SZIKG v Minister for Immigration and Citizenship

[2007] FCA 788

FEDERAL COURT OF AUSTRALIA

SZIKG v Minister for Immigration and Citizenship [2007] FCA 788

SZIKG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 453 OF 2007

TRACEY J
24 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 453 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIKG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	24 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs fixed at $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 453 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIKG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	24 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate given on 9 March 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 18 January 2006 and handed down on 2 February 2006: (see: [2007] FMCA 337). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs, as she was then known, to refuse to grant a protection visa to the appellant.

2. The appellant is a citizen of Bangladesh who arrived in Australia on 21 July 2005.  He entered on a temporary business visa.  On 29 August 2005 the appellant lodged an application for a protection visa.  A delegate of the first respondent refused the application on 31 August 2005.  On 21 September 2005 the appellant applied to the Tribunal for a review of that decision.  On 10 October 2005 the Tribunal invited the appellant to attend a hearing on 7 December 2005. The appellant attended the hearing and was assisted by a Bengali interpreter.  He gave oral evidence.

3. The appellant claimed to fear persecution on the basis of his political opinion.  He claimed that he was a supporter of the Awami League, although he did not claim to be a member of the League.  He described an incident which he said occurred on 19 January 2005 in front of his restaurant.  A rival political party (the BNP) had organised a meeting in a public area outside the restaurant.  A fight broke out between members of the Awami League and some of those attending the BNP rally.  Objects were thrown.  Someone standing in front of the restaurant threw a brick which struck a BNP leader in the head.  That leader later died as a result of the injury sustained.  A rumour circulated that the appellant had thrown the brick.  A crowd gathered and his restaurant was burnt down.  He fled to Dhaka where he remained for almost four months.  During this time an uncle made arrangements for him to travel to Dubai.  He left for Dubai on 4 May 2005 and later came on to Australia.  He claimed to have had no part in the rally or the brick throwing incident but feared being arrested, tried and sentenced for murder should he return to Bangladesh.

4. The Tribunal was not satisfied that the appellant faced a real chance of Convention related persecution in Bangladesh.  It held that his fear of persecution was not well founded. The Tribunal said that it could not accept the substantive claims of the appellant on the basis of the scant material before it.  The Tribunal could find no independent evidence of the public events to which he referred and found it reasonable to assume that what ultimately became a local political assassination would leave some trace in the Bangladeshi media and even amongst foreign reporters.

5. The Tribunal found it implausible that the appellant, who was not even involved in the confrontation, would have been the only person ”imputed” to have thrown the brick.  Moreover, the appellant failed to argue that his claimed predicament had anything to do with the Convention.  His claimed identification with the Awami League was not the essential and significant factor in the matter but rather it was the assumption that the brick came from where the appellant was standing.  The appellant provided no evidence of facing persecution in Bangladesh for reasons of his political opinion alone, that is, his opinion as expressed, imputed or manifested before the alleged murder or in any other way independent of it.

GROUNDS BEFORE THE FEDERAL MAGISTRATE’S COURT

1. The appellant sought judicial review of the Tribunal’s decision in the Federal Magistrate’s Court. By an amended application filed in that Court on 12 May 2006 the appellant sought a review of the decision of the Tribunal on the grounds that the Tribunal made a jurisdictional error in the making of its decision and that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) (“the Act).

2. The Federal Magistrate held that the Tribunal had erred by failing to disclose to the appellant particulars of the results of its researches (albeit negative results) relating to the alleged incident and the death of the BNP leader. The Tribunal had failed to meet the obligations imposed on it by s 424A(1) of the Act.

3. Despite accepting that the Tribunal had erred in this way the Federal Magistrate dismissed the application because he was able to identify a separate ground for upholding the Tribunal’s decision.  That ground was that the appellant’s “predicament” was not caused by reason of his political opinion or any other Convention related ground.  At best for the appellant there was a misguided view that he had thrown the brick which killed the BNP leader. 

THE APPEAL

1. The notice of appeal to this Court does not, in terms, allege error on the part of the Federal Magistrate.  Rather it contains two numbered grounds which allege error on the part of the Tribunal.  I assume that the appellant is, in substance, alleging that the Federal Magistrate should have found that the Tribunal erred in these ways.  There are, in fact, four grounds of appeal.  They are that:

   ·The Tribunal breached s 424A of the Act.

   ·The Tribunal failed to accord the appellant “common law procedural fairness”.

   ·There was an apprehension of bias on the part of the Tribunal.

   ·The Tribunal took into account an irrelevant consideration.

2. The appellant appeared in person at the hearing of the appeal.  He had the assistance of an interpreter.

3. The appellant advised the Court that the notice of appeal and the written submissions which had been filed in support of his appeal had been written for him by a “friend” who was not a lawyer but understood some law. He had limited understanding of the basis for the allegations of bias and the taking into account of irrelevant considerations. He could not explain why it was that a complaint was made about a breach of s 424A of the Act by the Tribunal when the Federal Magistrate had determined this issue in his favour.

4. When asked why he contended that the Tribunal was biased against him the appellant initially said that the Tribunal didn’t listen to him.  Later, he complained that the Tribunal had not given him the opportunity to place before it all of the material on which he wished to rely to support his claim.  In my view the complaint of bias against the Tribunal lacks substance.  The appellant had the assistance of an adviser and an interpreter when he appeared before the Tribunal.  After his adviser had made submissions and responded to questions from the Tribunal, the Tribunal member invited the appellant to say whatever he wished.  His only response was that he wanted the Tribunal to give him permission to live in Australia.  There is nothing in the transcript of proceedings before the Tribunal which gives rise to an apprehension that the member was biased.

5. When asked to identify the irrelevant considerations which the appellant contended were taken into account by the Tribunal he responded that they were that he had been able to leave Bangladesh without any problems and had been able to obtain visas.  The Tribunal had taken these matters into account when dealing with the appellant’s claim that he had been charged with the murder of the BNP leader.  The Tribunal doubted that he could have obtained visas and left the country through an international airport if he was wanted on a murder charge.  While these considerations did not lead inevitably to the conclusion that the appellant was not wanted for murder they were matters which, in my opinion, the Tribunal was entitled to take into account as part of its reasoning process.

6. As already mentioned the other two grounds of appeal relied on in this Court deal with an issue which was resolved in the appellant’s favour in the Federal Magistrates’ Court.

7. No error on the part of the Federal Magistrate has been demonstrated.

8. The appeal should be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.

Associate:

Dated:        24 May 2007

Litigant in Person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Spark Helmore
Date of Hearing:	24 May 2007
Date of Judgment:	24 May 2007