FEDERAL COURT OF AUSTRALIA

SZGDJ v Minister for Immigration and Citizenship [2008] FCA 722

Migration Act 1958 (Cth), s 91R(3)

Acts Interpretation Act 1901 (Cth), s 15AA

SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006]FCA 648 considered

Coulton v Holcombe (1986) 162 CLR 1 cited

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 cited

SZIMY v Minister for Immigration and Citizenship [2007] FCA 249 cited

SZHTC v Minister for Immigration and Citizenship [2007] FCA 1199 cited

SZGDJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 361 OF 2008

WEINBERG J

20 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the first respondent’s costs, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                          This is an appeal from a decision of Scarlett FM who, on 28 November 2007, dismissed an application for review of an earlier decision of the Refugee Review Tribunal (“RRT”) affirming a decision of a delegate of the respondent Minister refusing to grant a protection visa. 

2                          The appellant is a citizen of Bangladesh.  He arrived in Australia on 24 September 2004.  On 5 October 2004 he applied to what was then the Department of Immigration and Multicultural and Indigenous Affairs for a Protection (Class XA) Visa.  A delegate of the Minister refused that application on 27 October 2004.

3                          The appellant then sought review of that decision.  The RRT affirmed the decision on 11 March 2005.  On 16 October 2006 a Federal Magistrate ordered by consent that a writ of certiorari issue to quash the RRT’s decision.  His Honour remitted the matter to be reheard and determined according to law.

4                          On 31 October 2006, the RRT wrote to the appellant advising him that the Federal Magistrates Court had remitted his case to the RRT.  On 2 November 2006 the RRT wrote to the appellant inviting him to attend a hearing on 12 January 2007.  The appellant attended a hearing on that day.  He had the assistance of an interpreter and was accompanied by his solicitor. 

5                          On 6 February 2007 the RRT delivered its reasons for decision.  It found that the appellant was, indeed, a national of Bangladesh.  It noted his claim to fear persecution based on political opinion and his assertion that he was a long-standing activist, leader and office holder with the Awami League.  The RRT rejected that assertion.  It did so because the appellant was unable to provide details of his supposed activities as an assistant cultural secretary of the Awami League’s Dhaka City Committee.  Moreover, although he claimed to be aware of an Australian-based support group for the Awami League, he conceded that he had not attended any of its meetings and had not been involved in any of its activities.  He did not know the name of the head of that support group.  He was unaware of a recent significant development in Bangladesh, namely that the President had stepped down. 

6                          The RRT considered the appellant’s claims to have been targeted by threats and to have suffered police harassment and false charges.  It accepted that Bangladeshis face politically motivated violence and killings.  However, it regarded his claim to have been falsely charged with various offences as implausible.  It considered several documents that he submitted in support of these claims but found that the level of corruption in Bangladesh was so high that it could not treat these documents as genuine, at least without careful scrutiny. 

7                          The RRT regarded one letter in particular as bogus.  That was a letter dated 8 January 2005 purporting to have been written by the General Secretary of the Awami League.  It rejected the appellant’s claim to have been present when a bomb exploded in August 2004.  It also rejected his claim to have been abducted by terrorists in 2004 in an attempt to stop him from political activity. 

8                          The RRT noted the appellant’s claim that his mother and his wife and children continued to live at his home address where he had been supposedly threatened.  The appellant claimed that they continued to receive threats over the telephone directed at him.  The Tribunal rejected that claim.  It was not satisfied that he had been subjected to any threats or harm by reason of imputed political opinion. 

9                          Before the Federal Magistrate, the appellant, who was legally represented, sought review on essentially five grounds.  These were identified in his Honour’s reasons for judgment at [21] as follows:

“i)       Ground 1 – relating to s 424A.

ii)        Ground 2 – a claim that the Tribunal had failed to investigate the veracity of certain documents.

iii)       Ground 3 – relating to a statement that the Tribunal would attempt to contact a witness in Bangladesh.

iv)       Ground 4 – relating [sic] the Tribunal dismissing the genuine necessary [sic] of the documents.

v)        Ground 5 - relating [sic] the current (and changed) political situation in Bangladesh.”

10                        The Federal Magistrate observed at [22] that, in effect, each of these grounds had been abandoned.  His Honour noted that counsel for the then applicant conceded that ground three would require evidence that was not available.  The premise underlying ground 1 was not correct and s 424A of the Migration Act 1958 (Cth) did not apply.  Grounds 2 and 4 did not sufficiently raise an issue of jurisdictional error to be arguable and counsel had proceeded on that basis.  His Honour did not address ground 5 but said that there appeared to be a real issue of a possible contravention of s 91R(3).  Self-evidently, that issue was not raised in the original grounds of review. 

11                        The Federal Magistrate then dealt at length with the s 91R(3) point.  He did so pursuant to a further amended application for review that was filed on 4 October 2007 and presumably stood in place of the original application for review.  His Honour held that the matter was conclusively determined against the then applicant by the decision of Jacobson J in SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006]FCA 648.  In that case, Jacobson J held that s 91R(3) did not apply so as to require conduct engaged in by an applicant in Australia to be disregarded by the Minister unless the applicant relied upon such conduct to support a claim for protection.  Counsel for the then applicant submitted that the decision in SZHFE was not correct and should not be followed.  He put that submission somewhat boldly having regard to the fact that SZHFE had been the subject of an application for special leave to appeal to the High Court and that application had been refused. 

THE APPEAL TO THIS COURT

12                        By notice of appeal filed on 17 March 2008 the appellant relies upon the following grounds:

“1.       The Honourable trial judge failed to consider that the Tribunal accepted that ‘the applicant is a member of Awami League and was involved in Dhaka city Awami League’ in considering this matter trial judge made an error.

2.         The Tribunal failed to comply with the notice of 424A of the Migration Act and the trial judge erred in considering this argument.

3.         The Honourable trial judge made an error not to consider the applicant’s involvement in Australia.”

13                        The Minister submits that this notice of appeal seeks to reintroduce grounds of review that were not included in the further amended application and were either expressly abandoned, or not pressed, before the Federal Magistrate.  The Minister submits that grounds 1 and 2 are insufficiently clearly defined to warrant any response.  He refers to Coulton v Holcombe (1986) 162 CLR 1 at 7 and VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48].  The Minister’s submissions in that regard are plainly correct.  Leave to rely upon grounds 1 and should be refused. 

14                        As regards ground 3, this represents an attempt to invoke the s 91R(3) point unsuccessfully raised below.  The evidence of the appellant’s activities in Australia was introduced in answer to a question from the RRT.  In its findings, the RRT concluded that it was not satisfied that the appellant had been a political activist for the Awami League.  One reason for that conclusion was his failure to have been involved in the activities of an Awami League support group in Australia after his arrival in this country. 

15                        Section 91R(3) states:

“(3)     For the purposes of the application of this Act and the regulations to a particular person:

(a)       in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

            disregard any conduct engaged in by the person in Australia unless:

(b)       the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”

16                        Counsel for the appellant submitted that giving s 91R(3) its ordinary and natural meaning, the RRT erred when it had regard to the appellant’s failure to involve himself with the Awami League support group in this country in assessing the credibility of his claims to be an active member and supporter of that organisation.  He submitted that the subsection specifically prohibited the Minister, or the RRT, from having regard to that matter because it was “conduct engaged in” by the person in Australia and the condition set out in s 91R(3)(b) had plainly not been met.

17                        There are many difficulties with that submission.  In the first place, it flies directly in the face of  SZHFE, a case which has at least twice been considered and followed in this Court: see SZIMY v Minister for Immigration and Citizenship [2007] FCA 249 at [11] and SZHTC v Minister for Immigration and Citizenship [2007] FCA 1199 at [25].  SZHFE was the subject of an application for special leave to appeal to the High Court.  That application was dismissed by Kirby and Callinan JJ, who expressly stated that they agreed with the analysis of Jacobson J.

18                        It is clear from the second-reading speech relating to the introduction of s 91R that subsection (3) was intended to deal with sur place claims raised by applicants who deliberately set out to contrive claims for refugee status after their arrival in Australia.  Such action, deliberately seeking to attract hostile attention from a home government, was said to make a mockery of an applicant having a well-founded fear of persecution.  The legislation was intended to make it clear that any action by a person taken after arrival in Australia would be disregarded unless the Minister was satisfied that it was not done simply to strengthen claims for protection. 

19                        The explanatory memorandum was to the same effect.  The aim of the new provision was said to be to maintain the integrity of the protection process by ensuring that an applicant could not generate a sur place claim by deliberately creating circumstances to strengthen his or her claim to refugee status. 

20                        In addition, the Minister submitted that a literal reading of s 91R(3) would lead to absurd results.  It would presumably prevent the Minister or the RRT from having regard to a range of matters that the Migration Act (1958) (Cth), in other provisions, makes squarely relevant.  There are obviously any number of actions on the part of claimants for protection which take place after their arrival in this country that the Act contemplates will be taken into account when assessing their claims.  Section 91R(3) must be interpreted not merely in isolation but in the context of the Act as a whole. 

21                        In addition, s 15AA of the Acts Interpretation Act 1901 (Cth) requires regard to be had to the objects of an Act when construing its provisions and not simply to its literal meaning.  

22                        Counsel for the appellant submitted that his client had merely responded to questions put by the RRT, and not volunteered any statement about his connection with the local support group.  He argued that this meant that this case did not fall within the principle laid down in SZHFE. I am not persuaded by that submission.  Nor am I persuaded by his alternative submission that it would be unfair to the appellant to allow regard to be had to his conduct after arriving in this country for the purpose of impugning his credibility but not in support of his claim for protection.  There is nothing unfair about allowing a decision-maker to apply common sense when considering questions of fact while, at the same time, preventing the system of protection from abuse.  The Federal Magistrate was correct to conclude that the RRT did not contravene s 91R(3).

23                        It follows that the appeal should be dismissed.  The appellant must pay the first respondent’s costs.

Associate:

Dated:         20 May 2008