SZRIU v Minister for Immigration and Citizenship

[2013] FCA 435

FEDERAL COURT OF AUSTRALIA

SZRIU v Minister for Immigration and Citizenship [2013] FCA 435

Citation:		SZRIU v Minister for Immigration and Citizenship [2013] FCA 435
Appeal from:		SZRIU v Minister for Immigration & Anor [2013] FMCA 92
Parties:		SZRIU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 342 of 2013
Judge:		COWDROY J
Date of judgment:		10 May 2013
Legislation:		Migration Act 1958 (Cth), ss 65, 429
Cases cited:		Al-Amidi v Minister for Immigration and Multicultural Affairs (2000) 177 ALR 506 Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28
Date of hearing:	10 May 2013
Date of last submissions:	29 April 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	25
Counsel for the Appellant:	The appellant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 342 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZRIU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	10 MAY 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the costs of the First Respondent.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 342 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZRIU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE:	10 MAY 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) delivered on 15 February 2013 dismissing an application for a review of a decision by the second respondent (‘the Tribunal’). The Tribunal’s decision was handed down on 16 March 2012 affirming the decision of the delegate of the first respondent not to grant the appellant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’).

   BACKGROUND

2. The appellant is a Bangladeshi citizen who arrived in Australia in November 2010 on a maritime crew visa. On 26 November 2010 the appellant applied for a protection visa. A delegate of the first respondent made a decision to refuse the application for the visa on 12 August 2011.

3. The appellant claimed to be an active member of Islami Chhatra Shibir, the youth wing of the Jamaat-e-Islami party. He claimed that he had been a youth leader, and that he had assisted in organising party activities and assisting with election campaigns.

4. The appellant claimed that in 2004 he was beaten at college by members of the Chhatra League, the youth wing of the Awami League, and that he was hospitalised. Following this incident he changed colleges, but he continued to be threatened by Chhatra League members. He claimed that in 2005 he was again beaten by Chhatra League members, and that he believed the only reason he was not killed was because local people stepped in to defend him. Following this incident he relocated to Chittagong and began studying at a new college, but was again attacked by Chhatra League members in June 2006. He claimed that on this occasion he was rendered unconscious and that he was hospitalised for his injuries.

5. The appellant claimed to have then moved to live with his aunt in Gazipur, and that subsequently he took work on a ship to avoid further attacks, but that he continued with his political activities, including assisting with the 2008 election. He claimed that following the election his family’s house was attacked and his parents beaten, and that he again relocated to a different area, although he remained involved in politics. He claimed his aunt received threats that her house would be burnt down if he was to stay with her again. He claimed that he left Bangladesh on the advice of his family.

6. The Tribunal found that the appellant was not credible and that his evidence was both inconsistent and implausible, save for that he is from Bangladesh and works on ships. The Tribunal consequently gave no weight to various documents submitted by the appellant. The Tribunal was not satisfied that the appellant would face a real chance of persecution for a Convention reason should he return to Bangladesh.

   PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

7. By amended application filed on 10 July 2012, the appellant sought to rely upon the following grounds in the Federal Magistrates Court:

   1.The Refugee Review Tribunal failed to consider my sinuses and stress that adversely affected me to produce my evidence before the Tribunal.

   Particulars:

   A.The Tribunal failed to consider my sinuses and stress that adversely affected me to produce my evidence fore the Tribunal. Further the Tribunal made the following comment that:

   i)The Tribunal is satisfied that over both bearing days the applicant was in a position to give evidence, to comprehend the Tribunal’s questions and to articulate his responses.

   2.The Refugee Review Tribunal failed to consider that relocation is not a solution in the perspective of Bangladeshi geography and culture.

   Particulars:

   A.The Tribunal failed to consider that relocation is not a solution in the perspective of Bangladeshi geography and culture. The Tribunal made a comment in this respect that

   i)The Tribunal does not believe that the party could not have been able to arrange for the applicant to stay with someone in another place away from Gazipur.

   3.The Refugee Review Tribunal failed to make any enquiry to the relevant persons who are the core witnesses of my claims instead of my repeated request.

   Particulars

   A.The Tribunal failed to make any enquiry to the relevant persons who are the core witnesses of my claims instead of my repeated request. The Tribunal made the the following comment that:

   i)The Tribunal declined his request to call his mother and Mr Hossain as it did not wish to compromise the applicant’s safety and the confidentiality of the proceeding.

   ii)In fact I lodged a protection visa because of my safety and the mentioned witness was core witness of my claims. I do no understand the Tribunal said about what sort of safety and did not make any investigation about the authenticity of my claims, rather the Tribunal attacked my credibility.

   [Errors in original]

8. The Federal Magistrate (as she then was) found that the Tribunal had considered the appellant’s difficulty with his sinuses and his stress, and that it was open to the Tribunal to find that the appellant was able to comprehend the Tribunal’s questions, give evidence and articulate himself. The Federal Magistrate also found that ground 1 invited impermissible merits review.

9. The Federal Magistrate found that ground 2 misunderstood the Tribunal decision and that given that the Tribunal comprehensively rejected the appellant’s claims it was not required to consider the issue of relocation.

10. In relation to ground 3, the Federal Magistrate found that the Tribunal is under a duty to review, not under a duty to enquire, and that the circumstances of the current case did not give rise to an obligation on the Tribunal to make further investigations. The Federal Magistrate also found that it was open to the Tribunal to find that a telephone call to Bangladesh may have been open to interception and that it was open to the Tribunal to refuse to contact the appellant’s witnesses for these reasons. The application was dismissed with costs.

    THE APPEAL

11. The appellant filed his notice of appeal on 28 February 2013. He relies on identical grounds as those before the Federal Magistrate.

    HEARING BEFORE THIS COURT

12. The appellant appeared before the Court assisted by an interpreter.

13. The written submissions of the appellant referred to the fact that the Tribunal raised questions concerning the credibility of the appellant; that the Tribunal did not give weight to the various certificates from clinics in Bangladesh; and that the Tribunal found that the appellant was not a credible witness. The submissions then refer to the fact that the Tribunal did not give any weight to the supporting documents provided by party leaders and ignored the appellant’s request to justify the testimony of references.

14. Prior to the commencement of his oral submissions, the appellant was informed by the Court that the purpose of the appeal was to assess whether the Federal Magistrate had fallen into legal error in her decision. In his oral submissions however, the appellant only raised issues of fact. On this basis, the appeal must be dismissed. For completeness however, the Court will outline the matters raised by the appellant at the hearing.

15. The appellant alleged events of persecution not put before the Tribunal. These included references to an attack by terrorists on his mother in 2010, and that his house was set on fire and destroyed in 2011. As a result of the attack on his house, the appellant alleges that he spent six days in Chittagong Hospital for injuries to his head, neck and leg and also for his loss of consciousness. The appellant maintained that he forgot to tell the Tribunal of these incidents due to his sinus condition and his mental state. The appellant also referred to recent events which have occurred in Bangladesh including campaigns being waged against Islamic fundamentalists. The appellant offered to provide further evidence on these matters if granted time and a further hearing before the Tribunal. These matters are impermissible grounds for judicial review.

16. The Court now turns to the grounds of appeal outlined in the appellant’s notice of appeal.

17. The Court observes that the Tribunal was aware that the appellant complained of his medical condition and his sinuses and stress. However, no evidence was led to suggest that the appellant was unfit to give evidence. The Tribunal commented that it was satisfied that the appellant was in a position to give evidence and to comprehend the Tribunal’s questions. In these circumstances, the primary judge was correct to find that the appellant was able to comprehend and understand the proceedings: see Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [22] and [49].

18. Secondly, the appellant submits that the Tribunal erred in finding that the appellant could have been able to relocate to another place away from Gazipur where he claimed he had been mistreated. The appellant submits that such a finding overlooks the fact that Bangladesh is a small country; that its people are very much connected together; that 85% are practising Islam as their religion; and accordingly that relocation is not an option for him in Bangladesh. Further, the appellant states that the presence of an outsider would immediately attract attention and that the Tribunal should, consistent with the observations in Al-Amidi v Minister for Immigration and Multicultural Affairs (2000) 177 ALR 506, have found that it was not reasonable for him to relocate.

19. The Federal Magistrate found that the Tribunal did not make a finding in relation to relocation. Since the Tribunal did not find that the appellant had a well-founded fear of harm anywhere in Bangladesh, such issue was not required to be considered. The Federal Magistrate correctly rejected such ground.

20. The third ground raised by the appellant concerns an alleged failure to make inquiry to relevant persons. The appellant submits that the Tribunal failed to make any inquiry of relevant persons who were the core witnesses of his claims. Further, the Tribunal observed that it declined to call the appellant’s mother and Mr Hossain, since it did not wish to compromise the appellant’s safety and confidentiality of the proceedings.

21. The appellant submits that he lodged his protection visa because of his safety concerns in Bangladesh and does not understand the issues of safety and confidentiality to which the Tribunal referred. The appellant submits the Tribunal found against his credibility because it did not make the enquiries that he sought.

22. The Tribunal stated why it declined to telephone the appellant’s mother and Mr Hossain. The Federal Magistrate correctly held that there was no duty on the Tribunal to make enquiries in the circumstances and referred to Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25]. There was no misunderstanding by the Tribunal of the requirements of s 429 of the Migration Act 1958 (Cth). Her Honour’s findings at [62]-[75] accurately state the relevant principles and findings. It is not necessary for the Court to repeat them. It is sufficient to observe that, as stated by her Honour at [63], there is no general obligation upon a Tribunal to investigate an applicant’s claims: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]. Such a principle accords with the fact that it is the responsibility of the applicant rather than the Tribunal to make its case. Rather, the Tribunal is ‘required to determine the substantive issues raised by the material and evidence before it’: see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63. Significantly in this regard, the Federal Magistrate observed at [65], ‘the applicant did not give any evidence of any degree of cogency that would have prompted an obligation on the part of the Tribunal to investigate his claims further’.

23. It should also be noted, as recorded at [66] of the Federal Magistrate’s decision, that whilst the Tribunal would not take evidence by telephone from the purported witnesses, it would permit two weeks to enable the appellant to produce statements from both witnesses.

24. For these reasons the Court upholds the findings of the Federal Magistrate that there was no misunderstanding on the part of the Tribunal of its interpretation of s 429 or of its other duties.

25. It follows that the appeal must be dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:       10 May 2013