SZJVC v Minister for Immigration and Citizenship

[2007] FCA 1266

FEDERAL COURT OF AUSTRALIA

SZJVC v Minister for Immigration and Citizenship
[2007] FCA 1266

SZJVC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 754  OF 2007

NORTH J
1 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 754  OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJVC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	1 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

(1)the appeal be dismissed;

(2)the appellant pay the first respondent’s costs of the appeal fixed at $1500.

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 754  OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJVC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	1 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an appeal against orders made by the Federal Magistrates Court on 12 April 2007.  The Federal Magistrate refused an application to review a decision of the Refugee Review Tribunal handed down on 14 November 2006.  The Tribunal affirmed a decision of a delegate of the then named Minister for Immigration and Multicultural Affairs, the first respondent, not to grant the appellant a protection visa.  The appellant claimed fear of persecution in Bangladesh on the grounds of political belief. 

   THE APPELLANT’S CLAIMS

2. The appellant claimed that he is likely to be harmed by members of the Islamic party Jamat-e Islam as a result of his association with the Awami League; his support for democracy, moderate Islam and women’s rights; and his refusal to provide Jamat-e Islam with assistance in bomb making.  He claimed that the police would not protect him from serious harm. 

   THE DECISION OF THE TRIBUNAL

3. The background and reasoning of the Tribunal is set out in detail in its decision and it is not necessary for me to repeat that material, except to the extent necessary to explain my reasons.

4. The Tribunal examined the evidence given by the appellant in relation to each of his claims.  It also assessed the documents submitted by the appellant in support of his case, in particular, statements made by political officials, the appellant’s physician and his father.  The Tribunal concluded that, despite claiming an official position in the Awami League, the appellant was only able to describe his activities in the most general terms.  The Tribunal found that the appellant had very limited knowledge of the philosophy, policies and achievements of the Awami League when it was last in government.  The Tribunal said: 

   The Tribunal places little weight on the letters from the Chattra League officials, the family physician, the applicant’s father and Major General Shafiullah as evidence of the extent of the applicant’s involvement in the Awami League.  First, there are marked differences between the letters individually and also the applicant’s evidence at hearing – for instance, characterisation of him as a student worker responsible for emergency duty (the Chattra League letter); ‘media secretary’ in the Awami League’s Rupganj branch (as claimed at hearing); and ‘an active political worker of mine’ (Major General Shafiullab).  Second, the letters from the family physician and the applicant’s father do not in the Tribunal’s opinion provide independent corroboration of his claims.  Third, neither the Chattra League letter, which appears to be a text scripted by or on behalf of the applicant and in lieu of his own written claims, nor the minimalist letter from Major General Shafiullah, are convincing.

   In the Tribunal’s opinion, and against the background of high levels of document fraud in Bangladesh (as put to the applicant in the Tribunal’s correspondence), the contents and character of these letters strongly suggest that they have been written to order, with the aim of assisting a constituent or friend.  The applicant suggested that the Tribunal verify directly with the authors the ‘genuineness’ of the letters, but the Tribunal has decided not to do so, as its primary concern lies not with their authorship or genuineness, but with the veracity of the contents.  The Tribunal’s concerns are illustrated by the applicant’s evidence at hearing of the circumstances in which Shafiullah offered to provide the letter to the applicant’s father, in view of their claimed family and political connections – yet the contrast with the applicant’s apparent ignorance of Shafiullah’s direct involvement in recent political clashes.

1. The Tribunal considered the evidence given at the hearing by the appellant and found that his personal involvement in political activities lacked specificity.  The Tribunal assessed the evidence of an alleged politically motivated attack on the appellant on 5 January 2005.  It rejected the evidence on the basis that the appellant had varied his claim between the hearing before the Tribunal and a previous hearing before a Tribunal differently constituted.  Further, the Tribunal concluded that the second version lacked credibility.  For example, it was unlikely that the appellant could have identified the persons involved in the attack as persons from Jamat-e Islam.

2. The Tribunal also considered whether the appellant’s claim that he was subject to politically motivated false charges was sustainable.  The Tribunal gave reasons for rejecting this evidence, which included that a ‘first information report’ was not a genuine police document as alleged.

3. Finally the Tribunal made reference to the appellant’s conduct after the October 2001 elections until he left Bangladesh for Italy in 2005.  In particular, the appellant travelled to India, Singapore and Nepal, each time returning to Bangladesh, and this suggested to the Tribunal that he did not leave Bangladesh for reasons of past or the fear of prospective persecution. 

   THE APPLICATION IN THE FEDERAL MAGISTRATES COURT

4. The appellant applied to the Federal Magistrates Court for a review of the decision of the Tribunal on the following grounds:

   [A] breach of s.424A of the Migration Act in that the Applicant says that there was certainly adverse information used by the Tribunal to affirm the decision under review and the tribunal did not disclose the information in accordance with sub-s.424A(1).  The second ground is that the Tribunal has failed to consider an essential integer of the Applicant’s claim, being the reality of the Applicant’s chance of persecution upon his return to Bangladesh.

5. The Federal Magistrate rejected both of these grounds and dismissed the application. 

   THE APPEAL

6. On 1 May 2007, the appellant filed a notice of appeal to this Court.  The grounds of appeal are as follows:   

   1.The appellant appeals from the whole of the judgment of SYG 3654/2006, delivered by Federal Magistrate Scarlett at Sydney Registry made on 12 April 2007.

   2.The Federal Magistrate Scarlett failed to follow the proper procedural fairness and failed to follow the rules of natural justice when making its decision on 12 April 2007.

   3.The FM made an error of law in connection with the making of the decision.

   4.Making of the decision by the FM Court was an improper exercise of its power conferred by the enactment.

   It is not possible to deduce from the generality of the notice of appeal any particular attack on the decision of the Federal Magistrate. 

7. The Court directed the appellant to file a written outline of submissions in support of the appeal.  He did not do so.  He explained at the hearing of the appeal that he did not understand that he was required to do so.  The role of the Court on appeal was explained to the appellant at the hearing, namely to consider whether the Federal Magistrate had made any errors of law.  The Court explained the distinction between this function and the function of the Tribunal in determining the merits of the application. 

8. At the hearing, the appellant made short oral submissions with the assistance of an interpreter.  He was not represented.  In his oral submissions, he said that if he were to return to Bangladesh, he would be killed.  He said that he was prepared to go back to Bangladesh if Australia would take real responsibility for his welfare.  He said that the documents which he submitted in support of his application were genuine and that the Tribunal was wrong to find that the documents were false.  The appellant told the Court that he was an educated person who did not lie.

9. Counsel for the first respondent contended that the only possible ground of appeal which emerged from the oral submission of the appellant was that the Tribunal had erred in finding that the documents submitted by the appellant were not genuine.  She said that the Tribunal was entitled to make that finding particularly in view of the fact that the letters contradicted the appellant’s own evidence at the hearing.  The appellant, in reply, submitted that the Tribunal erred in failing to verify the veracity of those documents. 

   CONSIDERATION

10. The matters which the appellant agitated orally seem to raise a new argument.  Consequently, the appellant requires leave to rely on the argument on appeal.  Leave would be granted if it were in the interests of justice to do so.  Inevitably a consideration of that issue will involve some estimate of the merits of the argument. 

11. It was open to the Tribunal to treat the letters concerning the appellant’s political involvement as lacking in veracity.  It is noteworthy that the Tribunal did not entirely reject these documents, but rather placed little weight on them.  It was for the Tribunal to assess the weight of this evidence and no jurisdictional error is demonstrated in the way in which it approached the task.

12. In relation to the ‘first information report’, the Tribunal did conclude that it was not a genuine document.  The Tribunal reasoned as follows:

    The applicant has also presented new claims that he is subject to false charges, or at least a First Information Report filed on 13 September 2005 that might form the basis for charges.  The Tribunal does not accept that there are any such politically motivated or other false charges, for the reasons that follow.  Had any such complaint been filed in September 2005, the authorities would have had every reason to at least enquire about the applicant’s whereabouts, for instance at the company he owns.  Any such enquiries would surely have come to his attention before the first Tribunal hearing on 21 November 2005.  While the Tribunal recognises that false charges by their very nature contain untruths, it also does not help the applicant that he was vague about their contents and seemingly reluctant to seize on the demonstrable fact that he was out of the country on the date of the alleged offence.  Most significantly, however, is the absence of any discernible trigger as to why the Jamat-e Islam and/or the authorities would be motivated to pursue the applicant months after he had left the country.  At the very least, it suggests that they are not monitoring or pursuing him.  It also casts grave doubt on the alleged motivation of the Jamat-e Islam – laying false charges against a person appears destined to thwart whatever hopes they might have had of enlisting him to help them build bombs.  All of the above concerns, against a background of country information about extensive document fraud in Bangladesh, lead the Tribunal to conclude that the alleged First Information Report is not a copy of a genuine police document; and that there are indeed no charges whatsoever against the applicant. 

    Again, the Tribunal exercised a fact-finding function and came to a conclusion which was open to it.

13. In relation to the alleged error of failing to verify the documents concerning political involvement, the Tribunal indicated in the passage extracted in [3] of these reasons that it did not do so because its primary concern lay not with the authorship or genuineness, but with the veracity of the contents.  The Tribunal had no obligation to further investigate the veracity of the contents of the letters.  It did not commit jurisdictional error in this regard.

14. The proposed new argument is thus bound to fail and leave to rely on it is refused.

15. I have also considered the reasoning of the Federal Magistrate and agree with his conclusions on the two grounds of the application dealt with in his judgment.  It follows that the appeal must be dismissed. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:       17 August 2007

Counsel for the Appellant:	Appeared in person
Counsel for the Respondent:	Ms Broderick
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	1 August 2007
Date of Judgment:	1 August 2007