SZITH v Minister for Immigration and Citizenship

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 10 December 2008
• Neutral Citation: [2008] FCA 1866
• Date: 10 December 2008

FEDERAL COURT OF AUSTRALIA

SZITH v Minister for Immigration and Citizenship [2008] FCA 1866

ADMINISTRATIVE LAW – procedural fairness – apprehended bias – prejudgment

ADMINISTRATIVE LAW – procedural fairness – failure to provide transcript and recordings to appellant – appellant already possessed transcript and recordings – inquisitional process – tribunal not obliged to play recordings of previous hearings – no breach

EVIDENCE – discretion to refuse evidence – evidence relevant to issue in dispute – discretion miscarried

PRACTICE AND PROCEDURE – whether to allow evidence outside time for filing – need to adjourn final hearing – case management – principles of justice – justice prevails over breach of court order

Migration Act 1958 (Cth) s 36, s 424A, s 424AA, s 425

Black Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623 cited

Bloch v Bloch (1981) 180 CLR 390, 395-96 cited

De Silva v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 364 cited

Kopalapillai v Minister for Immigration (1998) 86 FCR 547 cited

Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 cited

Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 cited

Platcher v Joseph [2004] FCAFC 68 cited

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 cited

Sali v SPC Ltd (1993) 116 ALR 625 cited

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 cited

SZEUI v Minister for Immigration and Citizenship [2008] FCA 1338 cited

SZITH v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FMCA 1162 cited

SZKMS v Minister for Immigration and Multicultural Affairs (2008) FCA 499 cited

SZKOB v Minister for Immigration and Citizenship [2007] FCA 1949 cited

SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 cited

SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 cited

SZLWI v Minister for Immigration and Citizenship (2008) 171 FCR 134 cited

SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701 cited

SZITH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1414 of 2008

MIDDLETON J

10 DECEMBER 2008

MELBOURNE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	NSD 1414 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZITH Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	MIDDLETON J
DATE:	10 DECEMBER 2008
PLACE:	MELBOURNE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The matter be remitted to a differently constituted Federal Magistrates Court for a re-hearing and reconsideration only of the issue of bias taking into account any admissible evidence of Mrs Peterson adduced by the appellant.

3. There be no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	NSD 1414 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZITH Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	MIDDLETON J
DATE:	10 DECEMBER 2008
PLACE:	MELBOURNE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

1 This is an appeal against a judgment of a Federal Magistrate of 19 August 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal of 17 January 2008. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant pursuant to s 36 of the Migration Act 1958 (Cth) (‘the Act’).

BACKGROUND

2 The appellant is a citizen of Bangladesh who arrived in Australia in December 2005. On 21 December 2005 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 3 January 2006. On 10 January 2006 the appellant applied to the First Tribunal for a review of that decision. The First Tribunal affirmed the decision of the delegate on 27 March 2006. The appellant applied for judicial review of that decision, and on 13 July 2006, the Federal Magistrates Court ordered, by consent, that the matter be remitted to a Tribunal. On 9 November 2006, a differently constituted Tribunal affirmed the decision of the delegate (‘the Second Tribunal’). The appellant applied for judicial review of that decision, and on 31 July 2007, the Federal Magistrates Court ordered that the matter be remitted to a third Tribunal. This appeal concerns the decision of the third Tribunal, heard before Mr Short (‘the Third Tribunal’).

3 The appellant claimed to fear persecution in Bangladesh for reason of his political opinion. He claimed to be a member of the Awami League (‘the AL’) and to fear harm from members of the rival Bangladesh National Party (‘BNP’) and Jamaat-Islami (‘JI’). The appellant claimed that he had worked for the AL in his local district, where he was its Publications Secretary from 1982 until 1985. He claimed that he was threatened and attacked by BNP and JI members in 1991, and made the subject of false charges of murder and robbery in 2002; a warrant had been issued for his arrest on 20 May 2002. The appellant claimed that he left Bangladesh on his own passport in February or March 2003 to join a cargo ship in Europe, and returned in January 2004 using his own passport, before again leaving to Australia in October 2005. He claimed that his son had been arrested for three days in 2004, and that he had been told his son had disappeared in February 2006, and that the appellant feared he had been kidnapped.

THIRD TRIBUNAL DECISION

4 The Third Tribunal found that the appellant was not a witness of truth. In particular, it found that the appellant’s evidence was inconsistent and not credible. The Third Tribunal:

· did not accept that the appellant was telling the truth about his involvement in the AL or the problems he claimed to have experienced as a result of that involvement;

· having regard to the view it formed about the appellant’s credibility, did not accept that the appellant was ever involved with the AL or with its student wing Chhatra League;

· did not accept that the appellant ever held any position in the party;

· did not accept that members of BNP or Jamaat Shibir made false allegations against the appellant at any time;

· did not accept that, as a result of false allegations, the appellant had been charged with offences in Bangladesh and that a warrant had been issued for his arrest; and

· did not accept that since May 2002 the police in Bangladesh had been looking to arrest him, nor that they arrested and questioned his son in 2004, nor that the appellant’s son had been subsequently kidnapped, nor that his family thought that his son had been kidnapped because there had been no news of him.

5 The Third Tribunal, therefore, did not accept that there was a real chance that the appellant would have any involvement in political activity if he returned to Bangladesh, or that he would be persecuted for his actual or imputed political opinion.

THE FEDERAL MAGISTRATES COURT

6 Before the Federal Magistrate, the appellant contended that there was a denial of procedural fairness on the basis that (at [13]):

(i) The [Third] Tribunal failed to take into consideration the appellant’s psychological state as disclosed in a report of Dr Tyagi Ph.D on letterhead of “Transcultural Mental Health Centre” dated 30 September 2007, which had been presented in support of an adjournment of a hearing originally appointed for 10 October 2007.

(ii) The [Third] Tribunal failed to take into account and implement the requests of Ms Stotz [appearing on behalf of the appellant] in a pre-hearing submission dated 1 November 2007 that it should put in place a list of strategies to assist the applicant at the hearing, including by framing its questions simply, giving the applicant free access to documents upon which he was questioned, and providing written transcripts of his previous evidence.

(iii) In the course of the hearing, the [Third] Tribunal did not provide a copy of transcripts of previous hearings nor play relevant parts of the tapes to the applicant, before questioning him about inconsistencies in his evidence.

(iv) In the course of the hearing, the [Third] Tribunal “did not provide him with a clarified question nor an opportunity to make further comments before he made his final decision”.

(iv) Concerning “the issue of the [appellant’s] son”, the [Third] Tribunal “should have, but did not, provide [the appellant] with the opportunity to fully discuss this important issue. [The Tribunal] did not treat it as a credibility issue”.

7 The Federal Magistrate, in considering the Third Tribunal’s decision in light of the claims made by the appellant, found that none of these criticisms were shown to have any substance. In relation to the alleged failure by the Third Tribunal member (Mr Short) to take into account the appellant’s psychological state, as disclosed in a report of Dr Tyagi, his Honour found that the Third Tribunal had undoubtedly taken the report into account. Indeed, no further adjournment was requested by the appellant, and no evidence was presented by the appellant to show an incapacity to participate...