SZADQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1223

FEDERAL COURT OF AUSTRALIA

SZADQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1223 SZADQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 779 OF 2003

STONE J 3 NOVEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 779 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZADQ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 3 NOVEMBER 2003

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.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 779 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZADQ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: STONE J

DATE: 3 NOVEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Driver FM, rejecting the appellant's application for judicial review of a decision of the Refugee Review Tribunal ('Tribunal') affirming a decision of a delegate of the respondent not to grant a protection visa to the appellant. Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) the Chief Justice has determined that the appeal be heard and determined by a single judge. The relevant facts and the grounds on which the appellant sought review of the Tribunal's decision are set out in the reasons for judgment of Driver FM: SZADQ v Minister for Immigration [2003] FMCA 230.

2 The amended notice of appeal filed by the appellant lists five grounds of appeal: '1. A number of errors were occurred by the Tribunal, which was not considered by the Honorable Federal Magistrate. 2. The Tribunal misunderstood the applicant's claim and the decision by the Tribunal was not reflected the true picture of the claim. Honorable Federal Magistrate did not consider this. 3. The Tribunal did not provide the applicant's an opportunity to comment on the information, which the Tribunal relied on it's decision. Where the applicant was deprived of natural justice, Honorable Federal Magistrate also did not consider this. 4. s474 of the Migration Act is ineffective as per the recent two decision of the High Court of Australia. Honorable trial judge did not consider this favor the applicant. 5. The applicant will face persecution if he returns to his country of Origin, as there is a significant level of violation human rights, this was not considered by Honorable judge.' 3 Both the appellant and the respondent were directed to file written submissions in support of their respective positions on the appeal. Only the respondent has done so. At the hearing the appellant appeared for himself with the aid of an interpreter. In the course of the hearing the appellant repeatedly asserted that he was a genuine refugee and that the Tribunal was wrong in not believing his claims. He submitted that the Tribunal was biased against him. In support of this allegation the appellant referred to: (a) the fact that the Tribunal rejected his claim which, he claimed, was so strong that its rejection was only explicable on the grounds of the Tribunal's bias; (b) the Tribunal member's conduct at the hearing which, he claimed, was irritable, dismissive of his account and included negative comments about the appellant's case showing a failure to consider his claims fully; (c) the fact that his mother and brother had made substantially the same claims as he and had been granted protection visas by different Tribunal members; and (d) anonymous phone calls made to the respondent's department that were not mentioned in the Tribunal's reasons. The appellant also said he suspected that the Tribunal Member was a Muslim and alleged that the Tribunal appeared to be hostile to non-Muslims. He produced in Court a number of tapes that he said would support his allegations about the conduct of the hearing. These were the same tapes that he has asked Driver FM to review. In refusing to do so the learned magistrate said: 'The applicant showed me some 16 tapes of four hearings conducted before the RRT over a two year period. However, no transcript … has been provided and I consider it impracticable to listen to all 16 of those tapes in order to determine whether something might have been said at some stage during the course of those four hearings which might be of concern.' 4 The tapes were produced at the hearing of the appeal with no previous notice to the Court. There was no attempt to identify those parts of the tapes that were alleged to be relevant. In the circumstances it was not only impracticable for me to review the tapes but would be manifestly unfair to the respondent and accordingly I declined to do so. 5 The appellant's claims at the appeal were essentially the same as those raised before Driver FM. In his reasons for decision, at [9] – [14], the learned magistrate made the following comments: 'It is apparent from a reading of the RRT decision that the applicant failed because of the findings on credibility made by the presiding member… the presiding member said: In summary, I find the applicant has constructed a set of claims, some of which may be based on certain facts. I find that he has produced a set of documents and used other people to assist in this way in an attempt to provide supporting evidence to his fabrications. The applicant's credibility is so damaged that I reject his claims outright and find that he did not leave Bangladesh as a result of a well founded fear but for other reasons. I accept that a Hindu in Bangladesh could have serious claims to refugee status, but having considered the independent material I find that this would not be generalised and would be a matter of fact and degree and the decision would depend upon the individual merits of each matter. In the current matter the applicant has not provided the Tribunal with genuine claims and has fabricated a set of claims which I do not accept. While I accept that he is a Bangladeshi and he is Hindu I find that he does not have a set of genuine claims to have suffered past harm or that he could suffer prospective harm either because of his religion or his political opinion. [The applicant's claims were based both on alleged religious and political persecution]. This being the case I find he does not have a well founded fear of persecution for a Convention reason. Since I do not accept that he has a well founded fear I am not satisfied that Australia has protection obligations. These are very strong findings adverse to the applicant based on credibility. The applicant is plainly dissatisfied with those findings and considers that he should have been accepted as a genuine refugee. However, as I have already noted, it is not the task of this Court to determine whether the applicant's claims have substance in fact or not. The task of the RRT following a decision of a delegate of the Minister is to assess the claims and to make a decision on those claims. The task of the RRT is to assess the credibility of claims made. To the extent that an applicant is dissatisfied with the merits of the RRT decision, the only course available to an applicant, the decision being otherwise lawful, is to appeal to the Minister for his intervention. That course is open to the applicant. The task before the applicant in the proceedings before me is to demonstrate reviewable legal error. If the applicant were able to demonstrate an error of law going to the jurisdiction of the RRT the applicant would succeed, notwithstanding the privative clause in s.474 of the Migration Act. The applicant has, in substance, asserted procedural unfairness in terms of the manner in which the RRT conducted its hearing. However, the matters raised by the applicant orally before me do not satisfy me that there was procedural unfairness. The applicant was given a very extensive opportunity over two years and four hearings to put all of the material that he wished before the RRT. The presiding member appears to have thoroughly investigated those claims for the purposes of reaching a decision on them. The RRT considered that the claims were not credible either because the claims were not plausible on their face or that the claims were internally inconsistent or that other evidence before the RRT indicated that the claims were false. In the circumstances, the adverse conclusions on credibility reached by the RRT were reasonably open to it on the material before it. I am not persuaded that any reviewable legal error has been committed by the RRT in this case.… Although the applicant has asserted bias, I find the decision of the RRT is not vitiated by bias, whether that is said to go to procedural unfairness or to an issue of bad faith. The other Hickman provisos to the privative clause in s.474 are satisfied. In the circumstances, and in the absence of any jurisdictional error, I must dismiss the application.' 6 His Honour carefully considered the arguments that were said to give rise to questions of law. His Honour concluded that they did not identify any legal error in the Tribunal's reasons and that there was no ground on which he could interfere with the decision of the Tribunal. 7 I have carefully read the reasons of the Tribunal and the learned Federal Magistrate and see no reason to doubt the correctness of his Honour's conclusions. The Tribunal set out in considerable detail the inconsistencies that it found in the appellant's claims but there was no attempt either before Driver FM or at the hearing of this appeal to resolve those inconsistencies. In substance, the appellant seeks merits review of the Tribunal's decision. His Honour's analysis of the Tribunal's reasons shows that the findings made by the Tribunal were open to it on the evidence. In those circumstances neither this Court nor the Federal Magistrates Court has jurisdiction to engage in merits review. For this reason the appeal from the decision of Driver FM must be dismissed. 8 There is one other matter which I should mention. Both before the Federal Magistrates Court and on this appeal the appellant expressed concern that the interpreter provided was a Muslim. The Federal Magistrates Court attempted (unsuccessfully) to cater to the appellant's sensitivities and retain a non-Muslim Bengali interpreter. In his reasons for judgment Driver FM commented that he did not consider that the religion of the interpreter had any bearing on the interpreter's capacity 'to interpret faithfully and his understanding of his obligations'. I respectfully agree with his Honour and do not accept that the religion of the interpreter has any potential to prejudice the appellant. In any event, the interpreter at the hearing of this appeal stated that, despite having a Muslim name, he was not a practising Muslim. Before the hearing I satisfied myself (as did Driver FM in the hearing before him) that the interpreter provided was qualified, competent and understood his obligations. He willingly made an affirmation that he would faithfully interpret everything that was said and I have no reason to doubt that he did exactly that. Although the appellant pressed his objection I was not prepared to countenance an allegation that the interpreter might be prejudiced merely because he has a Muslim name. 9 For these reasons the appeal must be dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.