SZARI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1294

FEDERAL COURT OF AUSTRALIA

SZARI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1294 SZARI v Minister for Immigration and Multicultural and Indigenous Affairs N 1194 OF 2004 JACOBSON J 30 SEPTEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1194 OF 2004

BETWEEN: SZARI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 30 SEPTEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal, fixed in the amount of $2,500.00. 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 N 1194 OF 2004

BETWEEN: SZARI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE: 30 SEPTEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate given on 23 July 2004 dismissing an application for review of a decision of the Refugee Review Tribunal ("RRT") handed down on 12 May 2003. The RRT affirmed a decision of a delegate of the Minister refusing to grant the applicant a protection visa. 2 The Notice of Appeal filed on 5 August 2004 is in the most general terms. It simply says that the Federal Magistrate in his decision failed to establish that the RRT decision was affected by error of law, procedural fairness and denial of natural justice. It also says that the decision was in breach of the rules of procedural fairness. No particulars are supplied in the Notice of Appeal. 3 The Notice of Appeal does not of itself disclose any arguable ground of appeal and that would be sufficient to dispose of this matter. Nevertheless, I will deal briefly with the background facts, the decision of the RRT, and the learned Federal Magistrate's decision. 4 The appellant is a citizen of Bangladesh who arrived in Australia on 26 March 2002. He lodged an application for protection visa on 8 April 2002. He claimed that he is owed protection obligations by Australia in accordance with the Convention by reason of his political opinion. The appellant claimed to be a leading member of a student wing of the Awami League and to have been targeted by members of the rival Bangladesh National Party ("BNP"). 5 The appellant claimed that the BNP attacked and ransacked his residence in Mirpur, Dhaka, and that his father was threatened. The appellant claimed that the BNP threatened him with death and that he managed to leave Bangladesh to go to New Zealand on a visitor's visa in October 2001. 6 The applicant claimed that upon his return to Bangladesh in February 2002 his house was ransacked and he was severely injured. He also claimed that false charges were laid against him. 7 The RRT did not find the appellant to be a credible witness. It found that the appellant's claims were vague and that they were contradicted in some respects by his oral testimony and independent country information. The RRT ultimately found that the appellant had exaggerated or fabricated some of his claims and that he did not have a genuine fear of persecution. The RRT accepted that the appellant may have been an Awami League member but found that he would not have stayed in Dhaka for so long if he were truly under threat and attack in the manner that he claimed. 8 The RRT also observed that the tone and wording of the claims was very similar to other cases involving the same migration adviser, Mr Kazi. The RRT concluded that the appellant was not, as he claimed, wanted by the authorities and that he did not have a fear of them. 9 The RRT noted that the appellant had been able to leave Bangladesh legally on his own passport without difficulty. The RRT also observed that even if the appellant did have a genuine fear of his political opponents, it was reasonable to expect him to re-locate within Bangladesh. Accordingly, the RRT concluded that it reached a state of satisfaction that the appellant did not have a genuine or well-founded fear of persecution by reason of his asserted political opinions. 10 The primary ground of review in the application before the Federal Magistrate was that the RRT approached the hearing with a closed mind, that is to say, that it displayed actual bias or alternatively, that there was a reasonable apprehension of bias. The appellant stated that this ground appeared from the fact that the RRT did not believe him however, the Federal Magistrate said at [3] that "this complaint went to the merits of the RRTs decision which was based on its findings about credibility". 11 The learned Magistrate said that "It is the task of the RRT to assess the credibility of the claims made to it." The Federal Magistrate also observed at [6] that "The applicant relied in support of his allegation of basis upon the fact that the RRT had given its decision immediately after the conclusion of the hearing". 12 The Magistrate said that there was nothing wrong with this and he pointed out that it is quite common for courts and Tribunals to give decisions orally immediately after the conclusion of a hearing. The appellant also relied upon statements said to have been made by the presiding member about his concerns that documents relied upon by the appellant were thought to be false. However, the Federal Magistrate said at [10] that "It is entirely appropriate for a presiding member to disclose doubts about the authenticity of documents." 13 The appellant put to the Federal Magistrate, apparently in support of his claim of unfairness, that at the RRT hearing the presiding member made mention on a number of occasions of the fact that he was the son of former Prime Minister, Mr Gough Whitlam. 14 No transcript of the RRT hearing appears to have been put before the Federal Magistrate. However, the Federal Magistrate said at [13]: "The applicant asserts that, on being told by Mr Whitlam that he was the son of a former Prime Minister, he (the applicant) was frightened and overborne. Mr Whitlam, being the son of former Prime Minister Gough Whitlam, appears to have inherited some of the attributes of his illustrious parent. One of those is a formidable command over the English language. His reasons always make interesting reading. He is one of the more individualistic members of the RRT. He is often forceful and direct in making credibility findings. There is nothing wrong with that. He was forceful and direct in this case." 15 The Magistrate observed at [14] that where a presiding member has a clear view about lack of credibility in claims, it is appropriate that he say so in clear terms. The learned Magistrate said at [14] that the appellant was exposed before the RRT as Ananias and suffered the inevitable consequences. I note that fortunately, the appellant did not suffer the consequences of Ananias and Sapphira as described in the Acts of the Apostles (5:1-10). 16 The Magistrate observed that the experience before the RRT to the appellant and his adviser, Mr Kazi, included some trenchant criticisms from Mr Whitlam and this may not have been a pleasant experience, but it did not indicate bias. 17 The learned Magistrate also observed at [14] that "A strong personality does not lead to an inference of bias or reasonable apprehension of bias." He said that if it did, some judges including very senior judges, would be unable to sit at all. 18 The Federal Magistrate did not regard any of the Presiding Member's comments in his written reasons as inappropriate. 19 The Magistrate at [16] adopted the submissions of counsel for the Minister. Those submissions referred to the well known decision of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67]. The Federal Magistrate also found that the RRT's conclusion that it was reasonable for the appellant to relocate within Bangladesh was a finding of fact within the principles states by a Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. 20 The learned Magistrate concluded at [17] that no jurisdictional error was disclosed in the decision of the RRT. 21 The appellant appeared before me this morning in person. His only submissions were that there were errors in the decision of the Federal Magistrate and in the decision of the RRT. No details were given. 22 No error has been demonstrated in the decision of the Federal Magistrate. The appeal must be dismissed for the reasons given by the Federal Magistrate. Accordingly, order that the appeal be dismissed. 23 I propose to make an order that the appellant pay the respondent's costs of the appeal. Mr Reilly has put to me that the solicitor and client costs in this matter are in the order of $3500. He tells me this upon the basis of his instructions and I of course accept that that is so. Those costs were the solicitor and client costs. Following the same sort of approach which the Federal Magistrate took at [18] of his judgment, it seems to me appropriate that on a party-party basis the costs are to be fixed in the amount of $2500. The second order that I would make therefore is that the appellant pay the respondent's costs of the appeal fixed in the sum of $2500. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.