SZLTR v Minister for Immigration and Citizenship

THE FEDERAL MAGISTRATE 8 Before the Federal Magistrate, the appellant relied upon the following grounds of review: 1. The Tribunal made its decision in bad faith. 2. The Tribunal acted in excess of its jurisdiction by not accepting that he faced a real chance of persecution if he returned to Bangladesh now or in the foreseeable future. 3. The Tribunal failed to seek written comment from the appellant in respect of the country information as to the steps taken by the caretaker government to prevent political violence and in respect of the dialogue between the Tribunal and the Awami League office bearer in Bangladesh. 9 The Federal Magistrate dismissed the application for judicial review. 10 As to ground one, the Federal Magistrate found no evidence of bias or bad faith. The Federal Magistrate noted that the appellant's use of the term "bad faith" was in essence a statement of disagreement with the Tribunal's findings of fact. The Federal Magistrate found that the findings of fact were open to the Tribunal to make, and that it was not the function of the court to conduct a merits review. 11 In relation to ground two, the Federal Magistrate found that the Tribunal carried out its statutory obligations in assessing whether the appellant had a well‑founded fear of persecution. The Tribunal was aware of the criteria to be applied and it had set out and evaluated all the evidence before applying the criteria. 12 As to the third ground of review, the Federal Magistrate found that the country information was excluded from s 424A of the Migration Act 1958 (Cth) (the Act) by reason of s 424A(3)(a) of the Act. As to the information provided by the Awami League office bearer, the Federal Magistrate found that the Tribunal complied with its obligations pursuant to s 424AA(b) of the Act.

THE APPEAL 13 The notice of appeal repeats the grounds of review which were before the Federal Magistrate. I have treated the notice of appeal as alleging that the Federal Magistrate erred in failing to uphold the grounds of review. 14 During the hearing of the appeal, the appellant handed to me a letter dated 31 March 2008, purporting to be from Mr MA Salam. The writer of the letter appears to claim to be the office bearer in the Awami League who had been approached by DFAT about the standing of the appellant. The letter says that the appellant was a member of the Awami League and was "targeted and tortured" at different times. I said I would rule upon the admissibility of the letter when I delivered my reasons. The letter is not admissible evidence because it goes to the merits of the appellant's protection visa application, whereas this appeal is concerned with whether there was error in the Federal Magistrates Court. It is, therefore, irrelevant. 15 The first ground of appeal was that the Federal Magistrate failed to find that the Tribunal had acted in bad faith. In support of that allegation, the appellant contended that the Tribunal was in error in making a finding that the appellant was not a high profile politician in the Awami League and in rejecting his claims to have been threatened by political opponents and the caretaker government. Further, the appellant contended that the Tribunal had not given sufficient weight to the comment made by the Awami League official to DFAT that the appellant had been a member of the party. 16 The fact that the appellant disputes the findings of fact, or disagrees with the weight given to the evidence, by the Tribunal, does not show that the Tribunal acted in bad faith. An allegation that the Tribunal acted in bad faith is a serious allegation which must be supported by evidence. The appellant did not produce evidence to support the allegation. The appellant's contentions amount to a misconceived criticism of the Federal Magistrate's decision not to embark upon an impermissible merits review of the Tribunal's decision. The Federal Magistrate did not err in rejecting this ground of review. 17 The second ground of appeal was that the Federal Magistrate erred in not finding that the Tribunal had acted in excess of its jurisdiction. The appellant contended that the excess of jurisdiction comprised the Tribunal's finding that the appellant did not face a "real chance" of persecution on his return to Bangladesh. In his written submissions the appellant contended that the Tribunal did not consider the "reality of the chance of my persecution…if the regime…was reinstated". A contention to this effect was not made to the Federal Magistrate. Nor did the appellant express his fear of persecution in that way before the Tribunal. The fear that he expressed was that he feared persecution at the hands of the caretaker government or by reason of the caretaker government's failure to protect him from harassment by supporters of the BNP and Islamic fundamentalist parties. 18 The Tribunal's role is to deal with the case which is presented by the visa applicant (Abebe v Commonwealth (1999) 197 CLR 510). The Tribunal considered the claim which the appellant made, namely, that he feared persecution by supporters of the BNP and Islamic fundamentalist parties which he said were the governing coalition before the caretaker government was installed in 2006. The appellant also claimed that he feared persecution from the caretaker government which was "very hostile" to politicians. The Tribunal assessed the chance of the appellant facing persecution by reference to the state of affairs in Bangladesh at the time of its decision and into the foreseeable future, by reference to the case made by the appellant before it. There was no case made that he feared persecution because the former regime was likely to be reinstated in the foreseeable future. The Tribunal set out and evaluated all of the evidence and considered each of the claims made by the appellant before concluding that there was no real chance of the persecution which the appellant claimed to fear, occurring if he were to return to Bangladesh. In my view, the Federal Magistrate did not err in rejecting this ground of review. 19 The third ground of appeal is that the Federal Magistrate erred in not finding that the Tribunal had contravened s 424A of the Act. The contention made by the appellant was that the Tribunal had not written to the appellant seeking his comment in relation to the country information and the advice it had received from DFAT that the appellant had been a minor office bearer in the Awami League. It was accepted that the Tribunal did not seek comment from the appellant in writing in relation to this information. 20 Because the impugned information from DFAT was information which referred specifically to the appellant, it did not fall within s 424A(3), and, therefore, s 424A(1) was enlivened. However, the reasons of the Tribunal (at p 96 of the appeal book) show that this information was disclosed to the appellant at the hearing and comment was sought from the appellant by the Tribunal. The Tribunal's reasons also show that the appellant was advised that he could seek further time to comment or otherwise respond to the information. He did not seek that further time. 21 The Federal Magistrate held that the Tribunal had complied with the requirements of s 424AA by advising the appellant of the information and its relevance, and inviting him to comment on the information, or to seek further time to comment on, or otherwise respond to, the information. Accordingly, by reason of s 424A(2A), the Tribunal was relieved from having to comply with s 424A(1). In my view, the Federal Magistrate did not err in coming to that conclusion. 22 Further, the Federal Magistrate correctly held that the country information fell within the ambit of s 424A(3)(a), which meant that s 424A(1) was not enlivened. 23 Accordingly, I reject the third ground of appeal. 24 Counsel for the first respondent, as a model litigant, also drew my attention to two further matters that could potentially have been raised in favour of the appellant. Neither of these matters had been raised before the Federal Magistrate and the appellant would require leave to raise these matters on appeal. 25 First, it was said that the delegate had found that the appellant was a member of the Awami League and had experienced "some form" of harassment at the hands of some activists belonging to the BNP. On the other hand, the Tribunal, whilst finding he was a member of the Awami League, found that the appellant had not been harassed by the supporters of the parties opposed to the Awami League. This, said counsel for the first respondent, might possibly raise the question of whether, on the basis of the decision in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152, the Tribunal had complied with s 425 of the Act. 26 In my view, leave should not be granted to the appellant to raise this matter on appeal. This is because the question of whether or not the appellant faced some form of harassment from the supporters of the parties opposed to the Awami League was not dispositive of the application before the delegate or the Tribunal. 27 The delegate dismissed the appellant's visa application on the basis that the delegate found that the appellant was not of a sufficiently high profile in the Awami League to cause action to be taken against him by the caretaker government for his political views, and that the country information showed that the caretaker government did not sanction any political violence being taken by political opponents of Awami League supporters. The delegate also rejected the claim that the appellant had false charges brought against him. 28 The Tribunal rejected his claim that he had suffered harassment at the hands of the BNP supporters and Islamic fundamentalists, but the same matters proved to be dispositive of his application for review before the Tribunal as were dispositive of his application before the delegate. In any event, the appellant gave evidence before the Tribunal that he suffered mistreatment at the hands of BNP supporters and Islamic fundamentalists, and, it is apparent, therefore, that he did not labour under any misapprehension based on the delegate's decision that the question of whether he suffered mistreatment at the hands of political opponents was not an issue before the Tribunal. 29 The appellant suffered no practical unfairness by reason of the content of the delegate's decision in his review before the Tribunal. 30 Secondly, counsel for the first respondent referred to the fact that the Tribunal's decision records that DFAT reported to the Tribunal that it had contacted an office bearer in the Awami League head office in Chittagong who had confirmed that the appellant had held positions in the party which could not be regarded as high ranking. However, the record does not disclose how the Tribunal had communicated with DFAT in relation to obtaining that information. This raised the question, said counsel for the first respondent, of whether the Tribunal had complied with s 424 of the Act in obtaining the information from DFAT.

31 Section 424 provides: (1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. (2) Without limiting subsection (1), the Tribunal may invite a person to give additional information. (3) The invitation must be given to the person: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the person is in immigration detention ‑ by a method prescribed for the purposes of giving documents to such a person. 32 Counsel for the first respondent drew the attention of the Court to the Full Court cases of SZKTI v Minister for Immigration and Citizenship (2008) 168 FCR 256 (SZKTI) and SZKCQ v Minister for Immigration and Citizenship (2008) 170 FCR 236 (SZKCQ). In SZKTI, a person, Mr Cheah had provided a letter about the applicant's church going activities, to the applicant which he had placed before the Tribunal in support of his claim for a protection visa. The letter contained Mr Cheah's mobile telephone number and an invitation to contact him. The Tribunal made a mobile telephone call to Mr Cheah and sought additional information in respect of the information already given in his letter. The Full Court held that the Tribunal had invited Mr Cheah to give "additional information" within the meaning of s 424(2) and so was required to comply with s 424(3) and s 424B of the Act. The Full Court in SZKCQ followed SZKTI. 33 In my view, there is some doubt that s 424(2) has application to the communication made by the Tribunal to DFAT in relation to the appellant's status in the Awami League. Section 424(1) gives the Tribunal a general power to "get" information without prescribing the process by which it may "get" that information. By contrast, s 424(2) provides for a specific process. It is initiated by the Tribunal issuing an invitation. The invitation must be delivered by a means prescribed by s 441A and it must ask the recipient to give the Tribunal "additional" information. The use of the word "additional" to qualify the information that is sought, and the fact that the provisions of s 441A contemplate that the invitation is to be delivered to the recipient personally or to an address which the recipient has already provided to the Tribunal (ss 441A(3), (4) and (5)), are indications that s 424(2) has application only in limited circumstances. Those circumstances would be where the recipient of the invitation has previously given information to the Tribunal in relation to the review then being conducted by the Tribunal, and he or she has provided his or her address to the Tribunal, or is able to be handed the invitation personally. There is nothing to suggest that these circumstances were present in this case in relation to DFAT. 34 Further, it appears that neither of the Full Courts in SZKTI and SZKCQ were referred to the case of Minister for Immigration & Multicultural & Indigenous Affairs v Sun (2005) 146 FCR 498 (Sun). In that case the Full Court dealt with the equivalent provisions in the Act which apply to reviews by the Migration Review Tribunal. In Sun, the Full Court construed those sections as not precluding the Tribunal from obtaining additional information from an applicant by a means other than the formal invocation of s 359 of the Act. The Full Court held that the consequence of the Tribunal invoking the formal process was that the provisions of s 359C were enlivened. 35 However, in light of my findings below, it is unnecessary for me to determine this issue. 36 In Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788, it was stated (at [16]): An appellate court has power to allow grounds to be argued on appeal which were not argued before the primary judge. Where the facts are not in issue and have been finally determined or the point is one of construction or law, the relevant principle to apply is whether it is expedient and in the interests of justice to allow the grounds to be argued. 37 In this case, as mentioned, the record does not reveal the manner in which the Tribunal communicated with DFAT in respect of the information in question. Thus, even if s 424(2) applied to the communication between the Tribunal and DFAT, on the current state of the record it would not be possible to conclude that the Tribunal had not complied with the Act. In my view, leave should not now be granted to the appellant to raise this matter for the first time on appeal. Had the matter been raised before the Federal Magistrate, it would have raised a factual matter in respect of which evidence could have been led. 38 The appeal is dismissed with costs. I certify that the preceding thirty‑eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate: Dated: 12 December 2008 Counsel for the Appellant: The Appellant appeared in person.