S1747/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1360

FEDERAL COURT OF AUSTRALIA

S1747/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1360

APPLICANT S1747/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD1125 OF 2005

26 SEPTEMBER 2005
SACKVILLE J
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1125 OF 2005

BETWEEN:

APPLICANT S1747/2003
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

26 SEPTEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1125 OF 2005

BETWEEN:

APPLICANT S1747/2003
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	SACKVILLE J
DATE:	26 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘RRT’) made as long ago as 11 January 1994.  The RRT affirmed a decision of a delegate of the respondent (‘the Minister’) refusing to grant the appellant a protection visa. 

2. The appellant is a citizen of Bangladesh, who apparently arrived in Australia without a visa in 1988.  He did not lodge an application for a protection visa until 1 December 1992.

3. The appellant claimed to have been a member of the student branch of the Awami League while he attended university from 1972 to 1975.  He said that he had later become a member of the executive committee of a local branch of the Awami League and that ultimately he was appointed to the position of organising secretary.  He said that in consequence of his involvement with the Awami League he had been arrested in mid-1987 and had been subjected to torture.

4. The appellant also claimed that in January 1988 he had assisted in organising a demonstration of Awami League members protesting against the rule of General Ershad, the then President of Bangladesh.  That demonstration, so he claimed, had turned violent and a number of demonstrators had been injured or arrested.  The appellant had gone into hiding and, while he was still in hiding, a local political opponent had visited the appellant’s home and demanded money to compensate for damage done during the demonstration.

5. The appellant further claimed that the police had sought to arrest him on various charges.  He had decided to leave for Australia after his home had been burnt by members of the Jatiya Party.

6. The delegate rejected the appellant’s application and gave detailed reasons for doing so.  In the course of those reasons, the delegate recorded that the appellant had been asked to comment on the fact that the Ershad regime had collapsed in 1990.  He had also been asked to comment on the fact that there had subsequently been an election, following which the BNP had formed a government.  The Awami League had become the major opposition party in Bangladesh.

7. The appellant sought review of the delegate’s decision in the RRT.  A solicitor made written submissions on his behalf.  Those submissions sought to persuade the RRT that it was unfair to place too much weight upon what the solicitor described as ‘objective reports’ relating to the position in Bangladesh.

8. The appellant appeared at the RRT hearing and was assisted by a Bangladeshi interpreter.  In the course of the hearing, the RRT member drew the appellant’s attention to a number of discrepancies in his claims.  He was also invited to provide additional information in support of his claims to be a political activist who was at risk of serious harm in Bangladesh.

9. In its reasons, the RRT noted that there were a number of significant inconsistencies in the appellant’s evidence.  It rejected his explanation that the inconsistencies resulted from poor language skills and misunderstandings at the time he lodged the primary application.  The RRT pointed out that the statement accompanying the appellant’s primary application was nine pages long and contained detailed information about his activities in Bangladesh.  That statement had been prepared with the assistance of a solicitor and, in the RRT’s view, did not reflect failures in communication of the kind put forward by the appellant.

10. The RRT’s concern about the appellant’s ‘overall credibility’ led it to conclude that he had not played a significant role in politics prior to his departure from Bangladesh.  Even if the RRT were to accept that the appellant had been a member of the Awami League and had experienced some problems as the result of his political activities, it found that there had been a substantial change in circumstances since his departure from Bangladesh.  General Ershad had resigned from the Presidency in 1990 and, in February 1991, free and fair elections had been held at which the BNP gained power.  The Awami League had then become the major opposition party.

11. The  RRT recorded that information from the Department of Foreign Affairs and Trade had stated that in March 1992 a Parliamentary committee had agreed to withdraw all charges brought against political activists under the Ershad regime.

12. In these circumstances, the RRT found that there was only a remote chance that the appellant would be arrested on his return or experience violence amounting to persecution at the hands of his political enemies.  The RRT stated that in reaching this conclusion it noted certain letters supplied by the appellant in support of his case.  However, the letters were speculative and not corroborated by other evidence before the RRT.  For that reason, the RRT gave them little weight.

13. The appellant was represented before the Federal Magistrates Court.  His counsel submitted that he had been denied natural justice because the RRT had not specified to him country information showing that there had been a substantial change in political circumstances after the appellant had left Bangladesh.  Counsel also submitted that the RRT had erred in failing to give any weight to certain letters produced on the appellant’s behalf.

14. The Magistrate held that the RRT was not obliged to bring to the notice of the appellant material that had been expressly taken into account by the delegate.  The substance of the matters relied upon by the RRT had been recorded in the decision of the delegate which had drawn the attention of the appellant, or his advisers, to the issues that needed consideration.

15. The Magistrate also held that the RRT had paid regard to the three letters relied on by the appellant.  It was open to the RRT to give them little weight, bearing in mind that they simply made general assertions about the dangers allegedly faced by the appellant in Bangladesh.

16. The Magistrate considered that there were no other grounds for concluding that the RRT had erred in law.  Accordingly, his Honour dismissed the application.  He did not find it necessary to deal with the significance of the appellant’s delay in bringing proceedings challenging the RRT’s decision.

17. The appellant has filed an amended notice of appeal which is in part in common form and does not specifically relate to the circumstances of this case.  In addition, the notice of appeal raises what seem to be complaints about the RRT’s factual findings and contains a reference to the recent High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162.

18. The appellant’s written submissions assert, without any particulars, that the RRT failed to accord him procedural fairness.  The submissions also assert that the RRT did not reach the correct factual conclusions.  The appellant’s oral submissions did not address any question of law.

19. In my opinion, there is nothing in the notice of appeal or in the appellant’s written submissions to indicate that the Magistrate made any error of law or, for that matter, that the RRT erred in law.  The Magistrate correctly rejected the arguments made on the appellant’s behalf.

20. I should add in relation to the procedural fairness point that the appellant’s legal adviser at the time the application to the RRT was lodged was plainly alert to the need to address the country information relied upon by the delegate and, indeed, made a brief written submission contending that the RRT should not give particular weight to that material.  The RRT did not rely upon any country information that post-dated the decision of the delegate.

21. The reference to SAAP in the amended notice of appeal is misconceived. That decision concerns s 424A of the Migration Act1958 (Cth), which was not in force at the time the RRT handed down its decision.

22. The appeal must be 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 Sackville.

Associate:

Dated:             26 September 2005

The appellant appeared in person.

Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	23 September 2005
Date of judgment:	26 September 2005