SZIAB v Minister for Immigration and Citizenship

[2007] FCA 337

FEDERAL COURT OF AUSTRALIA

SZIAB v Minister for Immigration and Citizenship [2007] FCA 337

SZIAB AND SZIAC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2049 OF 2006

SPENDER J
27 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2049 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIAB
First Appellant

SZIAC
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE OF ORDER:	27 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT DIRECTS THAT:

1.The name of the first respondent be changed to Minister for Immigration and Citizenship.

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the costs of the first respondent of and incidental to the appeal fixed in the sum of $3,500.

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 2049 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIAB
First Appellant

SZIAC
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE:	27 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the decision of Emmett FM of 4 October 2006 which dismissed the application by the appellants SZIAB and her young son SZIAC to review the decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 6 December 2005. 

2. The appellants did not appear today, nor did anyone appear on their behalf.  Yesterday, the adult female sought that her appeal be adjourned and forwarded to the registry a copy of a medical certificate addressed ‘To Whom It May Concern’ from a Dr R.S. Malik of the Lakemba Medical Practice.  That certificate indicated that the female appellant was in the sixth week of her pregnancy and was experiencing pregnancy-related complications and sought that her appointment with the Immigration Department ‘be postponed’.

3. The female appellant was advised that the medical material in support of her application had not led to the result that the matter would be adjourned, and she was advised that if she wanted to submit further material she should do so in support of an application for an adjournment, but there was no guarantee that, even if that material were submitted, the appeal would be adjourned.  Additionally, she was advised that she should submit any further written submissions that she wanted to make to the Court by facsimile should her application for an adjournment be unsuccessful. 

4. Subsequent to the communication of that information, a further medical report was received which said:

   ‘She is experiencing pregnancy-related complications, that is, diabetes/back ache and feels lethargic.  As a result finds hard to sit for long periods of time. This may continue until birth in August ’07 therefore it is requested that her appointment with Immigration Department be postponed until after childbirth.’ 

5. It is apparent that the difficulties that the female appellant is suffering are not such as to preclude her from being present to prosecute her appeal, nor is there any proper basis on which an adjournment for the time requested should properly be made.  In those circumstances, on the non-appearance of either appellant to prosecute their appeal, I proceeded to deal with the matter on the material that had been supplied to the Court. 

6. This included the appellant’s written submissions in support of the appellant’s case which was filed in the Court on 26 February 2007.  These submissions show a great deal of disconformity between the matters the subject of submission and the grounds of appeal filed on behalf of the appellants. 

7. In the notice of appeal the grounds are as follows:

   ‘2. (i)   That a breach of the rules of natural justice occurred in connection with the making of the decision.

   (ii)That the appellants were denied natural justice and procedural fairness in connection with the making of the decision.

   iii.That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported.

   iv.That there was no evidence or others materials to justify the making of the decision.

   v.That FM failed follow the natural justice and procedural fairness.’

8. The written submission of the appellant commences:

   ‘I have been denied procedural fairness at the time of the assessment of claims of my protection visa application because the Tribunal was biased and applied some technic for testing my credibility which the Tribunal already had in its mind that it used those technics to reject the applicant’s claims and the style of asking question and trying to get answer were totally under its control to get its expected answer and under that circumstance every claimant will get the same result like this applicant.  The Refugee Review Tribunal’s decision was unjust and was made without taking into account the full gravity of the applicant’s circumstances of the decision.’

9. Later those submissions recite:

   ‘Federal Magistrate Court dismissed the applicant’s Review application instead of remitting the matter back to the Tribunal for reconsideration according to law even the Tribunal failed to comply with the mandatory obligations and also the lawful effect while the Tribunal its decision’.

10. While it is difficult to distil from the appellant’s written submissions the precise grounds that the appellant wishes to argue, I have considered the reasons of the Tribunal and of the Federal Magistrate, and I am satisfied that there was no denial of natural justice in connection with the making of the decision, either by the Tribunal, or in the rejection of the application to review by the Federal Magistrates Court. 

11. The adult appellant claimed persecution on the basis of her political involvement in the Awami League. 

12. In her application for a Protection Visa in answer to the question ‘Why did you leave that country’ she said, amongst other things:

    ‘ … I involved with the Sylhet “Mohila Awami League”.  I was so active that I was elected as a vice president of Mohila Awami League Sylhet Kotwali Thana.  From 1996 to til now.   BNP & Jamate Islami activists treated me as an enemy.  When BNP and Jamate Islami came in power, the activists of both parties teased me when I go out for shoping and party meetings.  They phone me to kill me & kidnap my son.  They demmanded  money for safe life.  BNP & Jamate Islami activists in Sylhet demanded money to live in peace in Bangladesh.  I did not comply their orders.  I fear that if I go back to Bangladesh they must kill me. 

    I fleet from Bangladesh to escape from those thugs threat and persecution.’

    (Expression as in the application).

13. The delegate found that the three months’ delay between the arrival of the appellants in Australia on 22 April 2005 and the applications lodged for Protection Visas on 18 July 2005 was an indication that the fear of persecution claimed was neither genuine nor significant. 

14. The view of the delegate was that the extortion and kidnap threats were not politically motivated and thus not Convention related.  The delegate also noted that the appellants had lived at the same address for the past 12 years and their failure to attempt to relocate within Bangladesh cast doubts on whether they had in fact been targeted as claimed. 

15. The delegate noted that the first appellant was not a high profile member of the Awami League and that independent country information was to the effect that people who had been involved in low level political activity before they left Bangladesh were unlikely to face political harassment upon their return. 

16. The decision of the Refugee Review Tribunal was based on different findings.   The female appellant gave oral evidence to the Tribunal on 14 November 2005 and she submitted a letter from the Chair of the Mohila Awami League, which stated that the applicant is a ‘die-hard worker’ for the Thana women’s branch. It further stated that due to being caught up in a traffic jam, the female appellant narrowly missed being present at a meeting of the women’s Awami League branch on 24 December 2004 that was bombed, resulting in injuries to 20 women.  The letter referred to the fact that she was elected vice-chairperson of the Sylhet Kutwali Mohila (Women) Awami League and: 

    ‘ … She was a very good leader in Thana Mohila Awami league.’

    ‘ … a die-hard worker with the leadership attitudes in our party and an asset for the kutwali Thana women branch. …’

    . 

17. The Tribunal in its reasons noted that it put to the first appellant that she had refused demands and that still nothing had happened for a period of three years, which suggested to the Tribunal that either the threats were not serious, or the first appellant had fabricated them.  This communication is important, in the light of the contention that there had been a breach of the requirements of natural justice under the Act.  It disposes of the validity of any such claim. 

18. The Tribunal also noted that the persons threatening the first appellant knew where she lived, as they were telephoning her, and the fact that the threats had not occurred in the first few years, but that in 2004 they had made such threats about her son.  She replied that she had avoided serious harm by being very careful and by accompanying her son to school. 

19. The Tribunal noted that it put to the appellant that this contradicted her earlier evidence that threats had been made since 2002, to which the female appellant replied that she did not consider the threats as seriously as she had in 2004.

20. The decision of the Tribunal was that it was not satisfied that the threats had occurred.  As noted earlier, the delegate had decided that any extortion and kidnap threats were not politically motivated.  The Tribunal said that the first appellant claimed that the threats had been directed against her and her son for some three years, but that no further action was taken against her.  This either implied that the threats were not serious or that claims had been fabricated. 

21. The Tribunal did not accept the first appellant’s explanation that she safeguarded herself by being careful and accompanying her son to and from school and by ensuring that she was in the company of others.  The Tribunal concluded that the claims were fabricated in order to advance her Protection Visa application. 

22. This finding, based on the Tribunal’s assessment of the credibility of the appellant in making her claims, was one which was open to the Tribunal to make and involves no breach of the obligations of natural justice under the Act.

23. Another matter of complaint, which is again ventilated in the most recent submissions by the appellant, is the finding by the Tribunal that the Awami League was the legal opposition and had millions of supporters, and that while those supporters have been subject to bombings and terrorist attacks, the Tribunal found that the chance that the first appellant, being merely one activist among many millions, would be the victim of such outrages was remote. 

24. Before the Federal Magistrate, counsel for the appellant, amongst other claims, submitted that the Tribunal misapprehended the appellant’s claims by not considering the claim that the first appellant was a leader in the Awami League and not just a member.  In respect of this ground, the Federal Magistrate concluded that there was no information before the Tribunal to indicate that any persecution suffered by the appellant occurred because she was the vice-president of the organisation, rather than because she was an active member of the Awami League. 

25. The Tribunal, the Federal Magistrate noted, did make specific findings of fact about each of the claims raised by the first appellant in her evidence to the Tribunal, and her Honour found that the appellant’s letter did no more than support the appellant’s claims of general persecution of Awami League activists. 

26. Her Honour found that the Tribunal had made findings on all the claims that plainly arose on the evidence and material before the Tribunal, and as those findings were open on the evidence and reasons were given for them, her Honour concluded that the first ground, a misapprehension of the appellant’s claims, had not been made out.

27. In the written submissions of the appellant, the female appellant asserts that the Tribunal failed to take into account relevant considerations in determining the applicant was an ordinary member of the Awami League, where there were millions of persons living in Bangladesh, and there was no real chance that the applicant would be subjected to serious harm amounting to persecution on this basis.  The appellant says:

    ‘iii)The RRT did not make any findings when described me as ordinary member but on the other hand why our chairpersons were bombed where she lost her hearing capacity. …’

    And later:

    ‘iv) … The Tribunal member totally wrongly interpreted international Refugee law and International human Right law to dismiss our Review application.’

28. It is plain, as the Federal Magistrate observed, that the complaints in relation to serious harm stemmed from membership of the Awami League and not by virtue of any special threat because she had occupied a position of vice-president of a particular woman’s branch of the Awami League.  There has been no jurisdictional error identified in the finding of the Tribunal that the threat of serious harm to the appellant was remote and did not amount to persecution for a Convention reason. 

29. The only other matter which ought to be referred to from the written submissions by the appellant is the contention that:

    ‘ii)The final decision as to my credibility depended on that the document provided by me to the appellant was fraudulent.  The Tribunal member made those comment bases on independent country information.’ 

30. There was no contention by the Tribunal that the documents were fraudulent.  The findings by the Tribunal were based on the general assessment of the appellant’s credibility as to the claims of threats and kidnap.  The factual basis for the submission by the first appellant does not exist. 

31. There is nothing in the material which provides a basis for concluding that any of the grounds in the notice of appeal, or any of the matters which, somewhat inconsistently, are advanced in the written submissions of the appellant, are made out.  No appellable error taints the decision of the Federal Magistrate and for these reasons the appeals must be dismissed.

32. I order that the appeal be dismissed and the appellants pay the costs of the first respondent of and incidental to the appeal, which I fix in the sum of $3,500.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:         9 March 2007

No appearance by Appellants
Counsel for the Respondent:	Mr D. Godwin
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	27 February 2007
Date of Judgment:	27 February 2007