SZEOP v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Magistrates Court: SZEOP v Minister for Immigration [2006] FMCA 1707. It involves yet another question of construction arising out of the provisions of s 424A of the Migration Act 1958 (Cth). 2 The appellant is a citizen of Bangladesh who arrived in Australia on a student visa in January 2001. That visa was cancelled and the appellant was told by the Department of Immigration to make arrangements to depart from Australia in around October 2002. He did not do so and was detained in immigration detention in November 2002 until released as a result of a decision by the Migration Review Tribunal in January 2003. However, the appellant did not pursue a challenge to the cancellation of his student visa and by March 2003 he became aware that a bridging visa that had been granted to him as a result of the decision of the Migration Review Tribunal had been cancelled. From then he was aware of his unlawful status in Australia until he was detained again later in 2004. 3 His application for a protection visa was first lodged in August 2004. It was rejected by a delegate of the Minister and the Refugee Review Tribunal affirmed that rejection in late September 2004. The appellant then sought judicial review of that decision and ultimately succeeded in having it quashed as one of the cases considered by the Full Court in the decision reported as SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214. The matter was again remitted to the Refugee Review Tribunal. 4 The tribunal was constituted differently on the second occasion. The tribunal invited the appellant to a hearing on 5 June 2006 which he attended. During the course of the second hearing the tribunal member questioned him extensively about his claims, as had the first tribunal member on the initial review. 5 In essence, the appellant had made a number of claims for protection in his initial application in August 2004. They were as follows: (1) he became an active member of a progressive political party called the Bangladesh Awami League. He expressed his opinions in a speech made in October 1995 at a student gathering and demonstration which supported Western world political activities, society and politics. In the speech he asked everyone to stop corrupt politics and the use of what he described as 'muscle power' in other different religious beliefs, and advocated the legalisation of some banned practices such as prostitution and gay marriage. He said that he specifically wanted to talk loudly about the gay community and that, he said, made some people furious with him; (2) he said that after he had associated with foreign students in Dhaka he realised that he was attracted to men and began to feel attraction to them which he said was not a lifestyle or sexuality that was acceptable in Bangladeshi society; (3) he claimed to have been persecuted because of being a member of a particular social group, namely, that he was a homosexual male in Bangladesh; (4) he also claimed that whenever he got the chance to speak at a student gathering at university he talked openly of gay relationships and other human rights and that although he tried to obtain political backing, no political or social organisation accepted his views and he began to become ostracised as a result; (5) he claimed that he had been later threatened by members of fundamentalist Muslim groups who called him an agent of open-minded Western people and threatened his life. He says he had to then leave Dhaka University and return to his home city of Chittagong without telling anyone. He says that he lived in Chittagong with his family hiding from the fundamentalists and stopped studying. After a year of living in that way he tried to get a job and started working in an electronics company; (6) in 2000 some members of the fundamentalist groups found and recognised him in Chittagong and gave him an ultimatum to leave the country in three months because his beliefs had not changed. His family was threatened since they were supporting him. He then sought admission to an Australian university to continue his studies and was successful; (7) he claimed that if he ever went back to Bangladesh his life would be in severe danger because he was known as a non-believer and according to mullahs he was committing a big sin against them and their religious beliefs. He claimed that when he returned to Bangladesh anyone would recognise him as a person with a Western attitude for his everyday lifestyle and he would be found out more easily than previously by religious extremists and terrorist-minded people who object to his sexuality and beliefs; (8) his family told him if he came back to Bangladesh he would have to be on his own because they would not accept responsibility for his behaviour. He noted that s 377 of the Bangladesh Penal Code prohibited homosexual intercourse as a crime. 6 The first tribunal rejected the appellant's claims. The Full Court found that the first tribunal had erred in substance because it used information in the appellant's protection visa application, in particular the date upon which it was made, as part of the reason for affirming the decision under review. No notice in writing had been given to the appellant that that information would be the reason or part of the reason for affirming the decision within the meaning of s 424A(1) of the Act. There was also some discussion in the judgments as to another matter which is not of present relevance. 7 The appellant put to the second tribunal evidence from Ms May-Welby, who was a member of Sex and Gender Education Australia and its media spokesperson. She said in a letter she had been visiting the Villawood Detention Centre at which the appellant had been detained for the past 12 months, seeing him fortnightly. She said that she could not help but notice the appellant's 'obvious gayness'. Ms May-Welby said she based that belief on her experience as a member of the gay community during all her adult life, which was at least 26 years. She then referred to conditions in Bangladesh for homosexual males. 8 The tribunal questioned the appellant at hearing on 5 June 2006 and covered, among others of his claims, his claim to be a homosexual. It is not necessary to go into the detail of that hearing for present purposes. 9 On 8 June 2006, following the hearing, the tribunal for the first time wrote a letter to the appellant pursuant to s 424A of the Act. The letter was headed, 'Invitation to Comment on Information', and was faxed to the appellant at the Villawood Detention Centre. It commenced by telling him that the tribunal had information that would, subject to any comments he made, be the reason or part of the reason for deciding that the appellant was not entitled to a protection visa. It then set out in five paragraphs what the information was before inviting the appellant to comment on it. 10 The letter identified the following information: · The appellant's claim to have delivered the speech in Dhaka in 1995 was said to have caused him to go into hiding in Chittagong from then until he left Bangladesh in January 2001. But the tribunal pointed out that even though he had claimed to be in hiding he had lived at the family home and thereafter had gained employment as an assistant electronic engineer from 1997 to 2000. The tribunal said this was relevant to the application because it cast doubt on the claim that the appellant was in hiding as a result of a speech. · The appellant had said that he had gone to a student reunion at Chittagong in October 2000 notwithstanding his claim to have been in hiding at that time. In the hearing before the first tribunal in September 2004 the appellant had said that the student union at Chittagong was dominated by a particular Islamic group. The tribunal said that this information was relevant because it cast doubt on the claim that he had been in hiding in Chittagong because of his fear of fundamentalists as a result of a speech he claimed to have delivered in Dhaka in 1995. · The appellant's claim that five members of the Islamic student group kidnapped him and bashed him was made in circumstances where, although he claimed they had supposedly been seeking him for five years, the group nonetheless released him and gave him three months to leave the country. The tribunal commented that it was difficult to accept his version of the events and, even if it were accepted, it would cast doubt on his claim that his life would be in severe danger from fundamentalists, extremists, or terrorists were he to return to Bangladesh. · The tribunal recited the appellant's Australian migration history, which I have set out above, to the point at which he was detained in 2004. It also referred to the fact that he had said that he could not afford a lawyer to continue his application to the Migration Review Tribunal and went on to say: 'You have said that you did not apply earlier for a protection visa, despite your claims regarding the problems you would face if you were to return to Bangladesh, because you planned to complete your studies in Australia and to apply for skilled migration. However, it is clear that by the time your bridging visa was cancelled in around March 2003, you knew that you had no prospect of completing your studies in Australia and applying for skilled migration. Nevertheless, despite your claimed problems in Bangladesh, you did not apply for a protection visa until 9 August 2004. Your delay in applying for Australia's protection is relevant because it casts doubt on the genuineness, or at least the depth, of your claimed fear of being persecuted if you return to Bangladesh. (emphasis added) 11 The tribunal invited the appellant to comment on this information within the next eight days. The appellant then sought an extension of time and a copy of the tapes of the Tribunal hearing. When the tribunal sent the tapes on 13 June 2006, it told the appellant only that the presiding member would not make a decision on the review application before 29 June 2006. He telephoned the next day and was told that although no official extension had been granted to him the tribunal's presiding member would consider any submissions given to him prior to 29 June 2006. 12 In the meantime, by 10 June 2006 Ms May-Welby wrote again to the tribunal concerning the perceived difficulties the appellant would have as a gay person were he to return to Bangladesh. Her letter was received by the tribunal on 19 June 2006. The appellant provided some country information to the tribunal on 28 June 2006 as to the situation in Bangladesh. Also on 28 June 2006 he sought a further extension of time through a letter from a friend who wished to gather further information about the conditions of homosexuals in Bangladesh. 13 On 29 June 2006, the appellant wrote a detailed letter to the tribunal seeking to identify precisely what it was that he was being asked to comment on in the letter that he had been sent under s 424A. He asked for clarification if his understanding of what was being asked about was correct. He said that he understood that the tribunal did not have any difficulty whatsoever in accepting his claims other than those mentioned directly in the tribunal's letter of 8 June 2006. He asked for clarification if he was incorrect. He asked in particular about the paragraph of that letter which I have quoted above. The appellant said it seemed to be vague and he did not understand it properly. He asked the tribunal whether by using the phrase, 'if you return to Bangladesh', it was referring only to his claim that he feared persecution in the future or was intended to relate to his past claims and if so, in what way. He complained that the tribunal had not identified how a delay in making a claim for a protection visa could cast doubt on his claims. 14 On the same day the tribunal responded by letter saying that its letter of 8 June: '… is not, and does not purport to be, an exhaustive statement of all the doubts the Tribunal has in relation to your claims. The issues in the review were fully explored at the hearing on 5 June 2006.' 15 The tribunal wrote that the appellant had been given the opportunity at the hearing to give evidence and present arguments in relation to the decision the subject of the review and said that with the exception of the information referred to in its letter of 8 June 2006, it was not obliged to give him any further opportunity to comment on information in writing. It said that the relevance of the delay in applying for a protection visa was that the Courts in Australia had stated that a person's delay in applying for refugee status is relevant to the genuineness or, at least, the depth of their claimed fear of being persecuted (this was a reference to Heerey J's decision in Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 301 partly reported at (1994) 34 ALD 347). The tribunal responded to the material which it had received the previous day as to conditions of homosexuals in Bangladesh, saying: 'The Member reviewing your case has asked me to advise you that he is not prepared to grant any further extension of time. The Member notes that the issue in the review is not the situation of homosexuals in Bangladesh but whether your claims are true.' 16 On 2 July 2006 the tribunal affirmed the decision not to grant the appellant a protection visa. In coming to its conclusion that it was not satisfied that he had a well-founded fear of being persecuted for a Convention reason if he returned to Bangladesh, the tribunal concluded that all of the appellant's claims in his protection visa application were fabricated. It said that despite his claimed fear of being persecuted in Bangladesh he had not applied for a protection visa until 9 August 2004. It considered that this clearly cast doubt on whether he genuinely feared persecution for a Convention reason were he to return to Bangladesh, and continued: 'As discussed at the hearing before me and as further dealt with as required in the Tribunal's section 424A letter, I consider that there are further reasons for doubting that the [appellant] is telling the truth about his claimed fear of being persecuted in Bangladesh. The [appellant] claims to be homosexual but apart from his own assertions to that effect there is a surprising lack of evidence to support this claim, having regard to the length of time the [appellant] has spent in Australia.' 17 The tribunal referred to persons named by the appellant at the previous tribunal hearing, at which time he had been legally represented. It referred to a letter from a person who said that he could 'clarify' that the appellant was homosexual. I note that when one reads the letter it does not seem to be from a person whose first language is English. But the tribunal made no mention of that, as it was entitled to do in finding facts. The tribunal complained that the appellant had not named the author of the letter at the previous hearing and it then referred to another claim the appellant had made in the previous tribunal hearing about some photographs which do not have any present relevance. 18 The tribunal said: 'I accept that Ms Norrie May-Welby who gave evidence at the hearing before me is sincere in her belief that the [appellant] is homosexual but as I have said I consider that the [appellant's] delay in seeking Australia's protection casts doubt on that claim.' 19 The tribunal reviewed a number of the matters that were referred to in the s 424A letter, and then began to express, in strong terms, its reasons for forming the view that the appellant's claims were not credible. It did not accept that he was homosexual as he claimed, or had delivered a speech to the student gathering in Dhaka in 1995, or was in hiding from fundamentalists who wished to kill him when he was living in his family home in Chittagong from 1995 until he left Bangladesh in 2001. The tribunal then said it did not accept that he was kidnapped by five members of the Islamic group when he attended the student reunion of his old college in Chittagong in October 2000, nor that his kidnappers gave him three months in which to leave the country. It did not accept that he genuinely feared he would be persecuted if he returned to Bangladesh because he was a homosexual, or because he was known to the mullahs as a non-believer who had worked against them and their beliefs, or as an atheist who did not pray, or because he would be recognised as a 'western attitude' person. It then continued: 'As indicated above, I do not accept that the [appellant] would have delayed for so long in making an application for a protection visa if he had genuinely feared being persecuted for any or all of these reasons if he returned to Bangladesh. I consider that the claims which the [appellant] made in support of his application for a protection visa are a fabrication.' 20 The tribunal made further findings about these claims being fabrications before coming to its ultimate conclusion, non-satisfaction of a well-founded fear on the appellant's part of persecution for a Convention reason when he returned to Bangladesh.