Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (1004) [2004] HCA 32 ; 207 ALR 12
Outcome: cited
The reliance by the appellant's Counsel's on Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 ; (2002) 120 FCR 48 to support this ground was, in the Federal Magistrate's opinion, inappropriate because it was a case where the weight of authority was clearly against the appellant. His Honour noted that this case indicated the need for exceptional circumstances to arise before a duty to investigate arose. The Federal Magistrate found that the appellant's circumstances were completely lacking in features which might support the exceptional duty referred to in Azzi . The Tribunal specifically informed the appellant that it did not intend to initiate any post-hearing approaches and the appellant did not suggest what evidence the particular witness could provide to answer his case. Further, there would have been obvious difficulties in relation to obtaining and giving weight to any evidence obtained from such a witness. 17 Accordingly the Federal Magistrate dismissed the application. 18 The appellant appealed to this Court by notice of appeal filed on 9 October 2006. Six grounds were raised, namely that the Federal Magistrate erred by not finding error in the Tribunal's decision as follows: 1. Jurisdictional error by affirming the decision of the Tribunal that the appellant did not have a well-founded fear of persecution. 2. Lack of procedural fairness in the proceedings of the Tribunal in that it did not give the appellant a reasonable opportunity to respond to independent evidence that Awami League activists were able to live in Bangladesh without being persecuted for involvement in political activities and membership of that party without becoming a victim of violence. 3. The Tribunal and the delegate had not dealt with a key component of the appellant's claims, namely the harassment for his political views. 4. The Tribunal failed to consider: the risk of persecution that forced the appellant to leave Bangladesh; the appellant was a credible witness; failing to judge whether persecution of Awami League members occurs under the existing regime; that the opponent political activists are specific targets of the fundamentalist political party Jamat e-Islam and the BNP who have formed a coalition. 5. Legal error by asserting the appellant did not have a genuine fear of persecution for a Convention reason and did not take into consideration the threat to the appellant's life or liberty that he would experience on return to Bangladesh. 6. The Tribunal fell into error by asserting that the appellant need not maintain his membership of the Awami League. 38 In relation to the balance of the submissions of the appellant, to the extent that they were not subsumed by the grounds of appeal I note: &#8226; to the extent that the Tribunal made findings that the appellant's oral evidence and the advice in his letter of 12 February 2006 provided incomplete and vague information with respect to charges against him, such findings were findings of fact and not open for review; and &#8226; the appellant's claim that the decision of the Tribunal was not a bona fide attempt to act in the course of the Tribunal's authority is general and vague, however to the extent that the appellant claims that the Tribunal was obliged to make further inquiries with respect to the appellant's claims, the claim cannot be sustained as the Tribunal is under no duty to inquire: Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 21-22. 39 In light of these issues, in my view it is not expedient and in the interests of justice to allow the grounds raised on appeal by the appellant, and not previously raised in the Court below, to be argued and determined by this Court. 40 Accordingly, the appeal should be dismissed with costs. ORDERS 1. The name of the first respondent be amended to Minister for Immigration and Citizenship. 2. The Refugee Review Tribunal be added as a second respondent to these proceedings. 3. The appeal be dismissed. 4. The appellant pay the costs of the first respondent. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 27 March 2007 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: J Mitchell Solicitor for the Respondent: Phillips Fox Date of Hearing: 28 February 2007 Date of Judgment: 27 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/424.html