SZAZQ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 822

FEDERAL COURT OF AUSTRALIA

SZAZQ v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 822

SZAZQ V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 662 OF 2005

WILCOX J

10 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 662 OF 2005

BETWEEN:	SZAZQ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	10 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the costs of the respondent.

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 662 OF 2005

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

JUDGE:	WILCOX J
DATE:	10 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a decision of Federal Magistrate Nicholls. When the matter came before me for directions on 26 May 2005, I happened to be Acting Chief Justice. In that capacity, I made an order, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the matter be heard and determined by a single judge of the Court.

2. Federal Magistrate Nicholls dismissed an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’), made on 18 June 2003 and handed down on 11 July 2003.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, the present respondent, to refuse to grant a protection visa to the appellant. 

3. The appellant is a citizen of Bangladesh.  He came to Australia on 18 January 2001.  Shortly after that date, he applied for a protection visa.  He claimed to have a well‑founded fear of persecution on religious grounds, if he returned to Bangladesh.  The basis of his claim was that he had been brought up as a Muslim, in a Muslim family, but had married a Hindu woman and this had caused him to be ostracised by his family and persecuted.

4. The Tribunal was not satisfied about the claimed marriage. The Tribunal

   
   

   noted that the appellant had been unable to provide a marriage certificate, notwithstanding his claim to have been legally married in a court.  The appellant had produced some photographs, which seem to depict a festive or social occasion, but the Tribunal member was unable to discern from the photographs that the occasion was a wedding.

5. The appellant also provided to the Tribunal what purported to be an affidavit of his mother, written in English and witnessed by a Bangladeshi notary public.  The affidavit was dated 11 January 2001.  It was notarised on 16 January 2001, the day before the appellant left Bangladesh for Australia.  The Tribunal noted the claimed wedding had occurred some five months earlier.  The affidavit contained statements about the appellant being ostracised by his family because of the wedding. The Tribunal was unable to see why the appellant's mother would have helped him, or provided this affidavit, if the appellant had been ostracised  by his family.  The member commented on the fact that the affidavit was in English, rather than Bengali, as might have been expected if the affidavit was intended for local use.

6. The essential reason for the Tribunal's decision was that the member was unpersuaded of the fact of the marriage, something that lay at the heart of the appellant’s claim. 

7. The appellant provided to the magistrate some written submissions.  The magistrate dealt with these submissions in his reasons for judgment.  When I invited the appellant to put submissions before me, he referred to this document and stated he wished to rely on it.  He put no additional submissions.

8. The document is lengthy.  It sets out a number of matters that are not really submissions about this case.  However, it is possible to identify two categories of submission which, if made out, would or might mean the Tribunal had made a jurisdictional error. 

9. The first category can be described as lack of procedural fairness or denial of natural justice.  There are two claims in that category.  The first claim is that the Tribunal denied the

   
   

   appellant procedural fairness because it found that documents provided by him were fraudulent, without putting its concerns in relation to genuineness to the appellant at the oral hearing.  When I asked the appellant to identify the documents to which he was referring, he eventually stated that the only document was the affidavit of his mother. 

10. The appellant was asked about this affidavit.  At para 46 of the Tribunal's reasons for decision, the member recorded that he had referred the appellant to the purported affidavit and had asked him how he managed to obtain an affidavit if his mother had ostracised him?  The member recorded the appellant's response:  "When the newspaper had published it lawfully, a copy had to be sent to him".  This was a reference to what was said to be a newspaper advertisement in the Bengali language, a copy of which was produced to the Tribunal but was never translated.  The member went on to note that the appellant claimed that his mother had sent the affidavit to him through a solicitor. 

11. Some factual issues arose out of the appellant's response to the Tribunal's question.  It is not appropriate for me to go into them.  It is sufficient to note that the Tribunal made clear to the appellant that it had difficulty about the affidavit.  As I understand the Tribunal's reasons, the problem was not so much whether this document was genuine, in the sense of having been prepared or signed by the appellant’s mother, but how it came about that his mother would make this affidavit, and send a copy of it to him, if she had ostracised him.  This was a fair question for the Tribunal to put to the appellant.  It was for the Tribunal to weigh and consider the reasonableness of his response.  Contrary to the appellant’s submission, the Tribunal did not find this document to be fraudulent, in the sense of being a forgery.  I do not think that there was any denial of procedural fairness in relation to the affidavit.

12. Secondly, in respect of the claim of denial of procedural fairness, the Tribunal was said to have relied upon country information without providing the appellant with a real opportunity to comment upon it. 

13. So far as I have been able to determine, the only country information relied upon by the Tribunal member was that noted in paras 50 and 51 of the Tribunal's reasons for decision. 

    
    

    These paragraphs deal only with what is said to be the "very high level of document fraud in Bangladesh".  Contrary to a submission put to me by the appellant, the Tribunal does not appear to have had, or taken into account, any country information in respect of the treatment of Muslims who marry Hindus.  The material about document fraud is very general and does not give rise to any obligation by the Tribunal to inform an applicant and allow that applicant to deal with the material. 

14. I do not think there is any substance in either aspect of the complaint of denial of procedural fairness. 

15. The second category of submission concerns the alleged failure of the Tribunal to act in good faith.  The first item in relation to this allegation was that the Tribunal relied on country information about minorities.  However, the appellant was unable to point to any such reliance.

16. The second item is that the Tribunal "failed to understand that the applicant was a member of the family unit".  I asked the appellant what he meant by this item, but he was not able to explain it at all.  The Tribunal realised the appellant had parents living in Bangladesh. 

17. The third item is that the Tribunal failed to understand that the persecution of which he complained arose out of his marriage to a Hindu woman.  However, it is clear that the Tribunal understood this was the basis of the appellant's claim to refugee status.  The reasons for decision focus on that issue. 

18. The problem, from the appellant's point of view, is that he was unable to satisfy the Tribunal that he had, in fact, married a Hindu woman.  There were a number of reasons given by the Tribunal for its unwillingness to accept the appellant's evidence about that matter.  Although it is obvious that the appellant disagrees with the Tribunal's view about the facts, the question whether or not the factual findings are correct cannot be considered by this Court.

19. I have carefully read the Tribunal's reasons for decision.  I am unable to discern any

    
    

    jurisdictional error.  The magistrate was correct in dismissing the appellant's application for review.  The appeal will be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             21 June 2005

The Appellant appeared in person
Solicitor for the Respondent:	Mr R White of Sparke Helmore
Date of Hearing:	10 June 2005
Date of Judgment:	10 June 2005