SZQAU v Minister for Immigration and Citizenship

JUDGE: FLICK J DATE: 3 NOVEMBER 2011 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 There are three Appellants in the present proceeding. They are a husband, his wife and their young son who was born in 2005. 2 They are citizens of Bangladesh. 3 They arrived in Australia on 8 February 2010 and applied to the Department of Immigration and Citizenship for Protection (Class XA) visas on 1 March 2010. In very summary form, the husband claimed to have been actively involved in the Bangladesh Nationalist Party (the "BNP") and to have suffered at the hands of the Awami League. A delegate of the Minister refused to grant those visas on 25 October 2010. They then applied on 22 November 2010 to the Refugee Review Tribunal seeking review of the delegate's decisions. On 18 February 2011 the Tribunal affirmed the decisions not to grant the visas. 4 On 16 March 2011 an application was lodged with the Federal Magistrates Court of Australia. An amended application was filed on 3 June 2011. That Court dismissed the application on 20 July 2011: SZQAU v Minister for Immigration and Citizenship [2011] FMCA 579. 5 A Notice of Appeal was filed in this Court on 8 August 2011. Each of the three Grounds of Appeal address attention to errors said to have been committed by the Tribunal. They repeat the grounds previously raised - and rejected - by the Federal Magistrate. Notwithstanding the terms in which they are expressed, the Grounds of Appeal have been construed as intending to allege that the Federal Magistrate erred in rejecting the arguments previously advanced. 6 The First Appellant appeared unrepresented before this Court on 31 October 2011. He had the benefit of an interpreter. He understandably stressed the impact that his return to Bangladesh would have, particularly upon his child. 7 The first Ground potentially gives rise to greater concern than the other two. But it is concluded that none of the Grounds ultimately have any merit. The appeal is to be dismissed.

A FAILURE TO GIVE WEIGHT TO DOCUMENTS 8 The first Ground of Appeal alleges that the Tribunal erred in failing "to give any weight to the relevant documents" and is construed as an allegation that the Federal Magistrate erred in rejecting the same argument when it was advanced before him. The Ground identifies six documents and alleges that the "Tribunal overlooked the above supporting letters and made a comment that 'I am not satisfied that he was ever a political activists for the BNP while he was in Bangladesh.'" 9 This first Ground assumes particular importance by reason of the fact that the Tribunal formed an adverse view as to the husband's credibility. Thus, for example, on one occasion the Tribunal characterised the husband's claims to be able to make "clandestine" visits to his business when satisfied that "there were no Awami League figures about" as not "plausible" and his claims as to the closure of his business as "confused and implausible". It similarly characterised his claims as to an alleged assault as "confused and implausible". The Tribunal was "unable to be satisfied that the Applicant was ever subjected to harm which he claims, at the hands of the Awami League or of the Bangladesh authorities, while he lived in Bangladesh". In particular, photographs which the husband sought to rely upon were found to have been "falsified". 10 Given the adverse findings that were made, it was of paramount importance to the husband that his claims were assessed by reference to all of the materials he sought to rely upon - not just some of those materials. 11 Care must be taken to recognise the difference between an argument that a particular document or claim has not been taken into account or "overlooked" as opposed to an argument that it has been taken into account - but given what is said to be inadequate "weight". The Appellants, it is understood, seek to raise both arguments. 12 As to the former argument, it may be accepted that jurisdictional error may be exposed if a decision-maker "ignore[s]" relevant material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323. McHugh, Gummow and Hayne JJ there identified as follows some of those circumstances which may constitute jurisdictional error: [82] It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia [(1995) 184 CLR 163 at 179], if an administrative tribunal (like the Tribunal) "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." "Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive [cf Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82]. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. See also: Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 at [59] per French CJ. 13 As to the latter argument as to inadequate "weight" being given to a particular claim or document, it must constantly be recalled that it is for the Tribunal - and not this Court - to make findings of fact. It is for the Tribunal to give such weight to the evidence and other materials before it as it sees fit. Thus, in Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 291 to 292 Kirby J observed: The weight to be given to the material before the decision-maker is, in a case submitted to judicial review, reserved to the decision-maker so long as he or she applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review. The decision-maker will usually have advantages over the reviewing judge in evaluating evidence and submissions. Those advantages will include the conventional ones of seeing any parties and witnesses who are heard and having time to reflect upon all of the material. But there are additional reasons for restraint and resistance to any temptation to turn a case of judicial review into, effectively, a reconsideration of the merits. Often, the decision-maker will have more experience in the consistent application of applicable administrative rules to achieve fairness to a wider range of people than typically come before the courts. The making of findings of fact, and the weight to be given to the evidence in the course of making those findings, are matters entrusted to the Tribunal alone. "It is not for this Court to reconsider the Tribunal's factual findings …": NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [81], 156 FCR 419 at 440 per Young J (Gyles and Stone JJ agreeing). See also: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559; SZNNK v Minister for Immigration and Citizenship [2009] FCA 1386 at [20]. And, as stated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42: … in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits. See also: Toia v Minister for Immigration and Citizenship [2009] FCAFC 79 at [82], 177 FCR 125 at 138 per Stone and Jacobson JJ; SZLUW v Minister for Immigration and Citizenship [2010] FCA 804 at [30] per Yates J. 14 In the present proceeding, the Appellants particularised in the first Ground of Appeal six documents in respect to which it is said that the Tribunal failed "to give any weight". That Ground of Appeal also states that the "Tribunal overlooked the above supporting letters". 15 No argument, however, is sustainable that those documents had been "ignore[d]" or "overlooked". Five were expressly referred to at paragraphs [25] and [29] of its reasons for decision when the Tribunal addressed (inter alia) the "Further Documents" submitted to the Department. A further document, although not expressly identified by reference to it being an "authenticity certification", was nevertheless referred to by the Tribunal. With respect to this last document, it was particularised (without alteration) as a "copy of authenticity certification issued by the M Farooque Alam Talukder, Secretary and Publisher, Daily Alor Jagat". This was the document addressed by the Tribunal when it stated: [70] I put to the Applicant that I had doubts about the letter said to be from the secretary and publisher of the Daily Alor Jagat; despite the Applicant's claim never to have met him this person ended the letter by stating that to the best of his knowledge the Applicant was not engaged with anti-State activity and that he 'wished him all success.' The Applicant said this was because the writer had heard from the public about all the things that were happening with him, and that he was a good man. It had also been previously referred to by the Tribunal at paragraph [29] of its reasons. A copy of this document was included within the documents forwarded to the Tribunal by the husband on 21 January 2011. Any suggestion that any of these documents have not been taken into account is a submission without substance. To the extent that the Appellants seek to contend that the Tribunal failed to consider a particular document, as opposed to a contention that a particular document was taken into account but given inadequate weight, that contention is rejected: cf. Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [50] to [54] per Tracey J. 16 And, any separate argument as to the weight to be given to those documents is equally without substance. The question of the weight to be given to those documents was for the Tribunal alone. Moreover, it is further concluded that a fair reading of the Tribunal's reasons discloses a balanced and measured appraisal of each of the claims made by the husband and each of the documents he sought to rely upon. The reasons for decision of the Tribunal, it is to be recalled, are not to be scrutinised with an eye attuned to discerning error but are to be read in a balanced manner and construed as a whole. In an oft-repeated passage, in Liang Brennan CJ, Toohey, McHugh and Gummow JJ made the following observations as to the principles to be applied when reviewing a statement of reasons provided by an administrative decision-maker: When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic [(1993) 43 FCR 280]. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision- maker [(1993) 43 FCR 280 at 287]. The Court continued [(1993) 43 FCR 280 at 287]: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error". These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision: [(1996) 185 CLR at 271-272]. Appl'd: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25], 235 ALR 609 at 617 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; Black v Minister for Immigration and Citizenship [2007] FCAFC 189 at [36] per Branson, Sundberg and Dowsett JJ. 17 Considerable care must thus be exercised before any conclusion should be reached that a particular document which is expressly referred to has not been properly taken into account or not been given such weight as the Tribunal considers appropriate. In the present proceeding, the reasons for decision of the Tribunal: expose a careful consideration of the claims made and a careful exposition as to the bases upon which it reached its adverse conclusions; address, in particular, the claims of the husband as to his involvement in the Bangladesh Nationalist Party and the reasons for rejecting those claims; record the concern as to the authenticity of documents emanating from Bangladesh and the weight to be given to such documents; and record the findings of the Tribunal as to the husband lacking "any particular knowledge of the operation and activities of the BNP beyond those which might be expected of an educated and politically aware member of the public" and its findings that his "descriptions of his alleged activities in support of the Party in his area were vague and uninformative". The reasons for decision of the Tribunal thus refer to each of the six documents the subject of the first Ground of Appeal and expose a careful assessment of the claims and documents relied upon by the Appellant. That is the very task entrusted by the legislature to the Tribunal and not this Court. In the circumstances of the present proceeding, there is no identifiable basis upon which it could be suggested that the Tribunal had to initiate its own inquiries in respect to the claims or documents being advanced for consideration: cf. Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, 259 ALR 429. 18 The first Ground of Appeal is dismissed.

SECTION 424A 19 The second Ground of Appeal seeks to focus attention upon an alleged failure to comply with s 424A of the Migration Act 1958 (Cth). The particulars provided state (without alteration) that: The Tribunal did not asked from me any oral or written comment about its following finding that: i) Background of the independent country information about document fraud in Bangladesh I am not satisfied that any weight can be placed on these documents. 20 Section 424A provides as follows: Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear 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 the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to 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. (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. (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 for review; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non-disclosable information. Section 424A forms an important part of the limited procedural guarantees afforded to a claimant. A breach of s 424A may constitute jurisdictional error: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, 228 CLR 294 at [75] per McHugh J; at [206] to [208] per Hayne J (Kirby J agreeing at [173]); SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [13], 235 ALR 609 at 614 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. 21 In the present proceeding, the Federal Magistrate rejected this ground as follows: [26] Ground 2 of the amended application suffers from two flaws, in my opinion. First, the general country information concerning the prevalence of Bangladeshi refugee claimants relying upon fraudulent documentation was of a general nature, which was excluded from obligations under s.424A(1) by s. 424A(3)(a). Secondly, in my opinion, the Tribunal did fairly put that general information to the applicant in the course of the hearing, when discussing his documents with him (see paragraphs [71] - [74]). It is not clear to me that the Tribunal was obliged to follow procedures under s.424AA, but it appears to have attempted to do so. [27] I am therefore not persuaded that it made any jurisdictional error in its consideration of the applicant's documents. No error is discernible in the Federal Magistrate's conclusions. 22 The conclusion of the Federal Magistrate is only reinforced if reference is made to those paragraphs of the Tribunal's reasons referred to by the Federal Magistrate, namely: [71] I put to the Applicant that information available to the Tribunal indicates that false or fraudulent documentation is readily obtainable in Bangladesh and is often used in immigration and refugee cases. He said he had not been involved in any such activity, and that he would swear this on the Koran in a mosque. [72] I put to the Applicant that, taken together, this information concerning the photographs, the article and the letter said to be from the secretary of the newspaper could cast doubt on the genuineness of these documents. Given that these were important documents in his case this could reflect on the genuineness of other documents he had submitted to the Department and the Tribunal, casting doubt on the accuracy or truth of his claim to fear harm in Bangladesh. Asked if he understood this he said nothing he had provided or stated was untrue. Had he known he had to provide many documents he would have provided bundles of them. I explained that I was not asking him to provide more documents and I was only talking about documents he had provided. He said he understood this. [73] I explained that this information was important for the decision in the Applicant's case because if I was not satisfied as to the truth of his claim to fear harm in Bangladesh this would lead me to believe he would not suffer persecution there, that he was not a refugee and that he decision to refuse the visa should be affirmed. He indicated that he understood the importance of the information. [74] I invited the Applicant to comment on the information or respond to it, explaining that he could do so immediately, at an adjourned hearing or in writing, and that he could have more time for these things if necessary. Indicating that he wished to respond immediately he said everything he had claimed was true. He only wanted to stay in Australia, where he had peace of mind. As soon as he returned to Bangladesh he would be killed and his wife would be a widow. He was involved with the BNP in Australia. The second Ground of Appeal as advanced by the Appellants is without substance. No non-compliance with s 424A is made out. 23 Ground Two of the Notice of Appeal is dismissed.

SECTION 91R 24 The final Ground of Appeal refers to s 91R of the Migration Act and alleges a failure on the part of the Tribunal "to consider my fear of persecution". The "particulars" provided in respect to that Ground state (again without alteration) that the Tribunal was "not satisfied that the reason for the conduct in Australia has been otherwise then to strengthen his claim to be a refugee". 25 The Federal Magistrate rejected the argument founded upon s 91R as follows: [28] Ground 3 is difficult to understand. The applicant's written submission appears to complain that the Tribunal should have given weight to the applicant's activities in Australia, both as probative of his claims about his political profile in Bangladesh as well as giving rise to a further risk of persecution if he returned to Bangladesh. However, in my opinion, the Tribunal correctly identified that it was precluded by s.91R(3) from giving this evidence that effect, in the absence of a finding in terms of s.91R(3)(b). The Tribunal clearly was not satisfied in those terms and, therefore, I am unable to detect any error in its application of that section. 26 Again, it is concluded that there is no error in the Federal Magistrate's conclusions in respect to this Ground. 27 Ground Three of the Notice of Appeal is dismissed. A LUMP SUM COSTS ORDER - RULE 40.02(b) 28 The Respondent Minister seeks an order that costs be "awarded in a lump sum" pursuant to r 40.02(b) of the Federal Court Rules 2011. 29 Rule 40.02(b) had its counter-part in Order 62 r 4(2)(c) of the now repealed Federal Court Rules. Rule 4(2)(c) previously referred to a "gross sum specified in the order." There is, however, no relevant difference between a "lump sum" and a "gross sum". The same discretionary reasons apply for making such an order where to do so avoids a successful party incurring the additional costs involved in taxation - provided the estimate as to costs is "logical, fair and reasonable": cf. Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123. 30 An affidavit provided by the Respondent Minister seeks an order be made for costs in the sum of $2,630.00. It is appropriate that such an order is made.

CONCLUSIONS 31 It is concluded that none of the Grounds of Appeal, even if they be construed as a reference to the failure on the part of the Federal Magistrate to have accepted the same arguments as were previously advanced for resolution, have any substance. 32 A further argument sought to be raised on appeal is also rejected. During the course of oral submissions the husband contended that there had been inadequate interpreter facilities previously provided. But such a complaint does not appear on the face of the Tribunal's reasons for decision and is not the subject of any Ground of Appeal. The contention, in any event, appears baseless. The Tribunal's reasons disclose at some length the exchanges that took place with the husband. At no point is it apparent that there was any difficulty being experienced in any of those exchanges. 33 The appeal is to be dismissed. There is no reason why the husband and wife, the First and Second Appellants, should not be ordered to pay the costs of the First Respondent.

ORDERS The Orders of the Court are: 1. The Notice of Appeal as filed on 8 August 2011 is dismissed. 2. The First and Second Appellants are to pay the costs of the First Respondent, awarded in a lump sum of $2,630.00 pursuant to r 40.02(b) of the Federal Court Rules 2011. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.