SZBMC v Minister for Immigration and Citizenship

[2007] FCA 820

FEDERAL COURT OF AUSTRALIA

SZBMC v Minister for Immigration and Citizenship [2007] FCA820

Migration Act 1958(Cth), s 424A

SZBMC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 302 OF 2007

TAMBERLIN J
9 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 302 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBMC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	9 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed with costs.

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 302 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBMC
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE:	9 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Emmett in which her Honour made an order dismissing the proceeding brought by the appellant on the ground that the decision of the Refugee Review Tribunal (“Tribunal”) was not affected by relevant error.  In order to succeed on the appeal, the appellant must demonstrate that there is a relevant error in the decision of Emmett FM or in the decision given by the Tribunal. 

2. The grounds of appeal are cast in general terms. The first is that the Tribunal did not show reasons to reject the claim and that the Tribunal did not understand the case put before it and what it had to do. The second ground is that the Federal Magistrate did not properly inform the appellant or comply with s 424A of the Migration Act 1958(Cth).  When the matter came before the Court, the appellant made an oral submission in which he referred to certain matters which were of concern to him. 

3. The first ground concerns the question of the Federal Magistrate’s treatment of the passport which he was granted before leaving Bangladesh.  The appellant says that there was an error because the Federal Magistrate failed to take into account that the passport was issued by the President of Bangladesh and not by the Government.  This is said to be an important matter which led the Tribunal to wrongly reject the appellant’s evidence.  The Tribunal made a finding that the appellant was not a credible witness and the appellant is concerned that no reasons were given for that finding.  I do not accept the appellant’s submission in this regard because there were clear grounds given for rejecting his evidence on the important points on which the decision is based.  The Tribunal found that the appellant had left Bangladesh without difficulty and it was this fact on which the Tribunal formed the view that he was not of interest to the Awami League or the police or the Bangladesh authorities.  This was put to the appellant in a letter from the Tribunal prior to the hearing of 8 May 2006 and the appellant was given a full opportunity to say what he wished to say in relation to this point.  Specifically, the appellant was notified that the Tribunal was concerned that he was able to leave Bangladesh on his own passport and without difficulty.  In my view there was no important error in relation to the way in which the Tribunal considered how and by whom the passport was issued, because the real importance of his departure and the circumstances surrounding it was the fact that the authorities did not make any attempt to prevent him leaving.  Therefore the Tribunal concluded that contrary to his assertions he was of no interest to the authorities.

4. A further reason for forming the view that he was of no interest to the Awami League, the police or the authorities was that he was released after having been arrested.  The Tribunal took this into account as one of the reasons for not accepting his evidence.  The appellant also is concerned that the Tribunal treated him as having been properly convicted as a criminal in Bangladesh by the courts.  He says he is not a criminal and that this was an important error on the part of the Tribunal.

5. The Tribunal considered the question of his arrest and the finding of the Court.  The appellant said to the Tribunal that the charges before him were false.  The Court in Bangladesh did not accept that the charges were false and convicted him.  The Tribunal looked at country information concerning Bangladesh and accepted that the appellant had access to legal representation.  Moreover, the Tribunal did not accept that the appellant, under the contemporary Bangladeshi Government, had a well-founded fear of serious harm amounting to persecution.

6. The Tribunal was satisfied on information before it that the appellant would be able to seek and receive effective state protection from the Government, the police and the other authorities if Awami League members sought to harm him, particularly since and that he was an influential Bangladesh National Party leader.  The Tribunal did not accept for this reason that he was in danger from the Awami League and would be left without protection.

7. The reasons given above also demonstrate that the second ground of appeal, namely, that the Tribunal did not comply with s 424A of the Act, is made not made out. I find that the Tribunal informed the appellant of the particulars of that information which it considered as part of its reasons for affirming the delegate’s decision.

8. Having read the Tribunal decision as a whole, I am satisfied that sufficient reasons were given and I am not persuaded that any error of law has been shown in this case.  I also find no error in the decision of the learned Federal Magistrate, who has comprehensively dealt with all the submissions made on behalf of the appellant.  Accordingly, for these reasons, the appeal is dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:        28 May 2007

Counsel for the Appellant:	None
Solicitor for the Appellant:	None
Counsel for the Respondent:	Ms V. McWilliam
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	9 May 2007
Date of Judgment:	9 May 2007