FEDERAL COURT OF AUSTRALIA

SZAZD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 452

SZAZD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1802 OF 2004

EMMETT J

21 MARCH 2005

SYDNEY

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

1.         the appeal be dismissed;

2.         the appellant pay the Minister’s costs in the sum of $2000.

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

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

1                     The appellant is a citizen of Bangladesh.  He arrived in Australia on 31 July 2001.  On 14 August 2001 he lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’).  On 24 June 2002 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa.  On 11 July 2002 the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision.

2                     On 28 May 2003 the Tribunal made a decision affirming the decision not to grant a protection visa.  Reasons for that decision were published on 24 June 2003.  Thereafter, the appellant sought Constitutional writ relief in respect of the decision of the Tribunal.  On 29 March 2004 he filed an amended application in the Federal Magistrates Court seeking Constitutional writ relief.

3                     On 17 November 2004 the Federal Magistrates Court dismissed the appellant’s application and ordered him to pay the Minister’s costs in the sum of $4,250.  By notice of appeal filed on 6 December 2004, the appellant appeals to this Court from the orders of the Federal Magistrates Court.  The Chief Justice has directed that the appeal be heard by a single judge.

4                     On 11 February 2005, I directed that the appellant file and serve written submissions seven working days prior to the hearing date, which was fixed for 21 March 2005.  No written submissions have been filed.  When the appellant was invited to address the Court in support of his appeal, he simply said that the Tribunal did not consider his case properly.

5                     Having regard to the fact that the appellant appears in person, without the assistance of legal representation, I shall say something more about the case than the lack of particulars would otherwise suggest was appropriate.  The appellant has been assisted by an interpreter in the Bengali language. 

6                     The grounds upon which the applicant claimed Constitutional writ relief in the Federal Magistrates Court were as follows:

·        the Tribunal failed to take a relevant consideration into account;

·        the Tribunal’s conclusion was not based upon reasoning that provided a rational or logical foundation.

7                     The particulars given for both grounds are that, in assessing the chance of the appellant being arrested on his return to Bangladesh, the Tribunal failed to consider the fact that the arrest warrant he now faces was based upon his conviction in August 2001, after he came to Australia.

8                     The grounds of appeal to this Court are formulaic and have clearly not been drafted by the appellant.  They are as follows:

‘2.        The Single judge of the Federal Magistrates Court in her Honours Judgment delivered on the 17 November 2004 failed to find error of law, jurisdictional error Procedural fairness and relief under Section 39 B of the Judiciary Act 1903.

 3.        The grounds and relief is very much similar with a recent High Court judgment- Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002)…

 4.        The Honourable FM erred in considering the real state of affairs of the applicant... 

 5.        S474 of the Migration Act 1958 is ineffective… 

 6.        I will face persecution if I return to my country of origin… 

 7.        Recent High Court judgment: Plaintiff S 157/2002 v Commonwealth [2003] HCA 1 (4 February 2003). 

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

9                     The Tribunal indicated in its reasons that it was satisfied that the appellant is a Bangladeshi national and that he arrived in Australia in July 2001.  The Tribunal said that the appellant claimed to fear that if he returns to Bangladesh he will be arrested and gaoled because he has been convicted on charges brought against him by the then Awami League Government.

10                  The Tribunal did not accept that the appellant was charged or convicted of serious offences by the Awami League Government.  The Tribunal observed that the appellant had submitted documents that purported to support the claim.  However, the Tribunal also referred to evidence that the submission of fraudulent documents by Bangladeshi asylum seekers is widespread.  Nevertheless, the Tribunal accepted that that of itself was not evidence that these particular documents were fraudulent, but considered that it was an indication that the documents should not be relied upon to prove, of themselves, the appellant’s claim that he had been charged and convicted.

11                  The Tribunal characterised the appellant's evidence in support of his claims as ‘weak, inconsistent and unconvincing’.  The Tribunal considered the appellant was prepared to adjust his evidence to fit any new information and gave some examples.  At first, when asked why he had returned to Bangladesh three times after February 2000, the appellant said that the alleged charges arose from a 2001 incident.  When told that the purported court documents stated the incident took place in February 2000, the appellant was unable to give a convincing reason why he had returned to Bangladesh on three occasions after that date.  Nor could the appellant give an explanation that was convincing to the Tribunal as to how, if he had been charged with serious offences, he had been able to avoid arrest in Bangladesh despite leaving and re-entering Bangladesh on his own passport three times.

12                  While the Tribunal accepted that it was possible that the appellant had been a supporter of the Freedom Party as he alleged, the Tribunal did not accept that the appellant had been charged or convicted of any offence because of any political activity, or that the appellant had been seriously harmed because of any political activity.  The Tribunal considered that, if the appellant was involved in political activity in Bangladesh, there was insufficient reliable evidence on which to conclude that such activity would place him at any risk of persecution in the future.  The Tribunal referred to the fact that, on the country information cited by it, the Awami League Government had lost power.  The Tribunal could find no evidence that the present government was seeking to harm former or present Freedom Party activists.

13                  Having considered the evidence as a whole, the Tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Refugees Convention, as contemplated by s 36(2) of the Act.  Contrary to the assertion made by the appellant on the hearing of the appeal today, the reasons of the Tribunal indicate that the Tribunal did consider the specific allegations and claims made by the appellant.  It simply did not accept them, because of the lack of any corroboration and the fact that the document produced by way of corroboration was inconsistent with the claims that were made. 

14                  In her reasons, Barnes FM referred to the grounds in the amended application and observed that neither ground established a jurisdictional error.  Barnes FM observed that it is clear from the Tribunal’s reasons that the Tribunal understood the appellant’s claims, including the fact that the arrest warrant was based upon a conviction after the appellant left Bangladesh.  The claim that the Tribunal failed to consider that ground was, in her Honour’s opinion, not established.  As her Honour observed, the Tribunal, in fact, considered both the claims of charges and convictions.  The Tribunal simply did not accept that the appellant had been charged or convicted of serious offences while the Awami League Government was in power.

15                  Barnes FM observed that that finding of the Tribunal was based on matters of credit, including the manner in which the appellant gave his evidence, and the fact that he seemed prepared to adjust it to accommodate any new information.  Her Honour considered that there was no basis for the assertion that the Tribunal’s reasoning had no rational or logical foundation.  Her Honour observed that the Tribunal’s conclusions were open to it, for the reasons that it gave.  Her Honour also observed that there was nothing in the material before her to suggest that there was any lack of procedural fairness on the part of the Tribunal, as was contended in written submissions filed by the appellant in the Federal Magistrates Court on 9 November 2004.

16                  Her Honour observed that those submissions consisted of a document of some 26 pages in very general form, and that it was in a form that had been submitted to the Court in other matters concerning other applicants.  Her Honour considered that it did not address the specifics of the appellant's claims in any detail.  Nevertheless, her Honour considered the matters raised in the document, bearing in mind that the appellant was appearing without legal representation.

17                  Barnes FM considered the possible application of s 424A(2), although that matter was not raised in this Court.  Her Honour considered there was nothing in the material before her to suggest that any information relied upon was put to the appellant in writing in the manner that was required by s 424A(2) of the Act.  Her Honour observed that a mere failure to comply with the procedural requirements of s 424A(2) is not jurisdictional.

18                  In any event, Barnes FM considered that any such breach would be, at best, a technical breach.  Her Honour found that the appellant had the information put to him, and in that sense there was no failure to comply with the essential element of s 424A(1) that the Tribunal give to the appellant particulars of information it considers to be the reason, or part of the reason, for affirming the decision under review. 

19                  I do not consider that any error has been demonstrated on the part of the Federal Magistrates Court.  It follows that the appeal should be dismissed.

20                  The Minister asks for her costs of the application.  There is no reason why the usual practice of ordering an unsuccessful appellant to pay the respondent’s costs should not be followed.  However, the Minister asks for an order that the cost be assessed in the sum of $2,000.  That appears to me to be a reasonable figure for the preparation of the appeal and for appearance on the hearing of the appeal.  The appellant did not want to say anything against that course.

Associate:

Dated:              18 April 2005