SZFCT v Minister for Immigration and Citizenship

Federal Court of Australia|2007-12-14|Before: Lindgren J

INTRODUCTION 1 The appellant appeals from an order of the Federal Magistrates Court of Australia made on 31 May 2007 (SZFCT v Minister for Immigration and Citizenship [2007] FMCA 801). That Court dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) signed on 18 November 2005 and handed down on 1 December 2005. The Tribunal had affirmed a decision of a delegate of the first respondent (respectively, the Delegate and the Minister) refusing to grant the appellant a protection (Class XA) visa.

BACKGROUND 2 The appellant is a citizen of Bangladesh. He arrived in Australia on 7 February 2004. By an application lodged on 16 March 2004, he applied for a protection visa. In a four and a half page typewritten statement that accompanied his application, the appellant claimed to fear persecution in Bangladesh for reason of political opinion, namely, his political affiliation with the Bangladesh Awami Jubo League, the youth wing of the Awami League, and his participation in associated political activities. 3 On 29 April 2004 the Delegate refused to grant a protection visa to the appellant. On 19 May 2004 the appellant applied to the Tribunal for review of the Delegate's decision. 4 On 21 September 2004 the appellant attended a hearing before the Tribunal. 5 On 28 October 2004, the Tribunal handed down a decision signed on 7 October 2004 which affirmed the Delegate's decision. 6 The appellant applied to the Federal Magistrates Court for review of the Tribunal's decision. On 9 May 2005, by consent, the Federal Magistrates Court ordered that a writ of certiorari issue to quash the Tribunal's decision and that a writ of mandamus issue to the Tribunal requiring it to reconsider the matter according to law. 7 The appellant attended a hearing before the Tribunal as reconstituted on 26 July 2005 with his solicitor. Following that hearing, on 5 August 2005 the Tribunal sent to the appellant's solicitors a letter under s 424A of the Migration Act 1958 (Cth) (the Act). On 19 August 2005, the solicitors replied. 8 On 26 October 2005 the Tribunal sent the appellant a letter indicating that the Tribunal's decision would be handed down on 17 November 2005. The day prior to that date, namely, 16 November 2005, the appellant's solicitors sent by facsimile a further letter to the Tribunal. 9 In fact the Tribunal's decision, signed on 18 November 2005, affirming the Delegate's decision not to grant the appellant a protection visa, was handed down on 1 December 2005.

THE TRIBUNAL'S DECISION 10 The Tribunal accepted that the appellant was involved in a limited manner in the Awami League's student and youth wings, but was not satisfied that he had any past or ongoing political profile which would indicate a real chance of persecution in the future.

PROCEEDING IN THE FEDERAL MAGISTRATES COURT 11 The appellant commenced his proceeding in the Federal Magistrates Court by an application filed on 29 December 2005. The appellant was represented by counsel on the hearing. Only one ground of the application was pressed, namely, that the Tribunal had not complied with s 424A of the Act. This ground related to a letter dated 23 July 2004 addressed "To whom it may concern" and purporting to be on the letterhead of the "Bangladesh Awami League" and to have been signed by Md Abdul Jalil MP, as General Secretary (the Jalil letter). I will have occasion to say more of this letter below. 12 The Federal Magistrate considered that the references to the Jalil letter in the Tribunal's reasons did not show that it had relied on "information" as a reason for its decision. His Honour also held that the information that the Tribunal received did not relate specifically to the appellant, and so the exception provided for in s 424A(3)(a) of the Act applied. 13 In the result, the learned Federal Magistrate dismissed the application with costs.

ISSUES ON THE PRESENT APPEAL 14 It is only ground 5 in the amended notice of appeal that was pressed on the hearing. Ground 5 is as follows: His Honour erred by not finding that the Second Respondent made jurisdictional error in that the Second Respondent: (a) sent to the Appellant a section 424A letter which did not inform as to any issue that the Second Respondent might rely upon to the effect that the letter of support at AB 81 was from a person with knowledge of the Appellant and that omissions from that letter would be relied upon by the Second Respondent as demonstrating that the Appellant did not have the profile that he claimed. (b) provided a s 424A letter which suggested on its face that the RRT's concern was whether the writer of the letter of support in fact knew of the Appellant's circumstances. (c) breached section 425 where the Tribunal failed to raise with the Appellant its concern that the letter of support contradicted the evidence of the Appellant. (d) failed to alert the Appellant to the issue arising on the review in relation to the letter of support. The "letter of support" referred to in this ground is the Jalil letter which it is convenient now to set out: This is to certify that [name and Dhaka address of the appellant] is known to me. He was an active worker of Bangladesh Awami League. Due to his political belief and activities he became a target of present government and his life is really unsafe under the present regime. If he comes back to Bangladesh he will be incriminated in false cases and a subject of brutal torture. I wish every success in life [sic].

15 The fifth ground of appeal, set out at [14] above, turns on s 424A(1) and s 425(1) of the Act. Section 424A(1) is as follows: Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear 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 the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (Subsections (2A) and (3) of s 424A are not presently relevant.) Section 425(1) is as follows: The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

16 The Jalil letter was written on a letterhead of the "Bangladesh Awami League" and purports to have been signed by Mr Jalil as General Secretary of that League, and to have been dated by him in handwriting "23/7/04". 17 The "information" which the appellant contends fell within s 424A(1)(a) can be summarised as being: that Mr Jalil knew the appellant and knew that he did not have a political profile of a kind apt to attract persecution. The "issue ... arising in relation to the decision under review" for the purposes of s 425(1) of the Act for which the appellant contends can be summarised as being: whether Mr Jalil knew the appellant and knew that he did not have a political profile of a kind apt to attract persecution. I accept that a letter which the Tribunal sent to the appellant on 5 August 2005 (see [40] below - the s 424A letter) did not give to the appellant particulars of the information referred to.

RELEVANT FINDINGS AND REASONS OF THE TRIBUNAL 18 In order to understand the appellant's case on the appeal, it is necessary, first, to turn to the relevant findings and reasons of the Tribunal, and, secondly, to refer to further background facts. 19 The Tribunal's reasons for decision included six paragraphs under the heading "Association with the Awami League". In the first four paragraphs, the presiding member stated that based on various pieces of evidence, including the Jalil letter, the member accepted that the appellant was "an [Awami League] supporter". The member accepted that the appellant had been involved in a limited manner in the Awami League's student and youth wings, that he had participated in a range of activities for the party, and that some of his activities had, on occasions, brought him into close physical proximity to Awami League leaders. However, the Tribunal was not satisfied that the appellant had any past or ongoing prominent political profile which could in itself indicate a real chance of future persecution. The member noted that at the earlier Tribunal hearing the appellant's demonstrated knowledge of the Awami League's activities, policies and party platform did not appear to accord with those of a person with intense political engagement. 20 There then followed, as the fifth of the six paragraphs mentioned, the following: Whilst the Tribunal accepts that that the Applicant supported and associated himself with AL figures, it is not satisfied that he had any responsibilities within or to the party, formal or informal, or any consequent political profile. Regarding the letter from AL General Secretary Abdul Jalil, even if the Tribunal were to take the most beneficial interpretation (leaving aside its concerns as outlined in its letter of 5 August 2005 that the letter is so formulaic that it suggests he does not in fact know the Applicant), it is still left with a reference to the Applicant merely as an 'active worker'. The absence of any more specific information about the Applicant's profile or position leads the Tribunal to conclude that the Applicant did not, to the knowledge of Abdul Jalil as signatory of the letter, have such a profile or position, and that that is a reflection of the truth. 21 In its sixth and final paragraph under the heading mentioned, the Tribunal stated that it took into account the appellant's "complete lack of contact with, and apparent lack of interest in, the [Awami League] at present, other than the search for information to support his current application". The member noted that the appellant's disengagement from the Awami League had been so rapid and thorough since his arrival in Australia, that the Tribunal's doubts about his claimed commitment to the Awami League's ideals, past profile, and level of political engagement and personal contacts were confirmed. 22 There is an inconsistency between an acceptance of the Jalil letter as one of the pieces of evidence showing that the appellant was an Awami League supporter on the one hand, and a doubt and consequential refraining from making a finding, as to whether the signatory of the Jalil letter knew the appellant at all on the other hand. I refer to this matter further at [48] below (it is not the matter relied on by the appellant). 23 Counsel for the appellant seizes on the Tribunal's statement that the absence of any more specific information in the Jalil letter about the appellant's profile or position led the Tribunal to conclude that the appellant did not "to the knowledge of Abdul Jalil as signatory of the letter, have such a profile or position, and that that [was] a reflection of the truth". The expression "to the knowledge of" and similar expressions (such as "to my knowledge" and "so far as I know") are apt to give rise to difficulty. Such an expression can mean that knowledge is actually possessed to the effect stated. On the other hand it can mean that the effect stated is not inconsistent with the knowledge possessed to the extent to which that knowledge goes, which may not be so far as to encompass the effect in question. I agree with counsel for the appellant that in the present context the member was saying that taken at face value, the Jalil letter supported the following finding and conclusions: · Mr Jalil knew the appellant; · if the appellant had had a high political profile or position, Mr Jalil would have known that to be the case, and would, having regard to the purpose of the Jalil letter, have mentioned that fact in that letter; and · the fact that the Jalil letter did not mention the appellant's having a high political profile or position was therefore evidence that he did not in fact have it. 24 With reference to the Jalil letter, the learned Federal Magistrate stated (at [6]): · that the member had decided to put to one side his concern that the signatory of the Jalil letter may not have known the appellant at all and may have written the letter in a "humanitarian" effort to assist the appellant; and · that by doing so, the member had avoided reliance upon "information" that the letter was of the formulaic and generalised kind usually issued to Awami League members, regardless of their prominence within the League.

FURTHER BACKGROUND FACTS AND THE ISSUES ARISING IN RELATION TO THE DECISION UNDER REVIEW 25 In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL), the High Court stated (at [34]-[35]) in relation to s 425(1)'s reference to "the issues arising in relation to the decision under review": Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise ... all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review thatparticular decision, for which the decision-maker will have given reasons. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

26 At [29], their Honours quoted with apparent approval from Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, a decision of a Full Court of this Court, a statement (at 592) to the effect that the requirements of natural justice do not encompass a requirement that a decision-maker expose for comment his or her proposed reasoning processes or provisional views (the general law requirements of natural justice do not apply in the present case in any event: see s 422B of the Act). 27 At [36], their Honours said that unless the Tribunal tells an applicant otherwise, the applicant would be entitled to assume that the delegate's reasons for refusing to grant the visa application will identify the issues relating to that decision. 28 At [47], their Honours added that the Tribunal's statements or questions during a hearing may sufficiently indicate the issues arising in relation to the decision under review. I need not consider the question whether, in all the circumstances, an indication of that kind given for the first time during the hearing before the Tribunal, would be consistent with compliance with s 425(1) of the Act. 29 Finally, their Honours said (see [40] and [44]) that it is not every issue presented by an applicant's claim that falls within s 425(1), and their Honours described those that do so as the "determinative" issues. 30 SZBEL 228 CLR 152 has been applied in one or other of the respects mentioned in several cases in this Court, including SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486; NBKM v Minister for Immigration and Citizenship [2007] FCA 1413; SZHLM v Minister for Immigration and Citizenship [2007] FCA 1100; and Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162. 31 As SZBEL 228 CLR 152 shows, background facts can be relevant to the identification of "the issues arising in relation to the decision under review" within the meaning of s 425(1) of the Act. I turn now to the background facts to which counsel for the Minister referred me, including the s 424A letter. In chronological sequence those facts are as recounted in the following paragraphs. 32 First, in his statement of 16 March 2004 which accompanied his visa application, the appellant referred to his role and activities in relation to the Awami League, but did not mention Mr Jalil. I do not attach particular importance to this omission. 33 Second, in the reasons and findings of the Delegate dated 29 April 2004 the Delegate stated that while he accepted that the appellant was a member of the Awami League, he did not accept that the appellant had gained the adverse attention of the police as claimed or that he was subject to persecutory action by the leaders of the Bangladesh National Party (BNP) when he was in Bangladesh. The Delegate referred to various circumstances as showing that the appellant had not been "under intense pressure from his political opponents when he was in Bangladesh". The Delegate did not accept that the appellant was wanted by the police on false charges. 34 The Delegate's reasons thus conveyed to the appellant that mere membership of the Awami League was not accepted as a sufficient basis for a finding of a threat of persecution. 35 Third, in the earlier Tribunal hearing, the presiding member questioned the appellant as to the role he had played in politics in Bangladesh. The member told the appellant: While you clearly have been involved in the political process, you're not a high profile politician and you've never stood for public office. Counsel for the appellant submits that the reasons of the Tribunal as previously constituted are irrelevant. Except in one respect, I agree. The exceptional respect is that the passage quoted at least brought home to the mind of the appellant a situation that was to be contrasted with what might be described as "mere membership" of the Awami League to which the Delegate had referred, namely, the holding of a high political profile within the Awami League. 36 Fourth, in the reasons for decision of the earlier Tribunal, the Tribunal accepted that the appellant had been a member of the Awami Chattra and Awami Jubo Leagues, respectively the student and youth wings of the Awami League, and had had a limited involvement in them, occupying several junior positions in small branches of 30 to 35 members, especially during the 1990s. The Tribunal as then constituted also accepted that the appellant had been involved in some coordinating activities, attended some public meetings, put up posters, and gone door knocking and had participated in some processions, rallies and demonstrations. The then presiding member stated that the appellant's role as described was supported by the Jalil letter, which, the member noted, only described the appellant as an "active worker". The member added: Importantly, however, Abdul Jalil does not state that the Applicant was a party leader or ever held any positions or had any responsibilities in the Awami League, formal or informal. And while Abdul Jalil makes a number of other statements and speculates that the Applicant "will" be incriminated in false cases and be subject to brutal torture, the Tribunal finds that this is generalised and unsupported conjecture.

37 The comment that I made at [35] above in relation to the statement made in the course of the earlier Tribunal hearing applies: while the content of the earlier Tribunal's reasons for decision are not directly relevant, they prevent the appellant from reasonably submitting that he did not know what was to be contrasted with the mere membership of the Awami League to which the Delegate had referred. 38 Fifth, at the hearing (on 26 July 2005) before the Tribunal as secondly constituted, the presiding member stated: One other thing I need to alert you to is the … many documents from Bangladesh and sometimes they're from people who seem, in particular the case in relation to the Awami League I have to say of people who seem very willing to write letters on behalf of others to help them in applications. So I will also, I mean you are welcome to comment on that but I will also have to evaluate these documents in the light of everything before me really, of all the evidence because I notice when I look at it Mr Jalil has been rather vague really. I mean he says you're known to him, you're an active worker but he doesn't really say very much about how he knows you or - it's very general.

Later in the hearing, the presiding member stated that he would look closely at the documents bearing in mind that there were "many fraudulent documents which come out of Bangladesh". He further stated: ... and I will think carefully about what you've told me about your role. So that in my decision I can be clear about what your - why I can reach an opinion about what your involvement in the Awami League was and what, if any risk is attached to that involvement. Now I've got all this evidence, I've got the photographs, some statements which I will reflect on and your account of your experiences.

39 These passages drew the appellant's attention to two alternative approaches to the Jalil letter that the member was contemplating. One involved rejecting it as deserving of no weight because of the general considerations mentioned, and the other, taking it at face value and dealing with it "on its merits". 40 Sixth, following that hearing the Tribunal wrote to the appellant pursuant to s 424A of the Act on 5 August 2005. After referring to the hearing, the letter stated, relevantly: At the hearing, the Tribunal drew to your attention advice from the Australian High Commission in Dhaka in November 2004 regarding supporting documentation provided by Awami League officials. The High Commission reported that, during a discussion with 'a reliable senior Awami League member' about some specific documents, it was informed that 'many members within the Awami League are prepared to offer such documents on request from such applicants, in a humanitarian attempt to help their former supporters.' The letter from Md. Abdul Jalil, General Secretary of the Bangladesh Awami League, may fall into this category because: (a) the text of his letter is almost identical to letters which have been submitted for other refugee applicants from Bangladesh, and (b) his references to you as 'an active worker' and that you 'will be incriminated in false cases' are so generalised that they cast doubt on whether he in fact knows your personal circumstances. This information is relevant because it casts doubt on the weight which the Tribunal can attach to this letter in assessing your claims.

41 This letter conveyed to the appellant that because of both general information obtained from the Australian High Commission in Dhaka concerning the issue of supporting documentation by Awami League officials, and further because of the terms of the Jalil letter itself, a doubt was cast on the weight which the Tribunal should attach to that letter in assessing the appellant's claims. 42 Seventh, on 19 August 2005, Parish Patience Immigration Lawyers who were representing the appellant responded on his behalf to the above paragraph in the s 424A letter. The solicitors complained that it was not possible for their client to respond adequately in the absence of information as to the position and qualifications of the person within the Australian High Commission in Dhaka who had provided the information to the Tribunal. In relation to the content of the Jalil letter, the solicitors disputed the conclusion that the Tribunal was suggesting it would draw. They pointed out that the signatory of the Jalil letter had identified the appellant by name and had acknowledged that he was an "active worker" for the Awami League. The solicitors advanced other arguments as to why the Tribunal should accept the Jalil letter at face value and as persuasive. 43 The solicitors submitted that a fair minded and informed person would think that if the Tribunal gave the Jalil letter little or no weight, the Tribunal had not brought an impartial mind to bear on it, that is to say, that there would be a reasonable apprehension bias on the part of the Tribunal. 44 Eighth, in their final letter to the Tribunal dated 16 November 2005, the solicitors did not refer further to the Jalil letter.

CONSIDERATION ON THE APPEAL 45 I set out at [20] above that part of the Tribunal's reasons that dealt with the appellant's association with the Awami League, and, in particular, with the Jalil letter. 46 The "information" of which the s 424A letter could be seen to notify the appellant was: · that the letter fell into the category of "proforma letters" that are commonly written by members of the Awami League in a humanitarian attempt to help their former supporters; · the generalised nature of the content of the Jalil letter; and · that these two considerations cast doubt on whether the signatory knew the appellant's personal circumstances at all. 47 The s 424A letter did not notify the appellant that the Tribunal would rely on the Jalil letter in a positive way as showing, on account of its omission, that the appellant did not have a high political profile or position. 48 I think that the learned Federal Magistrate was correct when his Honour observed that the Tribunal decided to put to one side the matters referred to at [38] above, in favour of accepting that the signatory of the Jalil letter did know the appellant, and of assessing the letter at face value accordingly. I note, in passing, that treating the Jalil letter in this way was also consistent with the Tribunal's treatment of it as providing some evidence of the appellant's having been an Awami League supporter (see [22] above). 49 The question which then arises is whether the stance that the Tribunal ultimately took in relation to the Jalil letter somehow involves a non-compliance with s 424A(1) or s 425(1) of the Act. 50 I do not think there was a non-compliance with s 424A(1). It is impossible to point to any "information" within s 424A(1) that was the reason or part of the reason why the Tribunal affirmed the Delegate's decision. The Tribunal simply decided to accept at face value a letter that the appellant had put before it - a decision of which the appellant could hardly be heard to complain. The drawing of the adverse conclusion from what the Jalil letter stated and failed to state was not information within s 424A(1). 51 Whether there was a non-compliance with s 425(1) depends on what were "the issues arising in relation to the decision under review". 52 I referred to the Delegate's reasons and subsequent events at [32]-[44] above. The appellant knew that there was an issue as to whether, over and above his mere membership of the Awami League, he had some further position in, or association with, the Awami League apt to attract persecution. It had been made clear to him that one line of reasoning that might be adopted by the Tribunal was precisely that the appellant did not have a high political profile or position that was apt to do so. 53 Assuming, in favour of the appellant, that whether the appellant had a high political profile or position such as would attract persecution was, for the purposes of s 425(1) of the Act, an issue arising in relation to the decision under review. I accept, for the purposes of that subsection, that the Tribunal did invite the appellant to appear before it to give evidence and present arguments relating to that issue.

CONCLUSION 54 For the above reasons, the appeal should be dismissed with costs. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Counsel for the Appellant: Mr J R Young

Counsel for the First Respondent: Mr J A C Potts

Solicitor for the First Respondent: Australian Government Solicitor

Date of Hearing: 13 and 28 November 2007

Date of Judgment: 14 December 2007

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