SZBMI v Minister for Immigration and Citizenship

[2007] FCA 817

FEDERAL COURT OF AUSTRALIA

SZBMI v Minister for Immigration and Citizenship [2007] FCA 817

SZBMI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 170 OF 2007

TAMBERLIN J
9 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 170 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBMI
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 170 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBMI
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 Smith delivered on 22 January 2007 refusing an application for a review of a decision of the Refugee Review Tribunal (“Tribunal”), which affirmed the denial the grant of a protection visa to the appellant.  The grounds of appeal are set out in a notice filed on 7 February 2007 and are more fully spelt out in an outline of submission filed on 3 May 2007.

2. The findings of the Tribunal were largely based on an adverse view formed of the appellant's credibility as appears at page 12 of the Tribunal’s reasons for decision.  The Tribunal did not accept that false charges had been ever laid against the appellant, nor that there was a real chance he would be arrested or imprisoned if returned to Bangladesh now or in the reasonably foreseeable future.

3. I have considered the reasoning and material before the Tribunal, and in dealing with the possibility of the appellant being targeted by fundamental Muslims and extremists as a singer or artist, I note that the Tribunal did not accept that fundamentalist Muslims or terrorists were targeting singers or artists as such.  The Tribunal referred to the fact that he was able to continue with his singing activities and relied on country information in rejecting his submission that he would be persecuted by reason of his involvement with the Bangladesh National Party if returned to Bangladesh.  The appellant’s case is based on membership of a particular social group, namely an artist or singer, and being a member of the Taslima Nasreen supporter club.  In relation to this, he stated that the Tribunal did not ask him any questions as to how he had suffered because of being an artist or singer or as a member of the supporter club.

4. As pointed out by counsel for the Respondents, the Tribunal did ask a number of questions of the appellant.  In any event, I do not consider it was necessary for the Tribunal to ask any specific question in relation to this matter.  Although there is no onus of proof in these matters the correct position, when one looks at the state of the evidence after all of it has been presented, is that it was open to the Tribunal to form the view that it did not accept the appellant's submissions.

5. I am therefore not persuaded that there was any error in the decision of the Tribunal and my reading of the reasons for judgment of the Federal Magistrate does not disclose any error which would warrant setting aside the judgment.  The matters raised by the appellant before the Federal Magistrate are the same grounds in substance as were raised before me and I consider that the issues have been properly and fully canvassed in the reasons for decision given by his Honour and that it is not possible to identify any legal error in the approach taken.

6. Accordingly the order of the Court is that the appeal is dismissed with costs.

I certify that the preceding six (6) 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 S. Sirtes
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 May 2007
Date of Judgment:	9 May 2007