SZAYM v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 312

FEDERAL COURT OF AUSTRALIA

SZAYM v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 312

Migration Act 1958 (Cth), s 424A , s 424(1), s 422B

SZAYM V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

HILL J
7 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1683 OF 2004

BETWEEN:	SZAYM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	7 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of and incidental to the appeal to the sum of $2,500.

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	NSD 1683 OF 2005

BETWEEN:	SZAYM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	7 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HILL J:

1. The appellant is a citizen of Bangladesh.  After arrival in Australia he applied for a protection visa.  When his application was refused by a delegate of the respondent Minister he applied to the Refugee Review Tribunal for a review of the decision.  The Tribunal affirmed the delegate's decision and the appellant sought judicial review of the Tribunal's decision before a Federal Magistrate.  His application was rejected with costs and the appellant then appealed to this court.

2. The learned Magistrate by reference to material prepared by counsel for the Minister set out certain factual matters.  It was noted that the appellant's claim arose by virtue of an alleged fear of persecution in Bangladesh on grounds of political opinion.  It had been the appellant's case before the Tribunal that he was a prominent member of the Awami League and that he had a well-founded fear of persecution from members of the rival Bangladesh National Party (“BNP”).  The appellant claimed to have supported local Awami League candidates in the 1996 and 2001 elections and to have been threatened and subjected to false charges by BNP supporters.  He claimed that his house had been bombed in 1999 and that false charges had been laid against him and that his life had been threatened. 

3. The Tribunal accepted that the appellant had been a member of the Awami League and that he had assisted in the 1996 election although the Tribunal was not of the view that his role was as prominent as he had said it was.  The Tribunal did not accept the appellant's statement that he had been targeted by the BNP or that his house had been bombed in 1999.  It rejected his claim to have been the subject of false charges.

4. It noted the vague nature of claims that had been raised by the appellant and the ease with which he had left Bangladesh from time to time.  The Tribunal alternatively concluded that if there was a fear of harm on the part of the applicant it was reasonable for him to relocate somewhere within Bangladesh.

5. The learned Magistrate after noting that none of the claims upon which judicial review was said to be founded were particularised expressed the view that the only matter raised in the application before him was an alleged denial of procedural fairness. It was argued that there had been a failure to give the appellant an opportunity to comment upon country information or an alleged breach of section 424(1) of the Migration Act 1958 (“the Act”). This argument was rejected by the Magistrate on the basis that the Tribunal had given the appellant an opportunity to comment upon adverse information as required by the Act but that the appellant had chosen not to respond. The Tribunal rejected the other unparticularised complaints made by the appellant on the basis that none of them were either made out or involved jurisdictional error. Accordingly the learned Magistrate found that decision of the Tribunal to be a privative clause decision and dismissed the application.

6. On appeal the appellant filed written submissions which I am told follow a relatively standard format.  There are a number of points raised in those submissions.  In oral argument the appellant did not really expand upon the material from the written submissions.  Accordingly I propose to concentrate on the submissions in their written form.

7. The first submission is that the appellant's oral evidence before the Tribunal was true and correct and in the absence of evidence that what he said was lacking in substance the Tribunal was obliged to verify the authenticity of documents and evidence given by the appellant before calling it into question.  It is true that the Tribunal did not accept a considerable part of the appellant's evidence.  It is not obliged to accept that evidence.  It must weight for itself all of the evidence before it.  There is nothing to suggest that the Tribunal did otherwise.

8. As far as authenticity of documents is concerned there is nothing in the Tribunal's reasons that suggested they regarded any particular document as lacking authenticity.  Even if there were a proposition that the Tribunal was itself required to verify the authenticity of documents, that would be wrong.  No doubt there is power in the Tribunal to do so but that is a different matter.

9. The second matter raised in the submissions is section 424A of the Act. It is said in the submission that the Tribunal is bound under that section to particularise "it's potential finding on this issue." It is unclear to me what is meant by "this issue".

10. Section 424A obliges the Tribunal to give particulars of information of a particular kind that the Tribunal considers would be the reason or part of the reasons for affirming a decision. That is a different matter from saying that the Tribunal is bound to give to an applicant details of the potential findings the Tribunal proposes to make on particular issues. Be that as it may the Magistrate found, and found correctly, that the appellant had been given particulars of adverse information, namely country information. Section 424A was not infringed.

11. Reference is made in what may be perhaps a separate submission to the provisions of section 422B of the Act. As the present application before the Tribunal was heard before section 422B was enacted, that section can have no operation.

12. The next submission is said to be that notions of basic fairness required that the Tribunal, before making a finding of dishonesty give the party the opportunity to address that issue.  The difficulty with the submission is that there is no finding on the part of the Tribunal at all of dishonesty on the part of the appellant.

13. A failure on the part of a Tribunal to accept evidence is not a finding of dishonesty.  It means no more than that the Tribunal has not been satisfied by the evidence that has been before it.  The submissions then proceed to raise other grounds such as failure to follow proper procedures, error in law and the like which are not particularised and add nothing to the appellant's appeal.  It is said that the Tribunal erred by failing to consider the appellant's subjective state of mind.  The Tribunal, however, found that it was satisfied that the appellant did not have a well founded fear of persecution, at least objectively.  If that is found then it is unnecessary that the Tribunal additionally consider the subjective state of mind of an appellant. 

14. There is another answer to the submission, that is that on an alternative basis of decision the Tribunal found that it was reasonable that the appellant re-locate within Bangladesh.  That alternative ground of decision did not depend upon any finding of subjective state of mind. 

15. There is nothing in the submissions that have been filed that in any way cast doubt upon the decision of the learned Magistrate.  The appellant has not succeeded in demonstrating jurisdictional error on the part of the Tribunal.  It follows that the appeal must be dismissed.

16. I would order that the appeal be dismissed and that the appellant pay to the Minister the sum of $2500 being the amount agreed between the parties as the costs of and incidental to the appeal.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             7 March 2005

The applicant was self represented
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 March 2005
Date of Judgment:	7 March 2005