FEDERAL COURT OF AUSTRALIA

SZMXI v Minister for Immigration and Citizenship [2009] FCA 550

SZMXI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 283 of 2009

COWDROY J

29 MAY 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The Appellant pay the costs of the First Respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
            The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The appellant appeals from the decision of Federal Magistrate Nicholls delivered on 27 March 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 14 October 2008. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a protection (Class XA) visa to the appellant.

BACKGROUND

2                      The appellant is a citizen of Bangladesh who arrived in Australia on 24 March 2008. On 7 April 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 7 July 2008. On 30 July 2008 the appellant applied to the Tribunal for a review of that decision.

3                     Before the Tribunal, the appellant claimed to fear persecution in Bangladesh due to his membership of the Awami League (‘AL’). The appellant claimed that he was required to ‘affiliate himself’ with one of the political parties to assist his business as a builder. The appellant alleged that he was a prominent member of the Awami-aligned Jubo League. He claimed that in 2001 members of the rival Bangladesh National Party (‘BNP’), acting in conjunction with the Jamaat-e-Islami (‘JI’), attempted to confiscate his business and kill him in 2001. According to the appellant, he was constantly harassed by his political opponents, and he was subjected to significant attacks on three separate occasions between 2001 and 2006. He further claimed that the BNP-dominated authorities had filed false cases against him and that he was of ‘particular interest’ to JI fundamentalists.

THE TRIBUNAL DECISION

4                     The Tribunal accepted that the appellant had supported AL when the party was in power, and that his support led to government contracts and a successful business. However, the Tribunal was ‘not satisfied that the applicant provided a truthful account of his circumstances in Bangladesh or in Australia’. In particular, the Tribunal ‘formed the view that the applicant greatly exaggerated the harm he faced in Bangladesh in the period when the BNP was in power from 2001 to 2006’. The Tribunal was ‘not satisfied that he was a person of particular or adverse interest to the BNP, the JI, fundamentalists, their associates, or the authorities’.

5                     The Tribunal was further satisfied that the current Bangladeshi government had curtailed the rate of political attacks in the country, and that an appropriate level of state protection would now be available to the appellant. It also noted that the three attacks identified by the appellant appeared to have been motivated by business interests and did not go to showing any fear of Convention-related persecution, although the Tribunal did accept that they had resulted in the appellant suffering harm. Taking all of these findings into account, the Tribunal was not satisfied that the appellant held a well-founded fear of Convention-related persecution in Bangladesh on any of the grounds advanced.

APPLICATION IN THE FEDERAL MAGISTRATES COURT

6                     By application filed in the Federal Magistrates Court of Australia on 5 November 2008, and by amended application filed on 29 January 2009, the appellant sought judicial review of the Tribunal’s decision.

7                     As summarised by Federal Magistrate Cameron, the appellant claimed in the amended application that:

1.             The Refugee Review Tribunal made the decision in bad faith.

2.             The Refugee Review Tribunal acted in excess of its jurisdiction.

3.             The Refugee Review Tribunal made a wrong comment about the activities of the interim government and the conditions in Bangladesh.

8                     In relation to the allegation of bad faith the appellant particularised the claim with reference to the Tribunal’s finding that he had not provided a truthful account of his circumstances in Bangladesh or in Australia, and also relied upon the Tribunal’s finding that it did not accept the appellant’s claims as being credible. In written submissions, the appellant stated that he was involved in AL politics in Bangladesh, that he had been attacked and that there were many ‘international reports’ showing that the BNP and JI had attacked and killed AL leaders and activists. He complained that, despite this evidence, the Tribunal said ‘that nothing happened to [his] life in that time’. The appellant claimed that such finding showed bad faith on the part of the Tribunal.

9                     Nicholls FM noted that, although the appellant was plainly aggrieved that the Tribunal did not believe his account of what he said had occurred in Bangladesh, the Tribunal was not required to uncritically accept everything, or anything, that an applicant says, citing Randhawa v Minister for Immigration and Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451. His Honour proceeded to find (at [19]-[20]) that:

To the extent that the applicant seeks to complain about factual findings made by the Tribunal, a plain reading of the Tribunal’s decision record reveals that it fully considered each aspect of the applicant’s claims, and made findings which were clearly open to it on the material, and for which it gave reasons (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors[1996] HCA 6; (1996) [185] CLR 259).

The basis of the applicant’s assertion of bad faith on the part of the Tribunal is simply not made out on the material before the Court, let alone is there any evidence before the Court to sustain such a serious charge.

10                  In support of the second ground of review the appellant referred to what was said to be the Tribunal’s finding that he was ‘not attacked by business rivals after the current government came to power’, and its finding that he was not at risk of attack by business rivals in Bangladesh. The appellant further submitted that the Tribunal ‘has given me confirmation that I will not be persecuted for political opinion... in Bangladesh’. He complained that if he were to return to Bangladesh he would face persecution for his political opinion, and that the Tribunal did not consider the possibility of future persecution.

11                  Nicholls FM found that the Tribunal did consider the appellant’s claim to have been attacked by business rivals. The Tribunal accepted (contrary to what was asserted by the appellant) that the appellant had ‘difficulties with business competitors after the BNP came to power and that on three occasions he was physically attacked during that period’. The Federal Magistrate pointed out that the Tribunal found that the difficulties related to the appellant’s ‘business activities’ rather than any particular interest by the government, or anyone associated with the government, in seeking to harm him for political reasons. Further, at no time had the appellant ever claimed before the Tribunal to have been physically attacked after the installation of the ‘interim’ government.

12                  His Honour was therefore of the opinion that it was open to the Tribunal to find that:

… the attacks against him related to business rivalries involving government contracts while the BNP was in power. The Tribunal finds that the circumstances which existed when those attacks took place no longer exist. The Tribunal is satisfied that with improved conditions under the interim government the applicant will not be prevented from competing for the available work and he will not be at risk of attack from business rivals. The Tribunal finds that the applicant was not attacked by business rivals after the current government came to power and it is satisfied that he is not currently, or in the reasonably foreseeable future, at risk of attack by business rivals in Bangladesh.

13                  His Honour further found that the Tribunal did address the question whether the appellant would be at risk of future persecution for the reason of his political beliefs and activities for the AL, and in particular, whether he would face persecution from the BNP and JI as he had claimed to have faced in the past. Further, his Honour also found, contrary to the appellant’s submission, that the Tribunal was not required to give ‘confirmation’ that the appellant would ‘not be persecuted for political opinion’, merely that the Tribunal must reach a level of satisfaction as to the likelihood of events occurring or not occurring.

14                  As to the third ground of review, the appellant claimed that the Tribunal made a ‘wrong comment’ in finding that conditions had improved since the interim government had come to power and that ‘political targeting’ under the previous governments (of all political persuasions) had ‘decreased significantly under the current government’. In written submissions, the appellant stated that ‘there were many international reports’ to the effect that ‘human rights in Bangladesh were under threat’ during the time of the interim or ‘caretaker’ government. For example, he stated that the government had ‘banned political and trade union activities and restricted provocative news’ and that it was therefore ‘wrong’ of the Tribunal to make the finding that conditions had improved.

15                  Nicholls FM found that the Tribunal did consider the relevant conditions in Bangladesh under the interim government and the Tribunal relied on ‘information from external sources’ to the effect that the applicant would be ‘able to express his political opinion without adverse interest from the authorities’. The Tribunal ‘noted that during the state of emergency the government imposed restrictions on political activity’. However, it found, based on independent country information, that ‘even at the height of the restrictions, the AL was still functioning and its members had opportunities and venues to express their views’.

16                  His Honour accepted the submission by the Minister that the selection and weight of country information is a matter for the Tribunal citing NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]–[13], Applicant NABD of 2002 v Minister for Immigration and Multicultural Affairs and Another (2005) 216 ALR 1 at [8] per Gleeson CJ and NBKT v Minister for Immigration and Multicultural Affairs and Another (2006) 156 FCR 419 at [81]-[84].

17                  Nicholls FM also found that the findings of the Tribunal (in particular, that if the appellant were to return to Bangladesh in the reasonably foreseeable future, he would not be targeted or prevented from expressing his political opinion) were clearly open to it on the material before it citing Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559 and W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69] per Tamberlin and Nicholson JJ. His Honour further noted that if the appellant had other country information directly to the contrary, then it was clear that he had ample opportunity before, during and after the hearing in the Tribunal to have put such information to the Tribunal.

18                  Finally, in relation to an oral claim raised at the hearing but not disclosed within the appellant’s written submissions that there were no reasons for the Tribunal’s decision, and that its decision was ‘arbitrary’, Nicholls FM found that such a complaint was not made out on the material before the Court. His Honour found that the Tribunal’s decision record, and its analysis, were comprehensive and any plain reading would clearly provide to the appellant the reasons as to why the Tribunal found against him.

APPEAL TO THIS COURT

19                  On 6 April 2009 the appellant filed in this Court a Notice of Appeal from the decision of Nicholls FM. The appellant appeals from the Tribunal and does so on identical grounds to those which were before the Federal Magistrate, namely:

1.             The Refugee Review Tribunal made the decision in bad faith.

2.             The Refugee Review Tribunal acted in excess of its jurisdiction.

3.             The Refugee Review Tribunal made a wrong comment about the activities of the interim government and the conditions in Bangladesh.

APPELLANT’S SUBMISSIONS

20                  The appellant has provided written submissions to the Court. At the hearing the appellant was invited to make oral submissions but he declined to do so. The body of the appellant’s written submissions are verbatim those which were before the Federal Magistrate, aside from the inclusion of an extra paragraph in the submissions before this Court mentioning that the Federal Magistrate had dismissed his claim. In fact, the submissions are identical in style and very similar in content to submissions before this Court in another migration matter, SZMSW v Minister for Immigration and Citizenship NSD 291/2009.
It would appear they have been prepared by the same author.

21                  In respect of the first ground of appeal, namely that the Tribunal acted in bad faith in making its decision, the appellant submits that such conclusion may be drawn from the fact that the Tribunal was not satisfied that the appellant provided a truthful account of his circumstances in Bangladesh or Australia and secondly that the Tribunal did not find the appellant a credible witness in respect of his claims that between 2000 and 2006 the BNP and JI sought to kill him or destroy his business. In support of this contention, the appellant restates his claims already made before the Federal Magistrate and the Tribunal that he was a member of the AL in Bangladesh and had received ‘a lot of pressure and harassment from the opponent political party of the BNP and JI’ and also ‘from the government because of my activities for the Awami League’. He maintained that he was physically attacked and his business destroyed and that a false case was made against him.

22                  In respect of the second ground of appeal, namely that the Tribunal acted in excess of jurisdiction, the appellant relies upon the findings by the Tribunal that he was not attacked by business rivals nor would he be, currently or in the reasonably foreseeable future, at risk of such attacks. The appellant maintains, as he did before the Tribunal and Federal Magistrate, that he was persecuted in Bangladesh because of his political beliefs and activities for the AL and that if he returns to Bangladesh he will face persecution.

23                  As to the third ground of appeal, namely that the Tribunal made a wrong assumption, the appellant claims that the Tribunal was wrong in its finding that conditions in Bangladesh have improved since the interim government came to power and that political targeting which existed under the previous BNP and AL governments had decreased significantly. The appellant repeats his claims before the Federal Magistrate and the Tribunal that the ‘Caretaker government declared and imposed the Emergency Powers Rules 2007 since 12 January 2007’ and as a result restrictions have been imposed on many activities. He submits that the Tribunal ‘made a wrong comment about the activities of the interim government and the conditions in Bangladesh’.

FINDINGS

24                  The issues raised by the Notice of Appeal and arguments put in support of them are identical to those raised before Nicholls FM. There is no claim of error made against his Honour’s findings. Rather, the appellant appeals the Tribunal decision directly, as if the Federal Magistrate’s decision never occurred. The purpose of the proceedings before this Court is to determine whether any error exists in the judgment of the Federal Magistrates Court, not the Tribunal: see Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210 at [10]. Accordingly, in the absence of any arguments pertaining to errors made in the Federal Magistrate’s judgment, the appeal must fail unless error is apparent on the face of the Federal Magistrate’s decision. The Court can find no such error.

First Ground of Appeal

25                  The first ground of appeal alleges that the Tribunal made its decision in bad faith. It has been held that bad faith is a serious allegation and must be clearly proved: see SBBS v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2002) 194 ALR 749 at [43]-[44]. The written submissions provided by the appellant restate the claims which he made before the Tribunal and which the Tribunal rejected as constituting a ground of persecution for a Convention reason.

26                  The Court finds that in the absence of any new argument or evidence, the finding of Nicholls FM (who relied on SBBS; Minister for Immigration & Multicultural & Indigenous Affairs v SBAN; Minister for Immigration & Multicultural & Indigenous Affairs v WAAK; Minister for Immigration & Multicultural & Indigenous Affairs v WAAG [2002] FCAFC 431 and Minister for Immigration and Multicultural and Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142) was clearly open to him and the reasons for his decision answer the appellant’s ground of appeal fully. The Court is satisfied that this ground of appeal is without merit.

Second Ground of Appeal

27                  As to the second ground of appeal, namely that the Tribunal acted in excess of jurisdiction, the particulars relied upon by the appellant are the same as those raised before Nicholls FM. The appellant claimed that the Tribunal so acted because it found that the appellant was not attacked by business rivals ‘after the current government came to power and it is satisfied that he is not currently, or in the reasonably foreseeable future, at risk of attack by business rivals in Bangladesh’.

28                  Given the identical nature of the claims and arguments put before the Federal Magistrate and this Court, and given this Court can find no error with the judgment of the Federal Magistrate, the Court rejects this ground of appeal.

Third Ground of Appeal

29                  The third ground of appeal claims that the Tribunal made ‘wrong comment about the activities of the interim government and conditions in Bangladesh’.

30                  Similarly to the finding in relation to the second ground of appeal, no new evidence or argument has been put before this Court than was put before the Federal Magistrate. The Court reiterates that it can find no error in the Federal Magistrate’s reasoning and accordingly rejects the third ground of Appeal.

31                  It follows that this appeal must be dismissed.

Associate:

Dated:         29 May 2009