FEDERAL COURT OF AUSTRALIA

SZALF v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1065

MIGRATION – no issue of principle

Judiciary Act 1903 (Cth) s 39B

Federal Court Rules 1976 (Cth) O 52 rule 13(2)(b)

SZAIL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 266

SZAXN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 275

SZAQW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 635

SZAKU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 892

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699

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

SZALF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 694 OF 2004

CONTI J

28 JULY 2004

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from the orders and reasons for judgment of Federal Magistrate Driver made and given on 23 April 2004 and 30 April 2004 respectively, whereby his Honour dismissed the appellant’s application purportedly brought pursuant to s 39B of the Judiciary Act 1903 (Cth) for review of the decision of the Refugee Review Tribunal (‘the RRT’) made on 28 February 2003 and handed down on 21 March 2003.  The Tribunal decision had affirmed the decision of the Minister’s delegate made on 29 March 2001 not to grant the appellant a protection visa.

2                     In terms of recitation of background facts and circumstances bearing upon the current appeal, I repeat paragraph [1] of Driver FM’s reasons which adopt the written submissions of Mr Beech-Jones, counsel for the Minister appearing before his Honour:

‘The applicant is a citizen of Bangladesh.  He was born on 12 December 1974.  He arrived in Australia on 20 October 2000.  On 1 December 2000, he lodged an application for a protection visa.

The applicant claimed that he had a well-founded fear of persecution upon his return to Bangladesh for reasons of his political opinion.  The evidence said to support his claims were set out in a statutory declaration that accompanied his application, a letter and accompanying material enclosed with the application, a letter from his solicitors dated 6 December 2002 enclosing further material, a letter from his solicitors dated 9 December 2002 enclosing further material and a further letter from his solicitors dated 7 January 2003 enclosing various documents, statements and submissions material.

The particular claims made by the applicant which were said to support his application were:

(i)                 in 1992 the applicant became involved in the student wing of the Jatiya Party;

(ii)               after he finished his studies he joined a local branch and was elected to vice-president;

(iii)             on 6 December 1994 he was participating in an anti-BNP government demonstration and after that came into conflict with BNP activists and cases were filed against him with the local police;

(iv)             on 3 October 2000 he was attacked by four people who snatched a bag and he believed his assailants were active members of the local Awami League branch;

(v)               on 9 November 2000, after the applicant had left Dhaka, two of his friends were shot and the suspects in both killings were Awami League activists.

The effect of the material which was submitted by the applicant’s solicitors under cover of their letters dated 1 December 2000, 6 December 2002 and 9 December 2002 was summarised in the RRT’s decision.  In broad terms they addressed the politically unstable position in Bangladesh and the non-observance of human rights standards.  The material enclosed under cover of the letter of 7 January 2003 included a statement from a former Prime Minister of Bangladesh and various statements and documents purporting to demonstrate that the applicant had been charged.

The RRT decision

In its decision, the RRT set out the constituent elements of the definition of a refugee, summarised the documentary evidence submitted by the applicant, and what was discussed during the hearing held before it on 7 January 2003 and a further telephone hearing on 28 January 2003.  In summary, the RRT found as follows:

(i)                 the RRT accepted the applicant was a national of Bangladesh;

(ii)               the RRT accepted the applicant was a member of the Jatiya Party but considered he had a low political profile;

(iii)             the RRT did not accept that he had been subjected to any actual harm or mistreatment which might be capable of amounting to persecution;

(iv)             the RRT did not accept that the applicant would be targeted if he returned to Bangladesh;  it noted the Awami League was no longer in power and that the BNP had a “neutral” attitude towards the Jatiya Party;

(v)               the RRT did not accept that there had been any false cases or indeed any cases lodged against the applicant by the BNP as he alleged.  It did so because it considered that the applicant had contradicted himself as to who initiated the cases, first stating it was the BNP and later saying it was the Awami League.  It did not attach any weight to the letters, accepting independent evidence concerning the prevalence of document fraud.  It dismissed the evidence of a witness for the applicant, the Hon. K.Z. Ahmed, whom the RRT considered had no direct knowledge of the relevant events.

Accordingly, the RRT affirmed the delegate’s decision.’

3                     The notice of appeal filed 7 May 2004 contained the following purported grounds (reproduced literally):

‘2.        The single Judge of the Federal Magistrates Court in his Honors Judgment delivered on the 23 April 2004 failed to find error of law, Jurisdictional error, Procedural fairness and relief Under Section 39B of the Judiciary Act 1903.

3.         The grounds and relief is very much similar with the recent High Court Judgment – Muin v refugee review Tribunal, Lie v Refugee review Tribunal [2002] HCA 30 (8 August 2002).  Catchwords: Immigration – Refugee – Protection Visa – Decision by Minister to refuse application for visa – review of decision by Refugee Review Tribunal – Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Registrar for purpose of review – Nature and extent of Obligation – Migration Act 1958 (Cth), ss 148(3), 424(1).

4.                  The Honorable trial judge erred in considering the real state of affairs of the applicant, the applicant feared harm.  And also the present ruling government fail to protect civilian life, which is a worldwide concern today.  BNP is a Muslim dominated ruling party in Bangladesh, Honorable Trial judge did not take it into consideration.

5.                  S474 of Migration Act is ineffective as per the recent two decisions of the High court of Australia.  Honorable trial judge did not consider this in favour of me.

6.                  The applicant will face persecution if she returns to his country of origin as there are significant level of violation of human rights, this was not considered by honourable judge.

7.                  Recent High Court judgement: Plaintiff S 157/2002 v Commonwealth of Australia [2003] HCA (14 February 2003).

8.                  Recent Federal Court of Australia judgment: SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74 (14 February 2003).

9.                  I will file more Grounds later.  I did not receive the copy of judgement yet.’

It should be observed that no further grounds of appeal were lodged by the appellant, as he foreshadowed, despite the appellant subsequently receiving his Honour’s reasons.

4                     As well as both the appellant and counsel for the respondent indicating they relied primarily on their written submissions, oral submissions were respectively made to the Court.  At the conclusion of addresses, I dismissed the appeal with a view to publishing reasons for judgment in due course.  Those reasons are now set out below. 

5                     The purported grounds of appeal are identical in form to four other appeals from the Federal Magistrate’s Court I have heard this year: see SZAIL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 266; SZAXN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 275; SZAQW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 635; and SZAKU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 892.  As was stated in those previous reasons for judgment, it is readily apparent that paragraphs 2, 3, 7 and 8 of the purported notice of appeal do not specify any viable grounds of review, but merely re-state the decision appealed from, and refer to case law in general terms, without in any way purporting to relate or apply the same to the circumstances and matters set out in the reasons for judgment of Driver FM below, or otherwise to explain the relevance of the same to any alleged circumstances of the appellant.  None of that material satisfies the requirements of Order 52 rule 13(2)(b) of the Federal Court Rules 1976 (Cth), which require an appellant to state ‘briefly, but specifically the grounds relied upon in support of the appeal’.  Moreover the general assertions the subject of grounds 4, 5 and 6 do not establish any viable basis for impugning the reasons for judgment below.

6                     As was the case before Barnes FM, the appellant had prepared written submissions with the assistance of a so-called ‘friend’.  These written submissions seemed to supplant the purported grounds in the notice of appeal, as there was no apparent link between the two.  Given the fact the appellant was self-represented, I thought it prudent to allow the appellant to rely on his written submissions, as well, albeit that the effect thereof was to amend his notice of appeal in this manner.  This was the course adopted by Barnes FM in similar circumstances.

7                     The appellant’s purported written submissions are reproduced literally below:

‘3.        I am not satisfied that the Tribunal made it’s decision according to law.  I also believe that the Judgement of his Honour the Federal Magistrates Court was not free from errors.

The Tribunal erred in Law:

4.                  The Tribunal raised the issue of document fraud in Bangladesh.  I explained the matter and invited to make investigation.  My invitation was refused by saying that it was not possible for the Tribunal since it is difficult.  Thus the Tribunal breached section 427(1)(d) of the Migration Act 1958…

5.                 The Tribunal depended on the information provided by the agencies who actually worked for the Government.  Definitely no persecutor or its collaborators would confess the persecution they were doing.  Hence, The Tribunal’s such dependence on that sort of country information which could be affected with self defensive arguments by the prosecutors.

6.                 The Tribunal erred in law by not considering the independence of the Courts in Bangladesh while huge backlogs of cases were reported to the Tribunal.

The Judgement of the Federal Magistrates Court:

7.                 His Honour the federal magistrates Court in his Judgement (Paragraph 13) ruled that there was no error of law made in the Tribunal nevertheless the fact that the Federal Magistrates accepts that the applicant was not provided with all the Country Information that the tribunal relied on.

8.                 The Federal Magistrates court was satisfied such a refusal to release any information adverse to my claim did not conduct an error of law.’

8                     Counsel for the respondent’s written submissions identified two issues flowing from the appellant’s written submissions:

‘(i)       Whether, by failing to investigate the authenticity of the appellant’s documents, the Tribunal breached s 427(1)(d) and, if so, whether that breach constituted a jurisdictional error; and

(ii)       In circumstances where the Federal Magistrate found that the applicant was not provided with all the country information whether his Honour erred by finding that there was no error of law.’

9                     The first issue was dealt with by Barnes FM by adopting the submissions of counsel for the respondent below as follows:

‘The second and third paragraphs on page 2 of the applicant’s submissions appear to assert that the RRT failed to investigate the issue of document fraud in Bangladesh.  In fact the RRT had a considerable amount of material before it concerning the existence of document fraud (court book, pages 262-263) and as conceded by the applicant, discussed it with him during the hearing (court book, page 258.8).  In those circumstances, it is submitted there was neither any failure to afford the applicant procedural fairness nor any remaining duty upon the RRT to make inquiries (see Minister for Immigration v Teoh (1995) 183 CLR 273, 289-290 (per Mason CJ and Deane J)).’

10                  I agree with his Honour in this regard and further observe the dicta of Gleeson CJ in the recent High Court decision of Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21 – 22 (with whom Callinan J agreed at 49), where his Honour says:

‘[W]hilst s 427 of the Act confers power on the tribunal to obtain a medical report,the Act does not impose any duty or obligation to do so.  Rather, s 426provides that, even if an applicant requests that the tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the tribunal is not required to obtain such evidence.  Thus, the tribunal is under no duty to inquire.’

11                  The second issue raised in the appellant’s written submissions attacks paragraph [13] of his Honours reason, which state:

‘It is possible that the RRT may have failed to disclose to the applicant the relevant country information that was relied upon by the RRT in making its decision.  If there was such a failure there is no evidence of bad faith.  In addition, I am satisfied that if there was such a failure there was no practical unfairness.’

The background to this failure to disclose stems from a request made by the appellant’s adviser to forward country information that it was going to rely on and which it raised in the RRT hearing.  In response to that request, the RRT sent a facsimile on 13 January 2003 which cited a DFAT country information report entitled ‘Current Political situation in Bangladesh’ and dated 13 December 2001.

12                  It is apparent from the reasons of the RRT that reliance was also placed on another report, being DFAT Report No. 195, dated 10 January 2002, which stated:

‘Local officials have advised that they have clear instructions from the new Government (from the PM down) to maintain peace and communal harmony.  We have been told that the local authorities would not hesitate to move against BNP or Alliance activists, if they were suspected of criminal activity or of inciting communal violence.’

His Honour accepted that the ‘RRT decision was based in part upon the DFAT report’ (ie No. 195 dated 10 January 2002), but recorded that the facsimile of 13 January 2003 also included the following sentence:

‘If you have any further requests for country information references arising out of the hearing would you please inform the contact officer at the Tribunal on the above number.’

13                  After hearing from the appellant that ‘he and his legal advisers had submitted to the RRT all relevant information on the issue that was then available to him’, his Honour proceeded to question the appellant on his discussion with the presiding member of the RRT with respect to country information, and on the appellant’s further consultation with his legal advisers after the hearing.  Ultimately, in relation to country information, his Honour thus concluded:

‘The applicant was made aware of the issue at the RRT hearing.  He had the opportunity which he took to submit relevant information to the RRT on that issue.  On his own evidence, he could not have done anything further.  In the circumstances, I find that there was no jurisdictional error committed by the RRT in the event that it did fail to disclose to the applicant a copy of DFAT report 195.  The substance of the report was disclosed at the hearing and the applicant did all that he could have done to deal with the issue.’

14                  I agree with this conclusion and observe that the approach taken by Driver FM is consistent with the decisions taken in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699 and Stead v State Government Insurance Commission (1986) 161 CLR 141.  There was no evidence of bad faith on the part of the RRT and clearly the appellant, on his own evidence, could not have rightly advanced his case further than he did.

15                  In the result, Driver FM held below that no jurisdictional error had been established on the basis of the material placed before him, and justifiably dismissed the appellant’s application for review.  I agree with his Honour’s conclusions and the reasons which he furnished in support thereof.  I dismiss the appeal and order that the appellant pay the respondent’s costs.

Associate:

Dated:              17 August 2004