SZGDI v Minister for Immigration & Multicultural Affairs [2006] FCA 1649

FEDERAL COURT OF AUSTRALIA

SZGDI v Minister for Immigration & Multicultural Affairs [2006] FCA 1649 SZGDI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD 1279 OF 2006

GRAHAM J

13 NOVEMBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1279 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGDI

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J DATE OF ORDER: 13 NOVEMBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs fixed in the amount of $4,900. 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 NSD 1279 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGDI

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 13 NOVEMBER 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant, who is identified for the purposes of these proceedings as SZGDI, was born in Chittagong, Bangladesh on 18 October 1982. He arrived in Australia on 23 October 2004 when he had just turned 22 years of age. He travelled to Australia on a Bangladeshi passport issued to him on 31 October 2001 which had a five-year life and an Australian visitor's visa issued to him on 19 October 2004 when he was living in Sri Lanka . On 16 November 2004 the appellant applied for a Protection (Class XA) Visa. That application was refused by a delegate of the Minister who was not satisfied that the appellant was a person to whom Australia had protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ('the Refugees Convention'). 2 On 17 January 2005 the appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of the Minister's delegate's decision. On 15 March 2005 the Tribunal affirmed the decision of the Minister's delegate not to grant a protection visa to the appellant. On 22 April 2005 the appellant applied to the Federal Magistrates Court of Australia seeking constitutional writ relief in respect of the decision of the Tribunal. That application was superseded by an Amended Application filed in the Federal Magistrates Court on 26 July 2005. The application was heard in the Federal Magistrates Court on 14 June 2006. 3 The learned Federal Magistrate who heard the matter dismissed the application and ordered the appellant to pay the first respondent's costs fixed in the sum of $3,800. On 3 July 2006 the appellant filed a Notice of Appeal in this Court appealing from the judgment of the learned Federal Magistrate. That Notice of Appeal was superseded by a document which was originally entitled 'Amended Application under Judiciary Act 1903 and Migration Act 1958', the title of which was altered to read, 'Amended Notice of Appeal under Judiciary Act 1903 and Migration Act 1958'. This Amended Notice of Appeal was filed on 21 August 2006. It is that Amended Notice of Appeal which presently is before the Court. 4 The appellant has informed the Court that he was assisted in respect of his application for a protection visa through to the conclusion of the matter before the Tribunal by the migration agent, whose name is identified in the protection visa application. He says that he has since then been assisted by a friend of his who wrote down on the various documents whatever the appellant had to say. I note that in the amended application filed 26 July 2005 in the Federal Magistrates Court, a sentence appeared reading, 'I will provide more after discuss my matter with the pilot scheme barrister'. The appellant has indicated that he did not enjoy any legal assistance in relation to the preparation of his documents, notwithstanding this sentence. 5 The appellant claimed to be a Buddhist, who spent some time as a Buddhist monk, who fears persecution in Bangladesh from Muslim fundamentalists. He alleged that his family had been ill-treated by Islamic organisations, that he had been kidnapped by a Zany Alam and his gang. I would observe that the name, 'Zany Alam' has also been expressed as 'Zeni Alam' and as 'Jane Alam'. 6 Before coming to Australia the appellant secured a visitor's visa allowing him to enter India in December 2002 and a visa allowing him to visit Sri Lanka in December 2002. He, in fact, travelled to Sri Lanka in December 2002 and, with the exception of a brief period at the end of 2003-beginning of 2004, he lived in Sri Lanka before travelling to Australia. 7 In late 2003 - early 2004 he returned to Bangladesh where he made contact with his father who at the time was in need of an operation for a gall bladder complaint which took him and his son to India where the operation was performed. 8 It is difficult to know where to start in an endeavour to identify the issues requiring consideration by the Court. There is little correspondence between the application for constitutional writ relief originally filed in the Federal Magistrates Court on 22 April 2005, the Amended Application filed in that Court on 26 July 2005, which was supplemented in an informal way by additional grounds raised in the appellant's submissions in writing in the Federal Magistrates Court filed 25 May 2006, the issues raised in the Notice of Appeal to this Court filed 3 July 2006, the issues raised in the Amended Notice of Appeal filed in this Court on 21 August 2006 and the issues as identified in a document entitled 'Outline of submissions of the applicant' filed in this Court on 24 October 2006. 9 At the end of the day the appellant simply does not accept the correctness of the Tribunal's decision. This is demonstrated by the fact that two documents were attached to the Amended Notice of Appeal filed in this Court on 21 August 2006, being documents which were brought into existence for the first time on 21 April 2005 and 10 July 2005. 10 These documents expressed in English were entitled 'CERTIFICATE COVERING CHARACTER AND PERSONAL FACTS' referable to a person with a surname spelt similarly to but differently from that of the appellant, and another document entitled 'CHARACTER CERTIFICATE WITH PERSONAL EFFECTS' in respect of a person with a surname similar to but not identical with that of the appellant. 11 When invited by the Court to demonstrate the significance of the two documents which came into existence after the decision of the Tribunal had been handed down, the appellant indicated that they were documents which he sought to place before the Federal Magistrates Court upon the hearing of the application for constitutional writ relief but which the learned Federal Magistrate declined to consider. 12 It is clear that what the appellant is seeking before this Court is a merits review of his case which this Court is not permitted to undertake. Without repeating the entirety of the Amended Notice of Appeal in these reasons, I will set out a brief extract from the document: 'It is my argument that the Tribunal fell into jurisdictional error on the following grounds: I applied for a protection visa for my persecution in Bangladesh as a member of Buddhist religion. I am a victim of harassment and abducted by the Muslim fundamentalist for my religious belief. I placed the facts of my persecution at the time of oral evidence in the Refugee Review Tribunal and the Tribunal failed to consider my well-founded fear of persecution. … The Tribunal has failed to consider me as a member of Buddhist religion. … Though I have provided adequate documents to proof (sic) my religious background the Tribunal was in doubt about my religious background and refused my application. The Tribunal has failed to assess my position in Bangladesh for my religious affiliation. It is an error of jurisdiction. It appears that the Tribunal has failed to accept the authenticity of documents relating to my persecution and refused my claim. … The Tribunal … erred in finding that there was no information to support my claim that my abduction was religiously motivated. … … The Tribunal refused my claim on the ground that it lacks specific detail and incredible … … The Tribunal failed to accord procedural fairness in that: · The Tribunal did not give me any opportunity to respond to any adverse material that it possessed prior to take decision of my refugee claims. · The Tribunal's erred to find that the Tribunal is not satisfied that there is a real chance of the applicant (me) being selected or targeted for persecution for any convention reason and the consequential satisfaction were not formed by a correct application of the applicable law hence the necessary opinion does not exist; · The Tribunal constructively failed to exercise its jurisdiction in arriving at its decision. Under the above circumstances the Tribunal made errors of jurisdiction as I was not accorded procedural fairness. The decision has failed to achieve natural justice. …' 13 The outline of submissions of the applicant, filed on 24 October 2006, crystallised the issues which the appellant wishes to raise. The first issue concerns documents which the appellant placed before the Tribunal. The submission of the appellant is that the Tribunal gave no weight to the documentary evidence. That submission is quite without foundation. By letter dated 20 February 2005, the appellant's migration agent forwarded a number of 'very important documents' to the Tribunal for the Tribunal to peruse. These documents were forwarded to the Tribunal prior to the Tribunal hearing on 11 March 2005. A number of the documents were expressed in Bengali with English translations. In the Tribunal's reasons for decision the Tribunal Member said: 'The Applicant attended the RRT hearing with five documents and four photographs. These had previously been sent in copy form by his adviser. Although all this material is supposed to date back to the first half of 2003, none of its (sic) was presented to DIMIA. It was all sent from Bangladesh on 1 February 2005, some five weeks after the delegate decided the Applicant's protection visa application in the first instance. The Tribunal examined this material and asked the Applicant questions about it.' 14 The Tribunal proceeded in its reasons to direct attention to the five documents. In relation to those documents the expression 'the Tribunal put it to the applicant' or similar words appear in the Tribunal's reasons on a number of occasions. In one such instance, in dealing with a document dated 28 October 2004, the suggestion was that the letter was the product of fraud which was denied by the applicant. It is unnecessary to repeat all of the observations made by the Tribunal about the letters. Suffice to say that in its findings and reasons the Tribunal said: 'The Tribunal finds that all five letters are unreliable.' 15 Regrettably for the appellant the findings of the Tribunal in respect of the letters did not reflect favourably upon the appellant himself. The Tribunal said: 'The strong evidence here of fabrication adds to the Tribunal's view that the Applicant's claims about attacks on him in the past cannot be relied upon.' 16 It is clear that the Tribunal had considerable reservations about the appellant as a witness of truth. As indicated earlier, the proposition that the Tribunal gave no weight to the documentary evidence advanced by the appellant cannot be sustained. 17 A second matter raised by the appellant in his outline of submissions is that the Tribunal fell into jurisdictional error in giving no weight to certain country information. Once again, the submission does not bear analysis. The appellant has selectively quoted from the US Department of State, Bangladesh, Country Reports on Human Rights Practices – 2004, Bureau of Democracy, Human Rights & Labor, 28 February 2005('the 2004 Report') which the Tribunal quoted extensively in its reasons. 18 The passage relied upon by the appellant reads: 'Discrimination against members of religious minorities existed at both the governmental and societal level.' 19 What the appellant does not recognise is that the observation mentioned concerning discrimination was qualified by the words which followed, namely: '…however, there was no clear evidence of government persecution, although religious minorities were disadvantaged in practice in such areas as access to government jobs, political office, and access to justice.' 20 Taken in its entirety, the country information would not support a finding, in my opinion, that the relevant discrimination amounted to significant economic hardship that would threaten a person's capacity to subsist within the meaning of s 91R(2)(d) of the Migration Act 1958 (Cth) ('the Act'). 21 Other parts of the country information which the Tribunal had before it, but to which it did not specifically refer in its reasons, included the US Department of State, Bangladesh, Country Reports on Human Rights Practices – 2002, Bureau of Democracy, Human Rights & Labor, 31 March 2003 ('the 2002 Report'). Under the heading 'Freedom of Religion', the 2002 Report included a sentence reading as follows: 'Some members of the Hindu, Christian, and Buddhist minorities experienced discrimination by those who regard minorities in general as politically vulnerable.' 22 The appellant further relied upon a passage under the same heading reading: 'Since the October 2001 elections, some newspapers and NGOs, the Bangladesh Hindu Buddhist Christian Unity Council, and the AL have alleged that religious minorities have been targeted for attacks. The government sometimes has failed to criticize, investigate, and prosecute the perpetrators of attacks by local gang leaders. However, targeted attacks, motivated solely by religious differences, could not be independently verified.' 23 In the appellant's submissions, the preamble to the assertion that religious minorities have been targeted for attacks has been omitted, and the word 'sometimes' has also been omitted. The passage which the appellant would ask the Court to have regard to has been significantly distorted by the omissions. Furthermore, I should add that the appellant has failed to refer to the last sentence in the passage quoted. Another passage in the section of the report under the heading 'Freedom of Religion' upon which the appellant relies reads: 'On May 12, 12 unidentified persons broke into Dabua Benubon Bhiar Buddhist Monastery at Beltoli before the monastery occupants and local residents chased them away.' 24 The significant difference between the passage as contained in the report and that relied upon by the appellant is that the appellant omitted to include the words 'and local residents chased them away', demonstrating the relative insignificance of the 'break-in'. The submission that the Tribunal fell into jurisdictional error by giving no weight to the relevant country information is unsustainable. 25 A further matter raised by the appellant is that the Tribunal engaged in speculation in concluding that it was not satisfied that the appellant faced a real chance of Convention related persecution in Bangladesh. In the course of the Tribunal's statement of the 'claims AND EVIDENCE' the Tribunal noted the following: 'The Applicant told the Tribunal that there is no problem being a Buddhist monk in Bangladesh …. … The report [referring to the 2004 Report referred to above] … identifies no significant problems for Buddhists, appearing to concur with the Applicant himself in comments he made during the RRT hearing.' 26 It is difficult to understand how the appellant came to contend that the Tribunal failed to consider the appellant as a member of the Buddhist religion as indicated in the Amended Notice of Appeal filed 21 August 2006. In its 'findings and reasons', the Tribunal said: 'The Tribunal accepts that the Applicant is a national of Bangladesh. … The Tribunal accepts that the Applicant was a Buddhist monk at least by the time he left Bangladesh in 2002. …' 27 The finding by the Tribunal that it was not satisfied that the appellant faced a real chance of Convention related persecution in Bangladesh was fully supported by the country information to which the Tribunal earlier referred, indicating that there were no significant problems for Buddhists in Bangladesh. The submission of the appellant that the finding was speculative fails. There was no jurisdictional error on the part of the Tribunal in making the finding which it did. 28 A fourth matter upon which the appellant relied in his outline of submissions was a finding by the Tribunal in the following terms: 'The Tribunal relies on the Applicant's claim about life for Buddhist monks being unproblematic in Bangladesh. The Tribunal dismisses as unfounded the Applicant's claims about having been assaulted by Mullahs or madrassa students. The claims are vague and unsupported and form a pattern with the misleading story the Applicant has told about Zany (or Jane) Alam, which is not a Convention-related matter in any event.' 29 It seems to me that in this regard all that the appellant is seeking is a merits review which it is not open to the Court to decide in his favour. The final matter to which reference should be made is a reference in the appellant's outline of submissions reading: 'A part of the decision of the Tribunal's decision [sic] is inconsistencies in my letters from different organisations, my statement and evidences. I believe it is Tribunal's obligation to particularize those inconsistencies to me in writing under s424A prior to come to its decision. I am entitled to be alerted to, and furnished with an opportunity to address, every matter that is considered by the Tribunal to be even tentatively adverse to my claims. …' 30 The learned Federal Magistrate dealt with a submission to this effect in his reasons for judgment, see [2006] FMCA 935 at [ 29], where he said: '… it has been put to me, and I accept … that those documents and the unreliability thereof does not breach the Tribunal's requirements under s.424A(1) of the Migration Act in that all of the documents were in fact brought by the applicant and relied upon as part of his case. …' 31 It seems to me clear that s 424A(1) has no application in the circumstances of the present case given the terms of s 424A(3)(b) of the Act. 32 For the foregoing reasons, the appeal should be dismissed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.