SZJZK v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from orders made by Nicholls FM on 27 September 2007. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal dated 30 November 2006. The Tribunal affirmed a decision of a delegate of the Minister, refusing to grant the appellant a protection visa. 2 The appellant claimed to have a well-founded fear of persecution, apparently on political grounds, as a Bangladeshi living in India. The short answer to his application in the Tribunal was that the Tribunal found the appellant to be a national of India. I will return to this later. 3 The appellant raised eight grounds of review in the Federal Magistrates Court, all of which were rejected by the Federal Magistrate. 4 The appellant is not legally represented. He appears this morning without legal representation. He has the assistance of a Bengali interpreter. The Notice of Appeal and the appellant's written submissions contain numerous grounds but the matter can be disposed of fairly shortly. 5 The Tribunal pointed to the significant documentary and other evidence which led it to the finding that the appellant is a national and citizen of India. The Tribunal referred to the appellant's claim that he was forced to flee from India where he was living because he feared that he ran the risk of being detained under Indian terrorism legislation. He claimed to fear the Indian authorities because he was a Bangladeshi. He said he would be subject to serious human rights abuses. He said he became involved with a party known as the Trinamul party, and stated to the Department that he attended some meetings of the party during in 2003. 6 As the appellant's claims regarding his fear of persecution in Bangladesh related to his claim to be a Bangladeshi, the Tribunal rejected the appellant's claims which were dependent upon him being a Bangladeshi living in India. 7 As regards the appellant's claims in relation to the Trinamul party, the Tribunal found that the appellant had not detailed any specific fears he had in relation to his association with that party. The Tribunal was not satisfied that the appellant's problems associated with the Trinamul party constituted serious harm, nor was it satisfied that the appellant had provided reasons showing what his particular problem was. 8 The Federal Magistrate dealt comprehensively with each of the eight grounds of judicial review that were the subject of the appellant's application. I do not need to refer in any detail to his Honour's reasons, but I will return to them briefly when considering the Notice of Appeal and the appellant's written submissions. 9 The Notice of Appeal set out ten purported grounds of appeal. However, with one possible exception, none of the grounds related to the factual findings that were made by the Tribunal. The grounds contained in [2], [3], [5], [6], [7], [9] and [11] of the Notice of Appeal were not relied upon before the Federal Magistrate. Each of the grounds is no more than a generalised assertion of legal error said to have been committed. 10 It is well established that in appeals seeking to raise grounds that were not argued below, the leave of the court is required. In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 a Full Court observed that the practice in migration appeals is usually to grant leave where there is sufficient merit and where there is an explanation for the failure to raise the matter below. 11 In my view it is plain that none of the grounds referred to in the paragraphs that I have enumerated has any merit. I accept the Minister's submission that they are simply generalised assertions of legal error. There was no explanation in any event for why those matters were not argued before the Federal Magistrate. Of course, the appellant is not legally represented but that, of itself, is not an answer. The short answer is that the grounds have no merit and leave must be refused. 12 Ground 4 of the Notice of Appeal complains of a failure to apply the principles laid down by a Full Court in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437. The assertion is that the Federal Magistrate made errors in not applying the principles laid down in that case. 13 However, it is plain from what the Federal Magistrate said at [33] of his reasons for judgment that he did address that issue. He observed that any suggestion of relocation as a ground of review was misconceived. His Honour said that relocation to Bangladesh was not an issue in the proceeding. Accordingly, that ground of appeal is rejected. 14 Ground 8 in the Notice of Appeal states that the Federal Magistrate did not consider the appellant's Amended Application. Apparently the substance of the complaint is that the application was dismissed in an ex tempore judgment. 15 It is plain from the Federal Magistrate's reasons that he carefully considered the appellant's application for judicial review. This ground of appeal is without merit and must be rejected. 16 Ground 10 of the Notice of Appeal, in the particulars of the grounds appearing in (a), states that the Tribunal did not consider that the appellant was under pressure from extremists as a result of his membership of the Awami League. 17 However, the Federal Magistrate dealt with this in [25] to [27]. The Federal Magistrate referred to a s 424A letter that was sent to the appellant and to the appellant's response in which he said that he was "the active leader of the Awami League over a long time" and that the Awami League was the only party that he worked for and supported. 18 This was contrary to what the appellant told the Tribunal as recorded at p 156 of the Appeal Book. The Tribunal there records that: The applicant stated that he did not have any position with the Awami League. He was just a member whilst he was in Bangladesh. He stated that he took up with the Trinamul party in India. 19 The Federal Magistrate observed at [27] that the Tribunal considered the appellant's claims in relation to the Trinamul party but found that he lacked any specific fears in relation to that party and the Tribunal was not satisfied that any problems associated with the Trinamul party constituted serious harm. There was nothing erroneous in the Federal Magistrate's conclusion on that ground. The ground must be rejected. 20 The appellant's written submissions do not follow the terms of the Notice of Appeal. I asked the appellant this morning whether he wanted to add anything to his written submissions, but he declined to do so. He told me that the written submissions followed what he had been saying all along and in this respect that there appears to be some similarity with the grounds of review that were argued before the Federal Magistrate. 21 In the appellant's written submissions, [1] and [2] contend that the Tribunal was biased or exceeded its jurisdiction. There is no basis for the contention of bias. The assertion that the Tribunal exceeded its jurisdiction is nothing more than an unsupported assertion which must be rejected. 22 At [3] the appellant states that the Tribunal failed to consider the serious harm test stated in s 91R(2)(a) of the Migration Act 1958 (Cth) and also relies on the contention that the Tribunal failed to deal with the issue of relocation. I have already dealt with that issue when addressing a similar contention in the Notice of Appeal. The Federal Magistrate dealt with that question in a way which was unaffected by error. The submission is rejected. 23 At [4] of the written submissions, the appellant complains of the use of country information. He also suggests that the Tribunal failed to consider information from Amnesty International. Those contentions are wrong. The Federal Magistrate dealt with them without any error in [22] and [23]. At [23], the learned Federal Magistrate said: …the reference to "Amnesty International Country Information" at best is a complaint that the Tribunal should have had regard to, or investigated further, some unspecified Amnesty International report. His Honour also rejected this submission. 24 The remaining submissions in the appellant's written submissions are either generalised legal assertions or matters that were not raised below. It is sufficient to say that the appellant's complaint that the Tribunal failed to consider "integers" central to his claim is quite unsupported by a reading of the Tribunal's reasons. 25 It follows, in my view, that the appeal must be dismissed, with costs.