Case: SZITH v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FMCA 1162
Outcome: cited
The appellant was questioned about matters going to the extent of his involvement in the AL, the sophistication of his knowledge about the AL's stated policy platforms, and the nature of the electoral system in Bangladesh: SZITH v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FMCA 1162 at [29] and [60]. All of those matters clearly related to the issues that had arisen from the delegate's decision (and, in the First Tribunal hearing) about the level of his political profile. 27 The questions did not raise, nor challenge, as an issue his claimed membership of the AL over many years, or his desire to continue to be a member of the AL upon his return to Bangladesh. 28 On 9 November 2006, the Second Tribunal affirmed the decision of the Delegate of the Minister. 33 In the judicial review proceedings from the Second Tribunal, Driver FM found (in SZITH [2007] FMCA 1162) at [60] - [62] : 60. The real issue, however, is whether the [appellant] was given an opportunity to deal with the issue of whether he was a member of the Awami League as he had claimed. He was clearly on notice from the decisions of the delegate and the first Tribunal that the issue of the particular offices that he held, and the degree and duration of his involvement in the Party, were live issues. Both the delegate and the first Tribunal had, however, accepted that the [appellant] was a member of the Awami League as he had claimed. The presiding member, at the hearing conducted by the second Tribunal, did say that he would be "undertaking a completely new examination of [the] application". It is also true that at the hearing conducted by the second Tribunal the [appellant] was questioned at length about his asserted activities as a member of the Awami League. At no stage, however, was the appellant put on notice that his very Party membership, which had previously been accepted, was in issue. 61. Neither did the letter sent to the [appellant] pursuant to s 424A of the Migration Act , put the [appellant] on notice that his membership of the Awami League was in issue. Rather, it would have had the reverse effect. The "information" relied upon by the Tribunal to find that the [appellant] was not a member of the Awami League was disclosed in that letter on the basis that the information might indicate "that your claims to have been an active campaigner on behalf of the Awami League in the 2001 election were not accurate". Thus, the [appellant] was given to understand that his inability to name his local Parliamentary constituency accurately might be used for a limited adverse purpose, whereas it was ultimately used for a much more fundamental adverse purpose. 62. It follows, and I find, that the Tribunal fell into the same jurisdictional error as was identified by the High Court in SZBEL. In order for the [appellant] to be given an effective hearing opportunity pursuant to s.425 , he needed to be able to deal with the proposition, not only that he did not hold the offices in the Party that he claimed and was not actively involved as he claimed but also that he was never a member of the Awami League at all as he had claimed. The second Tribunal made a far more fundamental adverse credibility finding against the appellant than had the first Tribunal and the delegate. The second Tribunal needed to put the appellant on notice that that more fundamental adverse credibility finding was in prospect in order for the hearing opportunity afforded the [appellant] to be a real one. 34 A similar argument is now sought to be raised in relation to the process undertaken by the Third Tribunal. Although the application before the Federal Magistrate claimed that a breach of s 425 occurred, this focused only on the failure to provide the appellant with an opportunity during the hearing to listen to parts of the tapes of the previous hearings concerning the particular issues which the appellant was being questioned in the Third Tribunal hearing. 35 Leave is now sought to have this Court consider the additional aspect of breach of s 425 of the Act as found by Driver FM in the Second Tribunal hearing. 40 I accept that there was no identification of this issue in any of the invitations to hearing issued to the appellant following the remittal by the Federal Magistrate's Court. Again, the s 424A letter which was issued after the hearing suffered from the same deficiencies identified by Driver FM in SZITH FMCA 1162 at [61], in that it did not specifically identify the mere membership of AL as a separate issue.