FEDERAL COURT OF AUSTRALIA

SZFYK v Minister for Immigration & Multicultural Affairs [2007] FCA 624

SZFYK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 2541 OF 2006

EDMONDS J

3 MAY 2007

SYDNEY

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.

REASONS FOR JUDGMENT

Introduction

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

BACKGROUND

2                     The appellant is a citizen of Bangladesh.  The appellant arrived in Australia on 11 February 2000 and lodged an application for a protection (class XA) visa on 22 March 2000.  A delegate of the Minister refused the application for a protection visa.  By application filed on 31 May 2000 the appellant sought review of that decision in the Tribunal.  After conducting a hearing at which the appellant gave evidence, the Tribunal, on 25 July 2002, made a decision to affirm the delegate’s decision not to grant the appellant a protection visa (‘the first decision’).  The appellant sought judicial review of the first decision.  That application for judicial review was dismissed in the Federal Magistrates Court but the appellant successfully appealed to this Court.  On 19 February 2004 this Court remitted the matter back to the Tribunal for determination according to law.

3                     The Tribunal proceeded to re-determine the matter.  The appellant attended a hearing before the Tribunal on 18 January 2005 (‘the second hearing’).  On 1 March 2005 the Tribunal handed down its decision toaffirm thedelegate’s decision notto grant the appellant a protection visa (‘the second decision’).  The appellant sought judicial review of the second decision in the Federal Magistrates Court.  The Federal Magistrates Court dismissed the application in a decision delivered on 15 December 2006.

4                     In his application for a protection visa and before the Tribunal, the appellant claimed to have a well-founded fear of persecution based on his political opinion and activities as a member of the Jatiya Party in Bangladesh.  The Tribunal, in the second decision, was not satisfied that the appellant had a well-founded fear of being persecuted for a Convention reason in Bangladesh.  The Tribunal concluded:

‘In light of the applicant’s complete lack of knowledge about the party of which he claims to have been a member, and his lack of knowledge and glaring inconsistencies and contradictions in the evidence regarding his uncle (his claimed mentor and guide in his political career), the Tribunal cannot be satisfied that the applicant has been truthful about his involvement in the Jatiya Party and it cannot be satis_fied that the applicant has ever been involved in political activities in Bangladesh.’

5                     The appellant had provided a number of documents to the Tribunal in order to corroborate various claims that he made about his political activities in Bangladesh.  The Tribunal did not attach any weight to the documents for the following reasons:

‘The applicant submitted a number of documents in support of his application, but again, numerous inconsistencies and contradictions arose in relation to these documents to which the applicant gave no reasonable explanation, and bearing in mind the Tribunal’s finding above about it’s [sic] grave adverse credibility finding in relationship to his membership ofthe Jatiya party, and the independent evidence regarding document fraud in Bangladesh, the Tribunal cannot give any weight to the documents submitted by the applicant.’

Proceedings in the Federal Magistrates Court

6                     The Federal Magistrates Court considered a series of grounds raised by the appellant in his application for review and his amended application for review.  The application for review contained the following grounds:

(1)               That the Tribunal made an error of law by adopting a ‘negative attitude’ towards the appellant’s claims.

(2)               That the Tribunal made an error of law in relation to theappellant’s credibility.

(3)               That the Tribunal made a jurisdictional error in finding that the documents submitted by the appellant were not authentic, based on independent evidence provided by the Department.

(4)               That the appellant was denied natural justice.

7                     The appellant’s amended application for review set out the following grounds:

(1)               The Tribunal identified the wrong issue in relation to the appellant’s involvement with politics and made a wrong assumption about the appellant’s uncle in that the Tribunal found that the appellant had described himself as an ‘ordinary member’ of the Jatiya Party when there was no evidence for that finding.

(2)               The Tribunal acted in excess of jurisdiction by asking the appellant questions about fraudulent documents used by Bangladeshi asylum seekers and the asking of such questions demonstrated a negative attitude towards those documents.

(3)               The Tribunal relied on irrelevant material and asked the appellant irrelevant questions at the hearing relating to the policies of the Jatiya Party.

(4)               The Tribunal ignored relevant material and failed to ask the appellant relevant questions about particular incidents that formed part of the appellant’s claims.

8                     The primary judge rejected each of these grounds of review.  His Honour noted that the grounds of review raised by the appellant primarily involved an attack upon the factual findings made by the Tribunal and, in particular, the Tribunal’s findings regarding credibility.  The primary judge was satisfied that the Tribunal did not make any findings of fact or any findings in relation to credibility that were not properly open to it.

Grounds of appeal raised by the appellant

9                     The appellant’s notice of appeal raises three grounds:

(1)               The Tribunal failed to give weight to the documents submitted by the appellant to the Tribunal to support his claims and displayed a ‘negative attitude’ to those documents.

(2)               The Tribunal denied the appellant natural justice by not inviting him to make any written comment upon the Tribunal’s doubts relating to the documents submitted by the appellant.  The appellant also contends that this constitutes a breach of s 424A of the Migration Act 1958 (Cth) (‘the Act’).

(3)               The Tribunal made a wrong assumption about the appellant’s future political prospects and misunderstood the reality of the appellant’s future political life.

Ground 1 – Alleged error in treatment of documents submitted by appellant

10                  Ground 1 of the notice of appeal, while not in the same terms as any of the grounds set out in either of the applications before the Federal Magistrates Court, is, in substance, a re-agitation of arguments that were considered by the primary judge regarding the Tribunal’s findings about the validity of documents submitted by the appellant.  For the reasons identified by the primary judge at [23] and [29] and elaborated upon below, this argument must fail.

11                  The Tribunal gave detailed consideration to the authenticity of the documents submitted to it by the appellant in support of his claims.  The Tribunal noted independent country information to the effect that there is a ‘very high levelof document fraud in Bangladesh with fraudulent documents able to be obtained with the assistance of police’ and also that there ‘has been a particularly active market for fabricated documents to support asylum applications filed by individuals claiming abuse because of membership in the Jatiya Party’.  The Tribunal also noted that there were significant inconsistencies between the appellant’s claims and evidence and the documents he submitted to the Tribunal.  The Tribunal asked the appellant a series of questions about the documents that he had provided and invited the appellant to comment on particular inconsistencies as well as the independent country information regarding the authenticity of documents relating to Bangladeshi asylum seekers.  

12                  The Tribunal was not satisfied as to the authenticity of the documents submitted to it by the appellant and found that it could not give those documents any weight.  This finding was said to be based on the numerous inconsistencies and contradictions arising from the documents for which the appellant had given no reasonable explanation, the Tribunal’s broader adverse finding about the appellant’s credibility and the independent evidence regarding document fraud in Bangladesh.  The Tribunal’s findings in this regard were open to it on thefacts and there isno substance to the appellant’s contention that the Tribunal erred in its treatment of the documents.

13                  To the extent that theappellant raises, by ground 1, an allegation of bias on the part of the Tribunal in its approach to the documents submitted by the appellant, there is no substance to the allegation.  It is appropriate for the Tribunal to determine the authenticity of documents submitted by an applicant.  There is nothing in the reasoning or conclusion of the Tribunal in this case to indicate that the Tribunal failed to bring an impartial mind to that task or that would lead a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, to reasonably apprehend that the Tribunal member may not have brought an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal; Ex, parte H (2001) 179 ALR 425 at [27] – [32]; see also NADH of 2001 v Minister for Immigration (2005) 214 ALR 264 at [115].

Ground 2 - Alleged breach of natural justice

14                  By ground 2of the notice of appeal the appellant alleges that the Tribunal denied him natural justice by not inviting him to make any written comment upon the Tribunal’s doubts relating to the documents submitted by the appellant.  The appellant also contends that this constitutes a breach of s 424A of the Act.  Ground 2 is factually and legally misconceived, for the reasons given by the primary judge at [25], and for the reasons set outbelow.

15                  The application for review which wasconsidered by the Tribunal in the second decision was lodged prior to the introduction of s 422B of the Act.  Accordingly, it is theoretically open to the appellant to argue that there was a breach of the common law principles of procedural fairness in the Tribunal’s treatment of his application.  However, on the facts of the present case, there is no factual basis for the suggestion that the appellant was not given a reasonable opportunity to beheard in respect of the authenticity of the documents that he provided to the Tribunal.  As noted above, the Tribunal asked the appellant a series of questions about the documents and invited the appellant to comment on particular inconsistencies as well as on the independent country information regarding the authenticity of documents relating to Bangladeshi asylum seekers.  In the circumstances the appellant was plainly on notice as to the Tribunal’s concerns about the authenticity of the documents that he had provided and was given sufficient opportunity to be heard on that issue.

16                  There is no common law principle of procedural fairness that has the effect that the Tribunal was obligedto give the appellant an opportunity to make ‘written comment’ upon the issues raised regarding the authenticity of the appellant’s documents. Pursuant to s 424A of the Act, the Tribunal is under a statutory duty to give an applicant written notice of particular information and invite the appellant to comment upon the information.  However, s 424A does not apply to information that the applicant gave to the Tribunal for the purpose of the application for review: s 424A(3)(b).  Nor does s 424A apply to independent country information that 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’: s 424A(3)(a). Accordingly, the Tribunal was not required by s 424A to give the applicant written notice of either the information contained in his own documents or the independent country information that the Tribunal had obtained regarding the authenticity of documents relating to Bangladeshi asylum seekers.  The Tribunal did put the appellant on notice at the hearing of its concerns and invited his oral response.  This was sufficient to discharge the common law duty to givethe appellant a right to be heard on those matters.  There was no applicable statutory duty to do more than this.

Ground 3 – Alleged error in finding regarding appellant's future activities.         

17                  At the end of the second decision, the Tribunal concluded:

‘Finally, given the applicant’s lack of political activity in the past in Bangladesh, and the lack of any activity of meaning in Australia (he has failed to provide any evidence of genuine, committed or consistent political activity) since his arrival five years ago, the Tribunal cannot be satisfied that the applicant would become involved in any political activity upon return to Bangladesh.’

18                  By ground 3 of the notice of appeal, the appellant seeks to challenge this factual finding by asserting that the Tribunal made a ‘wrong assumption’ about his future political prospects and misunderstood the reality of his future political life.

19                  This ground amounts to an attack on themerits of the Tribunal’s finding.  The Tribunal’s finding that it could not be satisfied that the appellant would become involved in political activities in Bangladesh was a logical consequence of its broader findings regarding the credibility of the appellant’s claims.  The Tribunal’s finding was one which was plainly open to it on the facts of the case as found by the Tribunal.  The appellant has not identified any basis for arguing that the Tribunal’s reasoning in this regard was infected by jurisdictional error.  There is no substance to ground 3.

20                  Moreover, ground 3 of the notice of appeal raises an issue that was not argued in the Federal Magistrates Court.  An appellant requires leave to rely on arguments not raised in the court below.  Such leave will only be granted where it is expedient in the interests of justice for such leave to be granted: see NAIT v Minister for Immigration & Multicultural& IndigenousAffairs (2005) 147 FCR 51 per Madgwick J (with whom Conti J agreed) at [154] – [175] (in particular at [162] and following where the issue of raisingfreshissues of law is considered).  One of the criteria for determining whether leave should be granted to raise a new legal argument on appeal is whether theargument has reasonable prospects of success.  In some cases it may be appropriate to hear argument in full on the merits of a new legal argument in order to determine the question of whether leave should be granted to raise the new argument: see SZEPN v Minister for Immigration and MulticulturalAffairs [2006] FCA 886 at [17].

21                  Ground 3 is entirely lacking in merit, for thereasons set out above, and leave to raise ground 3 in the appeal is refused.

22                  The appeal must be dismissed with costs.

Associate:

Dated:         3 May 2007