Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Application to review decision of Refugee Review Tribunal - whether case names or legal principles are `information' within s.424A of the Migration Act 1958 - whether Tribunal obliged to provide applicant with a copy of independent evidence.

SZASX v Minister for Immigration [2004] FMCA 680 (18 October 2004)

SZASX v Minister for Immigration [2004] FMCA 680 (18 October 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZASX v MINISTER FOR IMMIGRATION
[2004] FMCA 680




MIGRATION - Application to review decision of Refugee Review Tribunal - whether case names or legal principles are `information' within s.424A of the Migration Act 1958 - whether Tribunal obliged to provide applicant with a copy of independent evidence.




Migration Act 1958 (Cth)

VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123

Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396

VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74

Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212

Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109

Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1679

Singh v Minister for Immigration & Multicultural Affairs [2002] FCAFC 120

WAGP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266

Commissioner for ACT Revenue v Alphaone Pty Limited (1994) 49 FCR 576

Carlos v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 456

Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559

Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 679

Applicant A & Anor v Minister for Immigration & Ethnic Affairs (1997) 191 CLR 559

Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293

Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1

Minister for Immigration & Multicultural Affairs v Khawar (2002) 187 ALR 574

NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494

VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82

NAMW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 264

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 577

VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 363

Stead v State Government Insurance Commission (1986) 161 CLR 141

NATL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 112

Mohammed v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 277

Applicant:
SZASX




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ1038 of 2003




Delivered on:


18 October 2004




Delivered at:


Sydney




Hearing date:


22 June 2004




Judgment of:


Barnes FM




REPRESENTATION

Counsel for the Applicant:


Nil




Solicitors for the Applicant:


Nil




Counsel for the Respondent:


Mr S. Lloyd




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) That the application is dismissed.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ1038 of 2003

SZASX



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 27 May 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The applicant, a citizen of Bangladesh, arrived in Australia on 9 September 2001. He lodged an application for a protection visa on 8 October 2001. On 27 May 2002 an officer of the respondent's department sent to the applicant for comment some country information potentially relevant to his application. The applicant, through his migration agent, made submissions on that material by letter dated 15 June 2002. On 22 June 2002 a delegate of the respondent refused the application. The applicant sought review by the Tribunal on 11 July 2002. He attended a Tribunal hearing on 29 April 2003.

2. The applicant, a citizen of Bangladesh claimed to fear persecution by reason of his religion as a convert from the Sunni faith to the Ahmadiyya faith. He claimed that he had participated in Ahmadiyya conferences and delivered speeches, that his friends and neighbours had `hated' him over his decision to convert and that his family had asked him to leave the home to avoid bringing shame on them.

3. He claimed that he had been injured when a crowd had attacked an Ahmadiyya gathering at Bakshi Bazaar in Dhaka. He had been giving a speech at that time and after that many people realised he was an Ahmadiyya and he had become widely hated and began receiving threats. He claimed that he and his wife and son had had to go into hiding in an area ten kilometres away from his original home area, that he had been attacked by a group of Sunni extremists and had received death threats for helping to spread the faith.

4. He submitted a document, purportedly from the Bangladeshi Ahmadiyya organisation, stating that he belonged to that faith. He told the Tribunal that he had had little contact with the Ahmadiyya organisation and mosque in Sydney as he did not live close enough to the mosque to worship there except on isolated occasions. He claimed that he had come to Australia on a false passport and could not relocate within Bangladesh to avoid harassment or harm from family members because he did not wish to move away from the particular area of Dhaka where three generations of his family had lived.

5. The Tribunal reasons for decision, which is the only evidence of the conduct of the Tribunal hearing, records that independent evidence on the situation of Ahmadiyyas in Bangladesh was put to the applicant for comment. It was also put to the applicant and his adviser that the applicant's claims were very similar to those of two other Bangladeshi applicants whose applications were before the Tribunal, one of whom lived at the same address as the applicant and all of whom had used the same adviser.

6. The Tribunal expressed doubts about the credibility of the applicant's claim to be of the Ahmadiyya faith and about the document tendered to establish that he was of that faith. It referred to independent evidence about documentary fraud in Bangladesh and stated that it was not inclined to give credence to the document without a check of its authenticity. However the Tribunal concluded that this was not necessary given independent evidence before it on the situation of Ahmadi believers in Bangladesh. The Tribunal went on to say that even if it accepted that the applicant was Ahmadi it was not satisfied that he had a well-founded fear of persecution. Country information showed that while Ahmadis in Bangladesh were subject to isolated attacks and some degree of suspicion/discrimination, they did not suffer discrimination amounting to persecution, were allowed to practise their faith freely and had the protection of the authorities in the event of harassment or attack. The Tribunal found that Ahmadis freely and publicly espouse views that might be controversial to other Muslims which are given publicity in the mainstream Bangladeshi press. Accordingly the Tribunal was not satisfied as to the credibility of the applicant's claims that Ahmadis are not able to practice their religion freely and are forced into hiding for preaching the value of their faith.

7. Nor was the Tribunal satisfied that the applicant had been constantly at risk of being killed over his claimed faith, given that independent evidence did not support a claim that Ahmadis in Bangladesh are at real risk of harm or are targets of systematic harm. The Tribunal did accept that Ahmadis who were present at certain locations where harm had been threatened to or experienced by Ahmadis could justifiably claim to have been at a real risk of harm at the time and that if the applicant was present on a similar occasion he could at that time have been at a real risk of harm. However the Tribunal found that such attacks were random and isolated and that Ahmadis have been offered protection by the authorities. It was not satisfied that the applicant's possible presence at one such occasion would give him a well-founded fear of persecution over his claimed faith. The totality of the country information was said by the Tribunal not to show that Ahmadis have a well-founded fear of persecution in Bangladesh. The Tribunal concluded that the applicant had fabricated the claims of danger facing him in Bangladesh. Nor, based on independent evidence, was the Tribunal satisfied that any discrimination experienced by Ahmadis was significant enough to amount to persecution.

8. The Tribunal also considered the position of converts to the Ahmadi faith. It found a lack of independent evidence to support a claim that such converts are persecuted and that there was independent evidence to the contrary.

9. The Tribunal also considered the specific claims made by the applicant. It was not satisfied as to the credibility of the claim that the applicant was injured in an attack on Ahmadis at Bakshi Bazaar in Dhaka in 2000/2001 as there was no independent information of such an incident at that time and the Tribunal was of the view that the applicant had fabricated his claim based on an actual event which took place in 1993. Nor was the Tribunal satisfied that the applicant was attacked by extremists on a later date. If he was, it was not satisfied that, given their random and isolated nature, such attacks pointed to a real chance of harm in the future bearing in mind that protection was available from the authorities in relation to such harm.

10. As to the applicant's claims to have been thrown out of his family home over his faith, the Tribunal found that even if this were true it was not satisfied that it amounted to persecution. Nor was it satisfied as to the credibility of the claims that the applicant was sought out and attacked by his family and that he had to leave Bangladesh under a false name to prevent relatives attempting to prevent him to leave. The Tribunal noted the inconsistencies between these wider claims and the applicant's earlier detailed claims about his family's treatment of him which the delegate had found did not amount to persecution. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason in Bangladesh. If the applicant had left Bangladesh using a false passport it was not satisfied that this was due to a fear of persecution. The Tribunal concluded by stating that the lack of any endorsement by the Ahmadiyya Muslim Association of Australia (an organisation which has stated its readiness to provide a letter of introduction to genuine Ahmadis applying for refugee status in Australia) underlined the lack of credibility in the applicant's claims of being a persecuted Ahmadi.

11. The applicant filed an application in this Court on 11 June 2003. On 12 May 2004 he filed an amended application in which the grounds of the application were expressed as follows:

1. The Tribunal decision was infected by jurisdictional error -

Particulars:

(a) That the Tribunal did not comply with the mandatory obligations that contained in s424A of the Migration Act.

(b) That the Tribunal references include -

i. Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379;

ii. Applicant A & Anor v Minister for Immigration & Ethnic Affairs (1997) 191 CLR 559;

iii. Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293;

iv. Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 and

v. Minister for Immigration & Multicultural Affairs v Khawar (2002) 187 ALR 574

(c) That the Tribunal did not ensure, as far as reasonably practicable, or at all, that the applicant understood why all those abovementioned references and information were relevant to his own Refugee Review Tribunal application as required by s424A(1)(b) of the Migration Act.

(d) That the Tribunal did not give the applicant notice of the particulars of the information or references in the manner required by s424A(1)(a) and 424(2) of the Migration Act.

(e) The Tribunal cited only a part of some reports and references in deciding my application instead of the whole reports or references.

(f) The Tribunal enclosed the US State department report probably while preparing my green book only, but the Tribunal did not enclose or send to me the copy of the US State department report while sending the RRT decision with respect to my application.

12. These grounds are primarily directed to an alleged breach of s424A of the Migration Act 1958 (Cth). It is not in dispute that the Tribunal did not send any written notice to the applicant pursuant to s424A(2) of the Act.

13. The applicant's amended application contends that the Tribunal did not comply with s424A in that it did not give the applicant notice of the particulars of the case references in the manner required by s424A(1)(a) and 424(2) of the Migration Act and did not ensure, as far as reasonably practicable, or at all, that he understood why all these references were relevant to his own Tribunal application as was said to be required by s424A(1)(b) of the Act.

14. The applicant elaborated on his amended application in written submissions, from which it appears that he relies on two categories of material not provided to him. First, the five decisions of the High Court referred to in paragraph (b) of the grounds contained in the amended application and second a US State Department report referred to as having been enclosed with the green book (the bundle of relevant documents filed in these proceedings) although the complaint is expressed as relating to the fact that a copy of this report was not sent to him by the Tribunal with the Tribunal decision.

15. Section 424A of the Migration Act provides:

(1) Subject to subsection (3) the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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

(c) invite the applicant to comment on 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.

(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; or

(c) that is non-disclosable information.

Cases

16. The initial issue is whether the five High Court cases referred to in the Tribunal reasons for decision (or for that matter the content of the judgments or the principles established by such cases) fall within the s424A(1) obligation to give the applicant "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". These cases were referred to in the introductory part of the Tribunal decision after a statement that the High Court had considered the definition of `refugee' in article 1A(2) of the Refugees Convention in a number of cases notably those listed.

17. As Finn and Stone JJ set out in VAF v MIMIA [2004] FCAFC 123 at [24], there is a considerable body of case law concerned with the compass of the term `information' in s424A(1) from which the following propositions emerge:

(i) the purpose of s424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v MIMA (2001) 113 FCR 396 at [104]. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v MIMIA [2003] FCAFC 74;

(ii) the word `information' in s424A(1) has the same meaning as in s424: Win v MIMA (2001) 105 FCR 212 at [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v MIMA [2000] FCA 1109 at [3]; irrespective of whether it is reliable or has a sound factual basis; Win, at [19] - [22]; and

(iii) the word does not encompass the Tribunal's subjective appraisals, though processes or determinations: Tin at [54]; Paul at [95]; Singh v MIMA [2001] FCA 1679 at [25]; appr [2002] FCAFC 120; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v MIMIA (2002) 124 FCR 276 at [26] - [29].

18. Sackville J suggested in Tin v MIMA [2000] FCA 1109 at [53], that s424A(1) `is concerned with knowledge of a fact or circumstance communicated to or received by the Tribunal'. This view of the application of the section is reinforced by the Macquarie Dictionary definition of `information' as `knowledge communicated or received concerning some fact or circumstance'. The obligation in s424A(1) is to give `particulars' of information. The focus of the section is on knowledge communicated about some fact or circumstance `that is material to the review and is adverse to the applicant', Paul v MIMA [2001] FCA 196.

19. A subjective determination that the applicant's account may not be credible does not enliven the obligation in s424A which does not extend to the Tribunal's appraisal or thought processes (see Tin at [54] and Paul at [95]). The Tribunal is not obliged to expose its mental processes or any provisional views it may have formed to comment prior to making its decision, although it may as a matter of procedural fairness have to advise of any adverse conclusion arrived at which would not obviously be open on the known material (see Commissioner for ACT Revenue v Alphaone Pty Limited (1994) 49 FCR 576 at [592]).

20. `Information' is capable of different shades of meaning depending on the context (Win v MIMA [2001] FCA 56 at [18]). In Win the Full Court of the Federal Court emphasised the concluding words in the Oxford English Dictionary definition of `information' as follows: `knowledge communicated concerning some particular fact, subject or event; that of which one is appraised or told'.

21. In Carlos v Minister for Immigration & Multicultural Affairs [2001] FCA 1087 at [29] - [33] it was held that an opinion on legal issues and the interpretation of provisions of the Act or regulations prepared by a Tribunal officer was not information for the purposes of s359A (the equivalent of s424A in the context of Migration Review Tribunal proceedings). In that case the Full Court of the Federal Court pointed out that the relevant Division of the Migration Act made a distinction between `information' and `comment' (reference was made to ss359B and 359C which are the equivalent of ss424B and 424C) and stated that: "the word `information' is used to refer to a statement by way of an assertion of fact, whereas `comment' is used to refer to an observation about facts" (at [30]). Hence, legal comment was not `information' within s359A. Similar observations may be made about Division 4 of Part 7 of the Act in which s424A appears. The case law explaining applicable legal principles is not a statement about the applicant's factual situation.

22. As recognised in VAF section 424A(1) codifies at least, in part, principles of procedural fairness. Such principles do not require a decision-maker to advise an applicant about case law explaining the applicable legal principles. The concept of `information' is also used in s424, which provides that 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. This obligation provides another indication that the notion of `information' in this part of the Migration Act is clearly focussed on knowledge about material facts or circumstances. `Information' has the same meaning in s424 as in s424A. (See Win and also WAGP v MIMIA [2002] FCAFC 266). In Mohammed v MIMIA [2000] FCA 277 Emmett J referred to the equivalent of s424 for the Migration Review Tribunal (s359) as throwing some light on what is intended by the term `information' in s359A (the equivalent of s424A). His Honour suggested at [17] that the use of the term in s359 signified `matter or facts or data which can be obtained from some source and which would not otherwise be available to a Tribunal member. It does not signify the words of the statute or the regulations pursuant to which a decision is being made'. His Honour rejected an argument that the object of s359A was to ensure that the applicant was aware of the `issues'.

23. Consistently with these decisions and having regard to the context in which s424A appears, I am of the view that `information' in s424A does not extend to case law.

24. Moreover the only information that is within s424A is information `that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review' (see s424A(1)(a)). In VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 Finn and Stone JJ indicated that s424A does not apply to every item of information referred to in the statement of reasons, but only that which related to the reason for the Tribunal decision. Their Honours stated at 30:

The information concerning the appellant's behaviour clearly was not "the reason" for the Tribunal's decision. But was it "a part of the reason"? As we have indicated, the Tribunal considered it to have some relevance to the determination to be made. The Tribunal's treatment of that information (ie the "significance" attached to it) equally had a place in its reasoning process. However, it is not necessarily the case that for either or both of these reasons, the circumstances attract the obligation of s424A(1)(a). The subsection itself requires identification of the reason for affirming the decision under review.

25. In other words, as their Honours went on to say, when a Tribunal's reasons are to be evaluated for s424A(1) purposes: "The Court as a matter of judgment is required to isolate what were the integral parts of the reasons for the Tribunal's decision".

26. In this instance the Tribunal gave a number of reasons for its lack of satisfaction that the applicant had a well-founded fear of persecution. While expressing doubt it proceeded on the basis that the applicant was a member of the Ahmadiyya faith, but, on the basis of independent evidence did not accept that Ahmadis, or converts to the faith, had a well-founded fear of persecution in Bangladesh. It found the specific claims of the applicant as to past harm to have been fabricated and even if accepted, that they did not point to a real chance of harm in the future. It did not accept that his claims about his family were credible. In any event the claimed mistreatment did not amount to persecution. In these circumstances it was not satisfied that the applicant had a well-founded fear of persecution.

27. The cases referred to in the amended application appear in the early part of the Tribunal reasons for decision after the Tribunal set out Article 1A(2) of the Refugees Convention and stated that the High Court has considered this definition in a number of cases `notably'... (It then listed the relevant cases as well as the decision in MIEA v Guo & Anor (1997) 191 CLR 559 although this is not referred to in the amended application). The Tribunal also explained how sections 91R and 91S of the Migration Act now qualified some aspects of Article 1A(2) and described each element of the Convention definition. This description of the law picked up on some aspects of some of the cases relied upon such as the proposition from Chan Yee Kin v MIEA (1989) 169 CLR 679 that a `real chance' is one that is one that is not remote or insubstantial or a far-fetched possibility. The concept of real chance of harm was relevant, for example, to the Tribunal consideration of the attacks which the applicant claimed had occurred. It was not satisfied that, given the random and isolated nature of such attacks, the availability of state protection and independent information on the then situation of Ahmadis in Bangladesh, such attacks pointed to a real chance of harm in the future.

28. The `information' that formed the reason or part of the reason in this part of the Tribunal decision was not the legal principle or principles established by any of the relevant High Court cases but rather the Tribunal knowledge of and about facts and circumstances and the independent evidence before it. The Tribunal reasoning which involves the application of legal principles (in relation to matters such as well-founded fear and concepts such as a `real chance') to the factual findings made by the Tribunal, is not information forming the reason or part of the reason for affirming the decision under review. In contrast, it may be said, for example, that the independent evidence referred to by the Tribunal in support of its views in relation to the treatment of Ahmadis in Bangladesh would be information forming part of the reason for affirming the decision (although s424A(3)(a) would apply to such information).

Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia