SZANB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1295

FEDERAL COURT OF AUSTRALIA

SZANB v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1295

SZANB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1061 of 2004

JACOBSON J
29 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1061 of 2004

On appeal from the Federal Magistrates Court of Australia

BETWEEN:	SZANB APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	29 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent's costs of the appeal.

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	N 1061 of 2004

On appeal from the Federal Magistrates Court of Australia

BETWEEN:	SZANB APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	29 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate given on 18 June 2004. The only grounds of appeal raised in the notice of appeal are that the Federal Magistrate is said to have failed to find that the Refugee Review Tribunal (“the RRT”) was in breach of s 424A(1) and s 418(3) of the Migration Act 1958 (Cth) (“the Act”) and also in error of law and jurisdictional error. There are no particulars given of what are said to be the breaches of the Act or the error of law or jurisdictional error.

2. In order to deal with the appeal it is necessary to set out the background. The appellant is a citizen of Bangladesh who arrived in Australia on 9 May 1996. He made an application for a protection visa in July 1996 but the application did not include any claims and was refused by the Department in March 1997. He lodged a further application for a protection visa in August 2001 which was accepted as a valid application, notwithstanding the provisions of s 48A of the Act, because the initial application was treated as invalid on the ground that it contained no claims under the Convention. The second application was refused by a delegate on 14 February 2002 and the appellant sought a review of the delegate's decision by the RRT.

3. The appellant claimed to have a well founded fear of persecution on political grounds by reason of his membership during his student days of the Awami League and, later, of the Bangladesh Nationalist Party (“BNP”).

4. The RRT accepted that the appellant had been involved in both of those organisations but the RRT could see nothing to indicate that mere membership of such an organisation in Bangladesh would have led to persecution in the convention sense.  The RRT expressed some difficulties with the applicant's claim including a finding that it was "incredible" that the appellant's political stance was so flexible that he could switch from one party to its sworn opponent.

5. The appellant relied on attacks against him by his political opponents which he claimed had occurred in the period from 1994 to 1996.  The RRT noted that the only place in Bangladesh in which the appellant claimed to have been attacked was in Kapasia, which is situated in the Gazipur district north east of Dhaka.  The RRT noted that the appellant had continued to live in Kapasia despite what were said to be threats against him and concluded that he did not fear persecution there because he had either exaggerated or fabricated the threat.

6. The RRT observed that in light of the focus on Kapasia for the appellant's claimed political activity and claims of attacks made against him, there was no reason to suppose that the Awami League would pursue him outside the Gazipur district.  The RRTs decision turned upon its conclusion that the appellant could re-locate from Gazipur.  It observed, as I have indicated, that he kept returning to Kapasia where he claimed to face trouble from his political opponents even while he was working in another area.  The RRT found that the appellant did not have a political profile outside of the Gazipur district and even if he did have such a profile, it was some 11 years prior to the hearing before the RRT.

7. The RRT also referred to the appellant's claim that he had been a witness to a murder but it found that this did not involve any Convention reason for the claimed fear of persecution.  The RRT concluded that the appellant did not have a well founded fear of persecution within the grounds appearing in the Convention.

8. The appellant's application for review of the RRTs decision in the Federal Magistrate's Court set out five grounds.  The magistrate adopted the written submissions of counsel on each of those five grounds which he set out at [3] of his judgment.

9. The first and fourth ground was that the RRT breached its obligations under s 424A of the Act. The particulars of the information which were said to form part of the reasons for the RRTs decision were that violence against BNP supporters or leaders had subsided. This information was said to be not just about a class of persons within s 424A(3).

10. However, the learned magistrate accepted the submission that the RRT did not make a finding that violence against BNP supporters or leaders had subsided.  The particulars of the information relied upon by the appellant were not therefore part of the reasons for the RRTs decision.  The learned magistrate observed that the RRTs principal reason for its decision was that any harm faced by the appellant was limited to the Gazipur district and that he could, and indeed, had relocated within Bangladesh to find safety.

11. It is unnecessary to set out the second, third and fifth grounds which were relied upon by the magistrate because they are not pursued on the appeal.

12. However, there was one further ground of review before the magistrate, namely that the appellant asserted a breach of procedural fairness within the decision of the High Court in Muin v Refugee Review Tribunal; Liev Refugee Review Tribunal (2002) 190 ALR 601. This ground was apparently not included in the amended application in the Federal Magistrates Court. However, the magistrate observed that the principle stated by the High Court was of no application because there were no agreed facts in the present case, nor was there any evidence that would be necessary to sustain such a ground of review.

13. The appellant has filed written submissions which I of course read before I came onto the bench this morning.  He appeared in person today and did not put anything to me orally which went beyond what is contained in the written submissions.

14. Three essential points were raised. The first was to repeat the submission which was put to the learned magistrate on s 424A of the Act. However, it is clear that the information relied upon by the appellant did not form part of the reasons of the RRT. It is therefore sufficient to say that the appeal on this ground must fail for the reasons given by the Federal Magistrate.

15. The second point that was raised was a claim that the RRTs decision was affected by actual or apprehended bias.  The reason this submission was put was that the member of the RRT handed down an ex tempore decision within, so it is said, “60 seconds” of the conclusion of a three hour hearing before the Tribunal.

16. However, this cannot amount to either actual or apprehended bias within the well-established authorities.  The principles dealing with actual bias were stated by the High Court in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at [71] - [72] per Gleeson CJ and Gummow J and were usefully summarised by Von Doussa J in SCAA v Minister for Immigration, Multicultural and Affairs [2002] FCA 668 at [36] and following.

17. It is plain, as Mr Beech-Jones, for the Minister, has submitted, that a review does not commence with the oral hearing.  Rather, the oral hearing is the end of the process and it would ordinarily be expected that a Tribunal, or indeed a court, in this sort of case, would have in its mind a fairly clear preliminary view which would enable it to deliver a judgment after the conclusion of the hearing, subject of course to observations made during the hearing.  This cannot indicate bias.

18. In any event, it would appear that the information to which the appellant pointed would fall within the exception contained in s 424A(3)(a); see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 at [67] to [71] per Beaumont J and at [138] per Merkel and Hely JJ.

19. The third point which was put by the appellant was that he had been a witness to a murder.  However, the Magistrate was of the view at [7] to [10] that this did not raise a well-founded fear of persecution under the Convention.  The appeal on this ground must be dismissed for the reasons given by the Magistrate.

20. None of the other points made in the appellant's written or oral submissions gives rise to any error on the part of the Federal Magistrate and it follows that the appeal must be dismissed.

21. I order the appellant to pay the respondent's costs of the appeal.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Date:              7 October 2004

Counsel for the Applicant:	The Appellant appeared in person.
Counsel for the Respondent:	Mr Robert Beech-Jones
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	29 September 2004
Date of Judgment:	29 September 2004