BRGAN of 2008 v Minister for Immigration and Citizenship

[2010] FCA 172

FEDERAL COURT OF AUSTRALIA

BRGAN of 2008 v Minister for Immigration & Citizenship [2010] FCA 172

Citation:

BRGAN of 2008 v Minister for Immigration & Citizenship [2010] FCA 172

Appeal from:

BRGAN of 2008 v Minister for Immigration & Anor [2009] FMCA 1200

Parties:

BRGAN OF 2008 v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

File number:

NSD 1478 of 2009

Judge:

EDMONDS J

Date of judgment:

4 March 2010

Catchwords:

MIGRATION – Protection visa – decision of the Refugee Review Tribunal – whether the Tribunal failed to consider or misconstrued aspects of the appellant’s claim or the material before it.

Held: The Tribunal did not fail to consider or misconstrued aspects of the appellant’s claim or the material before it.

Legislation:

Migration Act 1958 (Cth) s 91R(3)

Cases cited:

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 applied
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 followed

Date of hearing:

2 March 2010

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

12

Counsel for the Appellant:

Mr B Adam

Solicitor for the Appellant:

Parish Patience Immigration Lawyers

Counsel for the First Respondent:

Ms R Francois

Solicitor for the First Respondent:

Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1478 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

BRGAN OF 2008
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	4 MARCH 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1478 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

BRGAN OF 2008
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE:	4 MARCH 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from the Federal Magistrates Court (Cameron FM): BRGAN of 2008 v Minister for Immigration & Anor [2009] FMCA 1200, dismissing an application for review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) not to grant the appellant a Protection (Class XA) visa.

2. The Tribunal decision, the subject of proceedings before the Federal Magistrates Court, and from which this appeal is brought, is the second such decision.  There was an earlier Tribunal decision which was quashed by order of the Federal Magistrates Court.

   THE GROUNDS OF APPEAL IN THIS COURT

3. The appellant only pressed two of the four grounds raised in his notice of appeal: grounds 2 and 3.

4. They read as follows:

   ‘2.The learned Federal Magistrate erred by failing to find that the Tribunal had committed jurisdictional error by failing to deal with all or any of the following claims made by the Appellant or squarely raised on the material before it:

   (a)that the Appellant would be imputed to be or otherwise perceived as a Christian because of any or all of the following:

   (i)        he had ceased to attend his mosque;

   (ii)he had visited his Christian neighbours;

   (iii)he had displayed an interest in Christianity;

   (b)that the Appellant had a well founded fear of persecution by virtue of any or all of the following (irrespective of whether he was perceived as a Christian):

   (i)he had ceased to attend his mosque;

   (ii)he had visited his Christian neighbours;

   (iii)he had displayed an interest in Christianity.

   3.The learned Federal Magistrate erred by failing to find that the Tribunal had committed jurisdictional error by misconstruing the Appellant’s claims by virtue of the following:

   (a)the Appellant claimed that he had not been baptised in Australia because he had already been baptised in Bangladesh and therefore did not see it as necessary.  The failure to obtain baptism in Australia was therefore claimed to strengthen his claims (Tribunal Decision at [146]-[147]);

   (b)the Tribunal however, understood the Appellant’s claims to be of the opposite effect, stating that the failure to be baptised was not something on which the Appellant had sought to rely in support of his claim that he had a well-founded fear of persecution (Tribunal Decision at [205]);

   (c)       the Tribunal therefore misconstrued the Appellant’s claims.’

5. These two grounds correspond with grounds 2 and 3 of the application for review in the Federal Magistrate’s Court.

6. The manner in which grounds 2 and 3 of this appeal were argued in the Federal Magistrates Court was that the Tribunal had erred in the exercise of its jurisdiction by failing to address and understand claims made by the appellant.  The principles relevant to consideration of this type of jurisdictional error were explained by the Full Federal Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [55] – [63]. In order to properly exercise its jurisdiction to review a decision of the delegate, the Tribunal must address the claims made by an applicant, including claims not expressly articulated but which are apparent on the face of the material before the Tribunal.

   FINDINGS BY THE TRIBUNAL

7. The claims articulated by the appellant to the Tribunal was the he was a Muslim who had converted to Christianity in Bangladesh and that his conversion had caused him to be persecuted in Bangladesh and Brunei. The Tribunal did not accept any of the appellant’s claims as credible and rejected that he had converted to, or had an interest in, Christianity and that he had suffered any harm: [190]; [193]; [194].

8. Accordingly, there was no ‘claim’ which arose on the face of the material before the Tribunal that the appellant would be imputed to be a Christian. Nor did the Tribunal misunderstand that the appellant said he had not been baptised in Australia because he claimed he had been baptised in Bangladesh. The Tribunal rejected that the appellant’s claim that he had been baptised in Bangladesh and it was not satisfied that his religious conduct in Australia was done for any purpose other than for the purpose of strengthening his claims to be a refugee and so it disregarded that conduct pursuant to s 91R(3) of the Migration Act 1958 (Cth) (‘the Act’): [207].

   IN THE FEDERAL MAGISTRATES COURT

9. His Honour rejected what is ground 2 of the appeal because the Tribunal’s findings meant that the facts which were said to give rise to these claims had all been expressly or implicitly rejected by the Tribunal. Specifically, his Honour observed that the Tribunal’s comments at [193] of its decision demonstrated that the Tribunal expressly rejected the appellant’s visiting and engagement in activities with people such as his Christian neighbours as a basis for fearing persecution: [32]; in his Honour’s view, those comments also disposed of the allegation that the Tribunal failed to deal with the appellant’s claims to have displayed an interest in Christianity: [33]; and as the appellant’s claim that he ceased attending his mosque was advanced solely in the context of his claimed conversion to Christianity, that was, in his Honour’s view, necessarily rejected by the Tribunal’s rejection of the appellant’s claims concerning his practice of Christianity in both Bangladesh and Brunei: [35] – [37].

10. His Honour disposed of what is ground 3 of the appeal on the basis that:

    (a)The appellant did not make any claim that he would suffer harm in Bangladesh because he had not been baptised in Australia; consequently, the Tribunal did not misconstrue the appellant’s claims by failing to recognise one: [44]; and

    (b)the manner in which the Tribunal expressed itself in [205] of its reasons was in the context and for the purpose of its findings relevant to the application of s 91R(3) of the Act; the Tribunal should not be understood to have misunderstood what evidence the appellant was relying on: [45] – [47].

11. I am of the view that his Honour’s decision is undoubtedly correct for the reasons his Honour gave.  No doubt an inference may be drawn, in a particular case, that the Tribunal has failed to consider an issue from its failure to expressly deal with that issue in its reasons.  But as the Full Court said in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [47]:

    ‘[T]hat is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.’

    CONCLUSION

12. The appellant has not demonstrated that his Honour erred.  I am unable to identify any appellable error.  The appeal must be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:        4 March 2010