SZMFA v Minister for Immigration and Citizenship

[2009] FCA 958

FEDERAL COURT OF AUSTRALIA

SZMFA v Minister for Immigration and Citizenship [2009] FCA 958

Migration Act 1958 (Cth) ss 91R, 424, 424A, 424B, 441A

Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 discussed
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 cited
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 cited
SZKTI v Minister for Immigration and Citizenship (2008) 168 FCR 256 referred to
SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407 referred to
SZMBS v Minister for Immigration and Citizenship (2009) 176 FCR 141 cited
VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 cited

SZMFA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1796 of 2008

BENNETT J
26 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1796 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMFA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	26 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave be granted to the appellant to rely upon grounds raised in his submissions that were not raised before the Federal Magistrate.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs in the amount of $3,950.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1796 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMFA
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	26 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the decision of Orchiston FM (SZMFA v Minister for Immigration [2008] FMCA 1468) dismissing an application for review of a decision of the second respondent, the Refugee Review Tribunal (‘the Tribunal’). The decision of the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship (‘the Minister’), to refuse to grant the appellant a Protection (Class XA) visa.

2. The appellant is a citizen of Bangladesh who claimed to fear persecution for his political opinion as an active member of the Bangladesh National Party (‘the BNP’) and to fear harm from rival political groups and from the caretaker government of Bangladesh.  The Tribunal decision was dated 14 March 2008.  The BNP’s rival party, the Awami League, won the election.  The appellant asserted that this occurred with the help of the caretaker government. 

   THE TRIBUNAL DECISION

3. The Tribunal was not satisfied that the appellant’s claim to fear persecution was well founded, noting that it was contrary to independent country information and that the appellant had, on the Tribunal’s findings, no more than a minor involvement in Bangladeshi politics.

4. The Tribunal referred, in its reasons, to information received from the Australian High Commission in Dhaka (‘the High Commission’) in relation to the appellant’s claims and also to a report by the High Commission regarding the general situation in Bangladesh.

   THE DECISION OF THE FEDERAL MAGISTRATES COURT

5. The grounds of the further amended application to review the Tribunal decision were:

   1.        The Tribunal failed to consider the chance of future harm to the appellant; and

   2.The Tribunal erred in its application of s 91R of the Migration Act 1958 (Cth) (‘the Act’).

   Ground one

6. The appellant was represented by counsel in the Federal Magistrates Court.  He submitted that the Tribunal did not properly apply the “real chance test”, as it failed to consider the possibility that the Awami League could be elected in the future.

7. Federal Magistrate Orchiston found that the appellant did not directly raise with the delegate or the Tribunal the question whether he might be persecuted should the Awami League at some future time return to power.  It was not for the Tribunal to make the appellant’s case for him.  Her Honour held that, on a fair reading, the appellant’s claims concerned the then current caretaker government in Bangladesh and did not raise the claim to fear harm from the Awami League.  The Tribunal did, her Honour noted, specifically consider the reasonably foreseeable future in relation to what may happen to the appellant if he were to return to Bangladesh while the current caretaker government remained in office.  The Tribunal also considered, in general terms, the reasonably foreseeable future in relation to the elections expected in later 2008, as well as considering the reasonably foreseeable future in relation to the outcome of possible past or future claims against the appellant.  That is, her Honour concluded that the Tribunal had considered the reasonably foreseeable future as regards the claims the appellant in fact made.

   Ground two

8. As to s 91R of the Act, the Federal Magistrate observed that whether particular conduct amounts to persecution under s 91R is a matter of fact and degree for the Tribunal to determine in its fact-finding role (VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 at [67]) and found no jurisdictional error.

9. Accordingly, her Honour rejected the second ground in the application for review, that the Tribunal erred in its application of s 91R by failing to consider whether the appellant might suffer persecution as a result of false charges he claimed were filed against him.

   NOTICE OF APPEAL

10. The grounds of appeal raised by the appellant are:

    1.The learned Magistrate erred by not holding that the Tribunal made jurisdictional error as it was not open for the Tribunal to make a finding that “Some of the statement made at hearing regarding the fate of party colleagues have been shown to be incorrect.  His errors have been drawn to this attention on the Tribunal’s letters but he has not addressed them in his replies”  And the conclusion was made from this observation is quietly irrelevant with the observations.  The Tribunal did not make comments on the applicant’s reply.

    2.The learned Magistrate erred by not holding that the Tribunal made jurisdictional error that the Tribunal did not take into account the fear for harm in the future of the applicant for his political opinion.  The Tribunal did not put any supporting evidence about its comment on false cases against the applicant because the false cases are investigated improperly and unfairly people are involved to persecute by the Government Agency.  The applicant did not know that how the Australian High Commission in Dhaka made an investigation and made a report against the applicant.  The investigation was not done properly.

11. In summary, they seem to raise the following bases of appeal:

    ·The Federal Magistrate erred by not finding that the Tribunal erred by making findings which were not open to it.  The Tribunal did not address the appellant’s replies to its letters regarding certain factual inaccuracies in the appellant’s claims.

    ·The Federal Magistrate erred by not finding that the Tribunal erred by failing to take into account the appellant’s fear of future harm due to his political opinion.

    ·The investigation by the High Commission was not done properly.

12. The Minister says that these grounds do not relate to the grounds pleaded before the Federal Magistrate.  The Minister submits that leave is required to rely on those grounds and opposes leave being granted, as there is no explanation why those grounds were not raised before the Federal Magistrate and as they are unmeritorious.

    Consideration of the grounds in the notice of appeal

    Ground one

13. The Minister submits that the first ground appears to take issue with the Tribunal’s findings without explaining why it was not open to the Tribunal to make them.  This, the Minister says, at most alleges factual error.

14. I accept the Minister’s submission as to ground one of the notice of appeal.  This was not raised before the Federal Magistrate and has no merit.

    Ground two

15. The second ground of appeal can be said to be the same as that raised before the Federal Magistrate. As put to her Honour, it was that the Tribunal failed to consider what would happen to the appellant if the caretaker government were no longer in power but the Awami League was.  Her Honour considered the claims made by the appellant, in writing and before the Tribunal, and concluded that he had only made two direct references to the Awami League and had made no claim or assertion regarding what may happen to him if the Awami League regained power.  Her Honour considered that the appellant’s claims were directed to an alleged fear of persecution under the caretaker government, which the Tribunal had considered.  As her Honour pointed out, it was not for the Tribunal to make the appellant’s case for him.

16. The Minister characterised the second ground of appeal as a complaint that the Tribunal found that the appellant did not fear harm from false charges. That is a finding of fact. As the Minister points out, to the extent that it is suggested that the Tribunal needed to disclose country information which it took into account in forming its view, no such obligation exists (s 424A(3)(a) of the Act).

17. As to the information obtained by the Tribunal from the High Commission regarding the appellant’s claims, this was the subject of two letters pursuant to s 424A, to which the appellant responded. It follows that he did know that the investigation referred to in these letters had taken place. The appellant has not provided particulars in his notice of appeal of how the investigation by the High Commission was otherwise ‘not done properly’.

    Consideration of the appellant’s submissions

18. The appellant is not presently legally represented.  He has filed written submissions.

19. In substance, the appellant’s case as set out in his written submissions seems to be as follows.  He says that the Tribunal did not assess his claim properly because it did not accept his claim.  The Tribunal said that the appellant’s errors concerning the BNP and its office-holders demonstrated a lack of knowledge inconsistent with the level of political involvement he claimed.  The appellant says that the Tribunal’s finding that some of the appellant’s statements were incorrect involved ‘a wrong observation’ and that there is nothing to support the Tribunal’s refusal to accept the appellant’s claims regarding the situation in Bangladesh.

20. I find the appellant’s submissions somewhat confusing.  In any event, they seem to represent a challenge to the fact-finding by the Tribunal and, as such, go to the merit of the Tribunal’s decision.  The findings of fact are for the Tribunal and no jurisdictional error is apparent.

    The Tribunal’s letters to the appellant

21. The appellant says that the Tribunal’s letters, which I take to be the letters from the Tribunal to the appellant inviting comment on the information received from the High Commission, were “not made” according to the law and that ‘the contents of the letter has not collected by independent agent’. The letters from the Tribunal to the appellant invited comment on information obtained from the High Commission concerning the appellant’s position with the BNP and office-holders in that party. There is nothing to suggest that those letters did not comply with s 424A or s 424B of the Act.

    The Tribunal’s request for information from the High Commission

22. The Tribunal requested information from the High Commission on two occasions concerning the appellant’s political activities.  The correspondence between the Tribunal and the High Commission is not in the appeal book or otherwise before me.

23. The s 424A letters referred to in [21] above were sent to the appellant following the receipt of information from the High Commission. In the first s 424A letter, no person was named as the informant to the High Commission. In the second s 424A letter, a number of people were named as having provided information to the High Commission.

24. Section 424(2) of the Act (as then in force) applies to a situation where the Tribunal invites a person to give additional information. It does not apply to additional information that may have been given by a person to the person invited by the Tribunal to provide information. In my view, s 424(2) and s 424(3) do not apply to an invitation from the Tribunal to an Australian Embassy or High Commission overseas to give additional information to the Tribunal. Although SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407 does not directly deal with this circumstance, such a conclusion is not inconsistent with the reasoning in that case and is consistent with SZMBS v Minister for Immigration and Citizenship (2009) 176 FCR 141. It does not involve the “vice” that was a consideration in SZKTI v Minister for Immigration and Citizenship (2008) 168 FCR 256, which concerned an unexpected invitation to a third party.

25. To the extent that s 424(2) and s 424(3) apply to the additional information requested by the Tribunal from the High Commission, the reasonable inference in the absence of evidence to the contrary is that the second invitation for information was given by one of the methods in s 441A, which includes prepaid post and fax, email or other electronic means.

26. The appellant asserts that, in some otherwise unspecified way, the High Commission “concealed the truth” from the persons from whom it sought information and that it was not neutral.  There is no evidence or inference to support those assertions and I reject them.  The appellant complains that the High Commission spoke to the wrong people in Bangladesh but he had an opportunity to respond to the High Commission’s information and did so.

    The report by the High Commission

27. The Tribunal, in its decision, referred to information from the High Commission in the nature of country information about the then current position in Bangladesh, including the political situation.

28. The appellant appears to submit that the High Commission’s report regarding the general situation in Bangladesh ‘has no authenticity’ and is not supported by ‘the independent report’.  He contends that the High Commission report ‘is not made according to the Act’.  He also asserts that the High Commission’s report is not an independent report, by which I take it to mean that it is not independent country information.

29. The appellant elaborated on some of his submissions at the hearing, where he appeared in person assisted by an interpreter.

30. The appellant contends that this country information received from the High Commission was not valid and was not independent information.  This, he says, was because the people who collected the information are controlled by ‘the Minister’ or ‘the Minister’s officials’. There is no evidence to support this assertion and I reject it. I note that the Tribunal was not obliged to comply with s 424A in respect of this report from the High Commission as it was information in the nature of country information that comes within s 424A(3)(a) (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572).

31. As for the status of the report, as information that the Tribunal was entitled to take into account, I note that s 424(1) provides that the Tribunal may get any information that it considers relevant, so long as it complies with the Act, which includes procedures considered sufficient to afford natural justice with respect to that information. That information does not, as the appellant contends, have to be verified or supported by an international authority. In accordance with s 424(1), the Tribunal did have regard to the information in making its decision and was entitled to do so. There is no suggestion that the Tribunal was acting at the dictate of the High Commission and, despite the appellant’s assertions, no evidence that the Tribunal or the High Commission were acting at the dictate of any person in Bangladesh (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 452).

32. No other procedural unfairness is identified by the appellant.  Otherwise, this aspect of the appellant’s case seems to concern the fact-finding by the Tribunal.

    Other issues

33. The Tribunal did not accept the situation described by the appellant as to the political situation in Bangladesh.  The Tribunal accepted that politics in that country has always been accompanied by violence but found that the violence against political opponents has been largely random and lacked the systematic and purposive elements necessary to be called persecution, especially when involving minor figures such as the appellant.

34. The appellant claimed to fear persecution in Bangladesh for reason of his political opinion. That political opinion must be the essential and significant reason for the persecution, the persecution must involve serious harm to the appellant and the persecution must involve systematic and discriminatory conduct (s 91R(1) of the Act). As the Federal Magistrate pointed out at [42] and as set out in the cases there cited, whether particular conduct amounts to persecution under s 91R is a matter of fact and degree for the Tribunal to determine in its fact-finding role.

35. The appellant says that a decision based on him being a “minor figure” politically is not a proper basis on which to determine persecution for a Convention reason.  However, the Tribunal considered his claim to fear persecution for reason of his political opinion.  It concluded that his political involvement was “minor” and, for the reasons it gave, which included its assessment of his degree of political involvement, it did not accept that there was a real chance that the appellant would be arrested or otherwise harmed for reason of his political opinion if he were to return to Bangladesh.  That amounted to a consideration of the appellant’s claims as presented and coming to a conclusion that they did not satisfy the Tribunal that he had a well founded fear of persecution.  The fact that the Tribunal found that he had a minor political role was part of its reasoning process.

36. The appellant relies on the fact that he sent his own letters and supporting documents to the Tribunal in respect of his position in the BNP.  The Tribunal specifically referred to those documents and their contents in its reasons.

37. The appellant also says that the Tribunal did not give reasons why it was not convinced that there was sufficient information to support his claim.  This is a mere assertion without particulars.  I see no insufficiency in the reasons given by the Tribunal for its conclusions.

38. I see no jurisdictional error in the way the Tribunal considered the appellant’s claim.

39. The appellant contends that the Federal Magistrate did not consider his complaints.  There is no basis for that contention and it is contradicted by her Honour’s reasons.

40. I see no error on the part of the Federal Magistrate.

    The High Court’s decision in Minister for Immigration and Citizenship v SZKTI

41. These reasons were written prior to the decision of the High Court, handed down this morning, to allow the appeal in SZKTI (Minister for Immigration and Citizenship v SZKTI [2009] HCA 30). The High Court there accepted (at [28]) the Minister’s submissions (at [27] –[28]) that s 424(2) does not operate to limit the general facultative power given by s 424(1) in aid of the inquisitorial functions of the Tribunal. The limitation on that general power is that the Tribunal ‘must have regard’ to that information in making its decision (at [37]).  Procedural fairness is assured by, inter alia, the requirements of s 424A. The High Court concluded (at [48]) that the procedural restrictions on the specific power to issue an invitation to give additional information do not qualify the Tribunal’s general power in s 424(1) to ‘get any information that it considers relevant’.

1. It follows that the method adopted by the Tribunal to obtain the information did not give rise to jurisdictional error.

   CONCLUSION

2. It follows that the appellant has not demonstrated jurisdictional error on the part of the Tribunal or error in the decision of the Federal Magistrate.  He has not made out the grounds of appeal in his notice of appeal. 

3. To the extent that the appellant’s submissions raise matters not covered in the grounds of the notice of appeal, the appellant has not demonstrated jurisdictional error on the part of the Tribunal or error on the part of the Federal Magistrate.

4. While I have decided to grant leave to the appellant to raise grounds not raised before the Federal Magistrate, I consider that the appeal should be dismissed with costs.  The respondent has sought an order for fixed costs in the amount of $3,950.  I am satisfied that the amount sought is appropriate.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:       26 August 2009

The Appellant appeared in person.
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	24 August 2009
Date of Judgment:	26 August 2009