SZBPO v Minister for Immigration and Multicultural Affairs
[2006] FCA 658
•23 MAY 2006
FEDERAL COURT OF AUSTRALIA
SZBPO v Minister for Immigration & Multicultural Affairs
[2006] FCA 658
SZBPO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD 2599 of 2005STONE J
23 MAY 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD2599 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZBPO
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTJUDGE:
STONE J
DATE OF ORDER:
23 MAY 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be 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
NSD2599 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZBPO
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTJUDGE:
STONE J
DATE OF ORDER:
23 MAY 2006
WHERE MADE:
SYDNEY
REASONS FOR JUDGMENT
On 2 December 2005, Federal Magistrate Driver dismissed the appellant’s application for review of a decision of the Refugee Review Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent not to grant the appellant a protection visa. The appellant, a citizen of Bangladesh, claims to have a well-founded fear of persecution because of his membership of the Ahmadiyya Jamat religious sect.
The Tribunal was not satisfied that the appellant had a well-founded fear of persecution and found that:
1. The appellant travelled extensively but always returned to Bangladesh, which was inconsistent with a belief that he faced persecution in Bangladesh;
2. If the appellant feared persecution in Dhaka, it would be reasonable for him to live elsewhere in Bangladesh; and
3. There was no independent country information that suggested that members of the Ahmadiyya sect could not live in Bangladesh openly.
In the course of its decision the Tribunal made several findings about the extent of the appellant’s participation in Ahmadiyya. Relevantly, one of these findings was that the appellant was not an Ahmadi priest or Imam. In the statutory declaration accompanying his application the appellant claimed that he was an Imam but when asked about this at the Tribunal hearing denied that he had ever been a priest or Imam. The Tribunal accepted the oral testimony in preference to the earlier statutory declaration.
Before the Federal Magistrate, the appellant submitted that the Tribunal had breached s 424A and/or s 425 of the Migration Act 1958 (Cth) (‘the Act’), failed to afford the appellant procedural fairness and had misapplied the law regarding the appellant’s persecution. The appellant claimed that the interpreter before the Tribunal incorrectly translated the appellant’s response to the Tribunal’s question whether he had been an Imam as a negative response. The Tribunal failed to provide particulars of this information to the appellant and, in the appellant’s submission, thereby denied the appellant an opportunity to correct the interpreter’s mistake. The Federal Magistrate considered the evidence adduced by both parties on this point and decided that there had been no mistranslation. His Honour accepted that, in deciding that the appellant was not an Imam, the Tribunal relied upon the appellant’s own evidence at the hearing and therefore did not breach s 424A of the Act.
The respondent also contended that the Tribunal’s decision could be supported on other grounds, namely that it was open to the appellant to relocate in Bangladesh. The learned Federal Magistrate did not accept the Tribunal’s finding that the appellant could relocate in Bangladesh as a sufficient answer to the judicial review application. His Honour found that the Tribunal had not given this issue sufficiently serious consideration for it to stand independently of the Tribunal’s other findings.
His Honour held that the appellant had put the claims in his protection visa application before the Tribunal on three separate occasions, including by direct reference to these claims in his application for review, and that accordingly this information fell within the bounds of s 424(3)(b) of the Act. Finally his Honour found that the Tribunal considered the question of whether the appellant had a well-founded fear of persecution appropriately. His Honour therefore found that the Tribunal made no jurisdictional error and dismissed the application with costs.
The appellant, who was unrepresented in this Court, filed a notice of appeal on 22 December 2005. The notice of appeal listed two grounds of appeal but stated them so broadly as to be quite unhelpful. The appellant later filed extensive written submissions that seemed to evince an intention to rely largely upon the same grounds of appeal as he relied upon before the Federal Magistrate.
At the hearing of the appeal today the appellant again raised the question of the alleged mistranslation but was not able to suggest any basis on which it could be claimed that the Federal Magistrate was clearly wrong in accepting the evidence put forward by the respondent rather than that of the appellant.
His Honour carefully considered the claims that were put before him. He was entitled to draw the conclusions that he did about the alleged mistranslation and there is no basis on which an appeal court should interfere with this finding. In relation to the other claims of the appellant his Honour wrote a careful and well considered judgment. In my view his Honour’s decision on the application before him was correct for the reasons he gave. It follows that the appeal must be dismissed with costs.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate:
Dated: 30 May 2006
The appellant appeared in person. Solicitor for the first respondent: Sparke Helmore Date of Hearing: 23 May 2006 Date of Judgment: 23 May 2006
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