FEDERAL COURT OF AUSTRALIA

SZFME v Minister for Immigration & Citizenship [2007] FCA 678

SZFME v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 243 OF 2007

EDMONDS J

10 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 a judgment of the Federal Magistrates Court (Nicholls 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 (class XA).

Background

2                     The appellant, a citizen of Bangladesh, first arrived in Australia on 20 December 2001 and then again on 15 January 2002.  On 17 January 2002 he lodged an application for a protection visa claiming to have a well-founded fear of persecution because of his political opinion.  After the Minister’s delegate refused the application, the appellant applied to the Tribunal for review of the delegate’s decision.  The Tribunal affirmed the delegate’s decision but that decision was set aside by consent and the Federal Magistrates Court remitted the matter to the Tribunal for reconsideration.

3                     On 15 July 2004 the Tribunal informed the appellant that it was unable to make a decision on the information in his application and invited him to a hearing on 19 August 2004.  On 18 August 2004 the Tribunal received submissions from the appellant’s adviser.  The appellant attended the hearing and gave oral evidence.  He also produced his Bangladesh passport.  Further submissions were provided after the hearing.

4                     On 17 December 2004 the Tribunal handed down its decision affirming the delegate’s decision not to grant the appellant a protection visa.  The appellant filed an application for review in the Federal Magistrates Court on 13 January 2005 and an amended application on 15 April 2005.  After a hearing on 24 October 2006, the application was dismissed on 2 February 2007.

The Appellant’s Claims

5                     Before the Tribunal, the appellant claimed that he feared persecution in Bangladesh because of his political opinion and affiliation with the Awami League.  Briefly, the appellant claimed that:

(1)               he was from ‘a family of strong political background’;

(2)               he was involved with the Bangladesh Chattra League as the organising secretary of the Matlab College Unit between 1991 and 1995;

(3)               he had been subject to political persecution from the Bangladesh Nationalist Party (‘the BNP’) as he was actively involved in the movements against the ‘misrules of BNP’;

(4)               he became a member of the Awami League in 1996 and became a target of the BNP supporters in the Fatehpur and Matlab areas due to the position he held;

(5)               after an election victory in 1996, the Awami League was defeated in 2001 and the BNP came into power leading an alliance with Jamaate Islami who worked together to take ‘revenge’ on, and ‘torture’, Awami League supporters;

(6)               threats were made to his life by BNP supporters when he returned to Bangladesh in December 2001;

(7)               because of ‘racial hatred and persecution in Fiji’ (to where he had subsequently moved, and where one of his brothers had already been killed for political reasons), he decided to come to Australia.

The Tribunal’s Findings and Conclusion

6                     The Tribunal’s ‘Findings and Reasons’ are set out in its decision record.  The Tribunal:

(1)               accepted that the appellant’s elder brother was injured in a bomb attack, but found that this was not because of the appellant’s situation;

(2)               accepted that ‘political clashes are a regular occurrence in Bangladesh and the [the appellant] himself became involved in “fierce clashes” with BNP’.  The Tribunal referred to independent country information that stated ‘there is no evidence of the current BNP government specifically targeting Awami League members’;

(3)               was not satisfied that ‘just because his elder brother was either injured in an attack on a public rally in Bangladesh, or its aftermath’, that the appellant had a well-founded fear of serious harm amounting to persecution for Convention-related reasons on this basis;

(4)               did not accept that the ‘ideology of the Awami League and the Communist party are about the same’ (a claim made by the appellant);

(5)               with reference to the killing of the appellant’s brother 18 years ago, found that this would not result in a ‘real chance he will be subjected to serious harm’ and further found that he ‘embellished his claims in order to enhance his claims for a protection visa’;

(6)               accepted that the appellant was involved with the Awami League in a ‘very minor and administrative way’ in his village, and it was ‘satisfied that he does not have the political knowledge and insight required by a person who undertook the duties he claims he had’;

(7)               was not satisfied that there was a real chance that the appellant would be harmed some four years later because of this limited, and essentially administrative, involvement with the Awami League at a local village level.  The Tribunal did not accept that he was a ‘leading activist’;

(8)               found that the appellant was ‘not a credible witness’;

(9)               in relation to a ‘false’ court case brought against the appellant about an incident in September 2001, accepted that the appellant had been mentioned in a court case, but was satisfied ‘that it would be easily demonstrated to the Courts in Bangladesh that he was not in Bangladesh at the time and so could not have been involved in the incident’.  The Tribunal also found that the appellant had a legal representative and would have ‘full recourse to the law’;

(10)           in relation to earlier charges dating back to 1996, was not satisfied that the appellant would be subject to arbitrary arrest by the police for this or any other reasons, or that he would be detained and tortured;

(11)           with reference to the appellant’s previous visit to Australia (in December 2001), found that if he had a well-founded fear of serious harm amounting to persecution for any Refugees Convention-related reason, not only would he have sought refugee status in Australia during his first visit, he would also have not returned to Bangladesh;

(12)           in relation to the issue of whether the appellant had a further claim based on what happened in Bangladesh upon his return from Australia, did not accept his claims that he would be targeted by BNP followers in Bangladesh;

(13)           found that it would be reasonable for the appellant to live elsewhere in Bangladesh in safety without there being a real chance that he would be subjected to serious harm for a Convention-related reason;

(14)           was not satisfied that the ‘essential and significant reason’ for any difficulties that the appellant claimed he had in finding a job and accommodation elsewhere in Bangladesh was a Convention-related reason.

7                     The Tribunal concluded, on what was before it, that the appellant was not a refugee and that there was no real chance that he would be subjected to serious harm amounting to persecution for a Convention reason if he returned to Bangladesh.

In the Court below

8                     There were sixgrounds of review raised in the appellant’s amended application.  In addition, in oral submissions the appellant, who was self-represented, made six submissions, summarised by his Honour: at [9].

9                     His Honour rejected the appellant’s first ground of review that the Tribunal exceeded its jurisdiction, or constructively failed to exercise its jurisdiction by asking itself the wrong question regarding his persecution and failed to consider the evidence of the appellant because a reading of the decision and consideration of the transcript of the hearing tendered by the appellant revealed that the Tribunal:

(a)                was ‘plainly focused on whether the applicant has a well founded fear of persecution for a Refugees Convention reason’: at [11]; and

(b)               had regard to and considered the appellant’s oral and documentary evidence; in his Honour’s view, the appellant’s real complaint is that the Tribunal did not accept the appellant’s material: at [13].

10                  His Honour rejected the appellant’s second ground of review that there was a denial of natural justice and apprehended bias.  His Honour concluded there was no denial of natural justice, noting that the appellant attended a hearing, provided written submissions which were taken into account and the Tribunal put relevant critical matters to the appellant and invited, and considered, his responses: at [15].  In addition, his Honour rejected the claim that there was bias or an apprehension of bias: at [16] – [17].

11                  In evaluating the appellant’s third ground of review, in relation to the competency or adequacy of the interpreter provided for the Tribunal hearing, his Honour did not accept the transcript as provided by the appellant (over the first respondent’s objection) as being complete or accurate; his Honour looked to the Tribunal’s account of what occurred at the hearing: at [25].  His Honour concluded, in any event, that the transcript did not indicate that there was anything to establish, in terms of the standards put forward in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507, that the interpretation was inadequate or that the interpreter was not competent: at [26].  In addition, the appellant was assisted by a migration agent throughout the application for review who also attended the hearing.  His Honour rejected this ground of review: at [27].

12                  His Honour also rejected the claim, within the third ground of review, that challenged the Tribunal’s finding on the appellant’s credibility: at [28].

13                  His Honour rejected each of the three complaints within the fourthground of review:

(a)                therewas no denial of procedural fairness in the Tribunal ‘ruling out’ theappellant’s claim as ‘fabricated’ because the Tribunal did not rule out a claim but found thatthe appellant had embellished his political involvement and that, in any event, it was open to the Tribunal to so find: at [29];

(b)               there was no obligation on the Tribunal to conduct ‘proper investigations’: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR155: at [30]; and

(c)                the appellant was given ample opportunity to address the concerns raised by the Tribunal: at [31] – [34].

14                  His Honour rejected the fifth ground of review as incomprehensible: at [35]; but did note that it was open to the Tribunal to consider the country information and that it did in fact put the country information to the appellant: at [36].

15                  His Honour rejected the sixth ground of review as seeking merits review: at [38].

16                  His Honour also considered a matter raised by the Minister in relation to the Tribunal’s decision: whetherthe Tribunal breached its obligations pursuant to s 424A of the Migration Act 1958 (Cth) (‘the Act’) by relying on information that was not provided by the appellant for thepurposes of the application to the Tribunal.  The ‘information’ that was identified as possibly falling within s 424A was itemised by his Honour at [41] (1) – (6).  His Honour concluded that the information was either put to the Tribunal by the appellant’s adviser ([52], [54], [56], [57], [60]) and therefore subject to the express exception in s 424A(3)(b), ordid not formpart of the reasons ofthe Tribunal ([55], [64]) and therefore did not come within the obligation contained within s 424A.

17                  In addition, his Honour accepted that there was an alternative relocation finding in the Tribunal’s decision – that it would be reasonable for the appellant to live elsewhere in Bangladesh if for any reason he did not wish to return to his local village – which was a separate basis, independent of the other findings, for affirming the delegate’s decision, such that if there had been a breach of s 424A, this finding was not affected by that breach: at [58].

The Appeal in this Court

18                  The following grounds of appeal are raised and relied upon in the appellant’s notice of appeal:

(a)                that his Honour erred in failing to find that the Tribunal made a jurisdictional error in not following s 424A of the Act;

(b)               that his Honour failed to find that the Tribunal did not comply with s 430 of the Act; and

(c)                that his Honour did not consider that the Tribunal denied the appellant natural justice in not properly assessing the evidence of the appellant submitted in support of his application.

19                  His Honour, based on the Minister’s submissions and not on any matter identified by the appellant, engaged in a detailed consideration of the possible application of s 424A of the Act to the Tribunal’s decision in light of the High Court’s decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1009 and the Full Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006)150 FCR 214.  The notice of appeal does not identify any particular error his Honour may have made.  This ground of appeal must be rejected.

20                  The ground of appeal in relation to s 430 is unclear.  There was no reference to s 430 in the amended application.  There is no indication that the Tribunal failed to comply with its obligations under s 430 to record its decision.  This ground of appeal is also rejected.

21                  In relation to the third ground of appeal, his Honour below characterised a similar ground of review (the first ground below) as essentially a challenge to the Tribunal’s failure to accept the appellant’s claims to the extent sufficient to find him to be a refugee: at [13].  As his Honour stated, the appellant ‘is thereby seeking impermissible merits review from the Court’ (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259): at [13].  This ground of appeal is also rejected.

22                  In addition, the Tribunal’s decision had two alternative bases.  The first basis was that the appellant’s claims were not sufficient for him to becharacterised as having a well-founded fear of persecution for a Convention reason.  The second basis for the Tribunal’s decision was that the appellant could relocate such that Australia did not owe the appellant protection obligations.  There has been no challenge to his Honour’s finding in relation the alternative basis of the Tribunal’s decision: see VBAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs[2005] FCA 965 at [33]; SZEEU at [233] (per Allsop J).

23                  His Honour made no error in dismissing the application as there was no jurisdictional error in the Tribunal’s decision either identified by the appellant or separately considered by his Honour.

Conclusion

24                  The appeal must be dismissed with costs.

Associate:

Dated:         9 May 2007