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[2011] FCA 88
Federal Court of Australia
2011-02-16
Stone J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 On 11 February 2010 the Refugee Review Tribunal affirmed the decision of a delegate of the Minister refusing to grant the appellants Protection (Class XA) visas under s 65 of the Migration Act 1958 (Cth). On 17 June 2010, a Federal Magistrate dismissed the appellants' application for judicial review of the Tribunal's decision; SZOFK v Minister for Immigration & Citizenship [2010] FMCA 447. This is an appeal from his Honour's judgment. 2 Section 65(1) of the Migration Act provides that a visa may only be granted if the decision maker is satisfied that, inter alia, the prescribed criteria for the visa have been satisfied. A criterion for a protection visa is that the applicant is a non-citizen to whom Australia owes "protection obligations under the Refugees Convention as amended by the Refugees Protocol"; s 36(2)(b). Relevantly, a refugee is a person who has a well-founded fear of persecution on the basis of the person's race, religion, nationality, membership of a particular social group or political opinion; s 36(4). 3 The appellants in this proceeding are a husband and wife who are citizens of Bangladesh. The husband applies as member of the wife's family unit and makes no independent claims. Reference in these reasons to the appellant is a reference to the wife unless otherwise indicated. 4 The appellant is a fashion designer who had been employed in a textile company. Before the Tribunal the appellant claimed to fear persecution because of her gender and occupation. She said that she had been targeted by some Islamic extremists because she was seen as "a person presenting new styles and attractive designs, and destroying Islamic culture". She claimed that in two separate incidents occurring in July 2006 and January 2009 respectively she had been violently attacked by these extremists and threatened with harm to her children. The appellant's account of these incidents were described in detail by the Tribunal and summarised at [3]-[5] of his Honour's reasons. 5 The appellant also provided the Tribunal with newspaper articles and other documents in support of her claims. They included a medical report in respect of medication that was allegedly prescribed for the stress she suffered as a result of the first incident. The newspaper articles contained reports of other incidents of fashion designers being threatened and kidnapped and included a report that the textile company which had employed the appellant had been forced to close and the chairman was in hiding. 6 The Tribunal accepted that the appellant was a fashion designer who had been employed in a textile company however it did not accept that she had been attacked as claimed. In reaching this conclusion the Tribunal referred to gaps in the appellant's evidence, conflicting evidence before it as to the situation of the textile company and its chairman. It also did not accept as genuine recent letters that had purportedly been signed by the chairman of the textile company. The Tribunal also found that the incidents of violence described by the appellant were inconsistent with the independent country information it had obtained. 7 The Tribunal also relied on the independent country information in finding that the newspaper articles were fabricated. It also dismissed the evidence of two witnesses, Mr Ataur Rahman of the Bangladesh Journalists Rights Forum and Mr Matin, General Secretary of the Bangladesh Welfare Association Inc, who corroborated aspects of the appellant's claims. The Tribunal accepted that these witnesses believed the evidence they gave was correct however they had obtained their information from the appellant whom the Tribunal did not regard as credible. 8 The appellant gave evidence before the Tribunal on three occasions. There was a hearing on 24 August 2009 which lasted 1.5 hours. It was adjourned because the interpreter assisting the appellant had to leave and also because the Tribunal needed time to review additional material the appellant produced at the hearing. The hearing resumed on 2 September 2009 for another 2 hours. A third hearing was held on 15 December 2009. By letter dated 23 December 2009, the Tribunal invited both appellants to comment on "information that the Tribunal considers would, subject to any comments or response you make, be the reason, or a part of the reason, for affirming the decisions that are under review". 9 It appears to be common ground that this letter was written pursuant to s 424A of the Migration Act. Section 424A(1)(a) requires the Tribunal to give applicants "clear particulars" of any information that it considers would be "the reason, or a part of the reason, for affirming the decision that is under review". Subsection (b) of s 424A(1) also requires the Tribunal to "ensure, as far as is reasonably practicable" that the applicant understands the relevance of the particulars and "the consequences of it being relied on in affirming the decision that is under review". 10 The s 424A letter identified the following items as being of concern to the Tribunal: (a) the inconsistencies in the appellant's evidence concerning identification of the extremists whom she alleged attacked her; (b) additional information about the newspaper articles provided by the appellant in the light of independent information about the newspapers concerned; (c) details of other fashion designers said to have been the subject of harassment and violence by extremists, in particular one designer said to have been a co-worker of the appellant; (d) the appellant's claim that in addition to being attacked on two occasions she had also been followed on other occasions and, in particular why she had not reported this to the authorities; (e) the allegation that the textile company for which she worked had to change its location in response to extremist threats. 11 Before the Federal Magistrate the appellants submitted that the letter was confusing and "misled them into thinking that they were being told that the Tribunal had, in fact, decided to refuse protection visas". His Honour rejected that claim and held that the letter "sufficiently complied with the requirements of s 424A(1)(a) and (b). The other grounds of appeal before the Federal Magistrate, and which his Honour rejected, are largely repeated in this appeal and I will address them in that context.
The appeal 12 The appellants appeal from the whole of the Federal Magistrate's decision. The notice of appeal lists three grounds of appeal but does not provide any particulars. While not entirely clear, the gravamen of these grounds appear to be that the Federal Magistrate made jurisdictional errors in: (a) rejecting the submission that the s 424A letter of 23 December 2009 caused the appellants to become confused and misapprehensive; (b) in giving the appellants particulars of information that might lead to it affirming the decision under review both orally in accordance with s 424AA and in writing under s 424A; (c) relying on "very old [independent country] information" and in finding that the Tribunal had "full power under s 424(1) to conduct enquiries through informal means either by itself or through its agent or other government departments". 13 Implicit in ground (a) is the submission that the letter did not meet the requirement of s 424A that the letter of 23 December did not comply with s 424A(1)(b); see [9] above. Ground (c) also seems to involve a complaint that the sources on which the Tribunal relied to provide the additional information were not qualified for the task that had been requested of them. 14 At the hearing of the appeal the male appellant (husband) (assisted by an interpreter) appeared on behalf of himself and his wife, the appellant. While he had at least some competence in English he was clearly more comfortable speaking in his native language (Bengali) and was assisted by an interpreter. Despite this assistance the husband was not able to make any submissions of substance. He complained that the Federal Magistrate had not given the appellants' submissions sufficient consideration as an ex tempore judgment was given at the end of the hearing but did not point to any aspect of his Honour's reasons that showed an adverse result of what might also be viewed as commendable efficiency. 15 When asked to explain what was confusing about the letter of 23 December 2009 he said that he asked for more time to read it over so that he could make submissions. This request was refused. As their complaint about the s 424A letter was the first ground of appeal, it could not have come as a surprise to the appellant that the issue would arise at the hearing. He was similarly unable to give the Court any assistance in understanding any other aspect of the grounds of appeal. 16 The first respondent was represented by Mr Kay Hoyle of counsel who had prepared detailed and cogent written submissions. In the circumstances it was not strictly necessary to call on Mr Kay Hoyle to address the Court however, against the possibility that oral submissions on behalf of the first respondent might elicit useful comment from the husband I asked Mr Kay Hoyle to summarise his submissions on behalf of the first respondent. Unfortunately Mr Kay Hoyle's submissions did not elicit any response from the appellants that would assist the Court. 17 I have reviewed the Tribunal's decision and that of the Federal Magistrate in the light of the grounds of appeal in the notice of appeal. The following consideration of the issues has also been assisted by the written and oral submissions made on behalf of the first respondent.
Ground 1 - the s 424A letter 18 The letter of 23 December 2009 set out, in a number of separate bullet points, the details of the additional particulars of information required in relation to each topic. These were followed by a paragraph explaining the relevance of the information and the likely consequences for the Tribunal's decision of the information which the Tribunal had at that time. As noted above the Federal Magistrate was satisfied that the letter of 23 December 2009 sufficiently complied with s 424A(1) and (2). His Honour observed that the appellants' response, which was signed by the appellant, "appears to have understood the grouping of topics and the contentions put to her by the Tribunal's letter, and to have responded relevantly to them". My review of the letter satisfies me that, viewed objectively, the letter is not confusing. Moreover, in the light of the appellant's response I am satisfied that, subjectively, the appellant was not confused by it. Accordingly this ground of appeal must be rejected.
Ground 2 - proceeding under both s 424AA and s 424A 19 The Federal Magistrate rejected this claim. As his Honour observed, the Tribunal is obliged to put adverse information produced by inquiries it makes to applicants either orally, under s 424AA, or in writing, under s 424A. His Honour added that he could find no implication in either scheme of language of the provisions that would preclude the Tribunal proceeding under both provisions. I agree with his Honour's comments and reject the second ground of appeal.
Ground 3 - the Tribunal's power to conduct enquiries 20 The appellant appears both to deny the Tribunal's right to conduct its own enquiries and to criticise the manner in which enquiries were conducted. In the absence of any submissions on the point it was not possible to identify the basis of the complaint with any greater precision. It seems that a similar complaint was made before the Federal Magistrate who said, at [40], that the High Court in Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489 had "made it clear that the Tribunal has full power under s 424(1) to conduct inquiries through informal means, either by itself or through its agents or other government departments". As the written submissions for the first respondent pointed out, The words "may get any information that it considers relevant" in s 424(1) confer a general power and do not restrict or limit the Tribunal's powers in any way other than in the requirement that the tribunal must have regard to such information in making its decision. 21 Here the Tribunal sought information from the Department of Foreign Affairs and Trade, in particular from the Department's post in Bangladesh. It was entitled to request this information and, once received, to accord such weight to the information as it deemed appropriate. This much is clear from the ample authority in support of the proposition that it is not a jurisdictional error for the Tribunal to rely on information that is incorrect; see NAHI v Minister for Immigration and Citizenship (2004) FCAFC 10 at [11] and SZDZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1782 at [23]. 22 In relation to the submission that it was a jurisdictional error for the Tribunal to rely on "old" information (which I understand to mean 'outdated') the Federal Magistrate, noting that the reference had not been explained to him, said, at [43]: It may refer to the Canadian information which the Tribunal had relied upon when treating some of the documentary material presented by the applicants as unreliable corroborative evidence. The Canadian information had, however, been repeated in an authoritative 2009 report relied on by the Tribunal, and I do not accept that the Tribunal did rely on any "very old information". Moreover, the choice of the general information used by the Tribunal was a matter within its jurisdiction, and I cannot see that any jurisdictional error arises from its reliance on such information in the present case … 23 In my opinion his Honour's conclusion was correct and it follows that this ground of appeal must be rejected and, for all the above reasons the appeal must be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.
SZOFK
Minister for Immigration & Citizenship