FEDERAL COURT OF AUSTRALIA

SZGHN v Minister for Immigration and Citizenship [2008] FCA 727

Migration Act 1958 (Cth), s 424A, s 425

SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572

WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 

SZGHN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 300 OF 2008

WEINBERG J

21 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 orders made by Barnes FM on 12 February 2008.  Her Honour dismissed an application for review of a decision of the Refugee Review Tribunal (“the RRT”) delivered on 2 November 2006 affirming a decision of a delegate of the respondent Minister to refuse the appellant a protection visa.

BACKGROUND

2                     The appellant is a citizen of Bangladesh.  He arrived in Australia on 6 April 2004.  On 16 April 2004 he lodged an application for a protection visa claiming to fear persecution by reason of his political opinion, namely his support of the Awami League.  On 23 April 2004 a delegate of the Minister made a decision to refuse that application.  The appellant then applied to the RRT for review of that decision.

3                     At the RRT hearing, the appellant gave evidence relating to his political opinion claim.  He also asserted that he was a member of the Ahmadi religious sect and that he feared persecution on that basis.

4                     On 31 March 2005 the RRT affirmed the delegate’s decision.  On 26 May 2006 that decision by the RRT was by consent set aside in the Federal Magistrates Court.  Upon remittal to the RRT, the appellant attended a further hearing and made further written submissions through his adviser.

5                     In a decision delivered on 2 November 2006, the RRT once again affirmed the decision of the delegate.

THE RRT’S SECOND DECISION

6                     The RRT dealt initially with the appellant’s claim to the extent that it was based upon his religion.  It did not accept that he was a member of the Ahmadi sect, as claimed, given that he showed no knowledge or understanding of that sect, or its core beliefs, and no commitment whatsoever to them.

7                     The RRT next turned to the appellant’s claim to have been a leader of the Awami League.  It rejected that claim and found that he had held no position of any importance.  While it accepted that he had had some limited involvement in the Awami League, that did not make him a leader in any sense. 

8                     The RRT then considered whether the appellant might have a well-founded fear of persecution as an ordinary Awami League supporter.  It accepted that he might have been physically harmed, perhaps on more than one occasion, but concluded that any such harm would not have constituted persecution and would not, in any event, have been Convention related.  The RRT found, on the basis of the limited political activities in which the appellant had engaged, as well as independent country information, that he would not be subject to serious harm amounting to persecution if he were to return to Bangladesh.

9                     Finally, the RRT went on to consider the appellant’s claim that he had been falsely charged with possession of illegal firearms.  While accepting that he had been charged with an offence of that nature, and that it might be pursued in the future, the RRT found that this did not constitute persecution in any relevant sense.  This was because the appellant could rely on the courts in Bangladesh, which, were in the RRT’s view, independent.  Moreover, he could avail himself of effective State protection, if required.

10                  For these reasons, the RRT concluded that the appellant was not a person to whom Australia had protection obligations and so affirmed the decision of the delegate.

THE PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

11                  The amended application to the Federal Magistrates Court contained two grounds.   The first alleged that the RRT had failed to give the appellant an opportunity to be heard in respect of its finding that there was no medical evidence confirming that various injuries he claimed to have sustained had been inflicted for Convention-related reasons.  The second alleged that the RRT acted irrationally in finding that any harm that he had suffered was not Convention related, and that, in spite of the evidence that he was associated with the Awami League, he had an extremely limited involvement in politics.

12                  The Federal Magistrate dealt with the first ground on the basis that it involved an allegation of breach of either s 425 or s 424A of the Migration Act 1958 (Cth).  Her Honour found that the RRT was not required to submit its conclusion regarding the medical evidence to the appellant for comment during the hearing because it was not itself an “issue” within the meaning of that term in s 425.  Further, her Honour rejected this ground because, in the absence of any transcript, there was insufficient evidence to support it.

13                  Her Honour found that there was no breach of s 424A because the RRT’s “thought processes” did not fall within the meaning of “information” in s 424A(1). 

14                  Barnes FM also considered a further ground by the appellant in oral argument to the effect that there had been a breach of s 424A by the RRT’s failure to give him written particulars of country information upon which it ultimately relied.  Her Honour noted that the RRT had, in fact, given particulars of country information to the appellant in a letter purportedly written pursuant to s 424A.  She added, however, that in any event s 424A(3)(a) applied to exclude such information from the s 424A(1) obligation.

15                  In respect of the second ground, her Honour found that there was a rational basis for the RRT’s decision.  She concluded that the appellant had failed to establish that the Member had acted capriciously, arbitrarily, or by whim

THE APPEAL TO THIS COURT

16                  By notice of appeal filed on 4 March 2008, the appellant relied upon three grounds.  These are as follows:

“1.      The Federal Magistrate made an error of law by not considering a breach of section 424(1)A [sic] of the Migration Act.

2.         The Federal Magistrate made an error of law by not considering whether the Tribunal’s finding in accordance with [sic] section 425 of the Migration Act.

3.                  Her Honour erred in finding that the Refugee Review Tribunal (“RRT”) made an error in deciding the fate of the applicant’s claim on the basis of contradictory evidence.”

17                  Ground 1 alleges a breach of s 424A(1).  It arises firstly out of the RRT’s conclusions concerning the state of the evidence in relation to the appellant’s injuries.  The RRT was not persuaded that those injuries were in any way Convention related.  The Minister submitted that this finding reflected nothing more than a compendious summary of the Member’s thought processes and did not amount to “information” within the meaning of s 424A(1): SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18].  

18                  The second aspect of the alleged breach of s 424A(1) in ground 1 concerns country information.  So described, the “information” is not specifically about the appellant or another person.  It therefore falls within s 424A(3)(a): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at 598 and WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330 at [44].  Accordingly, so the Minister submitted, no obligation under s 424A(1) arose in respect of that country information.

19                  Ground 2 raises the question whether s 425 of the Act was contravened.  The starting point here is the delegate’s own reasons for decision: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35].  The delegate found that the appellant did not have a well-founded fear of persecution essentially because of a lack of supporting evidence and the paucity of detail contained in the application.  That being so, the Minister submitted, the question whether the appellant’s claims were supported by sufficient evidence was an “issue” within the meaning of s 425 of which the appellant must have been aware.  In those circumstances, the RRT was under no obligation to belabour the point.

20                  The Minister submitted, in addition, that the Federal Magistrate had correctly found that there was no obligation on the part of the RRT to outline its preliminary reasoning, or to provide a “running commentary” on the evidence given by the appellant: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs at [48] citing a passage in the opinion of Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369.

21                  In any event, the Minister argued that there was no evidence to provide any factual basis for this second ground of appeal.

22                  Finally, the Minister submitted that ground 3 of the notice of appeal was incomprehensible.  If it meant that the RRT was not entitled to make findings of fact in the face of contrary evidence, then it must fail as an attack on the merits of the decision. It must fail, too, if it meant that it was irrational, and thus beyond power, for the RRT to accept certain aspects of the appellant’s history and yet determine his application unfavourably.  

23                  The appellant appeared before me unrepresented.  He could not point to any legal error on the part of the Federal Magistrate.  He sought only to challenge findings of fact made by the RRT, and thereby invited this Court to engage in impermissible merits review.  

24                  I accept the Minister’s submissions regarding the appellant’s grounds of appeal. It follows that the appeal must be dismissed with costs.

Associate:

Dated:         21 May 2008