SZIHC v Minister for Immigration & Citizenship [2007] FCA 1254

FEDERAL COURT OF AUSTRALIA

SZIHC v Minister for Immigration & Citizenship [2007] FCA 1254

SZIHC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1049 OF 2007

MARSHALL J

16 AUGUST 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1049 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIHC

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MARSHALL J DATE OF ORDER: 16 AUGUST 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant pay the first respondent's costs of the appeal.

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 1049 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIHC

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MARSHALL J

DATE: 16 AUGUST 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of Federal Magistrate Turner. His Honour rejected the appellant's application for judicial review of a decision of the Refugee Review Tribunal (Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent Minister that the appellant was not entitled to a protection visa. 2 The appellant is a citizen of Bangladesh. He entered Australia in July 1998. In February 2001, he applied for a protection visa. A delegate of the Minister rejected that application on 27 April 2001. On 1 May 2003, the Tribunal affirmed the delegate's decision. In July 2005, this Court set aside that decision, by consent, and remitted the matter to the Tribunal. A second, differently constituted, Tribunal affirmed the delegate's decision on 15 December 2005. The Federal Magistrates Court set aside that decision and, on 26 June 2006, remitted the matter to the Tribunal. On 22 September 2006, the Tribunal determined the appellant's application to review the delegate's decision of 27 April 2001, adversely to the appellant. On this occasion the Federal Magistrates Court affirmed the decision under review. 3 The appellant claimed to fear persecution, if returned to Bangladesh in the reasonably foreseeable future, by reason of his religion (adherence to the Ahmadi religion) and his political opinion (past association with the Freedom Party). The Tribunal considered the appellant to be an unreliable witness. It did not accept that he adheres to the Ahmadi religion. It observed that he did not refer to his religion in his original claims made to the delegate. It found his explanation for that omission to be unconvincing. The Tribunal found the appellant's account of his introduction to and sustained attraction to the Ahmadi faith was also unconvincing. It said the same about his involvement with the Ahmadi community in Bangladesh. 4 The Tribunal was not satisfied that the appellant has ever had anything to do with the Freedom Party. It followed that it did not consider him to be at risk of persecution by his past association with that party. 5 The appellant raised the following grounds of review before Turner FM, which may be summarised as: · bias and/or a reasonable apprehension of bias in the Tribunal; · error of law and failure to follow proper procedure; · failing to identify the issue the Tribunal referred to when the appellant was confused at the hearing; · denial of procedural fairness; · constructive failure to exercise jurisdiction; · ignoring the appellant's claims; · denial of natural justice; · taking into account of an irrelevant consideration. 6 Federal Magistrate Turner rejected each ground of review. He found the claim of actual bias or reasonable apprehension of bias to be baseless. He formed the same view about the allegations that the Tribunal did not follow proper procedure. In the context of the appellant's alleged ground of review about being confused, his Honour considered that the Tribunal had written to the appellant under s 424A(1) of the Migration Act 1958 (Cth) (Act) and clearly set out the information upon which it invited comment. 7 His Honour found no denial of natural justice or procedural fairness or breach of s 424A of the Act. He noted that the Tribunal's s 424A letter put the appellant on notice that the information referred to in it "may cast doubts on [his] veracity." 8 The Federal Magistrate rejected the other grounds of review. He considered the religion-based claim and the political opinion-based claim to have been considered and dealt with by the Tribunal, without ignoring any claims or constructively failing to exercise its jurisdiction. His Honour considered that the Tribunal dealt with all aspects of the appellant's claims. He also considered that, in assessing the genuineness of the appellant's claims, the Tribunal was entitled to take into account the 18 month delay between the appellant entering Australia and applying for a protection visa. 9 By his amended notice of appeal the appellant raises one ground of appeal. Leave was sought to raise a second ground of appeal. The Court considered the second proposed ground of appeal to be untenable and refused leave to raise it. The proposed second ground sought to allege that the appellant did not receive a proper hearing envisaged by an invitation under s 425(1) of the Act. The appellant did receive a proper hearing and was free to raise any matter he wished to take the Tribunal to in support of his application. The fact that the Tribunal did not ask him questions about his past association with the Freedom Party does not mean that he was not entitled to present evidence and arguments on that issue. 10 The remaining and sole ground of appeal alleges that the Tribunal "failed to carry out its statutory duty". Properly understood, it is a claim that the Tribunal constructively failed to exercise jurisdiction by not considering one of the appellant's claims. As noted at [3], one of the claims was that the appellant feared persecution by reason of his political opinion. The appeal ground refers to the Tribunal's treatment of that claim as abandoned. The appellant disputes that he abandoned the claim and relies on the transcript of the hearing before the Tribunal to show the claim was pressed. 11 At pp 10-11 of the transcript of the hearing, after discussing the appellant's claim based on religion, the following exchange occurred between the Tribunal member and the appellant: … TRIBUNAL MEMBER: Are there any other reasons why you fear returning? [APPELLANT]: Sort of a political problem as well, but I don't practice [sic] the political things a long time so I don't know it's going to be happen but still they – they know that I was a Freedom Party leader over there, and I'm a Ahmadiyya Muslim – I was a Sunni Muslim before but – then I was Ahmadiyya so they still don't like me anymore. TRIBUNAL MEMBER: We will come to discuss then the Freedom Party later on but I understand your [sic] saying that your main problem arised…because of religion? [APPELLANT]: Yes. … 12 The Tribunal member then questioned the appellant about his claim to fear persecution by reason of his religion. During that discussion, at p 27 of the transcript, the appellant mentioned the "Freedom Party" in response to a question about him being known for his religious faith whilst in Bangladesh. He referred, in an indistinct way, to having "the problem also of the Freedom Party and the Freedom Party people also". 13 At p 34 of the transcript, the Tribunal member referred to the Freedom Party. The member asked a further question about "Ahmadis" and then the following is recorded: … TRIBUNAL MEMBER: I'll call the Tribunal officer now to close our hearing. [APPELLANT]: Thank you. TRIBUNAL MEMBER: Hello, could we please close up in Room 8, thank you. … 14 The transcript then records the appellant as asking himself the next question. It plainly should have been a reference to the "Tribunal Member". The question was: If you return to – if you do return to Bangladesh would you have any plans to make connection with the Freedom Party people or have you lost interest? 15 The appellant's response was, "I've lost interest". 16 Further questioning occurred about "Ahmadi" and practising at a mosque, throughout p 35 of the transcript. It is not until the top of p 36 of the transcript that the Tribunal Officer is recorded as saying: The hearing is closed. The time is 1.39. The member is leaving the room and I'm switching the tape off. 17 The appellant submits that his reply to the Tribunal member occurred after the hearing was closed and therefore the Tribunal did not consider his claim about the Freedom Party. That submission is incorrect as the above analysis of the transcript shows. 18 The Tribunal, in its reasons for decision, noted a political opinion claim based on the appellant's "past association with the Freedom Party". The Tribunal said at p 16: The applicant claims he is no longer associated with the Freedom Party, but that his political past may still be used against him. 19 After comprehensively dealing with the appellant's claim based on his religion, the Tribunal referred to his "political opinion" claim. The Tribunal noted that the appellant has no current interest or further desire to be involved in the Freedom Party but is concerned that his "political past" may be used against him. 20 The Tribunal rejected this aspect of his claim. It considered that he would not face a real chance of persecution if returned to Bangladesh, in the reasonably foreseeable future, by reason of his past association with the Freedom Party. The Tribunal rejected that claim because it was "not satisfied that [the appellant] has ever had anything to do with the Freedom Party". 21 The Tribunal did consider the appellant's claim to fear persecution on account of his past association with the Freedom Party. It rejected the existence of any such association. It did not fail to deal with that claim. It did not constructively fail to exercise its jurisdiction. The Federal Magistrate correctly dealt with that issue in the proceeding below. 22 The appeal is dismissed. The appellant should pay the first respondent's costs of the appeal. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.