SZIBB v Minister for Immigration and Multicultural Affairs

[2006] FCA 1650

FEDERAL COURT OF AUSTRALIA

SZIBB v Minister for Immigration & Multicultural Affairs [2006] FCA 1650

SZIBB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1662 OF 2006

GRAHAM J
20 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1662 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIBB
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	20 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs.

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 1662 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIBB
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	20 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant, who is identified for the purposes of these proceedings as SZIBB, was born in Cox’s Bazar, Bangladesh on 16 January 1978.  On 20 February 2000 he was issued with a Bangladeshi passport in Chittagong.  On 22 September 2004 he was issued with a one-month visitor’s visa in Colombo.  The appellant arrived in Australia on 23 October 2004 having departed Bangladesh from Chittagong. 

2. On 11 November 2004 the appellant applied for a Protection (Class XA) visa.  In his visa application he referred to extensive international travel that he had undertaken in 2001 and 2002 travelling to India, Myanmar, Thailand, Cambodia, Laos, Sri Lanka and Nepal.  The appellant’s application for a protection visa recorded as his reason for leaving Bangladesh as follows:

   ‘I have left Bangladesh to escape my well founded fear of persecution for my religious belief as member of Buddhist community. 
   Refer statutory declaration.’

3. He recorded his fear as to what may happen if he went back to Bangladesh as follows:

   ‘I was at risk prior to leave Bangladesh.  I shall face persecution on my return back to Bangladesh.  
   Refer Stat. Dec.’

4. The application for a protection visa was accompanied by a four-and-a-half-page typed statutory declaration.  It is unnecessary to set out the full detail of that statutory declaration in these reasons.

5. The Minister’s delegate was not satisfied that the appellant met the criteria for the grant of a Protection (Class XA) visa because his fear of Convention-based persecution on return to Bangladesh was not well founded (see the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (‘the Refugees Convention’)).  On 8 August 2005 the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of the Minister’s delegate’s decision.  The appellant’s application for review was supported by a four-page typed submission on his behalf dated 4 October 2005 from his migration agent.  Again, it is unnecessary to set out the full detail of that submission in these reasons.

6. The appellant was invited to attend a hearing before the Tribunal to give oral evidence and present arguments in support of his claims.  Such a hearing took place on 18 October 2005 and lasted for almost two hours.  On 17 November 2005 the Tribunal decided that the decision of the Minister’s delegate not to grant the appellant a protection visa should be affirmed.

7. On 5 January 2006, or thereabouts, the appellant filed an Application in the Federal Magistrates Court of Australia for constitutional writ relief in respect of the Tribunal’s decision.  That application was amended, a further Application being filed in the Federal Magistrates Court on 3 May 2006.

8. The Amended Application came before the Federal Magistrates Court on 11 August 2006 and was decided adversely to the appellant.  The learned Federal Magistrate ordered that the application be dismissed and that the appellant pay the respondent Minister’s costs in the sum of $4,950.

9. From that decision an appeal was brought to this Court by a Notice of Appeal filed on 30 August 2006.  The grounds upon which the appeal was brought were set out in paragraphs 2 to 7 inclusive of the Notice of Appeal.  In support of the Notice of Appeal the appellant filed a document entitled, ‘Outline of Submissions of the Applicant’, on 16 November 2006.

10. When invited to speak to the Notice of Appeal and the written submissions, the appellant, who appeared in person with the assistance of an interpreter, responded that he had nothing else to add.  When invited to identify any error on the part of the Tribunal, he indicated that he thought that the Tribunal did not believe what he had to say and what he had submitted to them.  He said that he had no other reasons.  When pressed further, he indicated that there was no place for him in Bangladesh, that after he had been to Sri Lanka to study he had been asked to leave and decided to try his luck in Australia having learnt that the Australian Government would allow people to live in Australia.  He added that if the Tribunal does not believe what he had to say, then it was his bad luck.  He said that if he was not given shelter in Australia:

    ‘Where shall I go, where shall I live, how shall I survive?  I have no property.  If I go back I may have to die out of starvation.’

11. When invited once more to indicate whether he wanted to say anything about errors on the part of the Tribunal, the appellant indicated that he had nothing more to say. 

12. The Tribunal accepted that the appellant was a Buddhist.  The Tribunal accepted that he had received a religious education in both Bangladesh (Chittagong) and later in Sri Lanka.  The Tribunal accepted that following his religious training in Bangladesh the appellant was entitled to use the appellation ‘Bhikku’ and for a time he wore the saffron robe of a Theravada novice.  However, the Tribunal noted that in his evidence before the Tribunal the appellant declared that in Australia he was not a practising Bhikku and no longer wore the saffron robe. 

13. The Tribunal found that if the appellant returned to Bangladesh and did not wear the robe which distinguished Buddhist Bhikkus, he would not, in the light of country information, face persecution on his return to Bangladesh.  The Tribunal further found that notwithstanding acts of discrimination that may be perpetrated upon indigenous Buddhists belonging to certain tribes, were the appellant to live in Chittagong or Dhaka, he could live as a Buddhist Bhikku without fear of persecution for reason of his religion. 

14. The Tribunal member concluded that given the appellant’s decision not to wear the saffron robe and be a practising Buddhist Bhikku in Australia, it could not be satisfied that on his return to Bangladesh the appellant would wear the saffron robe or practise his religion.  In the circumstances, the Tribunal did not accept the appellant’s claim that he would be liable to persecution on account of his religion were he to return to Bangladesh.  The Tribunal further found that the appellant did not have a fear of persecution were he to return to Bangladesh given the number of times that he departed from and returned to Bangladesh as indicated above.

15. In his written outline of submissions the appellant submitted that the learned Federal Magistrate had erred in finding that the Tribunal had accorded the appellant procedural fairness.  He submitted that the Tribunal had committed jurisdictional error by failing to take into consideration the appellant’s claims of persecution.  The appellant submitted that the Tribunal had, as I understand it, erred in failing to accept him as a credible witness.  He submitted that the Tribunal had failed to bring to his attention adverse information that influenced it to refuse his claims.  He submitted that the Tribunal had fallen into jurisdictional error by giving no weight to certain country information and submitted that the Tribunal had denied him natural justice.

16. Whilst s 424A of the Migration Act 1958 (Cth) requires the Tribunal to give to applicants particulars of certain information that the Tribunal considers would be the reason or part of the reason for affirming a decision under review, that obligation does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member. Nor does it apply to information that the applicant gave for the purposes of his application. As Gummow and Heydon JJ said in Re Ruddock (in his capacity as Minister for Immigration & Multicultural Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [54]:

    ‘The tribunal member was not obliged to set out every detail of the reasoning process which he eventually employed for the … [applicant’s] consideration.’

17. It is abundantly clear that the Tribunal did not fail to provide the appellant with particulars of any relevant information under s 424A(1) of the Act. In the Tribunal member’s reasons for decision it is recorded that certain matter was read to the appellant upon which he was invited to comment. In response to matters that were drawn to his attention, the appellant agreed that he had left and returned to Bangladesh on numerous occasions between 2001 and 2004 and that the appellant had lived in Chittagong in relative safety in the past, agreeing that Chittagong was not dangerous. The appellant is recorded as having concluded his evidence before the Tribunal by ‘repeating that he wanted to live in Australia’.

18. I am unable to discern any jurisdictional error on the part of the Tribunal.  Furthermore, I am unable to find any error on the part of the learned Federal Magistrate who heard the application for constitutional writ relief. 

19. In the Notice of Appeal filed 30 August 2006, which brings this matter before this Court, the appellant asserted that the Tribunal had not given him a reasonable opportunity to respond to independent evidence; that the Tribunal erred in finding that:

    ‘… my fear of persecution in (sic) not genuine for a convention reason and that the fear of persecution is not well founded within the meaning of the convention though I have substantiated my claims as a credible witness presenting myself in the Tribunal to give oral evidence in favour of my claimed to persecution. …’;

    that the Tribunal failed to consider all the materials readily available and/or accessible, and failed to turn the appellant’s mind to the material questions arising out of those materials; that the Tribunal made findings which were not available to it on the evidence; that the Federal Magistrate erred in not finding that the Tribunal fell into legal error; that the Tribunal had not taken into consideration the threat to life or liberty, significant harassment to the appellant that he would experience on return to Bangladesh, and could not come within the Convention definition of a refugee; and that the Federal Magistrate erred in not finding that the Tribunal erred in finding that if the appellant returned to Bangladesh he would need to be involved in religious activities.

20. Insofar as the appellant seeks a merits review of the Tribunal’s decision, it is simply not available to him in the present proceedings.  It is simply the case that if the Tribunal did not believe the appellant it was the appellant’s bad luck.  The fact is that in proceedings for constitutional writ relief it is not open to the Court to reverse findings which may amount to an appellant such as SZIBB’s bad luck.

21. Insofar as the Notice of Appeal raises issues which do not simply seek a merits review of the appellant’s case, I am unable to discern any jurisdictional error on the Tribunal’s part. 

22. In the circumstances, the appeal should be dismissed. 

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        29 November 2006

The Appellant appeared in person.
Counsel for the First Respondent:	Ms S McNaughton
Solicitor for the First Respondent:	Phillips Fox
Date of Hearing:	20 November 2006
Date of Judgment:	20 November 2006