SZNHC v Minister for Immigration and Citizenship

Federal Court of Australia|2010-02-18|Before: Tracey J

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate delivered on 4 November 2009, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 11 February 2009: see SZNHC v Minister for Immigration [2009] FMCA 1063. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant a protection visa to the appellant.

background 2 The appellant is a citizen of Bangladesh. He entered Australia on 23 November 2007. On 19 December 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs ("first respondent"). A delegate of the first respondent refused this application on 22 February 2008. On 26 March 2008 the applicant applied to the Tribunal for a review of that decision. 3 The appellant claims that he would be subjected to harassment or other inhuman treatment in Bangladesh due to his political activity. He claims that he had been involved with a political body, the Awami League ("AL"), from a young age and became "well known…as a political leader". The appellant claims that this attracted harassment and threats from leaders of a rival political party, the Bangladesh National Party (the "BNP"). The appellant alleges, inter alia, that he was threatened, falsely charged with criminal activity and detained and badly beaten by members of the BNP. When the appellant allegedly moved to "the other side of [the] country", BNP workers went to his parents' home and threatened his family. 4 The appellant travelled to South Africa and applied for asylum there in 2004. He then married a South African woman and obtained permanent residency in that country on that basis. He claims that he continued his political activities for the AL in South Africa. He experienced several occasions when he was beaten and generally felt unsafe in South Africa, although this was unrelated to his political activity. In late 2007 the appellant's wife took up with another man and her new boyfriend began to threaten the appellant. The appellant obtained a visa to come to Australia in 2007 as he felt that he was not safe in South Africa. While he was preparing to come to Australia, the appellant's father died in Bangladesh on 31 October 2007. He decided to return to Bangladesh. He claims that he spent three days in hiding shortly after arriving there, before escaping to Australia with his family's assistance and after bribing immigration officers.

REFUGEE REVIEW TRIBUNAL 5 The Tribunal accepted (without deciding) that the appellant did not have a current right to enter and reside in the Republic of South Africa. It accepted that he is a national of Bangladesh and hence assessed his claims against Bangladesh as his country of nationality. The Tribunal accepted that the appellant and members of his family were supporters of the AL; that he had been involved in "low level youth branches" of AL organisations; that the appellant was involved in the October 2001 election campaign; and that he and his father were victims of harassment by BNP members during that time. 6 It did not, however, accept that the appellant had moved away from his home in Dhaka to other cities in Bangladesh during the period between 2001 and 2004 for the purposes of going into hiding from BNP members. The Tribunal said of the appellant's move away from Dhaka that "he went to these cities to look for work and returned to his home village and to his family home in Dhaka from time to time". 7 Various claims of harassment and mistreatment by the BNP were made by the appellant. He alleged that, while in hiding, members of the BNP threatened him after having traced him through a mobile phone company; that he had been mistreated by political opponents and the police on many occasions during this time; and that he was gaoled on "false charges" for five months in 2002. The Tribunal did not accept any of these claims, noting that the evidence he provided of mistreatment by political opponents and police was "confusing and contradictory", that the appellant's oral evidence in support of his claim of being gaoled on "false charges" was "vague and generalized" and gave "no detail about the circumstances of his detention". The Tribunal did accept that he "may have suffered some harassment and been the occasional victim of political violence at the hands of BNP supporters prior to 2001". It did not accept that the appellant suffered any mistreatment after 2001 noting that there was no evidence of the appellant's political involvement after this date. 8 The Tribunal concluded that the appellant would not be at risk of political violence from the current Bangladeshi government. The Tribunal rejected the appellant's submission that he would not be protected by state authorities observing that this claim was "essentially speculative". The Tribunal rejected the appellant's claims that he would be at risk of political violence from opposition parties. Evidence that the appellant would be on a list of AL members who would be targeted or even killed by a network of BNP members through Bangladesh was regarded by the Tribunal as "speculative and implausible given the [appellant's] low profile, his cessation of activities and his absence from Bangladesh for a lengthy period of time". 9 The Tribunal concluded that the appellant did not have a well-founded fear of persecution for any Convention related reason in Bangladesh.

THE FEDERAL MAGISTRATES COURT 10 The appellant applied to the Federal Magistrates Court for a review of the Tribunal's decision. The application for review contained two grounds. 11 The first ground alleged that the Tribunal had been biased against the appellant. The Federal Magistrate rejected this ground. No appeal is brought from this aspect of her Honour's decision. 12 The second ground read: "Secondly, that 'the Refugee Review Tribunal's decision was unjust and was made without taking into account the full gravity of the applicant's circumstances of the decision". Her Honour, somewhat generously, was prepared to treat this ground as containing an allegation that the Tribunal had failed to have regard to relevant considerations. She rejected this ground. This decision is not challenged on appeal. 13 Although the issue was not raised by the appellant in his application for review the Federal Magistrate gave consideration for the possibility that there had been a failure by the Tribunal to comply with the requirements of s 424 of the Migration Act 1958 (Cth) ("the Act"). 14 More particularly, her Honour considered whether the Tribunal had invited a person to give additional information under s 424(2) such that it had to meet the requirements of ss 424(3) and 424B having regard to the law as it stood at the time this matter was first before the Court. She found that the Tribunal had not failed to comply with s 424 of the Act because neither of its requests to third parties for information (such as the one to the South African High Commission and the one to the Department of Foreign Affairs and Trade) nor a letter which was sent to the appellant engaged s 424(2) of the Act. This was because the Tribunal was merely exercising its power to obtain information: see Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109. 15 The Federal Magistrate's decision that the Tribunal had not contravened the provisions of s 424 of the Act was not challenged on this appeal.

APPEAL TO THIS COURT 16 The notice of appeal to this Court was filed on 24 November 2009. Under the heading "Grounds of Appeal" it is alleged that the Federal Magistrate "committed an error of law in dismissing that (sic) the decision involved a jurisdictional error of law involving an incorrect interpretation to the applicable law to the facts of the case found by the Refugee Review Tribunal" and that "the Tribunal decision was an improper exercise of the power conferred by the Migration Act or the Regulations." Thereafter follows a page and a half of submissions which appeared in substantially the same terms in another notice of appeal which I was called on to consider earlier in the week. The submissions allege a breach by the Tribunal of "its obligations under s 424A(1) of the Act." This ground of review was not pursued before the Federal Magistrate. 17 The hearing of the appeal was listed for 17 February 2010. On the previous day the appellant forwarded to the Court's Registry, by facsimile transmission, a short written application requesting a postponement of the hearing. He said that he was unable to attend due to stomach and shoulder pain. There was attached a medical certificate which had been completed on 15 February 2010 which certified that the appellant was receiving treatment for stomach ache and shoulder pain and would be unfit to continue his usual occupation from 15 February 2010 to 17 February 2010 inclusive. I directed that the appellant be contacted and advised that the hearing would proceed at 10:15 am on 18 February 2010. When advised of this decision by telephone, the appellant said that he had a medical certificate which established his inability to attend the adjourned hearing. When it was pointed out to him that the medical certificate only certified that he would be unfit until 17 February 2010, he immediately hung up. Within a short time a second certificate was faxed to the Court. It was dated 16 February 2010. It was from another doctor. It certified that the appellant was unfit to attend a "Federal Court hearing" from 16 February 2010 until 23 February 2010. An officer from the Registry immediately contacted the doctor and requested that she provide details of the circumstances in which she came to issue the certificate and her reasons for certifying that the appellant was unfit to attend Court. A proforma affidavit was provided to assist the doctor. The doctor provided no further information. The appellant was advised by telephone that the hearing of the appeal would be listed at 10:15 am this morning. 18 When the matter was called on the appellant appeared. He had the assistance of an interpreter. He sought an indefinite adjournment of the hearing because, he said, he was too unwell to make submissions. Counsel for the Minister opposed the granting of any further adjournment. 19 The appellant was unable to offer any satisfactory explanation of: · Why it was that he had not availed himself of the opportunity of filing written submissions to support his appeal; · How it was that his notice of appeal contained a page and a half of submissions which were in the same terms as submissions contained in another notice of appeal which I had considered earlier in the week; and · Why the issue raised in the submissions had not been brought to the attention of the Federal Magistrate. 20 I observed the appellant closely for some fifteen minutes and he showed no physical signs of pain. He responded to questions through his interpreter. He was unable, even briefly, to summarise any arguments he might wish to advance at an adjourned hearing. 21 I refused the application for an adjournment. While I accept that the appellant may have been suffering from some physical discomfort, it did not inhibit his capacity to make submissions to the Court. The medical certificates were, at best, uninformative. The circumstances in which the most recent certificate was obtained make it highly unlikely that the second doctor was in a position to make any informed judgment about the appellant's capacity to represent himself at the hearing. There was not the slightest suggestion that the appellant might have a viable case which he would be able to argue at a later date. His application was, in my view, a blatant attempt to procure as long a delay as possible in finalising his challenges to the Tribunal's decision.

CONSIDERATION 22 When he was invited to make submissions in support of his appeal the appellant raised the question of whether the Tribunal had accepted that he had been active in the Awami League and said that he could return to Bangladesh provided that there were guarantees provided relating to his safety. He did not seek to develop any argument in relation to s 424A of the Act except insofar as the Tribunal's earlier scepticism about his associations with the Awami League might be understood to have required him to be given notice that the Tribunal had concern about the authenticity of a certificate provided by a party official. 23 I have carefully read the decision of the learned Federal Magistrate. In my view she was correct, for the reasons which she gave, to dismiss the application before her. No appellable errors were made. Insofar as the fresh ground raised in the notice of appeal is concerned, there is no foundation for any suggestion that the Tribunal contravened s 424A of the Act. Although it was sceptical of the authenticity of a document certifying that the appellant had been active in the Awami League it was, in the end, willing to accept, on the basis of other evidence, that he had been an active member of the youth wing of the Awami League.

DISPOSITION 24 The appeal must be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

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