FEDERAL COURT OF AUSTRALIA

SZFIR v Minister for Immigration and Citizenship [2007] FCA 424

MIGRATION – appeal from a federal magistrate – grounds of appeal not raised below – whether expedient and in the interests of justice that new grounds be raised

Held: Appeal dismissed.

Migration Act 1958 (Cth) s 424A

Coulton v Holcombe (1986) 162 CLR 1 cited

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (1004) 207 ALR 12 cited

O’Brien v Komesaroff (1982) 150 CLR 310 cited

SZFIR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD1957 OF 2006

COLLIER J

27 MARCH 2007

BRISBANE

THE COURT ORDERS THAT:

1.                  The name of the first respondent be amended to Minister for Immigration and Citizenship.

2.                  The Refugee Review Tribunal be added as a second respondent to these proceedings.

3.                  The appeal be dismissed.

4.                  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                     This is an appeal from the decision of Smith FM dated 21 September 2006, dismissing an application under s 476 Migration Act 1958 (Cth) seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the first respondent dated 18 May 2004 wherein the delegate refused the grant of a protection visa to the appellant.

2                     At the hearing of this appeal I indicated that I would order that the first respondent’s name be amended to “Minister for Immigration and Citizenship”, and that the Refugee Review Tribunal be added as a second respondent to these proceedings.

Background

3                     The appellant is a citizen of Bangladesh. He arrived in Australia on 15 February 2004 and applied for a protection visa on 18 March 2004. The appellant claimed to have well-founded fear of persecution on the basis of his membership of the Bangladesh Awami League. The appellant claimed that he came to the attention of the Bangladesh Nationalist Party (BNP) as a student activist in 2001. His claims indicated he suffered assaults and economic penalties by BNP thugs and that a number of false charges had been filed against him since he had left Bangladesh.

4                     On 8 June 2004, the appellant made an application to the Tribunal for review of the delegate’s decision. The Tribunal at that time (“first Tribunal”) affirmed the delegate’s decision of 18 May 2004. On 14 November 2005 in the Federal Magistrates Court, that decision was remitted by consent to the Tribunal, differently constituted, for reconsideration. It is the second Tribunal decision that is now on appeal before me.

The Tribunal’s decision

5                     The Tribunal considered the appellant’s evidence given to the first Tribunal on 1 November 2004. It had regard to the audio tape of the first hearing and summarised the key points of his oral evidence. The Tribunal then considered the oral evidence provided at the hearing before it and the documentary evidence provided by the appellant.

6                     The Tribunal in its decision noted that the appellant referred to being mentally disturbed at both hearings, but that the appellant did not provide any medical advice to indicate that he had any form of psychological impairment, nor did it appear that he had sought medical attention. The Tribunal was satisfied from its observations that the appellant was competent to give evidence. The appellant had said on several occasions that he did not want to talk about the past and claimed that he could not recall the chronology and details of his claims. The Tribunal did not draw adverse conclusions from minor discrepancies regarding dates but it was not satisfied that the appellant’s reticence was attributable to any medical condition. Rather, the Tribunal found it was an attempt to deflect the Tribunal’s scrutiny of his claims.

7                     The Tribunal found the appellant was a witness of low credibility on a range of matters; it noted the appellant made assertions which on closer examination proved to be misleading, incomplete or internally inconsistent.

8                     The Tribunal accepted that the appellant was an Awami League participant, but viewed with scepticism the appellant’s claims that he held a number of portfolios and responsibilities in the party. In particular:

·                    the Tribunal did not accept that the appellant was the general secretary of the Awami League student wing in his district

·                    the Tribunal did not accept the authenticity of the appellant’s documents which purported to be from different Awami League officials and offices but were clearly produced from a single word processed document on what appeared to be crudely photocopied letterheads

·                    the Tribunal found inconsistencies between the documents and claims made by the appellant

·                    although, the appellant claimed that he was politically active with the Awami League in 2000 and later became assistant secretary of one of the branches, his knowledge of the Awami League, as well as his description of his activities during the 2001 elections, was patchy

·                    the Tribunal did not accept that the appellant was an activist or gained a political profile other than as a member of the Awami League, a local supporter and an occasional low key campaigner.

9                     The Tribunal found the appellant’s evidence regarding his family to be unreliable in view of inconsistencies between his evidence given at the first and second Tribunal hearings, and was unable to draw any conclusions regarding his financial or political position. It did not accept that the appellant had been physically assaulted on two occasions at his office and once in his village, nor that there had been threats to the appellant from BNP thugs, because it found:

·                    the appellant did not have a political profile;

·                    the appellant’s account of these incidents was hesitant; and

·                    the appellant had returned to the village following visits to India at that time, and therefore could not have feared persecution.

10                  The Tribunal did not accept the appellant’s claims of persecution by the BNP through denying him a chance to earn a living. The Tribunal found the fundamental premise of this claim was misleading as the appellant’s evidence at the second hearing was that he had obtained a contract six months after the BNP government came to power contradicting his earlier claim and which indicated that the appellant did not suffer serious harm, nor was he targeted because of his political opinion.

11                  The Tribunal found the appellant’s evidence concerning the false charges against him was incomplete and vague.

12                  In considering the appellant’s future conduct the Tribunal found that, should he return to Bangladesh, he would be able to resume contacts with his party colleagues because the mere fact of support for the Awami League did not give rise to a real chance of persecution.

13                  Finally, the Tribunal was not satisfied that the appellant’s claim that he lived in an area of high level criminality was enough to establish persecution for a Convention reason.

Decision of the Federal Magistrate

14                  On 11 April 2006 the appellant filed an application for review of the decision of the Tribunal. Before Smith FM the appellant was represented by counsel who filed an amended application on 28 June 2006 which raised three grounds of appeal. Of these grounds of appeal, ultimately only one ground was pursued at the hearing.

15                  The appellant claimed that he had provided the Tribunal with contact details of his friend who had in turn provided him with information and documents concerning alleged false charges lodged against the appellant in Bangladesh. The Tribunal had the opportunity to contact this person, but chose not to do so. The appellant claimed that the circumstances existing in the present case created a duty on the Tribunal to make its own enquiries. Its failure to do so amounted to jurisdictional error.

16                  The reliance by the appellant’s counsel’s on Azzi v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 48 to support this ground was, in the Federal Magistrate’s opinion, inappropriate because it was a case where the weight of authority was clearly against the appellant. His Honour noted that this case indicated the need for exceptional circumstances to arise before a duty to investigate arose. The Federal Magistrate found that the appellant’s circumstances were completely lacking in features which might support the exceptional duty referred to in Azzi. The Tribunal specifically informed the appellant that it did not intend to initiate any post-hearing approaches and the appellant did not suggest what evidence the particular witness could provide to answer his case. Further, there would have been obvious difficulties in relation to obtaining and giving weight to any evidence obtained from such a witness.

17                  Accordingly the Federal Magistrate dismissed the application.

The appeal to this Court

18                  The appellant appealed to this Court by notice of appeal filed on 9 October 2006. Six grounds were raised, namely that the Federal Magistrate erred by not finding error in the Tribunal’s decision as follows:

1.                  jurisdictional error by affirming the decision of the Tribunal that the appellant did not have a well-founded fear of persecution.

2.                  lack of procedural fairness in the proceedings of the Tribunal in that it did not give the appellant a reasonable opportunity to respond to independent evidence that Awami League activists were able to live in Bangladesh without being persecuted for involvement in political activities and membership of that party without becoming a victim of violence.

3.                  the Tribunal and the delegate had not dealt with a key component of the appellant’s claims, namely the harassment for his political views.

4.                  the Tribunal failed to consider: the risk of persecution that forced the appellant to leave Bangladesh; the appellant was a credible witness; failing to judge whether persecution of Awami League members occurs under the existing regime; that the opponent political activists are specific targets of the fundamentalist political party Jamat e-Islam and the BNP who have formed a coalition.

5.                  legal error by asserting the appellant did not have a genuine fear of persecution for a Convention reason and did not take into consideration the threat to the appellant’s life or liberty that he would experience on return to Bangladesh.

6.                  the Tribunal fell into error by asserting that the appellant need not maintain his membership of the Awami League.

19                  On 15 February 2007 in support of these grounds of appeal the appellant filed written submissions which can be summarised as follows:

1.                  the Tribunal erred in finding that the applicant’s oral evidence and the advice in his letter of 12 February 2006 provided incomplete and vague information with respect to charges against him. In making its finding, the Tribunal ignored the contents of the charge document and the Tribunal’s reasoning was illogical.

2.                  the Tribunal relied on independent country information adverse to his case without putting the information to him and without giving him an opportunity to comment, and accordingly denied the appellant procedural fairness.

3.                  the decision of the Tribunal was not a bona fide attempt to act in the course of the Tribunal’s authority.

4.                  the Federal Magistrate erred in not finding that there was a lack of procedural fairness in the proceedings of the Tribunal, in that the Tribunal did not give the appellant a reasonable opportunity to answer the independent evidence in the possession of the Tribunal that a person like him will not face any harm in Bangladesh or could live without being a victim of violence in Bangladesh.

5.                  the Federal Magistrate erred in not finding that the Tribunal had not dealt with a key component of the appellant’s claim namely, that he would face selective harassment as a member of a political group in Bangladesh.

6.                  the Federal Magistrate erred in not finding that the Tribunal made findings which were not available to it on the evidence concerning whether the appellant was a victim of physical harm and was genuinely fearful of his safety.

20                  The first respondent has submitted that the grounds of appeal before this Court were not raised in the Court below, and that the appellant must demonstrate that it is expedient and in the interests of justice that these new grounds be raised: O’Brien v Komesaroff (1982) 150 CLR 310 at 319, Coulton v Holcombe (1986) 162 CLR 1 at 7. The respondent has submitted further that these conditions are not satisfied in this case because:

1.                  the appellant was legally represented by counsel in the Court below.

2.                  the appellant has not sought to explain why the new grounds were not raised in the Court below.

3.                  in respect of the new grounds, the law in respect of those grounds was settled and not in a confused or fluid state at the time that the matter was heard by Smith FM in September 2006.

4.                  the new grounds have little or no prospects of success on appeal; and

5.                  when these matter are weighed in the balance with the interests of the Court in maintaining the integrity of the appeal process, the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration, it is not expedient and in the interests of justice to allow the new grounds to be argued and determined.

21                  I note that the grounds of appeal raised before me were not raised before the Court below. Further, I accept submissions 1-3 of the respondent as factors militating against the Court granting leave to the appellant to raise new grounds of appeal.

22                  With respect to the fourth submission of the respondent that the grounds of appeal have little or no prospects of success, it is appropriate to consider each ground briefly in order to assess prospects of success.

Prospects of success of grounds of appeal

Ground of Appeal 1

23                  The appellant claims that the Federal Magistrate committed a jurisdictional error by affirming the decision of the Tribunal that the appellant did not have a well-founded fear of persecution. This ground of appeal is broad, and not particularised. Affirming the decision of the Tribunal does not of itself raise jurisdictional error.

24                  Further, in the absence of submissions as to jurisdictional error by the appellant, the decision of the Tribunal that the appellant did not have a well-founded fear of persecution for a Convention reason is a finding on the facts, and not available to be challenged in this Court.

25                  Accordingly, there are little or no prospects of success in respect of this ground of appeal.

Ground of Appeal 2

26                  The appellant claims lack of procedural fairness in that the Tribunal did not give him a reasonable opportunity to respond to evidence that Awami League activists could live in Bangladesh without persecution.

27                  In my view, this ground misrepresents the findings of the Tribunal. First, the Tribunal did not find that the appellant was an activist; it found that he was a low-level Awami League supporter. Second, the Tribunal did not find that “AL activists were able to live in Bangladesh without being persecuted for involvement in political activities and membership of that party without becoming a victim of violence” – rather the Tribunal found that “although AL activists and leaders are subject to sometimes harsh treatment by the BNP-led government, the Tribunal is not satisfied that the mere fact of support for or association with the AL, a well-established and large party represented in parliament and operating legally, gives rise to a real chance of persecution”.

28                  The finding that the appellant was a low-level Awami League supporter, and not an activist, was clearly a finding of fact not open to review in this case. The independent country information identified by the appellant was referred to by the Tribunal as confirming the Bangladeshi government’s poor human rights record; noting violence as a “pervasive element in the country’s politics including action by security forces against opposition activists”; and noting the Awami League as one of Bangladesh’s largest political parties and currently forming the main opposition. I note that:

·                     such information which is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member, is not subject to the requirements of s 424A(1): s 424A(3)(a)

·                     in any event, the reference by the Tribunal to that information does not support the claim by the appellant

·                     in the absence of a transcript, there is no evidence that the Tribunal put the proposition to the appellant as he contends.

29                  In my view, there are little or no prospects of success in respect of this ground of appeal.

Ground of Appeal 3

30                  In respect of this ground of appeal, namely that the Tribunal had not dealt with the appellant’s claim that he had been harassed for his political views, it is clear from a review of the Tribunal’s decision that:

·                    the Tribunal accepted that the appellant was a supporter of the Awami League; however

·                    the Tribunal did not accept that the appellant was assaulted for reasons associated with his political or business interests; and

·                    the Tribunal did not accept that he was targeted for any adverse action for reason of his political opinion.

31                  Contrary to the appellant’s submission, it appears that the Tribunal did consider his claims of harassment. In my view, there are little or no prospects of success in respect of this ground of appeal.

Ground of Appeal 4

32                  In respect of claims by the appellant as to risks faced by the appellant, persecution of Awami League members and the appellant’s credibility, I note that:

·                    findings as to credibility are findings of fact, not subject to judicial review

·                    the Tribunal found that the appellant was not an Awami League activist, and accordingly issues as to persecution of Awami League activists were not relevant and the Tribunal was not required to make findings in respect of evidence concerning such activists

·                    it is for the appellant to make a case as to persecution of Awami League members such as himself.

33                  In my view, there are little or no prospects of success in respect of this ground of appeal.

Ground of Appeal 5

34                  In relation to the appellant’s claims as to his genuine fear of persecution and the threat to his life if he returned to Bangladesh, it is clear that:

·                    the Tribunal at considerable length assessed the personal circumstances of the appellant so as to make findings as to whether he had a genuine fear of persecution; and

·                    the Tribunal considered the future conduct of the appellant, including possible threats should he return to Bangladesh.

35                  Accordingly, in my view, there are little or no prospects of success in respect of this ground of appeal.

Ground of Appeal 6

36                  In respect of the appellant’s claim that the Tribunal fell into error by asserting that the appellant need not maintain his membership of the Awami League  I note the statement of the Tribunal that “It was the Applicant’s evidence that he has not maintained contact with his party colleagues, as he did not wish to do so. He implied that he did not see much point in doing so while in Australia. The Tribunal accepts that he may wish to resume such contacts if he returns to Bangladesh”.

37                  Accordingly, it seems clear that the Tribunal did not make the assertion the appellant contends. In my view, there are little or no prospects of success in respect of this ground of appeal.

Appellant’s submissions

38                  In relation to the balance of the submissions of the appellant, to the extent that they were not subsumed by the grounds of appeal I note:

·                    to the extent that the Tribunal made findings that the appellant’s oral evidence and the advice in his letter of 12 February 2006 provided incomplete and vague information with respect to charges against him, such findings were findings of fact and not open for review; and

·                    the appellant’s claim that the decision of the Tribunal was not a bona fide attempt to act in the course of the Tribunal’s authority is general and vague, however to the extent that the appellant claims that the Tribunal was obliged to make further inquiries with respect to the appellant’s claims, the claim cannot be sustained as the Tribunal is under no duty to inquire: Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21-22.

Conclusion

39                  In light of these issues, in my view it is not expedient and in the interests of justice to allow the grounds raised on appeal by the appellant, and not previously raised in the Court below, to be argued and determined by this Court.

40                  Accordingly, the appeal should be dismissed with costs.

ORDERS

1.                  The name of the first respondent be amended to Minister for Immigration and Citizenship.

2.                  The Refugee Review Tribunal be added as a second respondent to these proceedings.

3.                  The appeal be dismissed.

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

Associate:

Dated:         27 March 2007