SZAPT v Minister for Immigration and Citizenship [2010] FCA 75 (15 February 2010)

Last Updated: 18 February 2010

FEDERAL COURT OF AUSTRALIA

SZAPT v Minister for Immigration and Citizenship [2010] FCA 75

Citation:		SZAPT v Minister for Immigration and Citizenship [2010] FCA 75
Appeal from:		SZAPT v Minister for Immigration & Anor [2009] FMCA 1082
Parties:		SZAPT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1286 of 2009
Judge:		TRACEY J
Date of judgment:		15 February 2010
Legislation:		Migration Act 1958 (Cth) ss 48A, 48B, 91R
Cases cited:		Minister for Immigration, Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, cited SZAPT v Minister for Immigration & Anor [2009] FMCA 1082 , affirmed
Date of hearing:	15 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	25
	The appellant appeared in person
Counsel for the Respondents:	Mr T Reilly
Solicitor for the Respondents:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1286 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAPT 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 1286 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAPT 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 23 October 2009 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") handed down on 7 May 2009: see SZAPT v Minister for Immigration & Anor [2009] FMCA 1082. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (“the first respondent”) not to grant a protection visa to the appellant.

BACKGROUND

2. The appellant is a citizen of Bangladesh who arrived in Australia on 1 September 2001. On 5 September 2001 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 18 December 2001. The Tribunal affirmed the decision on 14 April 2003. The appellant lodged an application for judicial review which was dismissed by Raphael FM on 6 May 2004. The appellant lodged an appeal with the Federal Court and on 30 August 2004 Madgwick J dismissed the appellant’s appeal. The appellant applied to the High Court for special leave to appeal. On 27 April 2005 McHugh and Heydon JJ dismissed the application.
3. On 24 August 2008 the Minister exercised his power under s 48B of the Migration Act 1958 (Cth) (“the Act”) and determined that s 48A did not apply to prevent the appellant from applying again for a protection visa. On 15 October 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 8 January 2009. On 2 February 2009 the appellant applied to the Tribunal for a review of that decision.
4. The appellant claimed that he joined the student wing of the Bangladesh National Party (“BNP), known as the Jatiotabadi Chatra Dal (“JCD”) and became the assistant secretary. He claimed that he was an active member of the party and was involved in arranging rallies and demonstrations as well as giving a number of speeches from 1999 to 2000. He stated that he became well known and popular, and that, because of this, the student wing of the Awami League (“AL”) conspired against him and threatened to kill him, trying to do so twice in 2000. He also claimed that, on 14 April 2001, Muslim fundamentalists attacked an open air concert at which he was performing. He claimed that he was injured in the attack and hospitalised. He stated that he left Bangladesh because false charges had been laid against him to destroy his political career. He stated that the police came to arrest him at his house but he was not home.
5. The appellant claimed that, since his arrival in Australia, he actively protested against the caretaker Government of Bangladesh by participating in rallies and demonstrations, and mobilizing support against the activities of that government. He stated that he had criticised the caretaker government as it was banning all political activities overseas and he had become a target of the intelligence department. His photograph had been collected and immigration informed to arrest him if he returns to Bangladesh. He claimed that the intelligence department was planning to make a false case against him.

REFUGEE REVIEW TRIBUNAL

6. The Tribunal accepted that the appellant was a member of the BNP student wing and accepted that he was cultural secretary of the BNP student wing at Dattapara College from 1999-2000. The Tribunal accepted that the appellant may have been involved in the organisation of rallies for 75 people, but did not accept that he organised rallies of 700 because he gave inconsistent evidence about the numbers attending. As to his claim that he left Bangladesh due to his fear of the AL, the Tribunal found that he was not a “witness of truth”. It noted that his evidence about whether or not he went into hiding, and the period of time during which he was in hiding, was inconsistent with his written statements and evidence to the previous Tribunal hearings. It further noted that he gave inconsistent evidence regarding whether he was attacked in June 1999.
7. Based on the internal inconsistencies the Tribunal did not accept that the appellant went into hiding because of any difficulties he faced, be they physical attacks or verbal threats. The Tribunal did not accept that he had been targeted for reason of his political involvement and found that, as it was 8 years ago, he would not be targeted for his role if he returned to Bangladesh in the reasonably foreseeable future. In regards to the appellant’s claim about the false charges against him, the Tribunal found his evidence to be unreliable and inconsistent. The Tribunal found that he was not a witness of truth in relation to this matter. Further, whilst the Tribunal accepted that the appellant may have been injured in a bomb blast while playing an instrument publicly at a festival, it did not accept that he feared returning to Bangladesh because of apprehended violence by Muslim fundamentalists. In making this finding the Tribunal noted that the appellant confirmed at the hearing that he did not fear returning because of Muslim fundamentalists but because of the AL.
8. The Tribunal accepted that the appellant had been involved with the BNP party in Australia for over 7 years and that he was the current cultural secretary. It accepted that he had been involved in protests and that he may possibly have come to the notice of the caretaker Government and its apparatuses. It found that s 91R(3) of the Act did not apply as his conduct in Australia was not engaged in for the purpose of strengthening his claims. The Tribunal found that the appellant would not face persecution as a result of protesting against the caretaker Government as the AL, who had also actively protested against the caretaker Government, was now in power and there was no country information that indicated that those who took part in protests against the former caretaker Government had faced difficulties under the current regime. Further, the Tribunal did not accept that the appellant’s involvement in the BNP in Australia, or his likely involvement in the BNP in Bangladesh in a manner similar to that in which he was involved in Australia, would result in there being a real chance of him facing serious harm amounting to persecution.
9. The Tribunal referred to country information and concluded that it did not accept that killings of BNP members by AL members were rampant, as claimed by the appellant, and that both parties had been responsible for perpetrating violence around the time of the elections. It found that the AL was endeavouring to crack down on violence perpetrated by both sides. The Tribunal noted that some of the BNP leaders had been charged but found he was not and would not be such a leader of the BNP.
10. Finally, the Tribunal addressed the appellant’s claim that the reason for the internal inconsistencies in his evidence was that he was depressed because of his detention in Australia. The Tribunal did not accept this as a reason for the inconsistencies as there was no medical evidence to support his claim of depression. The Tribunal stated that it would expect that, if the appellant had seen a doctor in detention, and if he continued to feel depressed he would have seen a doctor or sought other assistance since that time.
11. The Tribunal was not satisfied that the appellant had a well founded fear of persecution, and affirmed the decision of the delegate not to grant the appellant a protection visa.

FEDERAL MAGISTRATES COURT

12. The appellant filed an application for judicial review of the Tribunal’s decision in the Federal Magistrates Court on 22 June 2009 but, at hearing, relied on an amended application filed on 12 October 2009. The amended application contained the following grounds, a number of which overlapped:
    • The Tribunal failed to properly investigate and consider whether the Applicant was suffering from depression and the impact that condition might have on him giving evidence and his ability to recollect events.
    • The Tribunal failed to investigate and consider whether the Applicant was entitled to Medicare benefits and incorrectly assumed that the Applicant was entitled to Medicare benefits and could have obtained medical assistance.
    • In rejecting the claims of the Applicant that he suffered mental difficulties the Tribunal had stated that it did so “for the reasons set out below” (para.118) but, in fact, failed to give any reasons for its decision.
    • In the circumstances the Tribunal failed to give the Applicant a fair hearing.
    • In the circumstances the Tribunal has committed a jurisdictional error.
13. The Federal Magistrate found that the Tribunal plainly did consider whether the appellant was suffering from depression, but did not accept this as a reason for the inconsistencies in his evidence. Moreover, the Tribunal was not under an obligation to conduct further enquiries regarding his medical condition: Minister for Immigration, Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21.
14. In dealing with the complaint that the Tribunal failed to investigate whether the appellant was entitled to Medicare benefits, and incorrectly assumed that he was entitled to those benefits, the Federal Magistrate was not satisfied that the appellant’s entitlement to such benefits was of relevance to the Tribunal’s decision. In any event, his Honour found that there was no evidence before the Court, such as a transcript of the hearing, to suggest that the appellant in fact told the Tribunal that he was not so entitled. His Honour found that the inference that the Tribunal drew about his ability to see a doctor was an inference that was available to it on the evidence before it.
15. In respect of the contention that the Tribunal had “failed to give reasons”, the Federal Magistrate found that the Tribunal’s decision record clearly indicated otherwise.
16. Finally, in relation to a psychological assessment of the appellant which was attached to an affidavit which the appellant sought to file in Court, the Federal Magistrate found that this diagnosis did not make any reference to the appellant’s ability to recall matters at a Tribunal hearing which had taken place some months beforehand. His Honour found that the document had no relevance to the proceedings before the Court.
17. Having found no jurisdictional error in the Tribunal decision, the Federal Magistrate dismissed the application.

APPEAL TO THIS COURT

18. The notice of appeal to this Court was filed on 11 November 2009. Essentially, the notice of appeal claims that the Federal Magistrate erred by failing to find in favour of the appellant. He reagitates the grounds advanced in the Federal Magistrates Court.

SUBMISSIONS OF THE APPELLANT

19. The appellant appeared in person. He had the assistance of an interpreter.
20. Although invited to do so, he did not seek to speak to any of the grounds contained in the notice of appeal. He said they had been drawn up for him by a friend. They had been translated for him before he signed the notice. He did not understand the relevant law.
21. The appellant concentrated his submissions on a point which he had not raised before the learned Federal Magistrate. The appellant had appeared before the Tribunal on 25 March 2009. He told the Tribunal that he wanted to submit more documents to support his case. The Tribunal responded that, although it considered that he had had sufficient time to do so, it would grant him three weeks to supply any further evidence which he wished the Tribunal to consider. He did not submit any additional material within that three week period. At approximately 9:30 am on 7 May 2009 the appellant rang the Tribunal office and asked whether the member had made a decision because he wanted to submit further information. The officer on the Tribunal’s staff who took the call told him that the decision had not been made and that it would “be fine” for him to submit additional material. Within half an hour the officer concerned had found out that the decision had, in fact, been made the previous day. The Tribunal member’s reasons bear the date 6 May 2009. The officer immediately telephoned the appellant to advise him that the decision had been made. The telephone was not answered. An automatic message was left advising the appellant that the Tribunal had called him. This was done at approximately 10:00 am. At 12:39 pm on 7 May 2009 the appellant sent a seven page facsimile document to the Tribunal. This document, comprised mainly of photographs taken at a demonstration in front of the Bangladeshi Consulate in Sydney on 19 April 2009, was forwarded to the member who had made the decision on the previous day. She determined that the matter could not be reopened.
22. The appellant contended that there had been a failure to consider relevant material and that this constituted reviewable error. Counsel for the Minister responded that the Tribunal member was correct in deciding that the decision could not be reopened; she was functus officio.
23. The appellant was unable to provide any convincing explanation of why this alleged error on the part of the Tribunal had not been raised with the Federal Magistrate.

CONSIDERATION

24. I have read the learned Magistrate’s reasons. They disclose no appellable error. The appellant’s attempt to rely on the additional ground must fail. While it is unfortunate that the appellant was given incorrect advice by a staff member of the Tribunal, the Tribunal was correct to rule that it was functus officio and could not reopen the case. I would, in any event, have refused leave to the appellant to rely on this ground had an application to amend the notice of appeal been made. I would have done so because the Tribunal had given the appellant the opportunity of supplementing his submissions, had he been minded to do so, within three weeks of the hearing taking place. He did not take advantage of this indulgence. Although the staff member to whom he spoke to on 7 May 2009 wrongly advised him that it was still open to him to submit additional material, the staff member attempted to correct the error within a very short period but was unable to speak to the appellant. The appellant offered no reason for his failure to forward the material in the time granted by the Tribunal.

ORDERS

25. For the above reasons the appeal should 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 Tracey.

Associate:

Dated: 15 February 2010