SZBJL v Minister for Immigration and Citizenship
[2007] FCA 1238
•17 August 2007
FEDERAL COURT OF AUSTRALIA
SZBJL v Minister for Immigration and Citizenship [2007] FCA 1238
SZBJL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 634 OF 2007COWDROY J
17 AUGUST 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 634 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZBJL
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE OF ORDER:
17 AUGUST 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The Refugee Review Tribunal be joined as the Second Respondent to the proceedings.
2.The appeal be dismissed.
3.Pursuant to Order 62 rule 4(2)(c) of the Federal Court Rules the Appellant pay the costs of the First Respondent in the sum of $2500.
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 634 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZBJL
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE:
17 AUGUST 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from a decision of Federal Magistrate Scarlett delivered on 23 March 2007 dismissing an Application for Review of a decision of the Refugee Review Tribunal (‘the Tribunal’) signed on 26 September 2006. The Tribunal affirmed the decision of a delegate of the then Minister for Immigration and Multicultural Affairs (‘the Minister’) not to grant a protection visa to the appellant.
LITIGATION HISTORY
The appellant is a citizen of Bangladesh who arrived in Australia on 15 March 2002. On 26 April 2002 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) as it was then named. The Minister refused the application for a protection visa on 18 June 2002. On 13 July 2002 the appellant applied to the Tribunal for a review of that decision.
In a decision delivered on 14 August 2003, the Tribunal affirmed the Minister’s decision. An application for judicial review before Federal Magistrate Driver was dismissed on 10 May 2005 (see SZBJL v Minister for Immigration [2005] FMCA 612). However, on appeal to this Court, the decision of Driver FM was set aside and the Tribunal’s decision was quashed by consent by Allsop J on 17 March 2006. The matter was referred back to the Tribunal reconstituted.
THE APPELLANT’S CLAIMS
The appellant claims to have a well-founded fear of persecution by the Bangladesh National Party (‘the BNP’) for his political activities as an Awami League activist. The appellant claims to have come from a politically conscious family, that he was encouraged to participate in politics and held various executive positions with the Awami League in his district. He explained that he was targeted by the BNP after he was elected to Assistant Organising Secretary of a particular district committee. He claimed that on many occasions he was threatened and his family were insulted and, in particular, that BNP thugs made attempts on his life on two occasions in the first week of November 2001. The appellant claimed that false cases were filed against him and a warrant for his arrest was issued from Dhaka.
Before the reconstituted Tribunal the appellant stated, amongst other things, further details of the injuries he allegedly suffered in 2001. He claimed that he had suffered the loss of a finger as a result of being struck while riding his motorcycle during a protest carried out by the BNP in November 2001. The appellant claimed that on another occasion a BNP member took his mobile phone and made threats against him.
THE DECISION OF THE TRIBUNAL
The Tribunal did not find the appellant to be a credible witness and was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees 1954 (‘the Convention’). It gave reasons for that finding under various subheadings as follows:
Membership of the Awami League
The Tribunal was not satisfied that the appellant had ever been involved in the Awami League or that his claims and evidence regarding such involvement were truthful. The Tribunal questioned the appellant in relation to his knowledge of the Awami League, including its history and principles. On the evidence given to it, the Tribunal stated at 18:
‘The Tribunal finds that the applicant’s knowledge about the Awami League is infinitesimal. In light of the fact of the applicant’s claims to fear harm because of his political opinion, namely his membership and activities on behalf of the Awami League and further, in light of the applicant’s minimal knowledge about the party of which he claimed active membership and of which he claimed to have been the holder of office, the Tribunal cannot be satisfied that the applicant has been truthful in his claims and evidence.
The Tribunal further notes that when asked about the criminal charges claimed to have been made against him, the applicant was extremely vague and could only say that they were related to “carrying explosives”. The Tribunal asked the applicant if he had made any enquiries about the charges or found out any more details. The applicant stated that he has not. The Tribunal finds it implausible that a person in the applicant’s position would not have more detail about grave charges levelled against him.’
The Tribunal continued:
‘The Tribunal therefore cannot be satisfied that the applicant has been harmed in the past in Bangladesh or that he would be harmed in the reasonably foreseeable future for reason or [sic] his political opinion, or any other Convention reason.’
Injury to the appellant's hand and threats made against him
In light of the adverse credibility findings it had made regarding the appellant’s involvement with the Awami League, the Tribunal was unable to find that the injury to the appellant’s hand nor the alleged threats relating to his mobile phone were related to a Convention reason. Consequently, it gave no weight to these claims.
Documents submitted by the appellant
Because the appellant lacked reliability as a witness the Tribunal did not rely on the documents submitted by the appellant and afforded them no weight.
THE DECISION OF THE FEDERAL MAGISTRATE
On 13 November 2006 the appellant filed an application for an Order to Show Cause in the Federal Magistrates Court seeking review of the Tribunal’s decision. By Amended Application filed on 29 January 2007 the appellant made numerous claims including claims that the Tribunal ignored the appellant’s oral evidence and did not investigate the claims but rather relied on country information; the Tribunal ignored the appellant’s credibility; the Tribunal relied on limited information; the Tribunal demonstrated bad faith; the Tribunal’s decision was outside jurisdiction because it took into account irrelevant considerations and failed to consider relevant considerations and breached the rules of procedural fairness.
Scarlett FM considered the grounds so raised but was unable to discern jurisdictional error. His Honour noted that the Tribunal was entitled to take account of country information it considered relevant and to determine the weight that it would afford that information. His Honour found that the Tribunal was entitled to make adverse credibility findings and to reject evidence on that basis, and that the choice and assessment of country information was a matter for the Tribunal.
His Honour found that the majority of the claims raised by the appellant related to the merits of the appellant’s application and thus were not properly the subject of review. Scarlett FM was not satisfied that bad faith had been proved. His Honour also held that there was no obligation on the Tribunal to conduct its own investigations nor to seek further material.
Scarlett FM found that the principal reason for the Tribunal’s decision to uphold the Minister’s decision resulted from its lack of satisfaction of the appellant’s credibility. Such determination was a factual matter and was based predominantly on the appellant’s oral evidence. Consequently, Scarlett FM dismissed the application.
APPEAL TO THIS COURT
On 13 April 2007 the appellant filed a Notice of Appeal in this Court which relevantly stated:
‘1. The Single judge of the Federal Magistrate Court in his Judgment delivered on the 23 March 2007 failed to find error of law, jurisdiction error, procedural fairness and relief under Section 39B of the Judiciary Act. 1903.
2. The procedures that were required by the Migration Act or the Migration Regulations to be observed in connection with the making of the decision were not observed.
3. The Tribunal failed to take an account the relevant consideration in exercising its power to determine the decision.
4. The grounds and relief are very similar with a High Court Judgment- Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) HCA (8 Aug 2002). Catchwords; Immigration-Refugee- Protection visa-Decision by Minister to refuge application for visa-Review of decision by Refugee Review Tribunal-Obligation of Secretary of Department of Immigration and Citizenship to give relevant documents to Register of Tribunal for purpose of review- Nature and extent of obligation-Migration Act 1958(Cth), ss148(3), 424(1)
5. I will file an amendment of the grounds soon against the ‘Reasons for Judgment’ from the Federal Magistrates Court which I have received on 10th April 2007.’
The appellant was unable to attend the scheduled hearing of this appeal on 1 August 2007 due to ill health. The Court was provided with a medical certificate dated 1 August from Dr Antonio Braga indicating that the appellant was suffering from influenza/sinusitis and was unfit to work from 1 August 2007 to 3 August 2007 inclusive. The hearing was accordingly rescheduled to 6 August 2007.
At the hearing of the appeal before me the appellant handed up written submissions and submitted orally that Scarlett FM did not thoroughly consider his claims and that the amount of costs that Scarlett FM ordered him to pay was excessive. The appellant also submitted that the Tribunal did not comply with s 422B(3) of the Migration Act 1958 (Cth) (‘the Act’).
FINDINGS
The appellant’s first ground of appeal does not disclose any reviewable error on the part of Scarlett FM. It merely claims that his Honour failed to find error in the decision of the Tribunal. In the absence of particulars as to the errors alleged, the Court dismisses this ground.
The appellant has similarly not provided any particulars of the allegations that proper procedures were not observed by Scarlett FM. The Court finds no basis for the claim that Scarlett FM failed to observe any procedures required by the Act or Migration Regulations 1994 (Cth). Accordingly the Court dismisses this ground of appeal.
The third ground related to an alleged error in the decision of the Tribunal. The function of this Court is to review the decision of the Federal Magistrate and not the decision of the Tribunal and in the absence of any particulars as to the nature of the alleged error, the Court dismisses this ground.
The appellant’s fourth ground of appeal alleges that the present case is analogous to the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601. In that decision the appellant had applied to the Tribunal for review of the Minister’s decision to refuse his application for a protection visa. The appellant in those proceedings alleged that the Department had failed to despatch all of the documents on its file relevant to the review of the appellant’s decision contrary to the requirements of s 418 of the Act. He claimed that had he been aware that the Tribunal did not have all of the relevant documents, he would have provided submissions to the Tribunal relating to the content of those documents, and that in consequence there was a denial of procedural fairness. The High Court found that there was a failure to accord procedural fairness caused by the Department failing to despatch all the relevant documents to the Tribunal.
The appellant has not specified the error of law upon which he seeks to rely and for which Muin could stand as authority for the grant of relief sought. As submitted by the Minister, this issue was not raised by the appellant in the Court below and would require further evidence to support it. Further, the Court notes that the Tribunal stated in its decision that it had before it the Department’s file in respect of the appellant’s application. In the absence of further evidence the Court is unable to further consider this ground.
In relation to the appellant’s fifth ground the Court notes that no further material has been provided to the Court in relation to the grounds of appeal apart from the written submissions handed up by the appellant in Court during the hearing.
In relation to the appellant’s submission regarding the recent introduction of s 422B(3) to the Act, this subsection does not apply to applications commenced prior to the commencement date of the subsection, namely 29 June 2007. Since the appellant’s application to the Tribunal was commenced prior to this date, the section is not applicable to his appeal.
The Court can find no error in the decision of Scarlett FM and accordingly dismisses the appellant’s appeal.
The Minister seeks an order for costs in the sum of $2500. Since this is within a reasonable range for costs the Court will make the order sought pursuant to Order 62 Rule 4(2)(c) of the Federal Court Rules.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate:
Dated: 17 August 2007
Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: Stephen Lloyd Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 6 August 2007 Date of Judgment: 17 August 2007
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