SZDIK v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Smith FM dismissing an application for judicial review of the decision of the Refugee Review Tribunal ('the RRT') which affirmed the decision of the delegate of the Minister not to grant a protection visa to the appellant. By direction of the Chief Justice made pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the appellate jurisdiction of the Court in relation to the appeal is to be exercised by a single judge. 2 The appellant is a citizen of Bangladesh who claims to have a well-founded fear of persecution in Bangladesh because of his political and religious principles. The appellant claimed to be a member of the Bangladesh National Party ('the BNP') and that he feared harm from Awami League activists. He also believed that fundamentalist Muslims would attack him because of his 'non-conformist' views. 3 The RRT accepted that the appellant had been a BNP activist in the past but noted that the BNP was now in government. The RRT therefore found that if the appellant was facing harassment from people with Awami League backing as he claimed, he could call on the assistance of the government. Accordingly, the RRT did not accept his claim that he would not be protected. 4 The RRT did not accept the balance of the appellant's claims. In many respects, the RRT found his evidence not credible or dismissed his claims as being 'implausible'. One matter upon which the RRT placed reliance in dismissing the appellant's claims was that country information did not support a conclusion that there had been any general fundamentalist takeover of Bangladesh society such that non-conformists, such as the appellant, cannot live their lives in peace and without harm. It is apparent from the RRT's reasons for decision that the country information in this respect was put to the appellant at the hearing conducted by the RRT for his comment. Another matter upon which the RRT placed reliance was the fact that the BNP was now the party in government. The RRT's reasons do not disclose that this matter was put to the appellant at the hearing. 5 Smith FM reviewed all of the grounds on which the appellant sought judicial review of the RRT's decision and came to the conclusion that there was no substance in any of them. One of the grounds was that the RRT denied the appellant procedural fairness inasmuch as the appellant was not given the opportunity to deal with the country information which demonstrated that non-conformists could live their lives in peace and without harm. Smith FM correctly concluded that this information was put to the appellant at the hearing, and that he was given an opportunity of dealing with it. There was thus no substance in this ground. Smith FM also rejected this ground upon the basis that s 422B of the Migration Act 1958 (Cth) ('the Act') excluded the appellant's rights to procedural fairness. However, s 422B of the Act had not come into force at the relevant time, and the ordinary natural justice principles were then applicable. The RRT relied upon independent country information in finding that non-conformists are not persecuted in Bangladesh, however, there was no breach of the rules of natural justice in its so doing as the substance of that information was put to the appellant at the hearing for his comment. 6 Smith FM correctly characterised the information as to the change in government in Bangladesh as a notorious matter, and if there was a failure on the part of the RRT to put this notorious and incontrovertible fact to the appellant for his comment that would not result in a denial of natural justice: Applicants M105/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309 at [54]. 7 The appellant has filed an Amended Notice of Appeal to this Court. On the morning of the hearing of the appeal the appellant handed me a document styled 'Applicant's Outline of Submission' which I have placed with the papers and which contains all that the appellant wished to put to me in support of his appeal. Paragraph 2 of the outline (and ground 2 of the Amended Notice of Appeal) consists of a generalised claim of an error of law without any particularisation. Paragraph 3 impermissibly invites the Court to embark upon a merits review of the RRT's finding that if the appellant is facing harassment from people with Awami League backing as he claims, then he can call on the assistance of the government in dealing with them. 8 Paragraph 4 of the outline (and par 3 of the Amended Notice of Appeal) asserts a failure to accord procedural fairness in accordance with the decision of the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 ('Muin' and 'Lie'). But there was no attempt in this case to prove facts corresponding to the agreed facts in Muin and Lie which led to the conclusion in that case that there had been a jurisdictional error. 9 Paragraph 5 of the outline asserts that the RRT failed to investigate the claims which the appellant made in his oral evidence through the Department of Foreign Affairs & Trade or any other independent sources. The claims in par 6 of the outline that the RRT failed to 'internalise' the circumstantial grounds of the review application was explained by the appellant as meaning that the RRT failed to investigate those claims. Whilst the RRT may seek additional information under s 424 of the Act, there is a substantial body of authority which denies the existence of any obligation to do so: see Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 (2005) FCAFC 73 at [20]. 10 Paragraphs 7, 8, 9 and 10 of the outline contain some generalised propositions of law which are uncontroversial but which lead nowhere. 11 Paragraph 11 of the outline asserts that the RRT ignored relevant evidence and that its finding was in the face of contradicting independent evidence. The appellant explained to me that the evidence to which he is here referring is the evidence which he gave to the RRT at the hearing that persons associated with the Awami League had taken over the appellant's business and were in control of it and that if he returns to Bangladesh these people will think that he wishes to regain control of that business and will kill him. It is clear from the RRT's reasons for decision that it did not ignore this evidence. The RRT specifically referred to it in the section headed 'Claims and Evidence', and in the section of its decision headed 'Findings and Reasons' the RRT found that the appellant's evidence in relation to criminal elements having taken over his family business was not credible. The RRT was not satisfied that the difficulties which the appellant claimed he was having with the takeover of the family business ever occurred. This is a factual finding, the making of which is within the province of the RRT. The substantial reason given by the RRT for not accepting the appellant's evidence in this respect was a contradiction with regard to when an alleged ransacking of the business occurred, that being a matter on which the RRT would not expect him to have given such contradictory evidence if the facts were as he claimed them to be. The assessment of the appellant's credibility in this respect was a matter for the RRT. 12 Paragraph 12 of the outline alleges actual bias on the part of the RRT because it failed to investigate the appellant's claims of persecution. No evidence was placed before Smith FM as to the proceedings before the RRT apart from the RRT's reasons for decision, nor has the appellant established the factual substratum of the bias claim. It is patent on the face of the RRT's reasons for decision that the RRT endeavoured to discharge its statutory function conscientiously and there is no foundation for a conclusion that it was guilty of actual bias. 13 Paragraph 13 of the outline alleges that the RRT did not complete the exercise of its jurisdiction as it made no findings as to what socio-political changes might occur in Bangladesh in the reasonably foreseeable future. The RRT specifically found that it was not satisfied by the totality of the evidence before it that there is a real chance that the appellant would be harmed 'now or in the foreseeable future' if he returned to Bangladesh. There is no substance in this complaint. 14 Paragraph 14 of the outline asserts that the RRT did not provide the appellant with particulars of information which formed part of the reason for the RRT's decision, namely that the persecution against the BNP in Bangladesh had subsided, and in subsequent paragraphs reference is made to the decision of SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931 and to SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, although the appellant was unable to explain to me what assistance he sought to draw from these decisions. Section 424A of the Act had no application to the country information upon which the RRT relied because the information was of the kind referred to in s 424A(3)(a) and as such the s 424A obligation did not apply to that information. For the reasons earlier explained, the RRT was obliged to observe the principles of natural justice at the time when it was considering this matter. However, there was no breach of the rules of natural justice in failing to disclose the notorious and incontrovertible fact that the BNP had assumed government and there was a sufficient disclosure to the appellant that no independent evidence indicated that people with 'non-conformist' views were being attacked. The RRT was entitled to draw inferences from the absence of any report to this effect if there was reason to expect that such a report would, in the usual course, exist: QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1448 at [45]. 15 The Amended Notice of Appeal refers (but the outline of submissions does not) to the transcript of the hearing before the RRT. The transcript of the RRT hearing was not in evidence before Smith FM, and the appellant has not explained why the transcript of the RRT hearing was important in establishing his grounds for judicial review. The other grounds of appeal have been dealt with above or are patently devoid of any substance. 16 The appeal should be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.