FEDERAL COURT OF AUSTRALIA

SZAQV v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1541

MIGRATION – asserted failure to determine material claim – asserted incorrect finding of fact – assertions not made out – appeal dismissed

Federal Court of Australia Act 1976 (Cth) s 25(1A)

Migration Act 1958 (Cth) s 422B, 424A, 424A(3)

Applicant A227 of 2003 v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCA 567 cited

Attorney-General (NSW) v Quin (1990) 170 CLR 1 applied

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1998) 185 CLR 259 cited

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

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 referred to

SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 cited

SZAQV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 876 OF 2004

HELY J

2 DECEMBER 2004

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

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 a judgment of Barnes FM delivered on 7 May 2004 in which her Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) affirming a decision of a delegate of the respondent to refuse to grant the appellant a protection visa. By direction of the Chief Justice made under s 25(1A) of he Federal Court of Australia Act 1976 (Cth) the appeal is to be heard and determined by a single judge.

2                     The appellant is a citizen of Bangladesh who left Bangladesh on 8 January 1998 and travelled to the United Arab Emirates, where he remained until he left for Australia, arriving in this country on 28 July 2001. The appellant claimed to have a well-founded fear of persecution in Bangladesh by reason of his membership of the Jatiya (or Jatio) Party (‘the Party’).

The RRT’s decision

3                     The RRT found that:

(a) many of the claims made by the appellant are vague and general, and were not satisfactorily clarified at the hearing;

(b) the appellant became associated with the Party in 1989, became a member shortly afterwards, and was ‘publication secretary’ of his small branch of twelve members between 1991 and 1992;

(c) the appellant did not have a position of influence or standing in the Party and did not have a political profile in his area;

(d) the appellant has a very limited knowledge of the Party, and this was inconsistent with his claims to be the holder of a position in the Party;

(e) independent country information establishes that the BNP government is being ‘neutral’ towards the Party; and

(f) given all of the above, there is not a real chance the appellant would experience serious harm amounting to persecution because of his Party membership if he were to return to Bangladesh.

4                     One of the claims which the appellant made to the RRT at the hearing was that a false case was lodged against him some time in 1997 as a result of violence which occurred when BNP members came to a Party meeting in July 1997. He said that he did not appear to answer the charge, but fled to Dubai, and there is now a verdict of ‘life imprisonment’ against him. The RRT made the following observations in relation to this claim:

(a) no evidence was provided to support the claim;

(b) the appellant was able to leave Bangladesh legally for Dubai some six months later (8 January 1998) using his own passport issued in his own name, without claiming that he was questioned or interrogated or had any other difficulty notwithstanding the fact that, on the face of it, he claims he was wanted on a charge so serious that he has subsequently been sentenced to life imprisonment for it;

(c) independent country information shows that the courts in Bangladesh are independent, and can be relied upon to fairly assess cases, even if a governing party’s activist does in fact file false charges;

(d) if the appellant were in fact to face a false and politically motivated charge on his return, he would receive fair treatment from the courts in Bangladesh; and

(c) this claim ‘raises questions about [the appellant’s] credibility’.

Federal Magistrate’s Court judgment

5                     The appellant relied upon three matters before the Federal Magistrate, namely:

(a) failure to determine a material claim put forward the appellant, namely that he has been the subject of a politically motivated charge that has resulted in conviction and a sentence of life imprisonment;

(b) failure to take into account a relevant consideration, namely a US Department of State Country Report on Bangladesh (dated 23 February 2001) which stated that higher courts in Bangladesh are independent, but lower courts ‘are reluctant to challenge government positions’ and ‘are more susceptible to pressure from the executive branch’; and

(c) a lack of good faith evident in the RRT’s conclusion that Bangladeshi courts are independent in the face of evidence in the Country Report that lower courts are not independent.

6                     The Federal Magistrate made the following findings in relation to these matters:

(a) whilst the RRT had not expressed its conclusions as clearly as it might, on a fair reading of the decision as a whole the RRT was not satisfied that the false charge and conviction claim was made out. In those circumstances the RRT was not required to enter into a detailed analysis of the various forms of persecution which a falsely charged and/or convicted person might encounter in Bangladesh;

(b) the RRT’s finding about the independence of Bangladeshi courts was grounded on probative material identified in its reasons for decision which was capable of supporting that conclusion in the context of the appellant’s claim that he had already been convicted and sentenced. It is not necessary for a decision-maker to refer specifically to all items of competing evidence, and in any event the position in the lower courts lacked relevance, as, on the appellant’s account, he would face an appellate court were he to seek review of the alleged conviction and sentence of life imprisonment; and

(c) lack of good faith was not established.

Appeal to the Federal Court

7                     The Notice of Appeal lists two grounds of appeal, namely failure on the part of the Federal Magistrates Court to find jurisdictional error arising from:

(a) failure by the RRT to determine a material claim of the appellant; and

(b) failure by the RRT to take into account a material consideration.

8                     Neither of these grounds is particularised. Notwithstanding the Court’s direction that the appellant file and serve an outline of submissions five days prior to the hearing of the appeal, nothing has been filed or served.

9                     When the appeal was called on for hearing the appellant appeared in person with the aid of an interpreter. He handed up a two page document styled ‘Submissions for Appellant’ which I have placed with the papers. These submissions do not address either of the grounds of appeal, but the appellant told me that he wanted to rely upon the matters which were put to the Federal Magistrate in this respect.

The submissions

10                  In par 3 of her Honour’s reasons for judgment, Barnes FM recorded that on 30 November 2001 a delegate of the respondent wrote to the appellant seeking further information and comment on information as to the current political situation in Bangladesh and other matters. No response was received from the appellant or his migration agent. The appellant’s first submission is that the Federal Magistrate erred because the judgment was based on the findings of a delegate of the respondent, but because the appellant was living outside Bangladesh, it was ‘totally impossible to supply those evidences’ sought by the delegate in the letter of 30 November 2001.

11                  There is no substance in this submission. The decision under review by the Federal Magistrate was the decision of the RRT, rather than the decision of the respondent’s delegate. The appellant’s assertion that the Federal Magistrate’s decision was made on the basis of findings of the delegate is simply not correct.

12                  The appellant’s second submission is that he was denied natural justice as the RRT did not give him the opportunity to comment on country information on which the RRT relied in coming to its decision, namely that ‘the BNP government is being “neutral” towards the Jatiya Party’ (the information referred to by the appellant had been extracted by the RRT from Department of Foreign Affairs and Trade cable CX60675). The Minister accepted that natural justice principles are relevant to the proceedings before the RRT, as s 422B of the Migration Act 1958 (Cth) (‘the Act’) was not then in force.

13                  It is clear from the RRT’s reasons that it relied upon this country information in coming to its decision. However, there was no statutory duty on the RRT to disclose the information, since s 424A of the Act had no relevant operation in relation to the information by reason of s 424A(3): Minister For Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264. As to whether there was nevertheless some common law duty to disclose, the RRT conducted a hearing at which the appellant appeared but there is no evidence as to what occurred at that hearing. The appellant has not adduced any evidence that the subject matter of the cable CX60675 was not put to him at the hearing, or that he was not otherwise unaware that the RRT proposed to have regard to that matter in coming to its decision. One simply cannot tell from a reading of the RRT’s reasons whether or not the matter was raised with the appellant. Further, had the point been taken earlier, the respondent may have wished to adduce evidence on the question.

14                  In those circumstances, leave to amend the Notice of Appeal to raise this matter at this late stage should be refused, as the necessary evidentiary foundation has not been laid for dealing with the matter.

The ground in 7(a) above

15                  If the RRT is confronted by claims of past persecution and does not make findings about those claims, then its statement of reasons and findings on material questions of fact may well reveal error: Minister For Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 348-349 [75].

16                  I agree with the Federal Magistrate that the essence of the appellant’s claim was that a false and politically motivated charge was made against him, and that in absentia he was sentenced to life imprisonment. This is clearly a material claim, and one with which the RRT was bound to deal.

17                  It is clear from the RRT’s reasons that the RRT was aware that this was a claim which the appellant made at the hearing. It is also clear that the RRT set out to deal with this claim, although the RRT does not, in express terms, state whether it accepts or rejects the claim. However, I agree with the Federal Magistrate that on a fair reading of the RRT’s decision as a whole, particularly in the context of the RRT’s ultimate conclusion, that the RRT considered and rejected the claim that the appellant had been charged and convicted in the past: see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1998) 185 CLR 259. Factors which point inexorably to that conclusion include the RRT’s finding that the making of the claim raises questions about the appellant’s credibility, the reference to the absence of any evidence to support the claim, as well as the RRT’s finding as to the circumstances of the appellant’s departure from Bangladesh. That finding is introduced by the word ‘moreover’ which suggests that the finding points in the same direction as the absence of any evidence to support the claim, but more strongly so. The RRT’s finding that the appellant would receive fair treatment from the courts if he were to face a false and politically motivated charge on his return to Bangladesh also supports the view that the RRT was not satisfied that the appellant was the victim of such a charge in the past.

The ground in 7(b) above

18                  In its reasons for decision, the RRT stated that it had regard to the material referred to in the delegate’s decision. That material included the US Department of State Country Report on Bangladesh (dated 23 February 2001). Failure by the RRT to refer specifically in its reasons for decision to a piece of country information which was before it is insufficient of itself to establish that the RRT failed to take into account a material consideration. This ground is only established if the RRT fails to take into account a matter which is made compulsorily relevant by the Act. The US Department of State Country Report does not satisfy that description. In any event, the evidence does not establish that the RRT failed to take that report into account.

19                  However, the real question is whether the RRT’s finding that the Bangladeshi courts are independent is infected by, or indicative of, jurisdictional error. The finding is a finding of fact, which it was the province of the RRT to determine. Even a wrong finding of fact is not a jurisdictional error (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (Brennan J)), although the position may be otherwise in the case of a finding which is a critical step in the RRT’s ultimate conclusion which is not supported by any evidence: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; SFGB v Minister For Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231; Applicant A227 of 2003 v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCA 567 (Lander J).

20                  In the present case, it has not been established that the RRT made a wrong finding of fact in relation to the independence of Bangladeshi courts. The RRT quoted country information which is capable of supporting its finding, and all that has been established is that there was some other material before the RRT which, if accepted, suggested that lower courts do not exhibit the same independence from governmental interference as is displayed by the higher courts.

21                  The RRT is not bound to refer in its reasons, or to discuss, material before it which is inconsistent with material which the RRT accepts.

22                  In any event, the appellant did not claim to fear persecution because false charges would be laid against him in the future (some five and a half years after he left Bangladesh), and those charges would be the subject of adjudication in the lower courts. His fear of persecution is grounded in a claim which the RRT rejected, namely that he had been sentenced to life imprisonment upon the basis of false and politically motivated charges, and that for this reason he would be put in gaol and punished if he were to return to Bangladesh.

23                  The appeal should be dismissed with costs.

Associate:

Dated: 2 December 2004