SZNSJ v Minister for Immigration and Citizenship

Federal Court of Australia|2010-02-16|Before: Logan J

REASONS FOR JUDGMENT 1 The Appellant is a citizen of the Peoples' Republic of Bangladesh. He arrived in Australia on 22 July 2008. Two days later, on 24 July 2008, he lodged with the Department of the Immigration and Citizenship an application under the Migration Act 1958 (Cth) for that class of visa known as a protection visa. On 20 October 2008, a delegate for the Minister for Immigration and Citizenship (the Minister) refused that application. The following month, on 19 October 2008, the Appellant sought the review of the refusal decision by the Refugee Review Tribunal (the Tribunal). 2 The Tribunal decided on 25 May 2009 to affirm the decision of the Minister's delegate not to grant the Appellant a protection visa. That decision together with the Tribunal's written reasons were then communicated to the Appellant by the Tribunal under cover of a letter also dated 25 May 2009. From that decision, the Appellant applied to the Federal Magistrates Court for an order of review. On 17 November 2009, for reasons published that day, the Federal Magistrates Court dismissed the Appellant's judicial review application. It is from that dismissal that the Appellant now appeals to this Court. 3 The grounds of appeal replicate the grounds of review which appear in the amended application before the Federal Magistrates Court. They are as follows: 1. The Refugee Review Tribunal failed to maintain procedural fairness to exercise its jurisdiction under the Act: Particulars: A. The Tribunal did not consider and put weight on my documents that I provided. (i) I provided documents relating to false cases against me. The Tribunal did not put weight on them and rather indicated that forged and fraudulently obtained documents are readily available in Bangladesh. 2. The Refugee Review Tribunal misunderstood and over exercised it's jurisdiction in considering my information. Particulars: A. The Tribunal failed to understand my information provided during the medical examination. I was taken to Hospital after an attack on me by my enemies in the year 2004 which has been published on press report. But while I underwent health examination for protection visa I ticked "no" in the medical form that I had neve been treated in hospital because I realised that the question was asked in the form if I was treated in the hospital due to any diseases. The tribunal did not act under the jurisdiction considering this information and did not believe the incident of attacking on me. 3. The Refugee Review Tribunal made jurisdictional error in assessing my credibility. Particulars: A. The Tribunal mentioned that I couldn't explain properly the role of an account manger that I played in my father's business. Failure to recollect this by me, the Tribunal questioned on my over all credibility of my all claims and evidence in deciding my case which led to jurisdictional error made by the Tribunal. [sic] 4 An immediate difficulty with grounds of appeal cast in this replicating fashion is that they do not engage with the reasons for judgment of the Federal Magistrates Court, as opposed to focusing upon the reasons of the Tribunal. It is important to remember that a proceeding of the present kind is an appeal from the Federal Magistrates Court. It is appellant jurisdiction, not original judicial review jurisdiction, which is consigned to this Court. The role of undertaking the judicial review of a decision of the Refugee Review Tribunal is consigned to the Federal Magistrates Court. For an appeal to this Court to succeed, it must be demonstrated that there is some error on the part of the Federal Magistrates Court in dealing with the judicial review application. 5 The approach of the Minister on the appeal was to treat the grounds as if each of them was a ground which sought in essence to raise as an appeal issue whether the learned federal magistrate had erred in failing to grant an order of review on one or more of the grounds pleaded in the amended application. That, to me, was a very fair way of approaching a notice of appeal which otherwise evinced the fundamental error of not engaging with the decisions and reasons of the federal magistrate. I intend to follow that approach also. It will be necessary, in addition, to make some passing reference to another issue which emerged in the course of the Appellant's written and oral submissions. 6 I should observe at once that unlike many Appellants, the Appellant has a command, albeit not perfect, of English. Further, and again unlike many Appellants, the Appellant lodged a comprehensive written submission, the contents of which, together with that lodged by the Minister, I have taken into account. 7 The reasons for judgment of the learned federal magistrate are very comprehensive indeed. Her Honour dealt seriatim with each of the grounds in the amended application before the Federal Magistrates Court. It is tempting, given the comprehensive quality of Her Honour's reasons and my agreement with the way in which she has approached each of the grounds, to content myself with an observation that I agree with the reasons for judgment of the learned federal magistrate and have nothing to add. That, though, would not fully do justice to the very particular concerns that are held by the Appellant and which were so evident in his written submission and in the oral submission which he made to me today.

Ground 1 8 At para 47 of her reasons for judgment the learned federal magistrate observed, in respect of ground one of the amended application, that: Ultimately, the Tribunal did not accept that: (i) the Applicant was telling the truth about his involvement in politics in Bangladesh; (ii) the Applicant was ever involved in the Awami League or the Jubo League in Bangladesh; (iii) the Applicant was threatened or attacked by political opponents, business rivals and law enforcement agencies; (iv) the Applicant's father's business was discriminated against and contracts lost as a result; and (v) a false case had been brought against the Applicant. 9 One finds in this paragraph a list of particular issues which underpinned the claim made for a protection visa by the Appellant. As it happened, for reasons which might also be described as comprehensive, the Tribunal did not accept the Appellant's claim. 10 That claim was one which, on its face, had the support of particular documents tendered to the Tribunal by the Appellant. In SZLGP v the Minister for Immigration and Citizenship [2009] FCA 1470 (SZLGP), I had occasion last year to allow an appeal from the Federal Magistrates Court in respect of judicial review proceedings relating to a tribunal decision where a particular corroborating document had been dismissed by the Tribunal as a forgery. 11 Here, the Tribunal discounted the corroborating documents on just such a basis. In so doing, the Tribunal relied upon, as it was entitled, general country information concerning the prevalence of forged documents emanating from Bangladesh, together with its own assessment, as set out at length in its reasons, of the reliability of the account given by the Appellant. In SZLGP, the Tribunal's reasoning was tainted by a patent misapprehension as to what was revealed on the face of one of the corroborating documents as to how the Appellant in that case might have come into possession of that document. Here, though, there is nothing which calls into question, in that or any other manner, the basis upon which the Tribunal came to reject the Appellant's claim for a visa as related before it and to find that the documents tendered were not to be relied upon. 12 In turn, this particular aspect of the Tribunal's reasoning was fully appreciated by the federal magistrate. Her Honour appropriately, having regard to the authorities to which she referred in para 46 of her reasons for judgment, adopted an approach of reticence in relation to impeaching a finding of that based on material which reasonably admitted of that finding. Her Honour, as I have had occasion in the past, drew attention to an observation made by McHugh J in Re Minister for Immigration and Multicultural Affairs ex-parte Durairajasingham (2000) 74 ALJR 405 at [67], that findings of credibility, are par excellence for the Tribunal. I do not see any error in the way in which Her Honour dealt with ground one.

Ground 2 13 As to ground two, this ground focuses upon an alleged misunderstanding on the part of the Tribunal in relation to a response given in respect of the undergoing of hospital treatment. The Appellant had answered "no" to a question on a Medical Examination for an Australian Visa Form which asked: "Have you ever had hospital treatment or been admitted to a hospital for any reason". That negative response was at odds with an account which highlighted hospitalisation in respect of injuries following an attack in November 2004. The Tribunal self-evidently had before it the Department of Immigration file in which the medical examination report reposed. 14 That report did not find its way into the application book as, at least in hindsight, it might well have given its relationship with ground two in her reasons for judgment in the amended application. Hence, the reference by Her Honour to ground two does not include a reference to the form itself as opposed to reproducing the Tribunal's recitation of the denial in its reasons. The absence of the form from the application also explains Her Honour's reference, at page 11, para 53, of her reasons to there being no evidence before the court to suggest that the form was confined only to diseases as the applicant had apparently contended. 15 It was obvious on the hearing of the appeal that the Appellant wished the form itself to have been part of the application book and also, for that matter, the appeal book. Whilst the appeal is one strictu sensu, as opposed to an appeal of any other character, a document being one which could, and as I have observed perhaps should in hindsight, at least, have been reproduced in the application book, it seemed to me in the interests of justice that it be before the court. 16 I therefore, without objection and properly, in the circumstances, without objection from the Minister, received the document and marked it as a confidential exhibit by way of supplementing the appeal book. Suffice to say, with regard to the question concerned which is No 17(b) to the Medical Form, serves to confirm the way in which the Tribunal recited it and, for that matter, the way in which Her Honour dealt with the ground 2. 17 The Tribunal was entitled to make use of the negative response in its assessment of credibility. It did so. As her Honour observed at para 57: In the circumstances, the Tribunal did not misunderstand the Applicant's information about whether or not he had ever received hospitalisation. The Tribunal did not accept the Applicant's explanation for the inconsistency in his evidence. 18 This, as her Honour rightly observed, was a conclusion reasonably open to the Tribunal.

Ground 3 19 Her Honour observed at para 60 of her reasons for judgment that this ground appears to assert that the Tribunal erred in rejecting the Appellant's claims only because he could not properly explain his alleged role as an accounts manager in his father's business. This explanation, it might be noted, was given in the course of an interview conducted at the Australian High Commission in 2005 in conjunction with an application made by the Appellant for a transit visa to Australia in conjunction with an intended journey to the kingdom of Tonga. 20 It is true that the Tribunal looked to its perception of the adequacy of the explanation given by the Appellant in 2005 about his role as an accounts manager. That formed but part of an overall assessment by the Tribunal of the credibility of the Appellant. That overall assessment was one which the Tribunal was entitled to make insofar as it led to a conclusion that it ought not to accept the claim that he made for a protection visa.

Obligation to investigate 21 In the course of his written submission and also his oral submission, the Appellant also criticised the Tribunal's failure further to investigate events in Tonga. These events were said also to underpin why it was that the Appellant was entitled to a protection visa and could not return to Bangladesh. Her Honour drew attention to the then recently decided decision of the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123. That case highlights that whilst the Tribunal is entitled to undertake inquiries of its own, its function is, first and foremost, that of the review of a decision made by a ministerial delegate or the Minister in respect of a protection visa. It is not obliged to conduct inquiries; rather, it is for a person seeking to review a decision to put before the Tribunal his or her best case in terms of the factual merits of his or her claim for a protection visa. There is no basis, as the learned federal magistrate rightly apprehended, for criticising the Tribunal's failure to make further inquiries in relation to events in Tonga. 22 A study of the Tribunal's reasons discloses that it fully engaged with the account given by the Appellant of his life there. Further, the Kingdom of Tonga was not a country in respect of which the Appellant had nationality or habitual residence. It therefore did not warrant any further attention than that which the Tribunal gave it in the context of its assessment of whether it was satisfied that the Appellant was a person to whom Australia owed protection obligations under the Convention. The Tribunal rightly focused in that regard on Bangladesh and events there and the merits of the Appellant's claim in respect of his life there, and what might happen to him were he to return there. In these circumstances, there is no occasion to consider whether, exceptionally, there ought to be any amendment of the notice of appeal. Rather, there being no merit in any of the grounds set out in the notice of appeal, the appeal should be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

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