SZHUE v Minister for Immigration and Multicultural Affairs

[2006] FCA 1094

FEDERAL COURT OF AUSTRALIA

SZHUE v Minister for Immigration & Multicultural Affairs [2006] FCA 1094

SZHUE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD654 OF 2006

JACOBSON J
11 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD654 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHUE
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	11 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.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	NSD654 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHUE
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JACOBSON J
DATE:	11 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a judgment and orders of Federal Magistrate Scarlett given on 9 March 2006 dismissing an application for review of a decision of the Refugee Review Tribunal.  The RRT affirmed a decision of a delegate of the Minister refusing to grant the appellant a protection visa.  The appellant is a national of Bangladesh.  He claimed to fear persecution from "fundamentalists" in Bangladesh on political grounds.  He claimed that between 1992 and 2001 he had worked as a development worker for various aid organisations providing assistance to women.  He also claimed to fear persecution arising from his political activities in support of the Awami League in the period from 1987 until 2000.

2. The appellant lived and worked in South Korea from 2002 until 2005.  He claimed that on his last visit to Bangladesh in 2004 he was once again targeted by fundamentalists and was forced to return to South Korea where he remained until travelling to Australia in July 2005.  The RRT accepted the appellant's claims of persecution in the period before his departure for South Korea in 2002.  However, the RRT did not accept that the appellant was persecuted by fundamentalists on his return to Bangladesh in 2004.  The RRT was not satisfied that the appellant's activities in relation to his aid work which had ceased some four years previously gave rise to a well founded fear of future persecution in Bangladesh.

3. In his application for judicial review the appellant identified three grounds each of which asserted that there was "no evidence" to support various findings of fact made by the RRT.  Federal Magistrate Scarlett rejected each of these grounds because they traversed findings of fact which his Honour said were open to the RRT on the evidence.  His Honour also considered a complaint of denial of procedural fairness but found that in the absence of a transcript of the Tribunal hearing no ground of denial of procedural fairness was made out. 

4. The appellant appeared before me this afternoon in person without legal representation.  He was assisted by a Bengali interpreter.  He filed written submissions in support of his appeal, he also addressed me orally.

5. There were five grounds of appeal as explained in the appellant's written submissions.  Three of those were identical to the three grounds of review which were run before Federal Magistrate Scarlett.  The other two grounds of appeal were not run before Federal Magistrate Scarlett but I will deal with them.  The appellant's oral submissions were for the most part consistent with the first three grounds of appeal upon which he relies.  The appellant did in addition seek to argue before me that last Sunday, 6 August 2006 an attack occurred upon his family in Bangladesh because he said that fundamentalists believed that he was back in Bangladesh at that time. However, it is not open to this court to consider those facts.  As I pointed out to the appellant, new facts relied upon by him cannot affect the question of whether the RRT made any jurisdictional error.

   DISCUSSION

6. I will deal with the appellant's grounds of appeal in the order in which they are set out in his written submissions.

   Attack during the last visit

7. The appellant submitted that the RRT misinterpreted or misunderstood his evidence in rejecting a claim that he was attacked by fundamentalists on his last visit to Bangladesh in 2004.  This is the primary ground of his complaint.  Federal Magistrate Scarlett dealt with this issue at [13] to [20] of his reasons for judgment.  His Honour referred to the following critical finding of fact which was made by the RRT:

   The Tribunal does not accept as credible the applicant’s claim that he was attacked by fundamentalists when he last visited Bangladesh. When this matter was discussed with the applicant at the hearing it became apparent to the Tribunal that the applicant was not attacked, he had no direct contact with the persons he referred to as the “fundamentalist”, he did not know the identity of the fundamentalists, he did know the exact nature of their action against him, or what they planned to do in the future. The applicant stated he was told by relatives that the fundamentalists in his area had a meeting and they decided not to let him do development work in the area. The Tribunal finds that the threat to the applicant was either imagined by him, or exaggerated for the purpose of enhancing his application, as he has no meaningful information on which to conclude that he was under attack by fundamentalists or anyone else in Bangladesh during his last visit. The Tribunal does not accept as credible the applicant’s claim that he was attacked or under threat of attack when he last visited Bangladesh in 2004.

8. It is evident that the Tribunal's finding that the appellant either imagined or exaggerated the 2004 attack arises from the appellant's own evidence.  The contention that there was no evidence to support the RRT's finding cannot be sustained.  This is because the RRT based its finding upon what it took from the appellant's own evidence.  That is to say, that the appellant did not know the identity of the fundamentalists said to have attacked to him, and he did not know the exact nature of their action or what they planned to do in the future.  The RRT used this as a basis for finding the claim to have been either imagined or exaggerated.  The finding was clearly disclosed in the RRT's reasons.

9. Federal Magistrate Scarlett approached the claim as a no evidence ground.  This appears most clearly in [20] of his reasons.  His Honour approached the issue upon the basis that where an applicant seeks to attack a finding upon this basis the question which arises is whether there is some evidence to support such a finding.  Here, as I have said, the finding was drawn from the appellant's own evidence to the RRT.  There is no error in the approach taken by Federal Magistrate Scarlett.  As his Honour said, so long as there is some evidence, then an assessment of that evidence is entirely the function of the RRT and it was not open to the Federal Magistrates Court to substitute its own view of the evidence.

10. An alternative approach to this claim may be found in the observations of Hely J in SZATG v MIMIA [2005] 215 ALR 358 at [36]. His Honour there referred to well known authority for the proposition that a tribunal is not required to engage in an "uncritical acceptance" of a claim and is not required to accept it merely because positive evidence to the contrary is absent.

    Attack in foreseeable future

11. The appellant sought to attack a finding made by the RRT that the attacks which were made in the earlier period involved a set of circumstances which no longer existed and which would not be replicated in the reasonably foreseeable future.  Federal Magistrate Scarlett dealt with this claim at [21] to [28] of his reasons for judgment.  The relevant passage from the decision of the RRT is as follows:

    The applicant claims he wants to be a development worker and resume his association with the AL. He claims the fundamentalists will seek to harm him when he participates in those activities.  However, he has no firm prospects of development work in the future and he has not demonstrated any interest in the AL for almost five years despite ample opportunities to be involved in Bangladesh as well as Australia. Nevertheless, if the applicant is able to obtain the work he wants, and he also decides to be involved with the AL, the Tribunal is satisfied by information from external sources referred to above that he can participate in those activities without adverse interest from fundamentalists, the government, or anyone else in Bangladesh, The Tribunal considered the three attacks he suffered before, while he was involved in politics and development work, and finds those attacks involved a particular set of circumstances which no longer exist and will not be replicated in the reasonably foreseeable future. The Tribunal finds that the applicant can participate in the AL, as he did before, and work as a development worker, without adverse interest from fundamentalists in Bangladesh.

12. Federal Magistrate Scarlett observed at [25] that the RRT set out its reasons for its finding and he quoted part of the passage which I have reproduced above at [26]. His Honour said at [27] that the claim must fail because the RRT referred to evidence including a report from the United States Department of State. The effect of the RRT's finding was that it found that the circumstances had changed since the earlier attacks and it was this that provided the basis for a finding that the appellant did not have a well-founded fear of persecution in the reasonably foreseeable future.

    No firm prospect of development work

13. This is sufficiently covered by what I have said under the second ground of appeal.  However, I will deal with it briefly.  The appellant seeks to attack the finding of the RRT that he had no firm prospects of development work in the future.  The evidence upon which the RRT relied to support this finding was stated at page 7 of the RRT's reasons.  The RRT there recorded the statement of the appellant that he was interested in establishing his own development agency or doing his own development work. 

14. Federal Magistrate Scarlett found at [30] that the RRT's finding was supported by that evidence.  As his Honour observed, the RRT's finding was not that there was no prospect of work in the field, it was a finding that there was no specific proposal for work of a particular type within the general field of development work.  The learned Federal Magistrate observed that there was evidence to support that finding.  I can see no error in the approach taken by the Federal Magistrate on this question.  It does not support any claim of jurisdictional error on the part of the RRT.

    Reality of persecution

15. The appellant submitted that the RRT commented that the attack upon him would not be replicated in the reasonably foreseeable future.  He submitted that the RRT did not consider the reality of the chance of persecution which he would face because of his political opinion.  He said that the BNP fundamentalists are still in power.  He said the failure of the RRT to address that issue prevented it from having a rational basis to determine his claim.  He referred to the authority of a Full Court in W396/01 v MIMIA [2002] 68 ALD 69 at [33]. However, the decision in W396/01 has no application to the present matter.  That is because the Full Court in W396/01 found that the Tribunal had failed to ask itself the question of whether a claim which could be said to have been clearly articulated by the appellant was in fact made out.  There is no suggestion in the present case that the appellant's claims were not addressed.  Accordingly this ground of appeal must fail.

    Credibility test

16. The appellant submitted that the RRT had accepted 90 per cent of his claim but that the remaining 10 per cent had not been accepted.  He said that 90 per cent acceptance of his claim was sufficient to make out his case.  The submission had some superficial attraction.  However, it is an over simplification of the matter and is not correct in principle.  This is because the so-called 10 per cent of the claim which was rejected dealt with the relevant issue upon which the RRT came to the view that the appellant did not have a well founded fear of persecution.

17. The significance of the finding which the RRT made in relation to the claimed attack in 2004 was the basis for the finding that the appellant did not have a well-founded fear.  There are three reasons why it was critical.  Firstly, the lapse of time between the earlier attacks and the finding which the RRT made about the events of 2004.  Secondly, the RRT was required to assess whether the appellant had a well founded fear of persecution in the reasonably foreseeable future.  The events of 2004 were closer in time to the date upon which the RRT dealt with the matter and formed the basis upon which the RRT came to its conclusion. 

18. Thirdly, as is evident from the passage which I have set out above from the RRT's reasons, the findings which the RRT made about the earlier attacks upon the appellant was that those attacks involved a set of circumstances which no longer existed.

    CONCLUSION

19. For the reasons set out above it follows that I will order that the appeal be dismissed.  Federal Magistrate Scarlett at [36] said that he had formed the view that it was incumbent upon him to examine the decision as a whole in an effort to ascertain whether there was any other jurisdictional error apart from those which were raised by the appellant.  His Honour took that approach because the appellant was unrepresented, although he said that he was unable to discern any jurisdictional error either on the matters submitted by the appellant or otherwise.  In view of the fact that the appellant is unrepresented on the appeal I have taken a similar approach and I am unable to see any basis upon which jurisdictional error can be raised.

    ORDERS

20. The orders of the court will be that the appeal be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:        11 August 2006

The Appellant appeared in person
Counsel for the Respondent:	Mr D Jordan
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	11 August 2006
Date of Judgment:	11 August 2006