SZGZH v Minister for Immigration and Citizenship [2010] FCA 80 (16 February 2010)

Last Updated: 17 February 2010

FEDERAL COURT OF AUSTRALIA

SZGZH v Minister for Immigration and Citizenship [2010] FCA 80

Citation:	SZGZH v Minister for Immigration and Citizenship [2010] FCA 80
Appeal from:	SZGZH v Minister for Immigration & Anor [2009] FMCA 1125
Parties:	SZGZH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 1330 of 2009
Judges:	TRACEY J
Date of judgment:	16 February 2010
Legislation:	Migration Act 1958, s 424A
Cases cited:	Minister for Immigration, Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, cited NAMJ v Minister for Immigration (2003) 76 ALD 56, cited SZGZH v Minister for Immigration [2009] FMCA 1125, referred to SZGZH v Minister for Immigration and Citizenship [2007] FCA 486, referred to SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609, referred to VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471, referred to
Date of hearing:	16 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs	20
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	Mr G Johnson
Solicitor for the Respondents:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1330 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	TRACEY J
DATE OF ORDER:	16 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 1330 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	TRACEY J
DATE:	16 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This an appeal against a judgment of a Federal Magistrate delivered on 4 November 2009, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 15 January 2009: see SZGZH v Minister for Immigration [2009] FMCA 1125. 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. This appeal comes after a protracted process of decision-making, judicial review and appeals. The appellant is a citizen of Bangladesh. He entered Australia on a temporary business visa on 4 November 2004. On 14 December 2004 he lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (as it was then known). A delegate of the Minister refused this application on 31 January 2005. On 2 March 2005 the applicant applied to the Tribunal for a review of that decision. This application was refused on 29 June 2005. The appellant then applied to the Federal Magistrates Court for a review of this decision. The application was refused on 29 November 2006 but this refusal was subsequently overturned on an appeal to this court: see SZGZH v Minister for Immigration and Citizenship [2007] FCA 486.
3. The matter was then remitted to the Tribunal for re-hearing. The Tribunal affirmed the delegate’s decision on 26 June 2007. The appellant again sought judicial review in the Federal Magistrates Court, but his application was refused on 29 February 2008. The appellant appealed once more to this Court. On 25 August 2008 the appeal was allowed and the matter remitted to the Tribunal for re-determination according to law. On 15 January 2009 the Tribunal again affirmed the delegate’s decision. On 4 November 2009 Raphael FM upheld that decision. The appellant appeals again to this Court.
4. The appellant claimed that, while he was a student in college in Bangladesh, he became involved with a student wing of a political party known as the Awami League (“AL”), and, as a result, had been targeted by “the present Bangladesh National Party (“BNP”) coalition government and the Muslim fundamentalists”. He also claimed that he was ‘secular’ and a free thinker, and that, as a result, he was wanted by police over false charges. He alleged that he had been tortured by his political opponents in Bangladesh. For these reasons, he claimed that, were he to return to Bangladesh, he would fear harm from the government.

THE TRIBUNAL’S FINDINGS

5. The Tribunal accepted that the appellant is a national of Bangladesh. The appellant put certain documentary evidence before the Tribunal, including a letter from the principal of the college which he had allegedly attended, and charge sheets that outlined the “false” criminal charges he was allegedly facing, and would face, were he to return to Bangladesh. The Tribunal found that much of the appellant’s evidence was inconsistent, and it was not satisfied with the appellant’s explanations for the inconsistencies. The Tribunal said that it did “not accept that [the appellant] has ever had any genuine interest in or involvement with the AL or to any relevant extent with Bangladeshi politics”.
6. The appellant had also, in attempts to explain the inconsistencies in his evidence, alleged that he had been physically and mentally unwell at some of the Tribunal hearings and had been unfit to give evidence. He provided some medical reports which suggested he had suffered from back pain. The Tribunal, however, found that the appellant asserted a mental incapacity to give reliable evidence “only after being confronted with serious deficiencies in the evidence he was giving”. While it did accept that he was suffering from a back ailment, it did not accept that this ailment meant that he been “prevented from giving consistent and reliable evidence”.
7. The Tribunal accepted that the appellant was only nominally Muslim and had a secular outlook. It also accepted that some more conservative Muslims in Bangladesh might not approve of his beliefs in this regard. Despite this, the Tribunal said that “[t]his in itself does not lead the Tribunal to conclude that the [appellant] would face a real chance of Convention-related persecution in Bangladesh”. It affirmed the delegate’s decision.

THE FEDERAL MAGISTRATES COURT

8. The appellant sought judicial review of the Tribunal’s decision. He advanced three grounds: see SZGZH v Minister for Immigration [2009] FMCA 1125 at [8]- [12]. In summary, these were:
   • First, that the appellant was “physically and mentally unfit to give evidence before the Tribunal”, and the Tribunal did not consider these disabilities;
   • Secondly, that the appellant produced medical documents to the Tribunal and “was trying to explain” about his “inability” but “the Tribunal told him to stop” and did not consider this information, which made the appellant very anxious; and
   • Thirdly, that the Tribunal had “made a jurisdictional error” and failed “to assess a genuine claim for protection” by failing to make its own enquiries as to the appellant’s medical condition and/or seek further information from the appellant’s doctor as to his medical condition.
9. The Federal Magistrate noted that “the factual matrix of [the appellant’s] claims do not have any direct relationship to the arguments he puts concerning the Tribunal’s actions and the manner in which it fell into jurisdictional error”.
10. With regard to the first ground of appeal, his Honour found that the Tribunal did, in fact, consider the appellant’s submissions with regard to his medical condition and alleged inability to give evidence at the hearings. He also noted that the Tribunal had found the appellant’s concern about the medical condition appeared “to increase with the volume of the indication given by the Tribunal that it found him to be a person lacking in credibility”, and rejected this ground.
11. With regard to the second ground, the Federal Magistrate said that, while it had sympathy for the appellant’s position, the Court had not been provided with any evidence that “might indicate that the Tribunal had acted peremptorily towards him”.
12. In dealing with the final ground, the Federal Magistrate considered Minister for Immigration, Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 and NAMJ v Minister for Immigration (2003) 76 ALD 56. He held that, in light of SGLB, the Tribunal need not be satisfied of an applicant’s fitness or “competency” to give evidence (at [45]), nor is the Tribunal obliged to conduct its own inquiries into such matters (at [124]). NAMJ showed that “by analogy with a claim of procedural unfairness, the applicant must bear the onus of establishing that he was unfit to take part in the Tribunal hearing...”: at [69]. His Honour was provided with no evidence as to the appellant’s mental condition at the time of the hearing. He found that there was “no evidence... which could convince me that the Tribunal erred in coming to the conclusion that it did, which was that this applicant was capable of conducting a hearing and that his failures to provide convincing evidence of his claims of persecution were not affected in any way by his physical condition”: at [17].
13. The application for review was dismissed.

APPEAL TO THIS COURT

14. The appellant lodged an appeal against the Federal Magistrate’s decision on 23 November 2009. His notice of appeal contains three somewhat rambling grounds of appeal:

“1. The Federal Magistrates Court erred in not considering that the Tribunal made a mistake that the Tribunal rejected the applicant’s claim on the basis of its own medical assessment that the Tribunal concluded that, The Tribunal does not accept that the Applicant has been prevented from giving consistent and reliable evidence due to mental stress or mental illness stemming from the condition of his back.” But the Tribunal did not collect evidences from the doctor who provided medical certificate to the Applicant for his medical condition for the purpose of the review of the application and the Tribunal also failed to give any explanation why it did not do that and the Court did not consider it.

2. The Federal Magistrates erred in not considering that the Tribunal made a jurisdictional error that the Tribunal did not give opportunity to the applicant to explain the adverse information which are the reasons of part of the reasons to reject the applicant’s claim. Particulars: (i) the inconsistencies between the content of the letter and the information provided to the Tribunal, (ii) the information that the applicant attended high school all the way 2002, (iii) the information regarding the applicant’s involvement with the Awami League, as a party member or any of its wings, (iv) the information regarding at the rally and false charge (sic), (v) the adverse findings on doctor’s medical certificates, (vi) the adverse findings on two different letters and medical certificate.

3. The Honorable (sic) Federal Magistrate erred in not considering that the Tribunal made a jurisdictional error that at the time of the hearing the Tribunal told the applicant to stop and the applicant became very nervous and scare (sic) with the Tribunal. When the Tribunal told the applicant to stop, the applicant lost all his hope and dream. The Tribunal hearing was not fair because the Tribunal acted peremptorily towards the applicant”.

Ground 2 was not relied on in the Court below.

CONSIDERATION

15. The appellant appeared in person on the hearing of his appeal. He had the assistance of an interpreter.
16. I sought the assistance of the appellant in understanding some of the issues raised by his grounds of appeal. Despite his assertion that he was the author of the notice of appeal, it quickly became apparent that he had very little understanding of its contents. When asked, for example, to identify the “two different letters” referred to in particular (vi) in Ground 2, he referred the Court to four medical certificates which had been written in March and April 2008. The Tribunal hearing took place on 13 January 2009 and its decision was delivered two days later. The medical certificates were tendered to the Tribunal by the appellant on 13 January 2009 and, as the Tribunal’s reasons make clear, were considered by the Tribunal in making its decision. When the member asked the appellant why he was tendering the certificates and how they were relevant to the appeal, the appellant responded that they were of “no relevance”.
17. The appellant complained that the Tribunal had not provided him with a letter, following the hearing and before it made its decision, explaining why it rejected his claims and failed to accept his claims to have been unwell and unable to respond accurately to the Tribunal’s questions, thereby depriving him of the opportunity to deal with adverse information. I understood this to be a complaint that the Tribunal had failed to comply with its obligations under s 424A of the Migration Act 1958 (Cth) (“the Act”).
18. As already noted Grounds 1 and 3 were, in substance, advanced unsuccessfully by the appellant before the Federal Magistrate. The Federal Magistrate did not err in dealing with them. They were properly rejected for the reasons given by the learned Magistrate.
19. As already noted, Ground 2 was not raised in the Court below. Given that the appellant is and was not legally represented, I would have entertained an application from him to raise this Ground in this Court had I considered that it was reasonably arguable. It was not. In Ground 2 the appellant alleges error, on the part of the Tribunal, because it did not expose to him, before it made its decision, the adverse views which it had formed about his credibility. These views, and the reasons for them, did not constitute “information” for the purposes of s 424A of the Act: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at 616; VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at 477. The Tribunal was under no obligation of the kind contended for by the appellant.

DISPOSITION

20. The appeal must 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 Tracey.

Associate:

Dated: 16 February 2010