FEDERAL COURT OF AUSTRALIA

SZGBU v Minister for Immigration & Multicultural Affairs [2006] FCA 1488

SZGBU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND ANOR

NSD1562 OF 2006

EMMETT J

1 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

1                     The appellant is a citizen of Bangladesh.  He arrived in Australia on 19 February 2000.  On 28 March 2000, he lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) (‘the Act’).  On 26 May 2000, a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’), refused the visa.  On 4 April 2003, the second respondent, the Refugee Review Tribunal (‘the Tribunal’), affirmed the delegate’s decision.  However, on 16 April 2004, the Federal Magistrates Court set aside that decision and remitted the matter to the Tribunal to be determined according to law.  On 2 March 2005, the Tribunal, differently constituted, again affirmed the decision not to grant a protection visa.  The appellant was notified of that decision on 22 March 2005.  He then commenced another proceeding in the Federal Magistrates Court, seeking judicial review of the Tribunal’s second decision.  On 7 August 2006, the Federal Magistrates Court ordered that the proceeding be dismissed with costs. 

2                     By notice of appeal filed on 17 August 2006, the appellant now appeals to the Federal Court from the orders of the Federal Magistrates Court.  The appellant appears without any legal representation, although he has been assisted by an interpreter in the Bengali language.  When the matter was called on for hearing today, the appellant informed the Court that he did not wish to say anything in support of his appeal.  Despite the directions that were given on 23 August 2006, that the appellant file and serve written submissions no later than five working days before the hearing date, no written submissions have been filed.

3                     The notice of appeal does not refer to errors on the part of the Federal Magistrates Court.  Rather, it specifies error on the part of the Tribunal.  Nevertheless, it is appropriate to treat the notice of appeal as a claim that the Federal Magistrates Court erred in failing to find such errors on the part of the Tribunal. 

4                     The Tribunal was satisfied that the appellant is a citizen of Bangladesh.  He claimed that he feared harm in Bangladesh because he was a member of the Jatiya Party.  However, the Tribunal found that the appellant showed a remarkable lack of knowledge about that party.  The Tribunal considered that the appellant’s knowledge of the Jatiya Party was negligible.  Further, in circumstances where the appellant claimed to be a practicing Hindu, the Tribunal found it extremely implausible that he would be a member of a political party that, if it became the government, proposed to bring existing laws into line with the principles of the Quran and would follow Shariah law as far as possible.  The appellant’s only explanation for such inconsistency was that he liked the policies of the party.  The Tribunal considered that, given the appellant’s negligible knowledge of the policies of the party, the explanation was far-fetched and lacked credibility.  The Tribunal found that the appellant had been mendacious in the extreme in his claims, and found that any claims of harm in the past and fear of harm in the reasonably foreseeable future, by reason of his political opinion, was a fabrication. 

5                     The appellant also claimed before the Tribunal that he feared harm in Bangladesh from the Bangladesh National Party (‘BNP’) because he is a Hindu.  While the Tribunal accepted that some Hindus faced certain difficulties in Bangladesh, it could not be satisfied that, in this case, the appellant had a well-founded fear of harm in the reasonably foreseeable future from the BNP for reasons of his religion.  The Tribunal gave reasons for that conclusion.  First, his evidence about the pressure he faced was very general and, apart from an alleged incident in 1994, the appellant gave no real examples of harm he faced as a Hindu in Bangladesh.  Secondly, the appellant gave contradictory evidence regarding his reaction to an alleged incident in 1994.  The Tribunal was not satisfied that the appellant ever faced any harmful treatment while he was living in Bangladesh, from the BNP or anyone else, arising from his religion.  It found that his claims of harm in the past and fear of harm in the future were a fabrication. 

6                     In his reasons for dismissing the proceeding, the primary judge carefully considered the Tribunal’s reasons and its reasoning.  His Honour considered that the Tribunal had addressed the claims that were made by the appellant and that its conclusions about his credibility were open to it upon its assessment of his evidence given at the hearing in the light of the general information that the Tribunal put to the appellant.  His Honour dealt with the ground in the original application filed by the appellant and with grounds contained in an amended application.  As I have said, there is no complaint in the notice of appeal as to the way in which the primary judge dealt with the grounds. 

7                     The grounds in the notice of appeal are without particularity.  First, it is alleged that the Tribunal denied the appellant natural justice.  No particulars have been furnished and no evidence of any denial of procedural fairness has been given.  Second, it is said that the Tribunal’s decision was unjust and made without taking into account the full gravity of the circumstances of the appellant’s claims.  No particulars are given.  Third, it is said that the Tribunal had no substantive material or evidence to justify its decision.  That claim is patently without foundation. 

8                     Then it is said that the Tribunal cited many reports and references that were not relevant to the appellant’s protection visa application.  Again, no particulars have been furnished, and nothing was said in support of the ground. 

9                     Finally, reference is made in the notice of appeal to a failure to comply with s 424A of the Act, which requires that, in certain circumstances, the Tribunal must furnish an applicant with particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming a decision that is under review.  The complaint is that the Tribunal did not ensure that the appellant understood why various references and information were relevant to the review application, and did not give the appellant particulars of the information and references.  Once again, there are no particulars of the information and references in question. 

10                  The Tribunal referred in its reasons to a number of decisions of the High Court concerning the meaning of refugee.  It also cited country information from various sources that was not specific to the appellant.  There seems to be no substance whatsoever in the complaint.  Section 424A does not apply to information that is not specifically about the appellant or another person and is just about a class of persons of which the appellant or another person is a member. 

11                  There is no substance whatsoever in the grounds in the notice of appeal and the appeal must be dismissed. 

Associate:

Dated:         10 November 2006