FEDERAL COURT OF AUSTRALIA

SZLWP v Minister for Immigration and Citizenship [2009] FCA 1536

Migration Act 1958 (Cth), ss, 5(1), 36, 91R(3)

Convention relating to the Status of Refugees done at Geneva on 28 July 1951

Protocol relating to the Status of Refugees done at New York on 31 January 1967

SZLWP v Minister for Immigration and Anor [2009] FMCA 792 referred to

W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 (2001) 185 ALR 703 referred to

SZLWP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1018 of 2009

GRAY J

16 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be 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.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          This appeal is from a judgment of the Federal Magistrates Court of Australia, published as SZLWP v Minister for Immigration and Anor [2009] FMCA 792.  In that judgment, given on 27 August 2009, the learned federal magistrate dismissed an application by the appellant, seeking to set aside a decision of the Refugee Review Tribunal.  The decision of the Tribunal was signed on 18 November 2008 and handed down on 19 November 2008.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship, the first respondent for this appeal, refusing to grant to the appellant a protection visa.  The Tribunal is the second respondent to this appeal. 

2                          The appellant is a citizen of Bangladesh.  He arrived in Australia on 1 April 2007.  His application for a protection visa was made on 1 May 2007.  The Minister’s delegate made a decision on 30 July 2007 refusing to grant that visa.  The appellant sought review of the decision of the Minister’s delegate.  The matter went to the Tribunal and subsequently to the Federal Magistrates Court, which set aside the Tribunal’s decision and remitted the matter to the Tribunal to be determined according to law. 

3                          The application for review of the Minister’s delegate’s decision was then assigned to another member of the Tribunal, who heard and determined it.  The Tribunal conducted a further hearing on 16 September 2008, at which the appellant was present and at which he gave evidence and presented arguments, with the assistance of an interpreter fluent in the Bengali language.  The appellant was also represented by a registered migration agent who attended the Tribunal hearing. 

4                          By s 36 of the Migration Act 1958 (Cth) (“the Migration Act”), there is a class of visas to be known as protection visas.  A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  The terms “Refugees Convention” and “Refugees Protocol” are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and the Protocol relating to the Status of Refugees done at New York on 31 January 1967.  It is convenient to refer to those documents taken together as “the Convention”.  For present purposes, it is sufficient to say that, pursuant to the Convention, Australia has protection obligations to a person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country.

5                          In this case, the appellant claimed to have a well-founded fear of being persecuted, if he should return to Bangladesh, for the reason of his political opinion.  He said that he was a member of, and an activist for, a political party known as the Awami League.  He feared persecution from members of the Bangladesh Nationalist Party on the one hand, and from Islamic extremists on the other hand.  He gave evidence to the Tribunal of an assault on him in which he said he had been stabbed in 2003. 

6                          The Tribunal accepted that the appellant was a member of the Awami League, but did not accept a number of the claims that he made.  In the first place, the Tribunal did not accept that the appellant was a witness of credit.  On that issue, the Tribunal had this to say at [124] of its reasons for decision:

The Tribunal firstly finds that the applicant is not a witness of credit.  The applicant’s evidence was inconsistent and lacking in detail.  The applicant’s oral evidence given at his hearings differed from his written statement.  The evidence also differed from documents he provided to the Tribunal, including the letters from Awami League.  The Tribunal put to the applicant its concerns in relation to his inconsistency.  The applicant provided some response however the response did not address the concerns or gave another version of his evidence.  The applicant did not give the Tribunal an adequate reason for the inconsistencies.

7                          The Tribunal drew attention in its reasons to an inconsistency between the appellant’s oral evidence of the stabbing and a medical certificate on which he relied.  It was not satisfied that the doctor responsible for the medical report had been influenced by the appellant’s attackers to provide a false report.  The Tribunal had difficulty accepting the appellant’s evidence that his name did not come up on searches in relation to the Awami League because his involvement was low profile and only local.  The Tribunal itself found some references on the internet to local officials of the Awami League.  The Tribunal was also troubled by the fact that, between 2004 and when he came to Australia, the appellant had visited a number of other countries, including South Korea, Japan, Hong Kong, North Korea, Germany and Italy.  He married a South Korean woman in South Korea.  He did not apply to remain in any of these other countries.  He also had no difficulty returning to Bangladesh and leaving again.  The Bangladeshi authorities reissued his passport to enable him to travel.  For all of these reasons, the Tribunal found that there was no real chance of the appellant being persecuted for the reason of his being an Awami living in Bangladesh.

8                          The Tribunal then added that the appellant’s family was currently living in Bangladesh, and was not in danger.

9                          The Tribunal also dealt with the appellant’s evidence that he had been involved in activities on behalf of the Awami League while in Australia.  In particular, there were photographs of the appellant demonstrating outside the Bangladesh High Commission in Canberra.  These photographs had been published in newspapers, including newspapers in Bangladesh.  The Tribunal declined to rely on this evidence, as it was not satisfied that the appellant’s conduct in Australia was otherwise than for the purpose of strengthening his claim to be a refugee under the Convention.  The Tribunal took the view that it was required by s 91R(3) of the Migration Act to disregard that conduct.

10                        In his amended application to the Federal Magistrates Court, the appellant relied on three grounds.  The first was that the Tribunal made its decision in bad faith.  The basis of this ground was the Tribunal’s finding that the appellant took part in the demonstration outside the Bangladesh High Commission in Canberra simply in order to strengthen his claim for refugee status.  The second ground was that the Tribunal acted in excess of its jurisdiction, by finding that it was not satisfied that there was a real chance of the appellant being persecuted for any Convention reason in the foreseeable future, and that the Tribunal did not accept that the appellant faced a real chance of persecution in Bangladesh.  The third ground was that the Tribunal made a wrong assumption about his credibility by not following a principle that the appellant said was established by W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679 (2001) 185 ALR 703.

11                        The federal magistrate dealt with each of these grounds.  At [46]-[49] of his Honour’s reasons for judgment, the federal magistrate pointed out that an allegation of bad faith is not to be lightly made and must be alleged and proved clearly.  His Honour characterised the appellant’s complaint as a disagreement with the Tribunal’s finding on an issue of fact.  His Honour said it was open to the Tribunal to make that finding on the evidence before it, and that there was nothing to show that it acted in bad faith when it did so.  As to the second ground, at [50] his Honour said that that involved no more than an attempt at merits review of the appellant’s claim.  At [52], his Honour said that the appellant had not shown any failure to make a finding on a clearly articulated argument relying on established fact, and the Tribunal decision record did not show any such failure.  The third ground was dealt with in [54]-[57].  His Honour referred to the authority cited by the appellant in his amended application.  He stated that the passage on which the appellant relied was in the judgment of Lee J in that case, but that, as the appellant conceded, Lee J was in the minority.  His Honour pointed out that the majority, Tamberlin and Nicholson JJ, held at [64] that the Court must not set aside a finding of credit simply because it thinks that the probabilities of the case are against, or even strongly against, the finding.  The federal magistrate characterised the appellant’s ground 3 as an attempt to argue the factual basis of the Tribunal’s credibility finding. 

12                       
As the appellant was not legally represented in the Federal Magistrates Court, the federal magistrate then proceeded to examine for himself the procedural requirements of the Migration Act, in relation to the Tribunal, and the manner in which it is required to deal with an application for review of a decision of the Minister.  His Honour found no jurisdictional error in relation to any of those requirements. 

13                        The appellant’s notice of appeal to this Court is in terms that are identical to the terms of his amended application to the Federal Magistrates Court.  The same three grounds are relied upon, and the appellant has endeavoured to argue them, both in written submissions and orally.  In attempting to justify ground 1, bad faith, the appellant submitted that, in fact, he was involved with Awami League politics and was an office-bearer of that party in Bangladesh.  That involvement inspired him to join with the Australian Awami League and to attend its programs because he believed in its politics.  He disputed the claim by the Tribunal that he attended the programs in order to strengthen his claim for refugee status.  He submitted that the Tribunal disapproved of his political beliefs in the finding that it made, and also disapproved of the Awami League and its leaders. 

14                        What the Tribunal said about the appellant’s activities in Australia must be viewed in light of the requirements of s 91R(3) of the Migration Act.  That subsection provides:

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.

15                        What the Tribunal said about this matter appears in [148] of its reasons for decision:

The Tribunal has formed the view that the applicant was photographed taking part in the peaceful demonstration outside the Bangladesh High Commission in Canberra simply in order to strengthen his claim for refugee status.  As the Tribunal is not satisfied that the applicant’s conduct was otherwise than for the purpose of strengthening his claim to be a refugee under the Refugees Convention it must disregard his conduct in Australia as required by section 91R(3) of the Act.

16                        It is clear from s 91R(3) of the Migration Act that the onus lay on the appellant to satisfy the Tribunal that his conduct in joining the demonstration in Canberra was for a purpose other than to strengthen his claim for refugee status.  The appellant may not have appreciated that he carried this onus.  Perhaps there might have been more that he could have done to convince the Tribunal.  The fact is that the Tribunal was not satisfied that there was a valid motive for the appellant’s conduct.  Accordingly, it was obliged by s 91R(3) to reach the conclusion it did and to disregard the conduct.  The Tribunal’s finding certainly did not amount to bad faith, nor did it amount to jurisdictional error of any kind.  The federal magistrate was correct to reject ground 1 of the appellant’s amended application to that court.

17                        Similarly, the federal magistrate was correct to reject ground 2.  The findings that the Tribunal was not satisfied that there was a real chance of the appellant being persecuted for a Convention reason in the foreseeable future, and that the Tribunal did not accept that the appellant faced a real chance of persecution if he returned to Bangladesh, were findings on the very matters that the Tribunal was required to determine.  Those matters were issues at the heart of the jurisdiction of the Tribunal.  It is difficult to see how the Tribunal could have exceeded its jurisdiction by dealing with those issues.  It was required to reach a conclusion on them and it did so.  From the appellant’s point of view, the difficulty is that the Tribunal reached a conclusion on those issues adverse to him.  It is not surprising that he does not like that conclusion, but to seek to overturn it by characterising it as involving an excess of jurisdiction by the Tribunal is really to attempt a review of the appellant’s case on the merits.  That is something that this Court cannot entertain.  Nor could the Federal Magistrates Court entertain it.

18                        The third ground, the credibility issue, is similarly an attempt to engage in review on the merits.  As the passage I have quoted from [124] of the Tribunal’s reasons for decision shows, the Tribunal did have grounds for arriving at its finding in relation to the appellant’s credibility.  It did not reach that conclusion irrationally.  It relied on inconsistency within the appellant’s own evidence at different stages, and on his failure to explain the inconsistencies.  If it were necessary to find that the Tribunal did rely on the cumulative weight of the matters referred to, then it is plain that it did.  The fact is, however, that credibility was a matter solely for the Tribunal.  It is not open to the appellant to come to this Court, and it was not open to him to go to the Federal Magistrates Court, to complain about the Tribunal’s finding on credibility.  The facts were for the Tribunal.  The Tribunal determined them.  It determined them adversely to the appellant, but he is bound by its determination of those facts. 

19                        As to the other matters dealt with by the federal magistrate, the appellant raised no ground of appeal.  Counsel for the Minister has drawn my attention to authorities that make it clear that arguments the federal magistrate considered and then rejected have been the subject of subsequent authorities in the High Court and in the Full Court of this Court.  Those subsequent authorities make the correctness of the federal magistrate’s determination of those issues even clearer. 

20                        For all of these reasons the appellant has failed to demonstrate that the federal magistrate made any error.  He could only have succeeded in the Federal Magistrates Court if he had established that the Tribunal’s decision was the result of jurisdictional error on the part of the Tribunal.  The appellant failed to establish jurisdictional error on the part of the Tribunal.  The Federal Magistrates Court was not obliged to find that there was such jurisdictional error.  There was no error in the federal magistrate’s decision to dismiss the appellant’s application to that court.  It follows that this appeal must be dismissed.

21                        Counsel for the Minister has applied for an order that the appellant pay the Minister’s costs of the proceedings.  Such an order is in accordance with the normal principle that costs follow the event.  Other than the fact that he is impecunious, the appellant has not made any submission as to why that principle ought not to be followed.  The fact that a person is impecunious is not generally regarded as a reason for not making the usual order as to costs.  Accordingly, in the present case, I will also order that the appellant pay the Minister’s costs of the appeal.

22                        The order of the Court is:

1.         The appeal be dismissed.

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

Associate:

Dated:         18 December 2009