SZNMM v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 The appellants, who are husband and wife, appeal from a judgment of the Federal Magistrates Court of Australia, (see, SZNMM v Minister for Immigration & Citizenship & Anor[2010] FMCA 324). The Federal Magistrates Court dismissed their application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the respondent Minister to refuse to grant protection visas to the appellants. 2 The appellants are citizens of Bangladesh. They claimed to fear persecution on the basis of their political opinion if returned to Bangladesh in the reasonably foreseeable future. The appellants attended an oral hearing before the Tribunal. 3 The appellants entered Australia in August 2008, by aeroplane. They applied for protection visas in September 2008. 4 The Tribunal accepted that the first appellant held a political opinion in favour of the Bangladesh Nationalist Party ("BNP"). It also accepted that he was involved in student politics for the BNP and held executive positions in two BNP branches. However, the Tribunal was not satisfied that he was involved in any significant activity in Bangladesh after 1992, when he left Bangladesh to reside in Saudi Arabia. The Tribunal did not consider that the first appellant's fleeting contact on five or six visits to Bangladesh from 1992 to 2008 provided a sufficient basis for him to have a political profile in Bangladesh at a national or local level. 5 The Tribunal was not satisfied that the first appellant took part in any significant political activity in Saudi Arabia, or anywhere outside Bangladesh from 1992. Further, the Tribunal was not satisfied that the first appellant played a role in Bangladeshi politics by directing other persons whilst living in Saudi Arabia. 6 The Tribunal accepted that the first appellant had involved himself in BNP activities in Australia other than for the purpose of strengthening his claim to be a refugee in Australia. It did not consider that his level of involvement in these activities was such as to give him a significant political profile in Bangladesh as a BNP supporter by reason of the Bangladeshi media covering some of those activities. 7 The first appellant claims to have been detained and mistreated by the authorities in 1987, as a result of his BNP activities, these claims were accepted by the Tribunal. However, the Tribunal was not satisfied about the veracity of his other claims to have been harmed. This applied, specifically, to his claim to have been arrested and detained in 1985. 8 In support of a claim to have been attacked in 1996 by supporters of the Awami League on a visit to Bangladesh during the 1996 elections, the first appellant submitted a medical certificate to the Tribunal. The Tribunal noted that the document bore "some unusual features, having apparently been colour-photocopied from a greatly crumpled and torn original which is, however, dated 5 December 2009." The Tribunal did not place any weight on that document or others submitted by the first appellant because of country information referring to the "ready availability of forged or fraudulent documents in Bangladesh". 9 The Tribunal rejected the first appellant's claim that false cases had been brought against him in Bangladesh by members of the Awami League. The Tribunal had concerns about the authenticity of letters relied upon by the first appellant to support his claims concerning false cases. 10 The Tribunal considered the political situation in Bangladesh but was not satisfied that there had been an upsurge of violence directed at BNP members by Awami League supporters. The Tribunal found that the first appellant did not have a political profile which would make him a target for Awami League supporters if he were to return to Bangladesh. The Tribunal did not consider that the first appellant would take up a political role if returned to Bangladesh. 11 The Tribunal also rejected the first appellant's claim that he was at risk from relatives in Bangladesh over a land issue. 12 For the foregoing reasons the Tribunal did not consider that there was a real chance that the first appellant would suffer serious harm if returned to Bangladesh, because of his political opinion or any other reason contained in the Refugees Convention. 13 At the Tribunal hearing the second appellant disavowed any claim to fear persecution on her own account but said she was worried about the harm which would befall the first appellant if they were returned back to Bangladesh. At the outset of the hearing of the appeal the first appellant sought an adjournment based on the illness of the second appellant. As the second appellant did not have any independent claims of her own the Court considered that the presence of the first appellant alone was sufficient for the appeal to be dealt with. No ground of appeal before the Court raises any matter that deals with any claims in respect of the second appellant. 14 The Tribunal was not satisfied that the second appellant had a well founded fear of persecution in her own right. This is unsurprising as she did not advance any. 15 The appellants failed before the Federal Magistrates Court to have the Tribunal decision set aside. I will only deal with those aspects of the judgment of the Federal Magistrate which relate to any current ground of appeal. 16 Ground 1 of the appeal contends that the Tribunal disregarded documents submitted by the appellants and failed to put weight on them, relying instead on country information. 17 At [8] of his reasons for judgment the Federal Magistrate observed that the Tribunal made critical comments about documents provided by the first appellant and gave little weight to them in light of country information about fraudulent documents in Bangladesh and because of the nature of those documents themselves. That analysis is correct. The Tribunal did not disregard documents submitted by the appellants. It considered them, but placed no weight on them because of matters contained in them and because of country information. It was entitled to do so, (see, NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419; [2006] FCAFC 195 at 81). No jurisdictional error resulted in the Tribunal taking that approach to its task as part of its fact finding function. Ground 1 is therefore rejected. 18 Ground 2 of the appeal asserts that the Tribunal did not afford an opportunity to comment on country information pursuant to s 424A of the Migration Act 1958 (Cth) ("the Act"). As the Federal Magistrate explained, s 424A was not engaged because of s 424 A (3) of the Act. The country information was not specifically about the appellants. Ground 2 is rejected. 19 Ground 3 of the appeal asserts that the Court below should have found jurisdictional error in a mistake of fact. The ground alleges that the first appellant was arrested in 1987, not 1985 as the Tribunal found. This ground is devoid of merit. As his Honour explained, the Tribunal accepted that the first appellant was arrested in 1987. It understood that a claim was made about 1985. His Honour rejected that claim. The rejection of that claim does not mean that the 1987 matter was ignored. As noted by his Honour in the Court below at [16]: At [53] the Tribunal says: "Asked what other harm he had suffered in Bangladesh, apart from his arrest and mistreatment in 1987 and the attack in 1996, the first named applicant said that he was arrested by Bangladesh Rifles during a procession and held for three days. Asked when it was that this happened. He said he thought it was in 1985. He agreed that he had never mentioned this incident previously. Asked if anything else had happened to him he said that these three were the main incidents". 20 The above is also supported by the decision of NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) 2004 144 FCR; [2004] FCAFC 263, where it was noted at [53] : It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323… I have no basis before me to form any different view. Ground 3 is also rejected. 21 Ground 4 asserts that the Federal Magistrate denied the appellants natural justice by not allowing them to complain about the provision by the respondent Minister's solicitors of a submission relating to a different case. The Minister's solicitors originally sent the wrong submissions to the appellants. They sent the correct submissions prior to the hearing. There is no evidence that the appellants requested an adjournment of the proceeding below based on some disadvantage associated with the late provision of the Minister's submissions. In the absence of such evidence there is no basis for Ground 4. 22 The appeal is dismissed, with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.