SZNIM v Minister for Immigration and Citizenship [2010] FCA 74 (15 February 2010)

Last Updated: 18 February 2010

FEDERAL COURT OF AUSTRALIA

SZNIM v Minister for Immigration and Citizenship [2010] FCA 74

Citation:	SZNIM v Minister for Immigration and Citizenship [2010] FCA 74
Appeal from:	SZNIM v Minister for Immigration & Anor [2009] FMCA 790
Parties:	SZNIM v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:	NSD 999 of 2009
Judge:	TRACEY J
Date of judgment:	15 February 2010
Legislation:	Migration Act 1958 (Cth), s 424A
Cases cited:	SZNIM v Minister for Immigration & Anor [2009] FMCA 790 (affirmed) Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 (cited) SZATV v Minister for Immigration and Citizenship and Another [2007] HCA 40 (referred to) SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (referred to) SZNIM v Minister for Immigration & Citizenship [2009] FCA 1547 (referred to)

Date of hearing:	15 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	21

	The appellant appeared in person
Counsel for the Respondents:	Ms R Graycar
Solicitor for the Respondents:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 999 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	TRACEY J
DATE OF ORDER:	15 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.
   

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 999 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	TRACEY J
DATE:	15 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate delivered on 21 August 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 26 February 2009: see SZNIM v Minister for Immigration & Anor [2009] FMCA 790. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship not to grant a protection visa to the appellant.

BACKGROUND

2. The appellant is a citizen of Bangladesh who arrived in Australia on 21 July 2008. On 20 August 2008 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 15 November 2008. On 25 November 2008 the appellant applied to the Tribunal for a review of that decision.
3. The appellant’s claims before the Tribunal were summarised by the Federal Magistrate as follows: He said that he feared persecution as a member of a minority group and because of his involvement with the Bangladesh National Party (“BNP”). He claimed to be from a prominent Roman Catholic family whose property had been “occupied” by the government. He claimed that his family was tortured and harassed after his sister married a convert from a Muslim family. He claimed that Bangladesh was dominated by Muslims and that the administration and others remained silent on anti-Christian incidents.
4. In particular, the appellant claimed that after his high school certificate examination and while at college he became involved in politics, because people who were not affiliated with anyone were "beaten by all sides". He claimed that the BNP had assisted him and saved him from many attacks and that therefore he joined the BNP. He claimed that he organised meetings and processions in his home area and became known in his home area as a BNP worker after he became involved with the Nationalist student party which was a "front organization" of the BNP. He claimed that on one occasion some followers of the Awami League tried to have him killed. The police refused to file a case against the named person and threatened to detain the appellant. The appellant claimed that he subsequently became a worker in, and then vice president of, a particular “Union full committee", and that this increased the number of his enemies.
5. The appellant claimed that on 15 February 2008 he was assisting BNP people in his home area to prepare for the "language movement" programme. He claimed that he and his friends were attacked by people with knives and sticks and that he was knocked unconscious and hospitalised. He claimed that his family had informed the police of this matter, but that they did not take any action. He claimed that he left the hospital as he understood people were “looking at [him] with eagerness” and that he understood that they did not want him to survive. He returned to Dhaka. He claimed that thereafter he visited his home area secretly on one occasion. He came to Australia for World Youth Day in July 2008.

REFUGEE REVIEW TRIBUNAL

6. The Tribunal accepted that the appellant had experienced some difficulties growing up as a Christian in Bangladeshi society and in expressing his political views, including taunting, a lack of inclusion as a youngster and being a victim of assault on account of his political views in his former home area on one occasion (by a man who had since been gaoled) and again in 2008 in what the Tribunal regarded as generalised violence. The Tribunal also accepted that he had been a victim of abuse by political opponents whilst studying in the past and that harm had been directed at his family because a Muslim convert married his sister. The Tribunal found such claims to be generally consistent with information regarding the circumstances of religious minorities and political activists in the area of Bangladesh in which the appellant grew up and lived. The Tribunal accepted that there would be a real risk of harm to the appellant should he return to the area of Bangladesh in which he resided from a young age until he travelled to Dhaka.
7. The Tribunal, however, found that the appellant would be able to return to Bangladesh, and by living in a major city, access real protection from harm during the reasonably foreseeable future. It was of the view that the appellant could reasonably be expected to relocate himself permanently within Bangladesh to avoid such harm and that if he did so this would mean the risk of him coming to any serious harm for reasons of his religion or political opinion would be remote. The Tribunal did not believe that the appellant had come to any serious harm for any reason while living in Dhaka in the past, and found that the appellant’s claims of current threats to his family regarding him were not genuine.
8. The Tribunal was, therefore, not satisfied that the appellant had a well founded fear of persecution. It affirmed the decision of the delegate not to grant the appellant a protection visa.

FEDERAL MAGISTRATES COURT

9. The appellant filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court on 16 March 2009 but relied on an amended application filed on 28 May 2009. Essentially, ground 1 of the amended application alleged that the Tribunal failed to make a specific finding as to whether the “harm” suffered by the appellant would have amounted to persecution for a Convention reason. Grounds 2 and 3 substantively raised the same contention; namely, that the Tribunal failed to take into account relevant considerations in relation to its conclusions on internal relocation and the chance of future harm.
10. In particular, the appellant alleged before the Federal Magistrate that the Tribunal ignored his evidence and failed to take into account his circumstances and the “practical realities” that he would face if he relocated, and failed to elicit from him information required in order for it to address the issue of relocation properly in accordance with the test in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437.
11. The Federal Magistrate found that the Tribunal specifically considered the appellant’s own circumstances and took into account the matters raised by him and arising on the material before the Tribunal. Further, the Tribunal gave the appellant several opportunities during the hearing and thereafter to address obstacles to relocation, including putting to him that he could not only live in Dhaka safely, but also that he could become involved with the BNP safely in Dhaka, as well as obtain employment and settle there. The Tribunal had also given consideration to the practical realities facing the appellant in the sense considered in Randhawa (see also SZATV v Minister for Immigration and Citizenship and Another [2007] HCA 40]. Her Honour found that the Tribunal considered the past, the present and the future possibilities of harm befalling the appellant insofar as it was necessary for it to do so in addressing the issue of relocation under the Migration Act 1958 (Cth) (‘the Act’).
12. The Federal Magistrate also noted that the appellant claimed in additional written submissions that the Tribunal should have put to him independent country information in relation to the change of government in Bangladesh and that he was not given a fair opportunity to deal with such a matter and hence was denied procedural fairness. The Federal Magistrate found that such information was clearly outside the scope of s 424A(1), being within the exception provided for in s 424A(3)(a). Further, insofar as this ground involved a contention that the Tribunal should have raised with the appellant its preliminary reasoning, such preliminary reasoning was not information within s 424A(1) of the Act (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190). Finally, her Honour noted that the appellant in fact had the opportunity to address the issue of the change of government in Bangladesh, and had done so in his advisor’s post-hearing submission.
13. Having found no jurisdictional error in the Tribunal decision, the Federal Magistrate dismissed the application.

APPEAL TO THIS COURT

14. The notice of appeal to this Court was filed on 10 September 2009. The grounds contained in the notice are not easily understood. They are unnumbered. They commence with two short paragraphs which may be understood to contain extremely generalised allegations of legal error on the part of the Tribunal and the Federal Magistrate. Then follows a page and a half of what amount to submissions. These submissions are in substantially the same terms as submissions contained in another notice of appeal which I have read in anticipation of a hearing in another proceeding later this week. When read together the general allegations of legal error and the submissions suggest that the appellant’s case on this appeal raises three alleged errors. They are:
    • The Tribunal failed to apply the correct test;
    • The Tribunal’s decision involved an incorrect interpretation of the applicable law to the facts of the case; and
    • The Tribunal breached its obligations under s 424A(1) of the Act.
15. The appeal was originally listed before Gray J on 17 November 2009. The appellant was unable to attend the hearing for medical reasons, and his Honour adjourned the hearing to the February 2010 Full Court sittings (see SZNIM v Minister for Immigration & Citizenship [2009] FCA 1547).

SUBMISSIONS OF THE APPELLANT

16. The appellant appeared in person. He had the assistance of an interpreter. He advised the Court that his notice of appeal had been written for him by an advisor. The advisor had summarised the contents of the notice for him. The appellant did not understand the legal submissions which were contained in the notice and was unable to assist the Court to better understand the issues which he sought to raise on the appeal.
17. When invited to address the Court in support of his appeal the appellant made a long impassioned plea in which he invited the Court to accept the merit of his claim to be entitled to the benefit of the Refugee Convention. He submitted that the Tribunal had failed to understand the cultural differences between Bangladesh and Australia and, for this reason, had failed to appreciate the significance of some of his claims. He contended that the main problem was that the Tribunal failed to appreciate that the position in Bangladesh had changed since 2006. The government had changed and the Tribunal had failed to consider the attempt made on his life in 2008. He challenged the finding that he would be safe in Dhaka on the basis that that finding was made by reference to the position in 2006 rather than in more recent times. He said that it was easy to arrange the killing of opponents in Bangladesh and that those who wished to track down a victim could do so even in a city as large as Dhaka. He referred to threats which he said had been made to kill his mother and brother.
18. The appellant also challenged the Tribunal’s findings that Christians were able to practise their religion in Bangladesh with safety and without persecution.

FINDINGS

19. I endeavoured to explain to the appellant the limited role of the Federal Magistrate’s Court in dealing with applications to review decisions of the Tribunal and the function of the Court when considering appeals from the Federal Magistrate’s Court.
20. I have read the learned Magistrate’s reasons and can discern no appellable error. The learned Magistrate was, in my opinion, correct to dismiss the appellant’s appeal for the reasons which she gave.

ORDERS

21. The appeal should be dismissed with costs.
    

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated: 15 February 2010