FEDERAL COURT OF AUSTRALIA

SZNKU v Minister for Immigration & Citizenship [2009] FCA 1564

Migration Act 1958 (Cth), ss 5(1), 36, 424A, 424A(1), 424A(3)(a) 

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

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (2009) 259 ALR 429 referred to

Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109 referred to

SZNAV v Minister for Immigration & Anor [2009] FMCA 693 cited

SZNKU v Minister for Immigration & Anor [2009] FMCA 791 cited

SZNKU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1027 of 2009

GRAY J

17 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the first respondent’s costs of the appeal, fixed at $3,500.

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 the judgment of the Federal Magistrates Court of Australia in SZNKU v Minister for Immigration & Anor [2009] FMCA 791.  That judgment was delivered on 27 August 2009.  The learned federal magistrate dismissed with costs an application by the appellant, seeking to set aside a decision of the Refugee Review Tribunal (“the Tribunal”), the second respondent to this appeal, signed on 10 March 2009 and delivered on 11 March 2009.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship (“the Minister”), the first respondent in this appeal, not to grant the appellant a protection visa. 

2                          The appellant is a citizen of Bangladesh who arrived in Australia on 17 July 2008.  On 28 August 2008, he applied for a protection visa.  The decision of the Minister’s delegate refusing to grant him that visa was made on 4 November 2008.  The Tribunal conducted a hearing on two days, 17 February and 4 March 2009.

3                          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 applicant for the visa 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 respectively in s 5(1) of the Migration Act to mean 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 call those two documents, taken together, 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

4                          The appellant claimed to have a well-founded fear of persecution, if he should return to Bangladesh, for the reasons of his religion and his political opinion.  He claimed that, as an active Christian, a Roman Catholic, he had attempted to preach and had incurred the displeasure of Hindus as well as of Muslims.  He claimed to have been subjected to attacks and to have been threatened.  He also claimed to have been an active member of the Bangladesh Nationalist Party (“the BNP”) and to have been assaulted and threatened by members of the Awami League in consequence of those activities.  He presented to the Tribunal a number of documents that he said supported his case.

5                          The Tribunal made a number of findings adverse to the case of the appellant.  In particular, it made findings adverse to his credibility.  In its reasons for decision, after accepting that the appellant was a citizen of Bangladesh, the Tribunal said, at [129]:

Beyond this issue, however, the Tribunal finds that it does not believe the evidence presented by the applicant going to his past experiences in Bangladesh, the activities which he engaged in while there, nor the fears he has of returning to that country.  In the Tribunal’s view, the applicant has fabricated claims of past experiences and activities only for the purpose of supporting this application, and without regard to the truth of the matters claimed.

6                          The Tribunal went on to justify that finding on the basis of the nature of the evidence the appellant had presented, and inconsistencies and contradictions that the Tribunal identified in the evidence he had given over time.  The Tribunal made detailed findings about documents concerning police records in Bangladesh.  It found that those documents were fabricated, in part because they did not reflect in their detail any aspect of the appellant’s claims, in part because the persons named in the documents as aggressors had common Bangladeshi Christian family names and not Muslim names as the appellant was suggesting in relation to his aggressors, and in part because of the relatively easy availability of false documents in Bangladesh. 

7                          The Tribunal did accept some documents, produced in Australia, regarding the appellant’s attendance at church and his activities here.  It rejected his oral evidence of his past experiences in Bangladesh because of what it described at [136] as “his clear inability to maintain the detail of those claims over time.”  The Tribunal gave instances of this inability.  At [148], the Tribunal said:

In the Tribunal’s view, there is no reliable evidence that the applicant has ever suffered any harm arising from his practice of the Catholic faith in Bangladesh in the past.  While he may have been involved with various Catholic social welfare groups there is nothing in the country material which indicates that this alone would give rise to harm.

8                          At [149], the Tribunal said:

In respect of his claimed association with the BNP, the Tribunal does not believe that it is genuine.

9                          At [151]-[154], the Tribunal said:

Thus, while the applicant may have some political affiliations or commitment, the Tribunal does not believe that he has presented a credible account of them, and the Tribunal does not believe that he has ever been harmed on this basis nor would be, should he now return to Bangladesh.  Notably, during the period of the last Awami League Government, the applicant’s own evidence is that he did not undertake any political activity, while working for Caritas at that time.

Considered overall, this application appears to the Tribunal to be a gathering of events, activities and organisations to which the applicant has had some exposure, possibly through the media, and an attempt to claim association with a variety of groups which could be said to be at some risk in Bangladesh.  This includes identified BNP activists, those involved in conversion or those who have converted from another faith.  There has been an attempt to weave these matters into the fabric of the applicant’s life, in an attempt to paint him as a person at risk of harm.  The Tribunal does not believe that the claims made of past experiences or fears of return are truthfully expressed.

There is evidence that the applicant has participated in Catholic church activities in Australia, and the Tribunal accepts that this is genuine expression of his faith.  However, in the Tribunal’s view, the evidence supports a conclusion that he will be able to express his faith in this way on return to Bangladesh.  There has been no claim, and there is nothing apparent from his activities in Australia, which would put him at any risk on return to Bangladesh on this account.

The Tribunal does not believe that the general treatment of those of the Catholic faith in Bangladesh rises to the level of harm which could be considered persecutory.  While there is no doubt apprehension within religious minorities, the available evidence regarding Catholics indicates that most are able to practice their faith freely and that the Church is an important institution in the provision of education and health care services in the country.  In this context, and considering the applicant’s background and past experiences as found by the Tribunal, the Tribunal does not believe that there is a real chance of his coming to harm sufficient to be considered persecution should he now return to Bangladesh.  There are substantial reports of harm to some Christians in Bangladesh, but in the Tribunal’s view a real chance of harm does not arise for followers of the Catholic faith in the ordinary expression of their faith.  The evidence is that real harms have been, and are, directed at those who are perceived to be seeking coverts [sic] from other faiths, or those who have in fact converted themselves.  The Tribunal does not believe the applicant is such a person.

10                        In his application to the Federal Magistrates Court, the appellant expressed five grounds.  In effect, the first two of those grounds constituted a single ground alleging jurisdictional error in that the Tribunal did not take into account certain relevant considerations, or integers, central to the appellant’s claims and, thereby, failed to carry out its review function and to exercise its jurisdiction.  The particulars of that ground were as follows:

a.         The tribunal did not consider the applicant who had been under immense and intimidating pressure from opposition party and Muslim radicals for being a member of BNP and Christian activist.

b.         In relation to above the Tribunal did not consider the applicant’s claim that Awami League members in his village have threatened him and his family members in the past and continued to harass applicant’s family members even after he has left Bangladesh.

c.         The applicant’s [sic] has given adequate evidence to the Tribunal that he was a leader of BNP in his area and an active Christian activist.

d.         Therefore the applicant’s submit [sic] that the Tribunal failed to analyse properly future harm the applicant’s [sic] may face if he return [sic] to Bangladesh.  Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing the applicant’s claim.

11                        The third ground was that the Tribunal exceeded its jurisdiction, or constructively failed to exercise its jurisdiction, or denied the appellant procedural fairness, by failing to investigate the appellant’s genuine claims within the requirements of the Migration Act.  The fourth ground raised the question of the Tribunal’s use of information from sources other than the appellant, described as “country information”.  It complained that the Tribunal did not give the appellant before the hearing information it had about Bangladesh, but used such information in reasoning and evaluating the appellant’s case.  In doing so, the Tribunal contravened s 424A of the Migration Act.  The fifth ground was that the Tribunal failed to consider an important element of the appellant’s claim by failing to consider whether or not a liberal Christian, regardless of the specific claims of affiliation or past persecution, in Bangladesh, was at risk of harm from radical Muslims and not able to access effective protection.

12                        In his reasons for judgment the federal magistrate dealt with each of these grounds.  As to the first two grounds, the federal magistrate said at [33] that the particulars suggested that the appellant was attempting to reargue his factual claims, which would constitute inadmissible merits review.  At [34], the federal magistrate found that the Tribunal did address both elements of the appellant’s claim, namely, fear of persecution by the Awami League for his political involvement with the BNP, and fear of persecution on account of his religious belief as a Christian activist. 

13                        As to the third ground, his Honour said at [39] that there was no general obligation on the Tribunal to conduct its own independent investigation of the appellant’s claims.  In relation to ground 4, at [42], the federal magistrate found there was no breach of s 424A of the Migration Act.  His Honour described the kind of information to which the Tribunal referred as excluded specifically from the operation of s 424A(1) by s 424A(3)(a).

14                        With respect to ground 5, his Honour held that there were three reasons why the ground could not succeed.  The first, at [46], was that the appellant did not articulate the claim in these terms in the material he submitted at his interview with the Minister’s delegate or at the Tribunal hearing.  Second, at [47], his Honour described the ground as not referring to the appellant specifically, but as being expressed virtually in the abstract.  His Honour held that the Tribunal is not required to consider hypothetical claims.  The third reason, found in [48], was that the Tribunal had in fact dealt with the claim in relation to the treatment of Christians in Bangladesh and Catholics in particular.  His Honour quoted the passage from [154] of the Tribunal’s reasons which I have set out in [9] above.

15                        The federal magistrate then went on to consider the various provisions of the Migration Act imposing procedural requirements on the Tribunal, to determine whether there had been any failure to comply with the requirements of those provisions.  In doing so, his Honour declined at [60]-[61] to follow the judgment of another federal magistrate in SZNAV v Minister for Immigration & Anor [2009] FMCA 693.  His Honour concluded that the Tribunal had not fallen into jurisdictional error by means of any failure to comply with any requirement of the provisions of the Migration Act. 

16                        Both in his notice of appeal to this Court and in his outline of submissions, the appellant has raised three grounds.  They do not address the grounds of the application to the Federal Magistrates Court specifically.  Nor do they address themselves to the reasons for judgment of the federal magistrate.  The first ground is that the Tribunal made its decision in bad faith.  That is justified by reference to the Tribunal’s findings that the appellant fabricated the documents concerning police records in Bangladesh and that the Tribunal did not believe that the documents from Bangladesh were reliable.  The second ground is that the Tribunal failed to consider persecution on the basis of the appellant’s Christian religion.  The third ground is that the Tribunal failed to exercise its jurisdiction under the Act and the Federal Magistrates Court failed to identify that issue.  This ground is particularised as involving a lack of procedural fairness.  The denial of procedural fairness is exemplified by reference to the Tribunal’s findings in relation to the documents from Bangladesh.

17                        In his oral submissions, the appellant has been keen to persuade me that the documents he tendered to the Tribunal were all genuine.  He pointed to the relative ease of investigating the genuineness of those documents, particularly to the presence of telephone numbers in some of them, and to the failure of the Tribunal to conduct any such investigation.  He submitted that the Tribunal came to the case with a preset mind.

18                        I have endeavoured to explain to the appellant that the function of this Court, and the function of the Federal Magistrates Court, does not include a determination of the facts of any claim for a visa.  The last opportunity that the appellant had to establish the facts in his favour was in the Tribunal.  The Federal Magistrates Court could only review the Tribunal’s decision from the point of view of process, excess of jurisdiction, or failure to exercise its jurisdiction.  This Court can only overturn the judgment of the Federal Magistrates Court if it is satisfied that that court was in error in relation to its review of the Tribunal’s decision.  These concepts are not necessarily easy to understand, but it is essential to bear in mind that the courts do not have the function of re-determining the facts.  Such a re-determination is what lawyers call “merits review” and it does not fall within the powers of the Federal Magistrates Court or this Court.

19                        I have looked carefully at the federal magistrate’s reasons for judgment because the appellant is unrepresented.  There is little doubt that the federal magistrate was correct in rejecting all of the five grounds of the appellant’s application to the Federal Magistrates Court.  Ground 1 certainly did involve an attempt to reargue the merit of the claim before the Tribunal.  The Tribunal did in fact determine that the appellant did not have a well-founded fear of persecution by the Awami League, by reason of any active involvement with the BNP, and did not have any well-founded fear of persecution on account of being a Roman Catholic, if he returned to Bangladesh.  The appellant does not like the conclusions of the Tribunal about those matters, but was not entitled to reargue those factual conclusions in the Federal Magistrates Court, or in this Court. 

20                        As to ground 3 in the court below, the federal magistrate was correct to say that there is no general obligation on the Tribunal, to conduct its own independent investigation of the appellant’s claims.  That proposition is now the subject of further authority by the High Court, in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (2009) 259 ALR 429.  That authority confirms the proposition that the Tribunal did not have a general obligation to make its own independent inquiries.  To the extent to which the appellant placed material before the Tribunal, the Tribunal did conduct a thorough investigation of that material.  The Tribunal’s reasons for decision run to 48 pages.  They are detailed.  The Tribunal spent a good deal of time listening to the appellant’s case on the two days on which it conducted parts of its hearing.  It reasoned in great detail about the difficulties it had in accepting the appellant’s account of events that had occurred in relation to him in Bangladesh.  Unfortunately, for the appellant, the Tribunal found that it could not accept the truth of most of that account.

21                        As to ground 4 in the court below, the appellant has not attempted to suggest in this Court that the federal magistrate was in error in relation to the Tribunal’s reliance on independent information.  It would have been necessary for the appellant to isolate exactly what items of information the Tribunal regarded as a reason, or part of the reason, for affirming the decision of the Minister’s delegate, which it had failed to give particulars of, to the appellant, in accordance with s 424A.  Only information that did not fall within one of the exceptions in subs (3) of that section could have been relied on.

22                        As to ground 5 in the court below, the three reasons given by the federal magistrate for rejecting that ground were all correct.

23                        The preference that the federal magistrate expressed for not following the judgment of another federal magistrate in SZNAV, has now been confirmed as correct by the judgment of the Full Court in Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109.  In that case, the Full Court allowed an appeal from the judgment of the federal magistrate who had decided SZNAV.

24                        To the extent to which the grounds of appeal to this Court seek to raise different issues from those raised in the Federal Magistrates Court, the appellant cannot succeed on those issues.  Manifestly, all of his grounds and his written submissions are seeking to agitate again, matters of fact, determined by the Tribunal.  I repeat that this Court does not have the power to deal with those matters of fact.  The Tribunal made its findings about the fabrication of police records in Bangladesh, and the unreliability of the documents tendered by the appellant.  It is not for this Court to overturn those findings.  They were matters of fact for the Tribunal only.  The findings certainly do not support the conclusion that the Tribunal made its decision in bad faith, or came to the case with a preset mind.  The Tribunal was doing its job of evaluating the evidence relating to the appellant’s claim.  The fact that the Tribunal did not find in the appellant’s favour about his fear of persecution because of his political affiliations or his religion is not a ground for overturning the Tribunal’s decision.  Again, the Tribunal’s function was to evaluate whether the appellant’s expressed fear of persecution for those two reasons was a well-founded fear.  In each instance, the Tribunal held that the fear was not well-founded.  This Court cannot overturn that conclusion on a matter of fact.  There is no suggestion that the Tribunal failed to understand the nature of persecution, or the test that it was to apply in reaching that conclusion.  Nor is there any evidence of denial of procedural fairness.  One ground again raised the issue of the reliability of the documents from Bangladesh.  The appellant claimed in his written submission that the Tribunal did not comply with s 424A of the Migration Act, by inviting him to make a written comment before it made those findings.  The Tribunal was not obliged to comply with s 424A of the Migration Act in respect of any information in relation to the findings about the documents.  There was no information on which the Tribunal relied, as the reason or part of the reason for affirming the decision of the delegate of the Minister in that respect.  There was no information, therefore, of which the Tribunal could give the appellant particulars, and seek his comment about the effect of the information.

25                        For all of these reasons, the appeal must be dismissed.

26                        Counsel for the Minister has sought an order that the appellant pay the Minister’s costs of the appeal.  Such an order is in accordance with the usual principle that costs follow the event.  The appellant has submitted that he has no means of meeting an order for costs.  The fact that a losing party is without means is not normally regarded as a reason for departing from the usual principle.  No other reason for departing from that principle appears.  I therefore propose to make an order that the appellant pay the Minister’s costs of the appeal.  Counsel for the Minister has submitted an affidavit by her instructing solicitor as to the amount of such costs and has sought an order that they be fixed at $3,500.  After initially objecting to receipt of that affidavit, the appellant withdrew his objection.  The estimate of the solicitor, given in that affidavit, of costs, if they were taxed in accordance with the rules of court is $4,550.  In the circumstances, $3,500 appears to be a reasonable amount.

27                        The orders I make are as follows:

1.         The appeal be dismissed.

2.         The appellant pay the first respondent’s costs of the appeal, fixed at $3,500.

Associate:

Dated:         3 February 2010