requirement specified in s 418(3) of the Migration Act to give to the Registrar the relevant documents in the Secretary's possession or control. 33 Finally, the Magistrate rejected a submission that the RRT had been biased against the appellant.

THE COURSE OF ARGUMENT 34 At the hearing of the appeal, the appellant made no submissions, other than to assert that he faced persecution upon his return to Bangladesh. If matters had rested there, I would have simply dismissed the appeal on the ground that no error had been shown in the judgment of the learned Magistrate.

a concession 35 However, Mr Potts, who appeared for the Minister, drew to my attention an issue that had not been specifically raised by the application for judicial review in the Magistrates Court. Mr Potts pointed out that the letter of 13 March 2003 invited the appellant to comment on his failure in the original application to mention any claims based on political beliefs. The letter was handed to the appellant at the hearing held on 13 March 2003 and required him to make any comments on that matter at the hearing itself.

36 Mr Potts accepted that the RRT was bound to give the appellant written notice of the information identified in the letter by reason of s 424A(1) of the Migration Act, which providesas follows: 'Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a 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.' 37 Section 424A(2) requires the information to be given by one of the methods specified in s 441A. All the methods in s 441A involve written notice. Section 441A(2) stipulates that one method of giving the information is by a member of the RRT handing it to the recipient. 38 Mr Potts accepted that the exception in s 424A(3)(a) did not apply to the information identified in the letter since the information was specifically about the appellant. Nor did s 424A(3)(b) apply, as the information had not been given by the appellant 'for the purpose of the application': Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27, at 33-34 [17]-[20], per Ryan and Conti JJ; at 38-39 [35], per Merkel J.

39 Mr Potts referred me to s 424B(3) of the Migration Act, which provides as follows: 'If the invitation is to give information or comments at an interview, the interview is to take place: (a) at the place specified in the invitation; and (b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.'

40 The Migration Regulations 1994 (Cth), reg 4.35A(3), specify the prescribed periods for the purposes of s 424B(3). Regulation 4.35A(3) provides that in the circumstances of the present case (that is, where the decision does not relate to a detainee), the prescribed period for giving the information starts when the person receives the invitation and ends twenty-eight days thereafter. Mr Potts conceded at the hearing of the appeal that the letter of 14 March 2003 did not specify a time for the interview to take place 'being a time within a prescribed period'. 41 While Mr Potts conceded that the RRT had not complied with s 424B(3) of the Migration Act, he contended that this did not constitute a jurisdictional error. He referred to NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 214 ('NAHV of 2002'). There the Full Court held that a failure to observe the procedural requirements of s 424A(2) of the Migration Act did not amount to a failure to exercise jurisdiction or an excess of jurisdiction: see at [23]-[25], per curiam. He submitted that NAHV of 2002 applied equally to a contravention of s 424B(3). Since there had been no denial of procedural fairness to the appellant in the present case, the RRT had not fallen into jurisdictional error. 42 I pointed out to Mr Potts that the High Court had heard argument in August 2004 in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs, on appeal from SAAP of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 411. In that appeal, there had been some discussion before the High Court as to the correctness of NAHV of 2002 (a decision which had been followed by later Full Courts: see NADN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 291, at [38]; NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241, at [33]; NAMW,at [120]). In these circumstances, I suggested that delivery of the judgment in the present case await the publication by the High Court of its orders and reasons in SAAP v Minister. Mr Potts agreed that this was an appropriate course of action.

withdrawal of the concession 43 Before the High Court delivered judgment in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ('SAAP v Minister'), the Minister filed supplementary written submissions in the present appeal. In those submissions, the Minister sought to withdraw her concession that the RRT had breached s 424B(3)(b) and reg 4.35A(3) by failing to give the appellant sufficient notice of the letter of 13 March 2005. The supplementary submissions, which were prepared by Mr Potts, stated that the concession had been made on the erroneous assumption that the effect of s 424A(3)(b) and reg 4.35A(3) is that an applicant is entitled to a minimum period of 28 days to respond to a notice given under s 424A of the Migration Act. 44 Mr Potts submitted that the correct position is that s 424B(3)(b) of the Migration Act does not guarantee an applicant a minimum period of notice before an interview can be held. Rather, it requires the RRT to hold the interview within a prescribed period or, if there is no prescribed period, within a reasonable period. Since the prescribed period for an applicant to give additional information is 28 days after receipt of the invitation, the RRT in the present case was merely bound to arrange an interview within the prescribed twenty-eight day period. Since the RRT had done this, it had acted in compliance with the statutory requirements.

further submissions 45 The High Court delivered judgment in SAAP v Minister on 18 May 2005. By majority (McHugh, Kirby and Hayne JJ; Gleeson CJ and Gummow J dissenting), the Court held that a failure by the RRT to comply with the obligation imposed by s 424A to provide an applicant with written particulars of adverse information constitutes a jurisdictional error. The majority considered that this is so even if the applicant has been advised of the relevant information orally and has not otherwise (that is, apart from the failure to give a written notification) being treated unfairly: at [68], [73]-[77], per McHugh J; [173], per Kirby J; [208] per Hayne J. McHugh J explicitly disapproved (at [77]) of the reasoning of the Full Court of this Court in NAHV of 2002. Although neither Kirby J nor Hayne JJ referred to NAHV of 2002, their reasoning is inconsistent with the approach adopted by the Full Court in that case. 46 In view of the High Court's decision in SAAP v Minister, I invited yet further submissions from the parties on two issues: (1) If there was a breach of s 424B(3)(b) of the Migration Act in the present case, did it constitute a jurisdictional error? (2) Was there a breach by the RRT of s 424A(1) and (2) of the Migration Act, in that the RRT failed to give the appellant particulars of information that it considered would be the reason or a part of the reason for affirming the delegate's decision? The invitation indicated that the information I had in mind was that Colonel Rashid was dead and that Colonel Farook had been in prison since 1997. The invitation pointed out that if there had been a breach of s 424A(1) or (2), it would seem to follow from SAAP v Minister that the RRT had committed a jurisdictional error. 47 The Minister filed further supplementary written submissions in response to my invitation. On the first issue, Mr Potts submitted that a breach of s 424B(3)(b) of the Migration Act does not constitute a jurisdictional error. He pointed out that the majority in SAAP v Minister placed considerable emphasis on the mandatory language of s 424A(2) in concluding that the statutory intention that was that an act done in breach of s 424A is invalid. Mr Potts said that, by contrast, s 424B(3)(b) does not use the word 'must', but the relatively neutral term 'is'. He submitted that the subject matter of s 424B(3)(b) is to specify the time at which an interview will take place and to ensure that the interview takes place within a prescribed time. He contended that it is not an essential incident of fulfilling the statutory purpose that the time limit should be regarded as strict and inviolable. Accordingly, so he argued, s 424B(3)(b) is not intended to invalidate a decision which involves a breach of the provision. An error of this kind (if it is an error) is within jurisdiction and is therefore protected by s 474 of the Migration Act: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. 48 In dealing with the second issue, the Minister accepted, on the authority of SAAP v Minister, that a contravention of s 424A(1) or (2) of the Migration Act by the RRT would constitute a jurisdictional error. Nor did the Minister dispute that if the facts concerning Colonels Rashid and Farook constituted 'information that the [RRT] considers would be the reason, or a part of the reason, for affirming the decision that is under review', the RRT had breached s 424A(1) by not giving that information to the appellant in writing. Mr Potts submitted, however, that the facts relating to Colonel Rashid and Colonel Farook were not integral to the RRT's decision. Accordingly, that information could not be said to constitute a part of the reason for affirming the delegate's decision to refuse to grant a protection visa to the appellant. It followed, so he argued, that the RRT did not have to give the appellant written notice of the information.

49 In my opinion, the Minister's concession at the hearing of the appeal was based on a misreading of s 424B(3)(b) of the Migration Act. That provision applies where an invitation is made to an applicant to give comments at an interview on information that the RRT considers would be the reason, or a part of the reason, for affirming the decision under review. The interview is to take place: 'at a time specified in the invitation, being a time within a prescribed period'. In the present case, the prescribed period was twenty-eight days from the date the invitation was received by the appellant: reg 4.35A(3). 50 In these circumstances, s 424B(3)(b) requires the interview to be conducted within the twenty-eight day period. The object of the provision is evidently to ensure that the required interview takes place within a reasonably short period after the invitation is extended. It follows that the RRT did not contravene s 424B(3)(b) by holding the interview at the very hearing at which the invitation had been extended to the appellant. 51 This is not to say that an invitation which requires an applicant to comment on information more or less instantaneously will necessarily comply with the requirements of the Migration Act. Section 424A(1)(b), for example, requires the RRT to ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review. There may be circumstances in which the applicant requires some time in order to be able to understand properly the significance of the information put to him or her by the RRT. If that is the case, to hold an interview immediately after the invitation is extended might deprive the applicant of the opportunity to gain the required understanding. However, there is nothing in the present case to suggest that the appellant did not understand the significance of the information put to him in the letter of 13 March 2004. 52 I think the appropriate course is to allow the Minister to withdraw the concession made at the hearing of the appeal. The concession was volunteered by counsel but was based on a misunderstanding of the legislation. Once the misapprehension was appreciated, the Minister sought to withdraw the concession at the first opportunity. 53 In view of this conclusion, it is not necessary to decide whether, on the reasoning of the majority in SAAP v Minister, a contravention of s 424B(3)(b) of the Migration Act constitutes a jurisdictional error. The issue should be left to a case in which the Court has the benefit of full argument on the point.

the information question 54 The final question is whether the facts relating to Colonels Farook and Rashid, referred to by the RRT in its reasons, constituted 'information that the [RRT] considers would be the reason, or a part of the reason, for affirming the decision that is under review'. The Minister did not dispute that the facts amounted to 'information' for the purposes of s 424A(1): see VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 ('VAF'), at [24], per Finn and Stone JJ. The issue is whether it was information that otherwise enlivened the subsection. 55 The following propositions relevant to this issue appear to be established by the authorities: 1. In assessing whether information is the reason, or a part of the reason, for the RRT's decision, the question is to be judged retrospectively, in the light of the RRT's reasons. This is so notwithstanding that s 424A(1) addresses the matter prospectively: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 ('Paul'), at [94] per Allsop J (with whom Heerey J agreed); VAF, at [29]. 2. Section 424A(1) requires identification of the reason for affirming the decision under review. In one sense, the reason is usually the RRT's lack of satisfaction that the applicant has a well-founded fear of persecution for a Convention reason. However, some 'unbundling' of the immediate reason for the decision is required for the purposes of s 424A(1): Paul, at [99]; VAF, at [31]. 3. The fact that the RRT acknowledges in its reasons that the information has some relevance to its determination does not necessarily mean that the information forms 'a part of the reason' for the decision: VAF, at [30]. Nor is it ordinarily enough that the information has some 'general adverse relevance': Paul, at [94]. 4. The approach that should be taken is that set out in VAF, at [33]: 'It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the tribunal's decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a tribunal's reasons are to be evaluated for s 424A(1) purposes, the court as a matter of judgment is required to isolate what were the integral parts of the reasons for the tribunal's decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy - and made the more so by less than explicit indications in the reasons themselves as to what the tribunal itself considered to be integral'. The above passage was approved by the Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, at [51]-[54]. 5. If the information, considered in the context of the RRT's reasoning process and the aggregate of its findings, is 'relatively minor and unimportant in the scheme of things' (VAF, at [4]), it is not likely to be a part of the reason for the decision. A useful test is whether the information was: 'so integral to the reasoning process rejecting the [applicant's] claim as to require as a matter of fairness that the [applicant] be told that information (cf s 424A(1)(a)) and why it was relevant to the review (cf s 424A(1)(b))': VAF, at [41]; VUAX, at [53]-[54]. 56 In the present case, the RRT's findings and reasons were expressed succinctly. I do not intend this as a criticism. The RRT plainly regarded the claims made by the appellant as a fabrication from beginning to end. The reason for the RRT's decision can fairly be said to be its rejection of the appellant's claims that he had been a central member of the Freedom Party and that he had been threatened by members of the rival Awami League. 57 The RRT's reasons for decision make it clear that, in its view, the main consideration casting doubt on the appellant's claims was his failure from 1994 until 2001 to make any Convention-related claims, notwithstanding that during this period he made a number of applications and submissions designed to secure him permanent residence in this country. Even in his 2001 submissions, the appellant made no Convention-related claims and did not refer to the Freedom Party or any fear of persecution at the hands of the Awami League. Indeed, the submission prepared by his adviser based his claims exclusively on humanitarian considerations and disclaimed any reliance on the Convention. 58 Before making any reference to the appellant's knowledge of the two Colonels, the RRT expressly found that the appellant was not a credible witness and that his core claims were a complete fabrication. The RRT specifically concluded, on the basis of appellant's claims history, that his claim to fear persecution for reason of political opinion, made for the first time in 2001, was not true. The RRT then went on to say that 'apart from the above' (that is, apart from the conclusions it had already reached), it rejected the appellant's claim that he had been a member of the Freedom Party. The absurdity of the assertion that he had been in telephone contact with the two Colonels was only one (and, indeed, the last) of several reasons given by the RRT for rejecting that particular claim. 59 In my opinion, the RRT's reliance on the death of Colonel Rashid and the imprisonment of Colonel Farook was not integral to its reasoning process. These matters were merely additional considerations which bolstered the conclusion fatal to the appellant's case that the RRT had already reached and expressed. To put the matter another way, the information was not so integral to the reasoning process so as to require, as a matter of fairness, that the appellant be told of it and given an explanation as to why it was relevant. 60 It follows that the RRT was not bound to give the appellant particulars of the information to which I have referred. Section 424A(1) of the Migration Act was not enlivened and was not breached.

conclusion 61 The appeal must be dismissed. The appellant must pay the Minister's costs. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate: Dated: 10 June 2005 The appellant appeared in person