SZHPN v Minister for Immigration and Citizenship

[2007] FCA 441

FEDERAL COURT OF AUSTRALIA

SZHPN v Minister for Immigration and Citizenship (2007) FCA 441

SZHPN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2105 OF 2006

GRAHAM J
7 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2105 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHPN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	7 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be altered to read ‘Minister for Immigration and Citizenship’.

2.Refugee Review Tribunal be added as a second respondent.

3.The appeal be dismissed.

4.The appellant pay the respondent Minister’s costs fixed in the agreed amount of $2200.

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 2105 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHPN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	7 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of Bangladesh. He was born on 2 January 1963.  On 15 July 1997 he was issued with a Bangladeshi passport in Dhaka.  It would appear that he travelled extensively on that passport to other countries including India, Thailand, Hong Kong, China, Nepal, Singapore and Indonesia.  The travel to which I have referred would appear to have taken place in the period 1998 to 2000. 

2. On 9 June 2002 he secured an Australian Visitor’s Visa in Dhaka.  On 8 July 2002 he arrived in Australia.  On 5 August 2002 he applied for a Protection (Class XA) Visa.  On 26 November 2002 his Application was refused by a Delegate of the Minister.  On 19 December 2002 he sought review of the Minister’s Delegate’s decision in the Refugee Review Tribunal (‘the Tribunal’).  He received an invitation to a hearing before the Tribunal dated 20 June 2003.  He attended a hearing of the Tribunal on 20 August 2003.  On 20 August 2003 a decision was reached by the Tribunal to affirm the decision of the Minister’s Delegate.  That decision was handed down on 16 December 2003.

3. In July 2005 a consent order was made in the Federal Magistrates Court of Australia setting aside the Tribunal’s decision of 20 August 2003.  A further hearing took place before the Tribunal constituted by a different Member on 9 September 2005, an invitation having been extended to the appellant to come to the hearing to give oral evidence and present arguments in support of his claims by letter dated 2 August 2005.  The appellant attended that hearing.

4. On 13 September 2005 a letter was sent by the Tribunal to the appellant giving him particulars of information that the Tribunal considered would be the reason or a part of the reason for affirming the Minister’s Delegate’s decision and inviting the appellant to comment on it as required by s 424A of the Migration Act 1958 (Cth) (‘the Act’). By letter dated 4 October 2005 the appellant responded to the Tribunal’s letter providing such particulars to him.

5. On 10 October 2005 a decision was made by the Tribunal as differently constituted affirming the Minister’s Delegate’s decision.  That decision was handed down on 27 October 2005.  On 17 November 2005 the appellant applied to the Federal Magistrates Court of Australia for constitutional writ relief in respect of the Tribunal decision of 10 October 2005.  That Application was considered by Federal Magistrate Riethmuller on 5 October 2006 and decided by his Honour adversely to the appellant on that day. 

6. By a Notice of Appeal filed in this Court on 26 October 2006 the appellant appealed from the judgment of Federal Magistrate Riethmuller of 5 October 2006.  The learned Federal Magistrate had ordered that the Application for Review filed on 17 November 2006 be dismissed and that the appellant pay the respondent’s costs fixed in the sum of $5000.

7. The Notice of Appeal when filed was accompanied by an Affidavit of the appellant also filed 26 October 2006.  That Affidavit has been included in the appeal papers.  Paragraph 3 of the Affidavit said:

   ‘I did not get proper opportunity to argue this matter because I was not very well & also I did not have enough time to provide the relevant documents.’

8. The grounds of appeal specified in the Notice of Appeal were expressed as follows:

   ‘1.The federal magistrate court has not handed down the decision that’s why I could not provide the specify the grounds of appeal.  I don’t understand English properly.

   2.  As far as I concerned The honourable court failed to determine whether there was any Jurisdictional error in the purported decision of the tribunal.

   3.Because there is time limit to lodge the application I submit the application on time.  I will provide more details later when I received the decision.’

9. It would appear that the reasons for judgment of the Federal Magistrate were ‘revised from transcript’.  Presumably those reasons were not made available to the appellant until some time after the date of the Federal Magistrates Court decision on 5 October 2006. 

10. The appellant appeared to give evidence and present arguments before the Tribunal as originally constituted on 20 August 2003.  He appeared before the Tribunal as differently constituted on 9 September 2005 and he appeared before Federal Magistrate Riethmuller on 5 October 2006.  He has appeared again in person before me and has had the assistance of an interpreter interpreting from the English language into Bengali and vice versa.  In his original application for a Protection Visa the appellant indicated that he spoke, read, and wrote Bengali and English. 

11. On the hearing of the appellant’s appeal I invited him to read to the Court in English, if he was able to do so, the grounds of appeal contained in his Notice of Appeal of 26 October 2006 and to indicate what, if anything, further he wished to say in support of those grounds of appeal in English.  The appellant was able to – and I should add with some difficulty – read the grounds of appeal.  When asked what he wished to say in respect of each of the grounds he was assisted by the interpreter. 

12. In relation to ground 1 he indicated that he had nothing to add.  In relation to ground 2 the thrust of his submission was ‘I have a problem in my country’, ‘The Tribunal didn’t consider my facts, what going on there (in Bangladesh)’.  He said questions were asked of him at the Tribunal hearing that he was unable to answer.  When asked what those questions were he was unable to recall them.  In relation to ground 3 he indicated that he had nothing to say.  When asked whether there were any other errors he wished to draw the Court’s attention to he indicated quite reasonably, ‘I am not a man of law, it is hard for me to tell you of legal error.’  

13. In relation to the appeal generally the appellant invited the Court to consider his matter to give him fair justice so that he may stay in Australia.

14. It will be apparent that the appellant has been unable to direct the Court’s attention to any error on the part of the Tribunal.  Notwithstanding the provision to him of a blue covered bound book containing the appeal papers, the appellant came to Court without those papers, indicating that he had left them at home.  The original copy of the appeal papers was made available to the appellant to use during the course of the hearing of his appeal. 

15. The appellant indicated that he was of the ethnic group identified as Bengali and that his religion was moderate Islam.  His Application for a Protection Visa directed attention to a three page statement which had been prepared in typed script and which was dated 5 August 2002.  It contained 11 numbered paragraphs.  The statement revealed that the appellant was closely connected with the family of a Mr Barkat Ullah Khan, an eminent scholar who was considered to be ‘the prophet of Islam’.  The appellant indicated that this person considered him to be a son.  He says that he frequently visited him and learned his philosophy and the teachings of moderate Islam.  He said that gradually he became one of his disciples and ‘tried to uphold his thoughts and ideas to general masses’.  In his statement he indicated that in 1992 the house of Barkat Ullah Khan had been attacked by certain named persons along with 50,000 fanatic Muslims who ‘destroyed works and a double story building within a moment’. 

16. The appellant said that he was declared unwanted in the region.  He says that in 1996 when the Awami League came to power he gave a huge amount of money to a senior leader of the Awami League so that nobody disturbed him.  He referred to a change of the political powers in October 2001 when the Bangladesh Nationalist Party formed a coalition government along with a fundamentalist Islamic party, Jamat-e-Islami.  The appellant indicated that ‘Since this government came to power I was attacked for a number of times by activists of …’.  Later he said, ‘As such they wished to kill me.  I was scared too much and finally I decided to secure my life’.

17. The Tribunal’s letter to the appellant of 13 September 2005 sent in accordance with s 424A of the Act provided information to the appellant upon which his comment was invited. Attention was drawn to matters that he had stated in his original Application, additional to what I have referred to above; to statements made at the hearing before the Tribunal as originally constituted on 20 August 2003 and to statements made by the appellant at the Tribunal hearing which took place on 9 September 2005. In the course of the letter the Tribunal said, amongst other things:

    ‘This information is relevant to your credibility – that is, to whether you can be believed – because it suggests that you are prepared not to tell the truth if you believe that it will be to your advantage.’

    And later:

    ‘These inconsistencies in your evidence are relevant because they cast doubt on whether you are telling the truth about your past experiences in Bangladesh.  In particular, they cast doubt on your evidence with regard to the attacks on you and your property which you claim occurred because of your association with the Guru.  You are invited to comment on this information. …’

18. In his letter in reply of 4 October 2005 the appellant did not relevantly address the inconsistencies to which his attention had been drawn.  His letter included: 

    ‘Regarding the issue of inconsistencies of my information which I provided in my protection visa application.  I would like to inform you that I was the victim of extreme torture because of my religious opinion, which was against the Muslim fundamentalists.  I am the target of them.

    Regarding the inconsistency of the information in the airport interview I was so scared or afraid if I deport from the airport I will be killed by the Muslim fundamentalists.  I am in danger of my life in Bangladesh.

    …

    … When I was answering & filling up the form, I was exhausted, tired and mentally & psychologically Sick.  All together I was not in a state to present myself in a coherent and logical manner.  My understanding in this regard is I failed to represent myself to my adviser completely.  I was so hungry and weak that I could not talk properly.  There was an obvious time pressure to apply for a Protection Visa as I was genuine refugee applicant in Australia. 

    I am going to give all information as I recall but actually I was not in the position to informed my previous activities properly because of my sickness.  I am sorry that I did not provide these earlier.

    …

    I am a psychic patient.  Due to my sickness I did not provide my information properly only because of my psychic problem.  I need some time to provide the medical certificate regarding this.

    I would like to request you to give me some time to provide medical certificate regarding my psychic problem. …’

19. No question of the appellant suffering from any psychiatric condition which would affect his ability to relate why he may have a well-founded fear of persecution were he to return to Bangladesh or why he may have departed that country because of a well-founded fear of persecution was advanced by the appellant prior to the transmission by him of his letter of 4 October 2005.

20. In the decision of the Tribunal member of 10 October 2005 affirming the decision of the Minister’s delegate not to grant a Protection Visa to the appellant the Tribunal Member addressed the applicant’s claims in some detail and also his evidence at the Tribunal hearing on 20 August 2003. He also dealt with the invitation extended to the appellant to comment on the information provided to him in accordance with s 424A of the Act. In his findings and reasons the Tribunal Member said, amongst other things:

    ‘I do not accept that the Applicant needs additional time to provide a medical certificate in relation to any medical or psychological problems he may have.  I do not accept on the evidence before me that the Applicant is suffering from medical or psychological problems which could have affected his capacity to give evidence before the Tribunal in relation to his application.’

21. As set out in the Tribunal’s invitation issued in accordance with s 424A of the Act, the applicant has said different things at different times about the problems he claims to have experienced as a result of his claimed association with his ‘guru’, Mr Barkat Ullah Khan.

22. After directing attention to various inconsistencies in the appellant’s evidence the Tribunal Member said:

    ‘I do not accept that he can be considered as a witness of truth.’

23. Later the Tribunal Member said:

    ‘I do not accept that he is telling the truth about his reasons for having left Bangladesh.  I do not accept that he was ever attacked, nor that his property was damaged, nor that he or his family have had problems, because of his claimed association with the guru, Barkat Ullah Khan, or because he was against the fundamentalist Muslims.  I do not accept that his village home in Nawabgonj was destroyed in 1992, nor that, as he said at the hearing before me, there was a General Diary entry, that is, a complaint filed or lodged with the police, against him, nor that any cases have ever been brought against him, nor that he has ever been convicted by a court, as a result of his claimed association with the guru, Barkat Ullah Khan.  I do not accept that the Applicant had to pay money to either the Awami League or the BNP to avoid being attacked in Bangladesh.  I do not accept that there is a real chance that the Applicant will be persecuted because of his opinion against the Muslim fundamentalists, nor that he will be tortured or killed or otherwise persecuted by Muslim fundamentalists or indeed anyone else, for reasons of his real or imputed religious beliefs, manifested in particular in his claimed association with the guru, Barkat Ullah Khan, if he returns to Bangladesh now or in the reasonably foreseeable future.’  (emphasis added)

24. The Tribunal Member was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if he returned to Bangladesh.  As I have previously indicated no jurisdictional error on the part of the Tribunal has been adverted to.  The submission of the appellant that the Court should consider his matter so that he is given fair justice so that he can stay in Australia is putting his case at its highest.  What he seeks is a merits review of his matter, which it is not open to the Court to provide.

25. In the circumstances the appeal should be dismissed. 

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        26 March 2007

The Appellant appeared in person.
Counsel for the First Respondent:	Mr A J McInerney
Solicitor for the First Respondent:	Blake Dawson Waldron
The Second Respondent did not appear.
Date of Hearing:	7 March 2007
Date of Judgment:	7 March 2007