SZIKV v Minister for Immigration and Citizenship

[2007] FCA 403

FEDERAL COURT OF AUSTRALIA

SZIKV v Minister for Immigration & Citizenship [2007] FCA 403

MIGRATION - appeal from a decision of a Federal Magistrate - no point of principle

Held: Appeal dismissed.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 cited

SZIKV v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD1824 OF 2006

COLLIER J
22 MARCH 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD1824 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIKV
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE OF ORDER:	22 MARCH 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

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

2.The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD1824 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIKV
Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COLLIER J
DATE:	22 MARCH 2007
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an appeal against a decision of Scarlett FM delivered 30 August 2006, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). I note that a previously constituted Tribunal in a decision dated 9 March 2004 had earlier affirmed a decision of a delegate of the Minister refusing to grant a protection visa to the appellant, but that the Federal Court in a decision of 9 September 2005 allowed an appeal against that decision and remitted the matter to the Tribunal for reconsideration. The matter before this Court concerns a subsequent decision of the Tribunal concerning the same applicant for a protection visa, where the Tribunal has again affirmed the decision of a delegate of the Minister to refuse to grant a protection visa to the appellant.

2. The appellant is a citizen of Bangladesh who arrived in Australia in May 2003 as a dependant on the visa of his wife. It appears that the appellant and his wife separated after arrival in this country.

3. On 14 November 2003 the appellant lodged an application for a protection visa with the now Department of Immigration and Citizenship. On 24 November 2003 a delegate of the first respondent advised the appellant that his application was refused. On remittal of the matter to the Tribunal for reconsideration following the events I described earlier, an invitation to hearing was sent to the appellant on 11 November 2005. In support of his application for review the appellant provided the Tribunal with a copy of his passport, a letter from the Bangladeshi Awami League, a letter from the Bangladesh Parliament and various newspaper articles from The Bangladesh Observer and The Daily Star Web Edition. The appellant attended the hearing and was assisted by a Bengali interpreter. Further to his oral evidence the appellant submitted, after the hearing, a further written submission to the Tribunal.

4. Before the Tribunal the appellant claimed to have a well-founded fear of persecution because of his political opinion. The appellant claimed he was involved in the Chharta League, the student wing of the Awami League in Bangladesh, while he was at college and was elected vice-president in 1983. The appellant claimed he was arrested, detained and beaten in 1984 after leading a demonstration against the government of General Ershad. The appellant asserted his involvement in politics was not limited to his time at university and that during his involvement after university and during the various times the Bangladeshi National Party (“BNP”) came to power, false charges were filed against him, his house was ransacked and looted and numerous attempts were made to kill him. The appellant claimed he had been in hiding since 2001 departing Bangladesh in 2003.

   THE DECISION OF THE TRIBUNAL

5. The Tribunal found the appellant to be an unimpressive witness, unable to add details to the original claims which would persuade the Tribunal he was telling the truth. The Tribunal particularly noted the failure of the appellant to recall names of local constituency and details of campaigning as well as the inconsistency in the amount of time he claimed he had been in hiding and the timing in applying for a protection visa.

6. Although the Tribunal accepted that the claims of the appellant were supported by letters, greater weight was given by the Tribunal to the impression formed by the oral evidence to the Tribunal. While the Tribunal accepted the involvement of the appellant in student politics and the claimed arrest in 1984, it did not accept that he was a joint secretary of the Kalkini Thana or Upazila Committee of the Awami League or an executive member of the Madaripur District Committee or that he was involved in campaigning for the Awami League in his local constituency at the general elections in 1991, 1996 and 2001. Together with the failure to leave Bangladesh until 2003 and the failure to apply for a protection visa until he had separated from his wife, the Tribunal was unable to accept the bulk of the claims of the appellant as credible. As a result the Tribunal was not satisfied on the evidence before it that the appellant departed Bangladesh to escape persecution because of his real or imputed political opinion, or that he had a well founded fear of being persecuted for a Convention reason if he returned to Bangladesh.

   GROUNDS BEFORE THE FEDERAL MAGISTRATE

7. Before Scarlett FM, the appellant sought review of the decision of the Tribunal on one ground, namely that the Tribunal failed to afford the appellant procedural fairness in circumstances where he was not given an opportunity to respond to adverse findings and inconsistencies in accordance with the requirements in s 424A Migration Act 1958 (Cth) (“the Act”). The following particulars were provided:

   a.   that part of the reason for affirming the decision of the delegate was that the applicant could not add detail to the claims in the original application;

   b.   that the Tribunal found it difficult to reconcile the applicant’s claims to have been a joint secretary of the Kalkini Thana or Upazila Committee of the Awami League or an executive member of the Madaripur District Committee as referred to in the letters dated 8 October 2005 and 11 October 2005;

   c.   that neither of the letters of October 2005 were “produced” by the appellant; and

   d. in accordance with s 424A, the Tribunal was obliged to give the appellant notice in writing of the particulars, that is reconciling representations made by the appellants witnesses and the letters of October 2005 with the appellant’s evidence at hearing.

8. In written submissions filed on 29 August 2006 the appellant complained that the Tribunal member did not believe his claims were credible. He submitted further that the Tribunal’s difficulties in reconciling the claims made in the letters provided with his oral evidence should have been put to him in writing by the Tribunal under s 424A, and that the Tribunal was required to give the appellant written notice that it would draw adverse inferences from the fact that he had applied for a protection visa after he had separated from his wife.

   THE DECISION OF THE FEDERAL MAGISTRATE

9. His Honour found that the appellant’s reliance on the provisions of s 424A was misconceived. In respect of particular (a), his Honour found that the complaint actually referred to information which was the appellant’s own evidence to the Tribunal, or more precisely, was a complaint concerning the inadequacy of the appellant’s own evidence to the Tribunal. His Honour noted that the Tribunal made an adverse credibility finding on the basis that if the appellant’s claims had been true, it would have been likely that he could provide more detailed evidence to the Tribunal about those claims. In his Honour’s view, the Tribunal’s thought processes and subjective assessment of the information before it was not a matter to which s 424A applied; further, the information or lack of it was information provided by the appellant to the Tribunal for the purpose of the review, and was therefore subject to the exception in s 424A(3)(b) (Reasons for Decision at [19]).

10. Similarly in his Honour’s view the information in the two letters of October 2005, which the appellant admitted he had produced at the Tribunal hearing, fell within the exception in s 424A(3)(b). Accordingly, the appellant’s claims as found in particulars (b) and (c) referable to those letters did not disclose any jurisdictional defect in the decision of the Tribunal pursuant to s 424A.

11. In any event, it was clear from the decision of the Tribunal that the Tribunal did not disbelieve the information in those letters. Rather, the Tribunal gave greater weight to the oral evidence of the appellant. As his Honour noted, weighing of evidence is a matter for the Tribunal. The claims of the appellant were rejected on adverse credibility findings, based on evidence presented by the appellant to the Tribunal. There was no breach of s 424A of the Act and accordingly no jurisdictional error as alleged.

    NOTICE OF APPEAL

12. The notice of appeal raises the following grounds:

    1.The Tribunal failed to serve any notice about the Tribunal’s concern about the genuineness of the applicant’s submitted document. The Tribunal made an error in respect to this matter.

    2.The decision by the Tribunal was not a decision on the basis of the documents rather it was decision by the Tribunal on the basis of impression.

    3.The Tribunal an error in relation to section 424A of the Migration Act and the trial judge failed to take it into account.

    (Transcribed from the original without alteration)

13. The notice of appeal does not plead any error in the decision of Scarlett FM. I note however that the appellant is self-represented, and in that light I am prepared to consider the grounds of appeal raised in the notice of appeal.

14. No written submissions were filed by the appellant and only a brief statement was made by the appellant at the hearing referable to his grounds of appeal.

15. With respect to the first ground of appeal of the appellant I am unable to identify any “concern about the genuineness” of any document submitted to the Tribunal. If the appellant is referring to the letters of October 2005, as his Honour noted in his decision, the Tribunal accepted that the appellant’s claims were supported by the letters which he produced. In assessing the appellant’s claim however, the Tribunal gave greater weight to the impression it formed of the appellant on the basis of his oral evidence, the fact that he did not leave Bangladesh until May 2003, and the fact that he did not apply for a protection visa until after he had separated from his wife. Overall, the Tribunal did not find the appellant a credible witness, nor was it prepared to accept a number of his claims.

16. In my view the first ground of appeal cannot be sustained.

17. The second ground of appeal refers to the weight ascribed by the Tribunal to the evidence before it. The weight given by the Tribunal to evidence before it, both oral evidence and documentary, is a matter for the Tribunal as an incident of its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Accordingly, in my view the second ground of appeal cannot be sustained.

18. The third ground of appeal, which claims that the Tribunal erred in relation to s 424A and Scarlett FM failed to take that error into account, is not particularised and is so broad in its claim as to be almost meaningless. If the appellant is referring to the information contained in the letters of October 2005, then in my view there is nothing to add to the findings of Scarlett FM in this regard discussed earlier in this judgment. However at the hearing, Mr Bevan for the Minister referred to the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, and submitted that, on a generous reading, the appellant could be advancing an argument that the issues upon which the Tribunal based its findings on credibility were not raised or noted to him. In SZBEL [2006] HCA 63 the High Court observed that:

    ·in cases before the Tribunal the applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (at [33])

    ·“the Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are ‘the issues arising in relation to the decision under review’” (at [35])

    ·when it is said, as occurred in SZBEL [2006] HCA 63, that the appellant was not put on notice by the Tribunal that his account of certain events would be rejected as “implausible”, and that this conclusion was “not obviously ... open on the known material”, the focus of the contention must fall upon what was “obviously ... open” in the Tribunal’s review. That can be identified only by having regard to “the issues arising in relation to the decision under review” (at [38])

    ·in SZBEL [2006] HCA 63 the Tribunal did not say anything to the applicant at the hearing which would have revealed to him that it was treating certain otherwise unidentified issues as “live issues” influencing its decision ([at 43])

    ·accordingly, the High Court held in SZBEL [2006] HCA 63 that the Tribunal did not accord the appellant procedural fairness, and the Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review ([at 44]).

19. In the case before me it appears from the recounting of events which took place at the hearing by the Tribunal – which recounting was not challenged by the applicant – that all issues impacting on the decision of the Tribunal with respect to the credibility of the appellant were aired at the hearing, and the subject of submissions by the applicant during the hearing. Accordingly, in my view the facts of SZBEL [2006] HCA 63, and the reasoning of the High Court, are not relevant in this case.

20. In my view the grounds of appeal have no substance, and the appeal should be dismissed with costs.

    ORDER

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

    2.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 Collier.

Associate:

Dated:        22 March 2007

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	H Bevan
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	26 February 2007
Date of Judgment:	22 March 2007