SZDWB v Minister for Immigration & Citizenship [2008] FCA 92 (21 February 2008)

Last Updated: 22 February 2008

FEDERAL COURT OF AUSTRALIA

SZDWB v Minister for Immigration & Citizenship [2008] FCA 92

Migration Act 1958 (Cth) ss 91R, 424A(1), 424A(3)(b)

SZDWB v Minister for Immigration & Citizenship [2007] FMCA 1522 considered
SZEPZ v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 159 FCR 291 applied






























SZDWB v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1968 OF 2007

BENNETT J

21 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1968 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	BENNETT J
DATE OF ORDER:	21 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the first respondent’s costs in the fixed sum of $4,000.00

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 1968 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	BENNETT J
DATE:	21 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1 The appellant is a citizen of Bangladesh and claimed to be a member of and senior person in the Awami League. For that reason, he claimed, he was a person who feared persecution in Bangladesh from the Bangladesh Nationalist Party which regained power in 2001. The appellant described his activities within the Awami League and incidents of assault and abuse as well as false charges that had been laid against him.

2 A delegate of the Minister refused the appellant’s application for a Protection (Class XA) visa (‘protection visa’). That decision was affirmed by the Tribunal after a hearing attended by the appellant. An application for review of that decision was dismissed by the Federal Magistrates Court but the appeal was allowed by the Federal Court and the matter remitted to the Tribunal.

THE TRIBUNAL HEARING

3 The reconstituted Tribunal, by letter, invited the appellant to attend a further hearing. The appellant advised the Tribunal that he did not wish to attend the hearing. He consented to the Tribunal proceeding to assess his application, subject to it writing to him to allow him to comment in writing on ‘any particular information or any further information needed’. The Tribunal noted in a letter to the appellant dated 29 May 2006 that it was not obliged to invite comment on all of its reasons but that ‘certain information’ would be put to him for written comment, ‘if that information were to fall within the Tribunal’s statutory obligations’. Whether or not it was obliged by statute to put further information to the appellant, the Tribunal did so in a letter dated 6 June 2006 (‘the 6 June letter’) and invited him to comment on three topics. Two of the topics concerned statements made to the original Tribunal and one concerned independent country information about ‘a very high level of document fraud in Bangladesh’. The appellant responded in some detail in a letter dated 29 June 2006.

4 The reconstituted Tribunal observed that the explanations given by the appellant did not satisfactorily address its concerns. The Tribunal accepted that the appellant was a member of the Awami League but found that his involvement was confined to the local area. The Tribunal was not satisfied that the appellant was engaged in political activities at a level that gave him a significant political profile in Bangladesh. It did not accept that he had been the subject of false charges or that the documents that he provided in support of his application were genuine and authentic. As it was not satisfied that there is a real chance that the appellant will be harmed by his past political opponents or by the authorities in Bangladesh for a Convention reason or that there is a real chance that he will face harm if he returned and engages in political activity at the same level as he had in the past, the Tribunal affirmed the decision not to grant a protection visa.

REVIEW BY THE FEDERAL MAGISTRATES COURT

5 The appellant appealed to the Federal Magistrates Court from the decision of the reconstituted Tribunal. The grounds of appeal included a claim that the Tribunal did not show a sufficient reason for several of its conclusions and a claim that the Tribunal did not comply with the requirements of s 424A of the Migration Act 1958 (Cth) (‘the Act’).

6 Federal Magistrate Nicholls dismissed the application for review (SZDWB v Minister for Immigration & Citizenship [2007] FMCA 1522). In dealing with the grounds of review and the matters raised in argument, his Honour considered that the Tribunal gave sufficient reasons for its conclusion (at [17]). His Honour also considered that the Tribunal’s finding that the appellant’s political profile was not such as to engage protection obligations pursuant to the Convention was open to the Tribunal on the material before it (at [24]). His Honour also concluded that the distinction drawn by the Tribunal between a high profile political member of the Awami League and an "ordinary member" was not a distinction applicable to the relevant test under s 91R of the Act but a distinction drawn from the factual circumstances of the appellant (at [52]). To the extent that the appellant took issue with that finding of fact, his Honour found that it amounted to impermissible merit review which does not found jurisdictional error.

7 As to an alleged breach of s 424A of the Act, while noting that the Tribunal had not been obliged to put the information in the 6 June letter to the appellant, Nicholls FM found that the Tribunal had plainly had regard to the information and the appellant’s response to it (at [55]-[56]).

THE CURRENT APPEAL

8 In this appeal, the appellant appeared in person assisted by an interpreter. He provided submissions in writing that addressed each of the grounds in his notice of appeal. He also emphasised in his oral submissions that his claim was that he was a high office holder in the Awami League and had been targeted on that basis.

The first ground: The Honorable [sic] Federal Magistrate erred in considering that the Refugee Review Tribunal (the Tribunal) made a jurisdictional error that it did not comply with s 424A of the Migration Act 1958. The Court mentioned in paragraph 13 that, ‘The second Tribunal does not commit jurisdictional error by referring to the applicant’s evidence from the first Tribunal hearing.’ But the Tribunal did not give those references to the applicant for comment.

9 Under this heading, the appellant’s submissions raise a number of issues.

10 First, the appellant says that the Tribunal failed to give him an opportunity to explain his position within the Awami League. The Tribunal recorded the claims made by the appellant in his application, in the hearing before the original Tribunal, in the documentation provided in support of his claims and in his response to the 6 June letter that he was a leader or of high profile in the Awami League. The Tribunal did not fail to consider that claim, which was repeatedly made by the appellant. There is no basis for the assertion that he was not given the opportunity to explain his position. He declined a further hearing and was given the opportunity to make further submissions in writing, which he did.

11 Secondly, the appellant contends that the Tribunal did not give good reasons why it concluded that the appellant’s chances of facing harm in Bangladesh are remote because his position in the Awami League was not of sufficiently high profile, or inform him of its conclusion. He says that the Federal Magistrate did not consider this subject. The Tribunal did give sufficient reasons for its conclusions, as the Federal Magistrate concluded (at [17]). It was not obliged to inform the appellant of its reasoning.

12 Thirdly, the appellant’s complaint in respect of the Tribunal’s comments on the risk of his experiencing an attack on his house is a complaint regarding the Tribunal’s fact finding, which is a matter for the Tribunal.

13 Fourthly, the appellant says that he did not get an opportunity to comment on what he describes as "old" country information. The Tribunal was not obliged to offer such an opportunity as the information comes within the exception in s 424A(3)(b) of the Act.

14 Fifthly, the appellant asserts that the Tribunal committed jurisdictional error by referring to his evidence from the original Tribunal hearing where the matters were not put to him in accordance with s 424A(1) of the Act. Information given to the Tribunal by the appellant is an exception to the requirement in s 424A(1) by reason of s 424A(3)(b). The reference in the Act to the Tribunal does not depend on the identity of the particular member constituting the Tribunal. Until the Tribunal has made a valid decision on the review that has been initiated by valid application under s 414, it has a duty to perform that particular review. The Tribunal as reconstituted still has properly before it the materials that were obtained when the decision that had been set aside was made (SZEPZ v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 159 FCR 291 at [39], [41]).

Ground 2: The Honorable [sic] Federal Magistrate erred in finding that the Tribunal made error of law when it assessed the applicant’s claim and when it rejected the applicant’s claim.

15 This ground of appeal does not point to any particular error on the part of the Federal Magistrate in reviewing the decision of the Tribunal other than a claim that the Federal Magistrate did not consider the appellant’s arguments in relation to the Tribunal’s decision.

16 In his written submissions, the appellant contends that the Tribunal did not assess his claim according to s 91R of the Act because it came to an incorrect factual finding as to his political profile. Contrary to the appellant’s submissions, the Federal Magistrate did consider this ground. His Honour concluded that this was not, as submitted by the appellant, an impermissible limiting of the criteria of s 91R but a factual finding on the appellant’s claims (at [52]). This was evident from the elaboration of this ground by the appellant at the hearing, when he explained that his political activity was at a "high level" which attracted attack and that the Tribunal had been wrong to conclude otherwise. The factual finding by the Tribunal to the contrary was open to it and a matter for the Tribunal.

17 The appellant has not shown that his Honour was in error in concluding that the Tribunal had properly discharged the functions conferred on it under the Act.

Ground 3: The Magistrate Court agreed that the letter of the 29 May 2006 of the Tribunal was confusing but it did not consider that the applicant was mislead by the Tribunal when the Tribunal sent the letter of 6 June 2006 to the applicant, which is a jurisdictional error for the assessment of the applicant’s claim. The Tribunal did not give any explanation regarding these letters.

18 There is no evidence to support an assertion that the appellant was misled or "confused" or "misguided" by the 6 June letter. He responded to it in detail and did not assert in his reply that he failed to understand it. The Federal Magistrate did observe that there was ‘one confusing or puzzling aspect in what the Tribunal has done in this regard’ (at [42]) but that related to his Honour’s observation that the Tribunal was not obliged by s 424A(1) of the Act to invite comment in writing on the subject matter of the letter, being information given to the original Tribunal by the appellant or contained in country information, within the exceptions in s 424A(3). While his Honour also concluded that the letter may have been sent pursuant to s 424 rather than s 424A of the Act and was directed to the provision of additional information rather than being concerned with the opportunity to comment on information already before the Tribunal (at [43]), this does not support this ground of appeal and does not give rise to jurisdictional error. The Tribunal noted that it had regard to the information.

19 The appellant asserts that the Tribunal did not give any explanation regarding the letters. The Tribunal did in the 6 June letter indicate the relevance of the first two pieces of information. The third piece of information was country information which the Tribunal was under no obligation to explain. Further, it was apparent from the subject matter of the letter in the context of the claims that in each case the appellant was being asked to comment on information regarding aspects of his claims and the matters he had put to the Tribunal in support.

Conclusion

20 It follows that the appeal should be dismissed with costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 20 February 2008

The Appellant was self represented
Counsel for the Respondent:	A Mitchelmore
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	12 February 2008
Date of Judgment:	21 February 2008