SZLMS v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered on 29 May 2008: SZLMS v Minister for Immigration & Anor [2008] FMCA 753. The Federal Magistrate rejected an application for review of the decision of the Refugee Review Tribunal (the Tribunal) which was signed on 12 September 2007 and handed down on 20 September 2007. In that decision, the Tribunal affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister) to refuse to grant the appellant a protection visa. 2 The appellant is a national of Bangladesh. The appellant claimed that he had experienced persecution on the grounds of his political opinion and feared that were he to return to Bangladesh, he would suffer continued and further persecution. He claimed to be an activist in the Awami League (AL) and to have been appointed publication secretary of a branch of the organisation in 2000. He said that he was persecuted by members of the BNP, a rival political party, that false charges were laid against him, and that at various times in 2002 and 2003 he was attacked and beaten. 3 The essence of the Tribunal's decision is contained in its reasons under the heading "Findings and Reasons" at page 7 as follows: The applicant claims that he has been persecuted in the past by people connected with the BNP and their coalition partners because of his role as an AL activist and office holder. He claims that the situation for AL leaders and activists is not safe currently and that since the caretaker government came to power many AL leaders and activists have been arrested and detained without valid reasons. The applicant claims that he fears for his life and that he will be killed by BNP members if he returns to Bangladesh. The Tribunal notes that, except for a 5 month period, the applicant has been out of Bangladesh since he left for the UAE in 2003 at the age of 23. The Tribunal accepts that while resident in Bangladesh the applicant has been involved in AL political activities but does not accept that he has ever assumed a senior role in the AL leadership. The Tribunal does not accept that the applicant has a well-founded fear of persecution for his political opinion or any of the other Convention reasons if he returns to Bangladesh. In making this finding, the Tribunal has attached substantial weight to DFAT advice… that "politically motivated violence has all but disappeared under the current Caretaker Government" and that "political persecution of opponents has been practised by both the BNP and the Awami League (AL) in the past but this has ceased under the State of Emergency, which has deprived all parties of the machinery of state which they used corruptly for political persecution and personal vendettas conducted in the name of politics." 4 The appellant made application to the Federal Magistrates Court alleging that the Tribunal had committed jurisdictional error on four grounds. The second ground is relevant to the grounds set out in the notice of appeal to this Court. The Federal Magistrate described the ground and his answer to it at [16] and [17] of his judgment as follows: 16. The second ground contends that the Tribunal "failed to put the adverse materials to me and to enable me to have an opportunity to submit my explanations and material in reply to the alleged adverse materials". This contention is not particularised in the original application, but is explained in the later documents filed by the applicant, and in his submissions to me today. The adverse materials which are complained of are the contents of the general country information which the Tribunal took, in particular, from the DFAT report. 17. However, the Tribunal was not obliged to put that information to the applicant for written comment pursuant to the procedures under s.424A(1), by reason of the exclusion in s.424A(3)(a) of the Migration Act. The issue to which that material related was, in my opinion, clearly drawn to the attention of the applicant both by the delegate's decision, and by the discussion which the Tribunal had with the applicant. In the course of that discussion the applicant was referred to the gist of the information which the Tribunal subsequently relied upon. I do not consider there was any procedural unfairness under any principles of law, whether they are applicable to the Tribunal or not. (Original emphasis.) 5 On 18 June 2008, the appellant filed a notice of appeal in this Court. Whilst quite lengthy, the essence of the complaint in the notice of appeal has one ground alleging a breach of s 424A(1) of the Migration Act 1958 (Cth) (the Act). The balance of the notice of appeal is taken up by the particulars. 6 The particulars of this ground in the notice of appeal indicates that the argument raised is the same argument as was described and dealt with by the Federal Magistrate at [16] and [17] of his reasons set out at [4]. In agreement with the Federal Magistrate, this argument is rejected by the Court. The information falls within the exclusion in s 424A(3)(a) of the Act, and in any event the treatment by the Tribunal of the DFAT report demonstrates no procedural unfairness. Indeed, the Tribunal member read out to the appellant the relevant contents of the report during the hearing and explained to the appellant that the Tribunal may rely on the view of DFAT. 7 The appellant also filed a written submission which essentially raised the same issue, although at some greater length and with the addition of much irrelevant information. Nothing in the written submission demonstrates any error by the Federal Magistrate or jurisdictional error by the Tribunal. 8 The appellant appeared on the hearing of the appeal and put several additional arguments. He repeated, in effect, the argument that the Tribunal failed to comply with s 424A(1) of the Act. The representative of the Minister rightly submitted that the exception in s 424A(3)(a) applies. 9 The appellant, however, also contended that he was denied procedural fairness by the Tribunal in that the Tribunal indicated that it would take into account any further documents which the appellant wished to submit to it prior to the decision being handed down. The appellant said that he was told by the Tribunal member that the decision would be handed down in a few weeks. He took that to mean three weeks or thereabouts. The hearing by the Tribunal was held on 6 September and the decision handed down on 20September. The appellant said that he received a number of documents he wished to submit to the Tribunal in support of his application on 24 September, 18 days after the hearing and before the expiration of three weeks. 10 A similar argument was put to the Federal Magistrates Court and dealt with at [21] -[24] of the decision as follows: 21. The second element in Ground 4 of the application contends that "the Tribunal did not give me opportunity to present further the evidence after the hearing to proof my persecution for my political belief". This contention has been further developed in the subsequent documents filed by the applicant and in his oral submissions to me today. He pointed to the exchange with the Tribunal at the end of the hearing which I have set out above. He submitted that he had been promised, or he had reasonably understood from what the Tribunal said, that he would be allowed four weeks at least to submit further documents, and that he was, therefore, denied an opportunity to submit documents. The nature of the documents which he says he was denied opportunity to submit is unclear, and he has not presented any evidence about this to the Court from himself or his agent. 22. In the present case, I do not consider that the Tribunal made any undertakings as to its post-hearing activities which could give rise to a failure by it properly to complete its review, such as was found in Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1. I would not find, as was found in NAFF, that the Tribunal failed to consider the exchange at the hearing before it handed down its decision, so as to have left its review incomplete, since it referred to the exchange in its reasons. 23. There was no statutory obligation on the Tribunal to afford any further opportunities to the applicant to present more evidence. Even if principles of procedural fairness under normal principles could be implied into the provisions of the Migration Act in the face of s.422B, I would not find a failure of procedural fairness occurred arising from what was said by the Tribunal. In a context where the applicant and his agent were, or should have been, clearly on notice that documentary corroboration should be provided prior to or at the hearing, and where they had been given more than ample time to obtain and submit such documents, it was not unreasonable for the Tribunal to expect that any further documents would be forwarded very promptly after the hearing. 24. The Tribunal made no promise as to the period which would occur before it handed down its decision. The applicant and his agent were on notice from 12 September 2007 that this would occur on 20 September 2007. If the applicant had documents at that time, then he should have submitted them immediately. If he did not have documents at that time but was expecting them soon, then he should have made a further approach to the Tribunal for more time. In my opinion, he has not established that he has been denied a reasonable opportunity to obtain and present documents to the Tribunal. I am not satisfied that there has been any practical injustice to the applicant by reason of the procedures followed by the Tribunal or its statements at the hearing (cf. Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]-[38], [106], [122], [149]). (Original emphasis.) 11 The argument put to the Federal Magistrate was that the appellant thought he would be allowed four weeks to provide the documents. The argument put to me was that he thought he would have three weeks and that he obtained a number of documents just before the three weeks expired. In fact, the exchanges with the Tribunal which were set out in the decision of the Federal Magistrate did not indicate a specific time within which the documents would need to be submitted and instead indicated that the appellant had already had six months since arriving in Australia to provide or gather such documents. The relevant passages are set out at [7] and [8] of the Federal Magistrate's decision as follows: 7. The transcript contains this exchange: Applicant: There are some more documents that can be used as evidence to the RRT and I can give it to the Member which will make the life of the Member easier to understand and believe my claims. As because they are emergency in the country, so I was unable to get them when I was leaving country but I can still get them from my sources. Tribunal: When did you arrive in Australia? Applicant: Six months ago. Tribunal: So you have had six months to try and get these documents. I mean I am not sure we can delay making a decision if there is going to be a lengthy delay in obtaining these documents. 8. The applicant referred the Tribunal to his photographs, and said: Applicant: This photograph depicts on 21 February, the day before 21 February, there was a meeting and it also tells about the demonstrations and the meetings. Tribunal: So are they meetings and demonstrations of the Awami League? Applicant: Yes, these are all of Awami League. Our … President is present here. Tribunal: Okay. I will certainly take these into account. There is a period before the decision is actually handed down regarding your application for review. Typically there is a few weeks. So if you are able to obtain any further supporting documents just send them to the Tribunal. I will take them into account. Applicant: If the Member can give me some more extra time, that would be really safe for me. I can give you the true evidence. Tribunal: As I said, you have had six months since arriving in Australia. So I'm afraid I can't give you an indefinite amount of time. I will take into account anything you give me before the decision is handed down. Applicant: Actually I was very new in this country, so it took time for me to get settled. So as a result of that, I was unaware that what is the documentation I need to bring from, get from my country. So that's why it took a bit more time for me. Tribunal: As I said, I will take into account any further documentation you provide before the decision is handed down. Okay then? (Original emphasis.) 12 In my view, the Tribunal did not deny the appellant procedural fairness by handing down its decision on 20 September and did not, in effect, mislead the appellant that it would delay handing down its decision for three or four weeks after the hearing. It indicated that the usual or typical period between hearing and decision was a few weeks. 13 At the hearing today the appellant handed to the Court five documents which he said he received in one envelope on 24 September. The receipt by him of the documents on 24 September, even if proven, would not demonstrate that the Tribunal had denied him procedural fairness. The Tribunal gave an indicative estimate of the likely period within which documents should be provided. That turned out, within a few days, to be correct. 14 In any event there is strong reason to doubt whether the documents were indeed received as the appellant asserts on 24 September. Had the documents been received when stated, it is likely that the appellant would have produced them to the Federal Magistrates Court at the hearing which was held on 29 May 2008. Clearly he did not do that and that deficiency was noted by the Federal Magistrate at [21] of his decision. 15 Furthermore, on closer scrutiny it is clear that these documents were in existence many years prior to the hearing. There is a medical report signed on 31 March 2003. There is another medical report signed and dated 22 June 2002. There is an undated document apparently from the political organisation to which the appellant said he belonged. There is a first information report which was signed on 26 March 2003 and translated on 7 January 2006 and another signed on 10 March 2005 and translated on 15 July 2006. All these documents well and truly pre-dated the hearing by the Tribunal. In the course of the progress of the application before the Tribunal the appellant was asked to provide any relevant information and it seems that the appellant was at one stage represented by a migration agent. 16 Consequently, the Court is not satisfied that the documents were received by the appellant as he contends on 24 September 2007. Even if they had been no case has been made that the Tribunal denied him procedural fairness by indicating that it would take into consideration any documents received prior to the decision and indicating that typically that was a few weeks. 17 The appellant also complained that the Tribunal had denied procedural fairness by failing to properly explain the content and significance of the DFAT report. This contention is at odds with the transcript of the hearing where the matter was expressly exposed and explained to the appellant. The Tribunal member said: Now I have here some extracts from an analysis by the Australian Department of Foreign Affairs and Trade. I will actually quote some of these extracts from the DFAT analysis shortly. Now this analysis states that political persecution of opponents has been practised by both the BNP and the Awami League in the past. So it agrees with you there but it says that this has ceased under the state of emergency, which has deprived all parties of the machinery of State which they used corruptly for political persecution and personal vendettas. The department also notes that politically motivated violence has all but disappeared under the caretaker government. A survey of popular attitudes conducted recently by the Asia Foundation found that levels of criminality, particularly extortion, had fallen dramatically. So it seems to me that while there may have been political persecution of active members of both sides, both major political parties in Bangladesh, that seems to have declined dramatically under the caretaker government. So are you still claiming that if you return to Bangladesh you will be persecuted? 18 For the above reasons the appeal must be dismissed. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.