SZEEG v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1073

FEDERAL COURT OF AUSTRALIA

SZEEG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1073

MIGRATION – appeal from Federal Magistrates Court – procedural fairness – s 424A of the Migration Act 1958 (Cth) – whether Refugee Review Tribunal exceeded its jurisdiction in determining that it would be safe for the appellants to relocate in Bangladesh

Migration Act 1958 (Cth) s 424A

Applicant S395/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473 distinguished

SZEEG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 272 OF 2005

TAMBERLIN J
SYDNEY
22 JULY 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 272 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZEEG & ORS APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	22 JULY 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 272 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZEEG & ORS APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	22 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Court Magistrate Smith (“the Federal Magistrate”) delivered on 7 February 2005 dismissing an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 June 2003.  The Tribunal, in turn, affirmed a decision of a delegate of the Minister not to grant protection visas to the appellants, a Bangladeshi man, his wife and their three children.

2. In its findings and reasons, the Tribunal referred to a number of opportunities that the appellant had been given to formulate his claim.  The first of these was the claims received by the Department of Immigration and Multicultural and Indigenous Affairs on 30 April 2002.  The Tribunal found that these claims were not credible and gave a number of reasons for reaching this conclusion.  There is then a reference in the reasons for decision of the Tribunal to the June 2003 claims of the appellant, which were made 20 months after the October 2001 election in Bangladesh.  The Tribunal said that the appellant had changed his party affiliation in the June 2003 claims.  The Tribunal found the change and the appellant’s explanation for this as not credible and gave reasons for its findings.  The appellant claimed that he had been a member and office-holder of a political party in Bangladesh, however, the Tribunal found that the pre-June 2003 version of events was too brief and vague to be convincing about any political involvement and the June 2003 version, including the changes on party affiliation and other matters, was regarded by the Tribunal as unconvincing.

3. The Tribunal, however, did not stop there but proceeded to consider the matter on the basis that, even if it was wrong on the conclusions reached as to credibility and the applicant was a member of a political party, it considered that the appellant would not be at risk of persecution for a Convention reason if he was returned to Bangladesh.  Again, reasons were given by the Tribunal which, on their face, have not been shown by the appellant to be insufficient or clearly wrong.  Reference is made in the Tribunal’s reasoning to the appellant working in Saudi Arabia and other countries in the Arabian Gulf.  The Tribunal reached the factual conclusion that the appellant’s motivation for not wishing to return to Bangladesh was not fear of persecution but rather that he had grown used to a higher standard of living in countries such as Saudi Arabia and Australia.

4. The fact that the appellant did not apply for a protection visa until five years after arriving in Australia is said by the Tribunal to be an example of behaviour inconsistent with that of a person in fear of persecution and desperate to find protection.

5. A further basis on which the Tribunal reached its conclusions was that if the appellant was returned to Bangladesh he could relocate safe in the knowledge that his party was in government, which confers significant benefits in Bangladesh, and that he would, in any event, enjoy the protection of the courts if trouble arose.

6. The appellant did not accept these conclusions as being accurate as a matter of fact.  In the second ground of his Amended Notice of Appeal, the appellant disputes that he would be protected in any other part of Bangladesh, having regard to Bangladesh’s small size and the density of its population and also to the inadequacy of its justice system.  These are questions of fact.  The Tribunal had before it country information which outlined the relevant circumstances in Bangladesh, and after considering this information the Tribunal reached the above conclusions.  Therefore, so far as the second ground of appeal is concerned, I am not persuaded that it carries any force or assists the appellant.

7. In the first ground of appeal, the appellant contended that the Tribunal had denied him procedural fairness by failing to explain to him what its problem was in accepting his claims, which were rejected by the Tribunal entirely on the ground of credibility.  The Amended Notice of Appeal contends that the Tribunal should have said something specific to the appellant that indicated that there was a credibility concern and therefore the hearing before the Tribunal was not a fair hearing.   In my view, it was not necessary for the Tribunal to specifically put anything to the appellant as to his credibility.  The Tribunal member asked questions of the appellant and it was far from a passive hearing.  In my view, in the present case, it was open to the Tribunal, after considering all the evidence, including the country information and the submissions of the appellant, to reach the conclusion that it did as to credibility.

8. On the hearing, the appellant only raised matters concerning questions of fact, which are exclusively within the province of the Tribunal’s jurisdiction and did not raise any question of law.  However, he did present to the court some written submissions filed on 1 July 2005 and asked the court to consider these.

9. The first submission concerns whether there was an error of law by the Tribunal in not giving the appellant details of the country information. As noted above, the country information is of a general nature and is not specific to the applicant and therefore I am not persuaded that there has been any breach of the requirements of s 424A of the Migration Act 1958 (Cth) as contended by the appellant. It was not necessary in the present circumstances for the Tribunal to inform the appellant of the material contained in that generalised country information.

10. The second matter raised in the written submissions concerns an argument that the Tribunal had no power to require the appellant to do anything in Bangladesh if he was returned.  The appellant said that the Tribunal was exceeding its jurisdiction by directing him to live in another part of Bangladesh where it considered he would be safe.  An analogy was sought to be drawn with the case of Applicant S395/2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473. However, there is no similarity between the two cases for relevant purposes. In the present case, no direction was given by the Tribunal. Instead, the Tribunal determined that it would be safe for the appellant to return to Bangladesh in view of the prevailing circumstances in Bangladesh and that it would be possible for the appellant to relocate. This is a well-accepted basis on which to consider a claim for a protection visa. To adopt a view that, where a Tribunal reaches the conclusion that it is possible for the appellant to relocate, that there is an error of law because the Tribunal has given a direction, would be to deny any force at all to a decision reached on the basis of relocation. This basis has been well established in the course of many decisions.

11. It is further submitted by the appellant that the issue of relocation was not raised by the Tribunal and therefore there had been a breach of natural justice.  However, counsel for the respondent has pointed to an exchange, in the record of the hearing before the Tribunal, in which the Tribunal suggested that the appellant could go to a different part of the country where he was not known.  The appellant responded to the effect that he wanted to return to his home district because his home was there and his house was there and he didn't have the opportunity to go somewhere else and he asked the question where he could go if returned.  In these circumstances, it is evident that the issue of relocation was raised and was the subject of discussion in the Tribunal.  Therefore, I do not accept the appellant’s argument that this issue was not raised and, consequently, there was no breach of procedural fairness in the present case.

12. The other matters raised or mentioned by the appellant on this appeal were questions of fact and degree and do not raise any question of principle.

13. I have considered carefully the reasoning of the Tribunal and the reasons for judgment of the Magistrate and I am not persuaded that there is any error of principle that would warrant allowance of the present appeal.  Accordingly I dismiss the appeal with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             9 August 2005

The Appellants appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	J A C Potts
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	22 July 2005
Date of Judgment:	22 July 2005