SZCUQ v Minister for Immigration and Citizenship
[2007] FCA 1187
•10 August 2007
FEDERAL COURT OF AUSTRALIA
SZCUQ v Minister for Immigration & Citizenship [2007] FCA 1187
SZCUQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 505 OF 2007EDMONDS J
10 AUGUST 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 505 OF 2007
BETWEEN:
SZCUQ
ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
10 AUGUST 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the first respondent’s 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 505 OF 2007
BETWEEN:
SZCUQ
ApplicantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE:
10 AUGUST 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
The is an application for leave to appeal from the Federal Magistrates Court (Cameron FM) dismissing an application for judicial review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) not to grant the applicant a protection visa. The applicant had sought review of an earlier decision of the Tribunal and on 5 May 2006 the Federal Magistrates Court ordered, by consent, that the decision be quashed and the matter be remitted to the Tribunal to be determined according to law. It was from the second Tribunal decision that the application for judicial review came before Cameron FM. His Honour ordered, by consent, that a ‘show cause’ hearing take place in respect of the proceedings pursuant to Rule 44.12 of the Federal Magistrates Court Rules 2001 (‘the Rules’).
His Honour dismissed the application pursuant to para 44.12(1)(a) of the Rules, namely, that he was not satisfied that the application raised an arguable case for the relief claimed. His Honour concluded (at [29]):
‘In this case it is clear that the applicant’s action is certain to fail because his claim for judicial review on the basis of jurisdictional error is groundless.’
A dismissal under para 44.12(1)(a) is interlocutory (para 44.12(2)) and an appeal to this Court may only be brought with the leave of the Court or a judge: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The applicant erroneously filed a notice of appeal rather than an application for leave to appeal. However, all parties proceeded on the basis that leave was required and that the notice of appeal should be treated as an application for leave to appeal.
BACKGROUND
The applicant is a citizen of Bangladesh. He arrived in Australia on 21 April 2003. On 22 April 2003, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 24 April 2003 a delegate of the Minister refused to grant him a protection visa. On 12 May 2003 the applicant applied to the Tribunal for a review of that decision.
THE APPLICANT’S CLAIM
The applicant claims to fear persecution in Bangladesh because of the political activities of himself and his father.
His Honour below summarised a submission the applicant produced to the first (and differently constituted) Tribunal in the following way (at [5]):
(1)The applicant was a student political leader of the Awami League, the main opposition party in Bangladesh. He claimed that because he had become the General Secretary of the Thana Committee of the Chhatra League he had become the target of ‘BNP terrorists’ and he had been threatened many times and beaten. He said that some BNP ‘thugs and goons’ had tried to kill him.
(2)The applicant also claims that due to his father’s involvement in the Awami League and his father’s protests against Islamic fundamentalism, his family had been boycotted and harassed in various ways, including being threatened ‘that they would kill me if I continue my association with progressive activities’.
(3)The applicant said that because of persecution his other family members had ‘left their areas and now living other areas of the countries’ and that many of his friends had left Bangladesh and had sought shelter in India.
(4)The applicant said that the ‘Jamaat based Mullahs tried to kill me wherever I went’ and that he had already been victimised by ‘a known group of Islamic terrorists’ in Bangladesh. He said that the Government along with the Jamaat-e-Islami and its student wing, the Islami Chhatra Shibir had filed a false case against him. He said that he had left Bangladesh for the security of his life.
THE TRIBUNAL’S DECISION
The Tribunal considered that there were good reasons for doubting the applicant’s credibility in relation to his claims. These were summarised by his Honour below in the following way (at [8]):
(1)Inconsistencies in the applicant’s versions of the events concerning whether his father’s business activities had been affected by opposing political activists;
(2)the applicant gave inconsistent evidence concerning why he did not complete his education at Dhaka University such that it cast doubt on his claim that he was not able to complete his education there because he had been attacked by opposing political activists;
(3)inconsistencies in the applicant’s evidence concerning the looting and ransacking of his home by opposing political activists was such as to cast doubt on his claims that his home was attacked after the October 2001 general election and that he had to leave his home and go elsewhere in Bangladesh;
(4)the inconsistencies in the applicant’s evidence concerning why he travelled to Fiji in October 2001 suggested to the Tribunal that he was prepared to tailor his evidence to what he perceived to be his advantage without regard for the truth; and
(5)in the Tribunal’s mind, the fact that the applicant had travelled to Fiji and claimed to fear persecution in Bangladesh but returned to Bangladesh on 28 October 2002 and did not leave again until 19 April 2003 cast doubt on his evidence that he feared he would be persecuted if he returns to Bangladesh.
The Tribunal said:
‘I do not accept that the Applicant is telling the truth about his claimed problems in Bangladesh or his fears with regard to what will happen to him if he returns to Bangladesh. I do not accept that the Applicant was involved in the Awami League, its student wing, the Chhatra League, or its youth wing, the Jubo League, in Bangladesh. I do not accept that he was ever General Secretary of the Chhatra League or the Jubo League in his Thana, nor that he was ever elected as an executive member of the Dhaka District Committee of the Chhatra League, as he claimed in the statement accompanying his original application.’
THE FEDERAL MAGISTRATES COURT
The applicant applied to the Federal Magistrates Court for judicial review of the second Tribunal decision. His Honour summarised the grounds of the applicant’s amended application in the following way (at [12]):
(1)Factual matters said by the Tribunal to amount to inconsistencies regarding the applicant’s father’s business and employment and how it was affected by opposing political activists were not really inconsistencies;
(2)factual matters concerning the claimed looting and ransacking of the applicant’s [home] were not really inconsistencies;
(3)the Tribunal misconstrued the motivation for the applicant’s departure for Fiji and should have taken into account the timing of his departure from Bangladesh as evidence that his departure was, at least in part, motivated by a fear of persecution following the general election on 1 October 2001.
In submissions, the applicant’s counsel contended that the applicant’s evidence concerning his travel to Faridpur was adequately explained by the applicant in his evidence to the Tribunal.
His Honour rejected the applicant’s submission that, in reality, there were no inconsistencies of substance in the applicant’s evidence because of the applicant’s explanations of the differences in the versions the applicant gave in his evidence. In his Honour’s words (at [16]):
‘… the fact is that they [the versions] are different and to that extent are inconsistent.’
His Honour therefore concluded, correctly in my view, that the claim that there was no evidence for the finding of inconsistencies was not made out. This effectively dealt with grounds (1) and (2).
In relation to ground (3), his Honour saw this as a challenge to the Tribunal’s fact finding and held that the Court could not do this even were it to take a view of the facts different from the Tribunal’s: Abebe v Commonwealth (1999) 197 CLR 510. Moreover, an error of fact in the course of a decision is unlikely to be a jurisdictional fact: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1 at 16 [53].
In relation to the further ground raised by the applicant’s counsel, his Honour said (at [23]):
‘To the extent that this is a ground of review, it is really subsumed as a factual consideration associated with the second ground of review. Whatever explanation may have been given by the applicant to the Tribunal, the fact remains that it is for the Tribunal not this Court to weigh the facts and arrive at a conclusion on those facts.’
His Honour concluded (at [26]):
‘The essence of the application brought in this Court is that the Tribunal’s decision is affected by jurisdictional error because the Tribunal arrived at findings of fact, leading to an adverse view of the applicant’s credit, which the applicant says were wrong. The applicant’s complaint is with the Tribunal’s evaluation of the evidence which was before it. This Court is not empowered to substitute its own factual conclusions for those of the Tribunal.’
THE APPICATION FOR LEAVE TO APPEAL TO THIS COURT
The grounds of the applicant’s application for leave to appeal are to be treated as those set out in the notice of appeal erroneously filed. Those two grounds are effectively one ground, namely, that his Honour erred in dismissing the applicant’s application pursuant to para 44.12(1)(a) of the Rules in circumstances where the applicant had demonstrated an arguable case for the relief sought in his amended application or, as the second ground was put, his Honour erred in holding that the applicant had no arguable case for the relief sought in the proceedings.
The notice of appeal contained the following, described as ‘Particulars’:
‘(a)The Appellant’s initiating application in the proceedings below sought judicial review of a decision of the Second Respondent handed down on 26 August 2006. The grounds for the application included that the Second Respondent’s decision was based on inferences and findings of fact that were not based on any evidence or probative material and were, accordingly, irrational and in jurisdictional error in accordance with the principles set out in various authorities (e.g.; MIMA v SGLB (2004) 78 ALJR 992, Associated Provincial Picture-Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, Parramatta City Council v Pestell (1972) 128 CLR 305 at 327, Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41).
(b)The inferences and findings complained of were an adverse inference as to the Appellant’s credibility and the findings from which the inference was drawn being findings that various pieces of information provided by the Appellant in proceedings before the Second Respondent were inconsistent with each other. The Appellant argued that the relevant pieces of information provided no evidence of some of the inconsistencies found to exist.
(c)The Appellant further claimed in the proceedings below that the Second Respondent in its decision of 26 August 2006 failed to consider relevant information in reaching one of its findings.’
In his written submissions, the applicant submitted that while there were differences between his statements at the first Tribunal hearing and his statements at the second Tribunal hearing, there were no inconsistencies. In this regard, the applicant submitted:
1.That his accounts or versions were only different in the amount of detail given; or
2.that he had acknowledged that he had been incorrect in the earlier or later version.
The applicant submitted that the Tribunal erred in drawing an adverse inference as to his credit on the basis of findings of inconsistencies in the material he provided ‘… when some, at least, of the findings as to inconsistency were made in the absence of any evidence of inconsistency’. It followed, so the submission went, that the Tribunal’s decision was based on findings of fact that were not supported by evidence and this constituted jurisdictional error.
The applicant submitted that he only had to show that he had an ‘arguable case’ on the ‘show cause’ hearing to succeed before his Honour below and that having regard to the matters referred to in [18] and [19] above, there was sufficient doubt as to the correctness of his Honour’s decision to warrant a grant of leave.
The applicant was represented by counsel on the hearing of the application for leave, and his oral submissions were to like effect.
ANALYSIS AND CONCLUSION
I cannot agree that the applicant’s different versions or accounts of events upon which he relies to support this claim can be explained away on the basis that they were only different in the amount of detail given. Indeed, some, he conceded, were just incorrect. And at least one, he conceded, could not be explained away on the ground that the difference was a matter of detail.
The fact is that there were inconsistencies in the applicant’s versions or accounts of events and it was open to the Tribunal to rely on these inconsistencies ‘as good reasons for doubting the Applicant’s credibility’.
The claim that there was no evidence for the finding of inconsistencies has not been made good and in its absence, illogicality (if any) in the reasoning process will not suffice to found jurisdictional error.
In my view, his Honour below was correct in his conclusion that the essence of the application brought before him was that the Tribunal’s decision was affected by jurisdictional error because the Tribunal arrived at findings of fact, leading to an adverse view of the applicant’s credit, which the applicant says were wrong. As his Honour said: ‘This Court is not empowered to substitute its own factual conclusions for those of the Tribunal’.
I agree with his Honour’s ultimate conclusion that the applicant’s action is certain to fail because his claim for judicial review on the basis of jurisdictional error is groundless. In other words, he does not have an arguable case.
Being of this view, his Honour’s dismissal of the application pursuant to para 44.12(1)(a) of the Rules is not attended with sufficient doubt to warrant a grant of leave to appeal and the application for leave must be dismissed with costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate:
Dated: 10 August 2007
Counsel for the Applicant: Mr L J Byrne Solicitor for the First Respondent: Clayton Utz
Date of Hearing: 31 July 2007 Date of Judgment: 10 August 2007
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