SZDFO v Minister for Immigration

[2004] FCA 1192

FEDERAL COURT OF AUSTRALIA

SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192

SZDFO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1012 OF 2004

ALLSOP J
9 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1012 of 2004

BETWEEN:	SZDFO APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	9 SEPTEMBER 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 1012 of 2004

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

JUDGE:	ALLSOP J
DATE:	9 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by a Federal Magistrate in which the learned Federal Magistrate dismissed an application made by the appellant for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 July 1998. 

2. The Chief Justice has given a direction that the matter be heard by one judge rather than three in the exercise of the appellate jurisdiction of this Court. 

3. For the benefit of the appellant, it is appropriate to first identify the different roles and functions of the Court and the Federal Magistrates Court as compared to the role of the Tribunal. 

4. The Tribunal in making its decision in 1998 to affirm the decision of a delegate of the Minister not to grant a protection visa was undertaking and executing the executive power of the Commonwealth pursuant to the Migration Act 1958 (Cth). The Tribunal standing in the shoes of the delegate of the Minister re-examined the factual material and dealt with the claims of the then applicant on the merits afresh.

5. The task of the Tribunal, as was the task of the Minister, was to assess and consider all the claims of the applicant including the issue as to whether the applicant was owed protection obligations by this country under the Refugee Convention as amended by the Protocol. It is important to understand, however, that s 65 of the Migration Act  requires that the Tribunal grant a visa only if it is satisfied of certain things.

6. Relevantly here, that required, for the Tribunal to grant a protection visa, that it be satisfied that Australia owed protection obligations under the Convention to the appellant.  If the Tribunal was not satisfied that Australia owed those protection obligations, it was obliged by the statute to refuse the grant of a visa.  Thus, the hearing before the Tribunal was the place where the claims of the appellant were dealt with on their merits. 

7. The legislative structure of the Migration Act together with the Judiciary Act provide for limited grounds of review of the decision of the Tribunal by the Court.  The hearing before the Court, in this case at first instance before the Federal Magistrates Court, is not a review of all the facts for a second time – the application to the Magistrates Court from the Tribunal is not a rehearing of the claims on the merits.

8. The structure of the legislation, being the Migration Act and in particular s 474 of that Act, as interpreted by the High Court in Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476 only entitles the Federal Magistrates Court or this Court to interfere with what the Tribunal has done if there is found to be what is referred to as jurisdictional error.

9. What that means is as follows:  the error to be demonstrated as committed by the Tribunal must be one that reveals a failure to carry out its statutory task.  That is, it must be shown that the statutory authority and duties placed upon the Tribunal have not been complied with.  Examples of that kind of error are as follows: that the Tribunal has misunderstood the correct question that it should be dealing with; that the Tribunal has failed to deal with the claims as they are put by the applicant; that the Tribunal has failed to afford the applicant procedural fairness in the way it dealt with the matter; that the Tribunal failed to take into account a consideration the law made compulsory to consider; and that the Tribunal took into account a consideration that the law made compulsory not to consider.

10. These are the main examples.  Conformably with High Court authority, factual error is rarely reflective of jurisdictional error.  There may be circumstances where findings of fact are such as to demonstrate that the Tribunal has misunderstood its task.  There may be circumstances where the findings of fact are so irrational or capricious as to display a failure of the Tribunal to attend conscientiously and appropriately to its statutory obligations.

11. Within the kinds of boundaries that I have just identified the findings of fact and the assessment of evidence is a matter for the Tribunal in the exercise of the executive power.  The Parliament has chosen not to permit the courts to review factual material beyond the proper confines of identifying jurisdictional error.  It is against that legal background that the appellant needs to understand the reasons for the disposition of his appeal.

12. It should be plain, I hope, from what I have said that it is simply outside my statutory authority and judicial authority to make up my own mind as to whether Australia owes the appellant protection obligations.  The only task I am permitted today is to seek to identify whether the learned Federal Magistrate committed any reviewable error in his approach to the dismissal of the application made in respect of the Tribunal's decision.

13. The notice of appeal from the Federal Magistrate's decision identified the following grounds:

    1.The single judge of the Federal Magistrate's Court in his Honor's Judgement delivered on 31/6/04 failed to find error of law, Jurisdictional error, procedural error and relif under Section 39B of the Judiciary Act 1903.

    2.I will provide more grounds later.

    [errors in original]

14. The appellant was given the opportunity at directions hearings to file submissions.  No submissions were received until today.  The submissions received yesterday by the Court do not identify or begin to identify any possible jurisdictional error.  They deal with the danger which the appellant says he faces should he go back to Bangladesh, being supported by documents from the Bangladesh Association of Australia and Bangladesh New South Wales Inc, both dated August 2004.  In oral submissions before me today the appellant repeated his views as to his safety should he be required to return to Bangladesh.

15. The Federal Magistrate had before him an application under s 39B of the Judiciary Act which complained of the Tribunal's decision to which I have referred.  The grounds of the application were in the following terms:

    1.I am not satisfied with the RRT decision.

    2.The Migration Act 1958 was not observed properly.

    3.RRT deprived me of Natural Justice.

    4.There are some significant errors of law which the Tribunal made.  I will explain them in my submission.

    5.My judicial review application is late.  I refer to Plaintiff 157/2002 v Commonwealth of Australia.

    6.I will provide more details later on.

16. The learned Federal Magistrate dealt with the matter in the following way.  First, he recited briefly the history of the appellant. He noted that there had been an application before the Federal Court in August 1998 seeking to set aside the decision of the Tribunal.  The application came before a Judge of this Court, Hely J in November 1998.  There was no appearance and the application was dismissed. 

17. No application was made under O 35 r 7 of the Federal Court Rules seeking to set aside that order.  Apparently shortly prior to 6 April 2004, the appellant was apprehended by Immigration Department officials and placed in Villawood Detention Centre.  This appears to have promoted the current application.

18. Notwithstanding the text of the application under s 39B of the Judiciary Act, no further details were provided of the application to the learned Federal Magistrate.  However, the applicant put certain submissions to the learned Federal Magistrate set out in [5] to [7] of the Federal Magistrate's reasons which are as follows:

    5.No details have been provided.  No particulars have been provided and when the applicant came before me today he told me that everything that had been done on his behalf had been mismanaged.  That he had seen all the documents that had gone in on his behalf and they were all completely wrong.  That he had difficulties with his brain and as a result was unable to instruct properly his lawyers and that this was why his application was late.

    6.He also told me that his brother had been killed and that his home had been destroyed.  He told me he could not make his lawyers understand him and that was why misleading things had been said on his behalf.  He felt that if he went back to Bangladesh he would be killed.  The applicant told me that he had tried twice to go back to Bangladesh but each time his family had told him that he would be killed if he returned.

    7.The applicant claimed to have a well-founded fear of persecution for the convention reason of political opinion.  He had stated that he was a founder member of the Freedom Party and that this had resulted in the persecution of both himself and his family, in particular his brother, who had been killed.  He gave evidence to the Tribunal about the dates upon which he had joined that party and the work which he had done for it.  He claimed that his house had been looted and that he and members of his family had been beaten up by the Awami League.  He claimed that he had been chased into India by the Awami League.

19. The Federal Magistrate noted that in the light of procedural history it would have been open for him to dismiss the application as an abuse of process.  However, the magistrate thought it best to deal with the case on its merits in order that the appellant should feel that he had a full hearing.  I note that in the grounds of the original application there was an assertion of a denial of natural justice.  There was no particular evidentiary foundation for any such denial before the learned Federal Magistrate.

20. In [8] to [10] the Federal Magistrate deals with the Tribunal's decision and concludes in [11] that he was unable to identify any jurisdictional error.  I have examined the reasons of the Tribunal and can only agree with the Federal Magistrate’s conclusion in this regard.

21. The appellant who is a citizen of Bangladesh arrived in Australia on 7 September 1996.  He lodged a protection visa application in May 1997.  The appellant's claims were set out in written submissions to the Department, written submissions to the Tribunal and oral evidence given to the Tribunal on 1 July 1998.  These claims are set out on pages 4 to 8 of the Tribunal's decision. 

22. The essence of the claim for protection was that the appellant was a founding member and an important worker of the Bangladesh Freedom Party, and that by reason of that political association and activity he feared for his life from persons associated with other political parties and their movements in Bangladesh and, in particular, the Awami League.

23. After the hearing before the Tribunal, the Tribunal sent a letter to the appellant raising certain concerns it had with his evidence and requesting his comments.  This included attachments being some country information and a communication from the Department of Foreign Affairs and Trade.  The Tribunal did not receive a response. 

24. The Tribunal then examined independent country information about Bangladesh and about the Freedom Party.  In its findings and reasons, the Tribunal directed itself to the dangers in assessing the evidence of non-English speaking refugee applicants.  It stated that it was aware that it must be sensitive to the difficulties faced by asylum seekers and the difficulties such asylum seekers may have in expressing and raising all their claims in writing or orally. 

25. Notwithstanding these directions, the Tribunal indicated that it had difficulty in accepting the evidence of the appellant.  In coming to these conclusions about the appellant's credit, the Tribunal accepted that there may have been some difficulties in interpretation.  The Tribunal’s conclusions on the credit of the appellant were recited by the learned Federal Magistrate in [8] of his Honour's reasons in the following terms:

    “The Tribunal has major concerns abut the credibility of the applicant which leads it to doubt the truth of his claims for the reasons below.  Even if the Tribunal was to put little weight upon the serious inconsistencies between previous statements contained in his statutory declaration of 26 May 1997 and his evidence at the hearing the applicant was most unconvincing in giving evidence at the hearing.  As a general observation, he was hesitant, vague and general in his responses to the Tribunal’s questions abut facts in issue.  His evidence lacked detail and specificity and at times conflicted with the independent evidence…

    The Tribunal does not accept that the Awami League killed the applicant’s brother because of his involvement in the Freedom Party.  The applicant’s claims at hearing that his brother became an active member and office holder in the party in 1984/5 and that in June 1987 his brother was killed for involvement in the party seriously conflicts with the independent evidence which indicates that the Freedom Party itself was not created until August 1987.”

26. Other paragraphs of the Tribunal's reasons were relevant to the difficulty it had in accepting the evidence of the appellant.  In particular, I refer to the first full paragraph on page 13 of the Tribunal's reasons which was in the following terms.

    While the applicant may have been a supporter of the Freedom Party, the Tribunal does not accept that the applicant was a member or an officeholder in the party, that he faced serious harm of any kind for reasons of his political belief, that he went to India in order to flee from the Awami League in 1987, 1988 or 1996 or that the Awami League pursued him to India.  The applicant was unable to articulate the platform of the party or why he was attracted to joining it.  He claims that he became involved in the Party in 1986.  Yet, the independent evidence indicates that the party itself was not created until August 1987.  He claims to have worked for the Freedom Party in a general election held in 1989, when he says the BNP was in power.  The applicant had no explanation when the Tribunal put to him that General Ershad was in fact in power in 1989 and that no general election was held in that year:  AS Banks et al (ed), Political Handbook of the World:  1995 CSA Publications, New York, 1995, p 74; Research Directorate of the Documentation, Information and Research Branch of the Immigration and Refugee Board (DIRB), Ottawa, Canada, Question and Answer Series, Bangladesh – Political Developments and Political Violence, December 1996, p 1; Europa Publications, Far East and Australasia, 1997, 119-120.  The applicant’s description of the Freedom Party’s activities and his own activities within the Party were very general.  The answers he gave to basic questions such as the year that the party was founded (1980) were incorrect, as the independent evidence indicates that the party was not formed until August 1987.

27. These findings of the Tribunal would probably have been sufficient to dispose of the case.  They do not, on their face, appear to have been reached in any way demonstrating any unfairness whether procedural or other and they do not, of themselves, appear in any way to be irrational or capricious.

28. However, the Tribunal then went on to deal with the independent country information.  The Tribunal dealt with this country information in the following way on pages 13 and 14 of its decision:

    In any event, the independent evidence from DFAT, which the Tribunal accepts, suggests that the Freedom Party is “not a credible political force at present” and that “while there are few parties further removed from the governing Awami League’s principles and policies, the Freedom Party’s electoral insignificance means that it attracts little attention from the government”.  The documented arrests and the adverse interest of the authorities appear to be focussed on those who were involved in the 1975 coup and those involved in planning to overthrow the government through the use of violence, not on low profile members of the party.

    Certainly, the independent evidence before the Tribunal also indicates that human rights conditions in Bangladesh fall short of internationally accepted standards.  However, generalised failure to adhere to basic standards of human rights would not entitle a person to refugee status on that basis alone:  see, for instance, Yan Xu & Anor v MIMA & Anor (unreported, Federal Court of Australia, Olney J, 18 April 1997, p 16).  General evidence of human rights abuses in a particular country does not support a claim to refugee status unless an individual applicant can satisfy the Tribunal that there is a real chance that he or she would be subjected, for a Convention reason, to harm amounting to persecution.

29. No basis has been put forward for concluding or suspecting that the approach of the Tribunal displayed the kind of jurisdictional error to which I earlier referred.  The fact that the appellant strongly disagrees with the decision of the Tribunal does not demonstrate and is not sufficient to demonstrate the kind of error to which I have referred.

30. For these reasons, in my opinion, the appeal should be dismissed. 

31. The orders of the Court are:

    1.  The appeal be dismissed.

    2.  The appellant pay the respondent's costs.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            16 September 2004

The Appellant appeared in person with the assistance of a Bengali interpreter
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 September 2004
Date of Judgment:	9 September 2004