FEDERAL COURT OF AUSTRALIA

SZBNQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1033

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

Migration Act 1958 (Cth) s 418(3), 420(2)(b), 422B, 424A

Abebe v Commonwealth (1999) 197 CLR 510 cited

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

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited

NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs  [2005] FCAFC 37 applied

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 applied

Re Ruddock (in his capacity as Minister for Immigration & Multicultural Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 cited

Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 cited

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 cited

SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 cited

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 cited

SZBNQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 461 OF 2005

HELY J

28 JULY 2005

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 decision of Barnes FM given on 9 March 2005 in which her Honour dismissed an application seeking judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) affirming a decision of a delegate of the respondent not to grant the appellant a protection visa.  By direction of the Chief Justice given under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the appellate jurisdiction of the Court in relation to the appeal is to be exercised by a single judge.

2                     The appellant is a citizen of Bangladesh.  He left Bangladesh legally and arrived in Australia on 21 June 2002, travelling on his own passport.  He claimed a well-founded fear of persecution in Bangladesh by reason of his political opinion.  The appellant claimed to be a member of the Bangladesh Chattra League (‘the BCL’), the youth wing of the Awami League.  The appellant claimed to fear persecution at the hands of the Bangladesh National Party (‘the BNP’), the political opponents of the Awami League, as well as a Marxist-Leninist group called Shorboharas (or Sarbahara) because of his outspoken views and statements against that group, and the police by reason of false cases which had been registered against him in 1995.

The RRT’s findings

3                     The RRT found that:

-           whilst the appellant was a member of the BCL, and engaged in its activities, his involvement was highly localised and confined to an area known as Companiganj.  He was not engaged in political activities at a level that gave him a significant political profile in Bangladesh;

-           whilst in 1995 threats may have been made against his life by Chattra Dal (the student wing of the BNP) and by Sarbahara, no attempt was made in the following eight years to carry out those threats.  The appellant did not feel seriously threatened, and those making the threats did not seriously intend to act upon them;

-           assuming that false cases were registered against the appellant in 1995, the police had made no effort to pursue, apprehend or charge the appellant in the seven years following, which shows that the police had not taken the cases seriously and had no genuine interest in the appellant.  The appellant’s own evidence at the hearing before the RRT was to the effect that politically motivated cases are common in Bangladesh; many cases can be filed against one person; and that the police are aware of this trend and cannot be bothered looking for everyone;

-           whilst in December 1995 the appellant participated in political clashes with BNP supporters, the appellant suffered no harm.  All political parties in Bangladesh are involved from time to time in armed clashes with the police and with each other as part of the political milieu of Bangladesh.  This does not necessarily mean that there is persecution within the meaning of the Convention;

-           the appellant was not severely beaten by police whilst demonstrating at a peaceful rally on 13 March 2002 as claimed in affidavits from his brother, his uncle and a friend.  The assertion that he was so involved is contrary to the appellant’s own oral evidence given at the hearing.  The RRT was satisfied that the affidavits which he had provided in support of this claim are either fraudulent or, at least, have not been signed in good faith;

-           whilst the appellant made a speech against Sarbahara in 1994, and was then threatened by members of that organisation, the appellant was unable to provide any satisfactory explanation as to why he would be targeted by Sarbahara supporters some nine years later; and

-           the appellant’s political activities were highly localised and confined to Companiganj.  Bangladesh has a population of 130 million people and 64 districts.  From 1996 until his departure from Bangladesh the appellant essentially resided in Dhaka (which is about 100 kilometres from Companiganj) and there was no evidence that any of his opponents had made any effort to find him in Dhaka; if the appellant remained fearful of political violence in Companiganj on the basis of a newspaper report that his house in Companiganj was attacked and his brother was assaulted in April 2003 (some ten months after he had departed Bangladesh) it would be reasonable for him to relocate to a different part of Bangladesh.

4                     The RRT summarised its conclusions as follows:

‘Overall, as the Tribunal has already found, the [appellant] did not have a significant political profile, his activities were limited in scope and confined to his village, he was never seriously harmed as a result of his involvement in politics, he has not been involved in any political activities in Australia and, as he stated at the hearing, he is not interested in politics.  In the Tribunal’s view, the chance that the [appellant] would resume any involvement in political activities if he returned to Bangladesh is remote.  However, even if he did continue to engage in political activity, devoid of criminality and thuggery, at the same level as he has in the past, the Tribunal is satisfied that there is no real chance that he would face harm as a result.  In reaching this view, the Tribunal has had regard to the independent evidence before it which shows that political activists who engage only in legitimate political activities and advocacy usually have little or nothing to fear from rival political groups [citation omitted].  The Tribunal, therefore, is not satisfied that the [appellant] has a well-founded fear of persecution for reasons of his political opinion.’

The Federal Magistrates Court

5                     The Federal Magistrate, in a careful and comprehensive judgement, reviewed each of the grounds relied upon by the appellant in his amended application to that Court as well as the somewhat different grounds raised in oral and written submissions, and concluded that no jurisdictional error on the part of the RRT had been established.

6                     The focus of the appellant’s notice of appeal to this Court is upon the decision of the RRT, rather than on the decision of the Federal Magistrate.  No useful purpose would therefore be served by my repeating or summarising her Honour’s reasons for decision, although some reference to aspects of those reasons will be made hereafter.

The grounds of appeal

7                     The grounds of appeal raised in the notice of appeal to this Court are:

‘(a)      The Tribunal failed to act in a bona fide manner in relation to making of negative decision.

(b)       The Refugee Review Tribunal (the Tribunal) denied natural justice.

(c)        The Tribunal exceeded its jurisdiction in failing to accord procedural fairness as required under section 424A(1), section 418(3) of the Migration Act 1958.

(d)       The decision relied upon out-dated and generalised “Country Information” to determine the state of affairs in Bangladesh rather than specific information related to my claim.

(e)        The Tribunal failed to consider given documents and evidences in favour of my claim and did not investigate my matter at all.’

8                     On 5 July 2005 the appellant filed a document styled ‘Applicant’s Written Submissions’ of some 14 pages in length which elaborates upon some of the grounds of appeal and which raises other grounds.  The structure of the document makes it difficult to summarise, and I will not attempt to do so except to the extent necessary to explain these reasons.

Lack of bona fides

9                     Nothing has been put to me either in the document styled ‘Applicant’s Written Submissions’ or otherwise to support ground (a) in relation to the alleged absence of bona fides on the part of the Tribunal.  A Tribunal does not act in bad faith simply by rejecting a claim which is put to it.  As Federal Magistrate Barnes correctly held at [23] of her Honour’s reasons, there was nothing before the Court to support a claim of lack of bona fides or a claim that the RRT did anything other than make a genuine attempt to review the decision of the delegate.

Procedural fairness and/or natural justice issue

10                  The appellant’s written submissions assert that in the absence of clear evidence of lack of substance, the RRT was obliged to verify the authenticity of the appellant’s documents and evidence through official channels or otherwise before calling it into question.  The written submissions do not identify the ‘documents and evidence’ referred to by the appellant, but he informed me that the reference was to the affidavits provided by his brother, uncle and a friend appearing on pp 74, 76 and 78 of the Court Book, two reports issued by Amnesty International as to conditions in Bangladesh which are reproduced at pp 101, 104 and 110 of the Court Book and a bundle of photographs reproduced at p 173 and following of the Court Book purporting to show ‘horrendous crime against humanity and attacks on Awami League workers by the BNP supporters and Government militia’.  The appellant complains that the RRT made adverse findings as to the authenticity of these documents without following the procedures prescribed by s 424A of the Migration Act 1958 (Cth) (‘the Migration Act’).

11                  The RRT did find that the three affidavits were either fraudulent or that they had not been signed in good faith.  The RRT came to that conclusion because of the conflict between the terms of those affidavits and the evidence given by the appellant at the hearing.  As appears from pp 12-13 of the RRT’s Reasons for Decision, this conflict was the subject of discussion at the hearing.  The conclusion to which the RRT came in relation to the affidavits was one which it was entitled to reach on the materials that were before it.  Section 424A of the Migration Act did not apply to this information because both the affidavits and the appellant’s contrary evidence were given to the RRT for the purpose of the application for review, and were thus within the exception created by s 424A(3)(b).

12                  So far as the information emanating from Amnesty International and the photographs are concerned, it is clear from p 9 of the RRT’s Reasons for Decision that this information was before the RRT, and at p 31 of the RRT’s Reasons for Decision the RRT stated that it had carefully considered the news items and reports provided by the appellant in support of his application for review.  There is no finding by the RRT that this country information was in any respect lacking in authenticity.

13                  Presumably the appellant’s complaint is that the RRT preferred the country information to which it referred in its reasons to that put forward by the appellant.  Federal Magistrate Barnes dealt with similar arguments at [15] – [16], [21], [24], [31] – [33] and [39] of her reasons for judgment.  As her Honour found, it is not shown that the RRT failed to consider what was put forward by the appellant, or that the RRT failed to deal with any integer of the appellant’s claim.  It was a matter for the RRT to determine what weight was to be afforded to the evidence before it, including the country information.  Whether country information is accurate or reliable, and what relevance it has to a person in the position of the appellant, are questions for the RRT, rather than for the Court: see SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478.

14                  Section 424A(1) of the Migration Act does not apply to the country information in question as it falls within the exception provided in s 424A(3)(a): see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 (‘NAMW’).  The more recent decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 (‘SAAP’) does not affect the conclusion reached by the Full Court in NAMW that the obligation in s 424A(1) does not extend to information that is not about the appellant personally and is, at best, about a class of persons which includes the appellant.  SAAP does establish that a breach of s 424A (if it occurs) cannot be cured merely by putting to the person in the position of the appellant at the hearing before the RRT the substance of the adverse information, but in this case, no breach of s 424A(1) has been shown.

15                  No jurisdictional error is demonstrated by reason of any failure on the part of the RRT to verify or further investigate claims which the appellant may make.  As Gummow and Hayne JJ said in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:

‘The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor.  It is for the applicant to advance what evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason.  The tribunal must then decide whether that claim is made out.’

See also Re Ruddock (in his capacity as Minister for Immigration & Multicultural Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57].

16                  Section 422B of the Migration Act provides that Division 4 (of which s 424A forms part) is taken to be the exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.  The appellant’s submission that s 422B is not effective in excluding from the Migration Act administrative law requirements of natural justice must be rejected, because that is plainly both the intention and the effect of s 422B.  In NAMW at [139] Merkel J and I said that a consequence of the enactment of s 422B is likely to be that there is no longer an obligation on the part of the RRT to afford applicants before it a fair hearing, insofar as that requires the RRT to give those applicants an opportunity to deal with relevant matters adverse to their interest the disclosure of which is not required by s 424A(1), but which the RRT proposes to take into account in affirming the delegate’s decision to refuse to grant a protection visa.  Section 422B represents a departure from the law referred to by the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57.  The appellant’s reliance upon that case is therefore misplaced.

17                  In any event, it is apparent from p 13 of the RRT’s Reasons for Decision that the RRT put to the appellant that the independent evidence before the RRT indicated that only prominent Awami League politicians are the targets of systematic harassment, and invited his comment upon that question.  The appellant’s contention that there was some ‘imperative duty’ on the RRT to give the appellant an opportunity to respond to that information must be rejected having regard to the provisions of ss 424A and 424B and, in any event, the appellant was in fact given the opportunity to respond to the essential thrust of that material insofar as it was taken up by the RRT in its Reasons for Decision.

18                  The appellant also complains that the RRT’s findings were not supported by any positive evidence.  The RRT’s ultimate conclusion was that it was not satisfied that the appellant is a refugee.  There is no requirement that the RRT should have positive evidence before it to that effect before it can properly reach a conclusion of lack of satisfaction with the appellant’s claims.

19                  Reliance is placed by the appellant on s 418(3) of the Migration Act which obliges the Secretary to the Department of Immigration & Multicultural & Indigenous Affairs (‘DIMIA’) to give to the Registrar of the RRT documents relevant to the review.  No particulars of any breach of this section have been provided, and the appellant’s submissions do not indicate how any failure to comply with the provisions of s 418(3) could conceivably amount to a jurisdictional error on the part of the RRT.  Reliance is also placed upon an alleged breach of s 420(2)(b) of the Migration Act but this section is purely exhortative in character: Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49] and [106] – [108] and [176].

20                  The appellant also complains of a failure on the part of the RRT to provide particulars of country information in regard to document fraud in Bangladesh to the appellant, and that the RRT acted unfairly ‘in not seeking to have the arrest warrant and charge sheet’ examined by the document examination unit of DIMIA.

21                  At p 26 of the RRT’s Reasons for Decision, reference is made to independent country information as to the high level of document fraud in Bangladesh and to the prevalence of Bangladeshi asylum seekers providing false documents in support of their application.  This was not information which was required to be provided to the appellant pursuant to s 424A(1) because it fell within the exclusion contained in s 424A(3)(a): Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264.  In any event, the RRT’s lack of satisfaction that the police had a genuine interest in the appellant was not because the appellant had provided false documents in support of his application.  Rather, the RRT assumed that false cases had been registered with the police, but the RRT was not satisfied that the police had a genuine interest in the appellant by reason of seven years inactivity on the part of the police following the registration of these claims.

22                  The appellant’s complaint that the RRT acted unfairly in not seeking to have ‘the arrest warrant and charge sheet’ examined falls to the ground at the threshold, because, all other problems apart, the appellant conceded that he never provided an arrest warrant or a charge sheet to the RRT for its consideration.

23                  It therefore follows that the grounds of appeal (b) and (c) fail, as does the elaboration of those grounds contained in the appellant’s written submissions.

Grounds (d) and (e)

24                  Grounds (d) and (e) also fail for the reasons explained above, in particular because it was for the RRT to decide whether and to what extent it would rely upon ‘country information’.  The proposition that the RRT did not investigate the matter at all is without any factual foundation.

Effective protection

25                  The appellant’s written submissions assert that the Federal Magistrates Court failed to consider the question of effective state protection.  This is a matter which was addressed by her Honour in [18] of her reasons for judgment, where she correctly found that the question of effective state protection did not arise for express consideration, as that issue only arises where the RRT is satisfied that a person in the position of the appellant has a well-founded fear of persecution from some source other than the state.

Other grounds

26                  The appellant then submits that the Federal Magistrate, in [13] of her reasons for judgment, failed to understand the applicable law having regard to the judgment of the High Court in SAAP.  That decision was handed down after the decision of Barnes FM, hence it is hardly surprising that her Honour makes no reference to it.  However, there is nothing in [13] of her Honour’s reasons for judgment which is inconsistent with the decision in SAAP as [13] of her Honour’s reasons is simply an application of the decision of this Court in NAMW which is unaffected by the decision of the High Court in SAAP.

27                  In the document styled ‘Applicant’s Written Submissions’ it is asserted that the RRT based its decision on the ability to escape persecution by taking reasonable steps to avoid it but this is not the applicable test.  This submission is based upon a misconstruction of the RRT’s decision.  After a consideration of the evidence, the RRT’s conclusion was that the appellant was not exposed to a real risk of persecutory harm; it did not find that the appellant either could or should take reasonable steps to avoid persecutory harm.  However, notwithstanding that finding, the RRT went on to find that if the appellant feared persecution he could relocate elsewhere in Bangladesh.  There is no conflict between the approach taken by the RRT and the decision of the High Court in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 (‘Appellant S395/2002’).  The RRT simply applied the relocation principle described in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 (‘Randhawa’).  It has been held that the relocation principle in Randhawa is not inconsistent with Appellant S395/2002: see NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs  [2005] FCAFC 37 at [52] and the cases there cited.

Conclusion

28                  None of the grounds relied upon by the appellant in his notice of appeal or in the document styled ‘Applicant’s Written Submissions’ have been made out.  Nothing which the appellant put to me in oral submissions takes the matter any further as what he put was an entirely understandable claim that he wishes to live in a free country like Australia.  That is not, however, a ground upon which I can overturn the decision of the Federal Magistrate.  The appeal is dismissed with costs.

Associate:

Dated:              28 July 2005