FEDERAL COURT OF AUSTRALIA

SZCKZ v Minister for Immigration and Citizenship [2007] FCA 674

SZCKZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 391 OF 2007

COWDROY J

25 MAY 2007

SYDNEY

THE COURT ORDERS THAT:

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

2.                  The appeal be dismissed.

3.                  The appellant pay the costs of the first respondent in the sum of $3000.

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

REASONS FOR JUDGMENT

1                     The appellant seeks judicial review of the decision of Federal Magistrate Driver delivered on 22 February 2007 which affirmed the decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 22 December 2005 to refuse to grant the appellant a protection visa.

2                     The appellant is a citizen of Bangladesh who arrived in Australia on 4 October 2001. On 2 November 2001 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (‘the Department’). A delegate of the Minister for Immigration and Multicultural Affairs (‘the Minister’) refused the application on 30 May 2002. On 31 October 2002 the appellant applied to the Tribunal for a review of that decision. A hearing was held (‘the first hearing’) and the Tribunal handed down its decision on 18 November 2003. Such decision was set aside and the matter was remitted to the Tribunal by consent on 22 September 2005 by Federal Magistrate Scarlett. The Tribunal held a second hearing and handed down its decision on 22 September 2005. The appellant appealed this decision to the Federal Magistrates Court and the decision of that Court is the subject of the current proceedings.

3                     The appellant claimed to fear persecution due to his membership of the Hindu minority in Bangladesh and of the Bangladesh Chattra League, the student wing of the Awami League. The appellant outlined his involvement in student politics, and in particular his involvement in the election in 2001 and the reprisals that ensued after the election when the BNP and Jamat-E-Islami alliance took control of Bangladesh. The appellant claims that warrants were issued for his arrest and false charges were laid against him.

4                     At the first hearing before the Tribunal the appellant claimed that he feared persecution because some of his friends had been killed due to their political activities and that he had become aware that false charges had been made against him because of his own political activities.

5                     At the second hearing the appellant made further claims including that he was a high profile leader while at college and organised many movements against the BNP which brought him to the attention of the authorities. The appellant outlined the persecution he suffered because of his membership of the Hindu minority and his victimisation by the Enemy Property Law. The appellant provided fourteen different documents to the Tribunal including newspaper articles and a letter from a former Minister of Parliament as support his political profile.

THE DECISION OF THE TRIBUNAL

6                     The Tribunal considered the claims and evidence presented by the appellant but was not satisfied that the appellant was a leading Chattra League activist although it did accept that the appellant held a position in this party in 1995. The Tribunal asked the appellant to explain the philosophy and politics of the Chattra League and the Awami League but the appellant only expressed vague and general knowledge. The Tribunal considered that the appellant had embellished his claims that his friends had been killed in order to enhance his application. The Tribunal concluded that the appellant was not a credible witness and was not able to satisfy itself that the appellant had a well-founded fear of persecution within the meaning of the Convention relating to the Status of Refugees 1954. Accordingly the Tribunal found that the appellant was not a person to whom Australia owed protection obligations.

APPLICATION TO THE FEDERAL MAGISTRATES COURT

7                     On 18 January 2006 the appellant applied to the Federal Magistrates Court seeking judicial review of the decision of the Tribunal. The appellant relied on an amended application filed on 22 May 2006 which set out three grounds of appeal. The appellant alleged that a breach of s 424A of the Migration Act 1958 (Cth) (‘the Act’) occurred as the Tribunal had relied on evidence presented by the appellant to the previously constituted Tribunal; that the Tribunal failed to consider the letter referred to in the decision of Driver FM as the Chando Memorandum from a former Minister of Parliament; that the Tribunal wrongly inferred that the appellant did not have a well-founded fear of persecution at the time of his application on 2 November 2001 and misconceived the factual basis of the claims of the appellant, asked itself the wrong question and had regard to irrelevant considerations, thereby falling into jurisdictional error.

THE DECISION OF THE FEDERAL MAGISTRATE

8                     In relation to the alleged breach of s 424A of the Act, Driver FM relied on his decision in SZHUI v Minister for Immigration and Multicultural Affairs & Another [2006] FMCA 1042 in which his Honour held that information provided by the applicant to the first Tribunal is included within the exception to s 424A(1) contained in s 424A(3)(b) of the Act. Support for that proposition was found in the decision of Smith FM in SZGNY v Minister for Immigration and Multicultural Affairs [2006] FMCA 1142 at [21] where his Honour relied on the reasoning of the Full Court of the Federal Court of Australia in SZEPZ v Minister for Immigration and Multicultural Affairs & Anor [2006] FCAFC 107. That decision held that the review which was conducted by the reconstituted Tribunal was the review originally instituted by the application for review. As a result, the information does not lose its character as information presented to the Tribunal by an applicant for the review application.

9                     Driver FM acknowledged the reasoning of the Full Court of the Federal Court in WAIJ v Minister for Immigration Multicultural Indigenous Affairs [2004] FCAFC 74 and stated that in the circumstances, where the Tribunal had credibility concerns about aspects of the appellant’s claims which prevented the Tribunal from accepting the claims as true, it was not open to the Tribunal to fail to have regard to corroborative material before reaching conclusions about the credibility of the applicant. The substance of the appellant’s complaint was that the Tribunal did not refer to the Chando Memorandum in rejecting other claims made by the appellant. Driver FM found however that the Tribunal did consider the Chando Memorandum and implicitly accepted it as an authentic document and found that the Tribunal was entitled to limit its references to the Chando Memorandum to those parts of it which provided specific corroborative support to the factual claims of the appellant. The second ground of review was accordingly rejected.

10                  Driver FM noted that the Tribunal discussed the appellant’s fears of returning to Bangladesh and that it had considered the appellant’s submission that the life of Awami League activists had not been secure since the 2001 election. His Honour considered that the Tribunal did not misunderstand or fail to consider the claims of the appellant and found no error in its decision.

APPEAL TO THIS COURT

11                  The notice of appeal filed by the appellant on 13 March 2007 raises two grounds of appeal. First, the appellant alleges that Driver FM erred in finding that the Tribunal had considered the Chando Memorandum. Second, the appellant alleges that Driver FM erred in dismissing the third ground of appeal of the Tribunal’s decision which rejected those aspects of the claims that went to the extent of the appellant’s political profile.

APPELLANT'S SUBMISSIONS

12                  The appellant submitted that the Tribunal ignored false charges against him; failed to consider persecution currently being experienced by Hindus and Awami League activists and the persecution experienced by Hindus including the appellant after the national election in 2001; erroneously considered material placed before a previously constituted Tribunal which was not placed before the Tribunal at the second hearing; and failed to consider that the appellant was a credible witness.

13                  The appellant submits that Driver FM erred by finding no error in the Tribunal’s decision which rejected the claim of persecution resulting from the false charges brought against the appellant by the BNP activists; erred by failing to find that the Tribunal had breached s 424A of the Act; erred by failing to find that the Tribunal committed jurisdictional error because it did not give the appellant an opportunity to respond to adverse material it possessed before making its decision to refuse his claim; erred in rejecting the appellant’s review application; erred by failing to find that there was a denial of natural justice; and erred by failing to find errors in the conduct of the hearing before the Tribunal.

FINDINGS

14                  The function of this Court is not to review purported errors of the Tribunal, but rather purported errors of the Federal Magistrate: see Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210 at [10]; SZAJB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 782 at [4]. This Court has no power to undertake a merits review of the decision of either the Tribunal or the Federal Magistrate. The role of the Court in an appeal such as this was stated succinctly by Mason J (as he then was) in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-41, where his Honour said:

‘The limited role of a Court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of a Court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation [41].’

15                  The Minister further submits that leave is required if the appellant wishes to rely upon issues raised in his written submissions that were not included in his Notice of Appeal, and that such leave has not been sought nor granted. The Minister submits that if such leave is sought it should not be granted as no ‘exceptional circumstances’ exist in accordance with the decision in Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 at [18].

16                  As the appellant is unrepresented the Court will consider each of the claims as set out in his Notice of Appeal and his written submissions.

Notice of Appeal Findings

Significance of Chando Memorandum

17                  Narayon Chandra Chando, the president of the Bangladesh Awami League provided a memorandum in support of the appellant dated 31 October 2005. The Chando Memorandum refers to the appellant’s involvement in student politics in 1996, his election as General Secretary of the Student Union and the fact that he was President of the Internee Doctors Association. It states that the appellant campaigned to support the Awami League ‘all over the country’ in 2001 and that between 1990-2001 he ‘came into contact [with] many ministers of the Awami League’ and appeared on television news broadcasts on many occasions as a student leader. The Chando Memorandum states: ‘unfortunately he had some clashes with BNP and Chatra shibir students.’

18                  Driver FM found that the Tribunal had regard to the Chando Memorandum in its consideration of the appellant’s application for review and stated inter alia at paragraph [18] of his decision:

‘The Tribunal considered the Chando memorandum and implicitly accepted it as an authentic document. The Tribunal expressly referred to the Chando memorandum in accepting certain of the applicant’s factual claims.’

Driver FM found that the Chando Memorandum did not establish that the appellant was a ‘renowned leader’ of the Chattra League or that his political profile made him well known in the party. His Honour continued:

‘In my view the Tribunal was entitled to limit its references to the Chando memorandum in its reasons to those parts of it which provided specific corroborative support to the applicant’s factual claims, rather than vague or generalised support’.

19                  The weight to be attributed to the Chando Memorandum was entirely a matter for the Tribunal, see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40 where the Court stated:

‘[I]n the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.’

20                  The Tribunal referred to the ‘undated letter from the Bangladesh Awami League’ as this is the heading on the document. The date does not appear at the top of the letter in the space provided but it does appear above the signature. Since the Tribunal referred to such letter and to its contents, which is the Chando Memorandum, it is obvious that it was considered by the Tribunal.

21                  Accordingly there was no error demonstrated by the Tribunal nor by Driver FM as claimed.

Finding of Driver FM concerning alleged persecution

22                  In his application to the Federal Magistrates Court the appellant claimed that the Tribunal failed to take into consideration the threat to his life because of his religious belief and his activities as an activist of the Awami League, if he were to return to Bangladesh.

23                  Driver FM considered the factual findings of the Tribunal and observed that the Tribunal was not satisfied that the appellant was wanted by the police for a Convention related reason nor that false or other Convention related charges had been made against him. Driver FM said:

‘The Tribunal’s reasoning is clear enough. This is not a case of the Tribunal misunderstanding the applicant’s claims or failing to consider them or of it taking into account an irrelevant consideration.’

His Honour noted that the Tribunal had not accepted:

 ‘the applicant’s claims of a high political profile that might have placed him at risk in consequence of the outcome of the election’.

His Honour also observed that:

‘The Tribunal had rejected key elements of the applicant’s claims that went to the establishment of a political motive for such harm’.

His Honour then correctly observed that as such factual findings were made, there was no substance to the appellant’s claims that he was at risk of persecution.

24                  The appellant, through this ground of appeal, is seeking an impermissible merits review. Accordingly the Court cannot uphold this ground.

25                  It follows that the Court rejects each of the grounds of appeal raised by the appellant’s Notice of Appeal.

Claims in Written Submissions

26                  Most of the additional claims in the appellant’s written submissions fall within the purview of seeking an impermissible merits review by this Court. The conclusion that the appellant was not a credible witness was a finding open to the Tribunal to make: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [67] and as the Tribunal’s findings were open to it on the evidence, no error is established: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559. Similarly a wrong finding of fact by the Tribunal does not constitute a jurisdictional error: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [137].

27                  In relation to the appellant’s claim of a breach of s 424A of the Act because of the use by the second Tribunal of the information he provided to the first Tribunal, the mere fact that the appellant provided such information does not indicate that it was a reason or part of a reason for the making of the decision of the Tribunal: see SZEEU v Minister for Immigration and Multicultural Affairs (2006) 150 FCR 214 at [216]. The appellant’s submissions merely complain of the Tribunal’s reasoning process and do not relate to any failure of the Tribunal to provide information. Further, this claim was comprehensively addressed by Driver FM by reference to his Honour’s decision in SZHUI v Minister for Immigration and Multicultural Affairs [2006] FMCA 1042. In SZHUI at [62] Driver FM said, beginning with a quote of Smith FM in SZGNY v Minister for Immigration and Multicultural Affairs [2006] FMCA 1142 at [21]:

‘ “In SZEPZ v Minister for Immigration & Anor [2005] FMCA 1614 at [16]-[20], I inferred in a situation such as the present that the tribunal had been reconstituted under s. 422, and that the record which could be addressed by the reconstituted Tribunal included a s.424A notice and the applicant’s response given before the setting aside of a previous decision. On appeal the Full Court did not find it necessary to reach a conclusion whether I was correct in this reasoning, but it accepted my reasoning that the “review” which was being conducted by the reconstituted Tribunal was the review originally initiated by the application for review (see SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107). At [39] their Honours said:

            Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.”

    I agree with Smith FM. Where the RRT conducts a lawful review of a delegate’s decision, the RRT becomes functus officio and a second review application cannot be made [Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; SZDMO v Minister for Immigration and Multicultural Affairs [2006] FCA 989 at [6] and [8]]. Where the RRT commits a jurisdictional error, so that the review process must be repeated, there remains only one review application: the obligation on the RRT is to reconsider that application. A second review application could not be made because it would be out of time [Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 at [31]; VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570 at [33]]. Where an applicant puts information to a review tribunal for the purposes of his or her review application, that information is not withdrawn where the tribunal falls into jurisdictional error. Unless the information is specifically retracted by the applicant, it remains available to the tribunal on a reconsideration of the review application. Further, it does not lose its character as information presented to the tribunal for the purpose of “the [review] application”: s.424A(3)(b).’

28                  The Court is satisfied that there is no merit in the additional issues sought to be raised by the appellant in his submissions and as no ‘exceptional circumstances’ exist, the Court will not grant leave to the appellant to raise these grounds (see: Gomez 190 ALR at [18]).

29                  The Minister has sought an order for costs in the amount of $3000. As this is within a reasonable range for costs the Court will make the order sought.

Associate:

Dated:         25 May 2007