SZFQJ v Minister for Immigration and Citizenship [2008] FCA 129

FEDERAL COURT OF AUSTRALIA

SZFQJ v Minister for Immigration and Citizenship [2008] FCA 129

SZFQJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1860 OF 2007

EMMETT J

12 FEBRUARY 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1860 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZFQJ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J DATE OF ORDER: 12 FEBRUARY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent. 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 1860 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZFQJ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE: 12 FEBRUARY 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of Bangladesh. He arrived in Australia on 30 April 2004, and applied for a protection (class XA) visa under the Migration Act 1958 (Cth) (the Act) on 10 May 2004. On 27 July 2004, a delegate of the first respondent, the Minister for Immigration & Citizenship (the Minister), decided to refuse to grant a visa. The appellant then sought review of the delegate's decision by the second respondent, the Refugee Review Tribunal (the Tribunal), which affirmed the delegate's decision on 14 December 2004. However, upon the appellant seeking judicial review of the Tribunal's decision by the Federal Magistrates Court, that Court by consent made orders on 26 May 2006 setting aside the Tribunal's decision and remitting the matter to the Tribunal for determination according to law. 2 The Tribunal, differently constituted, conducted a further hearing on 14 August 2006, at which the appellant was present and gave evidence. That hearing was conducted with the assistance of an interpreter in the Bengali and English languages. At the conclusion of the hearing, the appellant submitted a note to the Tribunal expressing concerns about the interpreter's having misinterpreted some of his oral evidence. While he provided no evidence of any examples of any interpretational problems, the Tribunal considered that claim, taking into account the overall body of evidence from the appellant, including oral evidence to the Tribunal previously constituted, written claims and documentary material. On 11 September 2006, the Tribunal, constituted as at the hearing on 14 August 2006, affirmed the delegate's decision not to grant a protection visa. 3 On 23 October 2006, the appellant, having been notified of the Tribunal's decision on 3 October 2006, commenced a proceeding in the Federal Magistrates Court seeking constitutional writ relief in respect of the Tribunal's decision of 11 September 2006. That proceeding was fixed for hearing on 21 November 2006, when the proceeding was dismissed by reason of the absence of the appellant. However, on 28 November 2006, the Federal Magistrates Court rescinded those orders, and the appellant filed an amended application to the Federal Magistrates Court on 30 January 2007. After a hearing on 23 August 2007, the Federal Magistrates Court ordered that the proceeding be dismissed and that the appellant pay the Minister's costs. 4 By notice of appeal filed on 12 September 2007, the appellant appeals to this Court from the orders the Federal Magistrates Court made on 23 August 2007. In his notice of appeal, the appellant raises three grounds. The first is that there was no evidence to support the Tribunal's finding that the appellant had fabricated the nature and degree of his interest and activities in politics and religious issues, and had fabricated the impact and implications of the latter, engaging a witness to state in writing that he had asked directly or indirectly to write. The second ground is that the Tribunal acted in excess of its jurisdiction by commenting that there was no credible evidence before the Tribunal to suggest that the appellant faced a real chance of persecution in Bangladesh for reasons of being a Hindu, as he claimed. 5 The third ground is that the appellant was denied procedural fairness or natural justice by the Tribunal. First, it was said that the Tribunal denied natural justice or ignored procedural fairness by giving certain correspondence tendered to the Tribunal by the appellant no weight. Second, it is said that the Tribunal denied natural justice or ignored procedural fairness in not taking into account the appellant's complaint that his oral evidence was misinterpreted by the interpreter at the hearing before the Tribunal. Before dealing with those grounds, it is necessary to say something about the Tribunal's reasons for its decision. 6 The appellant is a Hindu and claimed that he faced persecution in predominantly Muslim Bangladesh for reasons of religion. He also claimed that he faced persecution in Bangladesh for reasons of political opinion on account of his support for the student wing of the Awami League, which, since the elections in October 2001, went from being the ruling party in Bangladesh to the main party of opposition. The Tribunal accepted that the appellant is a national of Bangladesh. The Tribunal referred to the appellant's oral evidence of having been allowed to leave Bangladesh by regular legal means, passing an immigration checkpoint at Dhaka Airport without having been impeded, not even by a single question having been put to him at that time. 7 The Tribunal concluded that the appellant departed Bangladesh when he did both legally and without attracting any relevant concern from the authorities. On the evidence before it, the Tribunal was overwhelmingly confident that the appellant had fabricated both the nature and degree of his interest and activities in politics and religious issues and fabricated the impact and implications of certain letters. In the course of its reasons, the Tribunal referred to the fact that the appellant presented to the Tribunal a New South Wales police report and a letter from a Gazipur MP, both of which had been presented to the Tribunal, as originally constituted, together with three additional documents. 8 The first document was a letter from a spokesperson for an organisation known as the International Krishna Consciousness Association (ISKCON). That letter stated that the appellant was actively involved in ISKCON from 1995 to May 2004. The Tribunal considered that the letter was generous in its views of the appellant's talent and energy, but provided no evidence of any risk to him in bringing that talent and energy to the objectives of ISKCON. 9 The second document was a letter on what appeared to be Chatra League letterhead. The letter stated that the appellant was a polling agent for an Awami League candidate in the general elections of 1 October 2001. 10 The third document purported to be a letter on Bangladesh Parliament letterhead signed by the Awami League and opposition leader, Sheikh Hasina. The letter stated the appellant was publicity secretary for the Awami League in a part of Bangladesh, but did not say when. The Tribunal said that it asked the appellant how he was able to receive such attention from Sheikh Hasina. His response was that a friend, who was a local MP, asked her to write the letter. He told the Tribunal that the MP contacted Sheikh Hasina and told her that the Tribunal had disbelieved the appellant's claims about having been harassed by political opponents in Bangladesh and that the appellant needed her help. The Tribunal noted that, according to the appellant's own evidence, Sheikh Hasina merely wrote what she had heard from the appellant's friend. 11 The appellant provided no evidence to the Tribunal to suggest that the source of Sheikh Hasina's references to fabricated charges was any different from the one on which he himself was depending. He told the Tribunal that Sheikh Hasina wrote her letter upon being contacted by the MP with information from the appellant. Thus, the Tribunal concluded that the appellant was the source of much of the information that the MP gave to Sheikh Hasina in the course of persuading her to write the letter. 12 It is against the context of that material that the Tribunal observed, in its findings, that the appellant had fabricated both the nature and degree of his interest and activities in politics and religious issues, and fabricated the impact and implications of the latter, engaging witnesses to state in writing what he had asked them directly or indirectly to write. The Tribunal referred to the Sheikh Hasina letter as a case in point and concluded that, on the evidence before it, the appellant was the source of relevant facts in all the letters he submitted, including, to an overwhelmingly significant extent, the Sheikh Hasina letter. The Tribunal considered that to date there had emerged no more reliable source regarding the alleged false charges and alleged co-workers in the market. While the Tribunal was prepared to give weight to the letters insofar as they attested to the appellant having helped his local MP in the 2001 elections and insofar as they indicated that he was involved in student politics at his college whilst he was still a student until 2001, the Tribunal gave them no weight beyond that. 13 In accepting that the appellant was a member of the Chatra League whilst at his college and that he was public canvass secretary of the local student body, the Tribunal considered that it had to overlook the poor standard of evidence provided by the appellant as to the relevant operation of the policy details. The Tribunal considered the appellant was particularly unimpressive for someone who claimed to have been so integrally involved in communicating the party message. The Tribunal did not accept that the appellant continued with the Chatra League or to any significant extent with the Awami League after the 2001 elections. 14 The first ground, that the Tribunal failed to exercise its jurisdiction because there was no evidence to support its findings that the appellant had fabricated the nature and degree of his interest and activities in politics and religious issues, was not raised before the Federal Magistrates Court. The Minister urges that the ground should not be considered for the first time on appeal. However, whether or not it would be appropriate to refuse to consider the ground, what I have already said demonstrates that there is no substance in it. The Tribunal's conclusions were clearly based on its analysis of both the documentary and oral evidence given by the appellant. The best instance of that is the Tribunal's analysis of the letter from Sheikh Hasina. The first ground should be rejected. 15 The second ground, that the Tribunal acted in excess of its jurisdiction, by commenting that there was no credible evidence before the Tribunal to suggest that the appellant faces a real chance of persecution in Bangladesh for reasons of being a Hindu, was also raised for the first time on appeal. In its reasons, the Tribunal accepted that incidental, individual and localised mistreatment of members of Bangladesh's ethnic and religious minorities do occasionally occur. The Tribunal gave weight to the fact that those incidents tend to occur in remote and rural areas and that, according to the evidence before the Tribunal, the disputes often occur in relation to local land disputes. 16 By contrast, the Tribunal found that the appellant is from a rich, educated, arguably urban family from the Dhaka area with property and evidently positive social and political connections. The Tribunal found that the appellant's father died in 1999, and that the appellant inherited his father's estate according to law. The Tribunal did not accept evidence about the appellant's property having been appropriated by political opponents. The Tribunal found that the appellant's brother-in-law runs a business in Dhaka, and therefore concluded that there was no credible evidence before the Tribunal to suggest that the appellant faces a real chance of persecution in Bangladesh for reasons of being a Hindu. 17 The second ground is, in essence, an attack on the merits of the Tribunal's decision on the factual material before it. The Tribunal had regard to international reports concerning the state of affairs in Bangladesh, but concluded, for the reasons that I have just indicated, that they had no application to the appellant. There is no substance in the second ground. 18 The third ground, that there was a denial of procedural fairness, has two limbs, as I have indicated. The first, that the Tribunal gave no weight to the letters tendered by the appellant, was considered and dealt with by the Federal Magistrates Court. There is clearly no substance in the contention. The Tribunal examined the letters, gave weight to them for a particular purpose, as I have indicated, and gave detailed reasons as to why it rejected the letters as supporting any further conclusion. It is a matter entirely for the Tribunal to determine what weight it gives to the evidence. Quite clearly, the Tribunal had regard to the letters and gave its reasons for attributing little weight to them as evidence of incidents that would have constituted persecution of the appellant. 19 The Federal Magistrates Court also dealt with the second aspect of the claim of denial of natural justice or procedural fairness. Inaccurate interpretation at a hearing may have the consequence that an applicant has not been afforded the opportunity of a hearing, as required by s 425 of the Act. However, in the absence of evidence to indicate what was said by the appellant and how that was interpreted, it is almost impossible to determine whether there has been any denial of a hearing. As I have indicated, there was a complaint made to the Tribunal, which was examined by the Tribunal. There was no evidence before the Federal Magistrates Court to indicate any inaccuracies in the manner in which the evidence given by the appellant was interpreted before the Tribunal. 20 The appellant has not provided to this Court any indications in the transcript where interpretation was inadequate. While there are several instances where the interpreter appears to have been corrected, those instances are few and inconsequential. Indeed, the fact that the interpreter was corrected is indicative of the extent to which the appellant was able to ensure that what he was saying was adequately interpreted for the Tribunal. No instances have been furnished of incomplete interpretation, interruptions, non sequiturs or failures to translate. There is no substance in the contention that there was an inadequacy of interpretation that would have deprived the appellant of a hearing before the Tribunal. 21 Both limbs of this ground were adequately and fully dealt with by the Federal Magistrates Court. There was no error on the part of the Federal Magistrates Court. It follows that this ground must also be rejected. 22 On the basis of these conclusions, none of the grounds of appeal has been established and the appeal must be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.