FEDERAL COURT OF AUSTRALIA

SZIIG v Minister for Immigration & Citizenship [2007] FCA 322

MIGRATION – application for protection visa – refused – decision affirmed by Refugee Review Tribunal – appeal to Federal Magistrates Court – dismissed – appeal – whether jurisdictional error – whether failure to take into account relevant evidence – appeal dismissed

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 applied

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 followed

SZCOQ v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 9 cited

SZIIG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1937 OF 2006

MARSHALL J

9 MARCH 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’.

2.                  The appeal is dismissed.

3.                  The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1                     The appellant appeals from a judgment of the Federal Magistrates Court.  The Court below dismissed an application by the appellant for judicial review of a decision of the Refugee Review Tribunal.  The Tribunal had affirmed a decision of a delegate of the respondent Minister not to grant the appellant a protection visa.

2                     The appellant, who is a citizen of Bangladesh, claimed to have a genuine fear of persecution if returned to Bangladesh in the reasonably foreseeable future on account of his political opinion and his relationship, as a Muslim, with a Hindu woman. It is only his fear of persecution on account of his political opinion that is an issue of current relevance on appeal.

3                     The appellant claimed to have been active in the Bangladeshi National Party (‘BNP’) and that he had been targeted by members of the Awami League. The Tribunal observed that the situation in Bangladesh had changed significantly since the appellant left there in 1997.  It noted that the BNP had been the majority party in the governing coalition since October 2001.  It did not accept that there is any current threat of harm from persons who opposed the appellant before his departure from Bangladesh.  It said that as the Awami League is not in government, it was unable to influence authorities to not protect the appellant.  It found that the appellant is not at risk of harm on account of his political activities prior to 1997.

4                     The appellant lodged his application for review of the decision of the delegate on 28 June 2001. On 21 January 2003, the appellant submitted a letter from his lawyer in Bangladesh to a hearing before a Tribunal (‘original Tribunal’), differently constituted than the Tribunal the subject of these reasons (‘current Tribunal’). The file before the original Tribunal was before the current Tribunal.  In its reasons for decision, the current Tribunal said the following about the letter: ‘On 21 January 2003, the appellant submitted a letter from a Member of Parliament, the applicant’s Bangladeshi lawyer and further press reports on deployment of armed forces in Bangladesh’ (emphasis added).

5                     Counsel for the appellant acknowledged that the date of the letter was difficult to read but contended that it bore an October 2002 date. The letter advises the appellant not to return to Bangladesh as ‘local police and military forces’ were searching for him in order to arrest him.

6                     The current Tribunal made no further reference to the letter in its decision. It observed that the appellant had been absent from Bangladesh for over eight years. It considered his claim that political opponents would harm him to be ‘based on speculation’ and it did not accept ‘that there is any current threat of harm from persons who had opposed [the appellant] before his departure’.

7                     Counsel for the appellant contends that the lawyer’s letter was evidence that the current Tribunal was bound to take into consideration in coming to its decision. He conceded that the current Tribunal was not obliged to refer to every item of evidence before it (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] (‘Applicant WAEE’)). He nevertheless contended it was obliged to do so in the circumstances of this case. That was because, so the argument ran, the letter showed a risk to the appellant’s well-being even after the change of government.

8                     I agree with counsel for the Minister that it is not clear that that letter was not taken into account. Considering the reasons for decision of the current Tribunal beneficially, it appears that the letter was not specifically adverted to by the current Tribunal, having regard to its strong finding about a lack of danger to the appellant given his long absence from Bangladesh. As the Full Court said in Applicant WAEE [2003] FCAFC 184 at [47]:

‘The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.’

See also SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9 at [15] to [16], per Moore J, with whom Besanko J expressed substantial agreement at [18].

9                     The last sentence in the quote from Applicant WAEE in the preceding paragraph is particularly relevant to the current issue. The current Tribunal made strong findings rejecting any consideration of a future politically-based threat due to the passage of time. Inferentially, it rejected the thrust of the letter.

10                  Even if the current Tribunal did not take into account the lawyer’s letter, the letter was not a document of such significance that the current Tribunal was bound to take it into account in coming to its decision as it went against the other material on the question of the likelihood of a threat to the appellant on political grounds, including country information (see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986-87) 162 CLR 24 at 40). Alternatively, it may be said that any failure to take the letter into account was not the ignoring of relevant material in a way ‘that affects the exercise of power’ (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ).

11                  On proper analysis of the appellant’s first point, no jurisdictional error has been demonstrated to have been made by the current Tribunal.

12                  Counsel for the appellant sought leave to raise a new ground, not covered by the notice of appeal and not raised in the Court below. I refused leave to raise that ground after hearing from counsel for the appellant. I did not wish to trouble counsel for the respondent on a ground about which he had little notice, being a ground which had no prospect of success.

13                  Counsel for the appellant wished to contend that the current Tribunal made a jurisdictional error by not considering the possibility that the Awami League might be re-elected in the future. This issue is answered by the current Tribunal’s strong finding that, given the appellant’s long absence from Bangladesh, he is not at risk of persecution from former political opponents. The current Tribunal was not obliged to engage in speculation about the outcome of future elections.

14                  It was for the above reasons that I refused leave for the second argument to be raised. 

15                  The appeal is dismissed. 

Associate:

Dated:         9 March 2007