FEDERAL COURT OF AUSTRALIA SZQIS v Minister for Immigration and Citizenship [2012] FCA 457 Citation: SZQIS v Minister for Immigration and Citizenship [2012] FCA 457 Appeal from: SZQIS v Minister for Immigration & Anor [2011] FMCA 966 Parties: SZQIS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 2277 of 2011 Judge: SIOPIS J Date of judgment: 4 May 2012 Date of hearing: 30 April 2012 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 20 Counsel for the Appellant: The Appellant appeared in person. Counsel for the First Respondent: Mr R Baird Solicitor for the First Respondent: Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2277 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQIS Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: SIOPIS J DATE OF ORDER: 4 MAY 2012 WHERE MADE: sydney THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant is to pay the first respondent's costs to be fixed in the sum of $1,252.00. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2277 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQIS Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: SIOPIS J DATE: 4 May 2012 PLACE: sydney REASONS FOR JUDGMENT 1 The appellant is a citizen of Bangladesh and a Buddhist. It was in his capacity as a Buddhist monk that the appellant had first come to Australia in 2008 on a religious worker's temporary visa. 2 On 27 April 2010, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. The appellant was represented by a migration agent and in his visa application he claimed that he feared persecution from Muslim fundamentalists on the grounds of his religion. He said that his father was a Buddhist leader and his father had suffered persecution at the hands of Islamic fundamentalists. The appellant said that when he was young his mother had been abducted by Muslim fundamentalists and forced to marry a Muslim. He said that he had returned to Bangladesh on a number of occasions to try and find his mother. He had been threatened by Muslim fundamentalists and told "to go back immediately". He then returned to Australia and applied for a protection visa 3 A delegate of the first respondent refused the application for a protection visa on 12 January 2011. the refugee review tribunal 4 On 4 February 2011, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. 5 Before the Tribunal, the appellant was not represented by a migration agent and he recanted the version of events he had put before the delegate. The appellant said his mother had not been abducted by Muslims, but that his mother had voluntarily left his father, his brother and him, when he was young. His father was unable to afford to keep the family and the appellant was placed in a Buddhist temple. The appellant then moved to Sri Lanka, where from 1997 to 2008, he had lived and continued his Buddhist studies. As mentioned, it was in the capacity as a Buddhist monk that the appellant had first come to Australia on a religious worker's visa. 6 At the hearing before the Tribunal, the appellant said he had been back to Bangladesh and visited his father and brother and that no one was going to harm him in Bangladesh. Rather, said the appellant, his fear was that he would only be able to sustain a poor lifestyle in Bangladesh because he had not lived in Bangladesh as an adult, that training as a monk had not adequately equipped him with skills to earn a living and that he did not have a social network other than his immediate family. 7 The Tribunal did not accept that the appellant could only work as a Buddhist monk saying that he had language skills and a general education and that other members of his family had obtained work with those qualifications. 8 The Tribunal found that the appellant's claims regarding his inability to cope with life in Bangladesh did not amount to serious harm or systematic and discriminatory conduct within s 91R of the Migration Act 1958 (Cth). The Tribunal was, therefore, not satisfied that the appellant had a well-founded fear of persecution for a Convention reason. 9 A friend of the appellant, Ms Natalie Gould, also, gave evidence to the Tribunal to the effect that there was discrimination in Bangladesh against Buddhists and Buddhist monks. The appellant relied on this evidence to make claims in post-hearing submissions to support a claim to fear persecution on these grounds. However, the Tribunal noted that the independent country information did not support Ms Gould's evidence. The Tribunal said that the appellant belonged to the Barua minority which was a distinct readily identifiable group of Buddhists, who were originally from the Chittagong Plains. The Tribunal said that whilst the independent country information referred to discriminatory treatment of the Chittagong Hill Tracts tribal group, there was no corresponding information to suggest that the Barua minority faced similar treatment. The Tribunal, accordingly, rejected the claims made in the post-hearing submissions by the appellant. the federal magistrates court 10 The appellant made an application relying on the following grounds of judicial review before the Federal Magistrate: 1. The decision was made in breach of natural justice. 2. The Tribunal failed to consider crucial evidence constructively before it. 3. The Tribunal made a jurisdictional error by failing to comply with s 424 of the Migration Act 1958 (Cth). 11 The Federal Magistrate dismissed the application for judicial review. the appeal 12 The notice of appeal filed on 15 December 2011, states the following grounds of appeal: 1. That Federal Magistrate[…]erred in law when he failed to find that the RRT breached natural justice when considering my case. 2. That Federal Magistrate[…]erred in law when he did not find that the RRT had failed to consider crucial evidence before it. 13 I deal with each of the grounds of appeal below. Ground 1 14 The Federal Magistrate dismissed ground 1 of the grounds of review on the basis that the appellant had not identified any basis for the allegation that there had been a denial of procedural fairness. Before this Court, the appellant did not identify any error on the part of the Federal Magistrate in coming to this conclusion. Nor did the appellant identify any circumstance in support of his contention that there had been a denial of procedural fairness by the Tribunal. 15 This ground of appeal is dismissed. Ground 2 16 The Federal Magistrate dismissed ground 2 of the grounds of review on the basis that the appellant had failed to identify the evidence that he contended the Tribunal had failed to take into account. The Federal Magistrate observed that there had been a reference, in the appellant's submissions, to an Amnesty International report, and went on to say that there was no suggestion that the report had been before the Tribunal. The Federal Magistrate said that it could not be an error for the Tribunal not to take into account evidence which was not shown to have been before it. 17 Likewise, before this Court, the appellant did not point to any evidence which he contended that the Tribunal had not taken into account. In my view, the Federal Magistrate did not err in making the finding that he made. 18 In dealing with this ground of review, the Federal Magistrate, in fact, went on to say that the Tribunal record revealed that the Tribunal undertook a careful examination of all of the evidence before it. I agree with the Federal Magistrate's observation. 19 This ground of appeal is dismissed. 20 The appeal is dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 4 May 2012