FEDERAL COURT OF AUSTRALIA

SZJDS v Minister for Immigration and Citizenship [2008] FCA 1358

Migration Act 1958 (Cth)

SZJDS v Minister for Immigration [2008] FCA 1093

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572; [2004] FCAFC 264

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

QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92

VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

SZJDS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 491 of 2008

REEVES J

4 SEPTEMBER 2008

DARWIN

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

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 against the judgment of Federal Magistrate Barnes delivered on 19 March 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal’s decision was handed down on 9 January 2007 and affirmed a decision of a delegate of the first respondent to refuse the appellant a protection visa.  On 24 July 2008, I granted leave to the appellant to file his notice of appeal out of time: see SZJDS v Minister for Immigration [2008] FCA 1093.  The background to this matter was set out in that decision but, for convenience, it is repeated below.

BACKGROUND – SUMMARY OF FACTS

2                     The appellant is a citizen of Bangladesh who arrived in Australia on 7 February 2005. He applied for a protection visa some seven months later, on 29 September 2005, on the basis of his alleged political persecution in Bangladesh following unionist activities he undertook for the ‘Saramik League’ which is a wing of a Bangladeshi union called the ‘Awami League’.  The application was refused by a delegate of the first respondent on 14 December 2005 and the appellant subsequently applied to the Tribunal for a review of that decision.

3                     A differently constituted Tribunal affirmed the decision of the delegate in a decision handed down on 6 July 2006 (‘the previous Tribunal’). However, on 31 August 2006, the decision of the previous Tribunal was quashed by the Federal Magistrates Court and the appellant’s application was remitted to the Tribunal to be reconsidered according to law.

4                     The appellant attended a hearing before the (newly-constituted) Tribunal on 5 December 2006. At that hearing, he tendered some letters of support from officials of the Saramik League. Following the hearing, the appellant provided the Tribunal with written submissions and further letters of support.

5                     Before the Tribunal, the appellant claimed that he had become a target of political parties in Bangladesh (the ‘BNP’ and ‘Jamaat-e Islami’) and employer associations, and that he had been assaulted in 1996. He further claimed he was eventually framed with murder when a fellow activist died and he had to leave Bangladesh in June 1998. However, he returned to Bangladesh for ten weeks in 2003 because his father was dying. He found employment with an official in the United Arab Emirates and came to Australia in that capacity - on his own passport - in 2005. He alleged that his employer abandoned him in Australia and that he feared his visa would now be cancelled, so that he would be forced to return to Bangladesh, where he claimed he would be further persecuted and not protected by the courts.

THE TRIBUNAL’S DECISION

6                     The Decision Record of the Tribunal records that it listened to the tapes of the hearing conducted by the previous Tribunal and considered the evidence given by the appellant before it.  The Tribunal adopted the factual summary from the previous Tribunal’s decison. The Decision Record shows that it put its concerns to the appellant regarding: his exit from Bangladesh; the renewal of his passport following the alleged murder charge; the fact that he left Bangladesh rather than relocate or seek help from the Saramik or the Awami League; and the lack of any reference to false murder charges in the letters of support he provided. The Tribunal was also concerned about the late submission of the evidence of the appellant’s involvement with the Awami League in Australia and about the appellant’s lack of knowledge about industrial relations in Bangladesh.

7                     The Tribunal accepted that the appellant was a member of the Saramik League and that he was threatened and assaulted but it found that “on the basis of the applicant’s own descriptions of his political activities, the limited geographical scope of his activities, and his unsatisfactory knowledge…he was engaged in low level localised activities” and that he therefore did not have a high political profile.  Further, the Tribunal set out five separate reasons detailing why it remained unsatisfied that the appellant was falsely charged with murder or that he is (or was) of interest to the Bangladeshi authorities.

8                     The Tribunal noted that it was not necessary in view of its findings to consider relocation but said “[n]evertheless, as it was put to him at the hearing, if he wants to avoid his former local opponents it is reasonable for him to relocate to a different part of Bangladesh”.  Accordingly, the Tribunal affirmed the delegate’s decision.

THE FEDERAL MAGISTRATE’S DECISION

9                     In his application for judicial review filed in the Federal Magistrates Court on 29 January 2007 the appellant alleged:

1.                  The Tribunal denied the applicant natural justice in determining the appeal in that the Tribunal was biased, or, in the alternative, there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision.

2.                  The Refugee Review Tribunal (RRT) in its decision, handed down on 9 January 2007, made error of law and failed to exercise the proper procedure in relation to make [sic] decision on the review of the applicant’s protection visa application[.]

3.                  The manner in which the tribunal dealt with the application and the applicant was such that it is possible to fairly apprehend that the tribunal did not bring an impartial mind to the resolution of the matter before it.

4.                  The second respondent (“the tribunal”) denied the applicant natural justice and procedural fairness pursuant to s.420 and s.425 of the Migration Act 1958.

5.                  Following the hearing, pursuant to s.424A of the Migration Act, the Tribunal did not put anything writing to the applicant to respond.[sic]

6.                  The applicant was deprived of the natural justice and procedural fairness.

7.                  The Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction by asking itself the wrong question in deciding that the applicant’s claim[sic]. The tribunal failed to maintain their procedural fairness.

8.                  The tribunal was biased as it did not consider the new claim with the neutral point of view as such the applicant was deprived of the natural justice. [original emphases]

10                  Before the Federal Magistrate, the appellant’s only submission was in terms of a request for more time to make submissions and, when this was refused, he “claimed, without elaboration, that there were problems at home in Bangladesh”. The appellant did not provide the Federal Magistrate with a transcript of the hearing before the Tribunal or the previous Tribunal. Her Honour decided that the appellant’s first and third grounds of review made similar allegations of bias and that neither ground was made out on the material before her, referring to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17and Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28.

11                  Her Honour dismissed the second ground of review on the basis that it was unparticularised. Her Honour concluded that grounds five and six were similarly deficient because the appellant had not anywhere identified the information that he claimed should have been provided to him under s 424A(1) of the Migration Act 1958 (Cth)(‘the Act’).

12                  In relation to the fourth ground of review, her Honour held that “... there is no discernable breach of s 420 of the Act, let alone conduct that establishes a jurisdictional error, whether by virtue of a failure to comply with s 425 or otherwise”. That finding meant that ground seven, which alleged a denial of procedural fairness amounting to jurisdictional error, also failed.

13                  In her Honour’s view, there was nothing before her to indicate that the Tribunal had failed to have regard to some part of the appellant’s claims, or that it failed in any manner alleged in grounds seven or eight. Her Honour noted that the Tribunal had considered the appellant’s involvement in Awami League activities outside Bangladesh, his letters of support and any potential for harm by his employer. Finally, her Honour noted that the appellant’s affidavit filed with his application raised similar allegations - of denial of natural justice and a failure by the Tribunal to carry out its duty - and held that “those generally expressed grounds are not made out”.

14                  Ultimately, having found that no jurisdictional error had been established by any of the grounds of review, her Honour dismissed the appellant’s application for review.

GROUNDS OF THE PRESENT APPEAL

15                  The notice of appeal the appellant was given leave to file in this Court contains the following grounds:

1.                  The Second Respondent made a jurisdictional error in deciding the real fear of persecution of the Appellant and the Federal Magistrate made an error of law by not finding this.

2.                  The Federal Magistrate made an error of law by not finding that the Refugee made jurisdictional error by not considering the integer of the appellant’s claim. Particularly, a false case was filed against the appellant prior to his leaving the country of origin.

3.                  The Refugee Review Tribunal made a jurisdictional error not to considering [sic] the appellant’s activities in Australia as a leading activist, which is subject to persecution upon returning to Bangladesh. The Federal Magistrate made an error of law by not finding this.

4.                  His Honour erred by considering the Second Respondent away from not to considering [sic] the relevant document in regards to the prevailing situation in Bangladesh.

16                  The appellant filed a written outline of submissions shortly before the hearing of this appeal on 27 August 2008.  Amongst other things, the appellant stated in his submissions that he did not wish to press grounds one and three (above).

CONTENTIONS

17                  At the hearing of this appeal before me on 27 August 2008, the appellant appeared in person, unrepresented, but assisted by an interpreter.  Mr Reilly appeared for the first respondent.

18                  As noted above, the appellant had earlier filed an outline of written submissions.  In his oral submissions, he relied upon that outline of written submissions and made some further submissions that were essentially directed to the current situation in Bangladesh and were therefore not relevant to any issue in this appeal. 

19                  The first respondent had also filed an outline of written submissions.  Mr Reilly relied upon that outline of submissions and, in his oral submissions, emphasised the following points:

a.                   None of the grounds of appeal raised by the appellant before this Court was raised by him before the Federal Magistrate and the first respondent opposes those grounds being raised before this Court primarily because neither of the grounds has any merit.

b.                  In relation to ground two, the information about the processes that would be followed by the Bangladeshi Embassy in the United Arab Emirates (‘UAE’) if an adverse police report were to be received (in relation to an applicant for a Bangladeshi passport) is information that applies to all persons applying for Bangladeshi passports and is therefore not information specific to the appellant.  As such, the information falls within the exception delineated in s 424A(3)(a) of the Act: see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572 at [64] – [74], [112] – [138]; [2004] FCAFC 264, WAJW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 330 at [44] – [46]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7] – [30] and VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 at [11] – [16].

c.                   In relation to ground four, the appellant’s complaint that the Tribunal did not assess the likelihood of him suffering persecution on return to Bangladesh in the reasonably foreseeable future is answered by the Tribunal’s finding that: “[t]he Tribunal is not satisfied that if he returned to Bangladesh and continued to engage in Saramik League activities at the same level as he has in the past there is a real chance that he would face Convention related harm as a result”.  Furthermore, there is a similar finding in relation to the effect of the appellant’s political activities in Australia if he were to return to Bangladesh.

CONSIDERATION

20                  It is clear that neither of the grounds of appeal that the appellant now seeks to raise before this Court was raised before the Federal Magistrate.  The first respondent made submissions against my considering either of these grounds.  Thus, I should not entertain them unless I am satisfied (among other things) that they have real prospects of success.  In my view, neither of the grounds has prospects of success.

21                  In relation to ground two, I agree with Mr Reilly’s submissions that the information relied upon by the Tribunal regarding the processes that would be followed by the Bangladeshi Embassy in the UAE is information applicable to all persons applying for a Bangladeshi passport in similar circumstances.  It is therefore information that falls within the exception described in s 424A(3)(a) of the Act, because it is not information that is specifically about the appellant, but is rather about a class of persons (of which the appellant is a member).  Furthermore, insofar as the appellant is quibbling with the accuracy of this information, that is a matter within the fact finding jurisdiction of the Tribunal and not a matter that can be entertained by this Court on an appeal of this kind: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]. 

22                  In relation to ground four (and also the first point raised under ground two in the appellant’s written submissions), I also agree with Mr Reilly’s submissions that the Tribunal did in fact make an assessment, of the appellant’s real chances of suffering harm or persecution on return to Bangladesh in the reasonably foreseeable future, at the time the assessment was made, that is in December 2006 (see [19c] above).  In so far as the appellant is relying on a significant change in circumstances in Bangladesh since that time, it is open to him, as Mr Reilly pointed out at the hearing, to apply to the Minister for leave to make a further application for a protection visa under s 48B of the Act.  Again, however, that is not a matter which can be entertained by this Court on an appeal of this kind.

23                  For these reasons, neither of the remaining grounds of appeal has any merit and this appeal must therefore be dismissed.  I will hear the parties on the question of costs.

Associate:

Dated:         4 September 2008