SZGHL v Minister for Immigration and Citizenship [2007] FCA 741

FEDERAL COURT OF AUSTRALIA

SZGHL v Minister for Immigration and Citizenship [2007] FCA 741 SZGHL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 27 OF 2007

MARSHALL J

16 MAY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 27 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGHL

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MARSHALL J DATE OF ORDER: 16 MAY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent is amended to "Minister for Immigration and Citizenship". 2. The appeal is dismissed. 3. The appellant pay the first respondent's costs of the appeal, fixed at $2250. 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 27 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGHL

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MARSHALL J

DATE: 16 MAY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of the Federal Magistrates Court dismissing his application for judicial review of a decision of the Refugee Review Tribunal ("Tribunal"). The Tribunal had affirmed the decision of a delegate of the first respondent Minister not to grant the appellant a protection visa. 2 The appellant is a citizen of Bangladesh. He claimed to fear persecution if returned to Bangladesh by reason of his religion. He claims to be an Ahmadi Muslim (also known as "Ahmadiyya"). 3 In a decision dated 29 April 2004, the Minister's delegate found the appellant's fear of persecution by reason of his religion was not well-founded. The delegate accepted the harm or mistreatment feared by the appellant involved serious harm. However, the delegate considered that Bangladeshi authorities were willing and able to protect Ahmadis from being harmed and that effective protection was available to the appellant. 4 The appellant sought a review of the delegate's decision by the Tribunal. The Tribunal conducted a hearing on 22 October 2004, which the appellant attended. After the hearing, the Tribunal wrote to the appellant and requested that he provide a certified copy of a letter from the Ahmadiyya Muslim organisation in Australia, confirming the appellant's religion. Although the delegate had not challenged the appellant's claims about his religion, it was open to the Tribunal to identify an additional issue arising on review which may be determinative against the appellant (see SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592 at [35]). 5 As the Federal Magistrate put it succinctly in his reasons for judgment (SZGHL v Minister for Immigration & Multicultural Affairs [2006] FMCA 1828) at [13]: This request was made because information to the Tribunal indicated that the Australian Department of Foreign Affairs and Trade investigations revealed that the Ahmadiyya community maintained a comprehensive list of all Ahmadiyya followers in Australia and that the Ahmadiyya Mission in Australia could identify the correct status of any person alleging to be an Ahmadiyya. 6 The Tribunal made some inquiries with the Ahmadiyya Muslim Association of Australia and received information which contradicted information provided by the appellant about the circumstances of Ahmadiyya Muslims in Bangladesh. The Tribunal requested information from the appellant in response, but no such information was provided by the appellant. 7 On 15 April 2005, the Tribunal handed down its decision affirming the decision of the delegate not to grant the appellant a protection visa. At p 26 of its reasons for decision, the Tribunal noted the appellant did not respond to a request from it for information about his statement that leaders of Ahmadiyya had relocated internally in Bangladesh. 8 The Tribunal considered the appellant not to be credible and not to be an Ahmadiyya. It also found his evidence about how he came to Australia, via Laos on a business visa, to be lacking in credibility. The Tribunal found certain photocopied documents provided to it by the appellant, including "…a warrant for his arrest, hospital notes and a letter from a medical officer that the [appellant] was admitted to hospital…", were "fraudulent". It noted, at p 27, that "the issue of the genuineness of the documents was put to the [appellant] at the hearing before the Tribunal". 9 No proper ground of judicial review was particularised in the appellant's notice of appeal. At the hearing of the appeal, the appellant handed up a written submission. That submission complained that the Tribunal relied on country information in coming to its decision. The appellant submitted that he was denied procedural fairness by the Tribunal's reliance on the country information. This submission was not raised below. It has no merit. Section 424A(3) of the Migration Act 1958 (Cth) has the effect that the Tribunal is not obliged to raise such country information with the appellant. However, in this case, it did. At pp 9-10 of the Tribunal's decision, the Tribunal noted that it discussed the relevant country information with the appellant. Additionally, any common law duty to accord procedural fairness has also been satisfied. 10 The other issue raised by the appellant in his written submission handed up today concerned the age of the documents relied on by the Tribunal. That issue involves a question of merit appropriate for the Tribunal to determine and does not raise any jurisdictional error. 11 The appeal must be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.