SZGMD v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 1061

FEDERAL COURT OF AUSTRALIA

SZGMD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1061

SZGMD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 687 OF 2006

JACOBSON J
9 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 687 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGMD
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	9 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Mr Laba-Sarkis be granted leave to appear as a McKenzie friend for the Appellant.

2.The appeal be dismissed.

3.The Appellant pay the First Respondent’s costs of the application.

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 687 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGMD
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE:	9 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. On 20 March 2006 Federal Magistrate Driver dismissed an application for review of a decision of the Refugee Review Tribunal refusing to grant the appellant a protection visa.  The appellant filed an unparticularised notice of appeal alleging, in very general terms, three errors in the decision of the Federal Magistrate.  The errors which are alleged in the notice are breach of the rules of natural justice, denial of procedural fairness and improper exercise of power.  None of these broad allegations in the notice of appeal disclose any ground of appeal from the Federal Magistrate.

2. The appellant appeared this morning in person.  He was assisted by a Bengali interpreter, although he addressed me in what seemed to be fluent English.  At the start of the hearing a Mr Laba-Sarkis sought leave to appear on the appellant’s behalf.  Mr Laba-Sarkis told me that he is a community volunteer, he is not a solicitor or a barrister but that he was approached on Monday by the appellant to speak on his behalf because the appellant can no longer afford legal representation.  I did not consider that Mr Laba-Sarkis could give me any legal assistance, as nothing that he put to me in support of his application to appear suggested any real familiarity with or understanding of the provisions of the Migration Act 1958 (Cth).

3. Nevertheless, I took the view that Mr Laba-Sarkis should be appointed as a McKenzie Friend of the appellant and he sat with the appellant and assisted the appellant in the submissions that the appellant put to me this morning. 

4. The proceedings have a long history. In 2002 the Refugee Review Tribunal handed down a decision which was subsequently set aside by Federal Magistrate Barnes; see SZAML v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FMCA 267. However, in its subsequent decision, handed down on 12 May 2005, which is the subject of the present appeal, the Refugee Review Tribunal again affirmed the decision of the delegate refusing to grant the appellant a protection visa.

   BACKGROUND

5. The appellant is a citizen of Bangladesh.  He claimed to have a well-founded fear of persecution on political grounds or as a member of a particular social group.  Without being exhaustive, there were three essential bases put to the Refugee Review Tribunal which I will summarise below.  First, the appellant claimed to have taken a pledge of allegiance to the Islami Chhatra Shibir (ICS), which is a student wing of the Islamist Jamat-e Islami Party.   He claimed that the ICS would seek to take revenge upon him if he returned to Bangladesh because he has abandoned his commitment to that organisation. 

6. Second, he claims that politically motivated but false criminal charges were brought against him and that he had been convicted in absentia.  He claimed that this would result in punishment at the hands of the State and its authorities if he returns to Bangladesh.  Third, the appellant claimed to have adopted a Western lifestyle, including a relationship with a Christian woman.  The appellant is of the Muslim faith.  He said that this would result in persecutory treatment in Bangladesh if he were to return. 

7. The Refugee Review Tribunal considered in some detail the claims which were made and it gave detailed reasons for rejecting them.  The Refugee Review Tribunal was not satisfied that the appellant had made a pledge to the ICS.  Further, it was not satisfied that the ICS would have any motivation for pursuing the appellant should he return to Bangladesh.  The Refugee Review Tribunal made an objective consideration of the claim that false, criminal charges had been brought.  It considered the evidence of the charges, the way in which the appellant had sought to establish them in the Refugee Review Tribunal and the evidence of his conduct in the period after the charges were said to have been brought. 

8. The Refugee Review Tribunal was not satisfied that the appellant had been subject to false charges or that he had been convicted of them.  The Refugee Review Tribunal accepted that the appellant enjoys a Western lifestyle and that he had a relationship with his girlfriend.  However, the Refugee Review Tribunal was not satisfied that he would suffer serious harm as a result of this should he return with his girlfriend to Bangladesh.  Nor was it satisfied that his Western lifestyle was so different from that of other Bangladeshis who had lived overseas and that it would trigger adverse attention from the Bangladeshi population in general or from groups such as the ICS.  Further, the Refugee Review Tribunal found that the ICS was active at a local level and that it would be reasonable for the appellant to relocate within Bangladesh rather than to return to his home town.

9. Three grounds of jurisdictional error were alleged before Federal Magistrate Driver.  These were:  bad faith, wrong approach to the definition of refugee, and denial of procedural fairness.  The procedural fairness ground appears to have related to the appellant’s request for the Refugee Review Tribunal to reconvene and take evidence from a new witness.  Federal Magistrate Driver found that the new witness would not have been able to give evidence which would throw light on the appellant’s claim that the court documents relating to the criminal charges were authentic.  He found no error in the Refugee Review Tribunal’s failure to reconvene or to undertake enquiries as to the authenticity of the documents. 

10. Federal Magistrate Driver found that the claim of bad faith was baseless and that there was no jurisdictional error in the decision of the Refugee Review Tribunal.   

    DISCUSSION

11. The appellant put six points to me this morning which he said had been missed or overlooked by the Refugee Review Tribunal.  First, he told me that he had suffered serious injury in Bangladesh; second, he said that he had been sentenced to ten years' imprisonment in Bangladesh; third, he said that he had a girlfriend and that the Refugee Review Tribunal did not take oral evidence from her in support of his claim.  Fourth, he said that he was a supporter of Jamat-e Islami and that by adopting a western culture he would be killed by fanatics if he were to return to Bangladesh.

12. Fifth, he said that there was another witness and that the Refugee Review Tribunal had refused to call the witness to give evidence.  Sixth, he said that he had independent country information which was not accepted by the Refugee Review Tribunal. 

13. None of the matters to which the appellant has drawn attention gives rise to any claim of jurisdictional error on the part of the Refugee Review Tribunal or any error by the Federal Magistrate.  The submission that the Refugee Review Tribunal failed to take oral evidence from the appellant’s girlfriend is literally correct, but the point has no substance.  This is because the Refugee Review Tribunal accepted the written statement of the witness about the existence of the relationship. 

14. As to the claim that the Refugee Review Tribunal failed to take evidence from the other witness, relied upon by the appellant, Federal Magistrate Driver dealt with this fully at paragraphs 6 and 7 of his reasons for judgment.  The other points which the appellant made this morning merely seek to canvas the factual findings made by the Refugee Review Tribunal and disclose no appellable error.  

15. It follows, in my view, that the appeal must be dismissed with costs and I will order accordingly. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:        9 August 2006

The Appellant appeared in person
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 August 2006
Date of Judgment:	9 August 2006