SZBDL v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1091

FEDERAL COURT OF AUSTRALIA

SZBDL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1091

MIGRATION – appeal from Federal Magistrates Court – procedural fairness – Refugee Review Tribunal failed to adjourn the hearing on medical grounds – s 424A of the Migration Act 1958 (Cth)

Migration Act 1958 (Cth) s 424A

SAAP v The Minister for Immigration and Multicultural and Indigenous Affairs (2005) ALJR 1009 followed

SZBDL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 300 OF 2005

TAMBERLIN J
SYDNEY
8 AUGUST 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 300 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZBDL APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	8 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal is dismissed with 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	NSD 300 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

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

JUDGE:	TAMBERLIN J
DATE:	8 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Federal Magistrate Driver dismissing an application for a review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 June 2003.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant a protection visa to the appellant.

2. The Tribunal accepted that the appellant was a Bangladeshi national and that the authorities in Bangladesh were willing to offer the appellant the protection that they normally offered to Bangladeshi citizens.

3. The Tribunal did not, however, accept the appellant’s case to the effect that, if returned to Bangladesh, he would be persecuted because of his religious beliefs or because he was a member of the Ahmadiyya Muslim community in Bangladesh.  The Tribunal considered that the appellant’s evidence was unreliable and did not accept that he was an Ahmadiyya Muslim, that he was committed to living as a follower of the principles which attached to such beliefs, or that he suffered persecution for the reason of being identified as a follower of that organisation.  The Tribunal referred to the appellant’s evidence as inconsistent, self-contradictory, vague and sensationalist.  After having regard to independent evidence, the Tribunal formed the view that the appellant should not be believed.  The Tribunal adverted to an argument that any problems in the evidence of the appellant were the result of illness or medication.  The adverse credibility factors seen to undermine the appellant's position were regarded by the Tribunal as serious.  In reaching its conclusion, the Tribunal relied heavily on country information of a general nature.  In relation to the inconsistencies in the material, the Tribunal referred to the submissions by the appellant which were in the nature, to some extent, of resubmissions before the Tribunal, and which had already been made to the delegate.

4. The Tribunal went on to consider the matter on the basis (which it did not accept) that, even if it were wrong in relation to membership of the appellant of the Ahmadiyya community, the appellant could not succeed.  Based on research that appears to be country information, independently of the finding that the appellant was not an Ahmadiyya Muslim, the Tribunal reached the conclusion that there was no real chance of persecution if the appellant was returned to Bangladesh.  In so doing, the Tribunal referred to evidence of the national Ahmadiyya Muslim Jamaat Convention held in Feburary 2003 and the United States Department of State’s Country Reports on Human Rights Practices for 2001 in detail to the effect that there were no on-going matters of serious concern, let alone any that were Convention related.

5. The appellant has lodged a Notice of Appeal against the decision of Federal Magistrate Driver on a number of grounds. These grounds are of a general nature, many are factual, and none of them, in the circumstances of this case, give rise to any error of law or principle which would warrant the setting aside of the decision appealed from.  In particular, the appellant challenges the findings and views expressed by the Federal Magistrate in appraising the Tribunal’s reasons as to the state of affairs in Bangladesh.  This is essentially a question of fact.

6. The appellant refers to the Tribunal having erred in not accepting that he was a member of the Ahmadiyya Muslim community.  This, again, is a question of fact.  It is said that sufficient documents were submitted to prove those matters, but that the Tribunal ignored these documentary evidences.  In fact, the Tribunal referred to the documents and rejected them.  A further ground was raised that the appellant was sick on the hearing date and had produced a medical certificate.  I am satisfied that the Tribunal was entitled to reach the conclusion that it did on the material before it.

7. The appellant today has attempted to file some further evidence, some of which post-dates the Tribunal decision, in the form of general country information in newspapers and other publications.  I reject the tender of that evidence.

8. In relation to s 424A of the Migration Act 1958 (Cth), I am satisfied, particularly having regard to the arguments advanced by Mr Jordan for the respondent, that the section does not apply in this case because of the exception contained in section 424A(3)(a). The information used by the Tribunal in relation to its finding of inconsistency was given by the appellant in the form of a resubmission of material before the delegate and, accordingly, is within the exception to the requirement in 424A.

9. In all the circumstances, and having regard to what the appellant has put before me today, in particular in his outline of submissions and the Notice of Appeal, I am of the view that there has been no error of law disclosed in the decision of the learned Magistrate and nor has anything been pointed to in the decision of the Tribunal which would warrant this Court reversing that decision or modifying it in any way.

10. In SAAP v The Minister for Immigration and Multicultural and Indigenous Affairs (2005) ALJR 1009 (SAAP), the High Court indicated that it was appropriate for the Tribunal to be named as a respondent to the proceedings.  Having regard to the principles in SAAP, I am satisfied this is a case in which the Tribunal ought be joined as a respondent and I grant leave for the Tribunal to be joined.  I record that counsel for the Minister informs me that this will be done forthwith on this leave having been granted.

11. For these reasons, the order of the Court is that this appeal is dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             15 August 2005

The Appellant appeared in person with the assistance of an interpreter
Counsel for the Respondent:	D Jordan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 August 2005
Date of Judgment:	8 August 2005