SZGJY v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2007-03-19|Before: Collier J

REASONS FOR JUDGMENT 1 This is an appeal from the decision of Nicholls FM of 11 December 2006, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

BACKGROUND 2 The appellant is a citizen of Bangladesh who arrived in Australia on 25 September 2004 on an Australian business visitor (short stay) visa. The appellant's business visa application indicated that he was a dentist in Bangladesh and that his business activity in Australia was "to see…dental activity on sterilisation and anaesthesia" (this was later described by the Tribunal as "to attend a conference"). The appellant's business visa application was supported by extensive documentation regarding his dental practice in Dhaka and his dental qualifications, and included a letter from Australian Politician the Hon Peter Lewis MP, Speaker of the House and Member for Hammond in South Australia thanking the appellant for treating his wife's dental problem whilst she was in Dhaka in 2003. 3 I understand that the appellant's business visa application was valid for a stay of up to three weeks. On 11 October 2004 the appellant lodged an application for a protection visa with then Department of Immigration Multicultural and Indigenous Affairs ("Department"). The appellant's application stated that "my political affiliation with the Jatiya Party forced me to leave the country… If I return home I will be persecuted". 4 On 19 October 2004 a delegate of the first respondent advised the appellant that his application had been refused because he did not satisfy the criteria for a protection visa application. On 15 November 2004 the appellant applied to the Tribunal for a review of that decision. His application was accompanied by a letter dated 15 January 2005 purporting to be from the President of the Jatiya Party about the appellant's involvement with the Jatiya Party, and an extract from the Pirojpur Municipality Register of Births. The Tribunal invited the appellant to attend a hearing on 24 February 2005. The appellant attended and was assisted by a Bengali interpreter. 5 Following the hearing on 24 February 2005 the appellant was sent a letter pursuant to s 424A Migration Act 1958 (Cth) ("the Act"). The letter referred to his business visa application and supporting documentation to that application which, in asserting his occupation as a dentist, contradicted his claims that he was associated with the Jatiya Party. The Tribunal sought the appellant's comments. The appellant responded in a letter dated 22 March 2005.

THE DECISION OF THE TRIBUNAL 6 Before the Tribunal the appellant claimed to have well-founded fear of persecution because of his political opinion. The appellant claimed he was a full-time politician and a member of the Jatiya Party in Bangladesh, having joined the Party in 1990 after completing his studies and that he was elected as joint secretary of the Ramna Thana Jatiya Party in 1992. He claimed that he had been actively involved in election campaigns for Jatiya Party candidates against the Awami League and the Bangledeshi Nationalist Party ("BNP"). The appellant asserted that when the Awami League came to power, the Jatiya Party were targeted and that in March 1999 he was arrested by police and remained in custody until being released by the court. The appellant further claimed he was elected as the executive member of the Dhaka Mahanagar Committee of the Jatiya Party in 1999 and that he was then targeted by the BNP and attacked and beaten on occasions in 2002 and 2003. The appellant also claimed false charges were filed against him. 7 The Tribunal found, based on the documentary evidence provided with the business visa application and confirmation from the office of the Hon Peter Lewis MP concerning dental treatment in Dhaka in late 2003, that the appellant was a dentist, and not a politician as claimed in the protection visa application (Tribunal Reasons at [12]). Further, the Tribunal stated that this finding was reinforced by the appellant's patchy knowledge of the Jatiya Party and his hesitant uncertain responses to questions about the party which the Tribunal found to be inconsistent with claims of being a politician for over 10 years. 8 In considering the letter from the President of Jatiya Party the Tribunal expressed doubts over the timing of its production and provenance in light of it bearing no facsimile message information (despite the appellant indicating it was faxed to him) and the prevalence of document fraud in Bangladesh. The Tribunal found that, because of the appellant's lack of credibility and unreliability, the letter would not be given any weight. 9 The Tribunal found the appellant was not a person to whom Australia owed protection obligations because he had not in the past had any actual or perceived association with the Jatiya Party and it could not be satisfied the appellant had been subject to adverse attention for the reason of his political association. There was no basis to establish a well-founded fear of persecution arising from any association with the Jatiya Party.

GROUNDS BEFORE THE FEDERAL MAGISTRATE 10 As the decision of the Tribunal was a privative clause decision within the meaning of s 474, the only basis upon which an appeal lay was on the basis of jurisdictional error of the Tribunal: S157/2002 v Commonwealth (2003) 211 CLR 476. On 26 May 2005 the appellant applied for judicial review of the decision of the Tribunal. In an amended application filed 2 September 2005 the appellant claimed the following: · The Tribunal committed jurisdictional error in not complying with s 424A. The appellant claimed that as the Tribunal's according of "no weight" to the letter from the President of Jatiya Party was the reason or part of the reason for the decision, that the Tribunal should have ensured that the appellant, as far as it was reasonably practicable, understood why it was relevant to the review. · The Tribunal denied the appellant natural justice and procedural fairness in not ensuring that the appellant understood why the giving of no weight to the letter from the President of Jatiya Party was relevant to the review. 11 At the hearing, the appellant also claimed that the Tribunal had denied him an opportunity to "prove" he was "not a dentist" by refusing to provide him with a second hearing to do so, as he had requested. He also complained that the Tribunal did not believe his documents and did not consider them appropriately.

THE DECISION OF NICHOLLS FM 12 In considering the Tribunal's decision in light of the claims made by the appellant, Nicholls FM found that the letter of 15 January 2005 from the President of Jatiya Party was provided by the appellant for the purpose of the review and falls within the exception of s 424A(3)(b) of the Act. It was the appellant's lack of credibility which made the Tribunal unable to give weight to the document, as distinct from information about the prevalence of document fraud in Bangladesh. Findings in respect of the credibility of the appellant were matters for the Tribunal: McHugh J in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 423. However, even if the Tribunal had relied on the prevalence of document fraud in Bangladesh it would fall within the exception of s 424A(3)(a) of the Act. His Honour found that there was no statutory obligation of the Tribunal to provide an opportunity to the applicant to comment on the these adverse findings of the Tribunal, as such adverse findings are not "information" for the purposes of s 424A (SZEEU v MIMIA [2006] FCAFC 2 at [20], [28]). 13 In relation to the claims of a denial of procedural fairness at common law, Nicholls FM noted that the Tribunal in its decision said it had alerted the applicant to country information as to the prevalence of document fraud in Bangladesh. Similarly, the Tribunal had drawn attention to the fact that it could give not weight to the documents because of the adverse view it had taken of the appellant's credibility. In the absence of evidence provided by the applicant, the Court was unable to accept a submission of the applicant challenging these statements of the Tribunal. 14 In response to the claims of the appellant at the hearing that he was a politician, not a dentist, and that he was denied another hearing to prove this, Nicholls FM found that the applicant's request for another hearing was in response to the letter of the Tribunal and must be seen in that context. The Tribunal complied with its statutory obligations under s 425 of the Act. To the extent that natural justice in the context of Tribunal hearings is addressed exhaustively in Div 4 of Pt 7 of the Act, any complaint of a denial of natural justice at common law could not succeed. However even if s 422B did not operate, the Federal Magistrate asserted such a claim still would not succeed in these circumstances.

NOTICE OF APPEAL 15 On 18 December 2006 the appellant filed a notice of appeal raising the following grounds: 1. The Tribunal failed to give any weight to the document submitted by the appellant in particular the document present to support membership of Jatiya Party; 2. The Tribunal denied the appellant natural justice in particular the Tribunal did not invite the appellant to comment on the documents submitted to the Tribunal; and 3. The Tribunal failed to ask the questions it was required to ask in particular material questions about political like in Bangladesh as the Tribunal assumed the appellant was a dentist in Bangladesh. 16 At the hearing of the appeal before me the appellant sought leave to file a written outline of submissions. I granted leave and gave the respondent an opportunity to read the document. Counsel for the respondent indicated that the respondent was prepared to meet the case. 17 The appellant submitted in writing: · The Tribunal failed to comply with s 424A of the Act and breached rules of natural justice and procedural fairness, in that it did not invite any comment from the appellant with respect to the Tribunal's views concerning the authenticity of the letter from the President of the Jatiya Party's Dhaka City Committee. Not giving weight to the letter, which was a vital document in relation to the appellant's involvement with the Jatiya Party, was clearly the reason or part of the reason for the decision, and the appellant should have been invited to comment on it. · The Tribunal failed to provide the appellant with the opportunity, which he requested, to prove his claim that he was not a dentist but rather a politician. 18 Further, in oral submissions the appellant contended: · The Tribunal did not let him know whether or not the documentation he provided was false or not. The Tribunal was wrong not to inform him and not to give him the opportunity to speak in favour of the documentation. Further, the Tribunal did not allow him to do so even though he specifically requested a second opportunity. · He is a politician. He is not a qualified dentist. 19 The respondent submitted, in written submissions filed 20 February 2007 (without the benefit of having seen the appellant's written submissions), and in oral submissions that: · The learned Federal Magistrate was correct in concluding that s 424A(1) of the Act had no application to the letter from the President of the Jatiya Party's Dhaka City Committee dated 15 January 2005 because the letter was provided to the Tribunal by the appellant and therefore falls within the exception in s 424A(3)(b) of the Act. · Section 422B of the Act excludes common law rules of procedural fairness and any natural justice requirements are prescribed by the Act, not the common law. That the Tribunal did not give any weight to the letter was a matter for the Tribunal and is not open to review. · It was the adverse finding as to the appellant's credibility that underpinned the finding that the letter purporting to be from the President of the Jatiya Party's Dhaka City Committee was to be given no weight. There is no obligation under the Act for the Tribunal to allow the appellant to comment on such findings. · There is no statutory requirement for a second hearing at the request of the applicant. There was no evidence before Nicholls FM that the hearing was other than a meaningful hearing and there is no basis for a submission that there was some error committed by the Tribunal in not allowing a second hearing to take place. · Insofar as the appellant submits that the evidence of Bangladeshi document fraud was not put to him and he did not have an opportunity to respond to it, it was clear that this issue was put to him (Reasons for Decision at [6]) and that there was no lack of procedural fairness or irregularity in this regard.

THE APPEAL 20 The grounds of appeal before me were in all material respects identical to the grounds of judicial review before the Federal Magistrate. My jurisdiction is to identify errors in his Honour's decision on appeal. No grounds of appeal or submissions of the applicant actually challenge the decision of Nicholls FM. It follows therefore that the appropriate order is to dismiss the appeal. 21 Notwithstanding this, I am prepared to make the following comments addressing the appellant's grounds of appeal: 22 First, s 424A provides: (1) 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. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies--by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person. (3) This section does not apply to information: (a) 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; or (b) that the applicant gave for the purpose of the application; or (c) that is non‑disclosable information. 23 It is clear from s 424A(3) that the requirement to invite the appellant's comments on material as prescribed by s 424A(1) is limited, and does not apply to information that the applicant gave for the purpose of the application. As was found by the Nicholls FM at [16] of his decision, the letter of 15 January 2005 purporting to be from the President of the Jatiya Party's Dhaka City Committee was information provided to the Tribunal by the appellant himself for the purpose of the review, and as such falls within the exception in s 424A(3)(b) of the Act. There is no error in his Honour's decision in this regard. 24 Second, the Act clearly sets the parameters for the operation of principles of natural justice, and excludes relevant common law rules: MIMA v Lay Lat (2006) 151 FCR 214 and SZCIJ v MIMIA [2006] FCAFC 62. Section 422B(1) provides: (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. 25 At [32] his Honour Nicholls FM said: The material before the Court now reveals that the Tribunal raised with the applicant at appropriate times both information adverse to his claims, and relevant adverse views that the Tribunal took of his claims and evidence. I cannot see that the applicant was denied an opportunity to properly put his case, or was not aware of adverse information, or even thinking, by the Tribunal which was adverse to his claims……… ………I cannot see jurisdictional error on the part of the Tribunal in relation to any failure to comply with its obligations pursuant to s 424A... Nor can I see any error in procedural fairness at general law even if this ground was available to the applicant. 26 As I have previously indicated, it was open to the Tribunal to make adverse findings as to credibility of the appellant. The weight given by the Tribunal to the letter of 15 January 2005 was a matter for the Tribunal. There was in my view no requirement for the Tribunal to invite the appellant to comment on any "doubts" it had in relation to that letter, which was provided to the Tribunal by the appellant: (SZEEU v MIMA at [20] and [28]). 27 Finally, in relation to the appellant's claim that he was a politician and not a dentist, and that he was denied a second hearing in relation to this issue, there was ample evidence before the Tribunal to conclude that the appellant was a dentist, and there is evidence that the Tribunal invited the appellant, both at the hearing and in correspondence, to comment on the fact that both his passport and business visa application form recorded his profession as a dentist. On the evidence before it, the Tribunal concluded that the appellant was a dentist. This is a finding of fact, not open to review by this Court. The learned Federal Magistrate made no error in finding that the Tribunal was under no statutory obligation to offer a further hearing to the appellant on this point.

The appeal be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Counsel for the Appellant: The Appellant appeared in person

Migration Act 1958(Cth)ss 422B, 424A

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