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Federal Court of Australia |
Last Updated: 22 February 2008
FEDERAL COURT OF AUSTRALIA
SZFMD v Minister for Immigration and Citizenship [2008] FCA 139
SZFMD
v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW
TRIBUNAL
NSD 1817 OF 2007
COWDROY J
22
FEBRUARY 2008
SYDNEY
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AND:
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THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The Appellant pay the costs of the First Respondent in the amount of $3,008.75 pursuant to O 62 r 4(2)(c) of the Federal Court Rules.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court
Rules.
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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SZFMD
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
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JUDGE:
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COWDROY J
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DATE:
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22 FEBRUARY 2008
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
1 The appellant appeals from the decision of Federal Magistrate Turner delivered on 20 August 2007 in which his Honour affirmed the decision of the Refugee Review Tribunal (‘the Tribunal’) signed on 6 March 2007. The Tribunal upheld the decision of a delegate of the extant Minister for Immigration and Multicultural Affairs (‘the Minister’) to refuse to grant the appellant a protection visa. The decision of the delegate had been affirmed by a previous Tribunal, differently constituted, on 23 November 2004, but that decision was set aside and remitted to a second Tribunal. Federal Magistrate Turner affirmed the Tribunal’s later decision is the subject of the appeal before this Court.
BACKGROUND
2 The appellant is a citizen of Bangladesh who arrived in Australia on 3 May 2004 using a visitor visa. On 8 June 2004 the appellant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (‘the Department’). On 11 June 2004 a delegate of the Minister refused to grant a protection visa to the appellant and on 8 July 2004 the appellant applied to the Tribunal for a review of that decision.
3 The appellant gave evidence at the hearing before the first Tribunal, differently constituted. After the remittal the Tribunal sent a letter on 1 February 2007 to the appellant inviting him to a hearing before it scheduled for 1 March 2007. The unrepresented appellant attended the second hearing before the Tribunal and was assisted by an interpreter in the Bengali language. Before both Tribunals the appellant submitted various corroborating documents in support of his claims.
4 The appellant claimed persecution resulting from his political opinion. The appellant claimed that his family had been involved in the Awami League and that he had been influenced by its political philosophy at a young age. He claimed that he had been an active member of the Awami League since 1995 and that he was an ‘Organising Secretary’ for his district from 2000-2002. He claimed that he was involved in organising political activities and anti-government protests against the Bangladesh National Party (the ‘BNP’) and Jamat-e-Islami.
5 The appellant claimed that after the BNP came to power with the support of Jamat-e-Islami, leaders of the BNP filed false cases against him and the police began to harass him. The appellant claimed that in November 2000 he was assaulted by BNP members and had his index finger broken. Fearing further harassment, the appellant claimed that he hid in an unknown place in Dhaka to avoid terrorist groups. The appellant claimed that in December 2002 he fled to Dubai in order to save his own life. The appellant claimed that he was forced to work in unhealthy conditions in Dubai. The appellant claimed that he feared he would be harassed and killed if he returned to Bangladesh.
6 At the second Tribunal hearing the appellant made a claim in addition to those he made in the first Tribunal hearing. The appellant claimed that he read books by the Bangladeshi feminist author Taslima Nasreen and that he feared harm would result from such reading. In particular, he claimed that in 2001 a member of Jamat-e-Islami saw him reading a book by Taslima Nasreen called ‘Lajja’, and that the member consequently accused the appellant of blasphemy.
TRIBUNAL’S DECISION
7 The Tribunal was not satisfied that the appellant was a credible witness. It found that his claims and evidence had been ‘implausible, completely lacking in credibility’ and that his evidence at the hearing was ‘mendacious in the extreme’. The Tribunal further found that the appellant’s knowledge of the Awami League was negligible; that there were inconsistencies in the appellant’s evidence regarding his residential address in Bangladesh and the details of the alleged assault; and that he exhibited ‘complete ignorance’ of the ideology and works of Taslima Nasreen. In light of the appellant’s lack of credibility the Tribunal did not rely on any of the documents submitted by him.
8 The Tribunal was not satisfied that there was a real chance that the appellant would be persecuted in the reasonably foreseeable future if he returned to Bangladesh. The Tribunal was not satisfied that the appellant had a well founded fear of persecution for a Convention Relating to the Status of Refugees 1951 (‘Convention’) reason. Accordingly the Tribunal found that the appellant was not a person to whom Australia owed protection obligations under the Convention. As he did not satisfy the criterion set out in s 36(2) of the Migration Act 1958 (Cth) (‘the Act’) for a protection visa, the decision of the Minister’s delegate was affirmed.
APPLICATION FOR REVIEW TO THE FEDERAL MAGISTRATES COURT
9 By application filed on 26 April 2007 in the Federal Magistrates Court the appellant sought to quash the Tribunal’s decision on the following grounds:
1. The Tribunal made a jurisdictional error in relying upon alleged inconsistencies in the appellant’s evidence;
2. The Tribunal made a jurisdictional error in its failure to provide to the appellant particulars on information pursuant to s 424A of the Act;
3. The Tribunal made a jurisdictional error in asking the appellant the ‘wrong questions’ regarding the Awami League;
4. The Tribunal made a jurisdictional error in not giving the appellant sufficient opportunity to answer the observations of the Tribunal that led it to affirm the decision of the delegate of the Minister; and
5. The Tribunal denied the appellant natural justice.
10 At the hearing before Turner FM on 20 August 2007 the appellant tendered a medical certificate in support of an application for an adjournment. The Federal Magistrate did not consider that the medical certificate indicated that the appellant was incapable of conducting the proceedings and consequently refused the application.
11 In relation to the appellant’s first ground of appeal, Turner FM concluded that the adverse findings on credibility were ‘very firm’ and were supported by an extensive examination of the evidence by the Tribunal. Turner FM found that all the findings of fact by the Tribunal were open to it upon the evidence, and noted that the consideration of inconsistencies in evidence is an essential function of the Tribunal. His Honour rejected the appellant’s first ground of appeal.
12 In relation to the appellant’s second ground of appeal, Turner FM found that the provisions of s 424A(1) of the Act, which require the Tribunal to give notice to an appellant of any matter which may form the reason for its decision, did not apply to the information regarding the appellant’s involvement with the Awami League as it was provided by the appellant: see s 424A(3) of the Act. Further, his Honour agreed with the first respondent’s submissions that the Tribunal’s finding in relation to ‘Lajja’ was not ‘information’ as it was not the reason or part of the reason for the Tribunal’s decision. Turner FM rejected the appellant’s second ground of appeal.
13 Turner FM considered that the appellant’s third ground of appeal alleges bias. His Honour found no basis for the allegation and rejected such ground.
14 In relation to the appellant’s fourth ground of appeal, Turner FM found that the Tribunal had not breached s 424A of the Act as the particulars referred to issues that related to the subjective reasoning of the Tribunal and therefore was not ‘information’ for the purposes of that section. Further, his Honour found that the Tribunal had made specific reference to the issues in the particulars and had given the appellant adequate opportunity to respond to those issues. In light of the above, Turner FM rejected the fourth ground of the appellant’s appeal.
15 Turner FM found that the Tribunal had not breached any provision in Division 4 of the Act and that the Tribunal had complied with procedural requirements under the Act. The appellant had not been denied natural justice and Turner FM accordingly rejected the appellant’s fifth ground of appeal.
16 For these reasons, Turner FM was unable to discern any jurisdictional error and dismissed the application.
APPEAL TO THIS COURT
17 On 5 September 2007, the appellant appealed to this Court from the decision of Turner FM by filing a Notice of Appeal which raised two grounds:
1. The Federal Magistrate erred in not finding jurisdictional error where the Tribunal had failed to give to the appellant information that was adverse to him and which formed the reason or part of the reason for rejecting his claim pursuant to s 424 of the Act; and
2. The Federal Magistrate erred in not finding that the Tribunal had denied the appellant natural justice by not asking the appellant ‘right and relevant questions’.
FIRST GROUND OF APPEAL
18 In the appellant’s written submissions he alleged that there were inconsistencies ‘that arose within the Tribunal’s hearing with the applicant’ and nominated a page of the appeal book where the Tribunal noted inconsistencies that occurred during the Tribunal’s hearing. The appellant submits that such inconsistencies were not provided to him in writing to comment pursuant to s 424A of the Act as they formed the reason for the Tribunal’s rejection of the appellant’s claim. The appellant alleges that the Tribunal ‘got this information form [sic] the application to the department files’ and thereby breached s 424A of the Act. The appellant relies upon SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2.
19 The appellant’s claim that information was obtained from Department files is not apparent in the references provided in the appellant’s written submissions. The inconsistencies referred to arise out of the appellant’s own oral evidence provided during the Tribunal hearing. The inconsistencies do not arise from any other source. Paragraph 424A(3)(b) of the Act provides that s 424A does not apply to information that the appellant gave for the purpose of his application.
20 In light of the above, there is no jurisdictional error demonstrated in Turner FM’s application of s 424A(3) of the Act. This Court rejects the appellant’s first ground of appeal.
SECOND GROUND OF APPEAL
21 The appellant also submits that the Federal Magistrate erred in failing to find that the Tribunal had denied natural justice to the appellant. The appellant submits that this denial arose out of the Tribunal’s failure to ask the appellant ‘right and relevant questions’.
22 As Turner FM correctly concluded, the Tribunal complied with all statutory procedural requirements contained in Division 4 of the Act. As such, natural justice had been extended to the appellant under s 422B of the Act. This Court accordingly rejects the appellant’s second ground of appeal.
OTHER SUBMISSIONS OF THE APPELLANT
23 In the appellant’s written submissions he claims that his application was rejected by the Tribunal on the basis of his lack of credibility. He submits that such conclusion was reached through the Tribunal’s findings on two aspects, namely the appellant’s claims regarding his membership in the Awami League and the appellant’s claims regarding the works of Taslima Nasreen.
24 The appellant’s submissions seek to demonstrate inconsistencies between the first and second Tribunals’ findings in relation to the appellant’s membership in the Awami League. The appellant submits that the first Tribunal made the finding that the appellant was a ‘very minor local Awami League member’, and that the later Tribunal made the finding that it could not be satisfied that the appellant had ever been involved with the Awami League. The appellant submits that the two findings were inconsistent.
25 The appellant submits that the Tribunal’s findings relating to the Awami League led to the Tribunal’s conclusion that the appellant was not credible. Since there was inconsistency between the two Tribunals’ findings on that point, it must follow that the foundation for the conclusion as to credibility was unsound.
26 This Court notes that the finding of the Tribunal regarding the appellant’s credibility was not based on any two reasons as the appellant asserts, but rather was drawn from the entirety of the appellant’s oral and written evidence. Further, in probing the inconsistent conclusions made by the two Tribunals as to whether the appellant was in fact an Awami League member, the appellant seems to suggest that the second Tribunal’s finding that he was not a member of the Awami League led it to conclude that his evidence was not reliable. The appellant has misunderstood the basis of the second Tribunal’s reasoning. The Tribunal’s decision makes clear that it was the appellant’s lack of credibility which led it to its finding that it was not satisfied that he had ever been involved in the Awami League, rather than the converse. That is, the conclusion that the appellant was not a member of the Awami League did not result in the finding that the appellant was not reliable.
27 This Court also notes that the conclusions made by the two Tribunals were not inconsistent. The appellant submitted that the first Tribunal found that he had been a ‘very minor local Awami League member’. In fact, the first Tribunal found that the appellant was ‘at most’ only a minor Awami League member. It did not decide whether or not the appellant had been a member. As such, that finding is not inconsistent with the later Tribunal’s finding.
28 The appellant’s grounds of appeal must be rejected. Accordingly, the appeal is dismissed.
Associate:
Dated: 22
February 2008
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Counsel for the Respondent:
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Solicitor for the Respondent:
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Date of Hearing:
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Date of Judgment:
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/139.html