SZGOH v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate given on 2 March 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 6 May 2005 and handed down on 26 May 2005: see [2007] FMCA 277. The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant. 2 The appellant is a citizen of Bangladesh who arrived in Australia on 27 April 2004. He entered on a student visa. On 6 December 2004 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs, as it was then known. A delegate of the first respondent refused the application on 18 February 2005. On 14 March 2005 the appellant applied to the Tribunal for a review of that decision. Accompanying this application was a letter provided by an advisor of the appellant stating "I refer to the applicant's protection visa application…" and disputing the findings of the delegate. In this letter submissions were made referring to the UNCHR handbook and the decision of the delegate. 3 The appellant claimed that, from 1996 to 1999, he was an active member of the Chatra League while studying at Dhaka College. The appellant claimed that he was a general secretary and came to the adverse attention of BNP and Chatra Dal activists within the college. The appellant stated that, in May 1995, Chatra Dal activists broke into his room and beat him unconscious, set fire to his belongings and warned him that he would be killed. The appellant claimed that, as a result of this attack, he was hospitalised. Despite this the appellant claims that he continued his activities and was advised to keep a low profile. The appellant asserted that, on the completion of his studies in 2001, he joined the Awami League and was a young activist for a local Awami League leader, 'C'. The appellant claimed that this leader arranged a large public meeting and that hooligans attacked the crowd that gathered and that the appellant was blamed for shooting a BNP activist and that other activists attacked his home (although he escaped). The appellant claimed that he relocated to another part of the city but that, after he married in 2003, he moved back home assuming his life was no longer at risk. The appellant claimed that a false charge was laid against him in relation to the shooting incident in 2001 and that his father arranged for him to study in Australia. THE DECISION OF THE TRIBUNAL 4 The Tribunal was not satisfied as to the credibility of the appellant for various reasons. It found that: · There was no Awami League candidate in the 2001 elections with the name 'C' as claimed by the appellant and the appellant could not name the constituency in which the appellant said he was an election worker; · The claim to have been a General Secretary of the Chatra League was unsubstantiated and the claims in this regard were found to be inconsistent and vague. The Tribunal could not be satisfied that the appellant was ever a member of the Chatra League; · The Tribunal was not be satisfied that the appellant gave an accurate account of the three incidents in which he claimed to suffer harm because of his political involvement; - In his protection visa application he had claimed that he was attacked in 1995. This was the year before he became politically active for the Chatra League as claimed in the protection visa application. At hearing the appellant stated that he became active in 1995 and that he had made a mistake in his initial application. The Tribunal was not satisfied with the explanation. The Tribunal also was not satisfied that the Awami League and Chatra Dal would have cooperated to plan and carry out this attack on the appellant as the two parties were political enemies in Bangladesh. - The Tribunal did not accept that the appellant was involved in a 2001 meeting where he was injured or that he was involved in the political campaign on behalf of Awami League candidate, C. - The Tribunal did not accept that the appellant was attacked at his parents' home by BNP workers and activists in 2001; · The Tribunal was not satisfied that false murder charges had been brought against the appellant as claimed. No evidence was presented to substantiate the claim. The Tribunal was not satisfied that the shooting incident in 2001 had occurred; and · The Tribunal was not satisfied that the appellant's seven month delay in seeking protection in Australia was consistent with a genuinely held fear of serious harm in Bangladesh. 5 The Tribunal went on to consider the mental condition of the appellant, referring to difficulties experienced by the appellant at hearing. The Tribunal accepted that the appellant had experienced mental difficulties since arriving in Australia but was not satisfied that the appellant was panicked at any point during the hearing or that nervousness or mental problems may have prevented him from giving evidence effectively. The Tribunal was satisfied that the appellant was able to participate effectively in the hearing. GROUNDS BEFORE THE FEDERAL MAGISTRATE 6 The appellant sought judicial review of the Tribunal's decision in the Federal Magistrates' Court. By application filed in that Court on 20 June 2005 the appellant sought a review of the decision of the Tribunal on the ground that the decision of the Tribunal was affected by jurisdictional error. The appellant offered five particulars as follows: (a) The Tribunal did not comply with s 424A of the Migration Act 1958 (Cth) ("the Act") (b) The Tribunal failed to comply with s 424A by failing to provide cases relied on by the Tribunal to the appellant for comment; (c) The Tribunal did not ensure that the appellant understood why the information was relevant; (d) The Tribunal did not give the appellant notice of the particulars of the information as required by s 424A; and (e) The Tribunal generalised the claims of the appellant and failed to accept that the appellant was really facing persecution in Bangladesh. THE DECISION OF THE FEDERAL MAGISTRATE 7 The Federal Magistrate observed that it appeared to be the case that the appellant believed the Court would re-hear the merits of his case. His Honour noted that he could not undertake merits review. 8 His Honour considered five possible breaches of s 424A as outlined in the submissions of the respondent and dealt with each as follows: 9 First alleged breach: Information from the Bangladesh Electoral Commission used to determine that there was no candidate by the name of 'C' in the 2001 elections This information derived from the Bangladesh Electoral Commission was not covered by s 424A(1) of the Act because of the provisions of s 424A (3)(a). This claim was also rejected because the appellant could not name the constituency in which he was active. Such information was excluded by operation of s 424A(3)(b). 10 Second alleged breach: Inconsistency between the protection visa application and oral evidence regarding the appellant being the general secretary of the Chatra League in 2000 to 2001; and 11 Third alleged breach: The contradiction between the protection visa application and oral evidence about the circumstances surrounding the giving of a public address by 'C.' His Honour determined in relation to the second and third potential breaches that the information did not form part of the reasons for affirming the decision of the delegate and that, therefore, it was not comprehended by s 424A(1) of the Act. It was the answers provided by the appellant to questions about being general secretary of the Chatra League and the speech which led the Tribunal to reject his claims in this regard. The Federal Magistrate referred to the decision of Heerey J in SZCJD v Minister for Immigration [2006] FCA 609 at [40] - [43] explaining that s. 424A(3)(b) applied to exclude the operation of s 424A(1) because details of the visa application were discussed with the applicant at the Tribunal hearing. His Honour determined that the various inconsistencies and implausibilities emerged from the questioning of the appellant during the hearing. No jurisdictional error was made. 12 Fourth alleged breach: The inability of the appellant to state at hearing in which month of 2003 the false charges were laid against him given the time frames stated in the protection visa application. The Federal Magistrate determined that this information was not covered by s 424A(1) as the Tribunal relied on lack of knowledge about the month the appellant knew of the false charges and not the false charges themselves. Referring to the decision of Young J in VWFP & Anor v Minister for Immigration [2006] FCA 231 at [62] - [63] His Honour held that, once information was given at hearing about the charges, it was apparent that the claims were vague and the answers were inconsistent. 13 Fifth alleged breach: The appellant's seven month delay in seeking protection in Australia. His Honour found that this information was not relevant information for the purpose of s 424A(1). Rather it was inconsistent and unconvincing explanations by the appellant at the hearing about why he did not quickly seek protection, which enabled the Tribunal to reject the claim. 14 Furthermore, the Federal Magistrate found that there was republication of the appellant's claims, made in his protection visa application, in the statements of the appellant at hearing and in the pre-hearing submission. This meant that s 424A(3)(b) applied and there was no obligation on the Tribunal to comply with the procedures stipulated in s 424A(1): see SZHIB v Minister for Immigration [2006] FCA 611 at [23].