SZRER v Minister for Immigration and Citizenship

Federal Court of Australia|2012-08-20|Before: Robertson J

Leave be refused to amend the notice of appeal to add as a ground that the appellant was not accorded procedural fairness in respect of a finding that he was not a member of the Jatiya Party or the Freedom party.
By consent, leave be granted to amend the notice of appeal to add the words "The Federal Magistrate erred by failing to find…" immediately after Ground One and Ground Two in the notice of appeal.
Leave be granted to amend the notice of appeal to add as a ground that the appellant was denied procedural fairness in circumstances where he was not given notice that a relevant adverse issue was his lack of prominence either in the Jatiya Party or in the Freedom Party or both, nor given an opportunity to comment on that issue.
The appeal be dismissed, with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 863 of 2012

HUGH WYNDHAM IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

JUDGE: ROBERTSON J DATE: 20 AUGUST 2012 PLACE: SYDNEY

Introduction 1 This is an appeal from an order made on 31 May 2012 in the Federal Magistrates Court of Australia at Sydney dismissing the application to that Court, with costs fixed in the amount of $6,240. 2 The notice of appeal, filed on 20 June 2012, as amended by consent, contains two grounds, as follows: Ground One: The Federal Magistrate erred by failing to find that the second respondent misunderstood the correct test to be applied under the Migration Act 1958. Particulars a) In finding that "Bangladeshi politics is very rough and tumble" and that "people are from time to time attacked and killed", the Reviewer had failed to apply the correct test under the Act in assessing whether the applicant would be subject to a well founded fear of persecution. Ground Two: The Federal Magistrate erred by failing to find that the second respondent failed to deal with the full integers of the applicant's claim. Particulars a) In making material findings only as to the prominence of the applicant in either the Jatiya Party or the Freedom Party, the second respondent failed to assess whether the applicant would be subject to a well founded fear of persecution on the basis of membership of the Freedom Party or his political opinions and prior membership of the Jaito Party. It appears that the Jatiya Party is also called the Jaito Party and vice versa. 3 I also note that, subject to the question of further amendments, the grounds in the notice of appeal to this Court are the same as the grounds of the amended application to the Federal Magistrates Court.

Proceedings before the independent merits reviewer 4 The Independent Merits Reviewer (the Reviewer), in his report made on 4 June 2011, found that the claimant did not meet the criterion for a protection visa set out in s 36(2) of the Migration Act 1958 (Cth). Accordingly, he recommended that the claimant not be recognised as a person to whom Australia has protection obligations under the Refugee Convention. 5 In the document headed "Statement of Reasons" the Reviewer first referred at [6]-[9] to the relevant law and he then set out the claimant's claims and evidence on arrival and in relation to his refugee status assessment from the refugee status assessment report, having satisfied himself that it accurately and fairly represented the evidence presented up to that point. 6 The Reviewer then referred to a summary of an earlier appointed Reviewer of her interview with the claimant. 7 The Reviewer then referred to his interview with the claimant on 18 March 2011, in the presence of the claimant's migration agent and with the assistance of an interpreter in the Bangla language. 8 Under the heading "Findings and Reasons" the Reviewer set out the following: 26. I accept that the claimant is a citizen of Bangladesh and that he has no other citizenship or country of habitual residence. 27. I do not believe his account of his time in Indonesia. Firstly, I do not accept that the Indonesian authorities would have preferred to house and feed him for 5 or 8 years rather than fly him back to Bangladesh. Secondly, I do not believe his claim that an outside agency (Australian or other) was meeting his expenses in gaol. However, none of this forms part of the reason for my recommendation, since it has no bearing on the essential question - whether or not he has a well-founded fear of persecution in Bangladesh. 28. The claimant's account of his last 10 or 11 years in Bangladesh, however, lacks any credibility. His answers at interview with me were far from convincing. His explanation of his claim that he was well known on the campus of his university in his first year is an example. He effectively abandoned that claim, which reduced to there being a few people from Comilla whom he had come to know while a school student amongst the leadership of the party in the university. His political activity, even as he described it, was very limited. I can find no convincing indication in his evidence before me or previously that he was at any time prominent either in the Jatiya Party or in the Freedom Party. 29. That is one reason why I do not accept that a false charge has been made against him. For the same reason, I do not accept that the claimant is on a "black list". 30. In addition, the fact that he did not leave the country for 4-5 years after the false charge was supposedly laid persuades me that there was no such charge and no such entry in a "black list". Indeed, during that time, he completed his studies and found employment. 31. In addition, further, the fact that he was able to study and work unhindered for some time without any apparent effort by the police to find him at his university or his work place leads me to the same conclusions. 32. Finally, if it is true that he has a Masters degree in economics, I find his claimed inability to find work between 1995 and 2001 inexplicable and unbelievable. I do not accept it. 33. As was acknowledged by me at interview, Bangladeshi politics is very "rough and tumble". People are from time to time attacked and killed. All parties are guilty. But, at the same time, people do express their opinions, including in public, orally and in print. People in very large numbers do join political parties for and against the Government of the day and speak and vote accordingly. They do not do so in expectation of being persecuted. I do not accept that, doing so, the claimant would be subject to the kind of systematic and discriminatory conduct required to satisfy the requirements of the Refugees Convention. 34. Accordingly, I find that the claimant does not have a well-founded fear of persecution in Bangladesh for reason of his political opinion or for any other Convention reason.

Proceedings before Federal Magistrates Court 9 The Federal Magistrate considered the submissions of the applicant in that court and stated his conclusions from paragraphs 26 to 32 inclusive. His Honour said that an important foundation of the then applicant's submissions was that the Reviewer had found that even if the applicant had not been prominent in one of the political parties he had nevertheless at least engaged in "very limited" political activity. His Honour said a fair reading of the relevant portion of the Reviewer's reasons did not bear out that interpretation. He said: 29. Consequently, the fact that the Reviewer had no regard to the applicant's claims to previous political involvement when considering the general risks of political involvement in Bangladesh simply reflected the fact that the Reviewer did not accept that the applicant had had such involvement in the past. The Reviewer's consideration of the risks posed by political involvement in Bangladesh, which led to his conclusion that, while presenting risks, such involvement did not justify a well-founded fear of persecution on political grounds, was addressed to the applicant's stated desire to be free to express his political opinion were he to return to Bangladesh. As the Reviewer concluded that the applicant had no reason to fear persecution by reason of his life in Bangladesh before his departure, it was appropriate that it (sic) consider his claim to fear harm by reference to the situation generally in Bangladesh and not by reference to claims which had not been accepted. 10 His Honour noted finally that although it was correct, as the then applicant submitted, that the Reviewer did not expressly refer to the "real chance" test in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, that fact did not demonstrate that the Reviewer erred. After referring to Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, his Honour said that the Reviewer accurately quoted Art 1A(2) of the Refugee Convention and stated that the question he had to address was to be understood by reference to s 36(2) of the Migration Act as well as by reference to the relevant provisions and decided court cases that bore upon those provisions. In those circumstances and having regard to the manner in which the Reviewer expressed his conclusions, the Federal Magistrate did not conclude that the Reviewer misunderstood how the Convention tests were to be applied.

Submissions 11 The appellant submitted that the Federal Magistrate had erred by misconstruing the reasons of the Reviewer as including a rejection of any claims by the appellant to have been a member of either or both the Jatiya Party or the Freedom Party. 12 The appellant also submitted that the Reviewer asked himself the wrong question in relation to whether the appellant's fear of persecution was well-founded. 13 Related to that submission was that in failing to make material findings as to whether the appellant's fear of persecution was well-founded on the basis of either his membership of the political parties and his political opinions as a member or perceived supporter, or both of those matters, the Reviewer had failed to consider the full integers of the appellant's claim. 14 The appellant also sought to amend his Notice of Appeal to add grounds which were not argued at first instance. 15 The first ground sought to be added was that if there were a finding by the Reviewer that the appellant was not a member of the Jatiya or Freedom parties he was not accorded procedural fairness because he was not put on notice that the fact of his membership of those parties was in issue. 16 Further, a second ground sought to be added was that the issue that the appellant was not at any time prominent either in the Jatiya Party or the Freedom Party was not raised by the Reviewer and the appellant was denied procedural fairness in that regard also. 17 The first respondent submitted that on a fair reading of the Reviewer's reasons, the Reviewer's comments at [33] could not be construed as finding or necessarily implying that the appellant had a well founded fear of persecution. Plainly the Reviewer had found to the contrary. The Reviewer correctly stated the test for refugee status, and there was no basis for inferring that he in fact misunderstood it. The Reviewer adopted the language of the Convention. 18 The first respondent also submitted that there was no failure on the part of the Reviewer to deal with a claim of the appellant. Having regard to the way the appellant presented his claims, the Reviewer's findings encompassed all the appellant's claims to fear harm in the future because of his political opinion, once his specific claims of being on a blacklist or charged with murder were rejected. The first respondent submitted the appellant did not claim to fear future harm based on his past political involvement absent his specific claims of being on a blacklist or charged with murder. His claims of future harm were based on his inability to express his political opinion. These claims were addressed by the Reviewer. 19 The first respondent opposed the application to further amend. Reference was made to SZNSC v Minister for Immigration and Citizenship [2009] FCA 1436; (2009) 112 ALD 490 where Flick J said: [33] There is a very considerable public interest in all litigation being resolved as quickly and as expeditiously as the administration of justice permits. There is a recognised public interest in applications for refugee status being resolved in a timely manner and in accordance with the procedure prescribed by the Migration Act: Iyer v Minister for Immigration and Multicultural Affairs (2001) 192 ALR 71; [2001] FCA 929 at [62] Gyles J; SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [30] per Lander J. [34] Leave to raise the grounds of appeal now set forth in the notice of appeal is refused. The new arguments seek to raise in large part arguments which were either abandoned before the federal magistrate or not pressed in that court. No explanation has been advanced for the change in the course that the appellant now wishes to plot. And the new arguments are not considered to have sufficient prospects of success to warrant the grant of leave. 20 The first respondent did accept, with reference to Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [78] that consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given and the consideration must proceed by reference to correct legal principles, correctly applied.

Consideration 21 As to Ground One, in my opinion there is no basis for the contention that the Reviewer misunderstood or misapplied the correct test. I have referred to or set out above the indications from [6]-[9], [27] and [33]-[34] of the major instances where the Reviewer asked himself the right question and, I infer, applied the correct test. The statement at [33] of the Reviewer's reasons did not amount to a finding that the appellant had a well-founded fear of persecution within the Convention. I would not isolate the word "expectation" in [33] as showing otherwise; nor do I find that [33] read as a whole shows that the Reviewer did not apply the correct test: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. I see no error in the Federal Magistrate's rejection of this Ground. 22 I do not understand the Reviewer's reasons as involving a finding that the appellant had not been or was not a member of the Jatiya or Freedom parties. I therefore refuse the application to amend to add the ground that the Reviewer denied procedural fairness in so finding. In so doing I should make it clear that I am not proceeding on the basis that if the Reviewer had made such a finding that that would have established a denial of procedural fairness. 23 The Reviewer found that the present appellant's account of his last 10 or 11 years lacked any credibility. In so finding the Reviewer rejected the claims made in reliance on that account, including the claims made on 11 December 2009 on which the appellant relied in this Court. The Reviewer did so at [28]-[32]. 24 The Reviewer also rejected the claim that if the appellant went back to Bangladesh he would not be able to express his political opinions or would be subject to the kind of systematic and discriminatory conduct required to satisfy the requirements of the Convention. The Reviewer did accept that Bangladeshi politics from time to time involved physical violence. The Reviewer did so at [33]. 25 I allow the application to amend to add a denial of procedural fairness ground relating to the issue that the appellant was not at any time prominent either in the Jatiya Party or the Freedom Party; that that issue was not raised by the Reviewer; and that the appellant was denied procedural fairness in that regard. But I reject the ground. This proposition was part of the claimant's case; there could not have been any doubt that the credibility of his claims was an issue. Thus the conclusion to which the Reviewer came naturally arose from and was open on the appellant's material: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9], citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2 amongst other cases. I do not accept the submission on behalf of the appellant that the question of the appellant's prominence either in the Jatiya Party or the Freedom Party had to be put to the appellant at a level of specificity. 26 As to Ground Two, the proposition that the Reviewer had failed to address a claim of persecution more generally, in my view the Reviewer did not so proceed: as I have indicated above the Reviewer did in fact address that claim but rejected the proposition that it amounted to either preventing the claimant from being able to express himself or subjecting him to the kind of systematic and discriminatory conduct required to satisfy the requirements of the Refugee Convention. I reject the submission that "a plain reading of the findings as made by the Reviewer is that they do not deal with the issue of the appellant's membership of the said parties": see paragraph 28 of the appellant's written submissions. In my opinion, the Reviewer considered the claims as made to him. 27 If, as in my view was the case, the Federal Magistrate construed the reasons of the Reviewer as including a rejection of claims by the claimant that he had been a member of either of the two Parties then, with respect, I disagree. However I do agree that there was no relevant error in the Reviewer's approach. The parties accepted that this Court was in a position to, and should, examine the Reviewer's reasons for relevant error. Having done so, my conclusion is that the Reviewer did not fail to deal with the appellant's claims. Thus error in the approach of the Federal Magistrate as overstating the effect of the general finding as to credit on the part of the Reviewer falls away. So also does any alleged redundancy of [33] of the Reviewer's reasons on the basis of the Federal Magistrate's construction of [28] of the Reviewer's reasons: see paragraph 23 of the appellant's written submissions. In my opinion, the Reviewer was at [33] dealing with the balance of the claims put forward, that is, the appellant's claim that he would not be able to express his political opinions if he returned to Bangladesh.

Conclusion 28 For these reasons, I grant leave to amend the notice of appeal to add a ground that the issue that the appellant was not at any time prominent either in the Jatiya Party or the Freedom Party was not raised by the Reviewer and the appellant was thereby denied procedural fairness. However, I dismiss the appeal, with costs. I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Migration Act 1958(Cth)s 36(2)

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