FEDERAL COURT OF AUSTRALIA

SZGCF v Minister for Immigration & Multicultural Affairs [2007] FCA 680

SZGCF AND SZGCG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 26 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 (Burnett 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’) refusing an application for protection visas.

Background

2                     The appellants are husband and wife, and along with their daughter, are citizens of Bangladesh.  They departed Bangladesh in March 2004 and travelled to New Zealand.  They departed New Zealand in August 2004 for Australia, arriving on 15 August 2004.  On 15 September 2004 they lodged an application for protection visas (class XA) claiming to fear persecution by reason of the husband’s political opinion.  A delegate of the Minister refused to grant them protection visas and they applied to the Tribunal for review of that decision.

The Appellants’ Claims

3                     Itwas claimed that the appellant husband was a successful businessman and a leading member of the Jatiya Party (‘the JP’) who had the task of ‘taking care of the people residing in or within the [Mohammad Pur] dam area and to keep the people convinced towards Jatiya party for future party support’.

4                     The appellant husband’s brother was attacked and killed by unknown people and the appellant husband received telephone calls threatening harm to his family.  The appellant wife did not undertake political activities but was attacked and beaten on 26 November 2002 by unknown assailants whilst accompanying her husband to the JP office.  The appellant wife suffered a broken arm.

In the Tribunal

5                     The Tribunal accepted that the appellant husband was a member of the JP and that the appellants were attacked, beaten and received threatening telephone calls.  However, the Tribunal was not satisfied that there was sufficient evidence to indicate that the attacks were politically motivated or linked to the husband’s involvement with the JP.

6                     The Tribunal found:

(a)                Violence between political parties was a pervasive aspect of political activity in Bangladesh, but was largely restricted to the two major political parties, the Bangladesh Nationalist Party (’the BNP’) and the Awami League (‘the AL’).

(b)               The JP was not a significant political party in Bangladesh and JP members were not commonly targeted by political opponents.

(c)                The appellants would not be persons of particular interest or concern to the major political parties, supporters of political parties or the authorities in the reasonably foreseeable future by reason of the appellant husband’s involvement with the JP.

(d)               Information about the alleged attackers was vague and it was mere speculation that the attacks on the appellants and the appellant husband’s brother were motivated for political reasons.

(e)                The appellant husband greatly exaggerated his political achievements and the JP in his constituency, and throughout Bangladesh, was a minor party with few supporters.

(f)                 If anonymous telephone calls were made by political opponents, they were isolated and unique incidents.

(g)                The authorities in Bangladesh acted appropriately when the appellants were harassed and assaulted.

7                     Accordingly, the Tribunal found the appellants did not have a well-founded fear of persecution in Bangladesh for reasons of political opinion.

In the Court below

8                     The appellants appeared in person at a hearing before Burnett FM on 8 December 2006.  In his reasons for judgment, his Honour summarised the background to the matter, the appellants’ claims and the basis for rejecting the appellants’ case.  His Honour then considered the five grounds effectively raised by the appellants’ amended application.

9                     The first ground alleged that the Tribunal had failed to comply with s 424A of the Migration Act 1958 (‘the Act’).  His Honour noted that no particulars of what ‘information’ the Tribunal was said to have relied upon were provided.  Moreover, his Honour was unable to identify any information which would invoke the Tribunal’s obligations under s 424A of the Act.  Aside from personal information which was provided by the appellants to the Tribunal, his Honour found that the Tribunal had relied on country information which fell within the exception in s 424A(3)(a) of the Act.  No error is revealed in this approach.

10                  The second ground alleged that the authorities cited by the Tribunal were ‘information’ for the purposes of s 424A of the Act and should have been put to the appellants for comment.  His Honour found, on the basis of VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24], that it was clear that legal authorities do not constitute information, as they do not constitute facts or circumstances and their consideration involves subjective appraisals or thought processes.  Even if wrong on this point, his Honour found that the authorities would fall within the exception contained in s 424A(3)(a) of the Act as they were not specifically about the appellants.  Again, no error is disclosed in this approach.

11                  The third ground of the amended application alleged that the Tribunal failed to ensure that the appellants understood the relevance of ‘this information’.  As his Honour had already found that the Tribunal had no obligation under s 424A of the Act, no breach of s 424A(l)(b) was established.  Inany event, his Honour found that there was no support for the submission that the Tribunal ‘failed in its obligation to ensure as far as was reasonably practicable that the applicants understood why their need to demonstrate why they were refugees was relevant to the outcome’.  There is no error in the rejection of this ground.

12                  Ground four of the amended application effectively repeated the argument raised by ground two and the reasons relied upon by his Honour are relevantly repeated here.  Again, no error is apparent.

13                  Ground five of the amended application claimed that the Tribunal generalised the appellants’ claims but his Honour regarded this ground as a complaint against the merits of the Tribunal’s decision.  His Honour was undoubtedly correct in finding that merits review was not a matter within the jurisdiction of the Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

14                  As his Honour found that the Tribunal decision was not affected by any jurisdictional error, it was open to him to dismiss the application.

The Appeal in this Court

15                  The notice of appeal contains a number of grounds of jurisdictional error asserted against the Tribunal but fails to relevantly identify any error in the decision or approach of the court below.

16                  Ground 1 of the notice of appeal alleges that the appellants were denied procedural fairness because the Tribunal was biased and applied a ‘technic’ (sic) for testing their credibility.  The appellants have made no attempt to comply with the requirement that an allegation of bias is a serious allegation which must be firmly and distinctly made and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J.  There is no evidence before the Court to support such an assertion.  The Tribunal is plainly entitled to exercise some control over the direction of its hearing by asking questions.  Proceedings before the Tribunal are not adversarial but inquisitorial: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57].  The Tribunal is entitled to ask questions to satisfy itself of matters: NADH v Minister for Immigration [2004] FCAFC 328 at [124] to [125]; Re Minister for Immigration; Ex parte Epeabaka (2001) 206 CLR 128 at [52].  Findings of fact, including findings in relation to credit, are a matter solely for the Tribunal: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9].  This ground cannot be established.

17                  This ground also makes a generalised complaint that the Tribunal’s decision was unjust because it was made without taking into account the full gravity of the appellants’ circumstances and the consequences of the decision.  Again, there is no proper basis for this complaint which effectively seeks to take issue with the merits of the Tribunal’s decision.  No error is disclosed.

18                  Grounds 2 and 3 of the notice of appeal respectively allege that the Tribunal’s decision was an improper exercise of power and involved jurisdictional error including an incorrect interpretation of the applicable law to the facts of the case.  There are three sets of particulars listed under these grounds.

19                  The particulars in ground 3(a) assert that the Tribunal did not comply with the mandatory obligation contained in s 424 of the Act.  Section 424 of the Act provides that the Tribunal may seek any additional information it considers relevant, although the provision has no meaningful connection to the facts of the present case.

20                  The particulars in ground 3(b) effectively repeat the appellants’ complaint that the Tribunal referred to case authorities without explaining their relevance.  Relevantly, the information cited in para 1 of page 3 of the Tribunal’s decision refers to cases that have considered the definition of ‘refugee’ in Article IA(2) of the Refugees Convention.  There is no breach of any statutory provision or obligation by the Tribunal in failing to explain this information to the appellants.  His Honour below found, correctly, the reference to case authorities did not constitute ‘information’ for the purposes of s 424A of the Act and the Tribunal had no obligation to provide particulars of that information to the appellants.  Accordingly, this ground cannot succeed.

21                  The particulars in ground 3(c) amount to no more than a restatement of general principles relating to, and examples of, jurisdictional error.

22                  Ground 4 of the notice of appeal is an allegation that the appellants were denied natural justice but no particulars are provided to make this allegation meaningful.

23                  Ground 5 repeats the complaint that the Tribunal decision was unjust.  This ground is addressed in [17] above and effectively amounts to merits review.  No error is established on the part of his Honour or the Tribunal in this regard.

24                  Ground 6 alleges that the Tribunal had ‘no other substantive material or evidence to justify its decision’ but there are no proper particulars or evidence to support this complaint.  In any event, the Tribunal gave comprehensive reasons for its decision which reveal no error and it was open to the Tribunal to prefer the independent country information or simply not accept the appellants’ claims: McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8, Jordan CJ at 9, approved by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [355].  Relevantly, s 65(l) of the Act:

‘does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established.  Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied.’  

(SJSB v Minister for Immigration [2004] FCAFC 225 per Ryan, Jacobson and Lander JJ at [15]).

25                  The Tribunal’s findings were open to it for the reasons given and findings on credibility are matters of fact for the Tribunal alone and should not be disturbed by the Court: Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].

26                  Ground 7, that ‘Federal Magistrate FM Burnett failed to remit the matter back to the Tribunal for reconsideration according to the law as the tribunal failed to comply with the mandatory obligations and also the lawful effect while making the decision of the review application’, is not a proper ground of appeal.

27                  As the reasons of his Honour indicate a comprehensive examination of the appellants’ case and reveal no error, the appeal must be dismissed with costs.

Associate:

Dated:         9 May 2007