FEDERAL COURT OF AUSTRALIA

SZGHG v Minister for Immigration and Citizenship [2007] FCA 756

SZGHG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 438 OF 2007

MARSHALL J

17 MAY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1                                             The appellant appeals from a judgment of a Federal Magistrate which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘Tribunal’).  The Tribunal had affirmed a decision of a delegate of the first respondent Minister not to grant the appellant a protection visa.

2                                             The appellant is a citizen of Bangladesh and a Buddhist.  He is a former monk.  He claimed to fear persecution if returned to Bangladesh, in the reasonably foreseeable future, by reason of his religion.      

3                                             The Tribunal was not satisfied that the appellant had a well-founded fear of persecution.  It accepted that the appellant is a Buddhist and that he had been a monk in Bangladesh and Burma.  The Tribunal did not believe the appellant’s claim that he had central involvement in events which led to the burning down of a temple.  In any event, it found that the burning of the temple by alleged Muslim extremists was a “criminal” act, rather than Convention related.  The Tribunal also found that soon after arriving in Australia, the appellant had abandoned his monastic life for reasons other than to avoid discrimination or harm, and that being a monk was no longer important to him.

4                                             The Federal Magistrate considered the appellant’s submission that the Tribunal breached s 424A of the Migration Act 1958 (Cth) (‘Act’) by failing to give him notice in writing of particulars of information that the Tribunal considered would be part of the reason for affirming the decision under review. 

5                                             The relevant information was said to include information which formed part of a statement attached to the appellant’s visa application.  In that statement, the appellant referred to what he alleged had happened at his monastery in March 2002 and the lacklustre police response to that event, which consisted of the arrest and subsequent release of the two alleged criminals named by the appellant.      

6                                             That information, which was provided to the delegate, formed part of the Tribunal’s reasons for affirming the decision under review.  At p 12 of the Tribunal’s reasons it said:

            Previously he had said that the police arrested the two suspects on the day of the arson attack and released them that same evening. That        would have been on 21 March 2002. Now he was saying that the             arrests and release of the suspects took place the next day, 22 March    2002, as a direct result of his report to the police (and yet he was not       an eyewitness to the arson attack, telling the Tribunal that other people  saw it). In addition, although the Applicant was claiming now that the     two persons who were arrested were simply two people who worked in      the area, and thus implying that the real culprits were not being       pursued, he said in his protection visa application form that he was             being harassed at the time by a number of individual [sic] including the two people who were arrested.

            (Original emphasis.)

7                                             The appellant submits that, in accordance with s 424A(1) of the Act, the Tribunal should have informed him, in writing, that it may be relying on the information he gave the delegate, and its inconsistency with his oral evidence before the Tribunal, as part of its reason for affirming the decision under review and invited him to comment on that information.

8                                             The Minister submitted below, and maintains on appeal, that the Tribunal was not obliged to give the appellant the particulars of that information because it was information that the appellant gave for the purpose of the review application and therefore s 424A(1) of the Act is inapplicable due to the operation of s 424A(3)(b).   

9                                             The Court below did not determine that issue because it decided that the Tribunal’s decision was supported on an independent basis not relevant to the information said to give rise to the operation of s 424A(1). 

10                                          It is unnecessary to determine whether the Court below was correct in that regard.  That is because the relevant information contained in the appellant’s statement to the delegate is information which he gave to the Tribunal for the purpose of the review.  So much flows from the judgment of the Full Court of this Court in NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 (‘NBKT’).  

11                                          In NBKT 156 FCR 419, Young J (with whom Gyles and Stone JJ agreed) said at [63]:

            Furthermore, by filing written submissions with the Tribunal that             expressly referred to and incorporated the statement of grounds which     was attached to her visa application, the appellant invited the Tribunal to refer to her protection visa application. As in M55 [2005] FCA 131, there can be little doubt that the appellant intended that the Tribunal   should look at her protection visa application and its attachments. There is a sufficient basis to find that the appellant gave the date of her protection visa application to the Tribunal for the purposes of the review application. 

12                                          In a written statement provided to the Tribunal in his review application, dated 7 March 2005, the appellant specifically referred to his “primary statement”, meaning his statement to the Minister’s delegate.  The statement to the Tribunal included the following passage:

            I have placed the above facts before you for appropriate assessment of my application for protection visa. I am a Bangladeshi national. After face persecution and fear of my life I left Bangladesh and arrived in Australia that I have stated in my primary statement.

13                                          As in NBKT 156 FCR 419,by this passage the appellant invited the Tribunal to look at the statement he made to the delegate.  As the circumstances of this appeal are relevantly indistinguishable from NBKT 156 FCR 419, I am bound to hold that, in accordance with NBKT 156 FCR 419, the appellant’s argument based on s 424A is rejected. 

14                                          The appellant in his oral submissions this morning and in his other appeal ground sought to revisit findings of fact made by the Tribunal.  In particular, he alleged that the Tribunal’s finding that he had abandoned his monastic life for reasons other than discrimination was not supported by probative evidence and was illogical.  That submission does not reveal any jurisdictional error but seeks to cavil with the merits of the Tribunal’s decision.

15                                          The appeal is dismissed, with costs.         

Associate:

Dated:         21 May 2007