SZOKF v Minister for Immigration and Citizenship [2010] FCA 1359 (7 December 2010)

Last Updated: 22 December 2010

FEDERAL COURT OF AUSTRALIA

SZOKF v Minister for Immigration and Citizenship [2010] FCA 1359

Citation:		SZOKF v Minister for Immigration & Citizenship [2010] FCA 1359
Appeal from:		SZOKF v Minister for Immigration [2009] FMCA 518
Parties:		SZOKF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 983 of 2010
Judge:		GILMOUR J
Date of judgment:		7 December 2010
Legislation:		Migration Act 1958 (Cth) Part 7 Div 4, ss 422B, 424A(1), (3)
Cases cited:		Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Date of hearing:	5 November 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	35
Counsel for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Mr Y Shariff
Solicitor for the First Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 983 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOKF Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	7 DECEMBER 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent's costs fixed in the sum of $2562.00.

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 983 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZOKF Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GILMOUR J
DATE:	7 DECEMBER 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of a Federal Magistrate of 19 July 2010 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) delivered on 12 April 2010. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

BACKGROUND

2. The appellant is a citizen of Bangladesh who arrived in Australia on 27 November 2008. On 7 August 2009 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 7 December 2009. On 4 January 2010 the appellant applied to the Tribunal for a review of that decision.
3. The appellant’s claims are outlined in a statement which was attached to his protection visa application. The appellant claims that:

(a) he was a member of the Bangladesh Nationalist Party (BNP) and was involved in street protests;

(b) members of a rival party were displeased in his refusal to join their party;

(c) in 1991, a member of the Awami League was elected as the “Commissioner” for the appellant’s local neighbourhood. The new Commissioner accused and verbally abused the appellant’s father in relation to the giving of loans and the operation of his business;

(d) after winning the national elections in 1996, the Awami League started abusing BNP activists and insisted on the appellant’s father providing bribes to them;

(e) in October 2001, the BNP won the national elections and formed a new government. The appellant was elected as the Cultural Secretary of the local BNP Committee. The appellant wrote plays, stories and poetry. During a performance of one of the plays written by the appellant, he and others were attacked by Awami League activists;

(f) his father was threatened (with a bullet being fired past him) and abducted by Awami League activists because of the appellant’s activities. The appellant approached a leader of the Awami League (who he had known since his childhood) and sought his assistance, which led to his father being released;

(g) on 11 January 2007, shortly after an interim government was installed in the lead up to a general election, a lot of people were killed during violent activities initiated by the Awami League and an emergency situation was declared. Instead of elections being conducted, the BNP’s political leaders faced trials and were sentenced to imprisonment. The interim government was working against the BNP and BNP leaders and activists were attacked;

(h) the appellant decided not to stay in one place for too long. Two of the appellant’s friends were shot dead by Awami League activists. The appellant received anonymous phone calls that were threatening and abusive. The appellant’s father told him that the Awami League was likely to form the next government and his life was “no longer secure”. The appellant’s father advised him to leave the country. The appellant’s parents organised his marriage to a woman who was residing in Australia on a student visa, and the appellant went into hiding. The appellant then applied for an Australian visa, but before the visa was granted the appellant was attacked by an Awami League supporter who tried to kill him;

(i) as soon as the appellant obtained a visa, he travelled to Australia. His relationship with his wife has dissolved and they have been living separately since 2009. As he could not stay with his wife, he took advice from his friends and discovered that he could apply for a protection visa.

4. On 7 December 2009, a delegate of the first respondent refused to grant the appellant a protection visa. In short, the delegate was not satisfied that the appellant was an active member of the BNP and, even if he was a member, the delegate was not satisfied, based on independent country information, that there was a well founded fear of persecution in the reasonably foreseeable future. The delegate also did not accept the authenticity and veracity of certain documents submitted by the appellant. The delegate also found that it was reasonable for the appellant to relocate within Bangladesh to an area where the BNP held power.

THE TRIBUNAL DECISION

5. On or about 4 January 2010, the appellant applied to the Refugee Review Tribunal for a review of the delegate’s decision.
6. By letter dated 21 January 2010, the Tribunal invited the appellant to appear at a hearing to be held on 1 March 2010.
7. The appellant attended a hearing on 1 March 2010 and gave oral evidence to the Tribunal. The Tribunal gave the appellant until 15 March 2010 to comment on, or to respond to, the information that the Tribunal had given him at the hearing. Nothing further was received from the appellant after the hearing.
8. The Tribunal’s decision record sets out the appellant’s claims, the evidence submitted by the appellant to the delegate and the evidence that the appellant gave at the Tribunal hearing.
9. The Tribunal found that the appellant was not a credible witness. The Tribunal found that the appellant was prepared to tell lies and change his evidence if he believed that it would assist his case. These findings were based on numerous adverse findings relating to his evidence, including the following examples. The Tribunal did not accept the authenticity of certain photographs submitted by the appellant nor his explanations in relation to them. The appellant admitted that his brother had submitted a fabricated document on his behalf. The appellant’s explanation as to his identification of the local Commissioner for Ward 43, as well as the time at which the Commissioner for Ward 44 was assassinated, contradicted the independent country information. The appellant provided the wrong name for the Commissioner in his Ward and did not even know that this Commissioner had been imprisoned. Documentary evidence submitted by the appellant which suggested that “cases” had been filed against the appellant before he left Bangladesh contradicted an earlier statement given by the him that such cases had been filed after he had left Bangladesh. The Tribunal concluded that letters and one other document purporting to show the appellant’s attendance at a meeting in 2003 should be given no weight due to doubts over their veracity.
10. The Tribunal did not accept that the appellant was a witness of truth. It did not accept that the appellant was involved with the BNP; that he was the cultural secretary of the Bangladesh National Youth Party; that he was attacked on several occasions by Awami League supporters who tried to kill him; that he was verbally threatened or abducted; that his father was abducted; that cases had been brought against him or that police had approached his home in the middle of the night looking for him.
11. It did not accept that he was ever of interest to the authorities in Bangladesh. Accordingly, the Tribunal found that the appellant did not have a well-founded fear of persecution in Bangladesh for a Convention reason, and affirmed the decision under review.

FEDERAL MAGISTRATES COURT

12. On 12 May 2010 the appellant applied to the Federal Magistrates Court for review of the Tribunal’s decision. In that application, the appellant claimed that:
    1. The Tribunal denied procedural fairness at the time of the assessment of appellant claim.
       
    2. The Refugee Review Tribunal’s decision was unjust.
       
    3. The decision was made without taking into account the full gravity of the applicant’s circumstances.
       

[Transcribed without amendment]

13. The Federal Magistrate found that the Tribunal’s decision record indicated that it explored the appellant’s claims with him at the hearing and put to him matters of concern it had about his evidence, including the internal inconsistencies in his evidence and the inconsistencies with the independent country information and with information given by him to the Department. Further, it was clear that the Tribunal also put to him the concerns it had about particular documents provided by him, and noted his responses to its concerns.
14. Her Honour concluded that the Tribunal’s findings and conclusions were open to it on the material before it and for the reasons it gave, including its adverse credibility findings. Further, the Tribunal, as her Honour observed, conducted its review in accordance with Part 7 Division 4 of the Migration Act 1958 (Cth) (the Act), which is an exhaustive statement of the requirements of the natural justice hearing rule: s 422B and the Tribunal’s decision record demonstrated that it conducted its review in a way that was fair and just.
15. Her Honour dismissed ground 2 on the basis that the complaint invited merits review which the Court could not undertake: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 pr Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1 at [195]; Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 40-41 per Mason J
16. Ground 3 was also dismissed on a similar basis. Additionally her Honour noted at [62]-[63] that it is well established that a Tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant’s case might be better put or supported by other evidence: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [36] per Keane CJ and at [49] per Emmett J; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing). The duty imposed on the Tribunal by the Act is a duty to review and not a duty to inquire.
17. Having found no jurisdictional error in the Tribunal’s decision, her Honour dismissed the application.

APPEAL TO THIS COURT

18. The appellant filed a notice of appeal on 5 August 2010. The notice of appeal contains three grounds:
    1. The Federal Magistrate made an error of law by not finding that the Refugee Review Tribunal made a jurisdictional error in deciding the claim of the Appellant.
       
    2. The Federal Magistrate made error of law by not finding that the Second Respondent made jurisdictional error not summarizing accuracy of claim.
       
    3. The Federal Magistrate made an error of law by not finding that the Second Respondent made jurisdictional error in deciding the fact of the application

[Transcribed without amendment]

19. These grounds were not expressly or impliedly raised by the appellant in the Court below. The Federal Magistrate could not be in error in respect of them. The first respondent contends that leave should not be granted to the appellant to raise these grounds of appeal as it would not be in the interests of justice to do so as the grounds are without substance: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]- [48] citing O’Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 and Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1.
20. I will consider the grounds of appeal advanced in order to determine whether leave ought be granted.

Ground 1

21. The appellant’s written submissions in support of Ground 1 were as follows:

Tribunal did not provide with the appellant any written correspondence about the Tribunal’s concern about its query and in that context, the plaintiff submits that the questioning did not sufficiently indicate that the appellant’s BNP membership was an issue or that all matters in relation to the application were at issue. It is required to put an applicant on notice of the key issues in relation to its application that it may have to address by evidence or submissions. In the present case, the second respondent did neither and Emmett FM erred by not quashing its decision.
[Transcribed without amendment]

22. The delegate did not accept that the appellant was a member of the BNP contrary to the appellant’s written submissions at paragraph 5(a). Rather, the delegate questioned and doubted the appellant’s claims to have been a member of the BNP before deciding that she was not satisfied that the appellant would be persecuted in the future. The delegate’s statement that “Even if it was accepted that the [appellant] was a member of the BNP...” did not amount to a finding by the delegate that the appellant was a member of the BNP.
23. Moreover, contrary to the appellant’s contentions, the Tribunal put him on notice that it might not accept that he was a member of the BNP as claimed. Therefore, the appellant was on notice that the Tribunal might not accept that he was involved with BNP as claimed by him.
24. Accordingly, ground 1 is without substance.

Ground 2

25. The appellant’s contentions in support of Ground 2 are:

The [Tribunal] denied the applicant’s position as a cultural secretary and the Tribunal did not believe that he was attacked by the Awami League supporters on several occasions and there is no basis in denying this by the second respondent. In this regard the second respondent made error to articulate and summarise the accuracy of the claim.
[Transcribed without amendment]

26. These contentions are also factually incorrect.
27. The appellant’s claims about being the Cultural Secretary of the BNP and being attacked by members of the Awami League were accurately summarised by the Tribunal. It is apparent that the appellant’s real source of complaint is that the Tribunal did not accept these claims. The acceptance or rejection of evidence is ultimately a matter for the tribunal of fact: Lee v MIMIA [2005] FCA 464 at [27]. Ground 2 is also without substance.

Ground 3

28. The appellant’s contentions were as follows:

(Tribunal) has failed to attend the natural justice as the appellant did not receive 424 notices from the Tribunal to reply the concern about the second respondent. However, even though the Tribunal deduced the existence of the information from what the applicant told it. The appellant did not give the information which was relied on by the RRT. He was the initial source of the findings in the example, but there was no correspondence between what he told the Tribunal and the information relied upon by the Tribunal. For the exception in s 424A(3)(b) to apply, there must be exact correspondence between the information which is the reason for affirming the decision under review and the information given by the applicant for the purpose of the review application. It must be the same information. Section 424A(3)(B) applies where the information is information given by the applicant for the purpose of the application. It did not matter whether the information was found solely in the Department file. The second respondent has not any such activities to departure from its obligatory duties.
[Transcribed without amendment]

29. Ground 3 is difficult to understand. It appears to assume that s 424A of the Migration Act 1958 (Cth) (the Act) was enlivened. However, the Tribunal’s reasons discloses that:

(a) the Tribunal largely rejected the appellant’s claims on the basis that it was not satisfied of the appellant’s claims based on the evidence advanced by him. The Tribunal’s assessment of evidence given by the appellant did not fall within the meaning of “information” for the purposes of s 424A(1) of the Act: SZBYR v MIAC [2007] HCA 26; (2007) 235 ALR 609 at [18];

(b) in rejecting the appellant’s claims, the Tribunal also relied on independent country information. This information fell within the exception contained in s 424A(3)(a) of the Act;

(c) in rejecting the appellant’s claims, the Tribunal rejected the evidence that the appellant himself had adduced for the purposes of the review. This did not enliven the Tribunal’s obligations under s 424A(1) of the Act by reason of ss 424A(3)(b)-(ba) of the Act: SZMJE v Minister for Immigration and Citizenship [2008] FCA 1751 at [22]; SZLOJ v Minister for Immigration and Citizenship [2008] FCA 1693 at [15].

30. Further, and in any event, it is apparent that the Tribunal gave the appellant notice of a number of clear particulars of information although it had no obligation to do so, ensured that the appellant understood why that information was relevant to the review, the consequences of the Tribunal accepting that information, orally invited the appellant to comment on or respond to the information, advised the appellant that he could seek more time to respond to the information and adjourned the review to provide such additional time to the appellant. In doing so, the Tribunal complied with its obligations under s 424AA of the Act.
31. Accordingly, ground 3 is without substance.

CONCLUSION

32. I would refuse leave to the appellant to raise the new grounds as they are of no merit.
33. In any event, I have also considered, independent of the appellant’s grounds of appeal, the reasons of the Federal Magistrate and am well satisfied that her Honour did not fall into appealable error. As observed by the Federal Magistrate (at [41]), it is clear that the Tribunal in the present case accurately summarised the appellant’s written claims and those which he had made orally before the delegate. Her Honour further noted that the appellant did not seek to tender a transcript of the Tribunal hearing or provide any evidence to the Court to suggest that the Tribunal’s decision record was not accurate. Her Honour proceeded to find (at [44]) that:

The Tribunal’s decision record makes clear that it explored the [appellant’s] claims with him at the hearing and put to him matters of concern it had about his evidence, including internal inconsistencies in the [appellant’s] evidence and inconsistencies with country information and with information given by the [appellant] to the Department. The Tribunal also put to the [appellant] concerns it had about particular documents provided by the [appellant]. The Tribunal noted the [appellant’s] responses to its concerns.

34. Relevantly, her Honour also found that the Tribunal’s findings and conclusions were open to it on the material before it and for the reasons it gave, including its adverse credibility findings (at [52]). Her Honour observed, correctly in my view, that the Tribunal conducted its review in accordance with Part 7 Division 4 of the Act (at [53]) and that it was clear that the Tribunal’s decision was not “unjust” (at [57]). As I said above, the duty imposed on the Tribunal by the Act is a duty to review and not a duty to inquire.
35. For all these reasons this appeal should be dismissed with costs.
    

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated: 7 December 2010