SZASY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1074

FEDERAL COURT OF AUSTRALIA

SZASY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1074 SZASY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1072 of 2004 WILCOX J 12 AUGUST 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1072 of 2004

BETWEEN: SZASY

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT JUDGE: WILCOX J

DATE OF ORDER: 12 AUGUST 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs. 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 1072 of 2004

BETWEEN: SZASY

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WILCOX J

DATE: 12 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT WILCOX J: 1 This is an appeal against a decision of Federal Magistrate Barnes delivered on 22 June 2004. The Chief Justice has determined that the appeal should be heard by a single judge of this Court. 2 The Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') dated 2 May 2003. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing a protection visa to the appellant. 3 The appellant is a citizen of Bangladesh who arrived in Australia on 26 April 2001. Shortly after his arrival, he applied for a protection (class XA) visa on the basis that he had a well-founded fear of persecution, if returned to Bangladesh, on account of his political opinion. 4 The basis of the appellant's claim was that he had, for many years, been an active member of a political party called the Freedom Party. In support of that claim, he tendered an undated document that purported to be a letter from an official of that party stating he was a 'genuine and dedicated member' of the party. The appellant also tendered what purported to be a warrant for his arrest issued by a court in Bangladesh, noting that the appellant had been charged with an offence under the Explosive Materials Act, and an instruction from the local district magistrate ordering the recipient, presumably a police officer, to 'catch hold the accused and present him in front of me'. 5 The Tribunal member accepted that the appellant had been a member of the Freedom Party for a number of years, at least during the time that he was at university. However, the appellant apparently left university in 1995. The following year, there was a change of government in Bangladesh, with the Awami League coming to power. The Tribunal member did not accept many of the claims of the appellant in respect of his activities after that date. At p 11 of her reasons for decision, the Tribunal member said this: 'I do not believe that [the appellant] was in hiding much of the time after the Awami League came to power because he feared he would be arrested or killed by Awami League members. In the first place, there is no mention of this in his protection visa application, which states that he was an active member of the party and indicated that the [sic] was frequently involved in public activities throughout the time he was a member. Secondly, I find the claim inherently implausible. As discussed above, the Freedom Party remained legal throughout following the arrest of its leaders and while some members faced harassment, they were not generally at risk of persecution.' 6 The Tribunal member went on to indicate specific disbelief of the appellant's claim that he participated in a Freedom Party demonstration in December 2000, during which he was allegedly beaten with a hockey stick and hospitalised. She gave several reasons for this conclusion, including, notably, the appellant's concession that the Freedom Party had virtually ceased to exist by December 2000. For the above reasons, the Tribunal member did not accept the appellant's claim that politically motivated false charges had been laid against him in December 2000 because of his involvement in the demonstration or his past involvement with the Freedom Party. The Tribunal member went on at p 12 of her reasons: 'I believe that he concocted the claim regarding these charges and that the arrest warrant and the charge sheet which he provided a [sic] false documents. [The appellant's] ability to leave Bangladesh legally on a passport issued in his own name in April 2001 supports a finding that he was wanted [sic] by the police at the time of his departure from the country.' The word 'not' has obviously been erroneously omitted from before the word 'wanted'. 7 In support of his appeal, the appellant submitted that the Tribunal did not consider the current political position in Bangladesh. He told me he had not supplied any information to the Tribunal about this topic or referred to any material that he wished the Tribunal to obtain for itself. 8 It is fair to say that the Tribunal did not closely examine the political situation in Bangladesh after the end of the year 2000. Under some circumstances, a failure by the Tribunal to consider the current political position in the relevant country of nationality might be a serious defect. However, whether it is necessary in a particular case for the Tribunal to undertake such an inquiry must depend upon the nature of the claims put to it. As I have indicated, the gist of the appellant's claims to the Tribunal was that he was at risk because of his association with the Freedom Party. However, he conceded that this party had virtually ceased to exist some months before he departed Bangladesh. The appellant did not suggest that the Freedom Party had been revived any time after December 2000 or that former members of the Freedom Party are currently being persecuted. 9 The Tribunal found there was no significant risk of persecution of members of the Freedom Party even during the period between the Awami League coming to power in mid-1996 and the date of the appellant's departure from Bangladesh. Under those circumstances, I do not believe that the Tribunal fell into jurisdictional error in failing to undertake an investigation of Bangladesh politics since the end of 2000. 10 The notice of appeal filed in this Court identifies four grounds of appeal, which are set out in paras 2 to 5 inclusive of the document. Paragraph 2 reads as follows: 'The Refugee Review Tribunal (RRT) made error of law and failed to exercise the proper procedure in relation to make decision on my protection visa review application.' 11 When I asked the appellant about this ground, he said that relevant communications were not given consideration and that the Tribunal did not take 'a close look' at his case but simply relied on its general experience of Bangladesh applications. When I asked the appellant to identify the communications to which he was referring, he referred to the letter from the Freedom Party and the documents referring to the criminal charges. As the quote set out in para 6 above reveals, the Tribunal made specific reference to those documents in its reasons for decision. I appreciate that the appellant does not agree with the finding of the Tribunal in relation to those documents but it is not possible to say the Tribunal failed to give consideration to them. 12 Paragraph 3 of the notice of appeal reads as follows: 'The Hon. Federal Magistrate court decision is not correct either. I was denied the natural justice both from the RRT and the Hon. FM court.' 13 Paragraph 5 of the notice of appeal says: 'My review application to the RRT was affected by prejudice and biasness.' 14 These two grounds may be considered together. In relation to each of them, the appellant merely said he believed himself to be a refugee and the Tribunal's decision to the contrary indicated denial of natural justice and prejudice. Obviously, that result does not follow. It is for the Tribunal to find the facts of the case. It is not enough to point to the circumstance that the Tribunal found facts adversely to a particular party. 15 In the context of para 5, the appellant also said that the Tribunal did not have current information about the political situation in Bangladesh. I have already dealt with that point. 16 Paragraph 4 of the notice of appeal is as follows: 'The RRT failed to consider the updated country information, on constant political anarchism by the current religious fanatic allied administration, of Bangladesh and ignored it's duties to deal my claim carefully and the related legal issues at the time of its decision. Therefore I trust the Tribunal has not acted in accordance with the provisions of the United Nations Convention 1951 which was amended by the 1967 Protocol relating to the status of refugees where Australia itself is a party.' This ground is also covered by what I have said above. 17 A number of grounds of review were argued before the Magistrate. Those grounds differ to some extent from the grounds to which I have referred. I have considered what the Magistrate said about the grounds raised before her. I see no basis upon which her reasoning about those grounds may justifiably be criticised. 18 Before coming into court today, I carefully considered the Tribunal's reasons. I anticipated that the appellant would not be legally represented. I see no basis for attributing to the Tribunal any jurisdictional error. 19 The situation in this case is similar to the situation in many cases, in that the appellant is unhappy about the factual findings of the Tribunal. However, it is not for this Court to review the Tribunal's findings of fact. As I have pointed out to the appellant, this Court can intervene only if it is satisfied that the Tribunal has committed an error which falls into the category of a jurisdictional error. I endeavoured to explain to the appellant what that meant. He said he understood. The concept of jurisdictional error includes failure to give consideration to a relevant circumstance. If I had thought that the Tribunal had fallen into that error, in this case, then I would have upheld the appeal. However, for the reasons I have given, I do not think that the Tribunal's failure to deal with the post 2000 political situation in Bangladesh was a failure to consider a relevant circumstance. I think all the other matters raised by the appellant, including the authenticity of the documents, are matters entirely of fact. This being the case, I have no alternative but to dismiss the appeal. 20 The order of the Court will be that the appeal 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 Wilcox.