SZIXG v Minister for Immigration and Citizenship

[2007] FCA 1746

FEDERAL COURT OF AUSTRALIA

SZIXG v Minister for Immigration and Citizenship [2007] FCA 1746

SZIXG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1655 OF 2007

LANDER J
22 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1655 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIXG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	22 NOVEMBER 2007
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 1655 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIXG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LANDER J
DATE:	22 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against an order of a Federal Magistrate made on 30 July 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 19 April 2006 and handed down on 9 May 2006.  The Tribunal had affirmed a decision of a delegate of the Minister to refuse to grant a protection visa to the appellant.

2. The appellant was born on 26 September 1973 and is a citizen of Bangladesh.  He entered Australia on 30 July 2003.  On 10 September 2003 he applied for a Protection (Class XA) visa.  That application was refused by a delegate of the Minister on 5 February 2004.  The appellant sought a review of the Minister’s delegate’s decision in the Tribunal.  In the decision made on 17 May 2004 and handed down on 8 June 2004, the Tribunal affirmed the delegate’s decision.  The appellant applied to the Federal Magistrates Court of Australia for a judicial review of that decision and on 29 November 2005 the decision was, by consent, quashed in that Court.  The matter was remitted to the Tribunal for further hearing.

3. The Tribunal was reconstituted.  On 9 March 2006 the appellant appeared before and gave evidence to the Tribunal.  On 10 March 2006 the Tribunal wrote to the appellant seeking his comments on matters which the Tribunal considered were relevant to the Tribunal’s decision.  On 19 April 2006 the appellant responded to that letter and that response was taken into account by the Tribunal in its reasons.

4. On 9 May 2006 the Tribunal handed down its decision.

5. The appellant claimed to be a Hindu.  He also claimed membership of the Awami League and to be an activist within that organisation.  The Awami League is one of the two major parties in Bangladesh and is in opposition to the Bangladesh Nationalist Party (BNP).  The BNP was in power until mid 1996 when the Awami League obtained power which it retained until October 2001.  At that time, the BNP was returned to government coalition with a conservative Muslim party.

6. The appellant claimed that Muslim fundamentalists tried to kill him because of his religion and his political opinion.

7. He said that false charges were brought against him in relation to false allegations in January 1996.  He said that he had been tried in his absence by a Bangladeshi court in 1998.

8. The applicant claimed in his application for a protection visa that he departed Bangladesh in 1996 for Saipan, which is the capital of the United States Commonwealth of Northern Mariana Islands, for the purpose of being a “cont[r]act worker”.  He claimed that he stayed in Saipan until June 2002 when he returned to Bangladesh.  At that time he travelled to the United Kingdom for a “visit”.  He then travelled from the United Kingdom to Saipan to continue his work.

9. He claimed that in December 1995 he was assaulted by BNP coalition activists.

10. He also claimed that he was a homosexual who had never had sexual relations with any man in Bangladesh.  He claimed that he had had a relationship with a male in Saipan but that relationship ended when the male left Saipan.

11. He also claimed that he had not had any sexual contact with any male since arriving in Australia, although he said he regularly visited a club, which he could not name, which he described as a kind of sex shop.  He said that his life was better in Australia because he was not subject to any sexual harassment.

12. The appellant gave evidence before the two Tribunals who heard his application for review.

13. The second Tribunal accepted that the appellant was a national of Bangladesh and that he was of the Hindu religion.  It accepted that there was societal discrimination against Hindus in Bangladesh but rejected the appellant’s evidence that that discrimination amounted to persecution of him by reason of his religion.

14. The Tribunal rejected the appellant’s claim that he had been attacked for reasons of religion or political opinion in 1995 or in 1996 because the Tribunal reasoned he did not make asylum seeking a factor in his choice of domicile outside of Bangladesh.  The Tribunal found that the appellant left Bangladesh in 1996 for other reasons and re-entered in 2002 apparently without any fear of any ongoing harm.  The Tribunal refused to give any weight to the documents which the appellant provided the Tribunal which he said supported his claims of false charges brought against him.  Indeed, it rejected his evidence that he was the subject of any false charges.  It found that when he returned to Bangladesh in 2002 he was not concerned about any charges even though the BNP was then back in power.

15. The Tribunal rejected his evidence that he was an Awami League activist because the appellant “ha[d] not provided any detailed evidence or account of any ongoing relationship with or interest in the AL.”

16. The Tribunal also rejected his evidence that he was a homosexual because his claims were “vague, contradictory and unimpressive”.  It noted that the appellant had not raised his sexuality in his application for a protection visa.  It found his explanation for failing to do so vague and unimpressive.

17. The Tribunal found positively that the appellant was not a homosexual and that he had made his claims that he was a homosexual “for purely opportunistic reasons”.  It found that his claims to be a homosexual were invented “long after the Minister’s delegate had dismissed ‘political opinion’ and ‘religion’ claims on which his original application had been based.”

18. The Tribunal found that the appellant was not a reliable witness but a person who gave highly unimpressive and somewhat inconsistent accounts as to why he had not applied for a protection visa whilst in the United Kingdom.

19. Because it rejected the appellant’s evidence in most respects, the Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol.

20. Two matters were raised before the Federal Magistrate. An amended application was filed but was in similar terms to the original application and relied on the same grounds as the original application. First, it was claimed that the Tribunal made a jurisdictional error by not fulfilling its legal obligations pursuant to s 424A of the Migration Act 1958 (Cth) (the Act). Secondly, it was claimed that the Tribunal denied the appellant natural justice when the “Tribunal made findings and reasons.”

21. The Federal Magistrate observed that the Tribunal had rejected the appellant’s account. He said that the Tribunal, in fulfilling its obligations under s 424A, “is not obliged to put to the applicant for comment its subjective appraisals of the applicant’s oral evidence.”

22. The Federal Magistrate found that the Tribunal’s rejection of the appellant’s claim to be a homosexual was information that was the subject of the s 424A letter. In that respect, he found that the Tribunal had complied with its obligations under that section.

23. The Federal Magistrate also found that the information relied on by the Tribunal was either information provided by the appellant for the purposes of the review or information that was the subject of the s 424A letter or information in the nature of independent country information which fell within the exception contained in s 424A(3)(a) of the Act.

24. The Federal Magistrate found in respect of a second ground that s 422B prescribed the limits of the natural justice hearing rule for reviews under the Act.  He said that the appellant’s complaints related to matters outside the natural justice hearing rule as defined in Division 4 of Part 7 of the Act.  However, he found that if there was an obligation upon the Tribunal to conform to common law obligations in relation to natural justice, the Tribunal had so conformed.

25. On this appeal the appellant claims that the Federal Magistrate did not consider the issues before it.  I reject that complaint.  There were two grounds raised in support of the application, both of which were addressed by the Federal Magistrate.  It is not right to say, as the appellant contends, that the Federal Magistrate did not address the issues raised.

26. On this appeal the appellant also argued that the Tribunal fell into error in failing to find that the appellant was persecuted by reason of his religion, political opinion and sexuality.  He did not identify the error but his submission was that the Tribunal should have found otherwise.

27. In respect to the second ground he said that the Tribunal erred in having regard to country information which was very old and which was not consistent with later information.

28. In relation to the first ground the thrust, as I discern it, of the appellant’s argument is that the Tribunal failed to put to the appellant its subjective assessment of his evidence which he says it was obliged to do under s 424A(1). That submission must be rejected. There was no obligation on the Tribunal to bring to the appellant’s attention its subjective assessment of the appellant’s evidence: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]. The Tribunal was not under an obligation to bring to an appellant’s attention its thought processes as the matter before the Tribunal developed: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48].

29. The appellant also contends that the Federal Magistrate erred in finding that the Tribunal did not deny the appellant natural justice when the Tribunal used very old information in support of its decision.  This was not a matter which was raised before the Federal Magistrate.  However, it was for the Tribunal to decide what country information was relevant for the purpose of determining whether the appellant would be subject to persecution if he were to return to Bangladesh: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].

30. The appellant’s claim failed before the Tribunal because the Tribunal did not accept his evidence as to the likelihood that he would be persecuted by reason of his religion or political opinion.  It rejected his evidence that he was a homosexual.  The appellant’s claim did not fail on account of the Tribunal’s understanding of country information.

31. The appellant’s application for review before the Tribunal was doomed to fail when the Tribunal concluded that the appellant’s evidence was unreliable.

32. This appeal must be dismissed.

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

Associate:

Dated:        22 November 2007

Counsel for the Appellant:	Appellant appeared in person
Counsel for the First Respondent:	Mr J Mitchell
Solicitor for the First Respondent:	DLA Phillips Fox
Date of Hearing:	13 November 2007
Date of Judgment:	22 November 2007