SZAUU v Minister for Immigration & Multicultural & Indigenous Affairs

Madgwick J: 1 This is an appeal from a judgment of the Federal Magistrates Court constituted by Federal Magistrate Baumann given on 9 September 2004. The learned Federal Magistrate extended time to allow the appellant to rely on an amended application prepared by his legal advisers seeking judicial review and the issue of constitutional writs in relation to an adverse decision of the Refugee Review Tribunal ('the Tribunal') given on 18 November 1999. 2 As his Honour noted, the appellant was represented throughout the proceedings in the Federal Magistrates Court by 'specialist immigration lawyers'. The original application, as his Honour said, raised certain issues, which were then refined by an intended first amended application, dated 19 July 2004. It: '…significantly refined the grounds relied upon and abandoned [certain] issues … but maintained as a claim of jurisdictional error that the [Tribunal] made findings about [certain] medical evidence and [an] alleged assault [which the applicant claimed he had suffered in his country of nationality Bangladesh].' 3 The Federal Magistrate also allowed the appellant to rely on a further amended application filed 2 September 2004. 4 Adopting some submissions of the respondent, the learned Magistrate summarised the background succinctly in the following way: 'The applicant was a national of Bangladesh … who claimed fear of persecution in that country for his political opinion. He claimed to have been a member of the Bangladeshi National Party (BNP) since 1987 and an officeholder in that party with the title of "Organisational Secretary" at the district level since 1988 - and that the BNP's rival, the Awami League (AL), that targeted him for persecution … the applicant failed to persuade the Tribunal that he knew much about, or had anything much to do with any political process in Bangladesh at all.' The Tribunal concluded "The applicant is not the political figure he claims to be". The Tribunal found the appellant to be an unreliable witness … and simply was not satisfied that the appellant faced a real chance of Convention-related persecution in Bangladesh.' 5 His Honour then set out the issues which arose for determination and were asserted by the appellant to establish jurisdictional error. They were as follows: '(e) The Tribunal made an error as to the meaning and effect of the medical evidence before it and formed its own medical opinion which it was not entitled to do. (f) The Tribunal failed to deal with a material claim made by the applicant, namely that his political adversaries had filed false cases against him. (g) The Tribunal failed to ask whether the applicant had been attacked on two separate occasions.' 6 By the amended notice of appeal filed in this Court by the said solicitors, the grounds of appeal are: '1. The Court erred in holding that there was no jurisdictional error in the Tribunal's failure to deal with the material claim made by the appellant: (i) [t]hat the [a]ppellant's political adversaries had filed false cases against him. 2. The Court erred in holding that there was no jurisdictional error in the Tribunal's failure to ask a question it was required to ask: (i) [t]he Tribunal was required to ask whether … the attack that the [a]ppellant claimed took place on 2 April 1997 was the same attack that took place in July 1997. It had to ask that question, as an answer in the negative meant that the Tribunal would then have to consider if two attacks took place as claimed, which it failed to do. 3. The Court erred in holding that: (i) [t]he [a]ppellant had abandoned the claim that he was attacked on 2 April 1997. (ii) [t]he Tribunal had no obligation to consider a claim that "appears" to have been abandoned.' 7 The appellant appeared today unrepresented and indicated that he wished only to rely on written submissions which he filed yesterday. These submissions were evidently prepared at some point in time, probably in relation to some case other than the appellant's, by a person with at least a little knowledge of some relevant legal concepts and some of the cases. The inference is that, with the aid of the word processor, they have been run off inappropriately in this case. In the context of the amended grounds of appeal, which capable lawyers saw fit to devise, the written submissions are little better than meaningless gobbledegook and as none of them addresses any of the grounds of appeal, in my view no more need be said about them. 8 As to the first ground, that the Tribunal failed to deal with a material claim, the learned Magistrate said (at [16]): '…the only evidence before the Tribunal on this issue appears to be that contained in para 16 of the applicant's initial statement supporting the visa application that "my political rivals filed few cases against me to doom my political career". In the absence of any transcript to corroborate otherwise, there is no evidence there was any other attempt by the applicant before the Tribunal to put that issue before it for consideration. Certainly no mention of this issue appears in the reasons of the [Tribunal] member.' 9 The learned Magistrate continued: 'The applicant submits that I should find the Tribunal did not consider this claim which he asserts is [a material issue] and as a result it has constructively failed to exercise its jurisdiction. In my view, the bland assertion, without particularisation or any evidence of the "false cases" was not so prominent as to cause the Tribunal to embark upon its own inquiries. Certainly, in appropriate cases, the [Tribunal] may and should do so, and is not limited to the case articulated by an applicant.' 10 If anything, his Honour erred in favour of the appellant by, I think, some slight misreading of the decision in Sellamuthu v MIMA [1999] FCA 247, to which his Honour then referred, and to which decision I was a party. In any case, the matter is properly disposed of in the way suggested by counsel for the respondent. There is, as counsel submits, a distinction between failing to consider an integer, or a claim that is required to be considered, and failing to grapple expressly with a piece of evidence in support of a claim. The latter failure does not amount to jurisdictional error. Here, as counsel also points out, the appellant does not, for example, say that he fears any serious harm as a result of the alleged filing of false cases against him, nor does he say that the courts in Bangladesh would not be available to provide effective protection, nor does he even say that he feared that such cases might be pursued upon his return. 11 In any case, not to put the matter too finely, the Tribunal Member considered that he was being told a pack of lies and that, as he put it, the appellant was, for reasons that the Tribunal Member outlined, 'not the political figure that he claimed to be'. Since the single bare sentence relied upon by the appellant to ground his alleged claim or integer of a claim involved, as a motive for the filing of the false cases, that it was 'to doom [his] political career', counsel is, in my opinion, correct to submit that the finding of the Tribunal Member, to which I have just referred, was at least an implied rejection of the claim made by that bare sentence. The Tribunal was not under any obligation to investigate every unparticularised, general assertion made by the appellant, at least in this case. 12 If any question arises as to whether the Tribunal should have further investigated the matter, or whether its decision might have been unreasonable for not doing so, the circumstances do not put the case into the exceptional category in which some such duty or some such unreasonableness might arise. 13 As to the next ground, that the Tribunal should have inquired into whether or not the attack that the appellant claimed took place on 2 April 1997 was the same as that which took place in July 1997, the learned Federal Magistrate correctly found that the Tribunal plainly acted on the view that only one attack had taken place and that it had occurred in July 1997. 14 As Baumann FM explained, the appellant, neither in his first statement to the Tribunal nor in his evidence to it as recounted by the Tribunal Member, ever asserted two separate attacks. As his Honour pointed out, the discrepancy concerning the dates was the only real point of inconsistency in what otherwise appeared to be a description of the same event and it would have been very strange had the appellant not clearly asserted two separate attacks if that is what he intended to allege. It is clear that he had only made a claim of one attack, and not every possible inconsistency, in this case a trivial conflict in the evidence, needs to be the subject of solemn discourse by the Tribunal. 15 The third ground, that his Honour erred in concluding that the appellant had abandoned the claim that he had been attacked on 2 April 1997 and in holding that the Tribunal had no obligation to consider a claim that 'appears to have been abandoned', is really nothing more than another way of arguing the last unmeritorious point that I have just dealt with. What the learned Magistrate said was actually said in relation to another allegation, remarkable for its brevity in the circumstances, that Awami League people 'had tried three times to kill me but failed'. The Tribunal had not mentioned this in its reasons for decision. Given the lack of attention to this statement before his Honour, he inferred that the matter had not been 'pressed' by the applicant before the Tribunal. His Honour concluded that that allegation 'appears to have been abandoned'. He continued: 'The fact that it was and appears to have been abandoned has some relevance to the likelihood of this applicant embellishing issues of violence.' 16 His Honour then returned to the issue of 'the alleged two separate attacks'. Normally, if there is a suggestion, apparently made with any shred of possible credibility by an applicant before the Tribunal, that there had been not one but three attempts by political opponents to kill him for political reasons, one would certainly expect that aspect of the claim to have been addressed. However, it is apparent that the Tribunal member 'disbelieved' the story that the appellant had any political significance sufficient to cause anybody to want to do him any serious harm. Further, the remarkable lack of detail about such a serious claim exceptionally, in my view, justified the Tribunal in resting on its conclusions as to the appellant's credibility. 17 Finally, it is by no means clear to me that the third ground of appeal in the amended grounds of appeal intended to refer at all to the claim of the three attempts to kill him. As I would read it, it really seems to have been, as I said earlier, an effort to articulate somewhat differently the concern about possible conflation of two incidents of assault only, not attempted murder, that I have already addressed. 18 The case appears to be without legal merit and the decision of the learned Federal Magistrate was correct. The appeal should be dismissed with costs, which I assess in the sum of $3,500. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.