SZFTU v Minister for Immigration and Citizenship

[2007] FCA 1204

FEDERAL COURT OF AUSTRALIA

SZFTU v Minister for Immigration and Citizenship [2007] FCA 1204

MIGRATION LAW — appeal from decision of Federal Magistrate — whether any appealable error — whether Refugee Review Tribunal complied with its obligations under s 425 of the Migration Act 1958 (Cth) — whether Tribunal under duty to conduct independent enquiries — whether grounds of appeal involve merits review

Migration Act 1958 (Cth) s 425

Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 referred to
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited
Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 cited
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 cited
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 cited
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 cited
WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220 cited

SZFTU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 757 OF 2007

WEINBERG J
9 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 757 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFTU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WEINBERG  J
DATE OF ORDER:	9 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs fixed in the sum of $2,500.

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 757 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFTU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WEINBERG  J
DATE:	9 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Scarlett FM who, on 12 April 2007, dismissed an application for review of an earlier decision of the Refugee Review Tribunal (“the RRT”).  The appellant was not represented before me, though he was represented before the RRT and the Federal Magistrate.

2. The notice of appeal contains nine separate grounds of appeal.  As will become apparent, a number of those grounds raise matters that were not the subject of any consideration on the part of the Federal Magistrate. 

3. It is necessary to set out, albeit briefly, the background facts.  The appellant is a Bangladeshi national.  He arrived in Australia in April 2004 and applied for a protection visa shortly thereafter.  On 1 July 2004, a delegate of the respondent Minister refused that application.  On 12 July 2004 the appellant applied to the RRT for review of that decision.  On 1 February 2005 the decision was affirmed.  However, on 17 July 2006, the Federal Magistrates Court set aside that decision and remitted the matter to the RRT to be reconsidered. 

4. The RRT held a further hearing on 18 September 2006.  On 30 October 2006 it again affirmed the decision of the delegate, thereby denying the appellant a protection visa.  It was that decision that was subsequently challenged before Scarlett FM.

5. The appellant’s claims, as presented to the RRT, may be summarised as follows:

   ·he was a Buddhist monk, and held a senior position at a monastery in Dhaka;

   ·in about April 2002 a particular Lord Abbot who was well known to him was killed by suspected Muslim extremists;

   ·he participated in a march protesting against the killing.  However, the protesters were threatened by the police, and as a result the protest came to an end;

   ·in June 2002 he was attacked by a group of individuals who identified themselves as Muslims.  Subsequently he received a number of anonymous death threats;

   ·in October 2003 he gave a speech in Japan in which he criticised the Bangladeshi government’s treatment of Buddhists.  On his return to Bangladesh, a well known bandit made a series of calls demanding payment of a large sum of money.  The appellant was told that if that money was not paid, he would be killed; and

   ·fearing for his life, he left Bangladesh.

6. The RRT gave detailed reasons for rejecting the appellant’s application for a protection visa.  It put forward a number of reasons for doubting his credibility.  It accepted that he was a Buddhist monk, and that he had some association with the monastery in Dhaka which he had named.  It also accepted that he had attended the conference in Japan to which he referred.  However, it otherwise rejected the substance of his claims. 

7. In particular, the RRT did not accept that:

   ·he came from the Chittagong Hill Tracts;

   ·he occupied the position that he asserted he had held at the monastery;

   ·he had been threatened by police in relation to his role in a protest;

   ·he had been attacked by Muslim extremists;

   ·he had received threatening phone calls;

   ·he had been threatened by the bandit that he had named;

   ·there had been any threats to the monastery since his departure;

   ·Buddhists were not free to carry out their ceremonies in Bangladesh; and

   ·members of the Buddhist community in and around Dhaka were assaulted, or persecuted, and their temples burned.

8. The RRT therefore did not accept that, if the appellant were to return to Bangladesh, there was a real chance that he would be persecuted by reason of his religion, membership of a particular social group, actual or imputed political opinion, or for any or all of those reasons cumulatively.

9. In his application for judicial review, the appellant first asserted jurisdictional error in very broad terms.  However, he later filed an amended application which was confined to an attack upon one aspect of the RRT’s decision, namely its failure to contact people at his monastery in order to confirm his claim that he had held a particular position.  As previously indicated, before Scarlett FM, the appellant was represented by counsel who presented an argument strictly in accordance with the amended application.  His Honour rejected that argument, pointing to authority which denied the existence of any general duty on the part of the RRT to use its powers of enquiry, and noting that, if there were exceptions to that rule, the circumstances of the present case were “neither exceptional nor rare”. 

10. Turning now to the notice of appeal before this Court, it should be noted that a number of the grounds contained therein speak of a failure on the part of the Federal Magistrate to make particular “findings”.  For example, ground 2 contends that his Honour should have found that by reason of the clearly distinguishable saffron robe that the appellant was required to wear, he would be persecuted for his religious belief.  In the same vein, ground 3 contends that his Honour should have found that the appellant would be discriminated against, and persecuted, in Bangladesh because of the appellant’s prominence within the Buddhist community. 

11. One answer to each of these contentions is that the Federal Magistrate was not asked to consider any of these issues.  The appellant was represented by competent counsel who decided to attack only one aspect of the RRT’s decision.  As a general principle, this Court, which is now exercising appellate jurisdiction, should not be asked to deal with a range of additional issues as if it were hearing the matter at first instance.

12. Nonetheless, the Minister has addressed each of the grounds of appeal, and I shall proceed upon the assumption that they are alive, before me, though they were not raised before the Federal Magistrate.  Strictly speaking of course the appellant requires leave to rely upon such grounds. 

13. Ground 2 appears to contend that the RRT failed to consider the appellant’s fear of persecution as a member of the “particular social group” of Buddhist monks, in particular arising from the distinctive habit which he wore. 

14. The Minister submits that the RRT accepted that the appellant was a Buddhist monk.  He further submits that, at least by implication, the RRT assumed that as a Buddhist monk, he was a member of a particular social group.  The RRT did not, however, accept that he had a well-founded fear of persecution as a result of his membership of that group.  The Minister submits that no consideration of whether or not he wore a saffron robe could have influenced the outcome of the RRT’s decision. 

15. Ground 3 complains that the RRT failed to find that the appellant, by reason of the senior position he held in the monastery, would suffer discrimination and persecution. 

16. The Minister submits that this ground invites merits review.  There is, however, an even more fundamental difficulty.  The RRT rejected the appellant’s claim to have occupied the position that he claimed he held in the monastery.  That was a finding based upon the appellant’s credibility, or lack thereof.  It was never open to judicial review.

17. Ground 4 asserts that the RRT failed to characterise the appellant as a member of a particular social group comprising religious activists “who are involved in the social and welfare activities of their community”. 

18. The Minister submits that there was no material before the RRT which clearly raised any such claim, or how (if at all) membership of that group would distinguish the appellant from Buddhist monks generally.  Indeed, there are only two brief, passing, references in the material before the RRT to the social welfare activities of the appellant, and of Buddhist monks generally.  Moreover, the RRT’s broader findings regarding the freedom of Buddhists to operate in and around Dhaka (based upon country information) must have entailed rejection of the particular claim now articulated, belatedly and for the first time, on the appellant’s behalf.

19. Ground 5 asserts that the RRT failed to comply with its obligations under s 425 of the Migration Act 1958 (Cth) by not giving the appellant an adequate opportunity to respond to independent evidence in the RRT’s possession which suggested that it was possible for Buddhists to engage in religious activities in Bangladesh without being subjected to violence, or threats thereof.

20. The Minister submits that this issue was fully canvassed before the RRT. Indeed, the RRT heard from a witness called on behalf of the appellant to address this very question. Section 425 requires that an applicant be given an opportunity to give evidence and make arguments about “the issues arising in relation to the decision under review”. See the discussion of s 425 in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at [33]–[35] and [45]–[49]. The section does not, however, require an opportunity to be given to respond to every item of particular evidence. That aspect of procedural fairness is, rather, dealt with by s 424A: see WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220 at [57] per French J.

21. Ground 6 contends that the RRT ought to have accepted the appellant as a credible witness, particularly since his evidence was supported by that of a particular witness.  That witness had confirmed the appellant’s claims of general mistreatment of Buddhists in Bangladesh. 

22. The Minister submits that this ground simply invites merits review. 

23. Ground 7 asserts that the RRT failed to consider all the materials readily available and/or accessible.  The ground does not condescend to particulars. 

24. The Minister submits that failure to take account of particular evidence, as opposed to a distinct claim would, even if established, not amount to an error going to jurisdiction.  See generally Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [46]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [74]; and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79]. Insofar as the ground seeks to agitate the same matters that were raised before Scarlett FM, the Minister submits that the RRT does not have a legally enforceable duty to make enquiries: see WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [24]–[25] citing Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [86].

25. Grounds 8, 9 and 10 challenge findings of fact made by the RRT. 

26. The Minister submits that these all invite merits review.  Accordingly, had they been raised before Scarlett FM, his Honour would have rejected them.  This Court, on appeal, should do no less. 

27. Before me, the appellant appeared unrepresented.  His submissions did not take any of the grounds of appeal, as set out in the notice of appeal, any further.  In substance, he simply contended that the RRT ought to have accepted his evidence, and that the Federal Magistrate should have quashed its decision because it had wrongly disbelieved him. 

28. In my view, the Minister’s submissions should be accepted.  Grounds 6, 8, 9 and 10 simply invite merits review.  There is no substance to grounds 2, 3, 4 and 5.  Ground 7 was dealt with correctly, and in accordance with well established authority, by Scarlett FM. 

29. There being no appealable error, the appeal should be dismissed.  The appellant must pay the first respondent’s costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated:        9 August 2007

The Appellant appeared in person
Counsel for the Respondent:	Mr G Kennett
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	9 August 2007
Date of Judgment:	9 August 2007