SZIYN v Minister for Immigration and Citizenship [2008] FCA 151 (13 February 2008)

SZIYN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2082 OF 2007

EMMETT J
13 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2082 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIYN Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent
	REFUGEE REVIEW TRIBUNAL Second Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	13 FEBRUARY 2008
WHERE MADE:	SYDNEY

2. The appellant pay the first respondent’s costs, including reserved costs, of the appeal in the amount of $2,300.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2082 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIYN Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
	REFUGEE REVIEW TRIBUNAL Second Respondent
JUDGE:	EMMETT J
DATE:	13 FEBRUARY 2008
PLACE:	SYDNEY

1 This is an appeal from orders of the Federal Magistrates Court dismissing a proceeding brought by the appellant seeking judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal), affirming a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), not to grant a protection (class XA) visa to the appellant. The appellant is a citizen of Bangladesh who arrived in Australia on 27 August 2005. On 4 October 2005, he applied for a protection visa under the Migration Act 1958 (Cth) (the Act). A delegate of the Minister refused to grant a visa on 9 November 2005. The appellant then sought review of the delegate’s decision by the Tribunal.

2 On 26 May 2006, the Tribunal affirmed the delegate’s decision. The appellant then sought review of the Tribunal’s decision by the Federal Magistrates Court on 30 August 2006. That court, by consent, made orders quashing the Tribunal’s decision and directing the Tribunal to determine the appellant’s application for review according to law. On 21 December 2006, the Tribunal, differently constituted, again affirmed the delegate’s decision not to grant a protection visa to the appellant.

3 On 29 January 2007, the appellant, having been notified of the Tribunal’s decision on 11 January 2007, commenced another proceeding in the Federal Magistrates Court seeking judicial review of the second decision of the Tribunal. After a hearing on 12 June 2007, the Federal Magistrates Court made orders on 3 October 2007 dismissing the proceeding and ordering the appellant to pay the Minister’s costs. By notice of appeal filed on 19 October 2007, the appellant appeals to this Court from the orders of the Federal Magistrates Court of 3 October 2007.

4 The grounds of appeal refer to denial of procedural fairness on the part of the Federal Magistrates Court. The appellant, who appeared in person without legal representation, but with the assistance of an interpreter, confirmed that the grounds intended to be raised in the appeal were that the Federal Magistrates Court erred in not upholding the grounds relied upon before that court.

5 The appellant provided written submissions, but did not wish to address the Court beyond those written submissions. The written submissions appear to raise issues that were not grounds before the Federal Magistrates Court. Counsel for the Minister has endeavoured to summarise the grounds relied upon by the appellant both before the Federal Magistrates Court and in his written submissions to this court. No exception is taken to that summary by the appellant, who was given the opportunity of considering and said that he had read the Minister’s written submissions. Before dealing with the grounds, I shall say something about the Tribunal’s reasons and its decision.

6 The appellant claimed to fear persecution in Bangladesh from members and activists of the Bangladesh National Party (the BNP) by reason of his involvement in the Awami League. He claimed that police and state authorities would not protect him, because they support the BNP. He claimed that he was mistreated in Bangladesh in 1985, as a consequence of which he went to Dubai on a work permit visa. He said that when he returned to Bangladesh from Dubai in 2005, his house was raided, he was threatened by BNP activists and was falsely accused of illegal people trafficking. As a result of those threats and his fear of further harm, he returned to Dubai and obtained a visa to travel to Australia.

7 The Tribunal accepted that the appellant is a citizen of Bangladesh and that he left Bangladesh in 1985 and worked in the United Arab Emirates from June 1985 to July 2005. During that period, the appellant travelled to and stayed in Bangladesh from time to time for holidays and to visit family. The appellant’s employment in the United Arab Emirates ended in June 2005, and he returned to Bangladesh in July 2005. The Tribunal accepted that the appellant joined the Awami League in Australia, but did not accept that he was ever a member of the Awami League, either in Bangladesh or in the United Arab Emirates.

8 The Tribunal accepted that the appellant’s family supported the Awami League and that he has followed other members of his family as an Awami League supporter and voter. However, the Tribunal did not accept that the appellant was ever an officer bearer or member. The Tribunal considered the appellant had fabricated evidence to that effect to support his claims for refugee status. The Tribunal therefore did not accept that the appellant was attacked and injured in 1984 or 1985, by reason of his involvement in the Awami League or any political opinion, as he claimed. The Tribunal did not accept that the appellant was targeted for harm by local BNP activists when he returned to Bangladesh in July 2005. In particular, the Tribunal found his evidence in relation to such threats to be implausible.

9 The Tribunal had no evidence that the appellant had been charged with a people trafficking offence, as he claimed. The Tribunal considered that the appellant’s evidence on that issue was confused, illogical and implausible. The Tribunal considered that the appellant had fabricated that evidence to support his refugee claims. The appellant gave evidence to the Tribunal that he had earned substantial amounts of money in the United Arab Emirates and bought shops and properties in Bangladesh. The Tribunal therefore accepted that he may have been asked for donations to the BNP. However, the Tribunal did not accept that the reason for that demand was because of his political opinion, but rather a perception of his wealth. Thus, the Tribunal concluded that the demand for money was not Convention related.

10 The Tribunal found that there was no evidence that suggested that the appellant’s support, or his family’s support for the Awami League, would put him at any risk of persecution by either state authorities or members of the BNP. While there was evidence of significant rivalry between the opposing political parties and evidence of violent conduct during processions and political demonstrations, the Tribunal did not accept, given the appellant’s background, that he would become involved in such protests and did not accept that he would be at any risk of harm for reasons of his political opinion.

11 The Minister’s summary of the appellant’s grounds in support of his assertion that there was jurisdictional error on the part of the Tribunal is as follows:

12 No particulars were provided to the Federal Magistrates Court of an alleged failure to take into account relevant considerations. No particulars have been provided to this Court in support of this ground. There is nothing in the reasons of the Tribunal and the transcript of the hearing before the Tribunal to suggest that the appellant made claims that were not taken into account by the Tribunal. In any event, the Tribunal made an adverse credibility finding in relation to the appellant. In those circumstances, it would not have been necessary for the Tribunal to make a finding on every particular claim raised by the evidence. There is certainly no basis for an assertion that the Tribunal failed to consider some integer of the appellant’s claim to have a fear of persecution. The Federal Magistrates Court did not err in rejecting this ground in review.

13 The Federal Magistrates Court also considered the second ground and rejected it, holding that the findings of the Tribunal were findings of fact open to it. The Tribunal set out the evidence given by the appellant and also had regard to independent country information. The Tribunal accepted some of the appellant’s claims but found that the majority of them had been fabricated by him. For that reason, the Tribunal placed no weight on supporting documentation provided by the appellant. It is a matter for the Tribunal to determine the weight to be given to particular evidence and to decide whether to accept or reject particular evidence. In any event, a fair reading of the Tribunal’s decision indicates that its reference to independent country information did not contribute to its ultimate conclusion. In effect the appellant is seeking impermissible merits review of the Tribunal’s decision. There was no error on the part of the Federal Magistrates Court in rejecting this ground.

14 The third ground, alleging failure to comply with s 424A of the Act, was not raised before the Federal Magistrates Court. Insofar as there is a complaint that the appellant was not given particulars of information consisting of independent country information, that would not constitute a failure to comply with s 424A, in the light of the provisions of s 424A(3)(a), which provides that s 424A(1) does not apply to information that is not specifically about an applicant and is just about a class of persons of which the applicant is a member. There is no substance in this ground.

15 The fourth ground was considered by the Federal Magistrates Court and rejected on the basis that no particulars of the ground were furnished. Once again, the appellant has not provided any particulars to this Court, and there is nothing on the face of the Tribunal’s reasons or the transcript of the hearing conducted by it that would indicate that the Tribunal’s questions were irrelevant to the appellant’s application for review.

16 The fifth ground, of failing to conduct independent inquiries, was not raised before the Federal Magistrates Court. Section 424 of the Act confers power on the Tribunal to seek additional information that is relevant to the determination of an application for review. However, there is no obligation on the Tribunal to exercise that power. The only obligation is for the Tribunal to have regard to such information if in fact it seeks and obtains such information. There is otherwise no obligation on the Tribunal to conduct any independent inquiries. It is not for the Tribunal or any other decision maker to make out a review applicant’s case. There is no substance in this ground.

17 The sixth ground, that the Tribunal was biased or acted in bad faith, was considered and rejected by the Federal Magistrates Court. Allegations of bad faith on the part of an administrative decision maker are not to be made lightly and must be alleged with particularity and proved. No particulars of bias or bad faith have been furnished by the appellant. The appellant has certainly not established that the Tribunal acted dishonestly or arbitrarily or capriciously. There was no error on the part of the Federal Magistrates Court in rejecting this ground.

18 Finally, the general allegation of failure to accord procedural fairness or natural justice was considered and rejected by the Federal Magistrates Court. To the extent that the alleged failure to afford procedural fairness or natural justice is one of the matters already referred to, for the reasons already given, this ground would be rejected. No other particulars have been furnished on behalf of the appellant of any other failure to accord procedural fairness or natural justice in the conduct of the review. No breach of any of the provisions of Div 4 of Pt 7 of the Act has been established. The Federal Magistrates Court made no error in rejecting this ground.

19 It follows that the appellant has not shown any error on the part of the Federal Magistrates Court. The appeal must be dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

The Appellant:	Appeared in person
Solicitor of the Appellant:	Nil

Counsel for the Respondent:	Mr J. Knackstredt

Solicitor for the Respondent:	Clayton Utz

Date of Hearing:	13 February 2008

Date of Judgment:	13 February 2008

Federal Court of Australia

SZIYN v Minister for Immigration and Citizenship [2008] FCA 151 (13 February 2008)