SZARA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1778

FEDERAL COURT OF AUSTRALIA

SZARA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1778 SZARA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N526 OF 2004 EMMETT J 1 JUNE 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N526 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZARA

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 1 JUNE 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's 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 N526 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZARA

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 1 JUNE 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of Bangladesh. He arrived in Australia on 19 October 2000, and on 16 November 2000 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. The application was made under the Migration Act 1958 (Cth) ('the Act'). 2 On 13 February 2001, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused to grant the protection visa and, on 13 March 2001, the appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. On 22 April 2003 the Tribunal affirmed the delegate's decision not to grant a protection visa. The appellant then commenced proceeding in the Federal Magistrates Court for review of the decision of the Tribunal. On 1 April 2004 Federal Magistrate Barnes ordered that the application be dismissed and ordered the appellant to pay the Minister's costs in the amount of $4,000. 3 By notice of appeal filed on 15 April 2004 the appellant now appeals from the orders of Federal Magistrate Barnes to this Court. The Chief Justice has directed that the appeal be heard by a single judge. The appellant appeared in person with the assistance of an interpreter. He indicated, when the matter was called on for hearing today, that he had a friend who had been giving him assistance but who was not in Australia. The appellant had previously made mention of receiving assistance in similar terms at an earlier directions hearing, but was unable to be specific as to the nature of the assistance that his friend might have been able to afford. Insofar as the intimation of possible assistance can be construed as an application for an adjournment, I consider that it is not an appropriate case for the grant of an adjournment. 4 I have read the reasons of the Tribunal for its decision and the reasons of Federal Magistrate Barnes for dismissing the appellant's application. The Tribunal did not find the appellant to be a truthful or a credible witness. In the first place, he did not have the level of knowledge of the Bangladeshi Freedom Party of which he claimed to be a member. His claim was that he was a risk of persecution in Bangladesh for reasons of his political opinion as a result of his involvement with that party. The Tribunal observed that the appellant appeared to know nothing about the party's participation in the 1996 elections and more importantly, did not know where the two main leaders of the party were after 1996. 5 The Tribunal considered the appellant's claim that there were thousands of Freedom Party members in his area in late 1997 and that more than 5000 attended a rally in December of that year. The Tribunal found such claims to be at odds with other information before the Tribunal which indicated that the party never had a large following and had declined considerably in numbers and activity after the arrest of its leaders in 1996. 6 The Tribunal also considered the appellant's evidence to be confused and contradictory. The Tribunal did not consider that it was plausible that the appellant would have been able to travel regularly between Bangladesh and Thailand in 1999 and 2000 if, as he claimed, he was in hiding from late 1996, or December 1997, either because of outstanding charges against him or because more charges were likely to be laid against him. The Tribunal concluded that, after considering all of the relevant evidence, it did not believe that the appellant ever belonged to the Freedom Party or that he experienced problems with the authorities, or anyone else in Bangladesh because of his involvement in politics. The Tribunal was, therefore, not satisfied that the appellant had a well-founded fear of persecution in Bangladesh because of his political opinion, or for any other Convention reason. 7 In his application for review of the Tribunal's decision the appellant raised a number of grounds. He also raised additional grounds in written submissions. Federal Magistrate Barnes considered all of the material in assessing whether or not there was jurisdictional error on the part of the Tribunal. According to her Honour's reasons, the appellant claimed that the Tribunal ignored relevant evidence and failed to ask itself the correct question. However, no particulars were provided. Her Honour concluded that, on the material before the Court, it was apparent that the Tribunal had regard to all of the appellant's claims raised in the initial protection visa application and in the Tribunal hearing. 8 The appellant also claimed that the Tribunal hearing was a mere formality and that its findings were made in the face of contradicting independent evidence, indicating actual bias. Her Honour considered that there was no evidence to support an assertion that the Tribunal acted in bad faith or was biased or, indeed, that there was any real likelihood that a reasonable observer might entertain a reasonable apprehension that the Tribunal might not bring an impartial and unprejudiced mind to a resolution of the application. 9 Nor did her Honour consider that the appellant had established that the Tribunal failed to investigate the appellant's claims in circumstances amounting to jurisdictional error. Her Honour found that the Tribunal put to the appellant its knowledge about the ease of providing false documents from Bangladesh. No error was established in the Tribunal's treatment of independent information. Her Honour referred to the fact that, after the appellant raised late claims of charges having been made against him, he offered to obtain more documentation to support his claims. The Tribunal considered that matter and decided not to allow the appellant further time. The Tribunal's reasons had regard to his failure to mention such claims at an earlier stage, the inconsistencies, vagueness and unconvincing nature of the claims, and the time that had elapsed since the making of the protection visa application. Her Honour also referred to the fact that the Tribunal found that the appellant had an opportunity to provide documentation to the delegate, as well as to the Tribunal, in the course of its review; that opportunity had not been taken up. In the circumstances of the case, her Honour concluded that there was no obligation on the Tribunal to make further inquiries. 10 The appellant also contended before her Honour that the Tribunal committed a jurisdictional error in the nature identified by the High Court in Muin v Refugee Review Tribunal & Ors, Lie v Refugee Review Tribunal & Ors (2002) 190 ALR 601. However, there was no evidence put forward by the appellant suggesting that he was misled into believing the Tribunal had considered particular information and, as a result, did not ensure that such information was placed before the Tribunal, as was the case in the Muin decision. 11 The appellant also claimed before the Magistrates Court that the Tribunal failed to consider whether his fears of persecution were well-founded in the reasonably foreseeable future. However, the Tribunal expressed no doubt about its findings, based on credibility, that the appellant was not a member of the Bangladeshi Freedom Party and that he had not experienced any problems, as he claimed. Her Honour concluded that, in those circumstances, it was not necessary for the Tribunal to consider if it were wrong in accordance with the principles in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220. 12 The appellant also claimed that the Tribunal failed to provide him with information it held that persecution against political activists of Bangladesh had subsided. Further, as your Honour observed, the Tribunal's decision did not turn on any such information. Rather, it was based on its conclusion that the appellant was not a truthful or credible witness and on rejection of his claims generally. Her Honour considered that it was apparent from the Tribunal's summary of what occurred in the hearing that the Tribunal put to the appellant the critical issues, gave him an opportunity to comment and have regard to his comments. In the circumstances, there could be no suggestion that the Tribunal failed to accord the appellant procedural fairness. Accordingly, her Honour dismissed the application. 13 The notice of appeal to this Court was clearly prepared by a non-lawyer. The grounds stated may be summarised as follows: 1. The Federal Magistrate failed to find error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act 1903 (Cth). 2. The grounds and relief are very similar to those claimed in Muin and Lie. 3. The Federal Magistrate erred in considering the real state of affairs of the appellant and the fact that the present ruling government in Bangladesh fails to protect civilian life, which the magistrate did not take into consideration. 4. Section 474 of the Act is ineffective. 5. The appellant will face persecution if he returns to his country of origin where there is a significant level of violation of human rights. 14 In addition, there were references to the decision of the High Court in S157 of 2002 v Commonwealth of Australia [2003] HCA 2 and in the decision of the Federal Court in SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74. No other particulars of any of the grounds were furnished. It is quite apparent that none of those grounds has any substance in the light of the careful and detailed reasons of the Federal Magistrate. 15 I do not consider that any error has been demonstrated on the part of the Federal Magistrate. It follows that the appeal should be dismissed.