SZHCH v Minister for Immigration & Citizenship

Federal Court of Australia|2007-05-10|Before: Edmonds J

Introduction 1 This is an appeal from a judgment of the Federal Magistrates Court (Raphael FM) dismissing an application for review of a decision of the second respondent ('the Tribunal') affirming a decision of a delegate of the first respondent ('the Minister') refusing an application for a protection visa (class XA).

Background 2 The appellant is a citizen of Bangladesh. The appellant arrived in Australia on 4 November 2004 and on 14 December 2004 he lodged an application for a protection visa (class XA). After the Minister's delegate refused the protection visa application on 18 February 2005, the appellant applied on 21 March 2005 to the Tribunal for a review of that decision. 3 Before the Tribunal, the appellant claimed to have well-founded fear of persecution for his political opinion. He claimed to have been a district organising secretary of the youth league of the Bangladesh Awami League ('the AL'). He claimed to have joined the AL in 1992. In 2001 the AL lost the general election. The appellant claimed he was persecuted by the Bangladesh Nationalist Party ('the BNP') and that at one stage he had been ambushed, attacked and tortured. The appellant claimed that a case was filed against him for a murder charge and that police were still looking for him. He claimed that in March 2002 BNP activists attacked him resulting in hospitalisation and he realised his life was in danger. On 15 May 2003 the appellant departed Bangladesh for the United Arab Emirates to work as a cook. He stayed there until November 2004 when he left for Australia.

In the Tribunal 4 The appellant attended a hearing on 30 May 2005 and gave oral evidence to the Tribunal with the assistance of an interpreter. On 5 July 2005 the appellant submitted further documents to the Tribunal, including documents relating to the alleged murder charge. In a letter dated 12 July 2005 the Tribunal invited the appellant to comment on information, including their concerns about the 'First Information Report' of 27 July 2001 and other documents the appellant had submitted. No response was received from him. This letter accrued some importance in the context of the appeal to this Court and I will refer to that importance below. 5 The Tribunal was not satisfied as to the truthfulness of the appellant's claims to have been an active member of the Awami Youth League or that he held a leadership position. It found his explanation of his duties were vague, generalised and uninformative and that his evidence reflected a common-knowledge understanding rather than the knowledge held by a political activist. Further, the appellant was unaware of the election results, which cast doubt on the appellant's role in the campaign. It found his level of knowledge of AL policy did not support a claim of membership over ten years. 6 As the Tribunal was not satisfied the appellant was an AL member it could not be satisfied the appellant had the political profile that would cause him to be targeted by opposing political figures and that he suffered the harm claimed. The Tribunal noted that, in continuing to stay at home, the appellant failed to take action to avoid the claimed harm: whilst staying at home, the police could have arrested the appellant at any time. The police did not trouble the appellant during the period before he departed Bangladesh, and he left on a passport in his own name. The Tribunal did not accept the appellant was wanted by police for a false murder charge. 7 In consideration of the documents submitted by the appellant, the Tribunal was not satisfied they were genuine. In making that finding, the Tribunal considered the documents' inconsistencies with the claims and the similarities between documents, casting doubt on their authenticity. 8 In summary, the Tribunal was not satisfied the appellant was a member and officeholder of the Awami Youth League or that he was an activist of the AL when living in Bangladesh. It was not satisfied that the appellant ever suffered any harm in Bangladesh for reason of political opinion and it was not satisfied that there was a real chance that he would suffer harm for this reason if he were to return to Bangladesh. The Tribunal observed that the appellant did not claim to fear harm for any other reason and there was nothing in the material before the Tribunal to suggest that there were any such grounds. The Tribunal was not satisfied that the appellant had a well-founded fear of persecution because of his political opinion, or for any other Convention reason, if he returned to Bangladesh now or in the reasonably foreseeable future and was not satisfied that he was a refugee.

In the Court below 9 By an Application for Judicial Review, the appellant raised three grounds of appeal in the court below, namely: (1) The Tribunal did not comply with s 424A of the Migration Act 1958 (Cth) ('the Act'). (2) The Tribunal breached s 424A of the Act because it failed to put to the appellant case law it had referred to in its decision for comment and it also failed to explain to the appellant why the case law was relevant. (3) The Tribunal erred because it failed to accept that the appellant would be persecuted and it failed to grant him a protection visa. 10 In relation to the second ground, which alleged a s 424A error constituted by a failure by the Tribunal to provide the appellant with the case law included in its decision, his Honour cited the decision of Barnes FM in SZASX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 680. 11 His Honour noted that as he had already found that the cases did not need to be disclosed, it was not necessary for the Tribunal to ensure that the appellant understood the references to case law. 12 In relation to the third ground, his Honour found that it was an attempt at impermissible merits review. 13 At the hearing, the appellant indicated that should his Honour require any more documents, the appellant would be willing to provide them. His Honour, concerned with the appellant's misunderstanding of the role of the Federal Magistrates Court, referred to the explanation of Allsop J in SZDFO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1192 at [11] and [12].

The Appeal in this Court 14 The appellant's notice of appeal filed in this Court raises seven grounds, which can be summarised as follows: (1) The appellant was denied procedural fairness by reason of: (i) the Tribunal having tested the appellant's credibility; (ii) the Tribunal being biased; (iii) the learned Federal Magistrate's dismissal of the appellant's application for review which would jeopardise his safety on return to Bangladesh; (iv) the Tribunal having erred in its finding that the appellant was not an activist and leading person of his remote area, and that the appellant had claimed to be a treasurer of the AL ('Ground 1'). (2) The Tribunal's decision was an improper exercise of power ('Ground 2'). (3) The Tribunal failed to comply with s 424A of the Act by failing to put case law to the appellant ('Ground 3'). (4) The appellant was denied natural justice ('Ground 4'). (5) The Tribunal's decision was unjust and made without taking into account the full gravity of the circumstances of the appellant's claims ('Ground 5'). (6) The Tribunal's decision was made without evidence ('Ground 6'). 15 The Minister submitted that the grounds are without foundation and that no jurisdictional error had been demonstrated or was present. 16 In relation to Grounds 1 and 4 generally, s 422B of the Act applies to the instant decision. In that regard, the Minister submitted that compliance with the Act ensured that the appellant was afforded procedural fairness. I agree. 17 As to particular (i) of Ground 1, there is nothing unorthodox about a Tribunal assessing an appellant's credibility generally nor is there any error present in the manner the Tribunal assessed the appellant's credibility in the instant case. 18 As to particular (ii) of Ground 1, the suggestion that the Tribunal already had an adverse view of the appellant's credibility prior to the hearing constitutes an allegation of bias. If an allegation of bias is to be made it must be distinctly made and clearly proved: Minister for Immigration & Multicultural & Indigenous Affairs v Jia Legeng (2001) 205 CLR 507 at [69]. Moreover, it is a rare circumstance where such bias on the part of the Tribunal will be apparent merely from written reasons: SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 at [16] per Tamberlin, Mansfield & Jacobson JJ citing SCAA v Minister for Immigration & Multicultural Affairs [2002] FCA 668 at [38] per Von Doussa J with approval (see also [36] and [37] of SCAA). 19 As to the suggestion in particular (iii) of Ground 1, that the appellant was denied procedural fairness by reason of the dismissal of his application for review by the court below, it has no foundation. 20 As to particular (iv) of Ground 1, there is no part of the Tribunal's decision which turns upon the appellant having been a treasurer. Certainly the Tribunal, in reliance on a letter from the AL, makes reference to the appellant being an office holder. As a result, this particular is merely a challenge to a factual finding. The Minister submitted that even if the finding was factually incorrect, such an incorrect finding is not sufficient, in and of itself, to constitute jurisdictional error: see MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [28]; Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 8 at [31] per Finn, Marshall and Mansfield JJ and NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76 at [37] per Gray, Moore and Weinberg JJ. I agree. 21 Ground 2 is not particularised, nor can it be made out. In the absence of any meaningful particulars, the Minister submitted that this ground is not capable of further response. I agree. 22 Ground 3 is the same ground that the appellant agitated in the court below. As the Minister submitted in the court below, with which his Honour concurred, this case is directly analogous to the argument put in SZASX. 23 The minister submitted that the Tribunal was not obliged to put case law to the appellant: see SZASX at [16] to [35]. That decision was upheld on appeal to the Federal Court (see SZASX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 68 per Tamberlin J). The Minister submitted that the principles outlined in the decision of Barnes FM have not been undermined by the subsequent decision of SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214 and ought be followed in the instant case, resulting in the failure of this ground. I agree. 24 Ground 5 alleges that the Tribunal made its decision without appreciating the gravity of circumstances which the appellant would face upon his return to Bangladesh. If this ground seeks to allege that the Tribunal misapplied some part of the real chance test or misapprehended the appellant's evidence, then it ought to be pleaded in that manner. Otherwise, the ground is nothing more than an attempt at merits review and ought be dismissed as an impermissible exercise. 25 In relation to Ground 6, whilst the appellant may disagree with the Tribunal's ultimate finding, and the constituent factual findings which combine to make the ultimate finding, that is not sufficient to demonstrate jurisdictional error. Similarly, that the appellant takes issue with the Tribunal's findings does not equate to the Tribunal making its decision without evidence. The Tribunal's findings were open to it on the material before it and, accordingly, there is no error. 26 Ground 7 simply alleges an error on the part of his Honour below constituted by a failure to find an error in the Tribunal's decision. I too am unable to discern any error in the Tribunal's decision. 27 In written submissions filed by the appellant for the purpose of the hearing, the appellant said: 'The Tribunal sent a letter to the applicant on 12 July 2005 and the applicant did not understand the contents of the letter particularly the first two lines made him confused what it mean such as, "The Tribunal has information that would, subject to any comments you make, be the reason or part of the reason for deciding that you are not entitled to a protection visa" the applicant did not answer the letter and the Tribunal did not make it clear why he has received this letter, the Tribunal should make it clear what the applicant should have to do it, s424A(b) of the Migration Act (the Act) said that the applicant should understands the letter did not understand (RRT decision page- 10) and the Federal Magistrate did not consider that the Tribunal have an obligation that the applicant must understand the reason to receive the letter.' 28 In oral submissions, the appellant said he never received the letter of 12 July 2005. When asked a number of questions going to the veracity of that statement in the face of his written submissions, the appellant maintained that he did not receive the letter of 12 July 2005. In those circumstances, I do not propose to address this aspect of his written submissions. The other aspects are covered in the appellant's grounds of appeal and for the reasons given above, cannot be sustained. 29 The appeal must be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate: Dated: 10 May 2007 Counsel for the Appellant: The appellant appeared in person

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