FEDERAL COURT OF AUSTRALIA

SZCKX v Minister for Immigration & Multicultural Affairs [2006] FCA 528

SZCKX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 2591 OF 2005

EDMONDS J

12 MAY 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.         The appellant pay the first respondent’s 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

Edmonds J:

1                     This is an appeal from the Federal Magistrates Court (Driver FM) dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) to refuse to grant the appellant a protection visa.

Background

2                     The appellant is a citizen of Bangladesh.  He arrived in Australia on 4 October 2001.  On 24 October 2001 he lodged an application for a protection visa (Class XA) with the then Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) under the Migration Act 1958 (Cth) (‘the Act’).  On 27 February 2003 a delegate of the Minister refused to grant the appellant a protection visa and on 24 March 2003 the appellant applied to the Tribunal for review of the delegate’s decision.

3                     The appellant claimed to fear persecution from supporters of the Bangladesh Nationalist Party (‘BNP’) for reason of political opinion arising from his activities as a senior official in the Awami League.  He claimed that he had been targeted by BNP thugs shortly before the election of the BNP to government in October 2001 and that a false charge had been laid against him.  The appellant also claimed to fear persecution from Islamic fundamentalists and Jamaat-e-Islami because, as a secularist, he had been an active member of the ‘supporter club’ for the feminist author, Taslima Nasrin. 

Decision of the Tribunal

4                     The Tribunal found that the appellant’s claims were unconvincing and that he did not have a well-founded fear of persecution should he return to Bangladesh.  It did so for four reasons.

5                     First, the Tribunal found that the appellant’s claim that a false charge had been laid against him and that the police had begun to visit his residence and threaten his family was a fabrication and that the documentation he had submitted to support these claims had been fraudulently produced.  In this regard the Tribunal accepted independent evidence of the common availability of false documentation in Bangladesh.

6                     Second, the Tribunal was not satisfied that the appellant had any association with the Awami League nor was it satisfied that he was a supporter of Taslim Nasrin.

7                     Third, the Tribunal found that significant parts of the appellant’s claims reproduced verbatim the claims of two other applicants, providing further evidence that he had fabricated his claims.

8                     Fourth, the Tribunal did not accept the appellant’s claim that his family continued to be visited by those who wished to harm him because of his support of the Awami League or of Taslim Nasrin.

9                     The Tribunal concluded that there was no real chance that the appellant would be persecuted in the reasonably foreseeable future by reason of his political opinion or his claimed secular outlook.  More generally, the Tribunal was not satisfied that there was a real chance that the appellant would be persecuted if he returned to Bangladesh at that time or in the foreseeable future.

Decision of the Court Below

10                  The first ground which the appellant relied upon in the court below was that he had been denied natural justice because he was not given an opportunity to deal with the country information the Tribunal relied upon in relation to document fraud in Bangladesh.  The Federal Magistrate held that this contention was without substance as the Tribunal had disclosed particulars of the relevant country information, pursuant to s 424A of the Act, in a letter to the applicant dated 22 September 2003.  The prevalence of document fraud was specifically referred to in the response from the appellant’s adviser on 4 November 2003 and that response was taken into account for the purposes of the Tribunal’s decision.

11                  The appellant’s second ground was that the Tribunal had failed to comply with s 424A of the Act in relation to the same country information.  The appellant contended that this information fell outside the exception in s 424A(3)(a) and relied upon NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89.  His Honour held that this complaint was misconceived because the Tribunal had given particulars of the information to the appellant and, in any event, the interpretation of s 424A adopted by the majority in NARV was no longer good law:  Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 at [66] – [74], [125] – [138]; see also WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 at [43] – [46]; QAAC v Refugee Review Tribunal [2005] FCAFC 92 at [20] – [30]; VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 559 at [12] – [14]; VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 80 at [50], [71] – [72]; contrast NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89 at [30] and [31 ].

12                  Third, the appellant submitted that his claims in relation to his membership of the Taslim Nasrin supporters group had not been properly considered by the Tribunal.  Having regard to the Tribunal’s reasons, the Federal Magistrate rejected the appellant’s submission.

13                  Fourth, the appellant complained about the way he had been questioned at the hearing before the Tribunal.  His Honour held that there was nothing before him which pointed to procedural unfairness in the manner in which the appellant was questioned.

14                  Fifth, the appellant drew attention to the comparison the Tribunal had made between the contents of his application and the contents of other similar applications to the Tribunal.  The Federal Magistrate held that s 424A applied to the applications of the other applicants but held that the Tribunal had complied with its obligation to give particulars of that information to the appellant.

15                  Sixth, the appellant challenged the Tribunal’s finding as to his credibility.  The Federal Magistrate held that the Tribunal’s findings were open to it on the material before it.

Grounds of Appeal

16                  In his ‘Particularised Notice of Appeal’ filed 17 March 2006, the appellant raised three grounds of appeal.   Summarised these are:

1)         that the Tribunal failed to properly consider the particular social group to which the appellant claimed he was a member (ground 1);

2)         that the Tribunal acted in excess of jurisdiction by finding that he had fabricated his claims with respect to the false charges laid against him, being attacked by his political opponents and having to be hospitalised as a result (ground 2); and

3)         that the Tribunal did not accord the appellant natural justice by, it is alleged, commenting that ‘many “documented” claims of outstanding arrest warrants have proved to be fraudulent’ and that ‘arrest warrants are not generally available to the public’ (ground 3).

17                  The Minister submitted that none of these grounds of appeal was raised by the appellant below.  However, it seems that the appellant did raise, perhaps in different terms, a challenge in relation the Tribunal’s consideration of his claimed membership of the Taslim Nasrin supporters group.  The second and third grounds, on the other hand, appear to be new challenges to the Tribunal’s decision which were not mounted before the Court below.  The Minister submitted that the appellant ought not be allowed to agitate new grounds on appeal: Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ; H v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 63 ALD 43 at [6] – [9] per Branson and Katz JJ.

18                  Given that no complaint is raised on appeal against the decision of his Honour below, it can be strongly argued that the appeal ought to be dismissed on this basis alone.

Ground 1

19                  The Tribunal did consider, and rejected, the appellant's claim that he was a member of a particular social group, namely, supporters of Taslima Nasrin.  The appellant now seeks to take issue with this finding of fact by the Tribunal.

20                  When the matter was agitated orally at the hearing before his Honour, his Honour similarly rejected the submission.  In so doing he did not, in my view, err.  Accordingly, this ground of appeal must fail.

Ground 2

21                  Without further particulars of how the Tribunal is said to have acted in excess of its jurisdiction this ground must be rejected.  Both of the particulars referred to by the appellant in ground 2 are matters that were highly relevant and integral to the Tribunal’s exercise of its jurisdiction, namely an assessment of the credibility of the appellant’s claims.  The comments were not made in excess of the Tribunal’s jurisdiction nor were they made, as his Honour correctly concluded, in a manner that gives rise to jurisdictional error.

Ground 3

22                  The particulars given in ground three emanate from independent country information that the Tribunal relied upon in making its findings concerning document fraud in Bangladesh.  The particulars neither represent ‘comments’ nor findings by the Tribunal, but are quotes taken from the country information cited by it.  

23                  There was no breach of procedural fairness by the Tribunal in quoting this information because:

(a)        The common law principles of natural justice do not apply to the proceedings, the application for review to the Tribunal having been filed on 24 March 2003: s 422B of the Act;

(b)        section 424A(1) was complied with, the impugned passage having been put to the appellant for comment in the letter dated 22 September 2003; and

(c)        in any event, the material is exempt from the operation of s 424A(1) by reason of s 424A(3)(b) of the Act.

Summary Submission

24                  Counsel for the Minister submitted that ultimately the appellant seeks to take issue with the factual findings of the Tribunal.  To review the decision of the Tribunal on these grounds, she submitted, would amount to the Court engaging in merits review, especially given that there is no evidence that the Tribunal did anything other than exercise its power in a bona fide way: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) CLR 259 at 272.  The Tribunal weighed up the evidence of the appellant and made findings of fact, largely based on the credit of the appellant, that were open to it on the material before it.  It was entitled to so find in the circumstances: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559.

Conclusion

25                  There having been no error of law demonstrated in the reasoning of his Honour below and no jurisdictional error committed by the Tribunal, for the reasons given, the appeal must be dismissed with costs.

Associate:

Dated:         12 May 2006