SZJWO v Minister for Immigration and Citizenship

[2007] FCA 1267

FEDERAL COURT OF AUSTRALIA

SZJWO v Minister for Immigration and Citizenship [2007] FCA 1267

SZJWO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 780 OF 2007

NORTH J
31 JULY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 780 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJWO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	31 JULY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

(1)       the appeal be dismissed.

(2)       the appellant pay the first respondent the costs of the appeal fixed at $2100.

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 780 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJWO
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	31 JULY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an appeal against orders of the Federal Magistrates Court made on 16 April 2007.  The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal which was signed on 31 October 2006.  The Tribunal affirmed a decision of the delegate of the first respondent, the then named Minister for Immigration and Multicultural Affairs, the first respondent, not to grant the appellant a protection visa.

2. The appellant is a national of Bangladesh who arrived in Australia on 8 July 2002.  A previous decision of the Tribunal differently constituted made on 23 December 2003 which affirmed the delegate’s decision, was set aside by the Federal Magistrates Court on 3 May 2006. 

   THE CLAIMS

3. It is not necessary to repeat in detail the appellant’s claims which are set out in the Tribunal decision.  The appellant claimed to fear persecution because he was a well-known Hindu in his local area.  He claimed that he was politically active in support of the governing Awami League and that he helped and advised people who suffered at the hands of Bangladesh National Party (BNP) activists and their allies.  He also feared harm arising from his membership of the Bangladesh Hindu Buddhist Christian Okaya Parisad and further from his involvement in the local Hindu temple.  He feared Muslim extremists in Bangladeshi society.

   THE TRIBUNAL DECISION

4. The Tribunal concluded that the appellant’s evidence of involvement with the Awami League was unconvincing and that it was confused and vague.  It found that he lacked knowledge about the candidates in the October 2001 election in Bangladesh, despite his claim to political activism.  The appellant claimed to have held a leadership position in the Unity Council, yet the Tribunal found that the appellant lacked a real, substantial knowledge of the affairs of the Unity Council.  It also found that his knowledge of the activities of the organising committee of the local Hindu Temple was expressed in very general terms.  The Tribunal placed no reliance on a series of documents submitted by the appellant because it found that such documents were readily available in Bangladesh and that the appellant’s evidence was not independently persuasive.

5. The Tribunal continued:

   In light of the applicant’s lack of credibility, the Tribunal does not accept that the applicant was ever a supporter, member, office bearer or leader of the Chhatra League or Awami League, that he engaged in any political activities with either the Chhatra League or Awami League, or that he was involved in any election campaigns. Nor does the Tribunal accept that the applicant was a member or leader of the Unity Council or had any association with the group at all, or that he was the Vice President of the organising committee of his local temple in Bangladesh or a Hindu leader.  It follows that the Tribunal does not accept the applicant has been targeted or harmed because he was involved with the Chhatra League, Awami League, Unity Council, local temple or because he engaged in any of the activities he claims.

6. The Tribunal then considered whether the appellant had a justified fear of persecution because of his Hindu religion.  The Tribunal rejected any such claim on the basis of independent evidence as follows:

   On the basis of the independent evidence referred above the Tribunal finds that Hindus in Bangladesh are generally free to practise their religion, that relations between members of the different religious communities are generally good and the government has taken steps to promote interfaith understanding.  The Tribunal thus finds that the applicant is able to practise his religion and would not be persecuted for doing so.

   …

   In addition, the independent evidence indicates that reports that the same degree of religiously and politically motivated violence against Hindus has continued since the 2001 election has not been verified.  Further, the evidence that violence is inflicted against Hindus from time to time does not indicate that there is a real chance that all Hindus in Bangladesh face persecution in the reasonably foreseeable future.

7. The Tribunal referred to evidence which addressed the appellant’s claim of subjective fear of persecution on the basis that he was a Hindu.  The Tribunal rejected the appellant’s claim as, following the election of the BNP in October 2001, the appellant remained in Bangladesh until July 2002 despite having a visa granted in November 2001, which would allow him to travel to Singapore and Malaysia.

   THE APPLICATION TO THE FEDERAL MAGISTRATE COURT

8. The application for judicial review to the Federal Magistrate Court on 14 December 2007 included two grounds. 

   1.The Refugee Review Tribunal made jurisdictional error in that it was (sic) failed to have regard to an integer of the applicant’s claim that he was persecuted for membership of a particular social group, namely a particular Hindu family.

   2.The Tribunal made jurisdictional error in that it made an error of law or alternatively failed to correctly apply the real chance test in that it had regard to whether there was a real chance test in that it had regard to whether there was a real chance that all Hindus in Bangladesh face foreseeable persecution in the future. (sic)

9. At the hearing before the Federal Magistrate, the appellant raised a further ground as follows:

   The applicant arrived in Australia on 8 July 2002 and relatively promptly lodged an application for a protection visa. The promptness with which an applicant lodges a protection visa application is relevant to whether their claims are true. The Tribunal failed to take this matter into account in determining whether the applicant’s claims were true. On this basis, the Tribunal failed to take into account a relevant consideration, giving rise to jurisdictional error.

10. The Federal Magistrate dismissed the application, holding that in relation to the first ground, the appellant had made no claim based on membership of a particular social group. 

11. The Federal Magistrate interpreted the second ground as an allegation of error by the Tribunal in failing to apply the real chance test.  The Federal Magistrate concluded that the Tribunal had in fact applied that test. 

12. In relation to the third ground, the Federal Magistrate concluded that the relevance of the time taken to lodge the application for protection visa was a matter for the Tribunal.  It was for the Tribunal to determine whether that issue bore on the decision which it had to make.

    THE GROUNDS OF APPEAL

13. Before this court, the appellant filed a notice of appeal dated 4 May 2007.  The ground of appeal in the notice of appeal was as follows:

    GROUNDS:

    1.His Honour committed an error of law in dismissing the appeal from a decision of the Second Respondent in circumstances where the Second Respondent failed to have regard to material information supporting the appellant’s case, namely, the proximity of date of arrival and date of lodgement of application for protection visa.

    Particulars:

    a.The Tribunal found the appellant “was not a truthful witness”.

    b.The Tribunal referred to the dates of the appellant’s arrival in Australia and his application for a protection visa but did not do so in its findings and reasons.

    c.The Tribunal also dismissed the appellant’s sur place claim in relation to activities in Australia on the ground that he “was so lacking in credibility in relation to the claims he has made about his political and religious activities in Bangladesh”.

    d.Given the Tribunal’s credibility assessment and dismissal of all his claims the failure of the Tribunal to have proper regard to the dates of arrival and lodgment revealed jurisdictional error in that it demonstrates the Tribunal failed to take into account some relevant consideration.

    e.The Tribunal was obliged to have regard to such information because it had the potential to materially affect the Tribunal’s credibility assessment.

14. On 12 July 2007 the appellant filed a written submission in support of the appeal. It raised three matters. First, it alleged that the Tribunal failed to provide to the appellant information which related to its decision on the genuineness of the documents which he had submitted to the Tribunal. Second, in relation to the allegation of persecution for reason of his Hindu religion, the appellant contended that the Tribunal had not complied with s 424A of the Migration Act 1958 (Cth) by failing to provide him with the information upon which its conclusions were based. Third, on the same issue, the appellant alleged that the Tribunal had overlooked relevant information. Attached to the submission, the appellant provided a copy of a decision of the Immigration and Refugee Board of Canada dated 21 November 2001, which found that Hindus were in danger of persecution in Bangladesh at that time, and also a copy of an Amnesty International report on Bangladesh from 2005.

15. The appellant also addressed oral submissions to the Court at the hearing.  He elaborated on his argument that the Tribunal came to the wrong conclusion about the persecution of Hindus in Bangladesh.  He also explained to the Court why he did not apply for a protection visa earlier than he did.  He said that at the time he arrived in Australia he was in an unsettled state. 

    CONSIDERATION

16. In relation to the ground of appeal raised by the notice of appeal, the Federal Magistrate was correct to find that the Tribunal had no obligation to consider the promptness of the making of the application for a protection visa.  Whether this matter was relevant to the deliberation of the Tribunal was a matter for it to assess.  No jurisdictional error is demonstrated in this regard.

17. The grounds of appeal raised in the appellant’s written submissions are new.  The appellant requires leave to raise them at this late stage in the litigation.  Such leave will be granted if it is in the interests of justice to do so.  Counsel for the first respondent opposed leave on the ground that the new arguments were without merit.

18. As to the alleged failure of the Tribunal to provide the appellant with documents concerning the ease of obtaining false documents in Bangladesh, and the documents concerning the persecution of Hindus in Bangladesh, the information was contained in general country information and falls within the exception in s 424A(3)(a). Thus, there was no obligation on the Tribunal to provide that information to the appellant. In relation to the general challenge to the Tribunal’s finding that the appellant has no objective basis to fear persecution because of his Hindu religion, there were differing views on the subject contained in the country information. The Tribunal assessed the views expressed in that material and came to its own view. This course was open to the Tribunal. It amounts to a finding of fact which is a function vested in the Tribunal. The Court has no jurisdiction to interfere with that fact finding function of the Tribunal. The written submissions seem to suggest that the Tribunal’s conclusions in the passages extracted in [6] of these reasons were not substantiated from the country information upon which the Tribunal relied. However, a careful reading of the US Department of State Report 2005 quoted by the Tribunal provides the foundation for the conclusions in those two paragraphs.

    CONCLUSION

19. It follows then that the proposed new grounds of appeal are bound to fail.  Consequently, leave to raise those grounds is refused.  The sole ground of appeal raised in the notice of appeal also has no merit.  Consequently, the appeal is 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:	Appellant appeared in person
Counsel for the Respondent:	Ms V McWilliam
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	31 July 2007
Date of Judgment:	31 July 2007