FEDERAL COURT OF AUSTRALIA

SZFEG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1405

SZFEG v Minister for Immigration and Multicultural and Indigenous Affairs AND REFUGEE REVIEW TRIBUNAL

N 1007 of 2005

JACOBSON J

26 SEPTEMBER 2005

SYDNEY

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.

REASONS FOR JUDGMENT

1.                       This is an appeal from a decision of Federal Magistrate Scarlett given on 1 June 2005 dismissing an application for review of a decision of the Refugee Review Tribunal (“RRT”) handed down on 18 November 2004.  The RRT affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa. 

Background

2.                       The appellant is a citizen of Bangladesh who arrived in Australia on 18 January 2004.  He lodged an application for a protection visa on 10 February 2004 claiming a well-founded fear of persecution because of his political opinions and membership of the Jatiya Party. 

3.                       In a statement dated 7 February 2004 which the appellant lodged in support of his application for a protection visa he claims that he was an active member of the Jatiya Party involved in organising political meetings and processions in his district against autocratic governments.

4.                       He claims that on 10 August 2003 a "terrorist" group from the  Bangladeshi National Party (“BNP”) came to his business, a construction and trading company, to extort money from him.  As he was unable to pay he was kidnapped, tortured and urged to abandon his support for the Jatiya Party.  He was left unconscious by the roadside and spent two weeks in hospital.

5.                       The appellant claims that as a result of this incident he fled with his family to Dhaka where he re-established his business.  However, two months later the terrorists located him and threatened him.  When the appellant reported this to the police he says that they refused to take action upon being told that the attackers were from the BNP, which was the party in power in Bangladesh.

6.                       At a hearing before the RRT on 21 October 2004 the RRT asked the appellant for further information about his claim that he was attacked on 10 August 2003.  The appellant explained that in September or October of 2002 a group of extortionists approached him and demanded a sum equivalent to AUD$50,000.  When he was asked by the RRT why he had been targeted by persons he described as terrorists he stated that the local Member of Parliament was from the BNP and wanted to ensure the financial support from the business community came to his party. 

7.                       The RRT noted that, contrary to his original submission, the appellant stated that the terrorists were simply extortionists who made demands for money and carried out their attacks regardless of which party was in power.  He could not confirm any connection between the attackers and the BNP.  However, the appellant claimed that when he was kidnapped the attackers threatened to kill him unless he joined the BNP. 

8.                       The RRT observed that there were inconsistencies between the appellant's original statement that he reported these incidents to the police and his recollection of the hearing that he had not approached the police but that a friend had done so on his behalf.

9.                       The RRT raised with the appellant the fact that in his application he claimed the police refused to assist him and at the hearing he stated that the police were still trying to find the culprits.  The appellant agreed that his original statement was not correct.

10.                   The RRT asked the appellant about his claimed second assault in Dhaka and the appellant indicated that it involved the same persons involved in the first extortion and kidnapping attempt, and indicated that he did not seek police assistance.  The appellant agreed with the country information put to him at the RRT hearing indicating that "the relationship between the Jatiya Party and the BNP was quite neutral" and, unlike the Awami League, his party was not seen as the enemy of the BNP.  Furthermore, there were four factions in the Jatiya Party and he was a member of the Ershad which was the closest to the BNP.

11.                   The RRT also noted that independent country information indicated the appellant's claims of extortion, kidnapping and torture were descriptive of a general tendency of violence in Bangladeshi society and politics.  The RRT accepted that the appellant was involved in the Jatiya Party but the RRT concluded that the appellant's evidence was not reliable given the significant differences between his evidence before the RRT and in his original claims particularly regarding the connection between the extortionists and the BNP and whether police assisted him.

12.                   Whilst the RRT accepted the appellant's claims of attack by extortionists, it found that this was primarily because the appellant was seen as a wealthy businessman; his membership of the Jatiya Party was incidental.  The RRT did not accept that the appellant was targeted because of his political beliefs or affiliations and noted that the appellant had confirmed that the attackers were common criminals who claimed to support the governing party as a matter of convenience so as to obtain money.  The RRT found no Convention nexus and was not satisfied that the appellant was at risk of persecution because of his political beliefs. 

13.                   The RRT did not accept the appellant's claims about police inactivity and observed that the appellant had given evidence that he had not reported the attacks to the police.  The RRT found there was no evidence that the appellant could not expect the normal level of protection afforded by Bangladeshi authorities.

14.                   The RRT noted that at the hearing, the appellant commented that if he returned he would not get involved in politics again.  The RRT observed that even if the appellant did wish to continue with his political activities, there was no real chance that he would suffer Convention related harm “now or in the foreseeable” future.

15.                   Accordingly, the RRT found that the appellant did not have a well founded fear of persecution for any Convention reason and affirmed the decision not to grant him a protection visa. 

16.                   Federal Magistrate Scarlett referred to the appellant's amended application for review and observed at [7] that it contained a comprehensive set of grounds appearing to cover every ground of relief available on judicial review, with the exception of actual bias.

17.                   The learned Magistrate noted that the appellant provided no particulars of one of his claims, namely, that the RRT acted unconstitutionally and if there was no evidence on this question, the ground could not be taken further, see at [8] - [9].  Similarly, his Honour found that the appellant provided no evidence to support his claim that the RRT denied him procedural fairness or natural justice, see at [20].  He also found that there was no evidence of the unparticularised claim of constructive failure to exercise jurisdiction; see at [27]. 

18.                   The learned Magistrate noted that particulars had been provided to support a claim of the fourth ground of review, namely, that the RRT “breached a judicial duty to make or apply a finding of law using formal logic”.  His Honour quoted the particulars and observed that they were not, in his mind, capable of being reasonably understood and he therefore dismissed that ground; see at [14]. 

19.                   His Honour also dismissed the ground of bad faith referring to the High Court authority in Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at paragraph 69.  His Honour accepted submissions for the Minister that two further grounds relied upon by the appellant were an impermissible attempt to seek merits review; see at [28].

Discussion

20.                   The notice of appeal raises three grounds.  The first cannot be a ground of review because it complains about the decision of the Minister's delegate.  The second ground complains of a denial of procedural fairness by the RRT.  The particulars state that the appellant presented material to the RRT, that the RRT failed to consider the material and that the RRT “failed to satisfy itself that nothing in that material could affect its decision.”

21.                   No particulars are given of the ground and there was no transcript of the hearing before the RRT.  There is nothing on the face of the notice of appeal which raises this as an arguable ground of review. 

22.                   In his written submissions filed on 19 September 2005, the appellant apparently seeks to address this point because he submits that the RRT failed to address his claim that he had a progressive political opinion and that he was a member of the Jatiya party who was persecuted and would be persecuted if he returned to Bangladesh.  This ground cannot be accepted because the RRT clearly addressed the appellant's claim in this regard in the reasons for its decision.

23.                   The third ground of review raises two complaints.  First it is said that the RRT erred in finding that the appellant could reasonably avail himself of protection in Bangladesh and, second, that the RRT erred in finding that it would be reasonable for the appellant to re-locate.  As to the second point, no such finding was made by the RRT and this ground of appeal cannot amount to a ground of review.

24.                   As to the complaint about the RRT finding that the appellant could reasonably avail himself of protection, it is apparent that he was unsuccessful in the RRT because of the view that the RRT took of the facts, in particular the RRT found that the appellant was not a credible witness.  Such findings are matters of fact for the RRT; see Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (1999) 168 ALR 407 at [67] per McHugh J.  Also, the RRT preferred independent country information to the account of the appellant as to the availability of state protection.  Indeed, it discussed this with the appellant. 

25.                   The appellant's claim on the procedural fairness ground seems to amount to a submission that the RRT erred in failing to consider material provided by the appellant to the RRT, and in failing to satisfy itself that nothing in the material could affect its decision.   However, the appellant has not identified any material which was not considered by the RRT. 

26.                   On the face of the RRT’s decision, it was aware of it and considered all the materials submitted by the appellant.  The willingness of the RRT to accept material, and the weight it gives to the material, is a matter for the RRT.  It is well established that the RRT is not bound to accept what the appellant said, and it was for the RRT to decide whether or not to accept the claims; see, for example, Abebe v The Commonwealth of Australia 197 CLR 510 at [84] and [187].  The weight to be given to evidence is a matter for the decision-maker; Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24at 41 per Mason J.   

27.                   As the Minister's counsel fairly observed in her written submissions, there are two issues which do arise for consideration on the face of the RRTs decision, and it is therefore appropriate to consider them on the appeal from the Federal Magistrate's decision that there was no jurisdictional error in the decision of the RRT.  The points are as follows:

i.                     Whether the RRT breached section 424A(1) of the Migration Act 1958 (Cth) (“the Act”) by not putting in writing to the appellant material that was contained in the appellant's protection visa application, which was inconsistent with evidence which the appellant gave at the oral hearing; see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162.

ii.                   Whether the RRT committed jurisdictional error by not making express reference to "false claims" which the appellant alleged to have been made against him.  These were referred to in his statement of 7 February 2004 and in a letter dated 18 October 2004.

28.                   I will deal with each of these two points below.

29.                   I am satisfied that there was no contravention of section 424A of the Act.  I have come to this view for three reasons. 

30.                   First, the inconsistencies between the statements in the appellant's protection visa and the oral evidence which he gave to the RRT were not "information" for the purposes of section 424A. 

31.                   As Finn and Stone JJ said in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (“VAF”) at [24], the word "information" does not encompass the Tribunal's subjective appraisals or thought processes.  That was all that occurred here; see also SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 per Hely J at [11].

32.                   Second, the inconsistency was not part of the RRTs reasons because it was not integral to the decision; see VAF at [33].  It is true that the RRT referred to the inconsistencies between what was said in the appellant's protection visa application and in his oral evidence, but it seems to me that the RRT rejected his claim because of its assessment of his oral evidence in which he claimed that his attackers were common criminals who claimed to support the governing party in order to obtain funds from him.

33.                   The mere fact that within the hearing process and in the reasons of the RRT reference was made to the contents of the protection visa application, does not make it an integral part of the RRTs reasons; see for example SZEBX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1197 per Allsop J at [22].

34.                   Third, in his application for review by the RRT the appellant repeated verbatim the claims made in his protection visa application.  He also repeated them in the letter of 18 October 2004 to which I have already referred.  Accordingly, even if the information in the protection visa application was "information" for the purposes of section 424A it fell within the exception in section 424A(3)(b) see VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 (“VUAV”) per Merkel J at [10]. 

35.                   The position in the present case is identical to VUAV because here the application for review by the RRT stated “please see my previous submission dated 7 February 2004”.

36.                   This distinguishes the present case from the view I reached in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744.

37.                   I turn next to the "false claims" point.  It is well established that a failure to expressly mention part of the competing body of evidence that was put before the RRT does not of itself amount to jurisdictional error.  See Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] per Allsop J.  This is because it is for the RRT to identify such material as it finds relevant to its reasoning and to give it appropriate weight; see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] – [7] per Kiefel, RD Nicholson and Downes JJ; see also WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ.

38.                   The requirement to set out findings on material questions of fact and to refer to the material on which the findings are based is not to be translated into a requirement that all pieces of conflicting evidence relating to material facts must be dealt with; see Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 (“Singh”) at [55] – [56].  See also Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [57] per Sackville J, applying the principles stated by the majority in Singh. 

39.                   In the present case the allegation that the appellant was subjected to false claims was not a material fact upon which the RRTs findings turned.  It was, as was submitted by counsel for the Minister, no more than an uncorroborated claim put forward by the appellant in the faintest of ways to support his assertion for the fear of persecution by reason of political opinion.  As Federal Magistrate Scarlett noted in his judgment at [32] it was not referred to by the appellant at the hearing and no particulars were given of the claim in the two statements to which I have referred.  Accordingly, its probative force would have been dependent on the view the Tribunal took of the appellant's credibility. 

40.                   It follows from what I have said that the appeal must be dismissed with costs.

Associate:

Date:                30 September 2005