SZAQX v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 553
•5 MAY 2004
FEDERAL COURT OF AUSTRALIA
SZAQX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 553
SZAQX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 239 OF 2004MOORE J
5 MAY 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 239 of 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT
BETWEEN:
SZAQX
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
MOORE J
DATE OF ORDER:
5 MAY 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’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
N 239 of 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT
BETWEEN:
SZAQX
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
MOORE J
DATE:
5 MAY 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
The appellant is a citizen of Bangladesh who arrived in Australia on 5 April 2002. On 1 May 2002 he lodged an application for a protection visa. On 1 July 2002 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') refused to grant the protection visa and on 11 July 2002 the appellant applied for review of that decision by the Refugee Review Tribunal ('the Tribunal'). The appellant attended a hearing before the Tribunal on 7 May 2003 and that same day the Tribunal affirmed the decision of the Minister not to grant a protection visa, giving its decision orally. Written reasons for decision were sent to the appellant on 12 May 2003. The appellant applied to the Federal Magistrate’s Court for judicial review of the Tribunal's decision. On 18 February 2004 a Federal Magistrate dismissed the application. This is an appeal from that judgment.
Background
The essence of the appellant's claims was that he feared persecution in Bangladesh for reason of his political opinion. Apart from the appellant's oral account of his claims, the only material he submitted were documents about his lost passport and five photographs of him with people from the Awami League.
Prior to the Tribunal hearing, the appellant’s claims were that he had been involved in the Chattra League (the Awami League student wing) in a ward of Old Dhaka (from approximately 1991) and vice president of the Jubo League branch of the Awami League (from 1996). He claimed that the Bangladeshi National Party (the 'BNP') members had twice tried to kill him. The first time was in November 2001 and involved a local business dispute in which political parties became involved. After this he "started living in various hidden places in new Dhaka through out until the year 2002". Before the second attempt, he was publicly banned from political activities in Old Dhaka and forced to leave his locality. In the second attempt the appellant claimed he was attacked by BNP terrorists on his way to a rally at Dhaka University in January 2002. In retaliation, Chattra League supporters allegedly attacked a BNP rally causing the death of a BNP supporter. The appellant claimed that he was suspected of having organised the retaliation leading to that death and as a result the BNP student wing was searching for him to kill him. He claimed that they filed a baseless murder charge against him which they were able to do because police were partisan in Bangladesh. He claimed to have changed his living arrangements several times to avoid police harassment and any attack by the BNP student wing. He also claimed to fear prosecution under "black laws" and that he would be killed if he returned. His family and friends suggested he leave the country. The appellant left Bangladesh by bribing authorities at the airport.
At the Tribunal hearing the appellant gave a different account of his experiences in Bangladesh. He said that ninety percent of his submissions to the Minister and the Tribunal were true, but ten percent were due to the efforts of his adviser. The appellant’s account then was that he had declined the position of vice president of the Jubo League and had only ever been an ordinary member of the two Awami League wings. At the hearing he added that the first attempt to take his life had arisen because BNP Ministers had asked him for money because he was a successful business man and an Awami League supporter. This resulted in pushing and shoving leading to some goods falling on the appellant and injuring him. At the hearing the appellant said that the claim about his supporters attacking the BNP rally was fabricated. However, the appellant maintained that a false case had been made against him but that it was just to harass him and he knew nothing about it. At the hearing he claimed that he had not paid a bribe at the time of his departure. He also claimed that it was not possible for him to relocate to another part of Bangladesh because he would eventually have to go to Dhaka and, if he did, he would be killed.
The Tribunal's Decision
The Tribunal set out the appellant's claims to the Department of Immigration and Multicultural and Indigenous Affairs ('the Department'). Then the Tribunal set out claims made to it which affected the credibility of previously made claims (because some claims were being made for the first time and some original claims were conceded to be fabrications).
The Tribunal also set out matters which it had raised with the appellant. In relation to the five photographs provided by the appellant showing him at an Awami League function talking to prominent Awami League personage, the Tribunal noted it had put to the appellant that all the photos proved was that he had been at a function and had talked to someone. The Tribunal noted that the appellant had offered to provide more documents in support of his claims if needed. The Tribunal had declined the offer, noting the reputation of Bangladeshi documentation. It decided not to permit him further time to submit documents because of the lack of credibility of many of the appellant's claims, his failure to produce any supporting documents in the year after his application and the poor reputation of Bangladeshi documentation.
In its findings and reasons the Tribunal noted the appellant had at least six opportunities to present his case:
·The initial application to the Department of May 2002;
·The unused opportunity to reply to a letter from the Department sent May 2002;
·The application to the Tribunal of July 2002;
·The unused opportunity to reply to the request for any "documents, information and any other evidence" in the acknowledgment letter of July 2002 from the Tribunal;
·The request for "any new documents or written arguments" in the Tribunal hearing invitation letter of March 2003;
·The hearing of 7 May 2003.
The Tribunal concluded that when the claims made before the hearing which the appellant later discredited were discounted, and when his claim made at the hearing about extortion was discounted because it was not credible, the appellant was left with a claim that he was a low profile member of two Awami League organisations who feared the wrath of the BNP.
The Tribunal concluded, by reference to country information, that an ordinary Awami League supporter would have little to fear from rival political groups, especially if he pursued such activities outside Dhaka. It concluded that the appellant did not fear persecution in Dhaka because he exaggerated or fabricated his activism and the threat of attack. The Tribunal found there was no indication that low-level Awami League supporters were being persecuted by the BNP. It did find however that if, for any reason, the appellant did not wish to live in Dhaka district, there were many other parts of the country in which it would be reasonable to expect him to be able to relocate.
The Federal Magistrate's Decision
The appellant sought, unsuccessfully, to file an amended application two days before the hearing before the Federal Magistrate. However, the appellant's written submissions and oral submissions by counsel for the Minister addressed the grounds in the amended application. They were dealt with by the Federal Magistrate.
The Federal Magistrate considered whether there had been a failure to accord procedural fairness under s 424A of the Migration Act 1958 (Cth) ('the Act') by failing to provide the appellant with independent country information about the subsiding of violence against political parties or groups in Bangladesh. Her Honour found no breach, as this information fell within the exception in par 424A(3)(a) of the Act, as information not specifically about the appellant or another person and only about a class of persons which the appellant or another person is a member.
The appellant submitted the Tribunal did not put to him its doubts about documents containing information personal to him from the Awami League and the court case brought against him. Her Honour rejected this submission. No such documents, other than photographs, were furnished to the Tribunal. The authenticity of the photographs was not doubted. They did not, in the Tribunal’s view, establish the appellant's claimed status in the Awami League. Her Honour concluded the Tribunal was not obliged to allow the appellant time to provide further documentation, nor to make its own inquiries. Her Honour rejected a submission that judicially reviewable error arose because the Tribunal did not make findings as to socio-political changes that might occur in Bangladesh in the reasonably foreseeable future and consequently failed to assess whether the appellant's fears of future persecution were well founded. Her Honour also rejected a submission that there had been a denial of procedural fairness or the Tribunal was biased because it refused an offer of the appellant to provide further information. Her Honour said "the [appellant]'s offer to provide further documentation if needed does not indicate that he was prevented from submitting documents during the hearing". Her Honour was satisfied that there was no contravention of s 422B of the Act or lack of procedural fairness on the broadest view, nor that a breach of s 424 of the Act had been established.
The Federal Magistrate rejected a submission that by giving its reasons orally, the Tribunal had made its decision either before the hearing or during the hearing. Her Honour pointed out that the Tribunal had power to follow this course and no contravention of s 430 was established by the giving of reasons orally. Nor did her Honour find anything to suggest the decision was so unreasonable that no reasonable decision maker could have made it. Her Honour found nothing in the giving of the decision orally and/or the conduct of the hearing, to establish the Tribunal had acted in bad faith or was biased.
The appeal
The following grounds were set out in the notice of appeal:
a. The honourable Federal Magistrate failed to find that tribunal exceeded its jurisdiction, in failing to accord the [appellant] procedural fairness, as required under section 424(1) & 418(3) of the Migration Act 1958.
b. The honourable Federal Magistrate failed to find that tribunal did not provide the [appellant] with particulars of information to the [appellant], in the Australian embassy reports or any other adverse materials, which formed part of the reason of the tribunal’s decision, namely, that violence against political party or groups had subsided, and that information was not “just information about a class of persons”.
c. The honourable Federal Magistrate failed to find that tribunal did not put to the [appellant] its doubts about documents containing information personal to the [appellant] from the Bangladeshi Awami League, and the court case bought against him, and those doubts formed part of the reason for the Tribunal’s decision.
d. The honourable Federal Magistrate failed to find that the Refugee Review Tribunal did not complete the exercise of its jurisdiction as it made no findings as to what sociopolitical changes might occur in Bangladesh in the reasonably foreseeable future and it thus failed to assess whether the [appellant's] fears of being persecuted for being a member of a political party were well founded in the reasonably foreseeable future.
At the hearing of the appeal, the appellant was unrepresented. He made his submissions through an interpreter. He made no submissions addressing any of the grounds of appeal. No written submissions were filed by the appellant before the hearing notwithstanding that he had been directed to do so. The appellant sought to tender a photograph (in addition to the five he had furnished to the Tribunal) and sought to hand up documents which he believed would support his case that he was a refugee. Their tender was objected to on the basis that they were irrelevant. Neither the photograph nor the documents were admitted into evidence. I endeavoured to explain to the appellant the limited role of the Federal Magistrate's Court and this Court and that his task in this appeal was to establish error on the part of the Federal Magistrate. Probably (and in the circumstances, quite understandably) the appellant did not understand and the focus of his submissions throughout the hearing of the appeal was to persuade me that he was a refugee.
Counsel for the Minister submitted that the appeal should be dismissed as the appellant had not pointed to any arguable error on the part of the Federal Magistrate referable to any of the grounds of appeal.
I have read the reasons for decision of the Tribunal. I have read the reasons for judgement of the Federal Magistrate. It is not apparent to me that the Federal Magistrate erred in dismissing the application for judicial review of the decision of the Tribunal. The appeal should be dismissed with costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate:
Dated: 5 May 2004
Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: T Reilly Solicitor for the Respondent: Sparke Helmore Date of Hearing: 29 April 2004 Date of Judgment: 5 May 2004
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