SZLXP v Minister for Immigration and Citizenship

THE DECISION OF THE FEDERAL MAGISTRATES COURT 6 Before the Federal Magistrates Court, the appellant relied on six grounds for relief. The grounds were summarised by the Federal Magistrate as: · Breach of procedural fairness and natural justice; · Failure to comply with the Migration Act 1958 (Cth) ('the Act') and the Migration Regulations 1994 (Cth) ('the Regulations'); · Overlooking the merit of the protection visa application; · Making its decision without referring to updated reports; · Bias; and · Making a decision that was unjust without considering the full gravity of the facts and circumstances. 7 His Honour concluded that, leaving aside the question of compliance with s 424 and s 424B of the Act, which he considered separately, there was no failure on the part of the Tribunal to provide the appellant with procedural fairness or natural justice. His Honour also found that the Tribunal had complied with s 424A of the Act by writing to the appellant to seek his comments on the advice from DFAT regarding the 'purported Bangladesh Supreme Court document' and that, otherwise, the Tribunal's decision was based on information that came within s 424A(3). 8 Federal Magistrate Scarlett concluded that the Tribunal had also complied with s 425 of the Act and with the procedures otherwise required by the Act and the Regulations. His Honour noted that the credibility of the appellant's claims, which had been an issue before the delegate, was also a significant factor in the Tribunal hearing and that 'there was no issue that would have taken the [appellant] by surprise'. In that respect also, his Honour found compliance with s 425 of the Act (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152). 9 Otherwise, the grounds of the application were, his Honour said, seeking merits review or complaints as to the use of independent country information, the use of which was a matter for the Tribunal (SZJHP v Minister for Immigration and Citizenship [2008] FCA 119 per Tamberlin J). The ground of bias was not, his Honour said, made out. 10 As to s 424B, Scarlett FM considered that the request to DFAT about the authenticity of the document purportedly from the Supreme Court of Bangladesh should be distinguished from SZKTI v Minister for Immigration and Citizenship (2008) 168 FCR 256 and that there was no prejudice to the appellant, who had been given the opportunity to comment on the response from DFAT in accordance with s 424A of the Act. His Honour did not explicitly find that s 424(2) had not been engaged by the request to DFAT about the authenticity of the document but that finding is implicit in his Honour's finding that SZKTI should be distinguished. Accordingly, given that s 424(2) was not engaged, there was no need for the Tribunal to comply with s 424B in making that request. 11 Federal Magistrate Scarlett found no jurisdictional error and dismissed the application.

NOTICE OF APPEAL 12 The appellant raises three grounds of appeal: 1. The Federal Magistrates Court failed to follow the rules of natural justice and procedural fairness when making decision. 2. The Federal Magistrates Court was in improper exercise of its power conferred by the enactment in pursuance of which it was purported; therefore the decision on 11th September 2008 should be sat aside. 3. The Federal Magistrates Court an error of law and jurisdictional error when it made its decision. 13 The appellant filed an affidavit in which he stated, without particulars, that the Federal Magistrate did not give 'any convincing ground' for dismissing his application for review and that his Honour 'failed [to] take into account all relevant grounds'. He says that he believes that the Federal Magistrates Court breached the rules of natural justice and procedural fairness and failed to identify the errors made by the Tribunal. 14 These are mere assertions. 15 Despite the statement in the affidavit that more details would be submitted before the hearing, none has been received.

CONSIDERATION 16 The appellant appeared in person at the hearing, assisted by an interpreter. When asked to expand upon his notice of appeal, he said that he feared that, because of the political party in power in Bangladesh, he would be shot if he returned. This is a reassertion of factual matters considered by the Tribunal and rejected. They do not found jurisdictional error. 17 The appellant explained that his grounds concerning the decision of the Federal Magistrate are, in essence, that the Federal Magistrate did not remit his case to the Tribunal and did not look into his case properly. Counsel for the Minister, who did not appear in the Federal Magistrates Court, pointed out that there is no transcript of the hearing before Scarlett FM in the appeal papers but, from his Honour's reasons, it is apparent that he looked carefully at the issues raised before him. I accept those submissions. There is no indication by way of particulars from the appellant, nor is it apparent from a reading of his Honour's reasons, that there is any support for these grounds of appeal. 18 The appellant contends that the Tribunal did not consider his claims concerning false cases brought against him. That is not the case. The reasons of the Tribunal set out the detail of those claims. The appellant has also explained that he had travelled to Estonia and the reasons why he did not seek protection in that country. The claims concerning false cases and the fact that the appellant did not seek protection in Estonia, or in India or Sweden, were considered by the Tribunal individually and cumulatively. These considerations led to a conclusion that the appellant lacked credibility which, in turn, led the Tribunal to reject his core claims concerning his political activities in Bangladesh. It followed that the Tribunal was not satisfied that the appellant had a well founded fear of persecution for a Convention reason. 19 As to the appellant's complaints about the Tribunal's use of independent country information, his Honour observed at [60] that, if there was particular information which the appellant considered relevant, it was up to him to bring that material to the Tribunal's attention. As his Honour observed, the Tribunal is not obliged to make the appellant's case for him (Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57]). 20 As to his Honour's consideration of the Full Court decision in SZKTI, the decision of the Full Court in SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407 at [88]-[114] and at [123]-[124] makes it clear that the request from the Tribunal to DFAT did not enliven s 424(2) of the Act. It was not an invitation to give "additional information" for the purposes of that subsection (as then in force). It was not an invitation for additional information from DFAT. 21 The s 424A letter sent to the appellant following receipt of the response from DFAT did not fail adequately to set out clear particulars of the information obtained or fail to ensure, as far as reasonably practicable, that the appellant understood why it was relevant to the review (cf. SZKCQ v Minister for Immigration and Citizenship (2008) 170 FCR 236). 22 Following the invitation to the appellant under s 424A in relation to the information from DFAT and the appellant's response, the Tribunal placed no reliance upon any information received from DFAT that was not put to the appellant in that invitation. Accordingly, there was no breach of s 424A.

The High Court's decision in Minister for Immigration and Citizenship v SZKTI 23 These reasons were written prior to the decision of the High Court, handed down this morning, to allow the appeal in SZKTI (Minister for Immigration and Citizenship v SZKTI [2009] HCA 30). The High Court there accepted (at [28]) the Minister's submissions (at [27] -[28]) that s 424(2) does not operate to limit the general facultative power given by s 424(1) in aid of the inquisitorial functions of the Tribunal. The limitation on that general power is that the Tribunal 'must have regard' to that information in making its decision (at [37]). Procedural fairness is assured by, inter alia, the requirements of s 424A. The High Court concluded (at [48]) that the procedural restrictions on the specific power to issue an invitation to give additional information do not qualify the Tribunal's general power in s 424(1) to 'get any information that it considers relevant'. 24 It follows that the method adopted by the Tribunal to obtain the information did not give rise to jurisdictional error.

CONCLUSION 25 I see no jurisdictional error in the decision of the Tribunal or error on the part of the Federal Magistrate. 26 The appeal should be dismissed with costs. 27 The Minister has sought fixed costs in the amount of $4,650. The appellant has declined to make submissions as to costs. I am satisfied that it is appropriate to order costs in that amount. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate: Dated: 26 August 2009 The Appellant appeared in person.

Solicitor for the First Respondent: Sparke Helmore