SZAGN v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 342

FEDERAL COURT OF AUSTRALIA

SZAGN v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 342

SZAGN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N2263 of 2003

MADGWICK J
26 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N2263 of 2003

BETWEEN:	SZAGN APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	26 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the respondent's costs assessed in the sum of $3,000.

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	N2263 of 2003

BETWEEN:	SZAGN APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	26 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. This is an appeal from a judgment of the Federal Magistrates Court given by Raphael FM on 20 November 2003.  The learned Federal Magistrate was dealing with an application for judicial review of a decision adverse to the appellant given by the Refuge Review Tribunal (‘the Tribunal’) which in turn had affirmed a decision by a delegate of the respondent Minister to refuse the appellant a protection visa.

2. The Notice of Appeal with which his Honour was dealing suggests a denial of procedural fairness and, as a separate ground, actual bias.  It appears from his Honour's judgment that, at the hearing, the appellant submitted to his Honour that the Tribunal had evidently made its decision prior to the actual hearing which the appellant was afforded before the Tribunal Member.  Further, the appellant complained that, although the Tribunal Member had told him that his adviser had suspiciously submitted a number of other claims that followed the same pattern as his claim, the Tribunal did not show him any of those claims and he could not deal with them to any degree.  He next complained that, although he had given the Tribunal a very large number of documents which he had obtained from the internet about the political situation in Bangladesh, the Tribunal "would not" read them before, as I understand it, the Tribunal pronounced its oral decision and later gave its written decision.  He further complained that the Tribunal Member told him that the Tribunal knew everything about Bangladesh and that he felt under great pressure from this and could not adequately put his case. 

3. Raphael FM said:

   ‘When this case came before me originally the applicant stated that the Tribunal had given him its decision immediately because of the remarks which the Tribunal had made concerning another application, which was similar in form to that of the applicant.  I determined that it was appropriate that the applicant should have the opportunity to receive pro bono legal assistance before the case was determined.  I made a statement concerning this which was transcribed.’

4. The learned Federal Magistrate thus took steps to arrange pro bono legal assistance for the appellant.  In due course, the appellant unwisely filed an opinion of Mr R B Wilson of counsel and overlooked his Honour's explanation of his right to claim legal professional privilege in regard to the document, notwithstanding that it had been filed.  It appears that the advice was not helpful to the appellant.  The Federal Magistrate said:

   ‘This applicant has therefore had two sets of legal advice.  And in those circumstances, although he is appearing in person, I felt that it was appropriate that he should receive no further assistance from the bench and that the case should proceed and be heard on the basis of what he told me today, from what was contained in his application and other documents.’

5. The learned Federal Magistrate referred to a question of the availability of relocation within Bangladesh, a very populous country, and said:

   ‘On the basis that relocation was possible, any errors arising from the materials and findings discussed above were not material for one of the Tribunal's ultimate reasons for decision.’

   In other words, any errors made by the Tribunal in relation to the way it approached the question of the appellant's credibility did not effect the finding that the appellant could quite reasonably relocate within Bangladesh.  The Raphael FM went on to hold that the Tribunal Member's conclusions disbelieving the appellant were conclusions that he had been entitled to come to on the basis of the evidence and material before the Tribunal. 

6. As to the suggestion that the Tribunal "would not" read certain material his Honour said:

   ‘It is [the applicant's] assertion, it is not his evidence.  However, even if the Tribunal had declined to accept the one hundred pages of documentation which the applicant put to it (and I do not think it did, because the applicant told me that his concern was that it had not been read) the Tribunal was entitled to do this.  The applicant had first communicated with the Tribunal [nearly two years before the Tribunal's hearing] when he told it that he would provide his submission as soon as possible.  His hearing did not take place for almost another two years.’

7. His Honour concluded that there was no ground upon which the appellant was entitled to review of the Tribunal decision under s 39B of the Judiciary Act 1903 (Cth).

8. The matter of the alleged refusal or failure to read the late produced material is a matter of concern. The Tribunal is certainly entitled to order its own procedures including to enable it to comply with the statutory aspiration demanded of it, that among other things its mechanism of review should be "quick", see s 420(1) of the Migration Act 1958 (Cth). Provided that a reasonable opportunity is afforded to an applicant for review by the Tribunal, there is no reason why the Tribunal might not fix a cut off date for the receipt of material. However, if the Tribunal Member does not so fix a time, or if it relaxes any such time limit and receives material, then before not thoroughly reading the material, the Tribunal would need safely to satisfy itself that nothing in the material could effect its decision.

9. The appellant appears to have submitted well over one hundred pages of material, some of which is closely typed.  A glance at it suggests that it would not have much improved his case, if at all, but rather more than a glance would be necessary before one could safely hold such a view.  But for the relocation issue, I would have been very inclined, even on appeal, to permit the appellant an opportunity to turn his assertions into evidence.

10. There are other aspects of the Tribunal Member's findings that might also, albeit to a lesser extent, occasion concern and which also might but for the relocation issue, possibly require the Court's intervention.  The appellant had claimed to fear persecution for reasons of political opinion.  He claimed to have been a leading member of the student wing of the Bangladesh National Party (‘BNP’) and to have suffered assaults and to have had false charges laid against him for which members of the rival political party, the Awami League, were responsible.  He claimed, indeed, that he had been targeted for political assassination.   The Tribunal Member found that the appellant had exaggerated or fabricated his claims. 

11. Much of what the Tribunal Member had to say is, with respect, well argued and indeed compelling to the independent reader.  But where as here, there are many reasons in the mind of the Tribunal Member for disbelieving an appellant, it is well to say which reasons in the Tribunal's Member's view, independently justify the Member's disbelief of the appellant.  Otherwise an error in relation to one reason for disbelief might possibly taint the whole finding.  That will not of course necessarily be so, but there is a risk. 

12. The appellant made such a poor impression on the Tribunal Member that the Member said:

    ‘If the police ... want the applicant, I conclude from his admissions at the hearing that the case against him is probably a justified one.  I conclude from the country information ... and from his admissions that the activities he was involved in were criminal rather than political in nature.’

13. The country information was to the effect that the student organisations associated with the major parties have in many instances descended into gangsterism and hoodlumism.  The appellant admitted to the Tribunal that he had in the past engaged in violence against political rivals but he was adamant that he had done so for political reasons.  Leaving aside any doctrinal question about political opinion that may arise, it would appear to be a conclusion, without the necessary evidence from such a state of facts, that if the police were after him for a particular case, that case was probably a justified one.  I mention these matters among other things, for what I hope will be the assistance and guidance of the Tribunal Member.

14. I turn to the matter of relocation.  In recounting what had occurred at the hearing, the Tribunal Member wrote:

    ‘I said that all of the problems of the applicant seem to be in Dhaka or Khulna (a city less than an hour from Dhaka) so if he went to live elsewhere in Bangladesh and led a law abiding life he should be safe enough.’

    If the appellant made any response to this, the Tribunal Member did not record it, nor need he have, but it does not appear that any finding as to the appellant's creditworthiness influenced the Tribunal Member's conclusions on this subject.

15. The Tribunal Member said:

    ‘The only claims the applicant has made are in respect of activities in Dhaka and Khulna.  If for any reason the applicant does not wish to live in those areas, the only parts of the country in which he claims to have had difficulties, the country information [on specified pages] leads me to conclude that there are many other parts of the country in which it would be reasonable to expect him to be able to relocate.  He has managed to support himself in an unfamiliar country for over two years so I have no doubt of his ability to support himself in the country in which he was born, was educated, spent most of his life and still has family.  Moreover, I note that he has savings which amount to the annual per capital income in Bangladesh ... If the applicant wishes to pursue politics outside of Dhaka or Khulna in a manner which does not involve thuggery and criminality, the material [a specified point of the country information] leads me to conclude that he would have little to fear from rival political groups.’

16. It might have been made clearer by the Tribunal Member that this was an alternative and freestanding reason for rejecting the appellant's claim to be a refugee, but I accept the submissions from counsel for the Minister that, reading the Tribunal Member's reasons in the requisite non-technical way and without an eye attuned to the finding of error, it is an independent reason found by the Tribunal Member for rejecting the appellant's application to the Tribunal.

17. It follows that, even if the Tribunal Member's findings as to credit were jurisdictionally flawed had they stood alone, it cannot be said that the Member’s decision was made in consequence of, or involved, jurisdictional error or a failure to exercise jurisdiction. 

18. For these reasons, the appeal is dismissed.  The appellant is to pay the respondent's costs which I assess in the sum of $3,000.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            25 March 2004

The Appellant appeared in person.
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	26 February 2004
Date of Judgment:	26 February 2004